Editorial 1: Securing Basic structure
Recent Context:
- Recently, Indian Vice President Jagdeep Dhankhar Wednesday sparked a debate on the separation of powers between the executive and the judiciary.
- He criticised the Supreme Court once again, for using the doctrine of basic structure to strike down the constitutional amendment that introduced the National Judicial Appointments Commission Act.
Amending power of Parliament under Article 368 and Emergence of doctrine of ‘Basic structure’:
- Parliament had power to amend constitution including the FRs
- Shankari Prasad Singh Deo v. Union of India
- Constitution of India was amended as early as 1951, which introduced the much-debated Article(s) 31A and 31B to it
- A petition was filed in the Supreme Court of India challenging Article(s) 31A and 31B on the ground that they abridge or take away rights guaranteed under Part III of the Constitution which is against the spirit of Article 13(2) and hence should be declared void.
- In this case, Shankari Prasad Singh Deo v. Union of India, the Hon’ble Supreme Court held that the power to amend the Constitution including the Fundamental Rights is conferred under Article 368, and the word ‘Law’ as mentioned under Article 13(2) does not include an amendment of the Constitution. There is a distinction between Parliament’s law-making power, that is, the legislative power and Parliament’s power to amend or constituent powers.
- After this, several amendments were brought to the Constitution and once again the scope of amendments was challenged in the Sajjan Singh v. State of Rajasthan.
- Though all of the judges agreed with the decision of Shankari Prasad but for the first time in the concurring opinion by Hidyatullah and Mudholkar doubts were raised on the unfettered power of Parliament to amend the Constitution and curtail the fundamental rights of the citizen
- Fundamental rights were outside the purview of the amendment of the constitution.
- Golaknath Vs state of Punjab
- In 11 judge bench decision, wherein the Hon’ble Supreme Court by a majority of 6:5 held that the fundamental rights were outside the purview of the amendment of the Constitution
- The Court also clarified that the word ‘law’ under Article 13(2) includes within its meaning an amendment to the Constitution. Therefore, any amendment against the Fundamental Rights was void.
- The argument that the power to amend the Constitution is a sovereign power, which is over and above the legislative power and hence outside the scope of judicial review was rejected.
- Golak Nath case left the Parliament devoid of its powers to amend the Constitution freely, therefore to restore the earlier position; the 24th Constitutional Amendment was brought forth.
Ultimately, in Kesavananda Bharati case,1973
- The Kesavananda ruling was a culmination of a series of tussles between the judiciary and the executive led by then Prime Minister Indira Gandhi.
- After a reversal of key legislation including land reforms; nationalization of banks; abolition of privy purse- the Parliament brought in a constitutional amendment to give itself the power to amend any part of the Constitution and passed a law that it cannot be reviewed by the courts.
- The Court had to then examine the scope of the Parliament’s power to amend the Constitution and the legality of the land reforms
- a larger Bench of 13 judges In a fractured verdict, by a 7:6 majority, it held that
- “Though under Article 368 Parliament’s power to amend the Constitution was plenary, extending to each and every article of the Constitution including the articles enumerated in the Fundamental Rights Chapter, no amendment was permissible if it altered “the basic structure or framework of the Constitution”.
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Amendments was made to challenge the Kesavananda Bharati judgment:
- By reading implied limitations in the amending power, the Supreme Court established a new precedent (overriding two prior judicial precedents).
- But the majority view was roundly criticised. It was said that by propounding the basic structure theory, the guardians of the Constitution had at one bound become guardians over the Constitution — constitutional adjudicators had assumed the role of constitutional governors!
- On June 12, 1975, in the High Court of Allahabad, Indira Gandhi lost the election petition filed against her by Raj Narain (he had contested against her in the 1971 elections from Rae Bareilly)
- Then, in August 1975, Parliament hurriedly passed the Constitution 39th Amendment Bill. It provided (amongst other things) that no law made by Parliament (that is, existing election laws) would apply to the election of a person appointed as Prime Minister; the election of such person shall not be deemed to be void or ever to have become void; it would continue to be valid in all respects.
- In effect, the judgment of Justice Jagmohan Lal Sinha of the Allahabad High Court — holding Mrs Gandhi guilty of “corrupt practice” under then existing election laws — was attempted to be reversed by a constitutional amendment.
- This attempt was resisted by a Constitution Bench of five judges, relying for the first time after Kesavananda Bharati, on the basic structure theory of the Constitution.
- In Indira Gandhi vs. Raj Narain (1975), a Constitution Bench of the highest court held — under compulsion of a monstrous law — that free and fair elections were a fundamental part of the Constitution, so fundamental as to be beyond the reach of the amending power, all the five judges on the Bench having been a part of the Bench of 13 judges in Kesavananda Bharati.
- The decision constitutes a high watermark in the assertion of the Court’s judicial power in the teeth of a determined majoritarian regime.
- Much later, in 2007, a different Bench of nine judges in I.R. Coelho vs. State of Tamil Nadu, in a unanimous decision, authoritatively upheld the narrow majority view (of 7:6) in Kesavananda Bharati, and gave it permanent constitutional validity.
What are the basic features of the Indian Constitution?
- In the Kesavananda ruling, the Supreme Court cited several aspects of the Constitution that could be identified as “basic features” of the document but added that it was not an exhaustive list.
- For example, judicial review, rule of law, federalism, and democratic republic structure are identified as basic features.
Why is the doctrine criticised?
- Vice President Dhankhar’s remarks reflect the criticism often made against the doctrine and its application: that it is not found in the text of the Constitution itself.
- By evolving a test, which is not a textual application of judicial review, an argument is made that the judiciary is encroaching on the Parliament’s powers.
- Some critics of the doctrine, like senior advocate Raju Ramachandran have argued that the power of “unelected judges” to strike down amendments to the Constitution on the basis of this doctrine is “anti-democratic and counter-majoritarian.”
- However, legal scholarship over the years has defended the legitimacy of the test and argue that the doctrine rests on a sound structural interpretation of the Constitution..
Conclusion:
- ‘Doctrine of basic structure’ limit the unlimited power of Parliament while allowing the parliament to amend the any part of constitution but it should not disturb the ‘basic structure’ of constitution.
- Therefore, It became the bed rock for the several courts judgments which strengthen the faith of people in constitution and also strengthen the ethos and principle of vibrant democracy.
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Editorial 2: Policy makers need to take mental health more seriously
Recent Context:
- Recently, In December 2022, the 5th Global Mental Health summit was held in Chennai
- to discuss mental health in the context of human rights, ethics and justice. Highlighting the importance of mental health, it gave a call for action against the continued neglect by society at large and the governments at central and state levels, in particular
An analysis of mental health in the country:
- In 2015, the GOI carried out a National Mental Health Survey — 2015-16 to assess the prevalence of mental health in the country.
- The report showed mental disorders at 10.6 per cent among above 18-year-olds, 16 per cent among the productive age group of 30-49 year olds and lifetime morbidity affecting 150 million people with one per cent reporting high suicidal risk.
- Even so, the human resources and treatment facilities are woefully low.
- Low ration of psychiatrist to population: Madhya Pradesh, for example, has 0.05 psychiatrist per lakh population and treatment gap in India is about 80 per cent.
- Very low investment in mental health:
- Against an estimated need of over Rs 93,000 crore investment to address this huge morbidity, the Union government in 2019 earmarked a budgetary allocation of Rs 600 crore
- Unequal distribution of budgetary allocation to the institution:
- Out of total budgetary allocation for mental health program , which 93 per cent was for tertiary institutions such as NIMHANS, and the psychiatry departments of medical colleges, leaving just Rs 40 crore for the District Mental Health Programme and other community-based initiatives. Only a measly Rs 2.91 crore of this pitiable amount of Rs 40 crore was spent
- Such poor policy attention is often ascribed to indifference among bureaucrats and politicians. This is not the whole truth.
- In an acutely underfunded sector facing overwhelming demands for funding, those with the capacity to shout the loudest get attended to. Mental health is singularly handicapped in this regard as its lobbying power is the weakest
Government’s initiative for mental health:
- Government’s initiative such as rights-based National Mental Health Policy of 2014 and the Mental Health Act of 2017 decisively made a shift in policy by asking for the mentally ill to be treated on par with those suffering from physical ailments and be treated with dignity.
- However, there is still a lack of clarity on how the financial and physical resources are to be found and by when.
- A good policy for mental health should has four components:
- A clear vision with aims, objectives and goals;
- the design that spells out how to achieve the vision;
- the quantum of resources — financial, human and infrastructural, required to implement the design; and
- finally, the surveillance, data, monitoring and evaluation of outcomes at concurrent and periodic intervals for course correction.
Designing a policy for Mental health as Government did for tackling HIV/AIDS
- A common critique of India’s policy-making system is the substantial hiatus between the desire of what needs to be done and what is actually feasible.
- Strategic interventions require a nuanced understanding of the challenges and constraints within which a system works, based on consultation and dialogue between policy makers and those affected by the policies formulated.
- In fact, the example of how India tackled HIV/AIDS can be illustrative.
- The HIV/AIDS story has four key lessons:
- One, the need for crafting strategic interventions based on epidemiological evidence from an active surveillance system;
- two, the importance of modelling different options of addressing the wide array of interventions required in different geographies, among different target groups, to provide the data related to cost effectiveness as well as efficacy of the interventions required for scaling up;
- three, the proactive advocacy of systemic issues among all influencers — the media, judiciary, politicians, police and other intersectoral departments whose programmes and activities have had a direct bearing on the key populations being worked on;and
- four, the use of peer leaders and civil society that was allocated over 25 per cent of the budget. Without the active engagement of community leaders, implementation among the poorest and most marginalised, especially criminalised groups, this would have been impossible
- Though a central sector programme was fully funded by the central government, every intervention was formulated with active participation and dialogue among the states and more importantly, the affected constituencies
- A similar approach with certain modification is needed for crafting a good implementable strategy for mental health.
- Mental health is even more complex than HIV/AIDS as mental disorders are not merely a one-time ailment that can be cured with some medicines.
- It is intertwined with the kind of society we live in the pressures and stress due to poverty and growing inequalities of opportunity,
- the frustrations of joblessness, the judgmental and discriminatory environment on account of social barriers of caste, gender, religion and so on are powerful triggers that if left totally unaddressed, the ailment can recur despite medication.
Way forward/conclusion:
- There is a need for Strategies that need to be worked out based on available and collected data and evidence and Models such as Home Again and Emergency Care Centers of Banyan or the peer leader-led. need to be examined for scaling up and such centres should be promoted further.
- Along with it, Policy makers need to provide the resources and fund civil society organisations to implement community anchored and more affordable interventions.
