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Article 35A and the basic structure
Any move to do away with it will damage the most solemn promises at the heart of the Indian federation
Can Article 35A of the Constitution be struck down? If yes, should it be? These questions — raised in a petition filed in the Supreme Court by a Delhi-based non-governmental organisation, “We the Citizens” — have already attracted widespread attention. The case, there’s little doubt, is freighted with political meaning. But when we look beyond the interests of politics, the issues aren’t especially contentious. As a matter of simple legal construction, it ought to be obvious to the court that the petition deserves a resounding dismissal. Any other verdict, which so much as entertains the notion that Article 35A is expendable, will impinge on basic tenets of constitutional interpretation, and will damage the most solemn promises that lie at the heart of the Indian federation.
Article 35A was inserted into the Constitution as part of a raft of amendments made through a 1954 presidential order, imposed under Article 370. Broadly, it empowers Jammu and Kashmir (J&K) to not only define a class of persons as constituting “permanent residents” of the State but also allows the government to confer on these persons special rights and privileges with respect to matters of public employment, acquisition of immovable property in the State, settlement in different parts of the State, and access to scholarships or other such aids that the State government might provide. The Article further exempts such legislation from being annulled on the ground that they infringe one or the other of the fundamental rights guaranteed by the Constitution. According to the petitioner, this immunity granted to J&K’s laws is discriminatory, and, therefore, Article 35A should be declared unconstitutional.
Well-settled law
When the case comes up for hearing this week, a three-judge Bench of the court intends to test the petitioner’s preliminary arguments and consider the question of whether Article 35A infringes the Constitution’s basic structure. The answer to this question, the court believes, will allow it to decide whether to refer the case to a larger bench for further examination. But this exercise is likely to be of little avail. The law on the subject is well settled. Previous Benches have already put their imprimatur on the 1954 presidential order. In any event, even if the court were to look beyond existing precedent, a proper reading of the text of Article 35A, and its constitutional history, will establish that the present petition is meritless; that Article 35A is not amenable to a conventional basic structure challenge.
India’s Constitution, as the political scientist Louise Tillin has explained, establishes a form of asymmetric federalism, in which some States enjoy greater autonomy over governance than others. This asymmetry is typified by Article 370 — a provision, as Ms. Tillin writes, which was debated for over five months before forming part of the Constitution as adopted in 1950. In its original form, Article 370 accorded to J&K a set of special privileges, including an exemption from constitutional provisions governing other States. What’s more, in accord with J&K’s Instrument of Accession, it restricted Parliament’s powers to legislate over the State to three core subjects: defence, foreign affairs and communications. Parliament could legislate on other areas only through an express presidential order, made with the prior concurrence of the State government. Where those subjects went beyond the Instrument of Accession, the further sanction of the State’s Constituent Assembly was also mandated. Finally, the Article also granted the President the power to make orders declaring the provision inoperative, but subject to the condition that this authority could be exercised only on the prior recommendation of the State’s Constituent Assembly.
However, with the disbanding of J&K’s Constituent Assembly in 1956, the question of suspending Article 370 was rendered moot. In the process, the asymmetry in India’s federalism was fortified. That this is the case can also be gleaned from a reading of Article 368, which contains the ordinary powers of constitutional amendment as applicable to other parts of India. One of the provisos to the clause (ironically made through the same presidential order which introduced Article 35A) makes it clear that changes made to the Constitution under Article 368 will not mechanically apply to J&K. For such amendments to apply to the State, specific orders must be made under Article 370, after securing the J&K government’s prior assent. What’s more, such amendments will also need to be ratified by the State’s Constituent Assembly. Indeed, as the Union Home Minister of the time, Gulzari Lal Nanda, put it in the Lok Sabha on December 4, 1964, Article 370 represents the only way of taking the Indian Constitution into J&K: “It is a tunnel,” he said, and “it is through this tunnel that a good deal of traffic has already passed and more will.”
Basic arguments
The petitioner in the Supreme Court now makes two basic arguments. Article 35A, it claims, could not have been introduced through a process outside the ordinary amending procedure prescribed under Article 368. Even assuming that the President possessed this power, the petitioner asserts, Article 35A infringes the Constitution’s basic structure. Both these claims, however, suffer from fundamental flaws.
As we have already seen, Article 370 is as much a part of the Constitution as Article 368. That the framers were deeply cognisant of the fact that the Constitution accorded J&K exceptional status is free of any doubt. It is particularly clear from the address made by N. Gopalaswami Ayyangar, the chief drafter of Article 370, to the Constituent Assembly on October 17, 1949: “Kashmir’s conditions are… special and require special treatment,” he said— “it is one of our commitments to the people and the Government of Kashmir,” that in matters outside the scope of the Instrument of Accession no additions would be made “except with the consent of the Constituent Assembly which may be called in the state for the purpose of framing its Constitution.”
That Article 370 is the embodiment of this promise was recognised as early as in 1959 by the Supreme Court in Prem Nath Kaul v. State of J&K. A few years later, another Constitution Bench of the court, in Sampat Prakash v. State of J&K, further clarified the position. “Art. 370 of the Constitution has never ceased to be operative,” it held, “and there can be no challenge on this ground to the validity of the Orders passed by the President in exercise of the powers conferred by this Article.” If anything, as A.G. Noorani has argued, there is a fine case to be made that all orders extending India’s Constitution to J&K subsequent to 1956, when the State’s Constituent Assembly was disbanded, are a nullity. But that the presidential order incorporating Article 35A, on the express recommendation of the State’s Constituent Assembly, is without legal authority is an argument that is destined to fail.
The structure
It is equally fallacious to suggest that Article 35A can somehow be subject to a basic structure challenge. The canonical rule established in 1973, in Kesavananda Bharati v. State of Kerala, that the powers of amendment under Article 368 are not plenary and that the Constitution’s basic features cannot be abrogated, was based expressly on an interpretation of the text of Article 368. Its logic doesn’t extend reflexively to amendments made under Article 370, a provision, which in and of itself, is essential to maintaining India’s federal structure. Besides, more than six decades have elapsed since Article 35A was inserted, and by now vast tracts of properties would have doubtless changed hands. In such cases, where constitutional amendments create vested rights in persons, as the Supreme Court held in Waman Rao v. Union of India, an amendment made prior to the decision in Kesavananda cannot be susceptible to a basic structure challenge. To hold otherwise would have consequences far more devastating than might immediately be apparent.
Suhrith Parthasarathy is an advocate practising at the Madras High Court
The larger picture on GDP numbers
The government should leave the debate on the back series to experts, and not make it political
The new data on GDP have raised a political storm, with the back series for GDP growth since 1993-94 becoming available. Its importance lies in the fact that in 2015, a new series was announced which showed India’s GDP growing faster than the earlier series had shown. This was politically advantageous to the National Democratic Alliance (NDA) government which came to power in 2014.
The NDA claimed that the second United Progressive Alliance (UPA II) government had messed up the economy and it had turned it around. But, in the new series, the rate of growth during the last two years of UPA II was also higher than what the old series showed so that the economic performance under the UPA also did not look so bad. What the new series also showed was that the NDA had inherited an economy with GDP growing at 8.4% in the second quarter of 2014. Most macroeconomic variables had also recovered from their lows in 2013.
Data show that after the NDA took over, the rate of growth fell and then rose to a peak of 8.65% in 2015-16 Q4. After that it fell for five consecutive quarters — to 5.57% by 2017-18 Q1. The two shocks to the economy (demonetisation and then the GST) had a big negative impact on the rate of growth. This is not even captured in the new data since a shock requires a change in methodology for calculation of GDP. The political slugfest between the Bharatiya Janata Party and the Congress is due to data showing that the average growth rate under the UPA I and II was higher than what has been achieved during the present NDA regime.
Points to the issue
There are three distinct aspects to the controversy. First, why was the back series —now the bone of contention — needed? Second, what do the data show? And, third, why was the rate of growth during the UPA regimes higher?
An economy produces a large number of goods and services and new ones are added all the time. The production of all these items has to be estimated in order to calculate the rate of growth of the economy. This requires lots of data, which is a tall order. So, a select set of items is taken to represent the entire production. The question which arises is: How accurate are the data?
Technology poses another challenge. Older items become redundant and newer ones need to be included.
So, as time passes, the earlier series of data does not represent the true growth rate of the economy and needs to be modified. That is why the old series is replaced by a new one periodically. The earlier series (from 2004-05) was replaced by a new series (from 2011-12). Another question arises: How do the data from the new series compare with those of the old series? Is it that growth was also higher earlier? Analysts have demanded a back series whenever a new series is prepared. There were problems with the new series which is why the back series was not generated automatically. This is also why the new committee (which has presented its report) was set up.
The difficulty with the new series (2011-12) was because it not only changed the bundle of items used to calculate growth but also used a more extensive data base (of companies) called MCA21. This data base was available from 2006-07. However, it kept changing every year and did not stabilise till 2010-11 — so it was not comparable across years and could not be used to generate the back series. This is also why the task of the committee was a difficult one and it could not mechanically generate the back series.
The committee had to use a new method which has its own assumptions, which are likely to be debated by experts. A bias in the results seems to be that the growth rate in the new time series for the earlier part (the 1990s) is lower than in the old series whereas it is higher for the later part (the 2000s). It is also unable to take the black economy and the changes in the unorganised sectors into account. The report has been submitted to the National Statistical Commission which will finalise it. Therefore, government functionaries are arguing that the data cited by the media are not final.
Quarrel about causes
It is interesting that the criticism is more about the causes of the higher rate of growth under the UPA than the methodology of the study. The implicit admission is that the economy did grow faster under the UPA but due to wrong policies (allowing the fiscal deficit to rise, undue expansion of bank loans, etc). The argument is that these have led to non-performing assets (the twin balance sheet problem), higher inflation and current account deficit.
But the higher growth was on the back of a 38% rate of investment and a 36% rate of savings achieved by 2007-08. These are now down to 32% and 30%, respectively. The 2007-08 crisis was a global one but the Indian economy continued to grow when many other economies were slowing down due to increase in fiscal deficit from its record low in 2007. The crisis of 2012-13 was due to the rise in petroleum prices and largely due to international factors.
However, the current slowdown is largely policy induced and less due to international factors. The twin shocks (demonetisation and the GST) have played havoc with the unorganised sector (not yet captured in the data). Household savings have declined sharply and the investment climate remains poor with large numbers of dollar millionaires leaving the country. The government might consider leaving the data debate to experts and not making it a political one.
Arun Kumar is Malcolm S. Adiseshiah Chair Professor, Institute of Social Sciences, New Delhi
In pursuit of an art smuggler
How Subhash Kapoor, a New York-based art dealer, evaded arrest till an associate spilled the beans on him
The Idol Thief: The True Story of the Looting of India’s Temples
S. Vijay Kumar
Juggernaut
₹499
In 2011, a celebrated New York-based art dealer, Subhash Kapoor, was detained in Germany for art theft, particularly of idols from temples in Suthamalli and Sripuranthan in Tamil Nadu. He was extradited the next year to India and now awaits trial in Chennai. After his arrest, the American authorities recovered stolen Indian art worth $100 million from his warehouses and galleries, and named him “one of the most prolific commodities smugglers in the world”. Kapoor was helped by Sanjeevi Asokan, an art dealer based out of Chennai who supplied the idols. As S. Vijay Kumar, a Singapore-based finance and shipping expert, writes in The Idol Thief, Kapoor’s “arrest caused an earthquake in the art world, the tremors of which are still being felt”. Asokan was arrested, and identified Kapoor as the mastermind of the crime. An excerpt:
Subhash Kapoor and Sanjeevi Asokan had been dealing in antiquities for decades before they were caught. The Suthamalli and Sripuranthan idols, which ultimately did them in, were just a drop in the ocean. Many, many more treasures had passed through their hands. So how come they never got caught all those years? Well, for one, Kapoor had friends everywhere, and for another, he had the luck of the devil. Take, for instance, the case of ‘the container from Mumbai’. That was quite a close call for Kapoor.
Suspicious package
In March 2007 in New York, Kapoor got a call that made him go numb. According to newspaper reports it was his ‘contact’, someone who worked in the Indian consulate in New York, warning him that the authorities in the U.S. had been tipped off by their Indian counterparts about a container that was consigned to his company, Nimbus Import Export, Inc. Kapoor’s contact’s warning was clear and precise — ‘Stay away!’
According to U.S. Immigration and Customs Enforcement (ICE), the Indian authorities at the Jawaharlal Nehru Port Trust in Mumbai had become suspicious of a New York-bound shipment that was labelled as marble garden furniture. For one, the shipment weighed tonnes, much more than what mere garden furniture could possibly weigh, and, secondly, the exporter was a garment and textile company, not a furniture manufacturer. These things set off alarm bells. In fact, the shipment containing $20 million worth of Indian art, some of it stolen, was heading to Kapoor.
Dumping $20 million worth of goods was a heart-wrenching decision. But it had to be done. This was the cost of doing business. Kapoor immediately sent a message to his agent to abandon the shipment. Then he likely contacted his trustworthy associate, ‘Shantoo’, his saviour. Shantoo would sort out everything, go into damage control mode. After all, India was a land of compromises! And many ruffled feathers had to now be smoothed.
As Kapoor would have hung up, and put his phone into his pocket, had you been in the room, you would have seen his deformed right ear. He would later explain in his unpublished ‘statement of voluntary confession’ recorded by P. Ashok Natarajan, chief investigation officer, that “during my childhood days I was kidnapped for ransom and was rescued by police near Haryana Rajasthan border. In this incident one of the kidnappers bit off my right ear lobe and since then it has been deformed.”
Escaping the net
The newspapers in India announced the seizure of the goods in the U.S. with screaming headlines and long reports.
In an ideal world, this would have been an open-and-shut case. Kapoor should have been arrested then and there. The Hindu even reported that “When ICE pounced on the consignment and brought Kapoor in for questioning, he apparently acknowledged being aware of the laws governing importation of cultural properties from India, and the fact that shipment could not be lawfully imported. Therefore, he elected to abandon the items.” But nothing happened. The case just fell through the cracks in the U.S. The agent in charge of the case didn’t seem to want to move on it. All that was left were many questions that are still unanswered.
Why didn’t the Indian authorities themselves stop the shipment at Mumbai? Who made that warning phone call to Kapoor? How did the caller have confidential information shared between the Indian authorities and U.S. Customs? And why was Kapoor allowed to continue his trade for years after this?
Shortly after Kapoor got that warning call, he got busy. If the Mumbai-New York route was under watch, he had to find another way to get his shipments to America.
He had been using the Hong Kong route earlier, to get to New York the Ardhanarishvara idol that he later sold to the Art Gallery of New South Wales in 2004 for $300,000. Now he asked his assistant to reactivate it by contacting their trusted associate Lai Sheung at Union Link International Movers Ltd in Hong Kong. He once more planned to use the Chennai/Kolkata/Mumbai-Hong Kong route to get his hauls out of India and then ship the goods to New York via London. Here’s how it worked: Lai Sheung would receive the shipment in Hong Kong, keep it for a while, and either directly send it on to Kapoor in New York or sometimes send it to Neil Perry-Smith, an art restorer, in London who would then send it to Kapoor after a while.
Excerpted with permission from Juggernaut
Until dams do us part
India’s policy on dams has to be urgently reviewed
The tragedy in Kerala has highlighted the dangers of excess water accumulation in dams. More than 20 dams released water that cascaded down the hills, leaving behind a trail of destruction. The opening of the gates of the Idukki dam, for instance, caused the Periyar river to swell rapidly and discharge seven lakh litres of water per second.
Yet, the argument for dams — that they provide drinking water and water for agriculture — is today scientifically discredited. For independent geologists and hydrologists, dams represent a nightmare, an ephemeral triumph of engineering over common sense and the natural sciences. Increasingly, it is evident that dam proponents are ignoring crucial decision-making data now available on patterns of rainfall, geology and climate change.
Dams store millions of tonnes of fresh water in large reservoirs, submerging prime forests, villages, farms and livelihoods. The 4,700 large dams built since 1947 have cumulatively displaced 4.4 million people. This makes dams the single largest cause for displacement post-Partition.
Solving the drinking water crisis does not require giant storage structures; these dams take decades to come up and only a fraction of their output is for the household sector. Over 85% of them are used in agriculture for producing cash crops such as sugarcane. Dams have displaced the poorest of India’s people in favour of richer farmers and urban residents, often with little or no compensation.
Worryingly, dams are far more hazardous than any other infrastructure project, except nuclear plants. Even as Kerala and Tamil Nadu have battled over the safety of the 116-year-old Mullaperiyar dam, there are, according to the India Water Portal, over 100 dams in India which are over a century old, and more than 500 large dams which are 50-100 years old, many of which have major defects and need urgent repair. It is also accepted today that dams can trigger seismic events. The reservoir-induced seismicity (RIS) from the weight of the reservoir has resulted in earthquakes in various parts of the country: of the 75 cases of RIS reported worldwide, 17 have been reported from India.
The scale and frequency of natural disasters is growing. According to data compiled by the Centre for Research on the Epidemiology of Disasters, the instances of extreme weather have gone up from 71 in the 1970s to about 224 in the 1990s and 350 in the first decade of the millennium. In the second decade, Uttarakhand, Odisha, Chennai, and now Kerala and Kodagu district have all been hit.
There has never been a greater urgency to review India’s policy on dams and to act on decentralised alternatives that involve water recycling and reuse. The immediate task is to critically review every dam in the country, decommission those that are at end-of-life, stop building new ones and establish sound safety protocols. If this is not done, the time bomb will tick on.
The writer is Executive Director, Nityata River Otter Conservancy
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