Read The Hindu Notes of 04th October 2018 for UPSC Civil Service Examination, State Civil Service Examination and other competitive Examination

The Hindu Notes for 04th October 2018

The scope of constitutional morality

Abolition of untouchability in all its forms, including scavenging, remains an unrealised constitutional right

“The issue of the rights of sweepers and scavengers has never entered the mainstream legal consciousness in the country,” wrote Upendra Baxi in Law and Poverty: Critical Essays. “Nor have the Bar and the Bench, and the mushrooming legal aid and advice programmes shown any awareness of the exploitative conditions of work imposed upon the scavengers and sweepers under the employment of municipal corporations or related local bodies… [T]he exploitative conditions of work constitute governmental defiance of the law and the Constitution, which can be best summed up as a crucial component of overall governmental lawlessness in the country since Independence.”

  • Written in 1988, Prof. Baxi’s lines remain disconcertingly relevant today. We struggle against the caricaturing of this extremely stigmatising, violently exploitative and degrading form of forced labour by a government and civil society that showcases empty rhetoric and ceremony around “cleanliness”, while decimating an entire class of citizens through callous neglect with impunity.
  • There has been a steady rise in deaths of conservancy workers, and a steadier normalisation of the risks to life they bear on a daily basis. Why don’t sewer deaths bring the country to a grinding halt, as they should? Will a general strike of all conservancy workers across the country bring the country to its knees? Because then, it will not be a question of prime-time jingles on a clean India; the focus will shift on each of us to take the moral and physical responsibility of cleaning our own sewers and keeping ourselves free of the risk of toxic death.

    • Flouting laws

  • To return to Prof. Baxi’s concerns on the place of law: Article 17 of the Constitution of India states: “Untouchability is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of Untouchability shall be an offence punishable in accordance with law.” This is a fundamental right and therefore justiciable and enforceable by courts, which shall call governments to account.
  • In 2009, the Delhi High Court, in Naz Foundation v. NCT of Delhi, invoked Babasaheb Ambedkar’s delineation of constitutional morality in asserting the urgency of decriminalising consensual sexual relations proscribed by Section 377 of the Indian Penal Code. The court cited a second provision as well: Article 15(2) which prohibits any form of horizontal discrimination drawing again from the experience of untouchability that obstructed the universal use of public places, restaurants, water sources, etc. We witnessed last month a triumphal return of constitutional morality as a guiding principle for constitutional interpretation. A five-judge bench of the Supreme Court of India, in Navtej Singh Johar v. Union of India, deployed this framework to reaffirm the rights of LGBTQ and all gender non-conforming people to their dignity, life, liberty, and identity.
  • The genealogy of Ambedkar’s signposting of constitutional morality may be traced to the strength of anti-caste resistance and the abolition of untouchability. It is from this context that constitutional wisdom was applied to analogous situations of oppressions based on sexuality. It is time to call the government to account through a recursive method that takes us to the original constitutional proscription of untouchability, armed with the wisdom of the Navtej Singh Johar case.

    • Judicial empathy

  • The first aspect is the importance of judicial empathy. In a violently exclusionary society, the application of the Constitution to lives as lived is an extremely emotional moment. We have people from India’s most oppressed castes dying painful deaths without dignity in the sewers of the same city where the court sits. There is neither accountability nor due diligence on the part of the state. The time for the expression of judicial empathy is now. Justice Indu Malhotra’s lines in Johar are apposite: “History owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries.”
  • Given the urgency, with people dying daily despite constitutional and statutory protections, how do we right these historical wrongs, or at least “set the course for the future”? We are all agreed that the de minimis approach is bad law — rule by law rather than rule of law, as it should be, to echo Justice D.Y. Chandrachud. The fact that it is still possible for people to be sent into sewers without protection, and to be forced to perform degrading labour is enough for us to sit up and take note. Outgoing Chief Justice of India Dipak Misra set out four cardinal corners of the Constitution: Individual autonomy and liberty; equality sans discrimination; recognition of identity with dignity; right to privacy. He also underscored the centrality of fraternity to the constitutional value system. These signposts require us to contemplate and act on the meanings and expressions of “intrinsic dignity” for conservancy workers and safai karamcharis.
  • If “self-determination and the realisation of one’s own abilities” lie at the core of personhood, how would forced, unsafe and degrading labour, and persistent untouchability figure in this new constitutional imaginary? In the case of safai karamcharis, we are today witness to the “violation of fundamental rights that strikes at the root of their existence” (Justice Misra), and there are no visible pathways to freedom in this virulent caste society. Lest we forget, untouchability is a crime under the Constitution.

    • Principle of non-retrogression

  • Important for citizen consideration today is the fact that the Supreme Court, in deciding on the unconstitutionality of Section 377, recognised that the four corners of the Constitution rest on a social reality steeped in prejudice, stereotypes, parochialism, bigotry, social exclusion, and segregation. If decriminalising “unnatural” sex is one of the “necessary steps on the road to democracy”, abolition of untouchability in all its forms remains an unrealised constitutional right.
  • The lesson on the importance of intersections in constitutional reasoning today is brought home to us in this case in yet another way. There is recognition by the court that majoritarian governments/sections work hard to keep oppressive structures in place, and that it is the duty of the court to place questions of liberty, equality, and dignity out of the reach of majoritarian impulses. The sanction for manual scavenging lies at the heart of majoritarian mindsets and structures. It is part of an ideological framework that permeates the institutional apparatus of government. If, as Justice Misra observes, “the sustenance of fundamental rights does not require majoritarian sanction”, can we call for some constitutional-procedural deliberation on the “progressive realisation of rights” in this instance? The principle of non-retrogression in the matter of fundamental rights has now been unequivocally stated. But on our streets, we only observe it in the breach especially in the case of manual scavengers.
  • To end with Ambedkar: “We must remove this contradiction at the earliest possible moment or else those who suffer from inequality will blow up the structure of political democracy.”

    • The creamy layer of social justice

    The progression from poor to bourgeois to elite is a welcome evolution in nation-building — the apex court missed it

  • As citizens, we expect two certainties from any verdict on public policy by a constitution bench of the Supreme Court. One, it must hold whether the underlying principle(s) is/are consistent with the Constitution of India. Two, such a verdict must end governance paralysis. Unfortunately, the court has accomplished neither objective in its recent verdict in Jarnail Singh v. Lachhmi Narain Gupta, wherein it held that the government need not collect quantifiable data to demonstrate backwardness of public employees belonging to the Scheduled Castes and the Scheduled Tribes (SC/STs) to provide reservations for them in promotions.
  • The core issue here was whether the ‘creamy layer’ among SC/STs should be barred from obtaining promotions through reservations. The court set aside the requirement to collect quantifiable data that was stipulated by its 2006 verdict in M. Nagaraj v. Union of India as it ignored the reasoning of a nine-judge bench in Indra Sawhney (1992) that any discussion on creamy layer “has no relevance” in the context of SC/STs.
  • The court has taken more than a decade to correct an anomaly in the Nagaraj case which brought in a creamy layer filter for promotions for SC/ST employees. This resulted in thousands of employees being denied their due promotions.
  • Can one now treat the matter as settled, that the creamy layer is a non-issue with regard to job reservations for SC/STs? Not so. A two-judge bench of the top court is considering a public interest litigation (PIL) filed by the Samta Andolan Samiti that seeks the removal of creamy layer among the SC/STs in job reservations — a matter settled by a nine-judge Constitution Bench long ago and also a matter that has just been settled by a five-judge Constitution Bench.
  • In the verdict in Jarnail Singh, the court cites an ‘admonition’ to itself by a Constitution Bench in the Keshav Mills case in 1965: “It must be the constant endeavour and concern of this court to introduce and maintain an element of certainty and continuity in the interpretation of law in the country.” The court followed its own admonition more in breach insofar as it concerns litigation related to reservation.

    • Out of synchrony

  • The court merely removed the government’s responsibility to collect quantifiable data on backwardness but reasoned that the creamy layer test would be consistent with the equality principle. The challenge it faced is of a secular nature. It did not question reservations in promotions for SC/ST employees, but grappled with a different question: Which section or class among the SC/STs is more entitled?
  • Some of the confusion in the debates over reservations since 1990 emanates in the context of reservations for the Other Backward Classes (OBCs). Sadly, the Supreme Court too relies on using arguments pertinent only in the case of OBCs to decide litigation on SC/ST quotas.
  • But a close reading of relevant constitutional provisions and the verdict in Indra Sawhney make it clear that the SC/STs are given job reservations not because they are poor but because they are excluded. The first part of Article 335 stipulates job reservations for SC/STs as a right of representation, not as a welfare measure. However, the creamy layer among SC/ST employees helps fulfil the second part of Article 335 that requires maintaining the “efficiency of administration”.
  • One can in fact argue for public employment having welfare objectives to plead the case of those less privileged among SC/STs. But such logic would require the removal of the creamy layer also while recruiting employees in the open category.
  • The court could have addressed an often ignored aspect of the matter — the right of the creamy layer among the community to opt out of reservations. At present, an SC/ST candidate does not have the right to reject reservations. She is merely required to state whether she belongs to the SC or the ST category and a response in affirmation automatically puts her in the queue for reservations. It is also a punishable offence to withhold one’s caste status while seeking government employment. A simple administrative decision to allow SC/ST candidates to compete in the general category would have helped thousands to leave the space for the less privileged among them.
  • What is also not appreciated while debating the matter is that the presence of the creamy layer works as a safety valve. The rationale behind the demand to prohibit elite or privileged sections from accessing quota posts is that these sections are as well qualified as general candidates, if not more, and numerous enough to warrant their removal.
  • Herein lies the catch. A well-qualified and large SC/ST group having to compete as non-reserved candidates would corner a substantial number of open posts. At the same time, their less privileged cousins would fill the quota. Theoretically, SC/STs would end up garnering more posts than their proportion in population. This begs the question on the rationale behind the litigation.
  • The Indian state must be proud that its policies have created a creamy layer among the most disadvantaged that gel well with those in the general category. They also help projecting the community as normal Indians, which is a revolutionary ideal. The whole enterprise of seeking to introduce obstacles before them in employment and promotions will have pernicious consequences. Will it do any good that the government recruits general candidates from the elite sections and reserved candidates from the poorer strata?
  • Given the uneven educational opportunities across the divides of rich-poor and urban-rural, the poor or underprivileged access substandard education. We want our public servants to be well educated and smart. The point must not be treated as an affront to the less privileged. It is mere recognition of the fact that socio-economic progress moves by generations. Today’s creamy layer is yesterday’s underprivileged.
  • In a 1970 memorandum to U.S. President Richard Nixon, Daniel P. Moynihan suggested that “the time may have come when the issue of race could benefit from a period of ‘benign neglect’.”
  • India badly needs such a period of ‘benign neglect’ in matters related to caste as well as the constitutional provisions aimed at getting rid of the rough edges of caste discrimination. The least one expects of the highest level in the judiciary is to accord “an element of certainty and continuity” on the subject.

    • In harmony with Mother Nature

    We need a clean environment for human empowerment

  • Yesterday, the United Nations honoured me with the Champions of the Earth Award. While I was extremely humbled at receiving this honour, I do feel that this award is not for an individual. Instead, it is recognition of the Indian culture and values, which have always placed emphasis on living in harmony with Mother Nature.

    • A proud moment

  • It was a proud moment for every Indian to see India’s proactive role in mitigating climate change being acknowledged and appreciated by the United Nations Secretary General, António Guterres, and Erik Solheim, the Executive Director of the UNEP (United Nations Environment Programme).
  • Human beings and nature have a very special relationship. Mother Nature has nurtured and nourished us. The first civilisations were established on the banks of rivers. Societies that live in harmony with nature flourish and prosper.
  • Today, human society stands at an important crossroads. The path that we take hereon will not only determine our well-being but also that of the generations who will inhabit our planet after us. The imbalances between our greed and necessities have led to grave ecological imbalances. We can either accept this, go ahead with things as if it is business as usual, or we can take corrective actions.
  • Three things will determine how we as a society can bring a positive change.
  • The first is internal consciousness. For that, there is no better place to look than our glorious past. Respect for nature is at the core of India’s traditions. The Atharvaveda contains the Prithvi Sukta, which contains unparalleled knowledge about nature and the environment. It is beautifully written in Atharvaveda: Salutations to Mother Earth. In Her is woven together Ocean and River Waters; in Her is contained Food which She manifests when ploughed; In Her indeed is alive all Lives; May She bestow us with that Life.
  • The ancients write about the Panch Tatvas – Prithvi (Earth), Vayu (Air), Jal (Water), Agni (Fire), Akash (Sky) – and how our life systems are based on the harmonious functioning of these elements. The elements of nature are manifestations of divinity. Mahatma Gandhi wrote extensively on the environment and even practised a lifestyle where compassion towards the environment was essential. He propounded the Doctrine of Trusteeship, which places the onus on us, the present generation, to ensure that our coming generations inherit a clean planet. He called for sustainable consumption so that the world does not face a resource crunch.
  • Leading lifestyles that are harmonious and sustainable are a part of our ethos. Once we realise how we are flag bearers of a rich tradition, it will automatically have a positive impact on our actions.

    • Need for public awareness

  • The second aspect is public awareness. We need to talk, write, debate, discuss and deliberate as much as possible on questions relating to the environment. At the same time, it is vital to encourage research and innovation on subjects relating to the environment. This is when more people will know about the pressing challenges of our times and ways to mitigate them.
  • When we as a society are aware of our strong links with environmental conservation and talk about it regularly, we will automatically be proactive in working towards a sustainable environment. That is why, I will put proactiveness as the third facet of bringing a positive change.
  • In this context, I am delighted to state that the 130 crore people of India are proactive and at the forefront of working towards a cleaner and greener environment.
  • We see this proactiveness in the Swachh Bharat Mission, which is directly linked to a sustainable future. With the blessings of the people of India, over 85 million households now have access to toilets for the first time. Over 400 million Indians no longer have to defecate in the open. Sanitation coverage is up from 39% to 95%. These are landmark efforts in the quest of reducing the strain on our natural surroundings.
  • We see this proactiveness in the success of the Ujjwala Yojana, which has significantly reduced indoor air pollution due to unhealthy cooking practices that were causing respiratory diseases. Till date, over five crore Ujjwala connections have been distributed, thus ensuring a better and cleaner life for the women and their families.
  • India is moving at a quick pace in cleaning its rivers. The Ganga, which is India’s lifeline, had become polluted in several parts. The Namami Gange Mission is changing this historical wrong. Emphasis is being given to proper treatment of sewage.
  • At the core of our urban development initiatives such as AMRUT and the Smart Cities Mission is the need to balance urban growth with environmental care. The over 13 crore soil health cards distributed to farmers are helping them make informed decisions that will boost their productivity and improve the health of our land, which helps the coming generations.
  • We have integrated objectives of Skill India in the environment sector and launched the schemes, including Green Skill Development Programme for skilling about seven million youth in environment, forestry, wildlife and climate change sectors by 2021. This will go a long way in creating numerous opportunities for skilled jobs and entrepreneurships in the environment sector.
  • Our country is devoting unparalleled attention to new and renewable sources of energy. Over the last four years, this sector has become more accessible and affordable.
  • The Ujala Yojana has led to the distribution of nearly 31 crore LED bulbs. The costs of LED bulbs have reduced and so have the electricity bills and the CO2 emissions.
  • India’s proactiveness is seen internationally. It makes me proud that India remained at the forefront of the COP-21 negotiations in Paris in 2015. In March 2018, world leaders of several countries converged in New Delhi to mark the start of the International Solar Alliance, an endeavour to harness the rich potential of solar energy and bring together all nations that are blessed with solar power.

    • Climate justice

  • While the world is talking about climate change, the call for climate justice has also reverberated from India. Climate justice is about safeguarding the rights and interests of the poor and marginalised sections of society, who are often the biggest sufferers from the menace of climate change.
  • As I have written earlier, our actions today will have an impact on human civilisation much beyond our time. It is up to us to take on the mantle of global responsibility towards a sustainable future. The world needs to shift to a paradigm of environmental philosophy that is anchored in environmental consciousness rather than merely in government regulations. I would like to compliment all those individuals and organisations who are working assiduously in this direction. They have become the harbingers of a monumental change in our society. I assure them all possible support from the Government in their pursuits. Together, we will create a clean environment that will be the cornerstone of human empowerment!

    • Presuming the disabled to be ‘incompetent’

    The government’s revised guidelines for conducting exams for persons with disabilities are unfair and regressive

  • In an 1850 report, Samuel Gridley Howe, popularly considered the ‘father of the American blind’, emphatically wrote: “The blind as a class, are inferior to other persons in mental power and ability.” It is dismaying to note that, 168 years later, far too many people continue to harbour this unfounded and deeply offensive belief.
  • This ‘presumption of incompetence’ would be deeply troubling, but nonetheless tolerable, if its scope were confined to the way society interacts with the disabled. However, that it has emerged as the unstated premise informing the formulation of policies is a far more worrying development.
  • I speak here of the recently released ‘revised guidelines’ by the Union Ministry of Social Justice and Empowerment for conducting written examinations for persons with disabilities, which significantly whittle down the 2013 guidelines that played a transformative role in empowering such students.

    • Claims of cheating

  • It is difficult to fathom why the decision to revise the 2013 guidelines was taken. The revised guidelines articulate two reasons. First, they state that the revision was triggered by representations made by the Union Public Service Commission (UPSC) and others. It is believed that the UPSC’s discomfort with the 2013 guidelines flowed from their misuse by some students who coached their scribes before the exam. If an able-bodied student engages in cheating, the normal consequence is his disqualification. However, what the UPSC did was to demand that the guidelines be changed. This is much like demanding that when students cheat, say by keeping chits in their clothes, the very dress code be changed.
  • Second, curiously, the revised guidelines state: “The Act [Rights of Persons with Disabilities Act, 2016] provides for reservation in Government jobs for persons with benchmark disabilities as defined under section 2 (r) of the said Act.” If the connection between reservation in government jobs for the disabled and guidelines for exams appears strange, that is because it is. Therefore, the very decision to fix what ain’t broken appears profoundly misguided.
  • At a substantive level, the revised guidelines make three problematic alterations. First, in case the disabled candidate is allowed to bring his own scribe, the qualification of the scribe should be ‘one step below’ the qualification of the candidate. Whether the phrase ‘one step below’ here refers to one year below in the same degree or one degree below is unclear. The revised guidelines also do not deal with a situation in which a disabled candidate and the scribe are from different streams. The 2013 guidelines had stated that vague criteria like educational qualification should not be fixed.
  • Second, for certain classes of candidates with benchmark disabilities, the revised guidelines have imposed a requirement that a certificate be furnished from a designated official, indicating that the candidate has a physical limitation and needs a scribe. This essentially renders the impact of a disability certificate wholly nugatory.
  • Third, the new guidelines have transformed claims that were hitherto recognised as ‘legal entitlements’ to ‘liberties’ whose exercise is contingent upon the goodness of the exam-conducting bodies. For instance, the candidate is to be given an opportunity to choose his preferred mode of giving the examination and provided soft copy material for open book exams only to the extent possible. That the phrase ‘as far as possible’ has been inserted principally to provide authorities an escape hatch from making reasonable accommodations doesn’t require elaboration. While it is true that making some accommodations would not be practicable, the contingency could have been dealt with by making it mandatory for the examining body to record the reasons in writing.
  • The fact that some candidates with disabilities have coached their scribes in the past is indisputable. While this malpractice is sometimes attributable to nothing more than a candidate’s indolence, it is also true that some see this as a means to level the playing field in a system that has failed to ensure their meaningful integration. Such barriers can only be addressed through ceaseless advocacy and strategic litigation.
  • Finally, the dilution of the 2013 guidelines also appears legally suspect, given that the Supreme Court recently endorsed the principle of non-retrogression of rights, as per which there is no place for retreat in a progressive society. Therefore, one hopes that the courts will step in to ensure that this new stumbling block is swiftly removed.