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The Hindu Notes for 20th November 2018

Criteria for the courts

A discussion on the kind of judges that India needs must animate our public debates

  • In 1973, at the acme of Prime Minister Indira Gandhi’s move towards securing a “committed judiciary”, the then Minister of Steel and Mines, S. Mohan Kumaramangalam, offered a spirited defence of the government. In speeches made both in Parliament and outside, and through a number of writings, Kumaramangalam asserted the virtues of what he thought was a legitimate policy. It was important, he wrote, invoking the words of the great U.S. judge Benjamin Cardozo, for any government, “to examine the ‘philosophy’, the ‘outlook on life’, and the ‘conception of social needs’ of a proposed appointee” to the higher judiciary. In choosing persons for the Supreme Court, in particular, he believed, it was necessary to assess a judge’s outlook on “broad matters of the State,” and “on the crucial socio-economic matters” that concerned the nation.

    • Made to measure?

  • To a casual observer, Kumaramangalam’s words might have sounded rational, but veiled behind them were the government’s rather more threatening motives. As Nani Palkhivala described it, the policy was really an effort at creating a judiciary that would be “made to measure”, that would bend to accommodate the government’s whims and caprices. Yet, even today, much as the policy of the time appears baleful to constitutional democracy, Kumaramangalam’s defence of the programme broods over the process followed in making appointments to the higher judiciary.
  • Only recently, on November 2, four new judges were elevated to the Supreme Court. But neither the Collegium’s discussions on the appointees, as published on the court’s website, nor the popular discourse on the persons chosen concern themselves with a discussion on the records of these judges. We are left with little idea, for instance, on what broad constitutional philosophy these judges espouse, what their approach to constitutional interpretation might be, and on how they might view the general role of the higher judiciary.
  • Contrary to what some might believe, engaging with a judge’s outlook to the Constitution isn’t necessarily inimical to judicial autonomy. Kumaramangalam’s motives may have been ill-founded, but he was hardly at fault in arguing that the Constitution represented not merely a document of rules but also a certain tradition, and that the method involved in appointing judges to the higher judiciary is as much a part of that tradition as any other constitutional process might be.
  • It is important, no doubt, to resist the particular brand of commitment that Kumaramangalam was after. But there is at least a kernel of cogency in his argument that we cannot afford to ignore. Judicial review gains its legitimacy from the Constitution. But given that judges are unelected officials, won’t its continuing legitimacy be at stake if we deem it undemocratic to so much as wonder what the constitutional philosophy of a nominee might be? Should we dismiss all claims for democratic accountability in the appointment process by harking back to the dark days of the Emergency?
  • As things stand, the procedure adopted in appointing judges is seen as entirely divorced from the ordinary constraints of a democracy. This wasn’t quite how the Constituent Assembly saw things. The framers believed that the judiciary was integral to the social revolution that the Constitution was meant to usher in. They, therefore, as Granville Austin wrote, “went to great lengths to ensure that the courts would be independent, devoting more hours of debate to this subject than to almost any other aspect of the provisions.”
  • To that end, the Constitution comprises a number of special clauses. It provides for, among other things, a fixed tenure for judges of the Supreme Court and the High Courts; ensures that salaries and allowances of judges are charged directly to the Consolidated Fund of India; confers powers on the courts to punish for contempt of themselves; and, importantly, ensures that judges can only be removed through a process of parliamentary impeachment. But, much as these provisions aim to ensure that the judiciary remains ensconced from governmental interference, the framers always believed that the power to appoint judges must vest with the executive.
  • Accordingly, the Constitution provides, in broad terms, that judges to the Supreme Court would be appointed by the President in consultation with the Chief Justice of India (CJI) and such other judges that he deems fit. But through a series of rulings the Supreme Court replaced the consultative method prescribed by the Constitution with one that gave the CJI and his four senior-most colleagues (the “Collegium”) primacy in selecting candidates. But this system has proved notoriously opaque. Efforts to replace it with a National Judicial Appointments Commission (NJAC) came up a cropper after the court struck down the 99th constitutional amendment, in Supreme Court Advocates-on-Record Association v. Union of India (2015). The primacy enjoyed by the collegium in making appointments to the higher judiciary, the court declared, was a part of the Constitution’s basic structure.

    • Between the lines

  • Extraordinary as these findings were, the court nonetheless promised to look into the prevailing system and reform it from within. Three years later, we’ve seen little in the way of tangible change. The problems inherent in the present system are evident even from a bare reading of the collegium’s decision, published on October 30, 2018, endorsing the new designees to the Supreme Court: “While recommending the name of Mr. Justices Hemant Gupta, R. Subhash Reddy, Mukeshkumar Rasikbhai Shah, and Ajay Rastogi, the Collegium has taken into consideration combined seniority on all-India basis of Chief Justices and senior puisne Judges of High Courts, apart from their merit and integrity. The Collegium has also kept in mind, while recommending the above names, that the High Courts of Punjab & Haryana, Gujarat and Rajasthan have remained unrepresented in the Supreme Court since long.”
  • Therefore, it was really only concerns over the relative seniority of these judges and the extent of State-wise representation that kindled the collegium’s attention. The report does state the candidates’ merit was also considered. But given that the criteria for selection is entirely unknown, what merit means remains ambiguous, at best. In any event, the general constitutional values of a nominee have never been seen as a benchmark to review merit. Such discussions, on the other hand, are seen as anathema to judicial integrity, as a yardstick that ought to be extraneous to any selection made.
  • All of this still begs the question: even assuming the collegium did, in fact, discuss the constitutional philosophies of the various choices before it, ought we to leave it to our judges to select their own colleagues and successors? Should not a discussion on the kind of judges that India needs animate our public and political debates?

    • No sunlight

  • The NJAC may well have been hastily pushed through. But if the publication of the collegium’s decisions has shown us anything, it is this: that the collegium’s workings are mysterious and undemocratic. And for the most part, the government is happy with this arrangement. It clears some recommendations with alacrity, while holding back, often for months on end, others comprising nominees that it deems uncomfortable.
  • What we need today is a more sustained discussion on the nature and workings of a body that can potentially replace the collegium. Such a body must be independent from the executive, but, at the same time, must be subject to greater transparency and accountability. This commission must also partake within it a facility for its members to have forthright discussions over the constitutional philosophies that a judge must possess. If we fail to bring these issues to the forefront, the rigours of democracy will never permeate into the judiciary, and we will only be further undermining public trust in the credibility of judicial review.

    • A true counsellor

    P.N. Haksar’s stint as Indira Gandhi’s key aide was a lesson in statecraft and integrity

  • P.N. Haksar, whose 20th death anniversary falls this month, on November 25, was one of India’s most eminent public servants. He served with great distinction as Secretary and then Principal Secretary to Prime Minister Indira Gandhi, leaving an indelible mark on India’s domestic and foreign policies.
  • Congress politician Jairam Ramesh’s book, Intertwined Lives: P.N. Haksar and Indira Gandhi, illuminates the crucial role Haksar played at a critical juncture in India’s history. It does this by making Haksar speak in his own voice through letters, speeches, statements, and memos supplemented by reflections of people who knew him intimately during his years in office.

    • Crucial years

  • The years 1967-1973, when Haksar was directly involved in affairs of state, were witness to major developments in India’s domestic and foreign policy arenas. They saw the breakup of the Congress Party, the consolidation of power by Mrs. Gandhi, the nationalisation of banks and the abolition of the privy purses. They also saw the most fundamental geo-strategic change in South Asia since Partition — the breakup of Pakistan as a consequence of Indian military intervention. Furthermore, they witnessed the Indo-Soviet Treaty of August 1971 and the Shimla Agreement of July 1972.
  • Haksar mentored Mrs. Gandhi during her initial years in office and was the brain behind the breakup of the Congress believing that once she got rid of the “Syndicate”, she would be the instrument for social change that India needed desperately. He was initially not enamoured by the idea of dividing Pakistan. However, as the ‘East Pakistan’ crisis unfolded, he concluded that India had no option but to get militarily involved. He was the brain behind the diplomatic manoeuvres to elicit support from the international community for the liberation of Bangladesh. When war seemed imminent, and both the U.S. and China demonstrated overt support for Pakistan, Haksar, who was initially sceptical of a defence treaty with the Soviet Union, threw his weight behind such a pact. He became convinced of the value of such a treaty after U.S. National Security Adviser Henry Kissinger’s secret trip to China in July 1971 via Islamabad, which demonstrated the convergence of U.S. and Chinese interests in preventing Pakistan’s break-up.
  • Haksar came to the conclusion that a pact that locked in Moscow’s support for India’s political and military moves was essential to neutralise U.S. and Chinese support for Pakistan in the event of war. The treaty served its purpose by paving the way for the much-needed Soviet veto that prevented the UN Security Council from calling for a ceasefire before India had reached its goal of completely liberating Bangladesh.
  • He was the primary strategist behind the Indian negotiating positions in Shimla. His principal advice to the Prime Minister was to avoid doing a “Versailles” on Pakistan in order to prevent the emergence of a revanchist, military regime in Islamabad. This meant desisting from forcing Bhutto to accept the Line of Control in Kashmir as the international boundary. It also meant a sympathetic approach to the prisoners of war issue that entailed persuading Dhaka to agree to their speedy repatriation.
  • Haksar formally retired from government service in 1973 but continued to act as Mrs. Gandhi’s informal adviser and personal emissary. However, as Mr. Ramesh documents, his relationship with her deteriorated with the rise of her son Sanjay Gandhi as her primary adviser and the imposition of the Emergency in 1975. Sanjay harassed Haksar and his relatives during the Emergency to avenge Haksar’s earlier opposition to his Maruti project. Haksar’s house was searched on flimsy grounds. Nonetheless, Haksar, always a gentleman, never criticised her in public for her and her son’s misdeeds although, as Mr. Ramesh points out, his wife never forgave Mrs. Gandhi for the way he had been treated.

    • Of another time

  • There are three conclusions that one draws from Mr. Ramesh’s superb account of Haksar’s relationship with Mrs. Gandhi. First, he never hesitated to speak his mind to her on a variety of subjects regardless of her preferences and normally she adopted his views as her own on important matters of state. Second, Haksar’s extreme discretion in making certain that his advice and interaction with the Prime Minister remained private and that she was not to be seen as his mouthpiece. This explains his reluctance to speak in public during his years of service when he was arguably the second most powerful person in the country. Haksar’s behaviour stands in stark contrast to that of public functionaries today who seek the limelight at the smallest opportunity. Third, he was a man of great integrity who never attempted to profit personally from the powerful position that he held. This again stands in great contrast to what is happening today when the line dividing the public and private spheres is being deliberately blurred so that those in power can benefit personally from the public offices they hold.
  • Haksar’s primary concern was to protect the interests of the Prime Minister, to whom he was intensely loyal. However, this loyalty did not emanate from self-serving concerns but from his belief that she was the best instrument available to implement the programme of social justice and unadulterated secularism that was dear to her father’s heart and to his own. Unfortunately, Indira Gandhi failed to fully live up to Haksar’s expectations.

    • A 21st century revolution

    India must adopt reinvented toilets and omni processor waste treatment plants to scale up sanitation

  • When Microsoft founder Bill Gates displayed a glass beaker with human faeces on stage at a sanitation conference in Beijing recently, he was praised by World Bank president Jim Yong Kim for “making poop cool”. Mr. Gates was in China to pursue the serious business of reinventing the toilet. Innovation, he reasoned, would expand sanitation quickly and save children in developing countries from the crippling consequences of stunting. In many places, children play amidst faeces in the open and contract disease, resulting in malnutrition and stunting.

    • Decentralising sanitation

  • Over the last seven years, the Bill and Melinda Gates Foundation (BMGF) has devoted $200 million to incubate new technologies that will dramatically scale up sanitation. It has announced a further investment of $200 million to achieve this, and trials of new toilets and processing technologies are going on in India, among other countries. According to UNICEF, 22.2% of children, or 151 million, under five years were stunted globally in 2017. The World Bank says annual healthcare costs from lack of sanitation in developing countries is a staggering $260 billion.
  • The challenge to decentralise sanitation, in Mr. Gates’s view, has parallels with the historic shift from mainframe computing, which only governments and large corporations could afford, to personal computers. Fast-expanding cities cannot have massive sewage treatment plants. What they need is stand-alone processors, which will help communities and individuals.
  • At the Beijing conference, which also hosted the Reinvented Toilet Expo, Mr. Gates observed that “in many places in India today, 30% or 40% of the kids end up malnourished.” That is because faeces containing pathogens lie exposed. Open defecation has a high health cost. It spreads disease, stunts children and prevents them from achieving normal physical and mental development. The answer lies in new technologies, some of which are at a high stage of maturity now. If India adopts them, it can rapidly expand sanitation at low cost.
  • To many observers, including Mr. Gates, India is further behind on sanitation than on other issues, which is reflected in the high levels of stunting. This situation persists despite high levels of economic development over the years. The BMGF wants to change that not just for Indians, who form a significant proportion of the 4.5 billion people worldwide looking for solutions, but those in Africa and other parts of Asia. The solution it offers is the reinvented toilet and omni processor waste treatment plants.
  • Technologists and researchers have been working on these from the time the BMGF issued a “challenge” to them in 2011 seeking innovative solutions. The technology teams now have working prototypes. It is now up to politicians and policymakers to make decisions to adopt them, especially because the Sustainable Development Goal of sanitation and clean water for all by 2030 is not far away.
  • Innovation involves a shift away from the gold standard of flush toilets connected to sewers. In the new order, there will be stand-alone facilities that are aesthetically designed, finely engineered and equipped with reliable chemical processes that produce nothing more than ash from solids, while reusing the liquid as non-potable water after treatment. The future, the BMGF hopes, will belong to these Multi-User Reinvented Toilets. The prototypes are undergoing trials in far-flung centres such as Coimbatore in Tamil Nadu and Durban in South Africa. The technologies that run inside them have been developed by research institutions such as California Institute of Technology (Caltech), University of South Florida, and Duke University. Some products are ready for prime time. Caltech’s partnership with toilet-maker Eram Scientific will help induct the technology and deploy it at scale. There may also be a mix-and-match approach, leveraging the best technologies from the individual prototypes.
  • What makes these reinvented toilets special is that they expel nothing. They turn liquid waste into clear water for flushing, and solids into pellets or ash that is fertilizer. Success will depend on making large community deployments, and developing cost-effective models for individuals. One reinvented toilet by Helbling of Switzerland has a classic European design and cost $500 to develop. While the reinvented toilet gets optimised, India should, in parallel, look at omni processors for faecal sludge treatment plants (FSTP). These “zero emission” processors will end dumping of faecal sludge taken from septic tanks into rivers, lakes, farms and open spaces. They can also prevent the death of workers in septic tanks. Some models also attach a gasifier that can use municipal solid waste, providing a solution to handle that urban waste stream as well.

    • Spending on technology

  • India’s record in treating urban sewage is poor at 30%, and a third of about 847 large sewage treatment plants are not functional, according to BMGF estimates. The priority should be to put all these plants to full use, and equip them to handle faecal sludge by adding omni processors to them. In Beijing, Mr. Gates observed that “political leaders like Prime Minister Modi have been willing to speak about sanitation.” The Swachh Bharat Mission has brought faecal sludge treatment within its ambit, and many Chief Ministers want FSTPs. Put together, their orders total 415 such plants this year. Disappointingly, only a minority of these will have omni processors. Indians have contributed a lot by way of taxes for sanitation, and the money should be spent on the new technology.
  • Even in an advanced State such as Tamil Nadu, which is working to upgrade its infrastructure, only 30% of urban sewage is treated, says Alkesh Wadhwani, Country Director, Poverty Alleviation, BMGF. On the other hand, in 3,500 small cities, very little gets treated. There are some promising signs. Odisha wants 115 faecal sludge treatment plants. Andhra Pradesh has taken the lead and funded 33 plants, and, importantly, tendered for omni processors for these. Tamil Nadu has announced that it will build 48 plants out of its own funds, estimating that 80% of the faecal sludge problem can be managed across the State at a cost of less than about ₹200 crore. Large and often idle sewage treatment plants can be put to dual use, by adding an FSTP, preferably with an omni processor. In the case of small towns, a cluster approach will help, and two or three of them can come together to share treatment plant capacity.
  • Philanthropy of the kind advanced by Mr. Gates aims to take up issues that may not otherwise get attention, and to lower the barriers for governments to act. Now that technology is ready with a “zero effluent” toilet, national policy should make it accessible to everyone.

    • A gender curriculum

    The #MeToo moment calls for a different kind of learning

    #meToo a different learning
  • Over the past few weeks, many women have spoken about their experiences of sexual harassment. Some have named the accused. Many of these accounts have been of incidents at the workplace and by co-workers, and expose the prevalence of deep-seated sexism across professions. There have been various responses by the accused to these testimonies: unconditional apologies, resignations, stepping away from duties until further investigation — but also denial, intimidation and even further harassment. Some of these were immediate responses to mounting public pressure and questions; whether they reflected repentance or realisation on the part of the accused is debatable. Some other responses, such as intimidation through defamation cases, show the entitlement that many men in power enjoy. Both sexual harassment and the kinds of responses from the accused lay bare a critical failure of our education system. It will not be sufficient to say that it is society that allows, or even conditions, men to behave the way they do. Education, an important part of the socialisation process, is also to blame.

    • What our education lacks

  • The education that we are imparted needs to be held accountable at this juncture because of its failure on fundamental grounds. The purpose of education is not to only ensure that people secure employment or rise to coveted positions of power alone, it is also to ensure that they learn and practice equality and mutual respect. Many of the accused are qualified, educated men. Their actions compel us to ask whether those years spent in school, college and university have been unsuccessful in instilling basic values. It seems as though rising to top positions and enjoying power have emboldened men to behave in unacceptable ways, and the education system has done nothing to prevent this.
  • It is not uncommon to hear of incidents of sexual harassment being justified as “casual flirting” or being attributed to the offender’s “glad eye”. Using these terms to explain away or even justify these acts reflects the depth and expanse of the problem. I am reminded of an encounter that a friend’s mother had with a senior bureaucrat (now retired) a few years ago. During a meeting regarding a project on which her organisation and his department were collaborating, he told her that she was “smart and beautiful”. He then recited couplets in Hindi and Urdu. Such blatant display of inappropriate behaviour, which makes women uncomfortable, shows that men in power enjoy the impunity that accompanies attitudes and acts entrenched in patriarchy.
  • Today, many of us are not surprised at the volume of complaints of sexual harassment. This is because it has been normalised. Sexism is not casual, it is systemic. That our education system is failing to teach boys and men to recognise, challenge and refrain from sexist and even unlawful behaviour must be acknowledged and tackled.

    • The way forward

  • Sexual misconduct or gender inequality is not a by-product of a lack in education. The spotlight is not to be put on the educated alone, but on the system too. Among other things, education has the basic duty of ensuring that we become socially aware and sensitive beings who know how to interact and engage with people of different genders, castes, classes and communities. We must teach students that consent is an essential component of any interaction and that decisions, even of refusal, must be respected.
  • While there is considerable discussion on the need to change mindsets, efforts to actually bring about such long-term structural changes are rare. Gender equality must not be limited to newsroom debates, stand-up themes or films, although these are necessary. What the #MeToo movement demands is a continuous and systematic process of learning that leads to equality.
  • There must be efforts to incorporate a gender curriculum in all school and college classrooms, establish anti-sexual harassment cells, organise regular awareness programmes on consent across the country, and formulate measures to address incidents of sexual harassment. The police should initiate community engagement drives so that students know how to report sexual harassment. Campaigns like Operation Nirbheek, initiated to improve safety and security of girls in schools, have proven to be successful to a large extent. Interventions in educational institutions will be a much-needed start to strengthen voices against sexual harassment and make homes and workplaces safe. It is imperative that we begin early if we are to secure a closure to our #MeToo experiences.

    • Science outside labs

    Various outreach programmes are bringing science to the masses, but there is more to be done

  • ‘Chai and Why,’ a popular outreach programme conducted by a group of faculty members of Tata Institute of Fundamental Research, Mumbai, hosted its 250th event on November 18. The programme, which has been going strong since 2009, comprises talks and demonstrations by scientists or research scholars on a science topic, pitched at an easy-to-grasp level. These talks take place on alternate Sundays at Mumbai’s Prithvi Theatre, among other places.
  • A similar annual event, ‘Science at the Sabha’, is conducted by scientists from the Institute of Mathematical Sciences, Chennai. For three years since 2016, SATS, which includes four talks from four different disciplines in science, has been held at the Music Academy, Chennai, known as the premier city platform hosting musical and dance programmes. As a bonus, at last year’s event, the organisers distributed dodecahedral calendars for free.
  • The National Centre of Biological Sciences has in its cocktail of outreach activities a programme called ‘Out of the Lab,’ in which scientists from the institute can be invited to homes, where they address fascinating aspects of their respective fields to neighbours who have gathered together.
  • There is little doubt that outreach programmes have come far from the days when they were thought of as additions to academic work. Science in its very practice tends to lead researchers into ivory towers. The more demanding the task, the less time the scientist has to communicate the relevance of her work. The first casualty of this traditional workflow is that knowledge of what goes on within the lab is understood by few outside. The other is that labs within research institutes get separated from the universities, colleges and schools where future scientists are groomed. Add to this existing social gaps due to language, class or caste, and you have an apparently insurmountable situation.
  • Outreach programmes do a lot to break the notion that research can be understood only by people within the lab. They do, however, suffer from a couple of drawbacks such as of scalability and of reaching beyond urban borders. The Indian National Science Academy encourages its Fellows to travel to remote locations and give talks. Delhi-based Vigyan Prasar, in conjunction with science clubs across the country, holds camps to demonstrate science experiments beyond textbooks. For three years now, they have roped in many partners to commemorate zero shadow day (for two days in a year, those within the tropics can observe that a vertical pole does not cast a shadow).
  • While such activities enthuse participants and stoke scientific temper, they still may not convey the power of science fully. If collaborations proliferate that leverage the willingness of research institutions to engage in outreach, and use it creatively, much more can be achieved.