The Mystery of Encephalitis in Gorakhpur : A Perpetual Health emergency

(Every year in Mansoon the number of cases due to encephalitis rises exponentially in the Gorakhpur region. This time already in a health crisis struggling with COVID19 the situation,  is daunting because of the two-front battle. Resharing this article, written by Anubhav Kumar  in November 2017 for The Analysis,  to understand the mystery of Encephalitis  after the tragic death of 70 infants )

 

"When central government bestowed Gorakhpur with AIIMS last year as they promised one in purvanchal instead of Varanasi (PM’s Constituency), it came as surprise to many but for those who have known this region for long, it was need of the hour to curb the alarming situation persistent since the late ’80s, Encephalitis or popularly called Japanese Encephalitis.

Cut to the Year 2017, it would go down in Indian history for two most mooted people and place, Yogi Aditya Nath and Gorakhpur both fiduciarily related to each other. Why so? Well It is unfortunate that this August, close to 70 infants died in Gorakhpur’s BRD Medical College within 24 hours allegedly due to a shortage of oxygen supply. The Country started mourning only when one of the ministers said that it is common, death of infants in monsoon in the Gorakhpur region, it took anger out of every common citizen. But would you be shocked if I were to say, yes it is true? Will it be surprising to know that due to this mishap Gorakhpur finally got its due attention on this issue? Well not justifying deaths in any circumstances but this incident may be an "unfortunate" blessing in disguise as it was a tight slap on administration, government, and people of Gorakhpur as to date 6500 infants have died in this region since 1978 due to this deadly disease as BBC Reports. (http://www.bbc.com/news/world-asia-india-19825565 )

THE LEGACY OF ENCEPHALITIS:

While this deadly disease has its presence around the world, this region is worst globally affected. it first surfaced in 1978 and till now the death toll of infants is daunting. Children aged 0-15 are worst affected as their immune system is considerably weak. Japanese Encephalitis or “Navki Bimari” is a mosquito-borne disease spread majorly due to water contamination and allegedly by a virus caused by Pigs and Birds. JE is still incurable. An unverified source says that last year few Japanese scientists conducted a test and found a new type of virus which changes its shape and can’t be determined, this corroborates with a doctor’s statement given back in 2006

 “In the past six years, children have been dying of other forms of viral encephalitis, the exact cause of which is unclear.” (http://www.bbc.com/news/world-south-asia-15269441 )

The monumental deaths hence are not shocking but the alarming situation is almost 30 years now it couldn’t be curbed. In year 2005 a virulent outbreak caused death of 1000 children here and it went unnoticed by the mainstream media and no substantive action was taken. (http://www.bbc.com/news/world-asia-india-24440141 )

 

WHY GORAKHPUR? THE GEOGRAPHY AND OTHER DYNAMICS

Gorakhpur is an agriculture rich region also called Manchester of eastern Uttar Pradesh for it is the focal point of business to adjoining districts? Located about 100 Km to the International boundary of Nepal it has a continuous supply of water by rivers like Rapti and tributaries. While it is known for its Geeta press, Gorakhnath Temple and Railway platform it is also a fertile land with groundwater level only up to 50-60ft facilitating irrigation The Region consists of 10-12 Adjoining districts and Gorakhpur serves as a nodal point wherein BRD Medical College is the only hospital with the capacity to treat people suffering from this disease with almost 100 dedicated beds. Every year in monsoon and due to Nepal’s release of water flood-like situation arises and due to lack of proper infrastructure and sanitation in this ‘bowl-shaped’ region, the rainwater gets contaminated with the groundwater and becomes still and therefore is passed on by uncontrolled pigs in this region and the mosquito. “Over the years, there have been cases in the area which are clinically different from one another. JE is one kind of encephalitis which falls under a spectrum of diseases called Acute Encephalitis Syndrome (AES). Doctors in endemic regions in U.P. have found cases with similar symptoms but without the virus, leading to some debate over the cause of the disease. While public health experts have found a difference in case definitions across Eastern districts of U.P., this is something the Indian scientific community is still trying to understand.”

(https://www.google.co.in/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=0ahUKEwioqZPYtvXWAhUdTo8KHbLKCx0QFggnMAA&url=http%3A%2F%2Fwww.thehindu.com%2Fsci-tech%2Fhealth%2Fjapanese-encephalitis-a-deadly-disease-explained%2Farticle19486806.ece&usg=AOvVaw2JN9BplwGr1Yn2OPl8Y1qC)

(Source: News 18) 

GOVERNANCE AND OTHER INITIATIVES:

It is clear that the region lacks basic infrastructure and it took almost 30 years and close to 6500 deaths to locate this problem on Medical Map. It may have surfaced in mainstream media now but it was never unknown to State and Central government and Its dynamic and vocal former MP, Yogi Aditya Nath. The Central Government started a two-massive vaccination drive in the year 2006 and 2010 and the State government of BSP in 2009 distributed millions of rupees in pursuance of treatment of this disease in Medical College Gorakhpur where 136 researchers were hired but the scheme ran out of money and no further allocation happened. In 2009 a team of American Scientist took water sample from this region whose results are not known in public yet reports BBC. Earlier this year in March Vaccination drive resumed in 38 districts of UP but wasn’t supplemented with proper sanitation and access to clean water. Yogi Aditynath who has been MP from Gorakhpur in 1998 is remembered for his speech in Lok Sabha where expressing the plight of people he broke down but a close look suggests that in 15^th Lok Sabha i.e. 2009-2014 He mooted on this only 5 times out of 82 debates while when his party came in power for three years before becoming CM he debated only 3 times on this out of his 56 times. The people of this region have suffered a lot and the only reason is the Welfare intent and lack of infrastructure, access to freshwater and uncontrolled pigs around the City.

(Amar Ujala)

Amidst all the gift of AIIMS looks only positive which was due to this region for long and we can all be hopeful that CM Yogi would pay back to this city the love he got as MP Yogi by educating people, providing better health facilities because a Metro in Gorakhpur may not be a necessity but to curb the rising death toll of innocent infants and provide better health and medical facility certainly may be.

 

(Visit The Analysis at  https://theanalysis.in/ )

All images are subject to copyright 

Sandwiched between COVID and Economic Sanctions: Is India’s renewable energy on right track?

Prime minister recently inaugurated allegedly India’s largest solar plant of 750 MW in rewa[1]  boasting it’s ability to be a global green energy hub. It is specifically flattering because of its timing, at a time when a wave of pessimism in the energy sector is grasping  this comes as a testament of Indian’s renewable energy potential and dedicated energy policy.  However, today the Renewable Energy Industry is fighting battles on two fronts, one with the pandemic and other against Chinese aggression,  by responding through economic retaliation, all of  which we shall discuss objectively in the course of the article.

The COVID 19 Pandemic has had a fatality on almost everything in this world which coerced us, humans, to introspect way of life and governments, to rethink & change policies. Amidst all of its horrors, the ominous mark which it has left on the economy is dismaying and Power/Energy sector is not alien to the havoc of the virus. According to a report[2], India already witnessed a decrease in demand for power by 25-30 Percent in May-June which if coupled with reduced collection may adversely impact Distribution companies by creating a cash gap of approx. Rs 40,000 cr and it can go worse[3] . In southeast Asia manufacturer rely heavily on China for its ‘cheap’ raw material to the solar industry, which due to this respiratory illness has significantly affected and this strain on supplies will affect the manufacturer adversely consequently leading  to increased prices .As an architect of the International Solar Alliance[4] and to live up to its commitment of producing 175 GW of Renewable energy by 2022[5], India however had to show leadership not only to tackle the effects within its territory but also  in low- and middle-income countries in Southeast Asia

India, even in such daunting times, has fared reasonably well owing to measures it took through MNRE like an extension of deadlines to the manufacturers by MNRE on contracts invoking force majeure clause.[6] Similarly,  The Reserve bank of India also took fiscal measure on a cut of repo rate to 4.4% and provided a three-month moratorium and these measures by MNRE and GOI has helped to provide a cushion to the industry in the age of ‘new normal’. Hence even in these scary circumstances, there are rays of hope for the Renewable energy Industry in India to achieve energy accessibility to all at an affordable price and realize the Vision of 2040 laid by New Energy Policy of Niti Ayog in 2017[7] An increase in share of renewables in energy basket from under 10 Percent to well above that level between the pre lockdown time indicates that the supply from renewables was not curtailed by utilities which is one of the many positives industry shall draw motivation from.[8]

While these measures have given the industry a hope for a revival of energy transaction, looking beyond the horizon of ambitious goal of achieving 175 GW Renewables Energy (100 GW Solar of which 40 GW Rooftop Solar PV) is becoming hard to scale. As per, India 2020 Energy Policy Review, India has emerged as a global leader in renewable energy, notably in solar power. By end of November 2019, grid-connected renewable electricity capacity had reached 84 GW, including 32.5 GW from solar PV and around 37 GW from onshore wind as well as small hydro.[9] but are these also indicative of trends of production in next two years , is the real question.

This is becoming increasingly challenging because of our neighbor China and the policy which MEA in coherence with MNRE has taken in either to check dumping of cheap Chinese solar product in India or in national interest owing to how the events unfolded recently. It is pertinent to note here that,  China virtually controls the entire “value chain” from silicon to a module and it supplies almost 85% of solar products to the solar world and hence trade with China holds great stakes .These cheap products have been one of the reason production has grown by leaps and bound here but price of solar energy has reduced drastically from Rs 17 when in 2010 first National Solar Mission was launched to Rs 2.44 in the latest bid . Now, recently India announced to impose 20-25 % of customs duty on solar modules and 15% on cells, making it 40% for both, from August 1, 2020[10]. Earlier a safeguard duty was imposed by the ministry of 25% on import of Solar Panel from China and Malaysia with a pretext that domestic players are at disadvantage and are not able to compete with foreign market in India’s nascent industry as these imports have had serious Injuries to domestic players and was in the public interest to impose safeguard duty[11]. In the current decision, however, the ministry is also giving exemption to manufacturers in form of a “pass-through” which is,   Chinese imports for public solar projects will be exempted from duty if power purchase agreements ( PPA) are signed before the implementation of duty, which is proposed from August 1 this year. This step in no manner serves the benefit of domestic producers as they will have no orders for the next 2-3 years and this can potentially add more woes to them amidst the pandemic.[12] instead  it will additionally  cost the government of India nearly 50,000 Crores in foreign exchange as per the All India Solar Industry association (AISIA) . Safe to say,  tariff impositions have never really worked, in a year since the safeguard duty was imposed in 2018, imposition there were reports which identified the inability of such step to propel the domestic market and instead had stalled the major projects to circumvent the two years’ time frame according to  Bloomberg[13]

The sanctions, therefore, are vexing the industry in the form of decreased import of solar PV increased economic burden in foreign exchange, and leaving the domestic producers in distress at time when he industry is trying to recover from the jolt of a pandemic.  To ensure continuous progress in the growth of renewables, auction design, grid connections and the financial health of the power distribution companies (DISCOMs) are critical elements for reform needed this hour.  Its also time where we need to provide the escape velocity to the sector and these trade sanctions are certainly not helping the cause .India is a country that can enhance its energy basket and secure its energy access and be the leader of green energy in the world making India, as PM said ‘aatmnirbhar’ in energy sector.

 

(All images are subject to copyright)

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[1] https://www.thehindu.com/news/national/other-states/india-most-attractive-global-market-for-clean-energy-modi/article32040039.ece

[2] https://economictimes.indiatimes.com/industry/energy/power/indias-power-demand-falls-over-25-pc-to-125-81-gw-on-april-2/articleshow/74965504.cms?from=mdr

[3] https://energy.economictimes.indiatimes.com/energy-speak/renewable-energy-new-normal-and-impact-of-covid-19/4167

[4] https://isolaralliance.org/

[5] PTI, India to achieve 175 GW renewable energy ahead of 2022 deadline, The Hindu Business line (Feb 28 2018) https://www.thehindubusinessline.com/economy/india-to-achieve-175-gw-renewable-energy-ahead-of-2022-deadline/article22838424.ece

[6] Office memorandum, MNRE Dated 20^th March 2020, https://mnre.gov.in/img/documents/uploads/file_f-1584701308078.pdf

[7] New Energy Policy 2017 https://niti.gov.in/writereaddata/files/new_initiatives/NEP-ID_27.06.2017.pdf

[8] https://energy.economictimes.indiatimes.com/energy-speak/beyond-the-horizon-covid-19-will-accelerate-the-energy-transition/4370

[9] India 2020 Energy Policy Review , Niti Ayog https://niti.gov.in/sites/default/files/2020-01/IEA-India%202020-In-depth-EnergyPolicy_0.pdf

[10] https://www.livemint.com/news/india/india-to-impose-tariff-barrier-on-solar-cells-modules-inverters-from-30-july-11592885034223.html

[11] Staff Reporter, India levies 25% import tariff on Chinese, Malaysian solar panels , Asian Power,(July 18 2018) https://asian-power.com/regulation/news/india-levies-25-import-tariff-chinese-malaysian-solar-panels

[12] https://economictimes.indiatimes.com/news/economy/finance/india-to-lose-rs-50000-crore-in-forex-if-solar-developers-given-exemption-from-customs-duty-on-chinese-imports-aisia/articleshow/76900911.cms

[13] Anindya Upadhyay, India Solar Duty Fails Domestic Producers as Demand Dwindles, Bloomberg, (Jan 30 2019) https://www.bloomberg.com/news/articles/2019-01-29/india-solar-duty-fails-domestic-producers-as-demand-languishes.

The curious case of PMCARES, RTI and Spirit of democracy

In a democratic country, check on power is imperative for not only preventing the rise of slightest authoritarian tendencies but also to ensure a seamless flow of information on governance to its people who elect their representative in order to avoid the demons of corruption which plagues the executive. Transparency and accountability are, therefore, indispensable attributes of democracy which challenges the traditional opaque governance in a standardized democratic country. India has had a fair share of struggle to achieve this transparency, which ended after a long revolution for "information" in 2005,  marked by “The Right to Information Act “(The Act) also popularly called people’s legislation. The underlying object of the Act is to “secure access to information under the control of public authority to its citizens” thereby strengthening the democratic ideals. Hence RTI is one such tool in hands of citizen which empowers them to seek information, inspect any document pertaining to governance as it is a facet of fundamental right under Art 19(1) as held by the Supreme Court in 2013.[1]

Recently the Prime Minister’s Office (PMO) in a reply to an RTI filed by a Law Student seeking information on fund created to battle COVID19 financially,  asserted that “PM CARES” is not a public authority under the Act and hence is not obliged to disclose the information sought[2]. Earlier, another RTI request on the issue, filed by activist Vikrant Togad, had also been refused in April, with the PMO citing a Supreme Court observation that “indiscriminate and impractical demands under RTI Act for disclosure of all and sundry information would be counterproductive”[3]. The PM CARES Fund is an abbreviation of 'Prime Minister's Citizen Assistance and Relief in Emergency Situations Fund' which was created, “Keeping in mind the need for having a dedicated national fund with the primary objective of dealing with any kind of emergency or distress situation, like posed by the COVID-19 pandemic, and to provide relief to the affected, A Public Charitable Trust under the name of 'Prime Minister's Citizen Assistance and Relief in Emergency Situations Fund' (PM CARES Fund)' has been set up.”[4]

In this pretext the outright refusal of providing information on PMCARES funds and its deed has erupted a discontent amongst not only the legal fraternity but also in general discourse as it defeats the spirit of democracy which entails urbane dissemination of information on working of governance . In this blog I assert and the reason that PMCARES is a public authority and it can’t evade information citing non-application of the provisions of the Right to Information Act of 2005.

Scheme of RTI Act:

Section 3 of the Act grants a statuary right to all “citizens” to have a Right to information. The information on which an RTI could be filed is that information which is held by or under control of a “public authority”.It, therefore, means that the information shall be not only authoritatively held but it must be held or under control of a public authority only and not otherwise.  Since the PMO claims PMCARES not to be a “public authority”, it’s now imperative to understand the definition and its application.

As per Section 2(h) of the Act, a Public authority means any authority or body or institution of self-government established or constituted,—

(a) By or under the Constitution;

 (b) By any other law made by Parliament;

(c) By any other law made by State Legislature;

(d) By notification issued or order made by the appropriate Government, and includes any—

(i) Body owned, controlled or substantially financed;

(ii) Non‑Government Organization substantially financed, directly or indirectly by funds provided by the appropriate Government;

The definition has two limbs where, in first part, the word “means” makes the definition exhaustive and complete while in the latter end “includes” enlarges the scope of interpretation to go beyond the meaning of definition clause keeping the view and nature of the language and object of the provision.[5]

 

PMCARES and Public authority:

The Non-Charitable fund does not find a fit in clauses “a” to “c” of the definition but definitely attracts 2(h)(d)(i) & (ii) tentatively as its name, usage of the emblem, the composition of the trust and usage of government domain signifies a “control” of PMO over the body making it a public authority. In the case of PMNRF vs Aseem Takyar[6] Justice Ravindra Bhatt in a similar case held “Though other essentials do not apply to 'Fund', the last parameter "body owned, controlled or substantially financed" will bring the PMNRF within the definition of a public authority, as validated by Justice Ravindra Bhatt based on the interpretation of 'control' of Government over the fund.”

While the exact order or notification is not available in public domain related to the creation of the fund, it is not disputed that PMCARES was constituted on the appeal of the PM’s office via a Press Release in the PIB shall be treated as an “order” under 2(h) (d) of the Act which, while clarifying contribution to PMCARES fund as an eligible activity under CSR the Ministry of Corporate affairs, in a memorandum dated 28^th March, did mention about, on its creation by the government[7]
The extents of control PMO exercises and the composition of the fund where the PM shall be ex-officio chairman and Minister of Defence, Minister of Home Affairs and Minister of Finance, Government of India are ex-officio Trustees of the Fund are all indicative of substantial control over the body. In addition to this, the PM shall also have the power to nominate three trustees to the Board of Trustees who shall be eminent persons in the field of research, health, science, social work, law, public administration and philanthropy

In terms of donations, the finance ministry has reportedly requested the central government employees for regularly compulsorily’ donate a single day's salary towards the fund every month till March 2021[8] and it has also made it available for exemptions under the IT Act as it says by amendment dated 26^th May, “Donations to PM CARES Fund would qualify for 80G benefits for 100% exemption under the Income Tax Act, 1961”.[9] Donations to PM CARES Fund will also qualify to be counted as Corporate Social Responsibility (CSR) expenditure under the Companies Act, 2013.These all benefits, mandatory salary deduction of employee for the fund does indicates not only control of the government but also makes it substantially financed by the central government as per the test laid down in DAV College Trust Management v. Director Public Instruction (2019). Hence in all circumstances the PMO or CIC can’t deny to provide the information related to the fund as it very well satisfies all the essentials to be a ‘public authority’

Conclusion: Defeating the purpose of RTI

While dealing with any body or institution which is performing a function so close to the government and is supposed to be for welfare of citizens, the object of the act has to be kept in consideration by the CPIO which is to increase the flow of information furthering accountability and transparency “purposively”. Nature, formation, purpose and its functional character shows that both PM NRF and PM CARES Funds are public authorities under RTI Act and they should be answerable. There is a substantial control exercised by the PMO over the fund created and hence the application of the RTI Act is unavoidable in all circumstances.  The outright refusal of the PMO is not only detrimental to the democratic spirit but also defeats the purpose of the Act whose objective is to promote accountability and transparency. In such a scenario when Information empowers the people and enables them to properly exercise their rights legal, political, social and economic, any attempt to dilute the seamless flow of information not only raises concerns over the “fund “ and its use but also is an assault on its citizens exercise of a fundamental right to seek information to check its representatives.  

Note: All images may be subject to copyright

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[1] Thalappalam Ser.Coop.Bank Ltd. &. Ors vs State Of Kerala & Ors (2013)

[2] https://www.thehindu.com/news/national/coronavirus-pm-cares-is-not-a-public-authority-under-rti-act-pmo/article31712146.ece

[3] https://thewire.in/government/pmo-rti-pm-cares-supreme-court

[4] https://www.pmcares.gov.in/en/web/page/about_us

[5] P. Kasilingam v. P.S.G College Trust (1995)

[6] https://indiankanoon.org/doc/66482610/

[7] https://twitter.com/SaketGokhale/status/1273868119669305344

[8] https://www.thehindu.com/news/national/coronavirus-finmin-fiat-to-staff-on-monthly-donations-to-pm-cares/article31383969.ece

[9] http://www.mca.gov.in/Ministry/pdf/Notice_27052020.pdf

Tracing Judicial Review in Article 13

                                   

"The petitioners [in Golak Nath's case] left the Court with the consolation that posterity will enjoy the fruits of the walnut tree planted by them. But it looks as if a storm is brewing threatening the very existence of the tree."

In these words, Justice Y. V Chandrachud described the event of the phenomenal overruling of the famous GolakNath[1]  decision by seven out of thirteen judges in Kesavananda Bharti v. State of Kerala[2] In the words of S. P Sathe and rightly so, these two cases dealt with the most fundamental issues of constitutional review and stirred much greater controversy in the legal world than even Marbury v. Madison[3] did in the past.[4] The legend of evolution of Judicial review is associated with, howsoever the underlining or philosophical contribution, of English Legal System. In England, Historically the parliament had its supremacy and the judiciary was not supposed to review the act of the parliament which made it ostensible “parliament supremacy”. The Judiciary was rather concerned in keeping the action of executive in line with the constitutional values which were un-written. The Judicial Review was maintained in Britain, related to maintaining the myth that Judges do not create laws.[5] This concept was carried by the British colonies such as India and hence we see the presence of it in the Indian legal system. The U.S.A also being the colony of Britain inherited the common law which provided the basis of Judicial Review. Therefore when in Marbury the US Court declared legislative actions are also under the purview of judicial review it assumed the power in itself as the constitution of the US never expressly mandated it. Taking the cue from both these countries, the framers opted indeed for Parliamentary system but they did go with the option for Judicial Review, loosely.

The Indian constitution is very specific and detailed and since provides for no express mandate on judicial review the judiciary had to carve it out as principle of constitutionalism and later held it as basic structure doctrine which is all together is a debatable doctrine. While the drafters included a declaration of fundamental rights and provided for judicial review, they also sought to make the constitution detailed and specific with a view to leaving the minimum of discretion to the judges[6]. Nehru's speech in the Constituent Assembly that no court would stand in the way of social reform and that ultimately the constitution itself was a creature of Parliament showed his distrust of the judges' capacity to adjudicate on social policy.[7] The judicial review, therefore, as a tool,  empowers the Judiciary to “strike down any action which is in conflict with the constitution”.

Justice DR B. S Chauhan in a lecture on the judicial review said that 

“it is the power of court to determine whether the acts of legislature and executive are consistent with the constitution or constitutional values and it identifies its supremacy in the constitution.”[8]

Encompassed in under Article 13 of the constitution the Judicial Review scheme in India is a sui generis concept as it finds no mention in the written text of the constitution. The operative part of Article 13(2) provides that ‘ The state shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention, of this clause shall, to the extent of such contravention, be void.[9]  In other words it provides for the norms laid down. Article 32 and 226 provide for the enforcement of Fundamental Right enshrined in Part III of the constitution. Guarantee of a fundamental right is insignificant and Meaningless unless the court has the power to protect the same from the arbitrary violation[10]. It is at this point where this exercise of Judicial Review becomes important and hence makes for the basic structure

Article 13 and Judicial Review

As discussed briefly above India finds the Judicial competence of review of constitutional amendment or popular decision under article 13 and it was not recognized until the virtuous case of Keshawanand Bharti was decided and was reiterated in Indira Nehru Gandhi v. Raj narain[11]. Let us therefore here examine the interplay of Judicial Review and Article 13 as it stands today and thereafter look into case by case development. Article 13 prescribes that the state shall not make any law which abridges the fundamental right of its citizen, as per Article 12 of the constitution the definition of state which is ‘government and the parliament of India’ as well as the other authorities and local authorities which are an instrumentality of the state and in the territory of India is subjected to Judicial review under article 13. The fundamental rights protected also includes the right to life and liberty[12] and rights granting equal protection of law[13] it authorizes the Constitutional Courts to invalidate any law which abridges the fundamental right.

The argument varied on the spectrum of whether a constitutional amendment is a law or not as the term law as per article 13 includes ‘any ordinance’, order, by law , rule , regulation, notification, custom or usage having in the territory of India the force of law[14]  The controversy which is settled now was important to be dealt with as the previous governments pre 1973 used to evade the judicial scrutiny a by arguing that constitutional amendment does not find a place in the definition of ‘law’. Creation of 9^th schedule and making constitutional amendments taking away the fundamental right of property was prime example of it and  hence the determination of the question and securing rights became quintessential as this open-ended definition did not provide for enough linguistic resource to settle whether or not amendments are the law.

Are Constitutional Amendments law: The debate of ‘law’

It was in the case of Shankari Prasad[15] that for the first the argument that constitutional amendments are law was raised. This struggle for the custody of constitution rose from the question concerning the right to property, which until (1978) was a fundamental right under Article 31. J Patanjali Shastri rejected the argument by ‘harmonizing’ the wide scope of amending power in Article 368 with the scope of judicial review. J Hidayatlluah &J Mudholkar a few years later in Sajjan Singh expressed doubts in the  correctness of the view adopted in Shankari Prasad that an amendment is not a law under Article 13(2) and therefore could not be reviewed by the courts, stating that there must be a mechanism to save the "basic structure" or essence of the constitution" A stronger version of the same argument was raised in the case of IC GolakNath v. State of Punjab[16] where a larger question of whether Parliament can amend Fundamental rights was raised. By a slender majority of 6: 5 the Supreme Court ruled that the distinction between constituent power and legislative power laid down in Shankari Prasad was unfounded which in other words meant that the constitutional amendments were in the ‘purview’ of law for Article 13(2). The court found fundamental rights to be so sacrosanct and transcendental that even a unanimous vote of all members of the parliament would not suffice to weaken or undermine them.[17]

The controversy was settled in the case of Keshawanand Bharti v. State of Kerala; it raised questions of crucial importance for the future of the Indian Constitution as well as Indian democracy.  As professor Sathe puts in his word that the dilemma of judges to save the constitution or to succumb to the idea of Parliament sovereignty, make people's rights vulnerable to be exercised was evident. He said,

 “From the close division among judges on the scope of Parliament’s power of constitutional amendment as well as judicial review of eminent domain, two clear alternatives regarding the role of a constitutional court in a democratic society emerge. The Kesavananda Court was faced with a difficult choice. On the one hand, it had before it the decision in GolakNath, which imposed an embargo on future amendments of the fundamental rights, and on the other, it had before it an amendment which sought to completely eliminate judicial review. The dilemma of the majority justices was how to concede the power of constitutional amendment to Parliament, which legal logic required them to do, and at the same time save judicial review. Their decision, although equally vulnerable from the standpoint of logic as that of GolakNath, has to be understood in the light of such a dilemma.”[18]

The court giving finality to the question maintained a ‘constitutional harmony’ as it agreed that parliament is not restricted to amend the constitution and the ‘amendment in itself is not law for the purpose of Article 13(2)’ but also put ‘caveat’ which was propounded as Doctrine of Basic Structure where it observed the amendments should not take away the soul from the constitution. In the case Minerva Mills v. Union of India[19] the court elaborating upon it said that the tool of an amendment cannot be used to destroy the constitution in itself.

The evolution of basic structure doctrine has, over the years significantly been subjected to popular academic and political criticism even by professors such as Arun Shourie and Sathe. It is primarily due to the expansion of the ‘scope of constitutional judicial review’ as it has extended far beyond the domain of rights to include the scrutiny of constitutional amendments, executive proclamation of national and state emergencies, executive policy framing processes, and legislative inaction affecting core interest of citizen[20] The court is often accused of widening the scope of judicial review beyond the pre-defined normative constitutional boundaries[21] usurping the power of executive and legislature[22] by employing methods which are not meant appropriate in the course of interpretation of the constitution. In the last three decades, it has evolved the ‘basic structure review’ and it is definitely wrong to assume that it encompasses only review of constitutional amendments and all other reviews as a mistake. This widening of scope is to save the democratic exercise of the country from the perils of brute majoritarianism and effectively ‘upholding the spirit of constitutionalism’ in essence, therefore, today the doctrine of Judicial review includes a review on a wide range of state action: Including, the executive proclamation of national and regional emergencies to ordinary legislative and executive actions by those in the higher elected and unelected executive authority.[23]

P. S: The blog is a part of a chapter in the author's UG Dissertation Titled " Upholding Constitutionalism and Democratic ethos: Analysis of Judicial Review and it's application by constitutional courts in India "

1967 AIR 1643.

[2] AIR 1973 SC 1461.

[3] 5 U.S. (1 Cranch) 137 (1803).

[4] S. P. Sathe, Judicial Review in India: Limits and Policy, 35 Ohio St. L.J. 870 (1974).

[5] S. P Sathe, Judicial Activism in India: Transgressing Borders and Enforcing Limits, Oxford India Paperbacks 2^nd ed New Delhi

[6] Supra at 4.             

[7] See Constituent ASSEMBLY DEBATES 1195-96.

[8] Chauhan Supra note 4 at 2. 

[9] Const. art 13(2).

[10] Justice Dr. B S Chauhan, Lecture on Judicial Review, National Judicial Academy (SEPT 2008).

[11] AIR 1975 SC2299

[12] Const. art 21.

[13] Const. art 14.

[14] Const. art 13(3).

[15] [1952] 1 SCR 89.

[16] AIR 1957 SC 1643.

[17] Venkatesh Nayak, The Basic Structure of the Indian Constitution, Commonwealth Human Rights Initiative, www.humanrightsintiative.org/publications/const/the_basic_structure_of_the_indian_constitution.pdf.

[18] Sathe, Supra note 4 at 374.

[19] AIR 1980 SC 1789.

[20] Sudhir Krishnaswamy, Democracy and Constitutionalism in India: A Study of Basic structure Doctrine, Oxford India Paperbacks (2010)

[21] Arun Shourie, Courts and their Judgements: Promises, Prerequisites, Consequences, Rupa and Co., 399- 421 (2001)

[22] Supra at 5.

[23] Supra at 20.