1. Local job laws that raise constitutional questions
State laws that limit the rights of out-of-State citizens go against the idea of India being one nation
The Supreme Court of India will soon hear a petition to remove the stay on the Haryana State Employment of Local Candidates Act, or the Haryana Act, that reserves 75% of jobs in the private sector in the State for local residents. The Act applies to jobs that pay up to ₹30,000 per month, and employers have to register all such employees on a designated portal. The Government may also exempt certain industries by notification, and has so far exempted new start-ups and new Information Technology Enabled Services (ITES) companies, as well as short-term employment, farm labour, domestic work, and promotions and transfers within the State. The Act was enacted in February 2021, and brought into effect in January 2022. Last week, the Punjab and Haryana High Court admitted a petition challenging the constitutionality of the Act, and stayed the implementation until it heard the case. The petition in the Supreme Court is by the Haryana government to remove the stay.
At the core of the issue
Other States such as Andhra Pradesh and Jharkhand have passed similar Bills. The Andhra Pradesh legislation has been challenged in the Andhra Pradesh High Court. These Acts raise several constitutional questions. The Supreme Court will first have to decide whether it will wait for the High Courts to decide the respective cases (and then hear any appeal), or whether it will draw the cases to itself as similar substantial constitutional issues are pending across High Courts.
There are at least three important constitutional questions that arise from this Act. First, Article 19(1)(g) of the Constitution guarantees freedom to carry out any occupation, trade or business. There may be reasonable restrictions “in the interests of the general public”, and in particular related to specifying any professional or technical qualifications, or to reserve a sector for government monopoly. This Act, by requiring private businesses to reserve 75% of lower end jobs for locals, encroaches upon their right to carry out any occupation.
In 2002, in the T.M.A. Pai Foundation case, the Supreme Court stated that private educational institutions have autonomy in their administration and management. In 2005, in the P.A. Inamdar case, it said that reservation cannot be mandated on educational institutions that do not receive financial aid from the state, as that would affect the freedom of occupation. In 2005, the Constitution was amended to allow reservation in private educational institutions for socially and educationally backward classes and Scheduled Castes and Scheduled Tribes. Note that this amendment applies to admissions in private educational institutions and not to jobs in the private sector.
Second, the provision of reservation by virtue of domicile or residence may be unconstitutional. Article 16 of the Constitution specifically provides for equality of opportunity for all citizens in public employment. It prohibits discrimination on several grounds including place of birth and residence. However, it permits Parliament to make law that requires residence within a State for appointment to a public office. Note two points here. This enabling provision is for public employment and not for private sector jobs. And the law needs to be made by Parliament, and not by a State legislature.
Point of a ‘special case’
There have been several cases related to public employment. For example, the Supreme Court, in 2002, ruled that preference given to applicants from a particular region of Rajasthan for appointment as government teachers was unconstitutional. It said that reservations can be made for backward classes of citizens but this cannot be solely on account of residence or domicile. In 1995, Rules in Andhra Pradesh that gave preference to candidates who had studied in the Telugu medium were struck down on grounds that it discriminated against more meritorious candidates.
The third question is whether 75% reservation is permitted. In the Indra Sawhney case in 1992, the Supreme Court capped reservations in public services at 50%. It however said that there may be extraordinary situations which may need a relaxation in this rule. It gave examples of far-flung and remote areas, where the population may need to be treated in a different way. It also specified that “in doing so, extreme caution is to be exercised and a special case made out”. That is, the onus is on the State to make a special case of exceptional circumstances, for the 50% upper limit on reservations to be relaxed.
This question has arisen in several cases later. Telangana (2017), Rajasthan (2019) and Maharashtra (2018) have passed Acts which breach the 50% limit. The Maharashra Act, which provided reservations for Marathas was struck down by the Supreme Court in May 2021 on grounds of breaching the 50% limit. It stated that the 50% limit is “to fulfil the objective of equality”, and that to breach the limit “is to have a society which is not founded on equality but on caste rule”.
The Haryana Act does not further “caste rule” as it is for all residents of the State irrespective of caste but it breaches the notion of equality of all citizens of India. Again, note that all these cases relate to either public employment or to admissions to educational institutions, while the Haryana Act is about private sector employment. However, one may contend that any reservation requirement imposed on the private sector should not be higher than the limits on the public sector.
Over the last three years, three States have enacted laws that limit employment for citizens from outside the State. These laws raise questions on the conception of India as a nation. The Constitution conceptualises India as one nation with all citizens having equal rights to live, travel and work anywhere in the country. These State laws go against this vision by restricting the right of out-of-State citizens to find employment in the State. This restriction may also indirectly affect the right to reside across India as finding employment becomes difficult. If more States follow similar policies, it would be difficult for citizens to migrate from their State to other States to find work.
There would be adverse economic implications of such policies. Other than potentially increasing costs for companies, there may also be an increase in income inequality across States as citizens of poorer States with fewer job opportunities are trapped within their States. There may also be serious consequences to the idea of India as a nation. Can people across States imagine themselves as citizens of one nation if they cannot freely find work and settle down across the nation? The courts, while looking at the narrow questions of whether these laws violate fundamental rights, should also examine whether they breach the basic structure of the Constitution that views India as one nation which is a union of States, and not as a conglomeration of independent States.
- The Ordinance of Haryana can be constitutionally challenged to violate Article 19(1)(g) which states that all citizens have right to practise any profession, or to carry on any occupation, trade or business
Private sector firms can claim that the law effectively interferes with their constitutional rights to carry on their trade freely.
- The Ordinance can be challenged to violate Article 14of the constitution which ensures equality before the law or the equal protection of the laws within the territory of India.
- Similarly, Articles 15(1) and 15(2) also prohibit the state from discriminating against any citizen on grounds of religion, race, caste, sex, place of birth.
- But clauses (3) to (5) of Article 15 empower the state to provide for positive discrimination in favour of the grossly underrepresented and neglected sections of the society in order to promote substantive equality. Article 15(3) empowers the state to make special provisions for women and children while Article 15(4) authorises the state to make special provisions for the advancement of socially and educationally backwards or SC/STs. Article 15(5) goes one step further and says the state can reserve admission into education institutions, including private schools or colleges, whether or not aided by the government.
- Similarly, Article 16(1) lays down that the state cannot discriminate against any citizen in the matters of employment. Likewise, Article 16(2) too makes it clear that “no citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect or, any employment or office under the State”.
- However, clause 3 of Article 16 allows Parliament to make any law with residence qualifications necessary for government jobs, thus introducing the domicile-based preferential treatment. Article 16(4) also allows the state to reserve employment for any backward class of citizens, which in the opinion of the state, is not adequately represented in services. This opens the door for the reservations of Other Backward Classes (OBCs). Article 16(4A) was incorporated, permitting reservation in promotions but restricting the same to Scheduled Caste (SC) and Scheduled Tribes (ST).
- At the same time, the Supreme Court, in Triloki Nath Tiku & Anr Vs State of Jammu & Kashmir, 1966, made it clear that the issue of determination by the state as to whether a particular class of citizens is backward or not is a justiciable one. It said that the state is not the final word on identifying a backward class for providing reservation and that a court can overturn any such determination if it is based on irrelevant consideration or manifests an abuse of power.
- A law can be framed for reservation on the basis of domicile, but only by the Parliament. Article 16(3) in the Constitution empowers Parliament to provide domicile-based reservation in public employment and jobs with local or any other authority under a state or a Union Territory.
- SC in 2018 rules that states were not required to “collect quantifiable data” reflecting the backwardness among these communities.
These are the relevant provisions in the Constitution that seek to balance the right to equality for all citizens with the right of the state to legislate for reservation in favour of backward classes.
SUPREME COURT JUDGEMENTS THAT GOES AGAINST SUCH RESERVATION POLICIES
In Govind A Mane Vs State of Maharashtra, 2000, the top court quashed the state government’s decision to distribute seats district-wise for admission to B.Ed course, saying that such allocation based on residence would be violative of Article 14 (equality) of the Constitution when it fails to put forth any material to show the nexus between such distribution and the object sought to be achieved.
In Nidamarti Maheshkumar Vs State of Maharashtra, 1986, when region-wise classification for admissions to medical colleges was sought to be defended on the ground that Vidharbha and Marathwada regions are backward as compared to Pune and Bombay regions, the apex court declined to accept such contention, saying it is not possible to categorise the regions within the jurisdiction of the various universities as backward or advanced as if they were exclusive categories.
When the reservations of certain percentage of seats in medical colleges in favour of candidates from rural areas was sought to be justified on economic considerations, a three-judge bench of the Supreme Court, in state of Uttar Pradesh Vs Pradip Tandon, emphatically rejected the plea.
SC held: “The reservation for rural areas cannot be sustained on the ground that the rural areas represent socially and educationally backward classes of citizens. This reservation appears to be made for majority population of the State. Eighty per cent of the population of the State cannot be a homogeneous class. Poverty in rural areas cannot be the basis of classification to support reservation for rural areas. The incident of birth in rural areas is made the basic qualification. No reservation can be made on the basis of place of birth as that would offend Art. 15”.
In Dr Pradeep Jain Vs Union of India, 1984, the top court dealt specifically with the issue of domicile-based reservation, noting that to regard an individual from one state as an outsider in another state “would be to deny him his constitutional rights and to derecognise the essential unity and integrity of the country by treating it as if it were a mere conglomeration of independent States.”
In Sunanda Reddy Vs State of Andhra Pradesh, 1995, the Supreme Court affirmed the observation in Pradeep Jain to strike down a state government policy that gave 5% extra weightage to candidates who had studied with Telugu as the medium of instruction.
Similarly, in Kailash Chand Sharma Vs State of Rajasthan, 2002, the court held that “measures taken by the State on considerations of localism are not sanctioned by the constitutional mandate of equality”.
A state law that prima facie exercises a power exclusively within the domain of the Parliament under Article 16(3), breaches 50% ceiling on reservation, and also interferes with the constitutional right of citizens to conduct business or trade has be tested on the anvils on the constitutional and legal principles. The Supreme Court must pronounce a commanding judgment to settle the issue once and for all.
2. An MSP scheme to transform Indian agriculture
A decentralised plan would aid price stabilisation, offer income support, and also cope with the indebtedness of farmers
The ongoing struggle of farmers is not for political power. It is a struggle to transform Indian agriculture and the livelihoods of the farming majority which are in ruins in most parts of the country. The compulsion of our time is to give a new direction to a peaceful peoples’ movement to generate momentum in small peasant agriculture, which in turn could give real content to our democracy. Setting aside false promises of doubling the farmers’ income by the Government or pretending that market-friendly reforms will do the trick, we propose a different way of designing a minimum support price (MSP).
The massive solidarity (despite deeply divisive social faultlines) seen in the recent farmers’ movement has already shaken the Himalayan arrogance of the Government. Maintaining that solidarity is essential, which means MSP must look especially into the requirements of farmers and the landless. MSP could serve, in principle, three purposes — price stabilisation in the food grains market, income support to farmers, and also as a mechanism for coping with the indebtedness of farmers.
The price stabilisation policy for food grains in India evolved over time, first with the Essential Commodities Act in 1955 to counter price rise due to speculative private trading and then MSP in the 1960s. A buffer stock policy with the public storage of food grains for market intervention was developed over time to involve different kinds of mechanisms such as: setting cost-based minimum procurement price; paying the difference between procurement price and market price; storing the procured surplus for sale through the Public Distribution System (PDS) at issue price, and market intervention to stabilise price when deemed necessary. These induced farmers to shift to a high-yielding varieties cropping pattern during the Green Revolution, while ensuring food security for citizens. This task required interlinking procurement, storage and distribution with more centralised investment and control of each of these tasks.
The procurement and PDS from the Green Revolution period provided assured price incentives for rice, wheat and sugar (the flagships of the Green Revolution), but left out some 20 crops now under discussion for MSP including millets, coarse cereals, pulses and oilseeds. As a result, this partial MSP coverage skewed the cropping pattern against several coarse grains and millets particularly in rain-fed areas. The area under cultivation of rice and wheat from the time of the Green Revolution till recently increased from 30 million hectares to 44 million hectares and nine million hectares to 31 million hectares, respectively, while that of coarse cereals plunged from 37 million hectares to 25 million hectares. Although part of the diet of many people across the country, these left-out crops (grown mostly in rain-fed conditions) were not made available in ration shops. Almost 68% of Indian agriculture is rain fed and the crops grown in these regions are usually more drought resistant, nutritious and staple in the diet of the poorer subsistence farmers. This has been a particularly vulnerable point of our food security system; greater coverage of all 23 crops under MSP is a way of improving both food security and income support to the poorest farmers in rain-fed regions.
The centralised mechanism for ensuring distribution of the procured stock of rice and wheat at MSP entails bringing the procured grains to centralised Food Corporation warehouses. Here they are milled, made ready for consumption and sent back to each district/province, and from there to villages/slums/wards for distribution through fair price (ration) shops at an issue price fixed by the government which is below the market price to make it affordable for poor households.
The total economic cost involving subsidy for selling below market price along with procurement costs, distribution costs of freight, handling, storage, interest and administrative charges along with costs borne due to transit and storage losses would be around ₹3 lakh-crore. Sugarcane comes under a separate category because all this is organised through private sugar mills and is often plagued by delays.
If price is charged in a range according to harvest conditions, the total economic cost will vary within a price “band”.
As a band
MSP has to be conceived as a list of some 23 crops with a more flexible arrangement. Each crop within a band of maximum and a minimum price depending on harvest conditions (i.e. higher price in a bad and lower price in a good harvest year in general) will have its price set in the band. The price of some selected coarse grains can be fixed at the upper end of its band to encourage their production in rain fed areas. In this way, the objectives of income support to farmers, price stabilisation and food security and inducing more climate-friendly cropping patterns can be combined to an extent. Wide coverage of MSP through income support to farmers would generate massive positive economic externalities through raising industrial demand especially for the unorganised sector. This will help in extending solidarity among farmers and non-farmers while creating a chain reaction of demand expansion through multipliers for the whole economy.
For estimating the additional cost of a wider MSP; of the total grains produced some 45%-50% is for farmers’ self-consumption and the rest is marketed surplus. This marketed surplus sets the upper bound of total procurement cost from which must be deducted the net revenue recovered through the PDS (if all these crops are sold through ration shops). Our preliminary estimate puts it in the range of ₹5 lakh-crore, far less than the ₹17 lakh-crore estimated by the government. It is of the same order of magnitude as DA to public sector employees (less than 5% of the population, and the total tax break and income foregone announced in the Budget for a handful of industrial houses (₹3 lakh-crore), not to speak of a wilful default of bank loans by a handful of borrowers (well over ₹10 lakh-crore). This expenditure will benefit more than half the population directly and another 20%-25% of the population indirectly in the unorganised sector — over 70% of India’s citizens.
A real breakthrough in the recurring problem of agricultural debt can be made by the linking of selling of grains under MSP to provision of bank credit particularly for small farmers. The farmer can get a certificate selling grains at MSP which would be credit points proportional to the amount sold; this will entitle them to a bank loan as their right, and calibrate the fluctuations between good and bad harvest years by storing the certificates for later use. This mechanism would go a long way not only in addressing the indebtedness in the farming community but also has the virtue of great administrative simplicity in disbursing bank loans.
It needs emphasising that how effectively such an MSP scheme could be implemented would depend largely on decentralising the implementing agencies under the constitutionally mandated supervision of panchayats. The near miracle we have witnessed in organising and unifying the farmers’ movement across caste, class and gender through the panchayat and maha-panchayat system in Punjab, Haryana and West Uttar Pradesh raises hope that they will turn their attention to decentralising the MSP implementation mechanism. The movement enabled massive and effective mobilisation through these decentralised bodies. Therefore, they are capable of doing it again.
3. Creating a sun in a lab
What is the significance of the recent achievements made in thermonuclear fusion technologies?
In February 2022, the Joint European Torus (JET) fusion experiment in Oxfordshire, U.K., produced 59 megajoules (MJ) of energy from thermonuclear fusion. Thermonuclear fusion is the process by which hydrogen atoms combine to produce helium inside the Sun, and release immense energy in light and radiation. Ordinarily, these atoms cannot fuse. But in the sizzling heat at the core of the Sun with the intense pressure and dense core, the plasma of hydrogen fuse with each other to form helium, spewing colossal energy in the form of light and heat. This is the process that is being fabricated in fusion reactors such as the Tokamaks.
Tokamaks were first conceptualised by Soviet physicists Igor Tamm and Andrei Sakharov. They theorised that if one can create a magnetic field in the shape of a torus then the scorching plasma could be contained. The scalding of the walls of the container from the intense heat of plasma could be prevented. Unlike fission reactors, fusion reactors like the tokamaks do not pose the dangers of a radioactive leak. Gram for gram, the thermonuclear power produces four million times more energy than burning coal. The only waste product is harmless helium.
Harnessing energy from thermonuclear fusion today is a global collaborative effort. Thirty-five countries, including India, Russia, the United States, the United Kingdom, China, European Union, are collaborating to jointly build the largest Tokamak as part of the International Thermonuclear Experimental Reactor (ITER).
The story so far: Imagine creating an artificial sun on earth that can produce energy from the same process that gives us starlight and sunshine. Two recent achievements have taken us a step closer to this dream. China’s Experimental Advanced Superconducting Tokamak (EAST) sustained the plasma at 70 million degrees Celsius for 1,056 seconds in January 2022. In February 2022, the Joint European Torus (JET) fusion experiment in Oxfordshire, U.K., produced 59 megajoules (MJ) of energy from thermonuclear fusion. These are dress rehearsals for the upcoming International Thermonuclear Experimental Reactor (ITER), a global experiment to generate 500 MW of power by fusing hydrogen atoms into helium atoms by 2035.
What is thermonuclear fusion?
In a thermonuclear fusion reaction, lighter atoms like those of hydrogen fuse to produce slightly heavier atoms like that of helium. The whole is greater than the sums; sometimes, the sums are greater than the whole. The mass of one hydrogen atom is 1.007825 Atomic Mass unit (AMU). When four hydrogen atoms are combined, it transmutes into a helium atom. The sum of the mass of four hydrogen atoms is 4.03130 AMU, while the mass of one helium atom is just 4.00268 AMU. As we know, matter is neither created nor destroyed; hence the mass difference 0.02862 AMU is converted into pure energy by way of Einstein’s famous formula E=mc2.
If we fuse four grams of hydrogen into helium, about 0.0028 grams of mass would be converted to 2.6×10^11 joules; with that energy, we can light a 60-watt light bulb for over 100 years! 600 million tons of hydrogen are fused every second in the Sun, producing 596 million tons of helium. If one-thousandth of a gram of mass can create energy to power a 60W bulb for a hundred years, imagine the amount of energy the remaining four million tons of hydrogen unleash every second by the Sun.
What is the history of efforts to achieve nuclear fusion?
On March 24, 1951, then Argentinian president Juan Perón stunned the world by announcing the success of ‘Proyecto Huemul’ led by Nazi scientist Ronald Richter to harness energy from fusion. Not knowing that he had been tricked, he went on to say that the invention would bring “a greatness which today we cannot imagine”. People went on to believe that, with the technology at hand and two superpowers, the U.S. and USSR striving to one-up each other in technological progress, building the thermonuclear bomb were feasible, by harnessing energy from the fusion process. But this turned out to be science fiction. While the world wondered how a rural, backward Argentina could put together the technology, it soon became clear that Richter had pulled a fast one. Then in a politically precarious position, Perón had fallen for it.
But both the USSR and the U.S. stepped up their fusion research, not to be left behind. Soon, the Soviets came up with a viable design to kindle and sustain nuclear fusion—the Tokamak. Unlike the fission reactors, like the ones in Kalpakam and Koodankulam, the fusion reactors do not pose the dangers of a radioactive leak. Gram for gram, the thermonuclear power produces four million times more energy than burning coal. The only waste product is harmless helium.
“The Artificial Sun”: In stars such as the sun, hydrogen atoms combine to produce helium in the thermonuclear reaction and release immense energy in light and radiation. Ordinarily, the atoms cannot fuse. The like charges of the electron clouds surrounding the atoms would repulse and keep them at bay from coming too close. However, in the core of the stars, the temperature is some 15 million Kelvins. All the electrons are ripped away at these temperatures, forming what is known as plasma. Further, due to gravity, the pressure builds up 200 billion times greater than Earth’s atmospheric pressure, making the density to become 150 times that of water. In this sizzling heat, intense pressure and dense core, the plasma of hydrogen fuse with each other to form helium, spewing colossal energy in the form of light and heat.
If only one can mimic the condition of the interior of the stars, we can artificially ignite fusion; and the fusion reactors which permits us to do so are Tokamaks.
What is the Tokamak?
If fusion has to occur, the first step has to be the creation of hot plasma. Heating a tiny pellet of hydrogen to millions of degrees and generating plasma is not that hard; lasers could do the job well. However, to keep the fiery plasma at millions of degrees from touching the container wall is another thing. Soviet physicists Igor Tamm and Andrei Sakharov conceptualised that if one can create a magnetic field in the shape of a torus — like a south Indian vada—then the scorching plasma could be contained in the invisible magnetic bottle. The scalding of the walls of the container could be prevented. Based upon this theory, an experimental reactor was built and demonstrated by a Soviet team led by Lev Artsimovich at the Kurchatov Institute, Moscow.
The Tokamak is an acronym for tongue-twisting Russian terms ‘toroïdalnaïa kameras magnitnymi katushkami’, which means “toroidal chamber with magnetic coils”. Although alternative designs such as z-pinch and stellarator have been designed and tested, tokamaks are still the rage for achieving fusion.
The research on fusion commenced by being shrouded in the worrying secrecy of the Cold War. But the effort to harness energy from thermonuclear fusion today, thankfully, is a global collaborative effort. Thirty-five countries, including India, Russia, the United States, the United Kingdom, China, European Union, are collaborating to jointly build the largest Tokamak as part of the International Thermonuclear Experimental Reactor (ITER).
The idea germinated in 1985. After years of ups and downs since March 2020, the machine assembly is underway at Saint Paul-lez-Durance, southern France. With the installation of the Cryostat, a device to cool the reactor, covering the assembly is slated to be completed by 2025. If all goes well, the first plasma will be produced at the end of 2025 or early 2026. After testing and troubleshooting, energy production will commence in 2035.
The plant is expected to generate 500 MW power and consume 50 MW for its operation, resulting in a net 450 MW power generation. Although there are many experimental tokamaks worldwide, including one in India, none has demonstrated net energy production more than the input. Thus, the main task of the experimental ITER reactor is to get operational experience and train human resources. Scientists, engineers and technicians from all the 35 participating countries are working on the site learning along the way, hoping to lay the foundation for their own national fusion energy programmes.
What is the significance of the recent feats?
The ITER fusion reaction will use the isotopes of hydrogen called deuterium and tritium. Deuterium, also called heavy hydrogen, has a neutron and a proton in its nucleus. In contrast, ordinary hydrogen has only one proton. Tritium, another isotope of hydrogen, has two neutrons and one proton. To create plasma for fusion, the mixture of deuterium and tritium needs to be heated to temperatures 10 times hotter than the Sun’s centre. Using strong magnets, the weltering plasma must be held in place, made to swill around, beams collide, fuse and release tremendous energy as heat. The heat must be removed from the reaction to boil water, produce steam and turn a turbine to generate electricity.
The plasma at high temperature needs to be sustained for a long time if commercial energy has to be obtained. One of the critical challenges in the Tokamak is the sudden appearance of plasma instabilities. We need to get experience and assess the probability of such disruptions and work out how we can manage them. Making plasma at higher and higher temperatures and sustaining it at that temperature for more and more time will provide insights on disruptions. The Chinese accomplishment of maintaining 2.8 times the Sun’s temperature for 17 minutes is a milestone in this direction. For the first time, the Joint European Torus experiment used the tritium fuel mix, the same one that will power ITER. They could harvest one-third of the input energy as an output, a significant step from earlier results. The experimental results from this JET indicate that the models used to design ITER are robust, boosting our confidence in them. These experiments would help validate ITER’s designs.
What about India vis-à-vis fusion?
Way back in 1955, in the first ‘Atoms for Peace’ meeting in Geneva, Homi J. Bhabha saw a future in energy coming from thermonuclear fusion.
The Institute for Plasma Research (IPR) in Gandhinagar and the Hot Plasma Project at Saha Institute of Nuclear Physics (SINP), Kolkata, took the lead in nuclear fusion research in India.