1.Getting ahead of constitutional practices
If constitutional principles and practices no longer excite the citizens, but new political norms do, democracy is in trouble
- The Rajasthan High Court’s order of July 24 staying the anti-defection proceedings initiated by the Assembly Speaker against the rebel Congress legislators raises important constitutional issues. A simple petition challenging the issuance of notices by the Speaker to the rebel MLAs was turned into a very complex one challenging the constitutionality of Para 2(1)(a) of the Tenth Schedule to the Constitution (anti-defection law). The lawyers brought in by the rebels brought big issues before the court which were not very relevant to decide this matter.
Staying the Speaker’s action
- The simple plea initially brought before the court by the rebels was that the notice issued by the Speaker was bad in law and should be quashed. To answer this question, one should take a look at the rules framed under the Tenth Schedule. In the context of a challenge to the notice, only those rules which deal with the notice are relevant for this discussion.
- These rules were first framed by the Lok Sabha Speaker in 1985 and adopted by more or less all the State Legislatures. Rule 6 of the Lok Sabha rules deals with the filing of the petition and the forwarding of the same by the Speaker to the member concerned and related matters. Rule 6 (4) says that before making a petition seeking the disqualification of a member, the petitioner shall satisfy himself that there are reasonable grounds for believing that the member concerned has become subject to disqualification. Thus, the rule requires the petitioner, and not the Speaker, to satisfy himself about the reasonableness of the ground for disqualification. This responsibility is discharged by the petitioner by appending a brief statement to the petition stating clearly that he has so satisfied himself.
- Rule 7 says that on receipt of the petition, the Speaker shall consider whether the petition complies with the requirements of Rule 6. If he finds that the petition does not meet all the requirements, he shall dismiss it. If it complies with all the requirements, he shall forward the copy of the petition and the annexure to the member concerned and require him to submit his comments within seven days of the receipt of the copy of the petition. This is the so-called show cause notice which has been challenged. The rules do not mention any show cause notice.
- The Speaker cannot go into the reasonableness of the grounds cited in the petition at this stage because the comments of the respondent, evidence he may submit etc., are not before him. Only through a proper hearing will the Speaker be able to know whether reasonable grounds exist for disqualification. It is thus beyond my imagination how a challenge can be brought against a ‘notice’ at this stage. It can thus be concluded that the Speaker’s act of forwarding the petition cannot be legally challenged as he is acting in accordance with the rules. This point does not seem to have received any attention from the court as otherwise the petition would have been dismissed at the threshold.
- In Kihoto Hollohan v. Zachillhu (1992), while barring any interlocutory intervention by the court in the Tenth Schedule proceedings, the Supreme Court held that a challenge is not barred if there is an imminent threat of disqualification/ suspension before the Speaker takes a final decision. In the Tenth Schedule proceedings, there is no disqualification/ suspension of a member in the interim period. Therefore, the exception mentioned by the court does not become applicable here.
- Staying the Speaker’s action is unprecedented at the ‘notice’ stage. It will stymie the operation of the Tenth Schedule because any member can go to court and obtain a stay and put a stop to the proceedings — more so when the court has allowed all the larger issues such as the vires of para 2(1)(a) of the Tenth Schedule to be tagged together, which will take months to be heard and adjudicated upon. It is also puzzling how a High Court can reopen a constitutional issue that was settled long ago by a Constitution Bench of the Supreme Court.
Date of the Assembly session
- The second part of the political drama, about the date of the Assembly session, has just ended, with the Cabinet yielding to the Governor’s demand that there should be a 21-day gap between the summoning and commencement of the session. Although the government has averted an ugly situation by agreeing to the proposal made by the Governor with regard to the date of the session, it has opened the way to future confrontations between elected State governments and Governors. Summoning the Assembly is a routine constitutional function of the Governor. That this has created a serious confrontation resulting in a constitutional deadlock underscores the need to comprehend the ferocity of adversarial politics and its potential to disrupt normal politico-constitutional operations in the field of governance.
- As per the normal procedure, once the Cabinet decides to call the session on a particular date, that decision is conveyed to the Governor who signs the summons order and sends it back the same day or the next day. Thereafter, the summons is issued to individual members by the Assembly Secretary. By not agreeing to the date decided by the Cabinet, the Governor has shown that he has the final say. This is fraught with many disturbing possibilities in the relationship between the Governor and the State government.
- Under Article 174 of the Constitution, the Governor summons the Assembly. But the Governor can act only on the advice of the Council of Ministers. The Cabinet form of government presupposes that the executive power of the state vests in the elected government headed by the Chief Minister. The Governor does not exercise any of the executive powers except where the Constitution assigns him certain functions to be performed in his discretion. Calling the session of the Assembly is a part of the executive functions of the government and the Governor can summon the Assembly only on the advice of the Cabinet. In Nabam Rebia and Bamang Felix v. Deputy Speaker (2016), the Supreme Court reaffirmed this position.
- The crucial question in Rajasthan is whether the Governor has any discretionary power in the matter of summoning the Assembly. The Governor asked the government to change the date of commencement recommended by the Cabinet and proposed a date after 21 days. Finally, he got the Cabinet to yield to his wishes.
- The Nabam Rebia case makes it clear that so long as the Chief Minister enjoys majority support in the Assembly, the Governor has no discretional powers and is bound to accept the decisions of the Cabinet in regard to the date of commencement of the session. The decision to convene the Assembly session is taken by the Cabinet; the Governor has to merely sign the summons order. Further, the Governor has no role in the conduct of the business of the House, which is done under the control and supervision of the Speaker. Therefore, it is not open to the Governor to ask the government to clarify whether it wants to bring a confidence motion in the House.
- And what if the Governor does not sign the summons? This question cannot arise where the Constitution and the rule of law are in force. In Shamsher Singh v. State of Punjab (1974), the Supreme Court said: “The Governor has no right to refuse to act on the advice of the Council of Ministries. Such a position is antithetical to the concept of ‘responsible government’.” The Governor and the Chief Minister should be able to resolve such crisis without damaging the integrity of institutions.
The 21-day period
- The last point is about the significance of the 21-day period suggested by the Governor. The Constitution does not provide for this. In 1969, the Rules Committee of the Lok Sabha recommended that the gap between the date of summons and of the commencement of the House should be 21 days. This was thought of as necessary as the collection, collation and scrutiny of information relating to Questions, at different levels of bureaucracy, before it was placed in the House, was a time-consuming job. Although Parliament changed it to 15 days later, many State Legislatures continue with the 21-day period. It is not an inflexible rule, and says “unless the Speaker otherwise decides”. This rule is generally followed but it has never constrained governments from convening the House at shorter notice. In fact, the Rajasthan House rule itself provides for a session at shorter notice. If the government feels the urgency, it is well within its power to convene the House at shorter notice.
- These are well-established constitutional principles and practices. If a Governor overrules the decision of the Cabinet with regard to even the date of convening the Assembly, and a politically helpless government yields, it becomes a precedent, but not an inspiring one. Society needs to debate this seriously. We must know that politics has a way of getting ahead of principles and practices, and establishing its own norms. If our lofty constitutional principles and practices do no longer excite the citizens, but new political norms do, then democracy is in trouble.
2. An education policy that is sweeping in its vision
The National Education Policy 2020 provides the ingredients and the right recipe; what we make of it depends on us
- In approving the National Education Policy (NEP) 2020 on July 29, the Union Cabinet has taken an important step forward in India’s transition from deprivation to development. It marks the fourth major policy initiative in education since Independence. The last one was undertaken a good 34 years ago and modified in 1992. Given our current demographic profile, the stage of development we are in, and the aspirations of our youth, the new policy has not come a day too soon.
Sweeping in vision
- Based on two committee reportsand extensive nationwide consultations, NEP 2020 is sweeping in its vision and seeks to address the entire gamut of education from preschool to doctoral studies, and from professional degrees to vocational training. It acknowledges the 21st century need for mobility, flexibility, alternate pathways to learning, and self-actualisation.
- India has faced unprecedented challenges in providing quality education to children and the youth. Lack of resources and capacity, dozens of mother tongues, a link language that despite being the global language of choice is alien to most, and a persistent mismatch between the knowledge and skills imparted and the jobs available have been some of the challenges that have bedeviled our efforts since Independence.
- The 2020 policy attempts to break free from the shackles of the past. In adopting a 5+3+3+4 model for school education starting at age 3, it recognises the primacy of the formative years from ages 3 to 8 in shaping the child’s future. It also recognises the importance of learning in the child’s mother tongue till at least Class 5. Here, we are up against the strong desire of parents today, born of pragmatism, to give a head start to their children by exposing them to English from day one. Maybe we should recognise that between ages 3 and 8, picking up languages is child’s play, and blend the mother tongue and English in the first five years of school. Multilingual felicity could become the USP of the educated Indian.
- Another key aspect of school education in the new policy is the breaking of the straitjackets of arts, commerce and science streams in high school, and the laudable goal of introducing vocational courses with internship. How exactly this will be realised is to be worked out, given the penchant of overzealous parents to “stream” their children into professions at the earliest. The ‘blue-collarisation’ of vocations in our society is also a hurdle to be overcome, but this need not deter us from recognising the merits of the proposed policy. Needless to say, the policy envisages 100% Gross Enrolment Ratio (GER) in school education by 2030.
- In keeping with the philosophy of flexibility in enabling our students to deviate from the straight and narrow, NEP 2020 proposes a multi-disciplinary higher education framework with portable credits, and multiple exits with certificates, diplomas and degrees. An ambitious GER of 50% is envisaged by 2035. At the apex will be Multidisciplinary Education and Research Universities, where research will be supported by a new National Research Foundation. The role of our colleges in attaining the ambitious GER target is recognised by empowering them as autonomous degree-granting institutions, and phasing out the affiliated college, a unique Indian beast that is neither fish nor fowl. The huge potential of online pedagogy and learning methodologies for attaining the GER target is recognised and sought to be tapped extensively.
The question of regulation
- Regulatory cholesterol is the bane of governance in India, with poor outcomes to boot. NEP 2020 makes a bold prescription to free our schools, colleges and universities from periodic “inspections” and place them on the path of self-assessment and voluntary declaration. Transparency, maintaining quality standards and a favourable public perception will become a 24X7 pursuit for the institutions, leading to all-round improvement in their standard. A single, lean body with four verticals for standards-setting, funding, accreditation and regulation is proposed to provide “light but tight” oversight.
- In a country still beset by huge inequality and challenges faced by the disadvantaged and disabled, the NEP lays particular emphasis on providing adequate support to ensure that no child is deprived of education, and every challenged child is provided the special support she needs. The long-neglected ancient Indian languages and Indic knowledge systems are also identified for immediate attention. All this requires enormous resources. An ambitious target of public spending at 6% of GDP has been set. This is certainly a tall order, given the current tax-to-GDP ratio and competing claims on the national exchequer of healthcare, national security and other key sectors. However, resources are never the main roadblock to success in education. If public and political will can be mustered, resources will find their way from both public and private sources. NEP 2020 provides the ingredients and the right recipe. What we make of it depends entirely on us.
3. SC looks to save both animals and crops
CJI suggests ‘explosives that do not kill’ but make noise and ‘rubber bullets’ to scare off vermin
- An “anxious” Supreme Court accentuated the urgent need to find an alternative to killing marauding wild animals as vermin even while protecting crops from them.
- Chief Justice of India Sharad A. Bobde, heading a three-judge Bench, suggested “explosives that do not kill” but make a lot of noise and “rubber bullets” to scare off the animals.
- The court was hearing a petition filed by Biju Janata Dal (BJD) MP Anubhav Mohanty seeking measures to prevent killing of wild animals in India. Mr. Mohanty highlighted the indiscriminate killing of blue bulls (nilgai) as vermin.
- Issuing a notice, the court tagged the petition with an earlier one on an elephant who died after consuming pineapples laced with explosives in Kerala.
- Chief Justice Bobde said man-animal conflict is leading to both killing of wildlife and crop loss.
- “We are treating this matter with anxiety. Wild animals are destroying agriculture. We have to preserve our crops… What do you eat if animals eat it all? At the same time, can we kill a wild tiger or a rogue elephant… What are the Forest Department officials to do about this? What is the extent of information they have?” Chief Justice Bobde asked senior advocate Siddharth Luthra, who appeared for Mr. Mohanty.
- Chief Justice Bobde asked Mr. Luthra to study the problem and suggest measures so that the court could pass the necessary orders.
- The court asked Mr. Luthra to also enquire into whether human encroachments into forests are driving wild animals away from their natural habitats, forcing them to foray into human settlements for food.
- “Encroachments by human is putting pressure on wild animals,” Mr. Luthra submitted.