Together, OBCs, EBCs, SCs, and STs account for 84% of the state population. At 14.26%, Yadavas are numerically preponderant group among OBCs.
Patna: Following several months of administrative exercise amid severe political contestation, the Bihar government on Monday, October 2, released the results of the caste survey conducted in the state.
According to the data, the population of Other Backward Classes (OBCs) in Bihar is 27.13% and that of Extremely Backward Classes (EBC) is 36.01%. Castes like Yadav, Kurmi, Kushwaha, etc., are enumerated under the OBC category. Together OBC-EBC groups account for 63% of the state population. From the last caste census conducted in 1931 by the British, the population of OBC-EBC groups has seen a 10% jump. It maybe noted that the 1931 census was conducted in the then undivided India, including present-day Pakistan and Bangladesh.
The population of Yadavs is the highest among OBC castes in the state at 14.26%, which is considered to be the core vote bank of Rashtriya Janata Dal (RJD). At the same time, the population of the Kushwaha caste is 4.21% and that of the Kurmi is 2.87%.
Statistics show that the population of Scheduled Castes in Bihar is 19.65% and that of Scheduled Tribes is 1.68%. The population of general or upper caste groups has come out to be 15.52%.
Among upper castes, the population of Brahmins is the highest at 3.65%. The population of Rajputs stands at 3.45% and the Bhumihars population at 2.86%.
“Caste census was approved by all parties. It has not only revealed the population of castes but also their economic conditions. On this basis, further action will be taken for the development and upliftment of all sections,” chief minister Nitish Kumar wrote on X (formerly Twitter).
Congress leader and MP Rahul Gandhi welcomed the data and said, “The Caste Census of Bihar has revealed that the OBCs, SCs, and ST constitute 84% of its population. Out of 90 secretaries of the Central Government, only three are OBC, who handle only 5% of India’s budget. Therefore, it is important to know the caste statistics of India. The greater the population, the greater the rights.”
It is noteworthy that RJD has been demanding a caste census in Bihar since it was in opposition. Chief minister Nitish Kumar has been on the same path as well. Four years ago, on February 18, 2019, the proposal for a caste census was passed in the Bihar legislative assembly, when Janata Dal (United) and Bharatiya Janata Party (BJP) were together.
Going a step further, both RJD and JDU have called for caste-based enumeration across the country. Both Nitish Kumar and Tejashwi Yadav had also called on Prime Minister Narendra Modi to pitch for the same. However, with no response forthcoming from the Union government, Bihar went ahead with its own caste census. After JDU walked out of the BJP-led National Democratic Alliance last year, Nitish Kumar’s government, together with its alliance partner RJD, expedited the work on caste census.
Starting on April 15 this year, the data was collected in a couple of months until August 5. “Caste enumeration was done in two phases, in which house listing was done in the first phase and caste enumeration of all the persons was done in the second phase. To ensure the accuracy of the data, we did random scrutiny of five percent of the data and prepared the final report,” said an official involved in the process.
On the results of the survey, RJD chief Lalu Prasad Yadav said, “These figures will set a benchmark for the country in giving representation to deprived and oppressed sections and the poor as per their population and to make policies for their development.”
Since the exercise for the Bihar caste survey was underway, constituent parties of the INDIA bloc have been demanding the BJP-led Union government to conduct a similar exercise across the country. However, the BJP has been of the view such an exercise could upset its apple cart, given that its electoral victories in 2014 and 2019 were largely a result of consolidating Hindus, who are otherwise divided across caste groups.
Legal hurdles
Several petitions were filed before the Patna high court and the Supreme Court, requesting orders be passed to call off the caste census in Bihar.
A clutch of public interest litigations (PIL) were filed against the caste census in the Patna high court in May this year. Justice Madhuresh Prasad, while hearing the PILs, had put an interim stay and fixed July 3 for the next hearing on the matter. After hearing both sides, the Patna high court on August 1 had upheld the caste survey dismissing petitions filed against it. The petitioners then moved the Supreme Court.
On August 21, the Supreme Court had told the petitioners that it would not stay the exercise unless they made out a prima facie case against it. Since the petitioners had argued that legally the caste census cannot be conducted by the state government as only the Union government has the right to do so, the top court had allowed solicitor general Tushar Mehta, representing the Centre, to file its response on the issue within seven days.
First, the Union government filed an affidavit questioning the caste census. The affidavit said, “No other body under the Constitution or otherwise is entitled to conduct the exercise of either census or any action akin to census.” But later it filed a fresh affidavit in the Supreme Court withdrawing the paragraph.
The political fallout of census data
The government has released the data of a total of 209 castes in Bihar. Earlier, the figures of these castes were estimated in the last caste census done in 1931. With the latest data on caste groups now available, political parties are expected to further sharpen their efforts to woo and cultivate communities which could become their vote banks.
Political analyst Naval Kishore Chaudhary said, “Caste census has been conducted so that the castes can be consolidated. Now on the basis of these figures, parties representing different castes will demand reservation. Caste enumeration is completely a political move.”
The total population of the OBC group and EBC group is 63%, which is most important from the election point of view. Yadavs also have the largest population among OBCs, about 14.26%. At the same time, the population of Muslims is about 17.70%. Together, the figure comes to 31% and both are considered core vote banks of RJD, so electorally RJD seems to be in a strong position.
At the same time, the votes of EBC castes are scattered among small political parties, so political parties will now try to mobilise them.
Earlier Nai caste population was supposed to be negligible but the census has revealed their population at 1.56%. Similarly, Dusadh, Dhari, and Dharahi castes had no estimated figure but current data revealed their population at 5.31% whereas the Chamar caste population stands at 5.25%.
Patna-based journalist Dipak Mishra says, “These small castes had no bargaining power as they were supposed to be negligible in numbers. But, now they have data so they will bargain and political parties will also try to accommodate them.”
An RJD leader told The Wire on the condition of anonymity, “Based on this data, we will make the next election strategies.”
However, if seen in terms of population, the latest figures remain around the earlier estimated figures. The figures that have been reported so far regarding the population of OBC, Muslims, Upper Caste, etc., are almost similar to the figures obtained in this survey. In such a situation, some political analysts do not see the possibility that these figures will yield any results.
Political analyst Mahendra Suman says, “The figures that have just come confirm the earlier estimates. Yes, it is true that earlier we had estimated figures and now we have official figures. So, I don’t see the political significance of these figures.”
Rather, questions will be raised about Yadav and Rajput, whose population is 14.26% and 3.45%, because in the 2015 and 2020 assembly elections, these two castes and some other dominant castes were given much more seats than the population and they also won.
“RJD and JDU cannot take any benefit from these figures on the basis of population alone, rather questions will be raised on them that they do not give tickets as per population. Yes, if the report of socioeconomic conditions of these castes is released, it will benefit them because this data will tell what is the social status of the castes and accordingly reservation demand will be intensified,” he said.
On the other hand, Dipak Mishra says, “The data may help RJD and JDU to some extent but the situation is not going to be of the Mandal era of 90s, what RJD is expecting.”
“Yadav and Muslims were together about 33% but RJD had to lose in 2005,” he says.
The September 12 referral order of the three judge bench of the Supreme Court, and a recent speech of CJI D.Y. Chandrachud linking justice in colonial era cases to those wielding power are helpful in understanding the court’s role in defending free speech irrespective of political vicissitudes.
On September 12, a Supreme Court Bench comprising the Chief Justice of India D.Y. Chandrachud, Justices J. B. Pardiwala and Manoj Misra, referred the petitions challenging Section 124A IPC, making sedition an offence, to a constitution bench.
In the same order, the three-judge bench rejected the government’s plea to defer the hearing in light of the newly introduced criminal law Bill, the Bharatiya Nyaya Sanhita.
The petitioners include Major General S.G. Vombatkere (the lead petitioner in the case); two journalists, Kishore Wangkhemcha and Kanhaiya Lal Shukla (both having suffered by the wrongful application of law by the Manipur and Chhattisgarh governments respectively); the Editors Guild of India; Journalists’ Association of Assam; Arun Shourie; the People’s Union for Civil Liberties; Mahua Moitra, MP from the Trinamool Congress; Patricia Mukhim, editor of the Shillong Times; and Anil Chamadia, chairman of the Media Studies Group.
Section 124A seeks to punish one found guilty of sedition with imprisonment for life, to which a fine may be added, or with imprisonment which may extend to three years, to which a fine may be added, or with a fine.It defines sedition as bringing or attempting to bring into hatred or contempt or exciting or attempting to excite disaffection towards the Government established by law in India.
CJI, Chandrachud observed – while speaking at the convocation ceremony at the Maharashtra National Law University, Aurangabad – that in cases involving colonial-era laws like sedition, the question of whether justice is served depends on those wielding power. For the petitioners challenging afresh the validity of Section 124A – a colonial law, the CJI’s observation is of significance, as they expect the proposed constitution bench to not leave the question of justice in sedition cases to the vicissitudes of politics.
The Wire breaks down the issues in reference to the challenge to the sedition law, and also the import of what the CJI observed.
Why did the three-judge bench refer the case to a larger bench?
In 1962, in Kedar Nath Singh vs State of Bihar, the Supreme Court’s five-judge bench upheld the constitutionality of Section 124A IPC on the ground that it is a valid restriction on the right to freedom of expression only when the words are intended to disturb public peace by violence.
Therefore, the petitions challenging afresh the constitutionality of Section 124A – on grounds not anticipated in Kedar Nath Singh – must, in keeping with judicial propriety, be heard by a bench of equal strength. It is very likely that the five-judge bench, to be constituted by the CJI, will refer the new petitions to a seven-judge bench, which will then hear arguments for and against declaring Section 124A as unconstitutional. In view of the Supreme Court’s five-judge bench’s decision in Kedar Nath Singh, only a seven-judge bench can declare the provision as unconstitutional.
Senior advocate Kapil Sibal stressed the urgent need to hear the challenge against Section 124A citing several “pending prosecutions” against individuals. According to data captured by Article-14 in the report ‘A Decade of Darkness’, 867 cases under the Section were filed against 13,306 individuals in the country. Further, as the Times of Indiareported, citing data compiled by the National Crime Records Bureau (NCRB):
“A total 356 cases of sedition — as defined under Section 124 were registered and 548 persons arrested between 2015 and 2020. However, just 12 persons arrested in seven sedition cases were convicted in this six-year period.”
Although Sibal suggested that the constitutionality of sedition can either be evaluated by a five-judge bench or a division bench of the Supreme Court can hear the case without a reference, the three-judge bench decided in favour of referring it to a five-judge bench.
What are the fresh grounds raised by the petitioners?
Section 124A penalises individuals who “excite disaffection” against a “government established by law”.In Kedar Nath Singh, the Supreme Court observed that the “continued existence of the Government established by law is an essential condition of the stability of the State”. The petitioners in S.G. Vombatkere rejected this idea. They contended that the terms “state” and “government established by law” are separate. In essence, they expressed the stance that a “disaffection” towards the government was not equivalent to “disaffection” towards the State, and that both terms have to be construed separately.
CJI Chandrachud noted during the hearing of the case on September 12 that the judgment in the Kedar Nath Singh casedid not distinguish between the state and government and construed these two words synonymously. As Article 19(2) dealing with reasonable restrictions on freedom of expression uses the word “state”, rather than “government”, Section 124A, as originally drafted, cannot be immune from challenge on the ground of being a reasonable restriction.The constraints imposed by Article 19(2) (“Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.”) will not apply to the provision if the bigger bench determines that the words “State” and “Government” are distinct. On this ground alone, Section 124A can be declared as unconstitutional, and the judgment in Kedar Nath Singh set aside.
Illustration: The Wire
The three-judge bench rejected the government’s plea to defer the hearing of the case in view of the new Bharatiya Nyaya Sanhita Bill, which purportedly repeals sedition as an offence. Why?
The Bharatiya Nyaya Sanhita Bill appears to do away with the offence of sedition; however, the Bill retains it with a more expansive definition of sedition as “acts endangering sovereignty, unity and integrity of India” and includes within its ambit secession, armed rebellion, subversive activities and “encouraging feelings of separatist activities”. The new provision, Section 150, enhances the minimum punishment from 3 to 7 years imprisonment and is likely to be, if enacted, more draconian than the provision under challenge before the Supreme Court.
The new provision drops the word “disaffection” and Explanation 1, which defines disaffection as disloyalty and all feelings of enmity. However, it merges Explanations 2 and 3 to Section 124A as follows:
“Comments expressing disapprobation of the measures, or administrative or other action of the Government with a view to obtain their alteration by lawful means without exciting or attempting to excite the activities referred to in this section”.
[The words “do not constitute an offence under this section” found in Explanations 2 and 3 to Section 124A are ironically missing in Section 150 – which may be unintentional]
The three-judge bench took note of Sibal’s submission that Section 150 of the new Bill is more draconian than Section 124A, and held that the new penal legislation brought in will not “obviate the need to adjudicate upon the constitutional validity of Section 124A” as penal legislations will not have a retrospective effect. Essentially, all pending prosecutions under Section 124A will continue even after the new penal legislation comes into application. Additionally, the bench agreed with Sibal that as long as the statute continues to exist, its constitutionality needs to be examined, and if declared unconstitutional, all pending cases under the provision will automatically be dropped as the provision will be considered to never have existed.
Furthermore, the bench stated on September 12 that Section 124A was a pre-constitutional enactment and thus does not carry the same presumption of constitutionality as carried by legislation that came into being after the enactment of the constitution. What is the doctrine of presumption of constitutionality?
The doctrine of presumption of constitutionality means that when a statute legislated by parliament is challenged, the judiciary shall defer to the legislature and the onus of proving the unconstitutionality of the provision rests on the petitioners.
As G.P. Singh writes in his book, Principles of Statutory Interpretation: “A statute is construed so as to make it effective and operative on the principle expressed in the maxim “ut res magis valeat quam pereat”.
There is, therefore, a presumption that the legislature does not exceed its jurisdiction, and the burden of establishing that the Act is not within the competence of the legislature, or that it has transgressed other constitutional mandates, such as those relating to fundamental rights, is always on the person who challenges its vires.
Thus as per the doctrine:
“Unless it becomes clear beyond reasonable doubt that the legislation in question transgresses the limits laid down by the organic law of the Constitution it must be allowed to stand as the true expression of the national will.”
In essence, in order to ensure that the full extent of a statute is realised, there exists a presumption that the legislature does not act in an ultra vires manner, Additionally, since it is enacted by the legislature which comprises elected representatives of the people, it is considered a representation of the “national will’. However, this idea only becomes applicable to legislations that came into enactment after the adoption of the constitution and not retrospectively.
The three-judge bench’s drawing of attention to this aspect of Section 124A – being a colonial law, and therefore, not entitled to the protection of the doctrine of presumption of constitutionality – means that the burden of proving unconstitutionality would not be on the petitioners. Instead, it is the government which has to prove its constitutionality. This reversal of roles in constitutional litigation is likely to make the petitioners’ challenge easier, although the court would look for other valid grounds to strike it down – rather than the simple fact of its having been enacted during the colonial era.
The three-judge bench justified the reference to a larger bench on the ground that the bench in Kedarnath Singh could not have envisaged the developments in the law in later years, which would have a bearing on the validity of Section 124A. What are those developments in law, which forced the bench to justify a relook?
Petitioners in S.G. Vombatkere argued that Section 124A had only been tested on the touchstone of Article 19(1)(a) (“freedom of speech and expression”) in the Kedar Nath Singh judgment. They submitted that it would be necessary to test its compliance with Articles 14 and 21 of the constitution considering the significant evolution of these articles since.
The petitioners contended that section 124A was made cognizable by the Code of Criminal Procedure in 1973, an additional ground to justify its reexamination, as the Kedar Nath Singh bench held it constitutional when it was non-cognizable. As cognizable offences are crimes for which the police can make an arrest without a warrant or prior court permission, the instances of abuse of the provision against innocents, for whom the process itself became punishment, justified reconsideration of the Kedar Nath Singh judgment.
The doctrine of proportionality is one which evolved in the post-Kedar Nath Singh years.It means that the measures taken must be reasonable with respect to the desired results.
The three-judge bench observed on September 12 in its order:
“There was no challenge (in Kedar Nath Singh) on the ground that Section 124A violated Article 14 nor did the Constitution Bench (in Kedar Nath Singh) have occasion to consider the validity of the provision against a constitutional challenge on the basis of Article 14. The position as it has evolved in constitutional jurisprudence is that the fundamental rights do not exist in silos. There is, in other words, a coalescence of several of the rights protected by Part III. Article 14, which presents an overarching principle of reasonableness permeates Articles 19 and 21 as well.”
The Constitution of India.
What does “fundamental rights do not exist in silos” mean?
In Rustom Cavasjee Cooper vs Union of India (1970), popularly known as the bank nationalisation case, heard by 11 judges, 14 banks were proposed to be nationalised through an Ordinance. Cooper filed a writ petition under Article 32 alleging that the promulgation of the Ordinance had violated his fundamental rights. Cooper was not only the then director of the Central Bank of India Ltd., but he also owned shares in the Bank of India, Bank of Baroda, and the Central Bank of India.
The primary contribution of this case was the rejection of the “Mutual Exclusivity Theory” which had its genesis in A. K. Gopalan vs State of Madras, and which had been followed for 20 years prior to this case. The Supreme Court held in Cooper that it could not dismiss a petition that unequivocally demonstrated that people’s fundamental rights were being violated, based solely on technicalities. Just because a legislative measure violated a corporation’s rights, the court does not lack jurisdiction to defend the shareholder rights of the firm, the court held.
In Cooper, the court specifically overruled Gopalan and declared that even if a law satisfied the requirement of Article 31(2) (dealing with compulsory acquisition of property) it has to satisfy the requirement of Article 19(1)(f) (right to property) too.Article 31 and Article 19(1)(f) were repealed in the post-Emergency period. Thus the court held that if a tribunal is authorised by an Act to determine compensation for property compulsorily acquired without hearing the owner of the property, the Act would be liable to be struck down under Article 19(1)(f).
Previously, on the basis of the judgment in Gopalan, it was held in a long line of cases that each article guaranteed a distinct Fundamental Right.It meant that the legislation to be examined must be directly in respect of the rights mentioned in that sub-clause. But Cooper changed this interpretation on the ground that if an act of the executive, or a law is liable to be tested in terms of more than one Fundamental Right, it is better for the citizen.
In Maneka Gandhi vs Union of India And Another (1978), the petitioneralleged that the order denying her passport violated Article 14 and that the right to travel abroad was under the broad definition of personal freedom guaranteed by Article 21. The court ruled that there is a special connection between the provisions of Articles 14, 19, and 21. As a result, a law that restricts someone’s “personal liberty” must also pass the constitutional tests of Article 19 and Article 14 in addition to Article 21, and thus the court affirmed the idea that the various fundamental rights interact with each other and can not be interpreted in isolation.
The Maneka Gandhi case thus first gave birth to the doctrine of the Golden Triangle which represents the interconnectedness and dependency of these three fundamental rights. These three articles complement one another and offer a framework for defending the fundamental liberties and rights of every Indian citizen.
The Kedar Nath Singh bench did not have the benefit of applying these later developments in law to test the constitutionality of Section 124A, and therefore, its judgment deserves to be reconsidered and set aside by a larger bench.
Systems are being made more opaque than ever and governments are insulated by regulators who hide behind technology.
India is rapidly digitising. There are good things and bad, speed-bumps on the way and caveats to be mindful of. The weekly column Terminal focuses on all that is connected and is not – on digital issues, policy, ideas and themes dominating the conversation in India and the world.
The shift towards digitalisation in India has been led by the private sector, and Aadhaar is often cited as a driver of social and economic development. While civil society has largely focused on civil liberties concerns such as privacy, it is also important to consider the accountability implications of digitalisation. Systems are being made more opaque than ever and governments are insulated by regulators who hide behind technology when it comes to being transparent. This ends up denying the benefits of digitisation to the people, and instead bringing them great risks and hardships.
Regulatory silences can be costly
In a shocking incident, TamilNad Mercantile Bank mistakenly deposited Rs 9,000 crore in the account of a cab driver in Chennai. The driver was able to transact up to Rs 21,000 before the erroneous transaction was reversed. He was later contacted by the nearest branch officials who instructed him to remain tight-lipped about the incident, but subsequently he was threatened to repay the money spent or face consequences. An unknown cash deposit into his account for Rs 11,000 and offers for a car loan to remain silent about the episode later forced him to go public about the incident.
The CEO of the bank has now resigned citing ‘personal reasons’. The mistake was caused by a combination of factors, including invalid account numbers and a software bug in the National Automated Clearing House (NACH) application, a system widely used for salary payments/EMIs. While the bank was able to reverse the transaction quickly, it is important to note that such incidents could have serious consequences for customers and financial institutions alike, especially in this era when individuals have instant payments at their fingertips and can move money faster than ever before. It must be remembered that a similar software bug in SWIFT (financial messaging system) was cited as the reason behind the Nirav Modi fraud involving the Punjab National Bank.
The incident highlights serious gaps in critical legacy payment systems like the NACH system, run by the National Payments Corporation of India (NPCI), and the need for active regulation. The Reserve Bank of India, while being detailedly prescriptive citing consumer protection (to the extent of bringing them hardship like with the recurring payments fiasco) when it comes to card networks and prepaid instruments, actively chooses to remain blind when it comes to supervising and under-regulates the payments systems run by NPCI, leading to issues such as these.
The RBI should actively publish detailed reports on the quality of its supervision of regulated entities and conduct periodic reviews of all payment systems with all stakeholders, including members of the public, to maintain public trust in the regulatory system.
Moody’s commentary on Aadhaar
Moody’s Investors Service, a global rating agency, has raised concerns about security and privacy vulnerabilities in centralised identification systems like India’s Aadhaar programme. Moody’s in its report had said that Aadhaar’s system often results in service denials, and questioned the reliability of biometric technologies, especially for manual labourers in hot, humid climates.
India’s Ministry of Electronics & IT while dismissing the concerns and said Moody’s report “does not cite either primary or secondary data or research in support of the opinions presented in it”.
The UIDAI only publishes cumulative transaction data by provider on its dashboard and has not released any data on failures. This is also similar to how statistics on UPI/Aadhaar-based direct benefit transfers are published, but there is no official number of UPI fraudulent transactions/Aadhaar-Enabled Payment System biometric frauds. If the government/regulators don’t publish official data that is uncomfortable, it is impossible to cite. Moody’s does cite the CAG report on UIDAI while indicating biometric reliability.
Indians have been the guinea pigs to pilot the Centralised Digital ID system and the success of Aadhaar equally lies in under-reporting failures and narrative management. The Moody’s report comes at a time when India is attempting to sell this technical prowess through the G20 and a credible reply to the allegations would be to publish hard data – on biometric reliability and data points on new facial authentication modality, which is touted as response to both failures and fraud prevention that is prevalent in fingerprint-based biometric verification.
Central Bank Digital Currency about which the RBI has no data
The Reserve Bank of India, in response to an RTI, has said it has no data on the Central Bank Digital Currency (CBDC), eRupee-Retail, it issues. CBDCs are piloted by several central banks as a regulated alternative to cryptocurrencies. The RBI came down strongly on cryptocurrencies originally through a shadow ban and was restrained by the Supreme Court, and the government later introduced crypto taxation to restrict the free outflow of money.
While the monetary sovereignty arguments might have legitimate state interest, and would be well within the purview of the central bank to have a strong opinion on, the same has to be matched when it comes to transparency too. Demonetisation (including the ongoing removal of the Rs 2,000 note from supply, which got an additional one week extension) made the central bank far more transparent when it comes to money supply. We cannot go back to a world where the central bank says it has no data when it comes to the currency notes it issues.
The no data response by the regulator is bizarre, given the fact that it gave approval to make CBDC transactions on UPI network. If such a decision was indeed taken without necessary data, the regulatory capability is seriously questionable.
The RBI deputy governor, though, is open to spilling some numbers for industry – and had said 15,000 transactions happen daily through CBDC. CBDC pilot is run on a blockchain and that the RBI through NPCI has access to detailed data is the logical expectation. The only reason, then, for citing it has no data is that this is the default response mode and allergy to transparency when it comes to RTI queries. This lack of transparency – especially on crucial matters such as money supply/new digital currency – fails not just at democratic accountability levels, but also what the market expects. Cryptocurrencies, which are often criticised for their volatility, publish the entire transaction log publicly, making them more transparent than some centralised digital money systems. A Moody’s thumbs down on the rupee (even on CBDC) will be far more costly economically than the one on Aadhaar, and the effects of that will be on every person in the country.
Regulators are the new power centres and regulatory accountability both via parliament and civil society is needed to prevent seemingly small, unknown excesses that have large, irreversible damages to society for the profits of a few.
Srikanth Lakshmanan is part of CashlessConsumer, aconsumer collective working on digital payments with a goal of moving towards a fair cashless society with equitable rights.
The death toll due to the endemic disease has seen a staggering rise this year when compared to last year’s 281 deaths.
Bangladesh is reeling from the worst-ever outbreak of dengue this year which has claimed more than 1,000 lives since the start of this year.
The death toll due to the endemic disease has seen a staggering rise this year when compared to last year’s 281 deaths.
Data shared by government health officials on Sunday showed that 1,006 people have died since the start of the year, of which 17 were reported in the last 24 hours.
Among the deaths reported this year, 112 were of children aged 15 and under, including infants, according to the official data provided by Directorate General of Health Services.
The country’s current dengue caseload stands at more than 200,000 confirmed cases.
The health agency’s former director Be-Nazir Ahmed told French news agency AFP that the number of deaths so far this year was greater than the total number of deaths from the disease since 2000.
“It’s a massive health event, both in Bangladesh and in the world,” he added.
Scientists said that irregular rainfall and hotter temperatures than usual have created the ideal conditions for mosquitoes to breed.
In September, WHO chief Tedros Adhanom Ghebreyesus said that the dengue outbreak was “putting huge pressure on the health system” in Bangladesh.
Bangladesh used to see dengue fever cases during the monsoon season but now, dengue patients are admitted to hospitals even during winter months.
Although the disease has been recorded in the South Asian country since 1960, the first outbreak was only recorded in 2000. Since then, the situation has deteriorated.
Is India’s constitution colonial? Or is it, in fact, the opposite? Karan Thapar questions Arghya Sengupta’s views on the matter in this lively interview.
In an interview to discuss his new book The Colonial Constitution, Arghya Sengupta told Karan Thapar why he believes India’s constitution is colonial. Thapar challenged the view put forth by Sengupta – who is the director, Vidhi Centre for Legal Policy – and the arguments on which it is based, in a thrilling 45-minute interview.
With minor edits for style, this is the full text of their conversation.
Karan Thapar: Hello, and welcome to a special interview for The Wire. A recently published book argues that India’s constitution is colonial. It’s called The Colonial Constitution, and it raises a fundamental question: is the book right and is our constitution really colonial, or is that a mistaken view? Joining me now to answer that question is the author himself, the research director of the Vidhi Center for Legal Policy, Arghya Sengupta.
Arghya Sengupta, I want to focus this interview on your belief that the Indian constitution is colonial, and if I’ve understood your book correctly you have two broad arguments for saying so. Let’s go through them one by one. To begin with, you write, “The constitution of India is a colonial document. It’s colonial for the simple factual reason that it is heavily borrowed from the Government of India Act 1935, a fact that has been widely glossed over”.
Now, that’s true, but only in the sense that that’s the broad outline structure, and you can see that when you go on in your book to say “Fundamental rights were guaranteed to every citizen of independent India in a marked departure from colonial rule”. So is there a contradiction inherent here?
Arghya Sengupta: It needn’t have been based on the Government of India Act of 1935. When the constitution framers started their task in 1946 on the 9th of December, the question that they asked could have been ‘What kind of India do we envisage?’ It could have been, ‘What is the constitutional structure that gets us to that India’, but rather the questions that were asked were: ‘How can we adapt the Government of India Act to make it suitable for independent India?’, ‘What do we need to change, what do we need to incorporate?’ The fact is, that they didn’t start off with a clean slate. What they chose, as what was written on the slate before they started, was factually the Government of India Act. That may not be a bad thing entirely, because they were in a hurry and they needed to have something to begin with; but it is a fact and that fact has been lost.
Karan Thapar: Let’s pick up on the point you make, that it needn’t have been based on the Government of India Act. In fact, in your book you say, “Borrowing from the Government of India Act was a missed opportunity”. You then say, “Ambedkar and the rest of the drafting committee members did not consider forms of local government and constitutional thinking in ancient and medieval India”. But surely, India is far too big a country to have been ruled by village panchayats. Leave aside second and third century BC Buddhist sanghas and shakyas.
Arghya Sengupta: Absolutely. I think that there’s one fallacy that we always tend to make when we think about going beyond colonial rule, which is that we tend to go back 2,000 years. You’re absolutely right, that we cannot go back to a pre-modern state. It cannot be anyone’s argument that we go back to a state that essentially is not modern. But at the same time, there has been a lot of, if I may use the term, constitutional activity in India right from the Buddhist shakyas that you spoke about. Even before that, right down through the Cholas in the South, where a lot of very interesting stuff went on, through the time of the Mughals. As many people have written about the medieval period, India has always been a contest between empires and kingdoms, and you see how division of powers have been worked out in a very interesting way. There’s a lot of material there. But what happens is, and I don’t blame the constitutional framers as I’ve said, is that the exigencies of time and the urgency of having a new constitution come out quickly means that they don’t go into that exercise at all, and they take what is closest at hand.
Karan Thapar: Let me once again quote from your book. You say, “Vesting sovereign power at the local level, which clearly our constitution did not do, would enable individuals to directly participate in government”. There’s a great danger that if that had happened, you would have ended up prioritising community rights over individual rights, thus enforcing and reinvigorating caste and khap panchayats, and reducing individuals to the status of simply members of a community rather than individuals in their own right. That would not have been modern, that would have emphasised caste and khap panchayat, which are retrogressive parts of our past. Surely, that’s not what we wanted.
Arghya Sengupta: Yeah, we didn’t want that. But it’s not essential that if we are talking about local government, that we are talking about caste and khap panchayats. I think that what you point out, it could have been a real danger at that point of time. But the question is this: that when you are drafting a constitution you are not drafting a constitution for five years, or 10 years. If that were to be the case, I fully agree with you that we cannot go down and say that ‘Okay we want a local government’, because a local government would possibly have been riddled with the problems that you mentioned. But now we can see that in 1990, when the 73rd and 74th Amendment were enacted by Rajiv Gandhi’s government, what are we talking about? We are talking about decentralisation. What is decentralisation? Decentralisation is greater power to the people, bringing the power of sovereign power closer to the people.
Karan Thapar: But surely you are not saying that the absence of the panchayat laws in 1947, 1948, 1949 meant that the whole constitution therefore became colonial?
Arghya Sengupta: No, not at all. That is a very simplistic claim to make. But there was an alternative idea that was proposed.
Karan Thapar: But was there? That’s the point I’m making.
Arghya Sengupta: Yes.
Karan Thapar: The alternative idea years would have inevitably led to a situation where individuals would have been submerged under communities, where the traditions of caste, khap and community would have gotten priority over the right of a single man or single woman. That would have been un-modern.
Arghya Sengupta: That’s right. The fact that we are still asking that question, and it is a very legitimate question to ask even 75 years later, shows that there is much work to be done in trying to ensure that the individual and community can live in harmonious coexistence with power vested at a local level. It is not an inevitability.
Karan Thapar: But that argument you’re making doesn’t mean that the constitution is colonial, it simply means that some of the rights the constitution confers on people haven’t actually been implemented and haven’t gone down far enough. In other words, it hasn’t been perfectly executed. Imperfection in the execution means you still have these problems at ground level.
Arghya Sengupta: No, but the constitution didn’t envisage any significant power at the ground level. It’s a fact that the constitution envisages a very powerful union government in general.
Karan Thapar: I come to the power of the union government in a moment’s time, but let’s take up this point you’re making, that because the constitution didn’t envisage significant part at the local village level or ground level, therefore it’s colonial. That is what I’m disputing. It may not have transferred power decentralised all the way to the bottom, but the conclusion doesn’t mean that therefore it’s colonial.
Arghya Sengupta: You’re right, in the sense that I say it’s colonial because it doesn’t devolve power to the people effectively. That is the way in which it is colonial.
A Constituent Assembly of India meeting in 1950. B.R. Ambedkar can be seen seated top-right. Photo: Unknown author, Public Domain
Karan Thapar: Let me then counter that in this way: you claim this is a colonial constitution, yet this constitution confers every single fundamental right on every single citizen of India, that not a single colony ever had.
Arghya Sengupta: That’s right.
Karan Thapar: Secondly it has a fairly well-defined parliamentary system, federalism, a division of power, checks and balances, and a strong commitment to equality which colonial systems do not have. Liberty, fraternity, freedom of speech, and most importantly of all, this constitution guarantees the right to vote to every Indian over the age of 18, regardless of caste, creed or gender, something that didn’t happen in the UK till 1918.
Arghya Sengupta: That’s right.
Karan Thapar: It didn’t happen in America till 1920, and if you look at the situation facing Blacks not till the mid 60s. Yet you still call it a colonial constitution.
Arghya Sengupta: All of what you said, I fully agree with. This is the standard script of the constitution of India that we all have been brought up with for 75 years, and there’s a reason why it’s a standard script, because it’s true. All these things that you mention are true. The fact is that, as I write in my book, there is a lot to celebrate in this constitution. Merely the fact that we call it a ‘colonial constitution’ does not mean that it should be rubbished, or thrown into the dustbin, not at all. That is not my claim.
Karan Thapar: It’s only colonial in that it uses and adopts the outline formal structure of the Government of India Act, having kept that structure of administration and governance intact. It’s actually infused into the constitution a million things that the British didn’t have. The structure may be that of the act, yes, but what lies behind the structure in terms of rights is so different.
Arghya Sengupta: Yes, so what lies behind the structure as you said is rights, but let’s see the other side of the coin. What also lies is a huge slew of restrictions on those rights, and I think this is very important for us to understand: why is it that every government in democratic India, irrespective of political party, has not removed the law on sedition? Why is that the case? The case is because constitutionally, what we have set up is a law and order state.
Karan Thapar: Forgive me, you’re an expert and I am not. But if I am correct, the first couple of high court judgments actually struck down sedition that’s right and that’s why the first amendment was passed to bring sedition back in. So the original constitution as interpreted originally, actually didn’t have sedition – it was the first amendment that brought it back.
Arghya Sengupta: Well, this is a complicated story because it was always intended to have it. But the judges held otherwise, and so Nehru brought it back, because he felt that we need it because of Gopala and so on.
Karan Thapar: The reason that judges thought otherwise is because the constitution gave them grounds to do so. The attack you’re making on the constitution, that it retains sedition, is actually invalidated by the fact that courts like I think it was the Punjab high court that actually struck it down, believing that the constitution did not permit it.
Arghya Sengupta: So that wasn’t the solution. It was your namesake actually, Romesh Thapar – a very famous case in the Supreme Court which actually said that the freedom of speech and restriction cannot not be limited by, and in that case it was the magazine which was called Cross Roads, and Organiser was also the RSS magazine which was also…
Karan Thapar: Perhaps out of honesty I should admit he’s my first cousin.
Arghya Sengupta: All right, should have known that there’s a connection.
Karan Thapar: But let’s come back to this: the important thing and this is again apparent in your book, is that on the one hand you call the constitutional colonial and I’m disputing that because of the enormous number of rights it confers, which no colony ever had, no empire would ever have given. But you have another, I think odd point in that. You say that on the one hand is colonial, and on the other you go to a great extent to point out how the constitutional advisor B. N. Rao had made an enormous effort to adapt aspects of western constitutions which we were taking on, because he wanted to ensure that those aspects fitted India’s reality. This is what you write, “During his extensive travels abroad, Rao realised that a postcolonial constitution like India’s could not simply replicate a western stereotype. It would have to adapt such models to suit the needs of an aspiring constitutional democracy”. Very importantly you add, “Bold, original thinking was the need of the hour to decolonise the constitution”. If what you say about Rao is right, then clearly it can’t be that the constitution that emerged is colonial.
A postal stamp of B.N. Rau. Photo: Wikimedia Commons/ India Post, Government of India
Arghya Sengupta: That’s right. I’m never doubting the intention of any of the framers, including Rao. I think the idea always was that we need a system that works for India. The question is what would work for India? Here, the idea that came to the framers as almost natural is that we need a large state that is based on the centre’s power in New Delhi, and that is what will work wonders for India. At its core, this idea that a country as large as India will be ruled with a from a powerful centre in New Delhi, with powers to ensure law and order, preventive detention and all kinds of activities that restrict rights of individuals…
Karan Thapar: Law and order actually was passed down to state levels. Preventive detention may not have been, law and order actually is a state prerogative.
Arghya Sengupta: I use law and order in terms of the normative conception of law and order, and not the legal question of who has competence to deal with the question.
Karan Thapar: You’re now coming to the second broad argument on which you base your claim that India’s constitution is colonial, the fact that the constitution created a strong central government in Delhi. This is what you write, “The Indian constitution is colonial in a more conceptual sense. It sets up a government that towers over the citizen, much like colonial governments tend to do”. But I put it to you, one, that was a reasonable response to the trauma of Partition, and as you were hinting a moment ago it was probably a very necessary response to the fact that India is a heterogeneous country, with a multiplicity of ethnicities, castes, creeds, cultures, cuisines and languages. You needed a strong centre to hold this country together. Therefore this strong centre is not a colonial influence, it’s a reflection of India’s reality.
Arghya Sengupta: That’s right. So as I say in the book, the book is an origin story – it’s a story of how we got the constitution. I certainly have some views in terms of what it should be, but that’s not what the book is about. It’s neither a celebration nor a critique of the constitution, but a fact of what the framers were thinking and to set the context straight on that. As far as the specific points that you make, of whether it is a reasonable choice, yes of course it’s a reasonable choice to make. We were, as as I said, on the 9th of December 1946…
Karan Thapar: Excuse me, I’m interrupting, but it’s not the reasonableness of the choice I’m questioning, nor you. What I’m questioning is that you call a strong central government colonial. I’m saying it’s not colonial, it’s a reflection of understanding the reality that without a strong central government, this country would have fallen apart.
Arghya Sengupta: Everything has many impulses. I think as you rightly say, that one of the key things that the framers are bothered about in 1947 – there’s Partition that’s happening is that there must not be secession of this kind, and we must ensure that there must be a strong centre to make that happen.
Karan Thapar: Also, they were bringing together a patchwork of 560 odd princely states that were not directly under British control, although they were closely allied to it. Once again, there was a great fear that if you don’t have a strong centre, these 562 states that have never been united or part of India in the government sense, would actually fracture the country.
Arghya Sengupta: That’s right, and I think we need to just unpack what we mean by a strong centre. I think that’s where much of the discussion is in the book, is the fact that at that point of time as you remember the Cabinet Mission plan had come in. The Cabinet Mission plan had said that the central government would have only three subjects – Foreign Affairs, Defense and Communications – broadly I am simplifying here. Everything else would go to the states. This was the last ditch effort.
Karan Thapar: States grouped in three.
Arghya Sengupta: Yes,states grouped in three. This was a last ditch effort to try and keep Pakistan as part of the country. But when it was realised that this was not going to happen, and it’s pretty incredible to look at those constituent assembly debates, there was an immediate reversion to the fact that India must be a strong central union government with powers; some powers devolved to the states and a federation with residuary powers that will continue to remain with the centre. There will be no village level units or local municipal units at all, as Mahatma Gandhi had been asking for for the last 20 years.
Karan Thapar: But there was another reason why people also decided after the failure of the Cabinet Mission plan that they needed a strong centre, that Jinnah actually agreed to the Cabinet Mission plan. The reason he did is because he realised this effectively, if not in name, gave him a Pakistan both in the East and the West. The federal or confederate nature of that plan would have given him the autonomy he wanted. That was another reason you have to have a strong centre, and that’s otherwise this sort of confederacy will break up our country.
Arghya Sengupta: Absolutely. Let me be upfront. The Cabinet Mission plan was completely unworkable. That is why what happened was that the idea of a weak centre and stronger states became conflated with an unworkable idea of a Cabinet Mission plan.
Karan Thapar: But are you not noticing the paradox in what you’re saying? The Cabinet Mission plan was colonial. Had we accepted the confederal nature that it imposed on the country, then you could say we went for a colonial architecture. What we opted for was the opposite of the Cabinet Mission plan. Therefore you can’t call it colonial. That was India’s own decision that we need a strong centre. It’s the colonial thing that would have been the Cabinet Mission plan.
Arghya Sengupta: Well certainly both are colonial, this is what I would say.
Karan Thapar: But look at this. Let me point out a second problem, and I’m using your phrase with your claim, that a government that ‘towers over the citizens is colonial’. After the Meiji Restoration in Japan, you had a government that towered over the citizens. In fact, the Emperor was considered God, yet Japan has had no colonial experience in its history. Indeed, it’s been a colonising country as far as Korea and parts of China are concerned. So this belief that a government that towers over its citizens is colonial, is not true. The Japanese model is not colonial, and it towers over them.
Arghya Sengupta: There are many models which as you rightly point out where the state can tower over the citizens, and every monarchy towers over their citizens, there’s no doubt about that. But the sense in which I use the word colonial is a continuation of what we had under the British.
Karan Thapar: Only in terms of outline structure, but in terms of the rights that were infused in, which makes such a huge difference, we were not colonial. Just the fact that they borrowed the structure of the 1935 Act doesn’t really mean you end up with a colonial document, because the contents of that document are not colonial at all.
Arghya Sengupta: Well, I would dispute the fact that they’re not colonial at all. On its own, simply borrowing the structure is not colonial, I’ll grant that. But when you look at the contents, and let’s look at the contents. Let’s look at a specific example: let’s look at the right to life and personal liberty. It was quite possible for the framers of the constitution to write that everyone shall have a right to life and personal liberty, full stop. It could have been done, but it was not done. Instead, what was done is that that can be restricted by procedure established by law. Even the more expansive due process of law, which would prevent the state from taking actions to restrict the life and personal liberty of citizens was not done. Now why was this done, which comes back to the unrest that was happening at that time. At that time, on the 9th of December when the constituent assembly met for the first time, Mahatma Gandhi was in Noakhali, because there were communal rights in Noakhali. So it was in their minds that they needed to do something about the law and order situation. What is it that they do? They authorise preventive detention in the constitution. Now I find this actually quite incredible, because of the fact that we’ve all heard of the Rowlatt Act.
Mohandas Karamchand Gandhi in Noakhali, 1946. Photo: Wikimedia Commons.
Karan Thapar: Let me put it like this – there’s no doubt that there is preventive detention which is part of our constitution, there’s no doubt that there are restrictions on freedom of speech that were expanded with the First Amendment. There are many other such, as I would call them imperfections in our constitution, but to conclude from those imperfections that the document is colonial is a huge stretch. That’s what I’m questioning. You’re right, there are several things over the years that judges have watered down with Supreme Court judgments thereafter, and expanded the right to life and interpreted it in multiple imaginative ways. But to conclude from the facts that there were imperfections in the original document, therefore it’s colonial is not just a huge stretch, it seems to me it’s the wrong application of the word colonial.
Arghya Sengupta: Well it reminds me of the famous saying, that everything you say in India, the opposite is also true. I think it’s the case for the constitution as well. There could equally be a book called The Anti-Colonial Constitution and that would be true as well.
Karan Thapar: You’re reaching a point where you’re half agreeing with me, and I’ve reached a point where I’m half agreeing with you. I think this is a fascinating discussion but let’s then move to three things that you say about the constitution. One of them is this – you point out that there were other documents, for example the Hindu Mahasabha was crafting a constitution of its own at roughly the same time, presumably in competition or rivalry with the one that the drafting committee was setting up. But what’s interesting, it’s either a paradox or an irony that the Hindu Mahasabha document was as colonial as the one that we ended up with. This is what you write, “The substance of the constitution of the Hindustan free state was as colonially inspired as the eventual constitution”. How do you explain that, that this document from the Hindu Mahasabha et all being colonial?
Arghya Sengupta: I think the interesting part here is that this seems like a paradox in today’s day and age, because we seem to be at a decolonial moment with the Bharatiya Janata Party (BJP) in power. But at that point of time and in the 1940s, the established wisdom particularly amongst those who are erudite lawyers who end up drafting most constitutions, irrespective of which parties drafting them, is that the cutting edge of constitutional law is the Anglo-American liberal model. The Hindu Mahasabha is no exception, because at the end of the day Savarkar is a complex person as in many senses he also wants India to be a modern state. Savarkar himself is an atheist. He does not want Hinduism to become the state religion, so he doesn’t want a constitution that is pre-modern. Who has suggested the constitution? It is Gandhi, who is his most bitter rival. So, in some sense, the Hindu Mahasabha suggests a constitution that is mainstream centrist and reasonable, because it wants to be seen as a mainstream centrist and reasonable party.
Karan Thapar: What this also suggests is that whether you were part of the Congress or the Hindu Mahasabha, or for that matter even the Muslim League, their inspiration for the constitution was in fact the values from the French Revolution onwards that had been handed down and accepted as the core principles of democracy, added to by the Americans and that wonderful echoing phrase which we borrowed from them, “We the people”. In other words, that western influence, it may not be colonial, but that western influence ran through our country.
Group photo of Hindu Mahasabha. Standing – Shankar Kistaiya, Gopal Godse, Madanlal Pahwa, Digambar Badge. Seated – Narayan Apte, Vinayak D. Savarkar, Nathuram Godse, Vishnu Karkare. Credit: Flickr
Arghya Sengupta: That’s right, and Ambedkar has a very beautiful quote, because he says that “We have come 200 years late to this party. Whatever had to happen has happened, and so there should be no shame in copying”.
Karan Thapar: Absolutely. Let’s come to some specific points you make in your book about the constitution. You say, “The Rajya Sabha remained in the constitution of India because it was tried and tested in other countries as a means of preventing democracy getting out of hand”. But look at the way the Modi government introduced electoral bonds through a finance act. Immediately you realize that you do need an institution like the Rajya Sabha to curb the tendency of powerful prime ministers like Modi misusing the numbers they have in the Lok Sabha. That’s really why you need a Rajya Sabha, which may not have been apparent when the constitution was written because no one would have believed we’d have a prime minister who would steamroll electoral bonds the wrong way. But now that it’s been done you suddenly realise you do need a Rajya Sabha, because otherwise a man like Modi, and I’m only using him as an example, can misuse his numbers in the Lok Sabha to do things that actually should not happen, in a way they shouldn’t happen.
Arghya Sengupta: The Rajya Sabha didn’t stop the electoral bonds, Karan and neither did it stop the 42nd Amendment.
Karan Thapar: Because they went through a finance act.
Arghya Sengupta: They didn’t stop the 42nd Amendment during Indira Gandhi’s time. I think the Rajya Sabha is only in theory a check on elected government. I think in concept it seems nice, it makes us feel good about ourselves but it actually doesn’t work. So if we really want to look at curbing an elected government –
Karan Thapar: No. The Rajya Sabha, often when the government of the day doesn’t have a majority, there is a check on the sort of legislation the government can bring. We know that from Modi’s experience in the last eight years – he’s often had to be careful about what he does. His attempt to pass the first labor reforms in the first year, they were checked because he couldn’t get the land acquisition through the Rajya Sabha.
Arghya Sengupta: That’s right. I think that yes, there obviously can be cases where there is a check and balance, but I actually dispute this premise. My view is that as a nation, we are only as good as the people we elect. If the people we elect are people whom we think are unfit, then we have the power of the ballot to vote them out.
Prime Minister Narendra Modi speaks in the Rajya Sabha. Photo: RSTV grab via PTI
Karan Thapar: Not that they are unfit, although that may follow; but that if you give people such huge power, they will have a tendency to abuse it. All power corrupts, absolute power corrupts. When a man or a prime minister has a number in the Lok Sabha where he can do whatever he wants, that’s when the Rajya Sabha, if he doesn’t have a majority becomes an effective check. It’s not a way of throttling democracy – it then becomes a way of ensuring there’s no abusive democracy.
Arghya Sengupta: Yeah, and I think that was very much the thinking as with the constituent assembly. As I said and I may sound like a broken record here, the fact is that I think that if a prime minister has been voted in by such a landslide majority, and if we don’t like what they are doing, then we can vote the prime minister out. I think these checks in terms of the Rajya Sabha or you know legal checks in terms of High Court striking it down can be edge cases, they are marginal cases, but I think ultimately we shouldn’t feel comfortable that there is some other institution that’s doing the job for us. It’s not.
Karan Thapar: All right, that’s a disputable point but let’s come to the second one. I’ll give you another example: you say, “Only a constitution that does not trust its legislators has to lay down an excruciating detail of what rules of procedure they must adopt”. Once again, look at the record of the Modi government. I’ll point out again that I’m only using it as an example. They’ve run rough shots over procedures right through nine years, which is why when the constitution lays down in what you call “excruciating detail”, how they must be followed. The constitution is hoping to tell people as powerful as Modi, “Look, there are ways of doing things, the means are as important as the end, the right means are necessary”. It’s only if you lay it down in that way, that a man with the power of Modi is hopefully encouraged to fulfil the procedure. Even then he violates it, but at least the constitution making an effort to tell procedure is important.
Arghya Sengupta: I just feel that this cannot happen by dictation. This is something that is a culture of compliance with law, which cannot happen because the constitution is saying in some painful detail as to how a bill is to be introduced.
Karan Thapar: But then the corollary to what you’re saying is that the culture of compliance with law doesn’t exist in the Modi government.
Arghya Sengupta: I think this is a much larger case, because I think that we shouldn’t fall into the trap of seeing this through Modi tinted glasses. I think that there is a problem with the culture of compliance of law, written law in the way in which we think of law in the country generally. I know this is a large game.
Karan Thapar: But then you’re giving a second good reason as to why the constitution spelled it out in excruciating detail. The framers must have been aware of what you’re talking about, that the culture of compliance with law doesn’t exist in India, therefore we must spread in detail the procedures that must be followed. Otherwise, because that culture of compliance doesn’t exist, people will deliberately short circuit, people will deliberately take shortcuts.
Arghya Sengupta: I think, and this may sound very counterintuitive, but the fact that there is no culture of compliance means that you cannot impose a culture of compliance by writing densely.
Karan Thapar: You can certainly try.
Arghya Sengupta: I mean that’s what they did, that was very much the effort. This is sort of maybe much more Gandhian in this way, but I would say that we have to wait for our time. This culture of compliance will grow, the sense of responsibility will grow.
Karan Thapar: But then what’s the point of the constitution?
Arghya Sengupta: The constitution serves as a framework, but as to how a bill will be introduced, some conventions will develop, so let conventions develop. What happens when you don’t have conventions developed, is that you spell out everything in detail and then nothing is left for convention.
Karan Thapar: There is a view, that in fact one of the things the constitution did was actually to create a democracy, and to create the spirit and culture of democracy that didn’t exist earlier. That’s another reason why things have to be spelled out, because the constitution was actually creating the Indian people in the mold. It wanted them to follow, rather than the opposite.
Arghya Sengupta: I dispute this view, while I agree with parts of this thesis. But the general thesis, and Madhav Khosla has written a book called The Founding Moment which you know –
Karan Thapar: That’s exactly what I’m talking about.
Arghya Sengupta: That’s the thesis. I think it is something that I would like to dispute, that the constitution created the Indian people. The constitution created the Indian people only in a legal sense.
Karan Thapar: I think what he meant is the constitution created the Indian people in a democratic sense. The cultural compliance that you say didn’t exist, the constitution sought to try and create.
Arghya Sengupta: No. I think that the culture of democracy in India starts with our freedom movement, and not the constitution. It starts with protesting against colonial rule and not the constitution. This is what I find quite interesting, and I write it in my book as well, that the culmination of the freedom movement and the Constitution are happening contemporaneously, but it seems like they’re happening in two different worlds. The freedom movement is all about non-violence and satyagraha; the words ‘non-violence’ and ‘satyagraha’ don’t find any mention in the constitution.
Karan Thapar: I think in your introduction or prologue you explicitly say the word ‘non-violence’ doesn’t exist in the constitution at all, and yet that was the central mantra of the freedom movement. Why does the absence of the word ‘non-violence’ make the constitution colonial, and how would that world have fitted in?
Arghya Sengupta: You’re right, it’s not really the absence of the word because that would be a very simplistic claim to make, but it’s almost as if the spirit of the freedom movement had evaporated by the time the framers of the constitution came into the constituent assembly. Shankarrao Deo-
Karan Thapar: The spirit of the freedom movement wasn’t simply encapsulated with the word ‘non-violence’. The spirit of the freedom movement was also to create a modern, free, independent state that would allow Indian people to fulfill their potential that would give them the freedoms and the rights they didn’t have, that would give them a democratic structure which they didn’t have. All of that was fulfilled in the constitution.
Arghya Sengupta: In the broader sense, the constitution had one thing going for it – which was exactly echoing what the freedom movement did, the spirit of tolerance and consensus. Yes, it was a constitution that came about through great consensus, which is what the freedom movement was aspiring to do. But, the text of the constitution did not echo that vision.
Karan Thapar: Let me raise one third point that you make, and I’ll be honest with you, I find this particularly bizarre. Right at the end of your book, you argue that the treatment of daily wage workers during the lockdown when they were having to walk hundreds if not thousands of miles back to their villages, is somehow proof that the constitution is colonial. You write, “The indignity of being made to squat in public and then forcibly made to bathe in disinfectant, captured in one image the reality of the colonial constitution. It had shown its true colours in Bareilly in 2020”. That’s simply not true. What happened in barely in 2020, was a breach of the constitution – it was disregard of the constitution, it was defiance of the constitution by a high-handed Yogi Adityanath government with a brute majority in the assembly. It wasn’t a result of the constitution, it was undermining the constitution.
Arghya Sengupta: I think that’s a simplistic reading Karan, because my sense is that the state towered above the citizens. The reason I picked that example is because it was very graphic, and we’ve all seen that. When there are 50 labourers sitting on their haunches and then there’s an officer who’s spraying them with chemical disinfectant, I felt ashamed as an Indian on that day when I saw that photo. The reason as to why we are in this situation, and I say this with great humility, is that the constitution didn’t do enough, which is why our governments can behave like this.
The infamous incident from March 30, 2020, when healthcare workers, in protective suits, used a hosepipe to spray disinfectant on migrant workers before allowing them to enter the town of Bareilly. Photo: PTI
Karan Thapar: Had this matter been taken to court, it would have been struck down immediately and the judges would have condemned the government for doing it.
Arghya Sengupta: On what ground?
Karan Thapar: On the grounds that you are treating people as if they are slaves and animals, breaching their rights of freedom, equality and liberty. All of those would have stood up in court.
Arghya Sengupta: Yes but this matter was taken to court. The last I know, there has been no judgment on this issue.
Karan Thapar: Let me tell you something. That is not a reflection of the constitution, that is the reflection of the judges interpreting the constitution and the alacrity and diligence with which they do the work. I mean, you can have a great constitution which is not colonial, but judges who failed to act, who deliberately kicked the ball down the road, who come up with perverse judgments, that’s not a reflection of the constitution – that’s a reflection on them.
Arghya Sengupta: Absolutely. I don’t want to give any judge who is not doing their duty or a government which has behaved in this manner, a free pass. Of course they are to blame and there’s no doubt about that. But I think in India we’ve got this very convenient expression, that ‘We have enough laws which are good, but they are not implemented’. I think it’s time to think about the laws as well – why is it that we are in a situation where governments and judges can do this and get away with it?
Karan Thapar: Which law would have permitted governments to bathe people having made them squat on the road with disinfectant?
Arghya Sengupta: I think that this is exactly the kind of large moral question which a constitution is meant to understand.
Karan Thapar: No constitutional framework, whether in 2023 or 1949 would have asked themselves the question ‘How do I cater for a situation where a man like Yogi Adityanath will make people squat on the road and bathe them with disinfectant?’ That’s not something constitution makers didn’t think about.
Arghya Sengupta: They wouldn’t be able to think of the example, but they can certainly think about the right to life with dignity being completely untrammelled. I think this is something that that can be thought about by a constitutional framer, and I remember what Chief Justice John…
Karan Thapar: You’re saying the absence of the right to life completely untrammelled means the constitution becomes colonial? That’s a huge jump.
Arghya Sengupta: That’s a bit reductionist. I wouldn’t say that, but the constitution gives the state huge powers, and every government knows that and that is what they use. If I could give you one statistic, because I found this quite incredible, some of my colleagues at Vidhi Center have come up with this – in 2021, 58 lakh people were arrested in India. These are people who are arrested by following the procedures of the IPC. The number of people who have been detained, that is without a legal process, is 86.6 lakhs. There are 87 lakh people who have been detained, which is essentially a policeman going, picking somebody up and putting them in lock up for a day or two, because they don’t want them to breach law and order or because they just don’t like the look of their face. Now, this is the country that we live in. It will not happen, in all likelihood, to people sitting in Lutyens Delhi, it will not happen to people sitting in South Bombay, but it is going to happen to people who aren’t that fortunate – and that is the state we are in today.
Karan Thapar: But to jump from that, and it’s a despicable situation you describe. By no means would I justify what’s happening. But to jump from that to the conclusion that the constitution is colonial is like saying that what happened in America in the 50s against communists, which was illegal and wrong, means that the American constitution is colonial.
Arghya Sengupta:No, I think that we have to look at who is responsible, and responsibility goes all the way. While certainly for something of this nature, the responsibility starts with the police officer who is not doing their duty, and goes right up to a framer of the constitution who is unable to think of what India would be like 100 years later. Because as I was saying, since you gave the American example, Chief Justice John Marshall of the United States had a very good quote, which is that “When we are interpreting the constitution, we must always remember it is the constitution we are expounding”. It is something that is for all times to come, and not an immediate expedient for today.
Karan Thapar: Let me put it like this: your argument reminds me of the following, which I don’t think most people agree with – Trump’s failure to prevent what happened on January the 6th 2021 doesn’t mean that the constitution of America endorsed it and permitted it to happen. Similarly, the failure of a judge to act, the failure of a police officer to go down to the bottom, or the prime minister to go to the top to act, doesn’t mean the constitution is to blame. Those individuals are to blame. Just as Trump is to blame and not the American constitution, Modi or the policemen or judges are to blame, not the constitution.
Arghya Sengupta: I mean blame is a strong word but as I said…
Karan Thapar: Responsible, then.
Arghya Sengupta: As I say, that it is a time for some introspection. We can’t simply say and I think it makes us feel comfortable to say that “Oh that policeman is not doing their duty”. Yes, that policeman isn’t doing their duty, but I think we have to ask that question – why is he or she not doing her duty? I think that goes up all the way, as in right through all chief ministers and prime ministers, right up the way all the way to what is the governing mechanism in India. I think it’s certainly food for thought to see as to can the constitution do something about this?
Karan Thapar: Didn’t Ambedkar have something to say about this? No matter how bad a constitution, if good people implement it, it will be good. He said the opposite – no matter how good a constitution, if bad people implement it, it will be bad. We have a situation in India where progressively bad to worse people are implementing it at all levels, which is why people begin to raise questions about the constitution. Which is why your conclusion is colonial, and I’m saying to you it’s not colonial, but yes bad people going to worse are implementing it.
Arghya Sengupta: That’s right. I think, because you gave the American example, the American constitution is based on the idea that people will be bad. I think every constitutional framework, unless they are overly optimistic, will know that the people who implement the constitution will do it for their own selfish devices.
Karan Thapar: You’re saying the framers of the Indian constitution didn’t realise how terrible the Indian people would turn out to be?
Arghya Sengupta: No, and I think that this is something I must say with all humility, that this is what was expected. The only person who knew that this would happen but cast it positively, was Gandhi – because Gandhi said that what we actually need is not so much a legal text. He said, ‘A son cannot follow their father as a matter of policy, or a matter of law’. What it needs is moral regeneration. I think that he was onto something, that what we need is essentially ensuring greater civic sense.
M.K. Gandhi. Photo: Dutch National Archives
Karan Thapar: For the sake of the audience I’ll point out something. You’re arguing now that the Indian constitution framers didn’t realize just how, to use my words, terrible Indian people would turn out to be. But there is one thing you agreed on earlier, that they were aware that the culture of compliance with the law doesn’t exist, which is one explanation for why they laid down procedures in such excruciating detail. So they were aware to some extent, of the imperfections if I can call it, of the Indian people, but not that they could turn out to be in some ways terrible and horrible?
Arghya Sengupta: Absolutely. I think that people are self-seeking, and I think we should put it that way. We should be very clear that people have self-seeking interests, and people have multiple contradictions that go on. But I think with the framers, firstly I think they underestimated particularly politicians down the line, starting from Nehru right up to the current Prime Minister Modi, that politicians will look at political compulsions. It’s not as if the constitution will be like a holy book that they will follow as a matter of gospel truth, number one. Number two is that if you are faced with such imperfection, what direction do you go in? They chose to go in the direction of checks and balances and the United States Constitution, which was accepted at the time. Gandhi chose the direction of trying to make the people be the best version of themselves. There’s something there.
Karan Thapar: This is very interesting. Now our conversation has drifted very far from where it began. We began by disputing or arguing over whether the term ‘colonial’ is the right description for our constitution. Now what you’re saying, and these imperfections and lapses are not to do with the fact the constitution is colonial, they are to do with the fact that the constitutional framers did not understand how horrible, and I’m using that word deliberately, or imperfect or how how disappointing the Indian people could turn out to be. These problems that we’re discussing are not to do with the colonial inspiration of the constitution, they have to do with the fact that our framers didn’t realise that the Indian people are not necessarily going to be observers of law – they won’t follow procedure, they will look for shortcuts, that is what they didn’t cater to.
Arghya Sengupta: At the time, it was a time of newfound optimism, it was 1947.
Karan Thapar: They overvalued the goodness of the Indian people, without realising that we’re as bad as anyone else.
Arghya Sengupta: I think that I would put it a little bit differently. I think they were more optimistic, and there was a touching optimism about the Indian people. I think the Indian people can be good in parts, and can be bad in parts.
Karan Thapar: Like a curate’s egg.
Arghya Sengupta: We needed to account for the whole.
Karan Thapar: But now we’ve moved a long, long way away from the argument over whether this is as a result of the constitution being colonial.
Arghya Sengupta: No, but the constitution was framed with the idea that the people would be a certain way.
Karan Thapar: But that’s not a colonial thing.
Arghya Sengupta: I mean that’s because of the starting point that they had.
Karan Thapar: That’s a dewy-eyed view of the Indian people, needlessly good and kind and generous to them, whereas they shouldn’t have been. But let me end with what I think is very interesting, and this is literally my last question. Despite your criticism of the constitution, you are not calling for a new constitution. You write, “This is not a call to draft a new constitution today. We live in polarised times, and any constitution that emerges after such a time is unlikely to be long lasting”. So you would fundamentally disagree with the Chairman of the Prime Minister’s Economic Advisory Council, Bibek Debroy, who recently wrote an article in Mint calling for a new constitution.
Arghya Sengupta: If the question is one of timing, I don’t think this is a time to write a new constitution. It’s not at all, because if we have some ideas that we think will serve India better then we need consensus on those ideas.
Karan Thapar: And that’s missing?
Arghya Sengupta: Consensus is completely missing from the political spectrum today, and that’s number one. But that doesn’t mean that we have these banal homilies towards the constitution, that it’s working beautifully for us, it’s only the people that’s the problem. I think that India does need, as I’ve said in the book, to discuss new constitutional ideas. There are simplistic ways in which one needs to discuss it. There is a export duty waiver for West Bengal, Bihar and Orissa for export of jute; those things need to go. There are some parts of the constitution that simply are not needed, and there are other parts of the constitution like preventive detention, like the heavy centralisation which I think with the wisdom of 75 years needs to be rethought.
Karan Thapar: It sounds to me like what you’re saying is that there are things in the constitution that need to be corrected, others that need to be improved, and some that need to be amended. That is different from saying we need a new constitution.
Arghya Sengupta: The question of a new constitution is always a political one, it’s not really a question that is a legal question. Now whether it is a new constitution, whether it is a constitutional amendment, what form it takes I don’t know. But I do think that we need to discuss new constitutional ideas. Do we want a new constitution overnight? Absolutely not.
Karan Thapar: We always need to discuss new constitutional ideas. We always need to discuss ways in which we expand the freedoms and rights that we have, and we always need to discuss how we ensure that those who are charged with defending them and implementing them become better at it, and don’t actually abuse them at the cost of the rights of the citizens. I agree with you then.
Experts and activists have raised concerns about the continued criminalisation of consensual sexual relations between teenagers. The commission’s report is ineffective in answering the issues it was meant to address, they say.
New Delhi: The Law Commission of India has recommended to the Union government that the existing age of consent, which is 18, should not be tinkered with under the Protection of Children from Sexual Offences Act (POCSO), 2012 citing the dangers of child abuse, trafficking and prostitution.
“After a careful review of existing child protection laws, various judgments and considering the maladies of child abuse, child trafficking and child prostitution that plague our society, the Commission is of the measured view that it is not advisable to tinker with the existing age of consent under the POCSO Act,” said the report.
The 283rd report of the law commission headed by Justice Ritu Raj Awasthi titled “Age of Consent under the Protection of Children from Sexual Offences Act, 2012” was released on Friday and has been submitted to the Union minister for law and justice Arjun Ram Meghwal.
The report has also recommended to the law ministry that certain amendments need to be brought in the POCSO Act and introduce judicial discretion “to remedy the situation in cases wherein there is tacit approval in fact though not consent in law on part of the child aged between 16 to 18 years.”
“This is so because in our considered opinion, such cases do not merit to be dealt with the same severity as the cases that were ideally imagined to fall under the POCSO Act. The Commission, therefore, deems it fit to introduce guided judicial discretion in the matter of sentencing in such cases. This will ensure that the law is balanced, thus safeguarding the best interests of the child,” it said.
The commission said it had received a reference from the Karnataka high court (Dharwad bench) to look at the age criteria for consent, taking into consideration the rising number of cases relating to minor girls above the age of 16 years falling in love, eloping and having sexual intercourse, and subsequently attracting the provisions of the POCSO and/or the Indian Penal Code, 1860.
It was also asked by the Madhya Pradesh high court (Gwalior bench) to look into how the enforcement of the POCSO Act, in its present form, causes “gross injustice in cases of statutory rape where de facto consent is present from the girl child or where such a relationship has subsequently resulted in a marriage, with or without children.”
In December last year, the Chief Justice of India D.Y. Chandrachud said that parliament must address concerns regarding the age of consent under the POCSO Act, which criminalises consensual sexual activities for those under the age of 18.
Later that month, in a reply in the Rajya Sabha, Union minister for women and child development Smriti Irani said that the government is not considering any proposal to reduce the age of consent from 18 to 16 years.
The law commission report was prepared after looking at available judgments, and consultations with the National Commission for Protection of Child Rights (NCPCR), former judges, lawyers, child rights activists, NGOs and academicians, responses from all the high courts and data from National Crime Records Bureau (NCRB).
Illustration: The Wire
Why commission said age of consent cannot be reduced
In arguing against the automatic decriminalisation of consensual sexual acts by persons above 16 years, the commission said that consent can always be manufactured. It also said that if the police or investigating agencies are to determine whether there was consent or not, a lot of genuine cases under POCSO may not see trial on account of the agencies declaring them to be cases of consensual romantic sexual relationship.
“Moreover, it cannot be ignored that reducing the age of consent will have a direct and negative bearing on the fight against child marriage and child trafficking, the battles against which have been hard-fought and are still ongoing,” it said.
Arguing against carving out a limited exception for sexual relations with a child above 16 years, the commission said that the proposed solution is prone to misuse as the consent of a child is no consent and reading the same would be “deeply problematic.”
“All children deserve the protection of the special law enacted for this very purpose and diluting the age of consent will deprive a significant portion of the child population, especially young girls aged 16 to 18 years, of the protection and expose them to unchecked exploitation. The increasing incidents of grooming and cyber-crimes such as sextortion are classic examples of how children in this vulnerable age group can be trapped and exploited,” it said.
Highlighting a submission from Vikram Srivastava of Independent Thought, the commission said that in Assam some parents arrange marriages between minors or a minor and an adult by signing notarised agreements stating that the minors or the minor and the adult have fallen in love.
“Thus, any reduction in the age of consent will inevitably provide a safe harbour provision to coerce minor girls into subjugation, marital rape and other forms of abuse, including trafficking,” the report said.
Stating that while the age of consent and age of marriage should not be conflated in theory, in practice, given the country’s social milieu, the two are intrinsically linked.
“In many cases before the High Courts, one of the grounds for allowing bail or quashing the proceedings is that the victim and accused have got married and, in a number of cases, have a child as well. Thus, marriage and age of consent cannot be considered mutually exclusive,” it said.
The commission also said that if the age of consent and age of marriage are to be disassociated, then “consent can always be pleaded to exist where the accused marries the victim, even if the said ‘consent’ arises after the occurrence of the alleged offence.”
“Thus, introducing the element of consent can provide an opportunity for child-abusers to escape the rigours of law and enjoy impunity by using loopholes,” it said.
The commission also highlighted an unpublished report of the Satyarthi Global Policy Institute for Children, Kailash Satyarthi Children’s Foundation (2022) on the prevalence and nature of child sexual abuse in India to state that victims themselves identify friends and boyfriend/girlfriend as the most common perpetrators of sexual abuse.
“The very real possibility of young girls being easily seduced in love traps and then sold off in trafficking cannot and should not be ignored. Any element of consent can be misused and may lead to children being at the mercy of adult abusers, thereby enabling prostitution and exploitation of children.”
Judicial discretion in sentencing strikes ‘delicate balance’
The commission said that the solution of introducing judicial discretion in sentencing seems to strike a “delicate balance” and protects children from sexual exploitation.
“There cannot be any automatic decriminalisation of sexual acts with a person between the age of 1 6 to 18 years and carving out a limited judicial discretion at the stage of sentencing is a more reasonable approach,” it said.
Putting the onus on the courts, the commission said that only a “judicially trained mind aided by experts will be able to appropriately determine whether the consent in fact of the child in question was indeed free from any coercion, deception, fraud or undue influence.”
The commission has accordingly recommended that such judicial discretion in reducing the minimum sentencing under the POCSO Act can be introduced if the age difference between the victim child and the accused is less than three years and when tacit approval is established.
It has also recommended that discretion be used if the accused has no criminal antecedents, bears good conduct after the offence, there is no element of undue force, coercion, or any element indicating child trafficking; and the child was not used for any pornographic purposes, among others.
‘Why is trafficking coming to muddy the waters of consent under POCSO?’
Vidya Reddy, the executive director of Tulir – Centre for the Prevention & Healing of Child Sexual Abuse, who was consulted by the commission while preparing the report, said that the link between trafficking and not reducing the age of consent is not explained.
“Trafficking is being cited as one of the major reasons why they are not reducing the age (of consent). Even if that is the case, there should be evidence backed by scientific rigour to back that supposition. I would like to understand where is the evidence to show that there is a link between trafficking and being tricked to get married. In addition, POCSO is to deal with sexual offences. Even during the drafting of POCSO, the issue of trafficking came up and we decided that the IPC sections strongly deal with trafficking, whether it is an adult or a child because there is no question of consent in trafficking. So why is trafficking suddenly coming to muddy the waters of consent in POCSO?” she said to The Wire.
Bharti Ali, co-founder and executive director of HAQ: Centre for Child Rights, said that exceptions could have been created for cases of trafficking.
“Nobody is saying that trafficking should not be dealt with strictly. You could make those exceptions for cases of trafficking. Child trafficking is not only for prostitution. We have the IPC (Indian Penal Code) which recognises that children are trafficked for labour, slavery-like situations, adoption and myriad other purposes. We cannot blanketly say that all trafficking is for prostitution. Anyway, trafficking laws are very clear that there is no question of consent,” she said to The Wire.
Ali said that the age of sexual consent cannot be equated with the age of marriage in any way.
“We had very clearly mentioned this in our submissions. It is also a way of controlling the sexuality of women and adolescent boys and girls. The whole approach is very protectionist and it is not about the safety of children.”
Representative image. Photo: Unsplash
‘Report ineffective’
Amit Anand Tiwari, advocate in the Supreme Court and the additional advocate general for Tamil Nadu, said that the commission has been “ineffective in answering the question it was supposed to address.”
“The report has been ineffective in resolving the issue posed before the commission, i.e., genuine cases of the offender and the victim, both of a young and impressionable age, being in a consensual relationship. While being of the opinion that introducing the exception of consent would result in the same being misused and would negate the entire objective of the (POCSO) Act, the Commission has not taken into account the fact that the burden of proving such consent would have been on the accused, who would plead the same under Section 105 of the Indian Evidence Act, 1872,” he said.
“The sentencing exception has been created without any guidelines. It does not provide for any quantum of sentence, and the same has been left entirely to the discretion of the judge, who, despite the presence of exceptional circumstances, may award the maximum sentence. Further, the Commission has overlooked the provisions of the Probation of Offenders Act, 1958,” Tiwari told The Wire.
He added that the Commission has failed to notice that merely providing discretion in awarding sentences will still retain the stigmatic effect of conviction for an offence relating to moral turpitude, which will be treated as a very severe stigma throughout the life of the person convicted.
Bharat Chugh, Supreme Court advocate and former civil judge, said that while the recommendations are well-intentioned, they don’t go far enough.
“Certain cases of sexual experimentation between young people (with no indication of abuse of power or dominant position) should have been decriminalised,” he said to The Wire.
“In India, the process is more often than not, the punishment. Such criminal prosecutions (even if they don’t lead to jail but detention in the juvenile observation homes only) are punishment enough – by themselves. The power of the court to deal with such young accused with leniency is good and much better than the current system, but [the recommendation] doesn’t go far enough.”
He added that in cases where the accused is just above 18 years old (and the victim girl just below 18), the offence, which is currently non-bailable, should have been made bailable in the absence of any proof of abuse of dominant position and involvement of older accused.
“As a result of this, imagine a situation where a girl is 17 and the boy is 18 years 2 months. If an FIR is registered, the boy is almost always arrested and has to seek bail. This also needs to be dealt with.”
Ali said that the criminalisation ultimately defeats the purpose of protecting children.
“We understand that every child under the age of 18 needs to be protected, but you need to recognise the agency of children above 16. Ultimately, the goal is to protect children but in the process, if you are criminalising them, it defeats the purpose,” she said.
However, an official statement on this matter has not been released yet.
New Delhi: Prasar Bharati said on October 1 (Sunday) that it does not make copyright claims on public service content, including parliamentary proceedings. This statement came in response to allegations that it had sent copyright infringement notices to YouTubers regarding parliamentary proceedings.
Gurdeep Singh Sappal, a former chief executive officer/editor of the Rajya Sabha TV, raised the issue and argued that parliamentary proceedings are national assets of historical value and should be freely accessible, not subject to copyright.
“Prasar Bharti has sent notices to YouTubers invoking copyright on it. This is wrong. Parliamentary proceedings are national assets of historical value. They are not a commercial product that can be used for profiteering under the garb of copyright. In fact, any attempt to limit the access to parliamentary proceedings amounts to censorship and is an infringement of the rights of citizens (to) be informed of the happenings in the Parliament,” said Sappal.
“Any part of parliamentary debate can only be restricted from public access by a specific order of the Chair only, using the powers vested in them to expunge parts of proceedings. When I had started RSTV, this issue was deliberated upon by the Content Advisory Committee of the Rajya Sabha. It was the unanimous decision that parliamentary proceedings have to be provided to anyone free of cost, to be used freely,” he said.
However, Prasar Bharati officials emphasised that they had never issued such copyright notices, and their public service-related content is copyright-free.
The officials toldThe Hindu that sometimes copyright violation notices might be automatically generated due to platform algorithms, but they encourage affected individuals to contest such notices to resolve the issue promptly.
But an official statement on this matter has not been released yet.
Following the report, Sappal posted on X (formerly Twitter): “This statement attributed to Prasar Bharti officials would have been a welcome one, if only it were an official statement.”
“If the intent of Prasar Bharti is indeed not to claim copyright over the usage of Parliamentary proceedings, then it must issue an official statement clarifying it. Such a statement can then be used by social media content creators for their official reply to the notices.”
This statement attributed to Prasar Bharti officials would have been a welcome one, if only it were an official statement.
If the intent of Prasar Bharti is indeed not to claim copyright over the usage of Parliamentary proceedings, then it must issue an official statement… https://t.co/tuz2sGYxvspic.twitter.com/bU3xgYPHFX
The Old Pension Scheme is likely to be a major poll issue ahead of the 2024 Lok Sabha polls.
New Delhi: Thousands of government employees gathered at the Ram Lila Maidan of the national capital to protest the union government’s National Pension Scheme and demand full restoration of the old pension scheme on Sunday (October 1). The protestors comprised Central and state government employees, as well as those of the public sector units of over 20 states. Termed the “Pension Shanknaad Rally”, the protest was organised by the National Movement for Old Pension Scheme (NMOPS), as association steering the campaign for restoration of the OPS.
Speaking to the PTI, NMOPS leader Vijay Kumar Bandhu said, “We are spreading the message for OPS restoration in every corner of the country. The old pension has been restored in four or five states through our efforts and struggle. Our team believes that if the central government ratifies the old pension scheme, then the onus won’t be on the state government.”
“The employees who joined government service after January 1, 2004, are strongly opposing the New Pension Scheme. The employees are worried about their future after retirement because they are being forced into the NPS and deprived of the OPS,” Shiv Gopal Mishra, national convener and general secretary of All India Railway Men’s Federation, told Manorama News.
Ever since the NPS was introduced by the Union government, government employees have been protesting against it. While OPS factored in inflation and pension payouts based on pay commission indices without any contribution from the employee, the NPS is decided by the contribution of both the employee and the employer and the returns are market-based instead of a fixed sum based on the salary at the time of the retirement.
The Union government argued that the NPS will put much lesser burden on the government exchequer than the OPS, and the probability of higher returns is high. However, a majority of government employees opposed the linking of pensions with the market and saw the move as a further depletion in employee’s social security.
The matter has become a bone of contention between the BJP-led Union government and opposition forces. Many opposition-ruled states like Himachal Pradesh, Chhattisgarh, Rajasthan, Jharkhand and Punjab have already scrapped the NPS in favour of OPS. In fact, the Congress’s victory in Himachal Pradesh was largely credited to the grand-old party’s poll promise of implementing OPS.
On Sunday, several opposition leaders joined the protest to support government employees.
Former Haryana chief minister and senior Congress leader Bhupinder Singh Hooda declared his support for OPS at the site. “We fully supported the legitimate demand of the employee organisations associated with NMOPS. As soon as the Congress government is formed in Haryana, we will immediately fulfill this demand of the employees for the old pension scheme,” he said.
Among the opposition leaders who also participated in the event were Congress leaders Arvinder Singh Lovely, Sandeep Dixit and Udit Raj, Bahujan Samaj Party leader Shyam Singh Yadav, and farmers’ leader Rakesh Tikait.
Supporting the OPS, the Congress posted on X, “Old pension is the right of the employees. Congress state governments have restored the old pension. Our policy regarding this is clear – employees must get their rights.”
पुरानी पेंशन कर्मचारियों का अधिकार है। कांग्रेस की राज्य सरकारों ने पुरानी पेंशन बहाल की है।
इसे लेकर हमारी नीति साफ है- कर्मचारियों को उनका हक मिलना ही चाहिए।
मोदी सरकार पुरानी पेंशन बहाल करे, देश की सेवा करने वाले कर्मवीरों का सम्मान करे। pic.twitter.com/wkcseIbKFq
Aam Aadmi Party leader Sanjay Singh, too, supported the protest and said that by holding the agitation in Delhi, the employees have sent a direct message to the Modi government to correct its course.
देश के कर्मचारियों ने पुरानी पेंशन बहाली को लेकर मोदी सरकार के ख़िलाफ़ मोर्चा खोला।
40 दिन विधायक सांसद रहने वाले को पूरी ज़िंदगी पेंशन।
तो 40 साल काम करने वाले कर्मचारी को पेंशन क्यों नही?@ArvindKejriwal का नारा है “जहाँ AAP का शासन वहाँ पुरानी पेंशन” pic.twitter.com/kVoQ2xHaMI
Similarly, AAP chief Arvind Kejriwal also said on X that the Bhagwant Mann-led AAP government in Punjab has already implemented the OPS.
We strongly support the demand of govt employees to bring back OPS. NPS is an injustice against employees. We have implemented OPS in Punjab and have written to Centre for implementing it for Del govt employees. Some other non-BJP govts have also implemented OPS. https://t.co/L5MTzPlZ83
Last month, Samajwadi Party legislators had walked out of the Uttar Pradesh assembly after the Adityanath government refused to accept their plea to entertain any demand in favour of the OPS. Similar such protests have been held by both employee unions and opposition parties across the country, and it is likely to be a major poll issue ahead of the 2024 Lok Sabha polls.
Anyone practicing untouchability or discriminating others on the grounds of caste cannot be a Sanatani Hindu, in the eyes of Gandhi.
In February 1921, M.K. Gandhi wrote a piece for his Gujarati weekly Navajivan with the title, “Sanatani Hindu Etale?”, which literary translates as “Who is a Sanatani Hindu?”
Why did Gandhi feel a need to write on the topic of a Sanatani Hindu? One of the reasons, as he mentioned in the very beginning of his article, was being asked why he call himself an orthodox Sanatani Hindu and why he regarded himself as a Vaishnava.
Another possible reason, which he did not explicitly mention, was the constant criticism he faced by factions of the orthodox Hindus and the periodical Gujarati isince the time of the first Antyaj (untouchable) conference at Godhra in 1917. Gandhi had not only gone to the Mahar compound and eaten with the so-called ‘untouchables’, but started a movement against untouchability. These developments brought unease among orthodox Hindus.
When the periodical Gujarati criticised Gandhi’s speeches at the Antyaj Conference, he wrote them a letter titled “A stain on India’s forehead”. He wrote, “It is because of it (untouchability) that, now for two thousand years, Hinduism has been burdened with a load of sin in the name of religion. I call such orthodoxy hypocrisy. You will have to free yourself of this hypocrisy.” In the letter, he criticised quoting verses from the Manusmriti and other scriptures in defence of this orthodoxy. He further added, “A number of verses in these scriptures are apocryphal; a number of them are quite meaningless.”
In November 1920, Gandhi had a talk with a Vaishnava religious leader in Bombay. An account of this talk with a commentary on it had appeared in the periodical Gujarati. Gandhi responded to this in the December issue of Navajivan, “I cannot stand hypocrisy and sophistry. I saw in Gujarati an account of a talk I had with Maharajshri, as also the comments on it. I have been very much pained by both… I see in both an attempt, deliberate or otherwise, to prove adharma to be dharma. I shall explain next time what this is.”
Exactly 20 days after the publication of this issue, on December 25, 1920, Gandhi was speaking at the Antyaj conference held along with the annual session of the Indian National Congress at Nagpur.
Gandhi reiterated, “The practice of untouchability is a sin and should be eradicated. I look upon it as my duty to eradicate this sin…The practice of untouchability is an excrescence on Hinduism. I believe that the practice of untouchability is a great Satanism in Hinduism.”
He added, “I am a Hindu myself and I claim to be an orthodox one. It is my further claim that I am a sanatani Hindu. At present I am engaged in a great dispute with the Hindus in Gujarat. They, especially the Vaishnavas, reject my claim to be called a sanatani Hindu, but I cling to it and assert that I am one…I have said to the Hindus, and say it again today, that till Hindu society is purged of this sin(untouchability), swaraj is an impossibility…While the practice remains in Hindu society, I feel ashamed and feel unhappy even to call myself a Hindu.” Gandhi was referring to the dispute mentioned in the above paragraphs.
Gandhi was speaking in Nagpur and the Hindu nationalist organisation RSS had yet to be born in 1925. Nathuram Godse was ten years old.
This time around, Gandhi wrote and published “Who is a Sanatani Hindu?”. In this article, Gandhi called the practice of untouchability adharma. He wrote, “To make any persons crawl on their stomach, to segregate them, to drive them to live on the outskirts of the village, not to be concerned whether they live or die, to give them food left over by others—all this certainly cannot be religion..—this is not Hinduism. This is Dyerism.”
Anyone practicing untouchability or discriminating others on the grounds of caste cannot be a Sanatani Hindu, in the eyes of Gandhi. It is interesting to note that no Dalit or member of a backward class has ever become the RSS sarasanghachalak (chief) since its inception in 1925.
In the article Gandhi wrote, “I believe that the most important outward form of Hinduism is cow-protection.” In the May issue of Young India he wrote, “I would not kill a human being for protection of a cow, as I will not kill a cow for saving a human life, be it ever so precious.”
Gandhi’s cow-protection had deep interpretations. He often wrote on cow protection in later issues of Young India, “Rishis declared that cow protection was the supreme duty of a Hindu and it brought one Moksha (Salvation). Now I am not ready to believe that by merely protecting the animal cow, one can attain moksha. For moksha one must completely get rid of one’s lower feelings like attachment, hatred, anger, jealousy, etc…cow protection…from its very nature include the protection of everything that feels.”
The message was clear, cow vigilantes involved in lynching-killing can be anything but sanatani Hindu.
In the same article, Gandhi explained his understanding of the scriptures. “I cannot claim to have fully read even a single Veda. Nevertheless, I have understood the shastras from the point of view of dharma. I have grasped their real meaning. I know that one can attain moksha without reading the Vedas.”
Almost 15 years later, in a 1936 issue of the Harijan, Gandhi wrote, “I exercise my judgement about every scripture, including the Bhagavadgita. I can not let a scriptural text supersede my reason.”
In another issue of Harijan the same year, an interesting conversation between C.F. Andrews and Gandhi got published. “Whether you are going to accept the position of mutual toleration or of equality of religions. My position is that all the great religions are fundamentally equal. We must have innate respect for other religions as we have for our own. Mind you, not mutual toleration, but equal respect,” Gandhi said.
On the evening of January 30, 1948, Gandhi, 78-year-old man, frail due to fasting, was on his way to a prayer meeting when a fanatic Hindu, Nathuram Godse, fired three rounds of bullets at him. “Hey Ram” were the last words from Gandhi.
It was an outcome of Sanatani Hindu Gandhi’s charisma that Periyar, the father of the Dravidian movement and once a fierce critic of Gandhi’s, passed on a few recommendations to the All India Congress Committee after Gandhi’s death. One of them was the name of India can be changed as Gandhi Desam or Gandhistan.
Mehul Devkala is a poet and an award-winning filmmaker. His short film Kaun Se Bapu is based on Mahatma Gandhi.
The trend of declining employee count, restricted branch expansion, and an increase in business per employee is an indicator that the government is preparing some of the PSBs for privatisation, said an expert.
New Delhi: While employee workload has increased in public sector banks (PSBs), recruitment has been inadequate, despite a decline in the number of branch counts.
Due to massive consolidation in the 2017–2022 period, branch counts of PSBs declined by 7,189. In contrast, private sector banks’ (PvSBs) branch count went up by 13,211 in the five years up to March-end 2022, the Hindu BusinessLinereported.
However, as mentioned earlier, recruitment has been inadequate in PSBs, but employee workload has increased, C.H. Venkatachalam, general secretary, All India Bank Employees’ Association (AIBEA), told the business daily. He also added that the number of bank customers have been increasing manifold in PSBs.
The trend of declining employee count, restricted branch expansion, and an increase in business per employee is an indicator that the government is preparing some of the PSBs for privatisation, S. Nagarajan, general secretary, All India Bank Officers’ Association, told the newspaper.
Separately, PvSBs generated more employment than PSBs over the last decade or so.
In FY23 alone, PvSBs added a net of 98,518 jobs, while PSBs head count declined by 3,385, the newspaper reported, citing Reserve Bank of India data.
However, the average business per employee was higher in PSBs at Rs 23.80 crore, as compared to that of PvSBs at Rs 15.02 crore, per data compiled by the Indian Banks’ Association.
