The Hindu Editorial Analysis | 27th Jan’20

Table of Contents

Black and grey

FATF gave Pakistan some encouraging news
FATF is a global watchdog on terror financing + money laundering.
A final decision will be taken at a plenary meeting of the body, expected in Paris next month.
1. in keeping Pakistan on the current “grey list”, downgrading it to a “black list”, or letting it off altogether for the moment
2018: Pak was placed in GREY LIST and handed over 27-point list of actions.
Pakistan’s progress will come as a disappointment to India

Pakistan was placed on it in 2012, and was removed in 2015 after it passed a National Action Plan.
2008-2012: Mumbai attack.
FATF: geopolitics and bilateral deals play a part in deciding outcomes.
Pakistan’s role in ensuring Taliban talks.
China is in the president’s chair of FATF
Backing of Turkey and Malaysia.

Dubious decision

31|December|2017: 200th anniversary
HM: Bhima Koregaon cases to NIA.
Though the law allows the Centre to transfer a case to NIA without consulting the state government concerned, the context and timing of the decision raises questions.
Unwarranted interference in the police powers of the State
Preventing the new regime in Maharashtra from reviewing the controversial probe.

January 1, 1818
Mahar soldiers of the East India Company
Defeated the massive Peshwa army, led by Peshwa Bajirao II
Battle is a symbol of Dalit pride

Elgar Parishad case has gone through the investigation process and reached the courts — bail pleas in the case have been heard by the Supreme Court.
Supreme Court, by a 2-1 majority, declined to intervene with the police probe.
The credibility of the NIA as an independent investigative agency itself is being questioned.
The police claim that the Parishad and the Bhima Koregaon incident are related and point towards a deep-rooted conspiracy involving Maoists etc. has also been disputed.

The hype over hypersonics

27|Dec|2019: Russia announced Avangard
A hypersonic delivery system is essentially a ballistic or cruise missile that can fly for long distances and at speeds higher than 5 Mach at lower altitudes.
Nuclear-armed hypersonic glide vehicle (HGV) can fly at over 20 times the speed of sound.
U.S. has moved from the research to the development stage
China demonstrated the DF-17, a medium-range missile with the HGV, at the military parade in October 2019.

These missiles are being added to the military capabilities of countries that possess nuclear weapons.
What will happend when an early warning detects such missiles headed in its direction?
The tendency could then be to shift to more trigger-ready postures such as launch on warning or launch under attack to ostensibly enhance deterrence.
1. risks of misperception and miscalculation
Offence-defence spiral: arms race
Outer space

The four phases of constitutional interpretation

26| Jan | 1950: Constitution of India came into force
The enactment of the Constitution was an ambitious political experiment and social revolution in a deeply unequal society.
1. with universal adult franchise
2. federalism in a region consisting of over 550 princely States
Republic Day provides us an opportunity to consider how the text has been interpreted by the courts over the last 7 decades.
Text as phase one: Supreme Court adopted a textualist approach, focusing on the plain meaning of the words used in the Constitution.
A.K. Gopalan v. State of Madras (1950)
One of the early decisions in which the Court was called upon to interpret the fundamental rights under Part III.
The leader of the Communist Party of India claimed that preventive detention legislation under which he was detained was inconsistent with Articles 19 (the right to freedom), 21 (the right to life) and 22 (the protection against arbitrary arrest and detention).
The Supreme Court decided that each of those articles covered entirely different subject matter, and were to be read as separate codes rather than being read together.
Most controversial questions: whether there are any limitations on Parliament’s power to amend the Constitution, especially fundamental rights.
In its early years, the Court read the Constitution literally, concluding that there were no such limitations.
Phase two, the structure: Appeals to the text of the Constitution were gradually overtaken by appeals to the Constitution’s overall structure and coherence.
the Court concluded that Parliament’s power to amend the Constitution did not extend to altering its “basic structure” — an open-ended catalogue of features that lies within the exclusive control of the Court.
Kesavananda Bharati v. State of Kerala (1973)
In this phase, the Court also categorically rejected the Gopalan approach in favour of a structuralist one.
Through this decision, the Court conceived of the fundamental rights as a cohesive bill of rights rather than a miscellaneous grouping of constitutional guarantees.
The right to life was incrementally interpreted to include a wide range of rights such as clean air, speedy trial, and free legal aid.
Maneka Gandhi v. Union of India (1978)
This paved the way for the Supreme Court to play an unprecedented role in the governance of the nation.
Common: interpretation of the Constitution were entrusted to Constitution Benches (comprising five or more judges of court) and were carefully (even if incorrectly) reasoned.
Eclecticism as phase three: Supreme Court’s interpretive philosophy turned far more result-oriented than it had ever been.
1. The changing structure of the Court, which at its inception began with eight judges, grew to a sanctioned strength of 31; it is currently 34.
2. It began to sit in panels of two or three judges, effectively transforming it into a “polyvocal” group of about a dozen sub-Supreme Courts.
3. The Court began deciding cases based on a certain conception of its own role — whether as sentinel of democracy or protector of the market economy.
Different Benches adopting inconsistent interpretive approaches based on their conception of the Court’s role, and arriving at conclusions that were often in tension with one another.
Phase four, purpose: In the fourth phase, the Court has acknowledged as critical to its interpretive exercise the purpose for which the Constitution has been enacted.
The Court is now beginning to interpret the Constitution in accordance with its revolutionary and transformative potential.
However, facets of phase 3 continue to linger on in the courts.
Striking down Section 377
Adultery
CJI office under RTI

Deriving authority from ‘we the people’

Preamble’s character as the Constitution’s very soul.
Constitution is the ‘authoritative horizon’ of India’s public life, the Preamble is held aloft as our lens to it.
Jawaharlal Nehru, while moving the ‘Aims and Objects’ resolution in the Constituent Assembly on December 13, 1946, proposed that the task before the Assembly was to cast India as an “independent, sovereign, republic”, and spelt it out in a few memorable phrases, terming them as “the fundamentals” which were “commonly held” by Indians.
He also suggested that the resolution be regarded as “higher than the law” and nothing should be “added to or subtracted from” it.
When Ambedkar moved the draft Constitution in the Assembly on November 4, 1948, it turned out to be “we the people” who had resolved to constitute India into a “sovereign, democratic, republic”, and the Constituent Assembly became only its representative.
There was also the additional clause on “fraternity” that upheld “dignity of the individual” and “integrity of the nation”.
Ambedkar’s final speech in the Constituent Assembly on November 25, 1949 argued that if constitutional democracy did not make way for social and economic democracy, there was little hope of political democracy surviving in India.
But the spirit of republicanism could only be enabled through what he called constitutional morality, i.e. a citizen acting by taking on board constitutional principles and norms.
There was no doubt that by substituting the idea of ‘independent, sovereign, republic’, with ‘sovereign, democratic, republic’, Ambedkar was trying to redirect India into a very different trajectory.