By Himanshu Mehra

Introduction

Democracies in the world are usually governed by a Constitution, which is their supreme law. The Constitution lays down the principles and procedures of law making, governance and rights of the people etc. It also creates the pillars of governance i.e. Executive, Legislature and Judiciary. The Legislature makes the law, the Executive implements the same and Judiciary adjudicates the disputes arising out of that law. Parliament is the body entrusted with the task of making laws, which invariably includes the power to amend and/or repeal the laws. However often it is asked whether this power to modify or repeal that law includes the Constitution as well, which created the Parliament[1]. The common answer is in affirmative and the process is called amendment, wherein a change by addition, deletion or correction is made in the Constitution[2].

The Basic Structure Doctrine is a doctrine of Judicial Review that the Constitution of India has certain Basic features that cannot be altered or destroyed through amendments by Parliament. On April 24, 1973, a Special Constitutional bench comprising of 13 Judges of the Hon’ble Supreme Court of India, in the case of Kesavananda Bharti Versus State of Kerala” ruled by a majority of 7-6, that Article 368 of the Constitution ‘does not enable Parliament to alter the Basic Structure or framework of the Constitution[3]. The Hon’ble Apex Court propounded, what has come to be known as ‘the Basic Structure’ Doctrine. Any part of the Constitution may be amended by following the procedure prescribed in Article 368 of the Constitution, but no part can be so amended as to ‘alter the basic structure’ of the Constitution. The case of Kesavananda Bharti is unique for the reason that it is the longest reported judgment in the history of Supreme Court of India, and was heard by the largest bench ever constituted i.e. 13 Judges with 11 opinions and had longest hearing ever.

THE FOUNDATION OF DOCTRINE OF ‘BASIC STRUCTURE’

For the countries across the world, the bitter experiences of Germany played a pivotal role in the evolution and subsistence of this doctrine. It is pertinent to mention here that this doctrine has been borrowed by our Courts from Germany itself. 

Germany was governed by the Constitution titled as ‘Weimar Constitution’ during the Weimar Republic era which subsisted from 1919 till 1933 and the same declared Germany as Democratic Parliamentary Republic, with a legislature elected under proportional representation[4].

Under the Weimar Constitution, the citizens enjoyed inviolable rights[5]. Citizens had the right to be notified within a day of their arrest or detention as to the authority and reasons for their detention and be given the opportunity to object. The privacy of Correspondence, of mail, telegraph and telephone was made inviolable and the citizens of Germany were entitled for free expression of opinion in word, writing, printand image. They also has a right to assemble peacefully and unarmed without prior permission. The citizens of Germany were entitled to form clubs and societies also[6]. In other words, the Weimar Constitution was also described as “on paper, the most liberal and democratic document of its kind, the twentieth century had ever seen[7].

The ‘Weimar Constitution’ vested the legislature with the power to amend, with the procedural restraint of requiring 2/3^rd votes of the members of its Parliament[8].

In the year 1933 Adolf Hitler was elected as Chancellor in Germany and within a month, the Reichstag[9], Fire Decree invoked Article 48 of the Weimar Constitution thereby suspending several Constitutional protections on Civil rights. By virtue of the Decree as mentioned above, the following Articles of Weimar Constitution were suspended: Article 114 (Habeas Corpus), Article 115 (Inviolability of Residence), Article 117 (Correspondence privacy), Article 118 (Freedom of Expression/ Censorship), Article 123 (Assembly), Article 124 (Association) and Article 153 (Expropriation). With the further rise of Hitler and Nazis, the said Decree was used as the Legal basis for the incarceration of any person who was considered as opponent of Nazis and also to suppress the publications, gatherings which were not considered as Nazi- friendly[10].

After the passing and implementation of the above said Decree, Nazis inflicted one more blow on the Weimar Constitution by bringing in an amendment to the Weimar Constitution in form of “The Enabling Act of 1933”, which gave the Chancellor Adolf Hitler, the power to enact laws without the involvement of Reichstag.

In plain language, it can be concluded that by complying with the procedure of amendment after requiring 2/3^rd majority of the members of the Parliament, the German Chancellor Adolf Hitler overhauled the entire Weimar Constitution and took away the rights of the citizens and people of Germany. 

After considering the agitation which took place in Germany, the German and French Constitutional lawyers Carl Schmitt and Maurice Hauriou, developed the idea of implied Constitutional limits on Constitutional amendments. Carl Schmitt distinguished between the essential norms of the Constitution, which formed part of the material Constitution and other provisions which did not have the value of Constitutional norms[11]. Schmitt’s theory is significant in German Constitutional thought today. The Eternity Clause contained in Article 79 of the current German Constitution enumerates in itself explicit Constitutional limits on Constitutional amendments. The said provision has been interpreted in a way that Article 79 of the German Constitution is understood as an expression of the General idea that Constitutional amendments should not touch upon the ‘ the basic choices of the constituent power, the identity and the core of the Constitution’[12].

Regarding the power to amend, Maurice Hauriou[13] implied that due to special nature of a Constitution as the highest law, an amendment should be made by a special procedure that could be distinguished from ordinary legislation. He also provided a difference between a partial and total revision of a Constitution and as per him a total revision of the Constitution can only be done by national assembly specifically elected for the said purpose. The scholar even argued that ideally even a Constitutional assembly should be bound by the relevant constitutional limits during the amendment process and further stated that certain principles were so essential that they had a higher legitimacy than the written Constitution itself. He described them as ‘principles that have a higher legitimacy than the text of the written Constitution and that do not have to be expressly embodied in the Constitution. He also addressed the judicial oversight of Constitutional amendments and argued that a Constitutional judge should have right and power to annul unconstitutional amendments and that even the Constitutions should not be deprived of Constitutional control.

INDIA AND THE DOCTRINE OF ‘BASIC STRUCTURE’

The aspect of having implied limits on the power to amend was advocated by German lawyer and Scholar Dietrich Conrad who delivered a lecture at Law Faculty, Banaras Hindu University in the year 1965. Professor Conrad was influenced by the disaster of the Weimar Constitution in Germany and he strongly supported the fact that the amending powers of the Parliament should impliedly be limited and that the basics of the Constitution are beyond the amending powers of the Constitution.

Post the above mentioned lecture, the doctrine of Basic Structure was introduced in India for the first time by Justice Mudholkar in his dissent judgment in the case of Sajjan Singh[14], when he used the phrase “basic features of the Constitution” to argue that there are certain features of the Constitution that cannot be amended by the Parliament through its amending powers under Article 368 of the Constitution of India[15]. Justice Mudholkar while giving his dissenting judgment, drew upon the attention on Pakistan Supreme Court decision in Fazlulquaderchowdhry versus Mohd. Abdul Haque[16] (The then Chief Justice of Pakistan, Justice Cornelius had held that the President of Pakistan could not alter the ‘fundamental features of their Constitution) In this case, the Hon’ble Supreme Court of India held by the majority of 3-2 that when Article 368 confers on the Parliament, the power to amend the Constitution, the power in question can be exercised over all the provisions of the Constitution.

The phrase ‘basic structure’ or ‘basic feature’ of the Indian Constitution has arisen in some decisions before Justice Mudholkar pointed it out in the year 1964, but it is fair to say that the introduction by Justice Mudholkar was the first important introduction of this concept in the Indian Jurisprudence[17].

In the year 1967, in the case of Golak Nath Versus State of Punjab[18], an 11 judge bench of the Hon’ble Supreme Court headed by Chief Justice KokaSubba Rao, put forth the position that Article 368 did not confer upon the Parliament the power to amend the Constitution, and reversed its earlier decision. It was held by the Hon’ble Supreme Court that an amendment of the Constitution is a legislative process, and that an amendment under Article 368 is law within the meaning of Article 13 of the Constitution and therefore if an amendment takes away a Fundamental Rights conferred by part III, it is void. The court also ruled that Fundamental Rights included in part III of the Constitution are given transcendental position under the Constitution and are kept beyond the reach of Parliament. The court also held that the scheme of the Constitution and the nature of freedom it granted incapacitated Parliament from modifying, restricting or impairing fundamental freedoms in part III. The then Chief Justice KokaSubba Rao, while writing the majority judgment held that:-

1. A law to amend the Constitution is a law for the purpose of Article 13.
2. Article 13 prevents the passing of laws which take away the Fundamental Rights.
3. Article 368 does not contain a power to amend the Constitution but only a procedure.
4. The power to amend comes from the normal legislative power of the Parliament.
5. Amendments which take away the Fundamental rights provisions cannot be passed.

To get over the judgments of the Hon’ble Supreme Court in the Golak Nath Case (1967), R.C Cooper case (1970) and MadhavraoScindhia case (1970), the then government headed by Prime Minister Indira Gandhi enacted major amendments to the Constitution namely the 24^th, 25^th, 26^th and 29^th Constitutional Amendments[19]. All the four amendments brought by the then government were challenged in the case of Kesavananda Bharti Versus State of Kerala[20].

In the year 1973, the largest ever constituted bench of Hon’ble Supreme Court of India, comprising of 13 judges heard the arguments in the case of Kesavananda Bharti case. The Hon’ble Supreme Court reviewed the decision of Golaknath Versus State of Punjab case and also considered the validity of Constitutional 24^th, 25^th, 26^th and 29^th Amendment Acts.

Nine judges signed a statement of summary for the judgment that read:-

1. Golaknath case is over-ruled.
2. Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution.
3. The Constitution (24^th Amendment, 25^th Amendment) Act, 1971 are valid.
4. The Constitution (29^th Amendment) Act, 1971 is valid.

The Hon’ble Supreme Court further held that Parliament could not use its power under Article 368 to damage, emasculate, destroy, abrogate, change or alter the basic structure or framework of the Constitution. The Basic features of the Constitution according to the Kesavananda Bharti verdict were laid out separately by each judge based on what he thought were the basic features of the Constitution.

• According to the then Chief Justice, the concept of Basic Structure included:-
• Supremacy of the Constitution.
• Republican and Democratic form of Government.
• Secular character of the Constitution.
• Separation of Powers between legislature, Executive and Judiciary.
• Federal Character of the Constitution.
• According to Shelat, J and Grover, J, the concept of Basic structure includes:-
• The mandate to build a welfare state.
• Unity and Integrity of the nation.
• Sovereignty of the country.
• According to Hegde, J and Mukherjea, J, held the following as Basic Structure:-
• Sovereignty of India.
• Democratic character of the polity.
• Unity of the country.
• Essential features of the individual freedoms secured to the citizens.
• Mandate to build a Welfare state.
• According to Justice Jagmohan Reddy, the following were the Basic structure:-
• Sovereign Democratic Republic.
• Justice- Social, Economic and Political.
• Liberty of thought, Expression, belief, faith and worship.
• Equality of status and opportunity.
• According to Justice Khanna, the following were the basic features:-
• Implied restrictions on amending powers.
• Supremacy of Fundamental Rights above all.

It is pertinent to mention here that NaniPalkhivala[21], the Counsel for Kesavananda Bharti argued that the Parliament having unfettered power to amend the Constitution would render the document null and void[22]. There must be some restraints on the amending powers of the Parliament. Certain features like Rule of Law and Fundamental Rights could not be touched. The then Chief Justice Ray, convened a 13 judge bench to review the Kesavananda Bharti verdict on the pretext of hearing a number of petitions relating to land ceiling laws. The petitions contended that the application of land ceiling laws violated the Basic Structure of the Constitution. Meanwhile, the then Prime Minister Indira Gandhi refused to accept the doctrine of Basic Structure. N.N Palkhivala who was appearing on behalf of Coal mining company, argued against the move to review the Kesavananda Bharti decision[23]. Ultimately, the Chief Justice Ray dissolved the bench after two days of hearing. The declaration of Emergency in June 1975 and consequent suspension of Fundamental Rights and Right to move the Courts against illegal detention diverted the attention of the Country from this issue. One certainty that emerged out of this tussle between the Parliament and Judiciary is that all the laws and Constitutional amendments are now subject to judicial review and the law that transgress the Basic Structure are to be struck down by the Supreme Court.

CONCLUSION

It is true that the abrogation of Weimar Constitution in Germany taught the world to provide themselves with the tools, so as to avoid the circumstances which Germany faced and in furtherance of the same and with the able and efficient works of some great Legal experts, eminent jurists, Scholars and thinkers, the theory of Basic Structure has evolved only to develop and improve as a backbone and protector of Constitutions across the globe.

The Basic Structure Doctrine, evolved by Hon’ble Supreme Court of India, through its  numerous landmark judgments over the years, brings in that required factor of Constitutionalism, which is necessary for sustenance, protection, maintenance and upkeep of Constitutional essence  of Rule of law.

Although the concept of Basic Structure originated and evolved in its early years in form of Constitutional Provisions as has been provided in the existing Constitution of Germany, but In India the same is extra- Constitutional i.e. not expressly provided in the Constitution but developed judicially through various judicial pronouncements over the time. Moreover the power to change/ add the unamendable parts of the Constitution i.e. the Basic Structure of the Constitution is vested with the Constitutional Courts having tool of Judicial Review.

The Basic Structure Doctrine is a Judge made Doctrine where certain features of the Constitution are beyond the limit of amending powers of the Parliament.  In India, the Doctrine of Basic Structure is a judicial innovation and it continues to evolve through the judicial pronouncements of the Hon’ble Apex Court.

Lastly, it is pertinent to note here that in the largest democracy of the World, with conflicting interests emerging constantly, the framers of our Constitution, works of numerous eminent lawyers and jurists, Scholars and Hon’ble Supreme Court and its judges deserves to be lauded for their ability to withstand the challenges so faced with changing circumstances of the society and world and protect the essence of the Constitution thereby protecting the great nation, we live in.

The Author is an Advocate and Senior Associate, Singh and Advocates, New Delhi.

BIBLIOGRAPHY

[1]The Basic Structure Doctrine- Origins and Nature by Swapnil Tripathi.

[2]Definition from Black’s Law Dictionary.

[3]AIR 1973 SC 1461; (1973) 4 SCC 225.

[4]‘Lessons from Germany for us’ by Faisal C.K (Published in National Herald on 01.03.2019)

[5]English Translation of Weimar Constitution available in Carl Schmitt Constitutional theory, Duke University Press, 2008- 421

[6]Ibid 4

[7]Book: The Rise and fall of the Third Reich by William L. Shirer.

[8]The Implications of Eternity Clauses by Professor Ulrich K. Preuss, Professor Emeritus, University of Berlin.

[9]Federal Assembly/ Lower House of German National Legislature.

[10]Ibid 6

[11]The Basic Structure doctrine and its German and French origins: a tale of migration by Monika Polzin (Indian Law Review- Volume-5, 2021- Issue-1)

[12]Ibid 11

[13]French lawyer and Professor of Administrative Law and Constitutional Law at University of Toulouse, France.

[14]AIR 1965 SC 845

[15]KLE Law Journal- The Basic Structure Doctrine- Post Globalization- A Critique by Dr. Sandeep S. Desai.

[16]1963 PLC 486.

[17]The Genesis of India’s ‘basic structure’ doctrine by Pratik Datta, published on April 23, 2012.

[18]AIR 1967 SC 1643.

[19]Article on Basic Structure of the Constitution by Drishti- IAS Coaching Institute

[20]AIR 1973 SC 1461

[21]Eminent Jurist and Constitutional Expert/ Indian Ambassador to USA- 1977/ Padma Vibhushan- 1998.

[22]A study of Basic Structure Doctrine by S. Krishnaswamy (Oxford University Press- 2011); Constitution of India by V N Shukla (Eastern Book Company, 1982)

[23]Judicial Activism and Public Interest Litigation by P.N Bhagwati (Edition 1984) 

By Kartikay Sharma

On 25 May 2020, a 46-year-old black man named George Floyd was murdered in Minneapolis, Minnesota, United States, while being arrested on suspicion of using a counterfeit $20 bill. On 20th April 2021, The District Court of Minnesota carried out the verdict on the death of George Floyd where officer Derek Chauvin was tried and convicted of the murder of George Floyd during an arrest on May 25, 2020.

As the court did its duty, the people of the United States of America breathe a sigh of relief and hoped for a society free of racism and police brutality. While the United States of America and the world has raised a lot of concerns about police brutality, India has had little to debate about it. Recently, in April 2021, two policemen ruthlessly beat up a rickshawpuller in broad daylight on a busy street in Indore’s Pardeshipura police station area. The two policemen pinned the man down and showered kicks and blows on him while several bystanders watched the impunity of the police.

While this incident may sound horrific, an incident even more horrific happened on 19nd June 2020, when two men named Jairaj and his son Benicks were picked up for inquiry by the Tamil Nadu Police in Sathankulam, Thoothukudi district for allegedly violating Covid-19 lockdown rules. A few days later, reports emerged that Jairaj and his son Benicks died in custody in Tamil Nadu’s Thoothukudi. Reports have emerged on how the two were tortured and sexually assaulted in police custody at the Sathankulam Police Station.

The custodial death of the two men in Tamil Nadu’s Sathankulam town in Thoothukudi district sparked massive outrage in the state over police brutality and has raised two major concerns: 1) Police Brutality and 2) Police Accountability.

Police Brutality as a phenomenon is not new to India. According to National Campaign Against Torture report, The National Human Rights Commission of India recorded 1680 cases of custodial deaths in the year 2020. Out of these, 1569 deaths took place in judicial custody and 111 deaths took place in police custody.

Annual Report on Torture 2020 released by the National Campaign Against Torture (NCAT) reported that despite the virtual shutdown of the country including complete lockdown from 24 March to 31 July 2020, India witnessed an increase in custodial deaths during the year and over one suicide every week because of alleged torture in police custody. Around 74.4% of the deaths in police custody took place due to alleged torture, and other forms of police brutality have also garnered public attention.

During the lockdown announcement, due to the coronavirus pandemic, the report pointed out how the police beat migrant laborer’s who were on their way home. Before this, when the riots took place in North-East Delhi in February 2020, a video emerged where the police on duty could be seen forcing 5 Muslim men, who lay injured, to sing the national anthem. One of the boys, Faizan also died following the incident.

Although the Supreme Court, in light of such recurring incidents, has attempted to put checks and balances mechanism in place through the historic judgment titled as Prakash Singh Vs. Union of India in 2006 by coming up with 7 directives for setting up the State Security Commission to lay down broad policies and give directions to prevent the abuse of power by police and as a part of these directives, the court directed the setting up of 3 institutions:

1- State Security Commission (SSC) which would lay down the broad policies and give directions for the performance of the preventive tasks and service-oriented functions of the police. 

2- Police Establishment Board comprising the Director General of police and 4 other senior officers of the department which shall decide transfers, postings, promotions, and other service-related matters of departmental officers and men. 

3- Police Complaints Authority at the district and state levels with the view to inquiring into allegations of serious misconduct by the police personnel.

The thing to be observed is, according to a study by the Commonwealth Human Rights Initiative in 2018 reported that only 18 states have passed the new police act since 2006. The directives issued by the Supreme Court were also applied in a haphazard manner which states falling short of one guideline or the other.

For instance, 27 out of 29 States constituted the State Security Commission, and only 8 states were found to have fulfilled the requirements to prepare the annual report of the State Security Commission and table it before the legislator. To sum it up, no state fully applied the guidelines they were supposed to. Hence while we have methods of ensuring police accountability, they have not been enough.

Currently policing is a state subject in India. This means different states have different guidelines for their respective police forces. However, most of the guidelines adopted by the states have been modeled after The Police Act of 1861. The Police Act of 1861 was legislated by the British after the revolt of 1857 often referred to as the first war of independence. It was the first organized rebellion against the rule of the British and the East India Company. The Police force came into being as a means of crushing dissent and not as a democratic move. The practice has continued even after India became independent.

Although there is that sort of judicial involvement that one can rely on but within the system, it seems like there are no systems of accountability and checks and although one can invoke judicial powers in this regard but that are also very sporadic. There isn’t a history of judicial intervention to address questions of police brutality and there have been several committees that have spoken about police accesses, but the recommendations of these committees remain unimplemented to this day. The need, therefore, is to transform the role of the police in relation to the citizen.

To promote accountability, state and central legislatures should pass legislation that calls for the following:

1- Establishment of an independent special investigator or prosecutor office responsible for investigating instances where police have seriously injured or killed civilians.

2- Inclusion of victim advocate statements by survivors of police violence, including family members of individuals who are victims of police violence, during court hearings.

3- Providing a negligent hiring cause of action against police departments that should have known that an officer would be likely to engage in unconstitutional conduct.

4- Passing legislation reducing the standard for police enjoying immunity against misconduct.

5- Strengthening the community’s right to record police officers to promote accountability and incentivize proper conduct by law enforcement officers.

6- In addition, law enforcement agencies, including local and state police departments should incorporate these guidelines into their internal guidelines, manuals, policies, protocols, performance evaluations, and practices. The legal aid societies should maintain a database of police officers who have repeatedly been accused of misconduct by their clients. This database should include information on the police officer’s name, precinct, and a brief description of the incident.

Read Also: Covid vaccines: The winning formula

The purpose of a police force in a free society is to promote public safety and uphold the rule of law so that individual liberty may flourish. Trust and accountability between the police and the communities they are sworn to protect is essential to advancing these goals. 

The Author is a 4th Year Law Student.

With the entire world busy in fighting COVID-19, the Pakistani military establishment, not bothered about the impending review of steps against money laundering and terror financing at the June meeting of the Financial Action Task Force (FATF), thought it was the best time to get one of their men out.

At a time when the entire Sindh province, especially Karachi, was under lockdown to curb the spread of COVD-19, the Sindh High Court on April 2 overturned the death sentence for British-born terrorist Ahmed Omar Saeed Sheikh, who had been convicted in the 2002 killing of American journalist Daniel Pearl.

The court has commuted Omar’s death penalty to a seven-year sentence as the murder charges were not proven. Omar, who has been in jail for 18 years, was given seven years for the kidnapping. The court also acquitted three others in the case, Fahad Naseem, Syed Salman Saqib and Sheikh Muhammad Adil, over lack of evidence. They were sentenced to life imprisonment with a fine of Rs 500,000 each by the anti-terrorism court.

It is no coincidence when the entire province administration was busy fighting COVID-19, a division bench of the Sindh High Court started hearing the appeal on March 2 for consecutive five days and on March 6 the two-member bench comprising Justice KK Agha and Justice Zulfiqar Sangi reserved the judgement, which was announced on April 2.

The most intriguing part of this episode is that the convicts had filed appeals in the high court on July 19, 2002, against the conviction and the state had also filed an appeal seeking enhancement of the three co-accused’s life terms to capital punishment.

Mohammed Rizwan, a Toronto-based journalist of Pakistani origin, told India Legal the main question is why an appeal hearing, which was lying in cold storage for 18 years, suddenly resumed?

Rizwan told India Legal: “Initially I thought it was part of the US-Taliban peace deal the way terrorist Ehsanullah Ehsan of the Tehrik-e-Taliban Pakistan was allowed to escape by the Pakistani military establishment. However, the angry reaction from the US State Department made it clear that the military establishment was trying to take advantage of the COVID-19 to free its asset.”

Omar’s ties with the Pakistani establishment are well-known. Imran Khan’s interior (home) minister Brig Ejaz Shah, who was intelligence chief of Gen Pervez Musharraf, was Omar’s handler. Omar first surrendered before Brig Shah and after debriefing he was arrested, Rizwan added.

He said Omar’s case is different. Even if Tabilan demand his release, it will not be possible for the Pakistan military to free Omar. First, the FATF sword is already hanging on their head. Second and more importantly, Omar has the “American blood on his hands”.  The US will never allow this man to go scot-free, Rizwan said.

An angry tweet from Alice Wells, Acting Assistant Secretary of State for South and Central Asia, saying “the overturning of the convictions for Daniel Pearl’s murder is an affront to victims of terrorism everywhere” was a strong signal to the Pakistani military establishment that the US won’t tolerate the running with the hare and hunting with the hounds tactics, Rizwan said, adding this the reason why all four were re-arrested for three months under the Maintenance Public Order Ordinance 1960 by the Sindh Government pending appeal against the verdict in the supreme court.

Just a few hours before the Prime Minister Narendra Modi assured the nation that there will be no shortage of essential items because of the 21 day lockdown ordered by his government, the Mumbai Police Crime Branch had busted a racket where over 25 lakh face masks were being hoarded to be sold on the black market at exhorbitant prices. Similar stories were reported from almost all parts of the country, of black marketeers taking advantage of the Coronovirus and the fear that it has instilled in people’s minds.

Hand sanitizers and face masks  were deemed by the government as “essential commodities” in the wake of COVID-19, but the announcement also triggered a black market leading to a countrywide shortage of these basic necessities to protect life. The demand supply ration also saw the prices going through the roof.

In an effort to ensure fairness in supply and retail in hand sanitizers and masks, a PIL was filed in the Supreme Court by Justice for Rights Foundation, an NGO,  through its president Satyam Singh Rajput who along with co petitioners have also  sought free distribution of these commodities.

The petitioners prayed to the Court to issue directions to the authorities to ensure fair and equitable distribution of surgical/N95 masks, hand sanitizers and liquid soap and make them available to the public. They also prayed for the creation of a special task force to effectively implement the notifications of the government.

The writ petition has been referred before the Court mainly on the grounds that widespread infection and growing cases required effective precautionary methods and the government must  ensure availability. Failure on the part of the  government was tantamount to the the administration not discharging its duties, it said.

The petitions also said that right to life as enshrined in Article 21 of the Constitution is sacrosanct and should not be made a part of a trade in hands of a nefarious few.  Also, it was well-settled that the State is the custodian of the welfare and well-being of its citizens. Their life cannot be allowed to hang in the balance, it said.

While the government and various departments have issued notifications declaring hand sanitizers and masks as essential commodities, further notices have been put in place, empowering the concerned authorities to check the menace of illegal hoarding which has led to a surge in prices.  Most of the items have run out of stock despite the government saying that there was no shortage.

Earlier this month, the government had capped the MRP of a hand sanitiser at Rs 100 per 200ml bottle till June 30. Similarly, the price of a 2 ply (surgical) mask was capped at Rs 8 and that of a 3 ply (surgical) mask at Rs 10 till June 30, Consumer Affairs Minister Ram Vilas Paswan had said. “The price cap has been imposed taking into account the sharp increase in prices of raw materials used in making of face masks and hand sanitiser,” he said. But as everyone knows, for black marketeers, even the sky is no limit.

Pic Credit: UNI

Long before the Centre’s decision to bifurcate the erstwhile state of Jammu and Kashmir into two Union Territories, Delhi was also stripped of its statehood under the Reorganization Act.

The Aam Aadmi Party, which stormed to power in 2015 on full statehood rhetoric, has however, maintained silence on the issue this time.

Delhi, by virtue of the States Reorganization Act, 1956, became a Union Territory. The Legislative Assembly of Delhi was first constituted on March 17, 1952, only to be abolished in 1956. The Assembly was reinstated in 1991 on the recommendations of Sarkaria Commission set up by the Centre in 1987 to look at reorganisation of Delhi.

Taking into consideration the recommendations of the committee headed by Justice Sarkaria, the then Congress government at the Centre had introduced the 69th Amendment Bill in Parliament with an objective to amend articles 239AA and 239BB in the Constitution. Subsequently, the Parliament also passed the Government of National Capital Territory of  Delhi Act, 1991, to supplement the constitutional changes introduced to restructure Delhi administration.

Former Prime Minister PV Narasimha Rao consciously kept sensitive subjects like police, law and order, and land under the Centre, as opposed to the states having absolute powers and authority under the constitution with regard to these subjects.

The Parliament, by 69th Amendment Act, in a way restored the status of Delhi as a Union Territory with a legislative Assembly and elected head of the state government, but with a limited mandate and powers.

The first elections to Delhi’s legislative assembly were held in 1993. The BJP had swept the first assembly elections after NCT came into being. In Delhi, being an anomaly, LG doesn’t have all the powers vis-a-vis the Governor of the state. It was President of India and not LG who appointed Madan Lal Khurana, the elected leader of the BJP legislative party as the first Chief Minister of Delhi.

Delhi has witnessed two assembly elections in the last five years and two LGs, with current Chief Minister Arvind Kejriwal from Aam Aadmi Party having countless run-ins with LG appointed by BJP-led government at the Centre. This is not the first time when Delhi has been helmed by a party which is opposed to the ruling party at the Centre, but at no point, issues over the centre-state arrangement in Delhi have led to crisis in the city or severe law and order issues as during the Aam Aadmi Party’s tenure.

There have been many instances in the last five years when the decisions of the elected government of Delhi were overruled by the LG who works on behalf of the Home Ministry, resulting into frequent stand-offs between the chief minister and the lieutenant governor.

Constitutionally, the Delhi government has not been given control over three important government authorities — Delhi Development Authority, responsible for housing, accommodation and infrastructure; Municipal Corporation of Delhi (MCD); and Delhi Police.

The Delhi government can’t recruit or oversee the functioning of bureaucratic officers working for it. Even Delhi being a UT with a legislature, the government of the NCT of Delhi has to seek prior approval of the President, who acts on the aid and advice of the Home Minister, before being presented in the Delhi legislative assembly.

However, the Delhi government has been given unrestricted powers to deal and control over education, sanitation, health and public works department.

The AAP has been demanding that the Delhi Police comes under the Delhi government. It makes virtually impossible for an elected government to govern a state with multiple vertical political arrangements overlapping jurisdiction and powers, and without any degree of control in law and order management in its hand.

With Delhi having no administrative autonomy or control over many sensitive subjects and having an adversary ruling at the Centre, the challenges to an elected state government substantially increase as people are likely to question it for the poor governance, instead of aiming their questions at the Centre.

If the demand for full statehood is conceded, the police, law and order, and the land will come directly under the state government. The LG will be replaced by a Governor who will act on the aid and advice of the Council of Ministers of the state.

But Delhi is not the only exception. National capitals of major countries have not been granted full autonomy or statehood. As most of the national capitals house foreign embassies,  government headquarters, Parliament, intelligence agencies, it is justified for the Centre not to trust the state government and hand over all the authorities and security machinery to the latter. Similar to Delhi, the US has not conceded to the long-pending demand of statehood for Washington D.C.

Delhi is much better placed than Washington, given the rights and privilege residents of Delhi have enjoyed since long. When the capital of the US was officially moved from Philadephia to D.C, the residents lost their representation in Congress and the Electoral college, as well as the right to home rule. The residents were granted voting rights only in 1961 after the passage of the 23rd amendment to the Constitution. However, to this day, the residents don’t have voting representation in Congress, and the federal government exercises its jurisdiction over the state. Its budget is approved by the Congress. Any law it passes can be over-ruled by the Congress.

Ottawa, the national capital of Canada, is very much different from other national capitals. Unlike other national capitals, Ottawa is not a capital district, but a municipality in the city of Ontario, governed by a mayor. The Ottawa enjoys maximum autonomy from the federal government, but the federal government to safeguard interests, had set up the National Capital Commission (NCC). The NCC has been vested with the authority to decide over sensitive and key issues to ensure there are no conflicts with the government.

The Delhi government instead of pressing for full statehood, should demand a say in subjects that really matter for governance–land, law and order, bureaucracy. For effective governance, Delhi should seek for control over the city’s municipal bodies as well. This way, the state can continue getting subsidies and grants from the Centre and can also escape the perils of the increased tax burden on the Delhi residents in case full statehood is granted.