Context

The ways in which the Constitution of India is interpreted has undergone changes through four phases.

Constitution-An Ambitious political experiment

Indian Constitution was an ambitious political experiment for the following reasons-

• Universal Adult Franchise: India began its journey with the universal adult franchise.

• Federalism: Federalism in a region consisting of over 550 princely States.

• The promise of Equality: The Constitution was a sort of social revolution in a deeply unequal society with the promise of equality.

• Unique constitutional design: it was equally a unique achievement in terms of constitutional design.

The first phase of interpretation-Focus on text

A textualist approach-focusing on the plain meaning of the words: In its early years, the Supreme Court adopted a textualist approach, focusing on the plain meaning of the words used in the Constitution.

• K. Gopalan v. State of Madras (1950) was 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).

• Fundamental rights separate from each other: The Supreme Court decided in A. K. Gopalan case that each of those articles covered entirely different subject matter, and were to be read as separate codes rather than being read together.

• Unlimited Amendment Power: In its early years, the Court read the Constitution literally, concluding that there were no limitations on the Parliament’s power to amend the Constitution.

The second phase of interpretation-Focus on ‘basic structure’

Appeals to the structure and coherence: Appeals to the text of the Constitution were gradually overtaken by appeals to the Constitution’s overall structure and coherence.

• Limited Amendment Power-Kesavananda Bharati case: In the leading case of Kesavananda Bharati v. State of Kerala(1973), the Court concluded that Parliament’s power to amend the Constitution did not extend to altering its “basic structure”.

• What is the “Basic Structure”: The basic structure is an open-ended list of features that lie within the exclusive control of the Court.

• When Parliament attempted to overturn this decision by amending the Constitution yet again, the Court, relying on structuralist justifications, decisively rejected that attempt.

Key takeaways from Kesavananda Bharati case

• Limited Amendment Power: In this case, the Court pronounced that Parliament’s power to amend the Constitution is not unlimited.

• Fundamental rights as a cohesive bill of rights: In this phase, the Court also categorically rejected the Gopalan approach in favour of a structuralist one.

• Maneka Gandhi v. Union of India (1978):  Through decision, in this case, the Court conceived of the fundamental rights as a cohesive bill of rights rather than a miscellaneous grouping of constitutional guarantees.

• Incremental interpretation of Right to Life: The right to life was incrementally interpreted to include a wide range of rights such as clean air, speedy trial, and free legal aid.

• Courts playing role in governance: The incremental interpretation of Article 21 paved the way for the Supreme Court to play an unprecedented role in the governance of the nation.

What was common in the first two phases?

• Interpretation done by Constitutional Benches: That significant decisions involving the interpretation of the Constitution were entrusted to Constitution Benches (comprising five or more judges of court) and were carefully (even if incorrectly) reasoned.

• Little scope for precedential confusion: There was limited scope for precedential confusion, since matters which had been decided by Constitution Benches and which demanded reconsideration were referred to larger Constitution Benches.

Third Phase of interpretation-Eclecticism

• Different opinions on the same issues: In the third phase the Supreme Court started to give different opinions on the same issues-i.e. it engaged in eclecticism.

Lesser reasoning: The Court often surrendered its responsibility of engaging in a thorough rights reasoning of the issues before it.

Two factors underpinned this institutional failure.

• First-Change in the structure of the SC: 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.

• 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.

• Second-expansion of own role by the SC-The Court began deciding cases based on a certain conception of its own role -whether as a sentinel of democracy or protector of the market economy.

• The focus of the judgement on the result rather than reason: This unique decision-making process sidelined reason-giving in preference to arriving at outcomes that match the Court’s perception.

Consequences of the eclecticism

• Rise of doctrinal incoherence and inconsistency: The failure to give reasons contributed not only to methodological incoherence but also to serious doctrinal incoherence and inconsistency across the law.

• Conflicting decisions and interpretations: This approach can be best described as panchayati eclecticism, with 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.

• Decision detached from precedents and established methods: The imagery that panchayati eclecticism is meant to invoke is that of a group of wise men and women (applying the analogy, sub-Supreme Courts), taking decisions based on notions of fairness that are detached from precedent, doctrine and established interpretive methods.

Fourth phase- based on the purpose

• Purpose of enactment of the Constitution as critical: In the fourth phase, the Court has acknowledged as critical to its interpretive exercise the purpose for which the Constitution has been enacted.

• The realisation of revolutionary and transformative potential: The Court is now beginning to interpret the Constitution in accordance with its revolutionary and transformative potential.

Renaissance in decisions: With about a dozen significant Constitution Bench decisions from the Supreme Court since September 2018, there has been a renaissance in decision-making by Constitution Benches.

The most important decisions of this period include-

1. Court’s decisions striking down Section 377 and the criminal offence of adultery.

2. And including the office of the Chief Justice of India within the scope of the Right to Information Act.

Conclusion

With the interpretation process entering in the fourth phase-realising the purpose of enactment of the Constitution- Indian judiciary is on the right track, however, facets of phase 3 continue to linger on it. The Supreme Court must avoid getting in phase three mode to in order to realise the purpose it was entrusted with.

 NON-RESIDENT INDIAN WIVES

What is the issue?

The problem of non-resident Indian (NRI) women trapped in situations of domestic torture

has gained an urgent edge in recent years.

How prevalent is the problem?

• Ministry of External Affairs (MEA) released figures that show that one NRI wife calls back home every eight hours i.e 3 calls daily, seeking rescue from a domestic nightmare.

• Between January 2015 and November 2017, the MEA alone received 3,328 complaints.

• The actual number of victims would be much larger and include those who have not sought help from family or official agencies, or have turned only to family.

• Studies show that Punjab, Andhra Pradesh, Telangana and Gujarat register the highest number of complaints.

• The complaints range from abandonment after marriage (either in India or abroad), bigamous unions (the man already has a wife abroad), false information about the man’s job and earnings, harassment for dowry, domestic violence, and ex-parte divorce based on false documents.

• These cases predominantly are from the UK, US and West Asia where most of the Indian diaspora is based.

• Most of the complaints from the US are from the wives who are H4 visa holders, financially dependent on husbands who are holders of the H1B visa.

• Women holding H4 visas were not allowed to work until the Obama administration allowed them to apply for work permits in 2015.

• However, given the current political dispensation in the US, this is not easy.

What are the factors contributing?

• One is the anxiety of Indian parents to marry off daughters, even highly educated and potentially economically independent ones, in the belief that an unmarried adult daughter is a social embarrassment.

• Second is the near-obsessive aspiration to seek “greener pastures” abroad whether through marriage or emigration.

• Other factors include reluctance to probe too closely into the potential bridegroom’s antecedents for fear of angering the “boy’s side” and the general that a wife is necessary to run the house and “look after” the husband’s parents or family.

• Women are not really treated as a life partner as much as cheap domestic labour and caregiver in foreign countries.

What should be done?

• The Indian government needs to be more proactive rather than wait for complaints to deal with the issue. e.g The Punjab state government has set up police stations to handle such complaints.

• As of now, one of the main obstacles faced by the law and order agencies is that it is very difficult if not impossible to get the accused to come to India and face legal prosecution.

• A committee set up by the present government has recommended the cancellation of the passports of NRIs found harassing or deserting their wives, inclusion of cases of domestic violence in the scope of extradition treaties, and increase in financial assistance provided to the women by Indian missions abroad.

RISING CAESAREAN BIRTH

What is the issue?

There is a rising rate of caesarean births in India.

Why C-Sections are risky?

• A Caesarean section (CS) is a significant development of modern medicine.

• It is a life-saving surgical procedure when certain complications arise during pregnancy and labour.

• However, the growing practice of CS without a medical indication or following demand by the patient has not brought any benefit to the women or infants

• Adverse outcomes of CS include high risk of maternal and neonatal death, various maternal morbidities, including infections, need for blood transfusion, neonatal morbidities often related to iatrogenic prematurity; and potential complications in subsequent pregnancies.

How prevalent are C-Sections?

• In 1985, an interdisciplinary conference on appropriate technology for birth unanimously accepted a 10%–15% caesarean section rate at community level as reasonable to assist women to deliver safely in the face of complications.

• Yet, the CS rates have been increasing worldwide. In 1990, roughly one in 15 babies was born via CS, which has increased to one in five babies in 2014.

• The lowest rates of CS are found in Africa (7.3%), followed by Asia (19.2%) and the highest rates are found in Latin America (40.5%).

• In the year 2008, the highest proportion of unnecessary CS deliveries were performed in China (32%), followed by Brazil (15%) and the United States (11%) (Gibbons et al 2010).

• India has witnessed an increase of 102% in caesarean deliveries, from 8.5% in 2005–06 to 17.2% in 2015–16.

• Although the rate is marginally higher than the acceptable range defined by the WHO, there is a huge geographic disparity. e.g The statewise data from the NFHS indicate that the CS rate is highest in Telangana (58%) and lowest in Bihar (6%).

• A sharp urban–rural divide in CS rates is also evident, which could be attributed to the availability of caesarean sectionfacilities in urban areas than in rural settings.

• The CS rate is also lower in public health facilities than in private health facilities.

What are the challenges?

• It is difficult to gauge how much could be attributed to unnecessary CS, including patient demand.  Decision -making is the most important component of caesarean

• At times, the doctor might leave the decision to the patient to have a caesarean as she might want to have her baby in a particular way or a particular day.

• In India, a very small section of women choose to have CS, being cognisant of the fact that vaginal delivery is an option. Programme and policymakers might not be concerned with this group of women as they have made a conscious choice for CS.

• But this is not the case with rural women.

• The general profile of rural women is that they are uneducated, lack awareness and come from a low socio-economic strata of society.

• They do not have any decision-making power about having a baby, and the low age at conception worsens the situation.

• In such cases, physicians play a crucial role.

• This opportunity gives physicians a window to convert vaginal delivery to CS,as a CS procedure will enhance the physicians‘ income.

• The fact that referring patients from a government hospital to a private facility for CS can earn commission for government doctors has also been reported.

• The Rashtriya Swasthya Bima Yojana (RSBY), a public-funded national health insurance scheme, also covers CS.

• The usage of the RSBY for CS was more than that for normal deliveries, indicating monetary benefit for the private healthcare provider.

What should be done?

• A low caesarean rate is associated with a high maternal and newborn mortality and can indicate  lack of access to life-saving resources.

• On the other hand, a very high caesarean rate can be a sign of over-intervention and a trend of medicalisation of birth.

• It can pose a threat not only to the health of mothers and children, but also to health systems.

• To address this, the Indian health system must focus on strategies to strengthen the health systems, including increasing the doctor–population ratio, placing highly skilled and well-trained midwives in labour rooms, allowing birth companions during labour and delivery, providing for painless delivery options, improving labour room infrastructure etc.

• Hospitals and communities should promote health education among women of reproductive age and counsel pregnant women about delivery process.