QUESTION : Critically examine the effect of abrogation of Article 370 and Article 35A on the federal fabric of the country.
Topic- A CHANGE THAT HIT FEDERALISM, INCLUSION
WHAT ?
- Jammu & Kashmir (Article 370) and its relationship with rest of India
WHY IN NEWS ?
- A year has passed since Jammu & Kashmir was stripped of its special status (Article 370) as well as Statehood.
BACKGROUND :
- The central govt. on 5th August, 2019 abrogated Article 370 that gave Jammu and Kashmir a special status and bifurcated the State into two Union Territories (UTs).
- Jammu and Kashmir ceased to be a state and became two union territories with two Lieutenant Governors. Ladakh became a Union Territory without a legislature and Jammu and Kashmir with a legislature.
- Article 370 gave Jammu and Kashmir its own constitution and decision-making rights for all matters barring defence, communications and foreign affairs. Its removal ended special status for Kashmir, which was key to its accession to India in 1947.
Rationale given behind the move:
- Article 370 has prevented J&K to merge with India rather than being a basis of its merger.
- Article 370 was seen as discriminatory on the basis of gender, class, caste and place of origin.
- Post the repeal of the Article 370, doors to private investment in J&K would be opened, which would in turn increase the potential for development there.
- Increased investments would lead to increased job creation and further betterment of socio-economic infrastructure in the state.
- Opening of buying of lands would bring in investments from private individuals and multinational companies and give a boost to the local economy
Article 370 – Features and Provisions :
- Present in part XXI of the Indian Constitution which comprises of Temporary, Transitional and Special Provisions with rest to various states of India.
- Forms the basis of the “Special Status” of J&K.
- Provides for a separate Constitution of J&K.
- Limits the Union Parliament’s power to make laws for J&K to those subjects mentioned in the Instrument of Accession (defense, foreign affairs, and communications) and others as and when declared by the Presidential Orders with the concurrence of the Government of the State.
- Specified the mechanism by which the Article shall cease to be operative. That is, on the recommendation of the Constituent Assembly of the State before the President issues such a notification. However, this provision has been amended by the Constitution (Application to Jammu and Kashmir) Order, 2019.
THE CONCEPT OF INTEGRATION IN A DEMOCRACY :
- In a democracy, integration has to be evaluated from a multi-faceted system and lens, which includes the emotional aspect as well.
- Asymmetry and federalism: J&K’s separate flag and Constitution within the Indian Union represented asymmetry, which is integral to the Indian federal experience. Such asymmetry has strengthened the Indian Union and led to better policy implementation and participation in political processes.
Why was Constitutional Status of Jammu & Kashmir changed?
- Article 370 was a considered stumbling block in bringing Kashmir closer to the rest of India, a source of extremism and separatism in the Kashmir Valley, and an avenue for Pakistan to gain a foothold in the Valley.
- The reorganisation of the erstwhile J&K State (abrogating Article 370, Converting from State to Union Territory, making Ladakh as separate UT) was defended on the ground that it leads to greater integration of J&K with the rest of the country.
ISSUES NEED TO BE ADDRESSED :
- Vacuum in Political Activity: Mainstream politics in J&K has become impossible with leaders in detention and those released reportedly undertaking to stay away from any public discussion on J&K’s future
- Against Transparency: Neither the J&K government nor the Centre has released a list or number of leaders who were detained last year
- Democratic Process : Undermined: The legislative route that the Centre took (without consultation with State) and the communication restrictions on the population that followed, casts a shadow on India’s standing as a constitutional democracy
- Spirit on Indian : Federalism Weakened: J&K’s special status within the Indian Union represented asymmetry, which is integral to the Indian federal experience. For ex: Several of North Eastern States enjoy varying degree of asymmetric Federalism
- Judicial Activism Lacking: The judiciary — the J&K High Court and Supreme Court — has not shown any urgency to settle the constitutional & legal questions raised by reorganisation of J&K
- Links to Chinese aggression: Some scholars have linked the continuing Chinese aggression in Ladakh to the change in J&K’s status
- India’s Global reputation in upholding Human Rights: At least two dozen politicians in J&K, including former CM Mehbooba Mufti, remain in detention, some not notified, which is against Democratic Credentials of India.
Concerns with India’s Kashmir policy:
- The continued detention of political prisoners, particularly those who have been legislators and sworn in by the Constitution of India, shows that democratic rights are not even available to the voices that speak on behalf of the Indian Union.
- Right to democracy: One-party rule had been imposed on the State through manipulation of elections; Opposition parties had been removed from competition, and civil liberties and human rights had been refused to the people.
- Militancy: Everyone is dissatisfied in J&K, including the people of Kargil within the separated Ladakh. The feeling of a threat to identity and prevailing political vacuum creates a breeding ground for militancy.
What is 35A?
- Article 35A was added to the Indian Constitution by a Presidential order in 1954 – issued under Article 370 of the Constitution.
- This provision allows the President to make certain “exceptions and modifications” to the Constitution for the benefit of ‘State subjects’ of J&K.
- While Article 370 of the Constitution grants special status to J&K, Article 35A provides the special rights and privileges to the permanent residents of J&K.
- The Fundamental Right to Property is still guaranteed in the state. Also, certain special rights are granted to the permanent residents of the state with regard to public employment, acquisition of immovable property, settlement and government scholarships.
- It disallows people from outside the state from buying or owning immovable property there, settle permanently, or avail themselves of state-sponsored scholarship schemes.
- Only the Jammu-Kashmir assembly can change the definition of Permanent Residents through a law ratified by a two-thirds majority.
WHAT IS FEDERALISM ?
- Federalism is a system of government in which power is divided between a central authority and constituent political units. Indian Federalism is different from the type of Federalism practiced in the countries like the United States of America
Features of the Federal System of India :
- Governments at least two levels
- Division of powers between various levels
- Rigidity of constitution
- Independence judiciary
- Dual citizenship
- Bicameralism
All federations might not have all the above features. Some of them may be incorporated depending on what type of federation it is.
Importance of Federalism in India :
- Federalism is the most relevant factor of modern constitutionalism. The core objectives of Indian federalism are unity in diversity, devolution in authority, and decentralization in administration. Through federalism, the State pursues the goal of common welfare in the midst of wide diversity in socio-cultural, economic spheres. Article 1 of the Indian Constitution states, ‘India, that is Bharat shall be a union of states”.
- Elements of federalism were introduced into modern India by the Government of India Act of 1919 which separated powers between the centre and the provincial legislatures.
Issues and Challenges faced by Indian Federalism :
- Regionalism
- Division of powers
- Absence of fiscal federalism
- Unequal representation of units
- Single Constitution and Citizenship
- Language of conflicts
- Issue of religion
CONCLUSION :
- We need multiple bridges including those between J&K and the rest of the country and among the various communities and regions of the former State.
WAY AHEAD :
Constitutional Change is not enough:
- The Kashmir conflict is a function of complex historical grievances, politico-ethnic demands, increasing religious radicalisation, and Pakistan’s interference in the Kashmir Valley. Any solution needs to be holistic
- Human Rights based Policy: Respect for human rights should be a key component of the Kashmir policy, as this and upholding national interest go hand in hand.
- Centre needs to start a conversation with the people of J&K: This can be achieved by release all political prisoners and holding elections with participation from all sections of society (including mainstream regional political parties)
- Any devolution should have adequate federal checks and balances as accountability and transparency are at the heart of any successful federal democracy.
QUESTION: Excise duty on alcohol ‘a major contribution to States revenue ‘ and explain the negative side of the sale of liquor . Discuss
Topic – TOXIC BREW
WHAT ?
- Liquor tragedies and states responsibilities
WHY IN NEWS ?
- Consumption of illicit liquor has led to the death of more than 100 people in Punjab.
BACKGROUND :
- There have been many instances of large-scale loss of life due to consumption of illicit liquor in the recent past.
- Such major incidents have been reported recently in Uttar Pradesh, Uttarakhand and Assam
How do states earn from liquor?
- Liquor contributes a considerable amount to the exchequers of all states and UTs except Gujarat and Bihar, both of which have enforced prohibition.
- Generally, states levy excise duty on manufacture and sale of liquor.
- Some states, for example, Tamil Nadu, also impose VAT (value-added tax).
- States also charge special fees on imported foreign liquor; transport fee; and label & brand registration charges.
- A few states, such as UP, have imposed a “special duty on liquor” to collect funds for special purposes, such as maintenance of stray cattle.
Major Hooch tragedies in India :
- In 2009, Nearly 136 people had been reported dead in Ahmedabad.
- In 2011, a hooch tragedy in Sangrampur in West Bengal had claimed the lives of 172 people.
- In 2015, 102 people died in Mumbai due to consumption of poisonous liquor.
- In January, 2019, almost 95 people died in UP and Uttarakhand
- In the most recent case in Feb, 2019 250 people died in Assam due to consumption of illicit liquor.
What is illicit liquor?
- Alcoholic beverages are made by fermentation of sugary and starchy substances, followed by distillation to increase alcohol concentration. The active ingredient in them is ethyl alcohol or ethanol.
- Illicit alcohol in contrast to other permitted liquors, is produced under unregulated circumstances and is often adulterated with chemicals like methanol, organo-phosphorus compounds and ethanol to save costs.
- Among the above-mentioned chemicals, Methyl alcohol (methanol) is a commonly used adulterant because of its appearance and taste similar to ethyl alcohol and its easy availability. It has also been concluded that it was the reason behind major hooch tragedies.
- Methyl alcohol (methanol) is generally used for furniture polish.
Negative Effects of Illicit liquor :
- Post consumption, Methanol is changed into formic acid inside the body. The accumulation of formic acid in the body adversely affects various organ systems.
- In normal cases it leads to dizziness and vomiting but as Methyl alcohol is extremely toxic — in extreme cases, 10 ml can cause blindness and 30 ml can cause death within 10 to 30 hours
Constitution Provisions that must direct state’s policy against liquor :
- Our constitution through various provisions has implicitly and explicitly directed states to take action that can reduce the amount of or eliminate the alcohol consumption:
- PART IV: DIRECTIVE PRINCIPLES OF STATE POLICY Article 47 envisages duty of the State to raise the level of nutrition and the standard of living and to improve public health: The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health.
- Article 21 provides for Right to life and liberty, which as per Supreme Court does not mean merely ‘animal existence’ but living with ‘human dignity’ and consumption of liquor leads to degradation of human dignity.
- Article 38 envisages the function of the Republic is to secure, inter alia, social, economic and political justice. i.e. not only legal justice but the socioeconomic justice as well.
- Legal status: Alcohol prohibition is a state subject in India with each state having full control of alcohol legislation, state excise rates and the organization of production and sale of alcohol. There is thus significant variation in prohibition across states and over time within states.
Notable Points
Health impact:
- The illicit liquor vendors in a bid to keep the costs low almost invariably use toxic methanol instead of ethanol.
- Consumption of illicit alcohol produces long-term health impacts. Illicit liquor, apart from causing death in a few cases, has also been reported to cause permanent damage in the form of blindness and tissue damage.
Apathy by government:
- The typical state government response in such cases has been providing financial relief for the affected families without addressing the root cause of the problem.
- Notably, many States have accorded low priority to revamping the excise administration and policing, resulting in low regulation of the illicit liquor trade.
Issue of corruption:
- There are also allegations that often corrupt bureaucracies allow the sale of illicit liquor by illicit liquor vendors in lieu of some share in the sales proceeds.
- Illicit liquor is sold openly by small-time vendors in some places without the fear of the state.
Impact of the pandemic:
- The issue has become further complicated during the COVID-19 pandemic, as people desperate for alcohol consumed hand sanitizer as a substitute, most recently in Andhra Pradesh.
- People with limited means to consume commercial alcohol often turn to the cheaper illicit liquor.
WAY FORWARD :
- The state must show determination to end the sale of illicit liquor and Governments should regulate the quality of legal alcoholic drinks, while actively tracing and tracking illicit alcohol.
- The capability of the health system in every district needs to be raised, to reduce the damage from methanol through immediate, simple detoxification therapies.
- A sustained public health campaign to wean people away from the drinking habit and to warn them about the effects of contaminants in illicit liquor are key interventions that can help reduce the instances of fatalities caused by the consumption of illicit liquor.
- The health communication about harm from alcohol is particularly relevant during the pandemic, since there is evidence of reduced immunity to viruses among those who are chronic alcohol consumers.
- To succeed in its efforts against the sale of illicit liquor, the state can consider cooperation with the community, particularly from women’s groups. This would allow the administration to address the issue at the grass-root level with the involvement of active stakeholders like women who often have to bear the brunt of alcohol consumption.
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