Gist of The Hindu: February 2017

Gist of The Hindu: February 2017

Coordinates of safety

If we go by the National Crime Records Bureau reports, incidence of serious crimes against women rose from 237 per day in 2001 to 313 per day in 2015. These crimes include rape, kidnapping and abduction, dowry deaths and cruelty by husbands and relatives. Minor girls, adolescent and old women are frequently victims of brutal rapes and murders. Of these crimes, 30 per cent were rapes (including intent to rape). Higher incidence of crimes during 2001-2015 coupled with low conviction rate of 21 per cent of cases reported suggests that women are more vulnerable to serious crimes.

Women’s vulnerability varies enormously across States. Incidence of serious crimes was as high as 75 per lakh women in Delhi in 2015 as against approximately 5 per lakh women in Andhra Pradesh and Tamil Nadu. There are huge gaps in incidence of crimes between the three worst and the three best States. The three worst States in 2001 — Delhi, Haryana and Assam — remained largely unchanged in 2015, with Assam replacing Haryana as the second worst State. The best performers, however, changed during this period. Nagaland, Meghalaya, and Sikkim displayed the lowest incidence of crimes in 2001 but the top two were replaced by Andhra Pradesh and Tamil Nadu in 2015. However, across States, the overall concentration of serious crimes did not change significantly. For example, the three States (Uttar Pradesh, Rajasthan and Maharashtra) that accounted for 37 per cent of the crimes in 2001 were responsible for a slightly lower share of 34 per cent in 2015.

Here we focus on two related questions: (i) Why have crimes against women risen between 2001 and 2015? What are the factors associated with huge inter-State variation in these crimes in 2015? As answers to these questions lie in the interplay of affluence of a State, religion, demographics including female/male ratio, employment opportunities for women, their literacy, rural/urban population ratio, quality of governance in the State and media exposure, we carried out a detailed analysis that allows us to assess their individual and joint contributions to variation of serious crimes over time and across States.

Another factor is the sex imbalance measured as the number of females per 1,000 males. The sex ratio norm is 950. India’s ratio was below this (944 in 2015). A one per cent increase in the sex ratio lowers serious crimes against women by 8 per cent. Indeed, a skewed sex rationmore than undermines the affluence effect. So, if Delhi and Haryana continue to be the worst States despite being affluent (relative to, say, Andhra Pradesh), it is largely because of the abysmally low sex ratio in these two States. While the sex ratio increased in several States but remained low (Uttar Pradesh, Delhi, Haryana and Rajasthan), in others (Bihar, Maharashtra) it remained low and barely changed.

Other influential factors include female literacy and labour force participation. Female bargaining power depends on both their literacy and outside employment. However, the evidence also suggests a backlash in which male spouses — especially those who are unemployed — assert their superiority by retaliatory physical and sexual violence. Our analysis points to a favourable joint effect of female literacy and labour force participation, though the positive individual effects of female literacy and labour force participation are larger. If brutality in marriage becomes unbearable, exit options for women who are both literate and employed become more viable for them. Promoting both jointly is likely to be more effective in curbing domestic violence against women.

A somewhat surprising finding is that the higher the rural/urban population, the higher the incidence of serious crimes against women. A one per cent decline in the rural/urban population ratio is associated with a reduction of 0.4 per cent in the incidence of such crimes. Even though such crimes in urban areas have greater visibility in the media, the grim reality is that women in rural areas are more vulnerable. Despite likely under-reporting of such crimes, it is revealing that rural women more often seek remedial action against them. This, of course, doesn’t imply that they are more likely to succeed.

Although cultural norms and context take diverse forms — whether, for example, it is a matriarchal or patriarchal society — religion is one key dimension. Classifying the populations into Hindus and Muslims, we find that in both groups women are vulnerable to serious crimes but more so among the former. A one per cent increase in the share of the Hindus increases such crimes by 1.64 per cent — double the incidence among Muslims. That a greater frequency of wife-beating and dowry-related violence among Hindus — in extreme cases “bride burning” — still persists is worrying.

Nobel laureate Amartya Sen has emphasised that rape and other serious crimes against women are closely intertwined with inefficient policing and judicial systems, and callousness of society. So the quality of governance in States is key to understanding the huge variation in incidence of serious crimes against women. In a recent but ambitious study this year led by economist Sudipto Mundle, 19 States have been ranked on the basis of a composite indicator of governance in 2001 and 2012. This indicator combines five criteria — infrastructure, social services, fiscal performance, justice, law and order, and quality of the legislature. Even if some State rankings are intriguing because of the failure to take into account rampant political corruption, it is significant that the best five and the worst five performers remained largely unchanged during 2001-2012. Subject to this caveat and the fact that 2015 is not covered, using this measure of governance, we find that the incidence of serious crimes against women declines with better governance.

In conclusion, if the crimes against women rose despite greater affluence and a slight increase in the sex ratio during 2001-15, the answer must lie in likely deterioration of governance and persistence of low sex ratios in certain States. Illustrative cases include Bihar, Delhi and Maharashtra.

Searching for an equilibrium

In the 67th year of the Republic and 70th year of freedom, we find ourselves engaged in a heightened debate on the imperatives of preserving the constitutionally ordained jurisdictional equilibrium between the legislative, executive and judicial branches of the Indian state even as we celebrate the expansion of constitutional freedoms and the resilience of our democracy. At the heart of this debate is the reach of judicial review power exercised by the Supreme Court. Given the tenuous relationship between the executive and judiciary, the subject is increasingly relevant to the functioning of our constitutional democracy. While the sterling contribution of the court in asserting the inviolability of and expounding the right to dignity as the core constitutional value has been universally acclaimed, questions recur about the rightful limits of judicial intervention in the matter of policy choices in the executive and legislative domains.

Some of the court’s transformative judgments are recalled to indicate the evolution of our constitutional order, premised on protection against the arbitrary exercise of power, non-discrimination and “constitutionalisation of socio-economic rights”. Establishing the procedural fairness and reasonableness test in Maneka Gandhi (1978) to determine the constitutionality of the exercise of executive power and declaring in M. Nagaraj (2006) that Articles 14 (right to equality), 19 (right to fundamental freedoms) and 21 (right to life) “stand at the pinnacle of the hierarchy of constitutional values, the court recognised that human dignity, equality and freedom were “conjoined, reciprocal and covalent values” (Sandra Liebenberg, 2005).

While expanding human rights jurisprudence and recognising as fundamental the citizens’ right to food, health, education and clean environment, etc., the court in an expansive interpretation in V. Markendeya (1989) recognised the Directive Principles of State Policy as “the conscience of the Constitution” which give shape and meaning to fundamental rights. Having thus established the foundational principles for the exercise of a wider judicial review jurisdiction traceable to Articles 13, 32, 136, 142, 147 and 226 of the Constitution, the court declared that judicial review was a “constituent power” and an integral component of the unalterable basic structure of the Constitution ( Kesavananda Bharati, 1973).

Protagonists of a wide judicial review jurisdiction argue that it subserves the rule of law (Dicey, 1956), advances the cause of justice, is consistent with democracy and rules out only those choices that are obviously unreasonable and inconsistent with democracy (Ronald Dworkin, 1986). Socrates’s condemnation to death by Athenian democracy is recalled to argue that liberal democracy needs to protect itself against “the rule of the mob”. James Madison had argued for “auxiliary protections” to secure the fundamental liberties of citizens ( The Federalist Papers ).

Even so, questions abound as to the rightful ambit of the court’s judicial review jurisdiction within the framework of parliamentary democracy premised on the assumption that people exercise their sovereignty through elected representatives and not through the unelected judges. “Judicial supremacy”, “judicial excessivism” or “judicial despotism” are seen as antithetical to democracy and contrary to its first principles. It is argued that representative democracy is as much a part of the basic structure of the Constitution and that judicial review, although constitutionally sanctioned, cannot be exercised to negate or subordinate other fundamental features of its basic structure.

In some of its recent judgments, the Supreme Court has itself cautioned against ever increasing expectations from it. In a substantive judgment in Santosh Singh (2016), a Division Bench of the court declined to entertain a public interest litigation (PIL) seeking a mandamus for the inclusion of moral science as a compulsory subject in the syllabus of school education. In an eloquent exposition in the NJAC case, Justice J. Chelameswar in his minority judgment rejected a distrust of the legislators in securing the constitutional fundamental and argued: “To assume or assert that judiciary alone is concerned with the preservation of liberties and does that job well is an assumption that is dogmatic, bereft of evidentiary basis and historically disproved.” In its opinion in a Presidential Reference, a Constitution Bench of the Supreme Court had earlier opined that “Parliament and the legislatures, composed as they are of the representatives of the people, are supposed to know and be aware of the needs of the people and what is good and bad for them. The Court cannot sit in judgment over their wisdom”. In a recent order, the court declined to entertain a PIL seeking the court’s directions to restrain the Union government from incurring security and other expenses in respect of certain individuals in the State of Jammu and Kashmir on the ground that these writs are “judicially unmanageable”.

The ongoing debate concerning the limits of judicial review in a parliamentary democracy is anchored in profound philosophical issues concerning the nature of representative democracy and the inalienable fundamental human freedoms that need to be insulated against the “impulses of transient majorities”. In the light of our own experience of the political and judicial processes, it is legitimate to ask:

  • Can the original justification for the court’s anti-majoritarian role be used to equate constitutional supremacy and judicial independence with “judicial supremacy”?
  • How do we resolve disagreements over “constitutional-interpretative judgments” in the framework of a functioning democracy, given the disclaimer of judicial infallibility by the court itself?
  • Assuming a decline in credibility of the political executive, can the judiciary act as “co-governor” of the nation?
  • Where do we locate the “equilibrium between the Scylla of insensitive detachment suggesting indifference and the Charybdis of unwarranted intrusion” to fix the frontiers of judicial power in a constitutional democracy without being on the wrong side of the “democratic faith”?

As we reflect on these questions, it seems self-evident that in the articulation of constitutional principles, Pascal’s spirit of “self-search and self-reproach” reflected in recent judgments of the Supreme Court will best subserve to strengthen the institutions of India’s liberal democracy and sustain over time the otherwise wide ambit of judicial review, so that the judiciary remains “a light unto the nations” without being a “sheriff unto the nations” .

A pivot to China?

Till 1750, the Asian giants produced half of global economic output before gunboats and colonisation reshaped trade, and subsequently production and consumption. There is now a consensus that the locus of global wealth is again going to be in Asia. The implication of the interruption, or reversal, has not been explored as the strategic dimensions continue to be seen through a Western prism. Western analysts focus on the relative decline of the U.S. rather than on Asia’s re-emergence. The underlying assumption is that the world needs global institutions, rules and agreements to solve problems that countries cannot solve on their own, while not addressing the question that has now come centre stage — who sets the worlds standards and for what purpose?

Globalisation, driven by the ‘Washington Consensus’, dominated global policymaking, with the World Bank, International Monetary Fund and World Trade Organisation as the institutional centres of gravity. Developing countries have complained for decades about the ‘terms of trade’, ‘conditionalities’ and intellectual property rights linked with trade sanctions. The limits to trade liberalisation are now also being raised in the West. David Ricardo’s arguments of comparative advantage of countries and Adam Smith’s emphasis on competition creating wealth are not relevant in today’s knowledge-based, urbanised world of middle-class consumers and global value chains. The problem is not trade, which has been happening for over 2,000 years, but the nature of recent rules going beyond facilitating commercial transactions.

The thought leadership for shaping global politics, with Asia restored at its economic centre, should revert to the 2,000-year-old pattern of commercial transactions, with trade rules limited to standardisation and dispute settlement. Asian prosperity is more than a geo-economic or geopolitical concept, underlined by President Barack Obama’s failed attempt to prevent Asia from setting the new rules for trade. China and India have much in common, if we move out of the Western frame, as both are civilisational states whose contours were shaped by major snow-fed rivers. In both states, no strategic thinker advocated conquest of lands outside this sphere, in sharp contrast to Western strategic thinking on control of the seas, security alliances and rules pushing common values as the best way of organising international relations.

China took advantage of global value chains shaping long-term economic calculations, redefining global power and securing a head start over India. China will remain the world’s largest producer of goods and India can be the largest producer of services. The services sector will be the real driver of future growth in Asia, with affluence concentrated in cities, giving a younger India future advantage. India has the capacity for global leadership as the hub of the new knowledge-based order, including new pharmaceuticals and crop varieties, as it is the only country with both extensive endemic biodiversity and world-class endogenous biotechnology industry. Along with global leadership in software-led innovation, foundation of the new low-carbon digital-sharing economy, India is developing low-cost solutions for urbanisation, governance, health and education problems. Sharing solutions to common problems as a new form of international relations will provide legitimacy to reshape the global order with sustainability as the defining value.

China is keen to have India on board its One Belt, One Road (OBOR) initiative for connectivity-led trade in Eurasia. It has suggested a free trade agreement and both countries recognise the synergies for achieving the ‘Asian Century’. India’s knowledge-based strengths complement those of China in infrastructure and investment. India should seek to ‘redefine’ OBOR, adding a stronger component for a ‘Digital Sustainable Asia’, and for Eurasian connectivity to have two nodes, as has been the case throughout civilisation. A mutual recognition of ancient special interests in the South China Sea and the Indian Ocean should be a strategic objective. This step will enable an understanding on issues like membership of the Nuclear Suppliers Group, global terrorism, and Gwadar, which are irritants in the development of stronger ties. Prime Minister Narendra Modi must recognise that trade will trump security.

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Courtesy: The Hindu