प्रदूषण की मार

संपादकीय

अब कहने-सुनने के लिए यह कोई नई बात नहीं रह गई है कि दिल्ली दुनिया के सर्वाधिक प्रदूषित महानगरों में शुमार है और भारत के ज्यादातर शहर वायु प्रदूषण की गंभीर मार झेल रहे हैं। हाल में जो चौंकाने वाली बात सामने आई है, वह यह कि वायु प्रदूषण इंसान की उम्र को भी कम कर रहा है। एक शोध में पता चला है कि पीएम 2.5 (पार्टिकुलेट मैटर 2.5) की वजह से औसत उम्र एक से डेढ़ साल तक कम हो रही है। और ऐसा सिर्फ भारत में नहीं है, बल्कि एशिया और अफ्रीका के ज्यादातर प्रदूषित देशों में यह देखने को मिल रहा है। हवा की गुणवत्ता और जीवन अवधि में संबंध को लेकर विश्व स्वास्थ्य संगठन ने पहली बार इस तरह का अध्ययन कराया है। इसमें एक सौ पिच्यासी देशों को शामिल किया गया। पता चला कि दुनिया के सबसे ज्यादा प्रदूषित पंद्रह शहरों में से जो चौदह शहर भारत में हैं, उनकी हवा में पीएम 2.5 की मात्रा सबसे ज्यादा है। पीएम 2.5 की वजह से लोगों पर बुरा असर पड़ रहा है। यह स्थिति एक गंभीर खतरे की ओर इशारा करती है और साथ ही चेतावनी भी देती है कि अगर जल्द ही ठोस कदम नहीं उठाए तो हालात विस्फोटक हो सकते हैं।

सवाल है कि अगर वायु प्रदूषण जिंदगी के लिए इतनी गंभीर चुनौती बन गया है तो इससे बचाव के लिए हम कर क्या रहे हैं? पिछले एक दशक में जिस तेजी से प्रदूषण बढ़ा है, उससे हमने क्या कोई सबक लिया? पिछले साल दिल्ली में वायु प्रदूषण से हालात इतने बिगड़ गए थे कि इमरजंसी जैसे कदम उठाने पड़े थे। महानगर गैस चैंबर में तब्दील हो चुका था। हवा में पीएम 2.5 और पीएम 10 की मात्रा खतरनाक स्तर से भी कई गुना ज्यादा हो गई थी। पीएम 2.5 कण फेफड़ों को संक्रमित करते हैं। इससे दिल का दौरा, मस्तिष्काघात और कैंसर जैसी बीमारियों का खतरा कई गुना बढ़ जाता है। इस शोध में यह सामने आया कि अगर पीएम 2.5 के स्तर को दस माइक्रोग्राम प्रति वर्ग घन मीटर रखा जाए तो साठ से पिच्यासी साल के लोगों की औसत आयु पर बढ़ते खतरे को टाला जा सकता है। पीएम 2.5 का उत्सर्जन सबसे ज्यादा वाहनों से निकलने वाले धुएं की वजह होता है। पिछले कई सालों से उत्तर भारत के ज्यादातर राज्य पंजाब और हरियाणा में पराली जलने से उठने वाले धुएं से त्रस्त रहे हैं। हालांकि सुप्रीम कोर्ट के कड़े रुख के बाद इन दोनों राज्यों ने इस समस्या निपटने की दिशा में शुरुआती कदम तो उठाए हैं। लेकिन सिर्फ इतने भर से समस्या का हल नहीं होने वाला। इसके लिए जरूरी है कि पराली को जलाने के बजाय उसे नष्ट करने के दूसरे विकल्प तलाशे जाएं।

वायु प्रदूषण का सबसे बड़ा कारण वाहनों से निकलने वाला धुआं है। ज्यादातर शहरों में वाहन पेट्रोल और डीजल से ही दौड़ रहे हैं। समस्या यह भी है कि अधिकतर शहरों में पेट्रोल और डीजल मिलावाटी मिलता है। इसके बावजूद डीजल-पेट्रोल पर निर्भरता कम नहीं हुई है, बल्कि बढ़ी ही है। वाहनों में सीएनजी का इस्तेमाल कुछ ही शहरों में हो रहा है। लोग निजी वाहनों का इस्तेमाल करने की प्रवृत्ति से मुक्त नहीं हो पाए हैं। सार्वजनिक परिवहन सेवाओं का बुरा हाल है। देश में अभी तक बिजली से चलने वाले वाहनों के निर्माण को लेकर कोई खास प्रगति भी नहीं हुई है।

Date:27-08-18

Article 35A and the basic structure

Any move to do away with it will damage the most solemn promises at the heart of the Indian federation

Suhrith Parthasarathy is an advocate practising at the Madras High Court

Can Article 35A of the Constitution be struck down? If yes, should it be? These questions — raised in a petition filed in the Supreme Court by a Delhi-based non-governmental organisation, “We the Citizens” — have already attracted widespread attention. The case, there’s little doubt, is freighted with political meaning. But when we look beyond the interests of politics, the issues aren’t especially contentious. As a matter of simple legal construction, it ought to be obvious to the court that the petition deserves a resounding dismissal. Any other verdict, which so much as entertains the notion that Article 35A is expendable, will impinge on basic tenets of constitutional interpretation, and will damage the most solemn promises that lie at the heart of the Indian federation.

Article 35A was inserted into the Constitution as part of a raft of amendments made through a 1954 presidential order, imposed under Article 370. Broadly, it empowers Jammu and Kashmir (J&K) to not only define a class of persons as constituting “permanent residents” of the State but also allows the government to confer on these persons special rights and privileges with respect to matters of public employment, acquisition of immovable property in the State, settlement in different parts of the State, and access to scholarships or other such aids that the State government might provide. The Article further exempts such legislation from being annulled on the ground that they infringe one or the other of the fundamental rights guaranteed by the Constitution. According to the petitioner, this immunity granted to J&K’s laws is discriminatory, and, therefore, Article 35A should be declared unconstitutional.

Well-settled law

When the case comes up for hearing this week, a three-judge Bench of the court intends to test the petitioner’s preliminary arguments and consider the question of whether Article 35A infringes the Constitution’s basic structure. The answer to this question, the court believes, will allow it to decide whether to refer the case to a larger bench for further examination. But this exercise is likely to be of little avail. The law on the subject is well settled. Previous Benches have already put their imprimatur on the 1954 presidential order. In any event, even if the court were to look beyond existing precedent, a proper reading of the text of Article 35A, and its constitutional history, will establish that the present petition is meritless; that Article 35A is not amenable to a conventional basic structure challenge.

Should Article 35A be scrapped?

India’s Constitution, as the political scientist Louise Tillin has explained, establishes a form of asymmetric federalism, in which some States enjoy greater autonomy over governance than others. This asymmetry is typified by Article 370 — a provision, as Ms. Tillin writes, which was debated for over five months before forming part of the Constitution as adopted in 1950. In its original form, Article 370 accorded to J&K a set of special privileges, including an exemption from constitutional provisions governing other States. What’s more, in accord with J&K’s Instrument of Accession, it restricted Parliament’s powers to legislate over the State to three core subjects: defence, foreign affairs and communications. Parliament could legislate on other areas only through an express presidential order, made with the prior concurrence of the State government. Where those subjects went beyond the Instrument of Accession, the further sanction of the State’s Constituent Assembly was also mandated. Finally, the Article also granted the President the power to make orders declaring the provision inoperative, but subject to the condition that this authority could be exercised only on the prior recommendation of the State’s Constituent Assembly.

However, with the disbanding of J&K’s Constituent Assembly in 1956, the question of suspending Article 370 was rendered moot. In the process, the asymmetry in India’s federalism was fortified. That this is the case can also be gleaned from a reading of Article 368, which contains the ordinary powers of constitutional amendment as applicable to other parts of India. One of the provisos to the clause (ironically made through the same presidential order which introduced Article 35A) makes it clear that changes made to the Constitution under Article 368 will not mechanically apply to J&K. For such amendments to apply to the State, specific orders must be made under Article 370, after securing the J&K government’s prior assent. What’s more, such amendments will also need to be ratified by the State’s Constituent Assembly. Indeed, as the Union Home Minister of the time, Gulzari Lal Nanda, put it in the Lok Sabha on December 4, 1964, Article 370 represents the only way of taking the Indian Constitution into J&K: “It is a tunnel,” he said, and “it is through this tunnel that a good deal of traffic has already passed and more will.”

Basic arguments

The petitioner in the Supreme Court now makes two basic arguments. Article 35A, it claims, could not have been introduced through a process outside the ordinary amending procedure prescribed under Article 368. Even assuming that the President possessed this power, the petitioner asserts, Article 35A infringes the Constitution’s basic structure. Both these claims, however, suffer from fundamental flaws.

As we have already seen, Article 370 is as much a part of the Constitution as Article 368. That the framers were deeply cognisant of the fact that the Constitution accorded J&K exceptional status is free of any doubt. It is particularly clear from the address made by N. Gopalaswami Ayyangar, the chief drafter of Article 370, to the Constituent Assembly on October 17, 1949: “Kashmir’s conditions are… special and require special treatment,” he said— “it is one of our commitments to the people and the Government of Kashmir,” that in matters outside the scope of the Instrument of Accession no additions would be made “except with the consent of the Constituent Assembly which may be called in the state for the purpose of framing its Constitution.”

That Article 370 is the embodiment of this promise was recognised as early as in 1959 by the Supreme Court in Prem Nath Kaul v. State of J&K. A few years later, another Constitution Bench of the court, in Sampat Prakash v. State of J&K, further clarified the position. “Art. 370 of the Constitution has never ceased to be operative,” it held, “and there can be no challenge on this ground to the validity of the Orders passed by the President in exercise of the powers conferred by this Article.” If anything, as A.G. Noorani has argued, there is a fine case to be made that all orders extending India’s Constitution to J&K subsequent to 1956, when the State’s Constituent Assembly was disbanded, are a nullity. But that the presidential order incorporating Article 35A, on the express recommendation of the State’s Constituent Assembly, is without legal authority is an argument that is destined to fail.

The structure

It is equally fallacious to suggest that Article 35A can somehow be subject to a basic structure challenge. The canonical rule established in 1973, in Kesavananda Bharati v. State of Kerala, that the powers of amendment under Article 368 are not plenary and that the Constitution’s basic features cannot be abrogated, was based expressly on an interpretation of the text of Article 368. Its logic doesn’t extend reflexively to amendments made under Article 370, a provision, which in and of itself, is essential to maintaining India’s federal structure. Besides, more than six decades have elapsed since Article 35A was inserted, and by now vast tracts of properties would have doubtless changed hands. In such cases, where constitutional amendments create vested rights in persons, as the Supreme Court held in Waman Rao v. Union of India, an amendment made prior to the decision in Kesavananda cannot be susceptible to a basic structure challenge. To hold otherwise would have consequences far more devastating than might immediately be apparent.

Until dams do us part

India’s policy on dams has to be urgently reviewed

M. Gopakumar ,[ The writer is Executive Director, Nityata River Otter Conservancy]

The tragedy in Kerala has highlighted the dangers of excess water accumulation in dams. More than 20 dams released water that cascaded down the hills, leaving behind a trail of destruction. The opening of the gates of the Idukki dam, for instance, caused the Periyar river to swell rapidly and discharge seven lakh litres of water per second. Yet, the argument for dams — that they provide drinking water and water for agriculture — is today scientifically discredited. For independent geologists and hydrologists, dams represent a nightmare, an ephemeral triumph of engineering over common sense and the natural sciences. Increasingly, it is evident that dam proponents are ignoring crucial decision-making data now available on patterns of rainfall, geology and climate change.

Dams store millions of tonnes of fresh water in large reservoirs, submerging prime forests, villages, farms and livelihoods. The 4,700 large dams built since 1947 have cumulatively displaced 4.4 million people. This makes dams the single largest cause for displacement post-Partition. Solving the drinking water crisis does not require giant storage structures; these dams take decades to come up and only a fraction of their output is for the household sector. Over 85% of them are used in agriculture for producing cash crops such as sugarcane. Dams have displaced the poorest of India’s people in favour of richer farmers and urban residents, often with little or no compensation.

Worryingly, dams are far more hazardous than any other infrastructure project, except nuclear plants. Even as Kerala and Tamil Nadu have battled over the safety of the 116-year-old Mullaperiyar dam, there are, according to the India Water Portal, over 100 dams in India which are over a century old, and more than 500 large dams which are 50-100 years old, many of which have major defects and need urgent repair. It is also accepted today that dams can trigger seismic events. The reservoir-induced seismicity (RIS) from the weight of the reservoir has resulted in earthquakes in various parts of the country: of the 75 cases of RIS reported worldwide, 17 have been reported from India.

The scale and frequency of natural disasters is growing. According to data compiled by the Centre for Research on the Epidemiology of Disasters, the instances of extreme weather have gone up from 71 in the 1970s to about 224 in the 1990s and 350 in the first decade of the millennium. In the second decade, Uttarakhand, Odisha, Chennai, and now Kerala and Kodagu district have all been hit.

There has never been a greater urgency to review India’s policy on dams and to act on decentralised alternatives that involve water recycling and reuse. The immediate task is to critically review every dam in the country, decommission those that are at end-of-life, stop building new ones and establish sound safety protocols. If this is not done, the time bomb will tick on.

Her rightful place

Schemes to develop skills, provide financial inclusion and uphold dignity are ensuring that women become a part of the growth story

Harsimrat Kaur Badal , [The writer is the Union Minister for Food Processing]

People living on the margins have been the core concern of the current government. Most such people live below the poverty level and a sizeable proportion amongst them are from the farming community. Women constitute a large chunk of the marginalised.

Farming has become non-profitable and a large number of farmers are debt-ridden. The participation of women in India’s workforce is only 27 per cent and their contribution to the country’s GDP is merely 17 per cent. The challenges before the government, therefore, were to increase the income of farmers and create conditions for the productive engagement of women. It was reckoned that if women’s participation increased to 50 per cent of the workforce, the Indian economy would see a staggering increase of $0.65 trillion.

These challenges were factored into the targets of the Ministry of Food Processing when I was assigned the task of working towards the goals of doubling farmers’ income and creating an environment conducive to the involvement of women in our economic growth. The food processing sector has emerged as a vibrant component of the overall manufacturing environment. It has attracted an investment commitment of nearly Rs 1 trillion. This year we expect 25 mega food parks to be completed. Another five such parks will be ready next year. The ministry is also creating a national cold chain grid. Several hundred projects will become operational this year. The Pradhan Mantri Kisan Sampada Yojana aims to create agro-processing clusters and backward and forward food processing linkages.

Such grass roots schemes mean more livelihood opportunities for women. For example, 14 women entrepreneurs have taken up projects in nine mega food parks, while 60 promoters of the cold chain projects are women. The government has tried to ensure that women have the skills to leverage such opportunities. The academic-cum-research institutes, National Institute of Food Technology and Entrepreneurship Technology (NIFTEM) and Indian Institute of Food Processing Technology (IIFPT), have stepped up their intake of women students. The government has also made sure that women benefit from the village adoption and training programmes.

World Food India 2017, the country’s first ever mega global food processing event of its size and scale, has delivered remarkable results and opened up new avenues for the Indian food sector globally. Projects worth $11 billion have already been auctioned by more than 30 companies. Organised retail companies and food majors of the world have scaled up their engagement in India’s food sector, setting up warehouses, collection centres and large-format stores.

While this is a source of satisfaction, I realise the potential is far greater. Women are today largely employed for sorting, grading, washing and packing in the food processing industry. In other words, illiteracy is not an impediment in their desire for financial independence. I am fortunate to be a member of Team Modi whose leader Prime Minister Narendra Modi not only recognises the potential of women but also works tirelessly to help them realise their potential. The PM has spearheaded some of the most revolutionary schemes to transform the lives of crores of women. This has ensured the increased participation of women in India’s growth story.

The government has a three-pronged strategy to empower women. First, it has focused on building their capacity for productive engagement through schemes like Beti Padhao Beti Bachao. A number of programmes have been launched to provide them access to skills and financial resources through the Pradhan Mantri Mudra Yojana. Initiatives have also been taken to provide them decent housing, sanitation and LPG connections. Third, the government is committed to framing strong legal deterrence in order to provide a secure environment to women — these include death penalty for rapists of minor girls and the Triple Talaq Bill.

The Pradhan Mantri Jan Dhan Yojana enabled 18 crore women to became part of its financial inclusion programme. Seventy-six per cent of the benefits under the Mudra Yojana have accrued to six crore women. The yojana has enabled them to avail loans and become self-reliant. The more than 7 crore toilets and 1 crore houses constructed by the government are also means to ensure the dignity of women. The Ujjwala Yojana has lit up the lives of 5.5 crore women through LPG connections. The scheme has also given them the right to good health.

My own mission over the past 10 years in Punjab has involved improving the state’s child sex ratio. Nanhi Chhaan, an NGO I run, has trained 10,000 women, who have been given sewing machines. These women are changing the mindset of their families who would earlier consider them a liability. Nanhi Chhaan has, in fact, become a people’s movement in Punjab. For example, the Lohri of a girl child is now celebrated with as much gusto as that of male child. Saplings are distributed in social functions and bhogs as a mark of respect for environment. The prime minister has worked tirelessly to transform, empower and enable the women of India to play a pivotal role in our country’s march towards becoming a global economic super power. I am grateful to him for making me part of this journey.