Gist of EPW February Week 2, 2022

The Economic and Political Weekly (EPW) is an important source of study material for IAS, especially for the current affairs segment. In this section, we give you the gist of the EPW magazine every week. The important topics covered in the weekly are analyzed and explained in a simple language, all from a UPSC perspective.
TABLE OF CONTENTS

1. Three Arguments for the Application of Proportionality in Rights Review in India
2. A Look into the 105th Amendment
3. Trust in Public Health Practice

1. Three Arguments for the Application of Proportionality in Rights Review in India

Context

The article provides three arguments why the proportionality principle is best suited to review fundamental rights in India.

Details

• Recently the Supreme Court has been increasingly relying on the principle of proportionality to review the constitutionality of laws that limit fundamental rights.
• The principle has been used in judgements on issues concerning privacy rights (Puttaswamy case), individual auto­nomy (Navtej Singh Johar case), and freedom of speech and its restrictions (Anuradha Bhasin case)

Principle of Proportionality

• The principle of Proportionality is related to the doctrine of interpretation of statutory provisions which maintain fairness and justice.
• The concept of proportionality is used as a criterion of fairness and justice in statutory interpretation processes
• Proportionality is considered to be a product of the contemporary pheno­mena of global constitutionalism.

Proportionality in Jurisprudence

• Proportionality is an important feature that guarantees against arbitrary actions by the state.
• The proportionality principle serves as a standard for resolving disputes involving fundamental rights and a governmental interest.
• Appli­cation of the principle requires pro­cess in which the government inte­rest is subjected to a three-pronged test.
• The three-pronged approach tests the validity of the government initiative based on its legitimacy, suitability and benefit-versus-harm analysis.
• Proportionality acts as a level-playing field between fundamental rights and government initiatives.

Significance of the Principle of Proportionality

• Addresses the issue of constitutionality holistically
  • Proportionality follows a review system that tests the constitutionality of a law by three separate tests.
  • Legitimacy test – requires the state to prove that the law has a constitutionally legitimate objective.
  • Suitability test – the constitutionality of a law is also analysed in terms of the degree of harm it causes to the fundamental rights.
  • Balancing test – the court checks if the benefit that is availed by harming the fundamental right outweighs the harm caused by it.
• Transparency
  • One major advantage of employing proportionality is that it makes the review process transparent.
  • Proportionality has all the attributes of a transparent review procedure.
• Holistic analysis
  • Proportionality works with conflicting interests, which involves fundamental rights most of the time on the one hand and a different interest on the other.
  • The major advantage of the proportionality principle is that it gives the scope to explore the law in its various dimensions and examine in detail the reasonableness of the limitation on a fundamental right.
• Historical Precedents
  • The idea of suitability and necessity has been historically engrained in jurisprudence in India.
  • The usage of proportionality can also be seen in various occasions of the Court namely,
    • In Chintaman Rao v the State of Madhya Pradesh case 1951, the court said that “Legislation which arbitrarily invades the rights cannot be said to contain the quality of reasonableness unless it strikes a balance bet­ween the freedom guaranteed in Article 19(1)(g) and the social control per­mitted by Article 19.
    • Ranjit Udeshi v State of Maharashtra 1965 case, the court held that “A balance should be maintained bet­ween freedom of speech and expression and public decency and morality but when the latter is transgre­ssed the former must give way.”

Criticism

• The principle of proportionality is criticized as “democratically illegitimate” as it empowers a group of unelected judges to parti­cipate in voting and judicial review that undermines the powers of “elected representatives”.
• Proportionality in India, contradicts the structural values of the principle, thus undermining its operational efficacy.
  • Example: in the Puttaswamy case, the Supreme Court confused the proportionality prin­ciple with the arbitrariness test.
• The Supreme Court recently has increasingly relied on the principle in validating the constitutionality of government measures.

Conclusion

The judicial review of laws that are against fundamental rights demands a methodology that satisfies social aspirations and also ensures that fundamental rights are not disproportionately limited.

It is this nature that gives prominence to the functioning of the proportionality principle which as a tool of decision-making, restricts the state’s potential of limiting the fundamental rights while ensuring that it does not disturb the socio-economic fabric of the society.

2. A Look into the 105th Amendment

Context

The key implications of the 105th amendment to the Constitution.

Reservations in India

• Reservations in education and employment are always in the limelight and are much debated.
• The original Constitution does not mandate reservations and also does not list the castes that are eligible to avail reservations.
• Many amendments have been introduced in this aspect with regards to,
  • Who are eligible for reservations
  • What should be the percentage of reservations for each category
  • Limitations
  • Who has the power to include or exclude castes from the backward class category.

105th Amendment to the Consti­tution

Background

• The Government of Maharashtra decided to extend the reservations to the Maratha caste in the state.
• This move was challenged in the courts. The high court upheld the constitutionality of the decision whereas the Supreme Court declared that this was unconstitutional.
• According to SC, the Marathas were not eligible to be included in socially and educationally backward classes (SEBC).
• The five-judge Supreme Court bench was divided (3-2) on the interpretation of the 102nd amendment to the Constitution.
• The 102nd amendment gave constitutional status to the National Commission for Backward Classes (NCBC) and It also dealt with the power to include or exclude a caste from the list of backward classes.
• The majority of judges in the bench held that the amendment gave the whole power in declaring a caste as SEBC to the central gover­nment.
• The other two judges of the bench felt that the said amendment did not disempower the states.
• Due to this interpretation of the majority bench, states demanded the restoration of their power from the centre.
• This resulted in the introduction of the 105th amendment to the Constitution in Parliament.

Key amendments

• The 105th Amendment will amend clauses 1 and 2 of Article 342A and also introduce a new clause 3. The bill will also amend Articles 366 (26c) and 338B (9).
• It is implemented to clarify that the states can maintain the “state list” of OBCs and that the 102nd amendment was only to create a Central List that would be applied only in the Central government and its institutions.
• The amendment will further clarify that the 102nd amendment had nothing to do with the State Lists of backward classes or the State governments’ powers to declare a community backward.

Implications of the amendments

• The amen­dment allows the states to prepare their own lists of the backward classes, taking the situation to what it was before the 102nd constitutional amendment.
• In many of the states in the country, the SEBCs or backward classes wield political power at the state level.
  • Example: Lingayats and Vokkaligas in Karnataka; and Kapus, ­Kamas, and Reddys in Andhra Pradesh and Telangana.
• There are different demands by the classes regarding reservations like,
  • The demand for transferring one’s caste from one group to ano­ther, to exploit resour­ces of the group that the existing beneficiaries are unable to utilise.
• In the last 30 years, employment under the state has started to decline.
  • The reforms in the 90s, privatization and disinvestment of PSUs, automation, and contractual employment are responsible for the decline.
  • Hence, the amendment at this juncture is quite significant.

Key Issues

• Since the term backward class is not defined in the Constitution, giving a free hand to state governments will lead to exploitation by certain classes who have a powerful presence in the state by making several additions and deletions to the list.
• The cap of 50% on reservations laid down in the Indra Sawhney case, has been violated in many states such as Tamil Nadu, Chhattisgarh and Haryana.
• There is no consensus to determine the numbers that constitute the backward classes. The reasons for this include,
  • Caste is a complex structure and it is difficult to determine which caste or group one belongs to considering the amount of interaction between different castes in Indian society.
  • There are differences across states with regard to backwardness and names and it will be a highly complex task to record data.
  • Considering the political nat­ure and implications of the exercise, it is hardly likely that the estimates will be accepted by those who will be negatively affected by it.

Conclusion

The restoration of power to the States will certainly lead to more loud claims and politically motivated demands for reservations that were supposed to fade away with the economic progress and political maturity.

3. Trust in Public Health Practice

Context

The article tries to examine and explain how the trust deficit during COVID-19 led to increased fear and how it contributes to vaccine hesitancy and other issues.

Significance of Trust in Public Health

• Trust is one of the most critical and significant aspects of public health policy.
• Reports have pointed out the significance and the need for trust in the success of public health measures, but the factors influencing societal trust are not adequately identified.
• Public trust is a vital factor in immunisation programmes and other large-scale public health drives.
• Closely related but also very crucial is the trust necessary for effective medical practice. The close relationship between the two is because the public at large links health and well-being to hospitals and medical care even though there is a reciprocal relationship between public trust in health systems and people’s well-being and social order. Its unique nature in medicine owes from its inherent chara­cter of information asymmetry between the doctor, the expert, and the patient, non-expert.
• The trust is developed based on the previous experience of patients with the healthcare institutions.
• Critics point out that “if there is a greater level of trust, lesser will be the fear during the crisis”
• The instances of trust deficit during the COVID-19 pandemic prove that trust-building is a complex exercise built through engagements with institutions over a long period of time.

Trust deficit during the pandemic

• COVID-19 pandemic caused fear in several dimensions like the risk of getting infected, its mode of infection and the severity of the disease.
• These fears are associated directly with the available treatment options and the challenges with their accessibility.
• The failure of the governments to respond to these issues in healthcare posed a bigger challenge than the COVID-19 virus.
• It is seen that the governments prioritise short-term measures like insurance schemes, vaccine coverage and diagnostics rather than strengthening health care services.
• The fear and mistrust among the public during the pandemic is a result of the poor response towards these issues in healthcare services.
• The public sector that was struggling with inadequate infrastructure further could not handle the burden, as a large maj­ority of the public rejected the private sector due to a lack of trust and affordability.
• It is known that more than 80% of the COVID-19 cases are asymptomatic or less severe, and most of the cases are treated successfully. The fear and anx­iety surrounding the COVID-19 is due to the lack of trust offered by both the public and private sector hospitals.
• Unlike diseases like cancer or AIDS which for which medical knowledge poses several challenges for treatment, the case of COVID-19 tells us that it is not the severity of the disease that is triggering the fear or anxiety, but it is more due to the inadequate access to quality treatment.

Trust deficit with the Public sector

• In the last 20 years, the middle class has been reluctant to use public sector hospitals.
• The poor using the public sector with an overcrowded environment and grossly inadequate infrastructure has created an impression that the public sector is bound to be “inefficient”.
• The poor beneficiaries are accustomed to sharing beds, spending longer time on the floors of the wards, poorly maintained water supply, toilet facilities, and other services.
• If anything goes wrong in treatment, it is always considered as a lack of commitment by the medical professionals and rarely does the patient focus on the systemic failures that operate beyond the competency of health professionals.

Trust deficit with the Private sector

• Privatisation of healthcare by the government has been raising the bar high for the underfunded public sector.
• The purchasing power of pati­ents and the business in healthcare determine the expectation of the care provided.
• The commercialisation of medical practice has gained “normalcy” as patients negotiate the type and cost of services provided by private hospitals.
• The middle class and the rich, who constituted the major base for the private hospitals, increased their skepticism towards them
• The distrust towards private hospitals has inc­reased many folds in the last 10 years
• This became more evident during the pandemic, where there were several uncertainties in terms of testing, treatment and doubts regarding the need for intensive care unit (ICU) support.
• The fear and reluctance among several patients, who tested COVID-19 positive, to seek treatment in private hospitals also confirm the same.

Vaccine Hesitancy

• The World Health Organization (WHO) identified vaccine hesitancy as one of the 10 major public health threats to global health in this century.
• The intensity of vaccine hesitancy became evident in the context of the COVID-19 pandemic in India and also across several parts of the world.
• The government and civil society agencies undertook various measures to address vaccine hesitancy
• Some states using institutional power made vaccination mandatory for government employees to continue their work. This was also seen in the case of healthcare workers
• Several corporate offices ext­ended this policy to make it compulsory by facilitating vaccination drives to its employees.
• Yet another effort by the state includes imposing travel restrictions across states and even nations for those who are not vaccinated.
• There were also incentive-based approaches, wherein freebies were offered for those vaccinated in shopping malls, other recreation sites, and even tourist sites.
• There were efforts of shaming by forcing people to parade in public by holding placards depicting their unvaccinated status. The Scholars warn that shaming in public health approaches is the most insensitive and inhuman approach in public health and can be detrimental to public trust.
• Health education is the most important and accepted public health interventions proposed for bringing behaviour change in a population.
• The idea is to provide complete information and the public is persuaded to follow positive behaviour through education and effective communication.
• The popular understanding behind this is that the tribal and other underprivileged commu­nities adopted modern medicine and other health programmes due to the communities’ improved understanding of the science and its benefits.
• But is the trust that has helped the community accept the range of services rather than the science behind them.

Way Forward

• The larger political and government institutions at the macro level through their egalitarian, progressive, and inclusive policies should build trust.
• At the meso level, trust is built based on the constant engagements with the public with the existing institutions and resources.
  • The institutions and resources include ration shops, transportation, anganwadi centres, and healthcare faci­lities.
• The institutions have the potential to ensure trust among people and it is necessary to ensure that these institutions provide adequate basic services as per the needs and expectations of their citizens.
• In public health, it is required to ensure that the health services are delivering all the necessary services to people as per their needs. The Scandinavian European countries, which are known for their efficient institutions, provide day-to-day services to people with good efficiency.
• The Society needs to work towards building more trust among its citizens as the majority of the population in their day-to-day life may not be really interested in understanding the science ­behind every service they avail.
• The existing and new institutions should deliver services with the ultimate goal of citizens’ welfare and be devoid of any vested interest or profit in delivering basic services.
• As the professionals and the institutions are valued based on their capacity to respond during a crisis, it is time for policymakers to recognise the crucial role of hospitals as an essential social institution for the existence of a society whose control cannot be left to the market forces.

Conclusion

The trust-building process is based on past experiences built through engagement with their institutions and It cannot sustain when it is engineered with incentive-based approaches or with the use of religious leaders as and when needed as seen in public health programmes.

Read previous EPW articles in the link.