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Model Code of Conduct and the 2014 General Elections

April 14th, 2014 6 comments

Recently, the Election Commission has recommended postponing certain policy decisions of the government related to natural gas pricing, and notifying ecologically sensitive areas in the Western Ghats, by invoking the Model Code of Conduct (MCC).  It has also censured several candidates for violating the MCC.  In light of these recent events, we outline the key features of the MCC below.

What is the Model Code of Conduct and who does it apply to?

The MCC is a set of guidelines issued by the Election Commission to regulate political parties and candidates prior to elections, to ensure free and fair elections. This is in keeping with Article 324 of the Constitution, which gives the Election Commission the power to supervise elections to the Parliament and state legislatures.

The MCC is operational from the date that the election schedule is announced till the date that results are announced.  Thus, for the general elections this year, the MCC came into force on March 5, 2014, when the election schedule was announced, and will operate till May 16, 2014, when the final results will be announced.

How has the Model Code of Conduct evolved over time?

According to the Press Information Bureau, a form of the MCC was first introduced in the state assembly elections in Kerala in 1960.  It was a set of instructions to political parties regarding election meetings, speeches, slogans, etc.

In the 1962 general elections to the Lok Sabha, the MCC was circulated to recognised parties, and state governments sought feedback from the parties.  The MCC was largely followed by all parties in the 1962 elections and continued to be followed in subsequent general elections.

In 1979, the Election Commission added a section to regulate the ‘party in power’ and prevent it from gaining an unfair advantage at the time of elections.  In 2013, the Supreme Court directed the Election Commission to include guidelines regarding election manifestos, which it has included in the MCC for the 2014 general elections.

What are the key provisions of the Model Code of Conduct?

The MCC contains eight provisions dealing with general conduct, meetings, processions, polling day, polling booths, observers, party in power, and election manifestos.  Major provisions of the MCC are outlined below.

  • General Conduct:  Criticism of political parties must be limited to their policies and programmes, past record and work.  Activities such as:  (a) using caste and communal feelings to secure votes,  (b) criticising candidates on the basis of unverified reports,  (c) bribing or intimidation of voters, and (d) organising demonstrations or picketing outside houses of persons to protest against their opinions, are prohibited.
  • Meetings:  Parties must inform the local police authorities of the venue and time of any meeting in time to enable the police to make adequate security arrangements.
  • Processions:  If two or more candidates plan processions along the same route, organisers must establish contact in advance to ensure that the processions do not clash.  Carrying and burning effigies representing members of other political parties is not allowed.
  • Polling day:  All authorised party workers at polling booths should be given identity badges.  These should not contain the party name, symbol or name of the candidate.
  • Polling booths:  Only voters, and those with a valid pass from the Election Commission, will be allowed to enter polling booths.
  • Observers:  The Election Commission will appoint observers to whom any candidates may report problems regarding the conduct of the election.
  • Party in power:  The MCC incorporated certain restrictions in 1979, regulating the conduct of the party in power.  Ministers must not combine official visits with election work or use official machinery for the same.  The party must avoid advertising at the cost of the public exchequer or using official mass media for publicity on achievements to improve chances of victory in the elections.  Ministers and other authorities must not announce any financial grants, or promise any construction of roads, provision of drinking water, etc.   Other parties must be allowed to use public spaces and rest houses and these must not be monopolised by the party in power.
  • Election manifestos:  Added in 2013, these guidelines prohibit parties from making promises that exert an undue influence on voters, and suggest that manifestos also indicate the means to achieve promises.

Is the Model Code of Conduct legally binding?

The MCC is not enforceable by law.  However, certain provisions of the MCC may be enforced through invoking corresponding provisions in other statutes such as the Indian Penal Code, 1860, Code of Criminal Procedure, 1973, and Representation of the People Act, 1951.

The Election Commission has argued against making the MCC legally binding; stating that elections must be completed within a relatively short time (close to 45 days),  and judicial proceedings typically take longer, therefore it is not feasible to make it enforceable by law.

On the other hand, in 2013, the Standing Committee on Personnel, Public Grievances, Law and Justice, recommended making the MCC legally binding.  In a report on electoral reforms, the Standing Committee observed that most provisions of the MCC are already enforceable through corresponding provisions in other statutes, mentioned above.  It recommended that the MCC be made a part of the Representation of the People Act, 1951.

Case not closed – Appointment of judges

September 5th, 2013 2 comments

Parliament is considering a proposal to change the process of appointment of judges to the Supreme Court and High Courts.  A Constitutional Amendment Bill has been introduced in Rajya Sabha that enables the formation of a Judicial Appointments Committee (JAC), and states that the composition and functions of the JAC will be detailed in a law enacted by Parliament.  The appointments will be made according to the recommendations of the JAC.  This body replaces the current process of “consultation” with the Chief Justice of India (CJI) and other senior judges.

An ordinary Bill has also been introduced in Rajya Sabha which seeks to establish the JAC.  The composition of the JAC will be the CJI, the next two judges of the Supreme Court in terms of seniority, the law minister and two eminent persons.  These two eminent persons will be selected by a collegium consisting of the CJI, the prime minister and the leader of opposition in the Lok Sabha.  In case of High Court Judges, the JAC will consult with the chief minister, the governor of the state and the Chief Justice of the High Court.

The new system is widening the selection committee.  It includes representatives of the executive and senior judiciary, as well as two persons who are jointly selected by the executive (PM), judiciary (CJI), and the legislature (leader of opposition).

However, it may be diluting some of the safeguards in the Constitution.  At a later date, the composition of the JAC can be amended by ordinary majority in Parliament.  [For example, they can drop the judicial members.]  This is a significantly lower bar than the current system which requires a change to the Constitution, i.e., have the support of two thirds of members of each House of Parliament, and half the state assemblies.

The 120th Constitution Amendment Bill and the JAC Bill are listed for consideration and passing in Rajya Sabha today.  Given that these Bills propose fundamental changes to the process of appointments to key constitutional bodies, it is important that there be a wide debate.  The Rajya Sabha must refer these Bills to the Standing Committee for careful examination of various issues.

I have written a piece on this issue in the Indian Express today.

 

 

 

 

Supreme Court upholds 25% reservation in private schools

April 14th, 2012 2 comments

In a landmark judgment on April 12, 2012, the Supreme Court upheld the constitutional validity of the provision in the Right to Education Act, 2009 that makes it mandatory for all schools (government and private) except private, unaided minority schools to reserve 25% of their seats for children belonging to “weaker section and disadvantaged group”.  The verdict was given by a three-judge bench namely Justice S.H. Kapadia (CJI), Justice Swatanter Kumar and Justice K.S. Radhakrishnan.  However, the judgment was not unanimous.  Justice Radhakrishnan gave a dissenting view to the majority judgment.

According to news reports (here and here), some school associations are planning to file review petitions against the Supreme Court order (under Article 137 of the Constitution, the Supreme Court may review any judgment or order made by it.  A review petition may be filed if there is (a) discovery of new evidence, (b) an error apparent on the face of the record, or (c) any other sufficient reason).

In this post, we summarise the views of the judges.

Background of the petition

The 86th (Constitutional Amendment) Act, 2002 added Article 21A to the Constitution which makes it mandatory for the State to provide free and compulsory education to all children from the age of six to 14 years (fundamental right).  The Parliament enacted the Right of Children to Free and Compulsory Education Act, 2009 to give effect to this amendment.

The Act provides that children between the ages of six and 14 years have the right to free and compulsory education in a neighbourhood school.  It also lays down the minimum norms that each school has to follow in order to get legal recognition.  The Act required government schools to provide free and compulsory education to all admitted children. Similarly, aided schools have to provide free and compulsory education proportionate to the funding received, subject to a minimum of 25%.

However, controversy erupted over Section 12(1)(c) and (2) of the Act, which required private, unaided schools to admit at least 25% of students from SCs, STs, low-income and other disadvantaged or weaker groups.  The Act stated that these schools shall be reimbursed for either their tuition charge or the per-student expenditure in government schools, whichever is lower.  After the Act was notified on April 1, 2010, the Society for Unaided Private Schools of Rajasthan filed a writ petition challenging the constitutional validity of this provision on the ground that it impinged on their right to run educational institutions without government interference.

Summary of the judgment

Majority

The Act is constitutionally valid and shall apply to (a) government controlled schools, (b) aided schools (including minority administered schools), and (c) unaided, non-minority schools.  The reasons are given below:

First, Article 21A makes it obligatory on the State to provide free and compulsory education to all children between 6 and 14 years of age.  However, the manner in which the obligation shall be discharged is left to the State to determine by law.  Therefore, the State has the freedom to decide whether it shall fulfill its obligation through its own schools, aided schools or unaided schools.  The 2009 Act is “child centric” and not “institution centric”.  The main question was whether the Act violates Article 19(1)(g) which gives every citizen the right to practice a profession or carry out any occupation, trade or business.  However, the Constitution provides that Article 19(1)(g) may be circumscribed by Article 19(6), which allow reasonable restriction over this right in the interest of the general public.  The Court stated that since “education” is recognized as a charitable activity [see TMA Pai Foundation vs State of Karnataka (2002) 8 SCC 481] reasonable restriction may apply.

Second, the Act places a burden on the State as well as parents/guardians to ensure that every child has the right to education.  Thus, the right to education “envisages a reciprocal agreement between the State and the parents and it places an affirmative burden on all stakeholders in our civil society.”  The private, unaided schools supplement the primary obligation of the State to provide for free and compulsory education to the specified category of students.

Third, TMA Pai and P.A. Inamdar judgments hold that the right to establish and administer educational institutions fall within Article 19(1)(g).  It includes right to admit students and set up reasonable fee structure.  However, these principles were applied in the context of professional/higher education where merit and excellence have to be given due weightage.  This does not apply to a child seeking admission in Class I.  Also, Section 12(1)(c) of the Act seeks to remove financial obstacle.  Therefore, the 2009 Act should be read with Article 19(6) which provides for reasonable restriction on Article 19(1)(g).  However, the government should clarify the position with regard to boarding schools and orphanages.

The Court also ruled that the 2009 Act shall not apply to unaided, minority schools since they are protected by Article 30(1) (all minorities have the right to establish and administer educational institutions of their choice).  This right of the minorities is not circumscribed by reasonable restriction as is the case under Article 19(1)(g).

Dissenting judgment

Article 21A casts an obligation on the State to provide free and compulsory education to children of the age of 6 to 14 years.  The obligation is not on unaided non-minority and minority educational institutions.  Section 12(1)(c) of the RTE Act can be operationalised only on the principles of voluntariness, autonomy and consensus for unaided schools and not on compulsion or threat of non-recognition.  The reasons for such a judgment are given below:

First, Article 21A says that the “State shall provide” not “provide for”.  Therefore, the constitutional obligation is on the State and not on non-state actors to provide free and compulsory education to a specified category of children.  Also, under Article 51A(k) of the Constitution, parents or guardians have a duty to provide opportunities for education to their children but not a constitutional obligation.

Second, each citizen has the fundamental right to establish and run an educational institution “investing his own capital” under Article 19(1)(g).  This right can be curtailed in the interest of the general public by imposing reasonable restrictions.  Citizens do not have any constitutional obligation to start an educational institution.  Therefore, according to judgments of TMA Pai and PA Inamdar, they do not have any constitutional obligation to share seats with the State or adhere to a fee structure determined by the State.  Compelling them to do so would amount to nationalization of seats and would constitute serious infringement on the autonomy of the institutions. Rights guaranteed to the unaided non-minority and minority educational institutions under Article 19(1)(g) and Article 30(1) can only be curtailed through a constitutional amendment (for example, insertion of Article 15(5) that allows reservation of seats in private educational institutions).

Third, no distinction can be drawn between unaided minority and non-minority schools with regard to appropriation of quota by the State.

Other issues related to the 2009 Act

Apart from the issue of reservation, the RTE Act raises other issues such as lack of accountability of government schools and lack of focus on learning outcomes even though a number of studies have pointed to low levels of learning among school children.  (For a detailed analysis, please see PRS Brief on the Bill).

Presidential Reference in the 2G case

April 12th, 2012 2 comments

As per news reports, the union government has filed a Presidential Reference in relation to the 2G judgment.  In this judgment the Supreme Court had cancelled 122 2G licences granting access to spectrum and had ordered their re-allocation by means of an auction.  It also held that use of first cum first serve policy (FCFS) to allocate natural resources was unconstitutional.  It had held that natural resources should be allocated through auctions.

As per the news report, the Presidential Reference seeks clarity on whether the Supreme Court could interfere with policy decisions.  This issue has been discussed in a number of cases.  For instance, the Supreme Court in Directorate of Film Festivals v. Gaurav Ashwin Jain[1] held that Courts cannot act as an appellate authority to examine the correctness, suitability and appropriateness of a policy.  It further held that Courts cannot act as advisors to the executive on policy matters which the executive is entitled to formulate.  It stated that the Court could review whether the policy violates fundamental rights, or is opposed to a Constitutional or any statutory provision, or is manifestly arbitrary.  It further stated that legality of the policy, and not the wisdom or soundness of the policy, is the subject of judicial review.  In Suresh Seth vs. Commissioner, Indore Municipal Corporation[2] a three judge bench of the Court observed that, “this Court cannot issue any direction to the Legislature to make any particular kind of enactment.  Under our constitutional scheme Parliament and Legislative Assemblies exercise sovereign power or authority to enact laws and no outside power or authority can issue a direction to enact a particular piece of legislation.

In the present case it may be argued that whereas the Court was empowered to declare a policy such as FCFS as unconstitutional, it did not have the jurisdiction to direct auctioning of spectrum and other natural resources.  The Presidential Reference may conclusively determine the Court’s jurisdiction in this regard.  However, it has been urged by a few experts that this Presidential Reference amounts to an appeal against the decision of the Court.  They have argued that this could be done only through a Review Petition (which has already been admitted by the Court).

The advisory jurisdiction of the Court invoked through Presidential References, is governed by Article 143 of the Constitution.  Under Article 143 of the Constitution of India, the President is empowered to refer to the Supreme Court any matter of law or fact.  The opinion of the Court may be sought in relation to issues that have arisen or are likely to arise.  A Presidential Reference may be made in matters that are of public importance and where it is expedient to obtain the opinion of the Supreme Court.  The Court may refuse to answer all or any of the queries raised in the Reference.

A Presidential Reference thus requires that the opinion of the Court on the issue should not have been already obtained or decided by the Court.  In the Gujarat Election Case[3] the Supreme Court took note of Presidential References that were appellate in nature.  Thus, a Presidential Reference cannot be adopted as a means to review or appeal the judgment of the Supreme Court.  Against judgments of the Court the mechanisms of review is the only option.  This position was also argued by Senior Advocate Fali S. Nariman in the Cauvery Water Case[4], where the Court refused to give an opinion.

Whether the Court had the authority to determine a policy, such as FCFS, as unconstitutional is not disputed.  However, there are conflicting judgments on the extent to which a Court can interfere with the executive domain.    It would be interesting to see whether the Court would give its opinion on this issue.  In the event it does, it may bring higher level of clarity to the relationship between the executive and the judiciary.


[1] AIR 2007 SC 1640

[2] AIR2006SC767

[3] (2002) 8 SCC 237

[4] (1993) Supp 1 SCC 96(II)

Does the judiciary “make laws”?

April 20th, 2011 3 comments

A recent case before the Supreme Court has once again highlighted the issue of judicial decisions potentially replacing/ amending legislation enacted by Parliament.  The case importantly pertains to the judiciary’s interpretation of existing law concerning itself.  The eventual outcome of the case would presumably have important implications for the way the higher judiciary interprets laws, which according to some amounts to the judiciary “legislating” rather than interpreting laws.

 

This assertion has often been substantiated by citing cases such as Vishaka v. State of Rajasthan (1997) where the Supreme Court actually laid down the law pertaining to sexual discrimination at workplaces in the absence of a law governing the same.  In numerous other cases, courts have laid down policy guidelines, or have issued administrative directions to governmental departments.

 

In the recent case of Suraz India Trust v. Union of India, a petition has been filed asking the court to reconsider its own judgements regarding the manner of appointment and transfer of judges.  It has been contended that through its judgements in 1994 and 1998 (Advocate on Record Association v. Union of India and Special Reference No. 1 of 1998) the Supreme Court has virtually amended Constitutional provisions, even though amendments to the Constitution can only be done by Parliament.  This question arises since the Constitution provides for the appointment and transfer of judges by the government in consultation with the Chief Justice of India.  The two Supreme Court judgements however gave the primary power of appointment and transfer of judges to the judiciary itself.

 

Importantly, one specific question which has been raised is whether the judgements referred to above really amount to amending the relevant provisions of the Constitution.  Another question raised which is relevant to this discussion is whether the interpretation by courts can actually make provisions in the Constitution redundant.

 

In its judgement on the 4th of April, the Supreme Court referred this case to the Chief Justice of India for further directions.  The outcome of this judgement could potentially require the Supreme Court to define the circumstances when it interprets law, and when it “legislates”.  An indication of the Supreme Court’s attitude concerning this issue may be gleaned from the recent speech of the Chief Justice of India, Justice S.H. Kapadia at the M.C. Setalvad lecture.  The CJI unambiguously stated that:

…In many PILs, the courts freely decree rules of conduct for government and public authorities which are akin to legislation. Such exercises have little judicial function in them. Its justification is that the other branches of government have failed or are indifferent to the solution of the problem. In such matters, I am of the opinion that the courts should be circumspect in understanding the thin line between law and governance...”

 

 

Can the Supreme Court ask the government to frame a law?

December 23rd, 2010 4 comments

In a recent case, the Supreme Court directed the appropriate government to enact a law by June 2011.  The case, Gainda Ram & Ors. V. MCD and Ors.[1], concerned the legal framework for regulating hawking in Delhi.  The judgement lays out the background to this case by stating that the regulation of hawking in Delhi had been proceeding under directions issued by the Supreme Court in previous cases, and was being implemented by municipal authorities such as the New Delhi Municipal Corporation (NDMC).

The NDMC and the MCD have also framed schemes to regulate hawkers as per a policy of the government framed in 2004.  However, since these schemes were not laid before Parliament, the Court held that these schemes cannot be called ‘law’ or drafted under the authority of any law.  The Court also stated that there is an urgent need to enact a legislation to regulate hawking, and the rights of street vendors.

It referred to a Bill which had been framed by the government, and stated that since the government has already taken the first step in the legislative process by drafting a Bill, the legislative process should be completed.  On the basis of this, and other reasons, it directed the government to enact a law by June 2011.  This judgement raises three issues:

  1. The government is not the law making body in India.  Enacting a law is the function of Parliament and state legislatures.
  2. Even if the Court were to address the correct authority, Courts in India have no authority to direct the legislature to frame a law, let alone specify a time-period.  This may be said to violate the basic principle of “separation of powers” which states that the executive, legislature and judiciary should function independently of each other.  Under the Indian Constitution, the Supreme Court and the High Courts have the power to protect fundamental rights and to interpret law.  The Constitution does not give power to Courts to direct the framing of a law.
  3. Persons can be held in contempt of court for not following its directions.  In this case, it is not clear who would be held in contempt for not enacting a law by June 2011.  The Supreme Court can either hold the Speaker of the Parliament in contempt for not enacting a law by the specified date (it is uncertain whether the Court has this power since no such past instance has arisen). Or it can hold the concerned government official in contempt for not enacting the law within the time period specified (the government in this case, having no power to enact a law).

[1] Decided on October 8, 2010

Will judges have to declare assets under the new Bill on judicial accountability?

December 17th, 2010 1 comment

The issue of judges declaring their assets assumes importance in light of recent allegations and inquiries into allegations of wrongdoing by judges (read our post on the report of the Committee set up to examine allegations of wrongdoing by Justice Soumitra Sen of the Calcutta High Court).  The Delhi High Court also gave a judgement recently, requiring judges of the Supreme Court to declare their assets.

The Bill on judicial accountability (read summary here) requires judges to declare their assets to a specified authority within 30 days of them taking their oath of office.  The assets of spouses and dependents is also required to be disclosed.  The Bill also states that the assets declared will be put up on the website of the relevant court.

Bill on accountability of Judges

December 15th, 2010 No comments

The Judicial Standards and Accountability Bill, 2010 was introduced in the Lok Sabha on December 1, 2010. The Bill was introduced by the Shri M. Veerappa Moily, the Minister of Law and Justice.

The Bill seeks to (a) lay down judicial standards, (b) provide for the accountability of judges, and (c) establish mechanisms for investigating individual complaints for misbehaviour or incapacity of a judge of the Supreme Court or High Courts. It also provides a mechanism for the removal of judges.

Find the main features of the Bill explained here.

Honour Killings: Are we prepared to tackle the problem?

July 13th, 2010 3 comments

The issue of honour killing grabbed headlines with the death of Nirupama Pathak, a Delhi-based journalist, who was alleged to have been killed by her family because she was pregnant and was planning to marry a person outside her caste.  This was followed by two more cases of suspected honour killing (see here and here) in the capital.

While incidences of honour killing are a rarity in the capital, such incidences are common in the northern states of India such as Punjab, Haryana and Uttar Pradesh.  The basic reason behind honour killings is the idea that a family’s honour is tied to a woman’s chastity.  Thus, a wide range of causes can trigger honour killing such as marital infidelity, pre-marital sex, having unapproved relationships, refusing an arranged marriage or even rape.

In India, honour killings take place if a couple marries outside their caste or religionKhap panchayats also oppose and mete out punishments to couples who marry within the same gotra (lineage) or transgress other societal norms.  A recent judgement by a sessions court in Karnal for the first time awarded the death penalty to five men for murdering a young couple who had married against the diktats of a khap panchayat.  It gave life sentence to a member of the khap panchayat who declared the marriage invalid and was present when the killing took place.

On June 22, the Supreme Court issued a notice to the centre and eight states to explain the steps taken to prevent honour killing.  Taking a cautious approach the government rejected Law Minister, M. Veerappa Moily’s proposal to amend the Indian Penal Code and rein in the khap panchayats (caste based extra constitutional bodies).  It however decided to constitute a Group of Ministers to consult the states and look into the scope for enacting a special law that would treat honour killing as a social evil.

Experts are divided over the proposed honour killing law.  Some experts argue that the existing laws are sufficient to deter honour killing, if implemented properly while others feel that more stringent and specific provisions are required to tackle the menace of honour killings.

Existing Penalties under Indian Penal Code:

  • Sections 299-304: Penalises any person guilty of murder and culpable homicide not amounting to murder.  The punishment for murder is life sentence or death and fine.  The punishment for culpable homicide not amounting to murder is life imprisonment or imprisonment for upto 10 years and fine.
  • Section 307: Penalises attempt to murder with imprisonment for upto 10 years and a fine.  If a person is hurt, the penalty can extend to life imprisonment.
  • Section 308: Penalises attempt to commit culpable homicide by imprisonment for upto 3 years or with fine or with both.  If it causes hurt, the person shall be imprisoned for upto 7 years or fined or both.
  • Section 120A and B: Penalises any person who is a party to a criminal conspiracy.
  • Sections 107-116: Penalises persons for abetment of offences including murder and culpable homicide.
  • Section 34 and 35: Penalises criminal acts done by several persons in furtherance of common intention.
Arguments favouring new law Arguments against new law
  • Making the crime of honour killing a separate offence would help bring more clarity for law enforcement agencies.
  • One of the proposals is to amend the Indian Evidence Act to put the burden of proof on the accused.  Thus, the khap panchayat or the family members would be responsible for proving their innocence.
  • There would be joint liability under the proposed new law.  The khap panchayat (or any group ordering honour killings) and the person who carries out the killing would be jointly liable for punishment.
  • The existing penalty for the offence of murder is sufficient if they are implemented strictly and effectively.
  • A new set of laws would not deter honour killings because the basic issue is social sanction for acts committed to curtail same gotra marriage, inter-caste marriage, inter-religion marriage.
  • Need for creating awareness among traditional communities through education.
  • Holding khap panchayats  collectively accountable can be detrimental to members who do not support such killing.  Also, it could be misused for vindictive agendas.
Sources: “Define honour killing as ‘heinous crime’: Experts”, Hindustan Times, May 12, 2010; “Legal experts divided over proposed honour killing law,” Indian Express, Feb 16, 2010; “Legal Tangle,” Indian Express, July 10, 2010; and “Honour Killing: Govt defers decision on Khap Bill,” Indian Express, July 8, 2010; “Honour Killing: Govt considers special law,” Indian Express, July 9, 2010.

Meanwhile, khap panchayats are up in arms defending their stance against same gotra marriage.  They have demanded an amendment to the Hindu Marriage Act, 1955 disallowing same gotra marriage.  While condemning honour killings, some politicians such as Naveen Jindal and Bhupinder Singh Hooda have extended support to the demands of the khap panchayats.

It remains to be seen if India is effectively able to address this tug of war between tradition and modernity.