Bipartisan and non-partisan appointments for democratic institutions

Whatever might be the implications for the individuals involved in the current controversy over the Election Commission, the CEC's second letter to the President raises a very important point. Under the current scheme of things under Article 324 of the Constitution, CECs and ECs are appointed by the President on the advice of the Prime Minister. We have come a long way from that idea. Almost every body of importance established in recent times (like the National Human Rights Commission, Central Vigilance Commission, Central Information Commission etc) has a bipartisan (or even non-partisan) appointment committee. Let the controversy bring out one good, in that the Constitution is amended to ensure appointments to the Election Commission are made by a committee comprising at least of the Prime Minister and the Leader of Opposition in the Lok Sabha.

On a related matter, this report says that the government is planning to establish a permanent regulatory committee (National Textbook Council) to examine school text books, to make sure they do not preach values against the spirit of the constitution. It appears to be a move to preempt another textbook controversy if the BJP comes to power after the next general election. The completely depoliticised composition of the Committee is rather interesting to note:

'The NTC will ... be headed by a retired judge of the Supreme Court nominated by the Chief Justice of India. It will have six member - officials picked from the Central Institute of Indian Languages (CIIL), IITs, reputed social science research institutes, and academics from the fields of languages, science and mathematics, social sciences and humanities. Two of the members will be women.'

The idea of an impartial regulatory watchdog making sure that our schools do not teach hate may be a useful one. However, we need to be wary of it becoming a body which kills imagination by overzealous censorship of all 'offensive' ideas.

Is there a lacuna in Article 74?

With the Prime Minister, Dr.Manmohan Singh having been hospitalised, he will be virtually absent from office on health grounds for a month at least. My friend, Manoj Mitta has suggested in Today's Times of India (Unlike U.S., India has no 2-in command) that Article 74 of the Constitution has a lacuna in that it does not provide for a No.2 in the Council of Ministers to officiate as the PM in his absence. However, he adds after reproducing Article 74, as follows: "Therefore, the cabinet can carry on even when the Prime Minister is temporarily absent". A literal reading of Article 74 does not sustain Manoj's position. I am also inclined to disagree with him that the Prime Minister is only first among equals in his cabinet consisting of elected representatives. I outline my take as follows:

1. There is no lacuna in Art.74: Having provided in Art.65 that the Vice-President can officiate as President in the absence of the President, did the Constitution-makers forget to include a similar provision in the case of the Prime Minister? In the U.S., the electors of the President know who is the Vice-Presidential candidate, who will take over as the President if there is a vacancy. Therefore, the U.S.Constitution provided for such a succession. In India, which follows Parliamentary democracy, voters do not know who the Prime Minister will be after the elections, let alone his successor, in case of a sudden absence of the PM. Therefore, our Constitution-makers wisely refrained from copying the American model. Instead they worded Article 74 to require that there ought to be a Council of Minister headed by the Prime Minister all the times. That is, the two ingredients of Article 74 are inseparable twins. The Constitution does not envisage an absentee Prime Minister. Like every one, Manoj agrees that the PM is absent, and will be absent for a month at least. Therefore, the right course would be for the PM to resign, and let his successor be sworn in as the next PM, in accordance with what his party decides.

2. Why does our Constitution not recognise an officiating PM?: The answer lies in Manoj's own story where he claims, apart from other things, the PM also has access to the nuclear button. Can such a responsibility be entrusted to someone who is just officiating - whether legally or through a formal/informal mechanism, as Mr.Pranab Mukherjee does now? In 1948, the question of access to nuclear button might not have arisen, but the Constitution-makers did know that the office of the PM is endowed with serious and onerous responsibilities, and it requires a full-fledged leader who enjoys the confidence of the House. An officiating PM cannot enjoy the confidence of the House, even if the Constitution had sanctioned it. Therefore, they expected the ruling party or coalition to quickly move in, elect a new leader, and ask that leader to accept the office of the PM, in case there is a sudden vacancy. A vacuum in the office of the PM, even for a few hours, is a serious matter. Remember 1984 when the nation took a few hours to choose Indira Gandhi's successor? What we are likely to witness is vacuum for several days, which is ominous. Here, precedents may be cited - Vajpayee when he was hospitalised or even MGR when he went to the U.S. for treatment as the Chief Minister for nearly a month. Well, these were flawed precedents which did not correctly reflect the spirit of Article 74.

3. Is the Prime Minister first among the equals? A bare reading of the Constituent Assembly Debates on December 30, 1948, when it discussed draft article 61 (corresponding to the current article 74) suggests that the office of the Prime Minister was conceived as the supreme one, and an inevitable concomitant of Parliamentary democracy. One Member K.T.Shah wanted deletion of the words "with the Prime Minister at the head' from draft Article 61(1), but the amendment was rejected after a lengthy reply from Ambedkar.

Ambedkar said:

"Supposing you have no Prime Minister; what would really happen? What would happen is this, that every Minister will be subject to the control or influence of the President. It would be perfectly possible for the President who is no adidem with a particular Cabinet, to deal with each Minister separately singly, influence them and thereby cause disruption in the Cabinet. Such a thing is not impossible to imagine. Before collective responsibility was introduced in the British Parliament you remember how the English King used to disrupt the British Cabinet. He had what was called a Party of King's Friends both in the Cabinet as well as in Parliament. That sort of thing was put a stop to by collective responsibility. As I said, collective responsibility can be achieved only through the instrumentality of the Prime Minister. Therefore, the Prime Minister is really the keystone of the arch of the Cabinet and unless and until we create that office and endow that office with statutory authority to nominate and dismiss Ministers there can be no collective responsibility.

"...I have not been able to understand why, for instance, Prof. K. T.Shah thinks that the Prime Minister ought to be eliminated.If I understood him correctly, he thought that he had no objection if by convention a Prime Minister was retained as part of the executive. Well, if that is so, if Prof. K. T.Shah has no objection for convention to create a Prime Minister, I should have thought there was hardly any objection to giving statutory recognition to the position of the Prime Minister.
In England, too, as most students of constitutional law will remember, the Prime Minister was an office which was recognised only by convention. It is only in the latter stages when the Act to regulate the salaries of the Minister of Cabinet was enacted. I believe in 1939 or so, that statutory recognition was given to the position of the Prime Minister, Nonetheless, the Prime Minister existed.

"I want to tell my friend Prof. K. T. Shah that his amendment would be absolutely fatal to the other principle which we want to enact, namely collective responsibility. All Members of the House are very keen that the Cabinet should work on the basis of collective responsibility and all agree that is a very sound principle. But I do not know how many Members of the House realise what exactly is the machinery by which collective responsibility is enforced.Obviously, there cannot be a statutory remedy. Supposing a Minister differed from other Members of the Cabinet and gave expression to his views which were opposed to the views of the Cabinet, it would be hardly possible for the law to come in and to prosecute him for having committed a breach of what might be called collective responsibility. Obviously,there cannot be a legal sanction for collective responsibility. The only sanction through which collective responsibility can be enforced is through the Prime Minister. In my judgment collective responsibility is enforced by the enforcement of two principles. One principle is that no person shall be nominated to the Cabinet except on the advice of the Prime Minister.

"Secondly, no person shall be retained as a Member of the Cabinet if the Prime Minister says that he shall be dismissed. It is only when Members of the Cabinet both in the matter of their appointment as well as in the matter of their dismissal are placed under the Prime Minister, that it would be possible to realise our ideal of collective responsibility. I do not see any other means or any other way of giving effect to that principle. Supposing you have no Prime Minister; what would really happen? What would happen is this, that every Minister will be subject to the control or influence of the President. It would be perfectly possible for the President who is no adidem with a particular Cabinet, to deal with each Minister separately singly, influence them and thereby cause disruption in the Cabinet. Such a thing is not impossible to imagine.

"Before collective responsibility was introduced in the British Parliament you remember how the English King used to disrupt the British Cabinet. He had what was called a Party of King's Friends both in the Cabinet as well as in Parliament. That sort of thing was put a stop to by collective responsibility. As I said, collective responsibility can be achieved only through the instrumentality of the Prime Minister. Therefore, the Prime Minister is really the keystone of the arch of the Cabinet and unless and until we create that office and endow that office with statutory authority to nominate and dismiss Ministers there can be no collective responsibility."

Not all of Ambedkar's fears may be relevant now. But they help us to understand why the Constitution-makers considered the office of the Prime Minister and the President differently, and did not provide for an officiating Prime Minister.

India's first 'referendum'?

Villagers in some villages in Maharashtra are casting votes to state their opinion on an SEZ, and the government has promised to take their verdict 'into account' in making its decision. Issue based referenda, quite common in many democracies, do not find place in our constitutional scheme. This may be a beginning. In fact, on issues like SEZs where a cacophony of discordant political and corporate voices drowns the real desire of the local people, a referendum might solve the problem decisively.

Editorial Analysis of former Chief Election Commissioner’s induction into the Union Cabinet

Today’s Indian Express has an editorial that is sharply critical of this action. Here is how the Express sees the issue:

Constitutional authorities like the Election Commission and the Comptroller and Auditor General perform a vital oversight duty in our democracy, and it is crucial that those in charge of them stay delinked from the political process in order to avoid any suspicion of slant or bias. Without casting any aspersions on Gill, we worry about the precedent set by the UPA four years after the Congress brought him into the Rajya Sabha. As India moves from an interventionist state to a regulatory one, we have turned our faith towards a reformist judiciary, presidency and the EC. Even as confidence in the cabinet and Parliament eroded, the EC has enjoyed immense public credibility, with its constitutionally guaranteed independence and its pivotal role in our democracy. In fact, it is the public perception of the EC’s impartiality that has enhanced the legislature’s credibility.

Against such a background, the Express editorial raises the following question:

How can we believe that bodies like the EC will remain fiercely independent if those in charge of them can go on to join the very fray they are meant to oversee?

Reading this editorial, I was reminded of similar concerns raised when former members of the higher judiciary enter the political fray, an issue that was alluded to in the comments section of this recent post.

Interestingly enough, this is the precise connection that Harish Khare draws in his column in today’s Hindu, where his principal focus is also on MS Gill’s induction into the Union Cabinet. After expressing concerns similar to those outlined in the Express editorial above, Khare asserts:

Understandably, the post-retirement behaviour of constitutional functionaries has increasingly come under close scrutiny. It is rather elementary. A government — and that means the ruling party of the day — can easily suborn a constitutional functionary by dangling the carrot of a post-retirement “accommodation.” In some cases, the expectation is written in stone. For instance, the Constitution specifically proscribes in Article 148(4) the Comptroller and Auditor-General of India from accepting any office under the Government of India or a State government “after he has ceased to hold his office.”

A somewhat similar principle is invoked in the case of the higher judiciary. Article 124(7) says Supreme Court judges, after retirement, shall not “plead or act in any court or before any authority within the territory of India.” As the judiciary has asserted itself aggressively against a weak executive and a stalemated legislature, democratic opinion has come to expect that once they leave the bench the judges would be able to resist the temptations any executive can offer. Conventions about post-retirement judicial behaviour are far from settled. A former Chief Justice, J.S. Verma, has asked for a debate on the post-bench activities of the judges.

Khare’s solution to this issue is set out in the final part of his column:

Constitutional functionaries are like monks, making lifelong commitments of moral virtue and personal self-negation. Those who seek to serve the nation in high positions owe it to themselves — as also to the democratic expectation — to remain above the fray. Surely, there must be many ways of contributing to and enriching public life without cutting a deal with a political operative. At stake are the reputation, credibility and popular acceptability of these very institutions.

Khare’s proscription has the advantage of being clear and straightforward. Yet, I remain unsure whether it is necessarily the most pragmatic measure at a time when our judiciary is struggling to attract the best legal talent to the bench. What is required, perhaps, is creative thinking on what Khare calls the “many ways of contributing to and enriching public life without cutting a deal with a political operative.” I wonder what others might have to say in response to Khare's views on this issue.

Yogendra Yadav on Justice SL Sinha

I didn’t notice this earlier, but today’s issue of the Indian Express carries another tribute to Justice JL Sinha, authored by Yogendra Yadav of CSDS. Like that of Shanti Bhushan, which was the subject of the previous post, Yadav’s tribute has a personal touch to it (although he never met the judge). Here is what Yadav has to say on the significance of Justice Sinha’s most famous judgment:

Perhaps the real significance of Justice Sinha’s judgement was that it conveyed to an ordinary person what ‘rule of law’ meant. This was not the first time that the judiciary was passing an order to the dislike of the political masters. But the act of unseating the prime minister signaled the rise of constitutional institutions as independent actors in our democracy: the Allahabad High Court’s judgment was followed by Justice H.R. Khanna’s celebrated dissent during the Emergency and the less remembered but no less honourable role of the Election Commission during the 1977 elections. This was the precursor to the assertion of institutions like the Election Commission and the judiciary in the 1990s. The consequences of this assertion are yet to unfold fully, but it may be safe to say that the constitutional design of a political executive kept in check by a set of independent institutions was triggered by Justice Sinha’s remarkable judgement.

The most remarkable thing about the judgement was how unremarkable it was as a piece of judicial pronouncement; it was a simple verdict on technical grounds, without any rhetorical flourish. In that Justice Sinha was very much like Justice Khanna, who also passed away recently. Both of them were not known for their erudition or path-breaking interpretations. Nor were they popular for their pro-people activism. They were anything but flamboyant; not for them the highly publicised tongue-lashing at government officials that is becoming common in the courts now-a-days. After retirement they quietly faded from public life. But their honesty and courage of conviction allowed them to stand up when many legal luminaries and activist judges had surrendered.

As he nears the conclusion of the piece, Yadav draws attention to the contemporary relevance of his musings:

Tomorrow (March 23) is the anniversary of the end of Emergency, marked every year by the People’s Union for Civil Liberty in the presence of a small group of civil liberty activists. Such a group might use the departure of these two heroes of post-independence India to ask some basic questions about our judiciary: as our judges acquire more and more power, including the unprecedented power to appoint their successors, are more and more judges acquiring the courage of conviction that match their powers? Can the public trust every judge to display the same indifference to power — be it political leaders, film stars or corporate giants — that was displayed by Justices Sinha and Khanna? We need to draw upon their honesty and courage to begin to debate this question in public.

Reforming the Parliament

Two interesting developments, both initiated by the Chairs of the two Houses of Parliament, are worth noting.

First concerns the an issue referred to the Committee of Privileges by the Vice-President and Rajya Sabha Chairperson Hamid Ansari. The question referred is whether members of the House who obstruct its proceedings violate the privilege of those who were entitled to ask questions but could not because of the obstruction to the proceedings. Whether the legal determination of the issue will have any practical ramifications remains to be seen.

The second issue has been raised by the Speaker of the Lok Sabha, Somnath Chatterjee. He has favoured making transparent the debates that take place in the Standing Committees of the House, a stand opposed by both the Congress and the BJP. The issue is an important one, and not entirely unrelated to the first one. Given how little legislative work actually takes place in the Houses of Parliament due to regular obstructions (the PRS website has useful tables tabulating hours spent in legislative activity), much of actual legislation (at least for the more important legislations) is delegated to various Committees. Although these committees do sometimes invite comments from the public on matters under consideration through links on the Parliament's website, their debates and proceedings are largely opaque. The argument against openness, aptly articulated in the link above by Sushma Swaraj, is that opaqueness in the Committees allows MPs to argue on principle and not toe the party line. Ideally, this should happen in the Houses of Parliament as well, but they have largely become fora for playing to the gallery. Thus, legislators end up wearing two hats, one for public consumption and other other as policy-makers. The system encourages dishonesty and hypocrisy. In general, given that legislative business has mostly shifted to Parliamentary Committees, they deserve much more academic and media attention than they get at the moment.

Given widespread political consensus on both questions raised by the Chairs of the two Houses in favour of inertia, nothing is likely to change.

Opposing editorial analyses of the scrapping of SEZs in Goa

As we await further developments on the Goa Government’s decision to scrap SEZs in the state, two prominent dailies have issued contrasting editorials. Yesterday, the Hindu’s editorial team weighed in, speaking out in favour of the Goa government’s stance. The Hindu editorial views the decision as responding to the public protests in the state against SEZs, and advises the Central Government to “respect this democratic outcome and help the State government speedily resolve all remaining issues, especially the question of how land already allotted to private parties in the three notified SEZs will be recovered.”

In making its case, the Hindu editorial focuses on the following points:

A coastal State with an area of 3,700 square kilometres and a population of about 1.4 million, Goa has always been extremely sensitive to the impact of unrestrained economic development. The upsurge of public activism against the setting up of Special Economic Zones, which eventually forced the State government to announce the scrapping of all 15 such projects, is an impressive case in point. Early last year, a similar agitation coerced the government into calling for a re vision of the Goa Regional Plan 2011, a controversial document that opened up large swathes of land, including green belts and coastal stretches, for construction. The broad-based agitation against SEZs has demonstrated the power of popular protest in the State. Those opposed to the projects had questioned the propriety of the government acquiring large tracts of land and then selling them to promoters at low prices. There were also suspicions that some of the SEZs were real estate speculative plays, fronts for the entry of big construction companies.

The Express editorial, which is featured in today's issue, draws attention to the overall policy implications for SEZs in general, and urges the Central government to “stand firm in rejecting the decision” of the Goa Government. Here are the details it relies upon:

Of the 15 proposed SEZs three have already been notified by the Centre after the state government earlier recommended them. The other 12 SEZs too have been recommended by the state government but remain to be notified. However, the land has been formally allotted in the case of all the SEZs. In the case of SEZs already notified construction is under way and investments worth Rs 500 crore are in the pipeline. Equipment has already been imported at zero duty by one of the SEZs being set up by a well-known pharmaceutical company. The company also has other non-SEZ operations in Goa where the bulk of the people employed are locals. The Centre will have to decide whether it wants to generate more employment or let rent seekers have their way.

Addressing the legal issues involved, the Express editorial avers:

Legally, the state government just cannot cancel SEZs which have already been notified and where work has started. The courts may not allow that. However, since land use is a state subject, the Goa government will try to cancel the SEZs which have not been notified. Technically they can do so. It is here that the Centre must stand firm. Technical arguments will not help restore the credibility of the UPA if it gives in to pressure from the Goa Chief Minister Digambar Kamat.

The Express editorial ends by making a pitch for the “integrity of the process” of national policy-making:

The country has gone through a fairly robust debate on the feasibility of SEZs. Several modifications to policy have been made in the area of land acquisition. Even within the UPA it is now accepted by all that SEZs are indeed desirable to drive development. It is of paramount importance that India moves large sections of its population from low-yielding agriculture to industry within a democratic framework. That is precisely what the SEZ policy seeks to do. The UPA must do everything to maintain the integrity of this process.

In my view, these contrasting editorials do a decent job of representing the diverse policy issues involved. One can, however, quibble with particular arguments made by each editorial. The Hindu may be emphasizing ‘people power’ to the detriment of other factors, such as the problems involved when governments go back on policy decisions, thereby adversely affecting investors who have acted on such undertakings. The Hindu also ignores the messy political calculations involved, and its act of commending the current leaders, who were party to all the overruled decisions, seems a bit much. The Express editorial, on the other hand, makes the mistake of overemphasizing the “integrity” of the policy debate over SEZs. In particular, its claim that “the country has gone through a fairly robust debate” over SEZs seems particularly misplaced. When exactly did such a debate take place? Were all stakeholders party to such a debate, and how do we know that all the legal and policy implications were discussed?

These problems aside, the editorials do set up the policy dilemmas involved in debating SEZs reasonably well. Together, they point to the many challenges involved in crafting a balanced policy towards SEZs.

Update, 2 pm: In the comments section, Dilip provides links to two papers by Aradhna Aggarwal which provide very useful background context, facts and statistics, and analysis. I am providing links to those documents in the text of this post: those interested getting a deeper understanding of this issue will benefit from reading these two pieces. This is a shorter EPW piece, while this is a longer working paper under the institutional aegis of ICRIER.

SEZ Troubles ... Again

On Monday, the government of Goa decided to scrap all SEZ projects in the state, as reported in the Hindu. Today’s Hindustan Times has an editorial which provides more details:

The decision was taken after a panel, set up to study the viability of the SEZs, observed that these tax-free havens were not “right” for Goa’s development. It added that the proposed SEZs would not match the talent skills in Goa, would further burden the existing infrastructure and will not create any employment. Goa has three notified SEZs — a pharma hub and two other Information Technology (IT) and IT-enabled services (ITeS) ones. The state had also sought permission to set up seven more SEZs, and allotted over 1,500 acres of land through the Goa Industrial Development Corporation. The proposal came under fire after villagers alleged misappropriations in land sale to real estate majors.

The opposition is on three main issues: displacement from prime agricultural lands, access to water resources and large-scale migration from other states. Migration, the protestors believe, will upset the state’s harmony and create law and order problems — not to mention, put pressure on available resources. The other major reason, and this is common to anti-SEZ protests across the country, is the perceived role of the State in acquiring lands on behalf of industry. The State is seen as colluding with industry in ‘grabbing’ arable land and, thus, the livelihood of people. Considering that there is no data of the employment generated by SEZs with their thrust on IT, ITeS sectors, which are not labour intensive, such fears are understandable. While the people are losing land, the industry is perceived to be in a win-win situation with the tax breaks provided

Here is the HT editorial team’s prescription:

The SEZs will only become attractive if the approach is inclusive. They will be attractive if the compensation is commensurate. Gujarat has shown how the process can be carried out effectively. But first, the State needs to be seen as a protector, not as an aggressor. The scramble among Chief Ministers for rosy figures will not take us anywhere, because figures seldom tell the true story. For the sake of the reputation of SEZs — not to mention the well-being of people — the State must understand this.

For previous blog entries detailing SEZ troubles in other parts of India, click here, here and here.

Update, Jan 03: In the comments section, Umakanth notes that the Central Government has taken issue with the Goa government's decision to scrap all SEZ projects, and suggests that this has now become a Federalism dispute, which may end up in court. As this news-item from today's issue of the Indian Express details, the Central Government seems to concede that the Goa Government does have authority to cancel pending projects, but disputes the state government's ability to cancel the three projects that have already been notified by the Centre. The article also notes the political complications involved, since Goa is currently ruled by a Congress government, and the current Chief Minister was intimately involved with the previous government's decisions to approve the SEZ projects.

Given all these factors, unless a private party that is adversely affected by the decision to scrap the SEZs takes this to court, my own view is that this is likely to be settled behind closed doors, among the powers-that-be in the state and central Congress circles. Umakanth's point is, however, valid for other SEZ projects, where the state governments involved are ruled by non-Congress parties. Observers of the Indian polity have long foretold the coming battles over our unwieldy Federal system, which was created to cater to the situation existing in India in the 1940s. Perhaps that battle will be joined over the issue of SEZs.

Random thoughts on Defending the Indefensible

Today's Hindu carries an op-ed by Vishnu V. Shankar on the subject mentioned in the title. Here is how he begins:

What connects Captain Preston, Kehar Singh, Saddam Hussein, Manu Sharma, and Salim Hamdan? Besides being among our community’s most reviled individuals (many of them at least), they were defended by some of the most conscientious lawyers of their time. Unsurprisingly the legal profession’s time-honoured commitment to defend the most reviled of defendants has never been free from criticism, even in societies committed to the rule of law such as India and the United States. In November 2006, Ram Jethmalani, one of India’s most respected criminal lawyers, was attacked on television and in the press for defending Manu Sharma, the prime accused in the Jessica Lall murder case. In January 2007, Charles Stimson, a senior Bush administration official responsible for the Guantanamo detainees, called for a boycott of the law firms who were pro bono representing the detainees. A year has passed since these events and since the Supreme Court is to shortly decide Mr. Sharma’s appeal against his conviction, it is about time to re-evaluate the issue.

The author - who for a short while was a contributor to this blog, though he went under a different name then – goes on to argue exactly why such “reviled individuals” are entitled to a full and vigorous defence, and lists some of the classic justifications offered by liberal constitutionalists.

The article reminded me of another, more famous case argued by Ram Jethmalani to which Shankar makes a brief reference at the beginning of his piece: the Kehar Singh case. I have to say that I found his inclusion among the group of “most reviled individuals” identified by Shankar a bit puzzling, and I hope it is to Kehar Singh that Shankar's caveat (“many of them at least”) is directed. I’ve always thought that the handling of the Kehar Singh case was one of the low-points in the history of the Indian Supreme Court, and the weak reasoning which it advanced to sentence Kehar Singh to death shows up all the problems of allowing capital punishment to exist in our criminal justice system. The case had all the elements of a ‘hard case’ – a high profile assassination of a once popular Prime Minister, the visceral nature of the events involved, and the need for the legal system to be seen as delivering a ‘result’ so as to assuage the emotions of the public. The legal case against Kehar Singh was weak and circumstantial – this is clearly demonstrable by a reading of the charges and evidence against him as listed out in the Supreme Court’s judgment in the case against the conspirators to the assasination. Reading this case as a law student was a deeply affecting experience, and I believe this eventually led to my own opposition to the death penalty.

The saving grace of this sorry episode was the fact that a lawyer of the calibre of Ram Jethmalani stepped forward to defend Kehar Singh. Jethmalani was unable to stave off the inevitable, but he did demonstrate how weak the legal basis of the case against Kehar Singh was, thereby exposing the real motivations for the hanging of Kehar Singh. Jethmalani is a colourful and controversial figure among lawyers and the Indian populace at large, but no one can doubt that he has done his bit to both shake up and hold a mirror to our legal system. Here is a link to a recent biography on Jethmalani – not having read it, I can only hope that it provides some insight into the storied legal career of the man.

On a different note, but sticking to the subject of defending the indefensible, here is a link to a recent Hindu editorial reiterating (and defending) the CPM's criticism of Governor Gopal Gandhi’s “actions” on the Nandigram episode (link via Nanopolitan). Here, in overly pompous terms, is the stance of the editorial team at the Hindu:

The role of Governor Gopalkrishna Gandhi has, for a second time, come under the spotlight. In March 2007, he clearly stepped out of line in publicly airing his philosophical and tactical differences with the State government over Nandigram. He does not seem to have learnt any lessons from that experience and, in fact, his latest speaking out of line has had the effect of adding fuel to the flames. Let us concede that Nandigram represented a situation where the moral urge not to remain silent came into conflict with the restraints imposed by the constitutional office. Yet, of the restraints imposed by the office, there would seem to be little doubt, and a public statement critical of the government’s handling of the issue could not have been made without transgressing them. The Hindu has consistently regarded this as a major question of principle in the constitutional realm. (Emphasis added).

At this stage, the editorial cites a passage from the colonial-era precedent of Walter Bagehot’s classic text, The English Constitution (1867). Note, however, that no explanation is provided for why this dictum is still relevant in our contemporary constitutional democracy. Recall that our nation now differs from England in that it is not Parliament, but the Constitution itself, which is supreme in India. Here is the rest of the argument:

The right to advise and the right to warn are to be exercised in private and in confidence, and not through public statements. This restraint required of the head of state is not a mere constitutional formality but is based on sound democratic principles. In the first place, the head of state must not, through statements critical of its functioning, place himself or herself in conflict with the representative government, which has a greater democratic legitimacy. Secondly, the head of state should appear non-partisan and remain above the fray when controversial and divisive questions are being debated in the political sphere, and avoid any public statements that could give comfort to one side or the other. The Governor’s public statements on Nandigram both challenged the wisdom of the government’s approach and came down on the side of the critics of its action. Further, Mr. Gandhi laid himself open to the charge of remaining silent when the supporters of the Left Front were at the receiving end. His conduct through this crisis has been constitutionally indefensible. (Emphasis added).

I am not sure where the Hindu editorial team gets its legal advice from, but I am intrigued by the categorical nature of this claim. I haven’t done any research on this, but it would be interesting to see what advice the Hindu editorial team had for our head of state during the Gujarat crisis, or during other similar crises where there were potential threats to life on a large scale. Many people have strongly argued for Governors and Presidents to adopt pro-active roles during times when human lives are at stake. What is more, some constitutional scholars have argued that the text of the Indian Constitution vests real (and not titular) powers in the heads of state at the Central and State levels (i.e. in the President and the Governors) which empower them to take pro-active action in precisely such situations to uphold constitutionally entrenched values. So, the Hindu's claim that Governor Gandhi's actions were "constitutionally indefensible" is highly contestable, and probably unsustainable on a textual reading of the relevant constitutional provisions.

Leaving aside the constitutional argument, it stands to reason that at times such as these, it is not political considerations, but those of basic humanity which must dictate the course of actions.Whatever be the nature of one’s political leanings, it is hard to deny that the Nandigram episode raised serious law and order concerns. Interestingly, Soli Sorabjee, who as Attorney General would have actual experience with such situations, had this to say about stances similar to that adopted by the Hindu:

Much has been written about Nandigram and the blame game is in full swing. Indisputably, there is prima facie evidence of excesses by CPM cadres. In that case, one would have expected a liberal, sensitive chief minister like Buddhadeb Bhattacharjee to acknowledge the lapses and reiterate his government’s resolve to remedy the situation in a spirit of constructive dialogue rather than ‘paying back his opponents in their coin’. Regrettably, any criticism of the West Bengal government’s handling of the Nandigram imbroglio is regarded as hostile and biased. And none is spared, including Governor Gopal Gandhi, a person with impeccable credentials, the chairperson of the National Human Rights Commission, former Chief Justice of India Rajendra Babu, and the Calcutta High Court.

When the Supreme Court transferred the riot cases from Gujarat to Maharashtra and issued other directions to ensure that there was effective prosecution of the guilty, there was no cry of judicial hyper-activism and the judiciary was rightly commended by CPM leaders. Its present tirade against the Calcutta High Court on the ground of judicial over-reach is utterly unjustified.

I have long been a faithful reader of the Hindu. Of late, my loyalty has wavered because I believe it no longer has regular columnists who provide interesting and insightful commentary on the important issues of the day. (There are exceptions, as is demonstrated by the fact that contributors to this blog continue to provide links to and discuss some such pieces, but those who remain are far fewer and less regular than in the past). Moreover, most of the Hindu’s op-eds seem to focus more on international affairs (especially domestic politics in the UK), while ignoring commentary on pressing domestic issues within the country. The Hindu's partisan stance on Nandigram may well turn out to be the last straw for those whose commitment to this venerable institution is already floundering.

Focus on Nandigram

Events in Nandigram and Kolkata over the past year (and especially the last fortnight) reveal much about conflicting conceptions about the rule of law and governance in contemporary India. It is impossible to provide the full context for the many issues that are at the heart of discussing Nandigram within a short post. I can only provide some links to enable those unfamiliar with the issue to get started: here is a Wikipedia entry which provides the context for the current violence, tracing events back to the flashpoint of March 2007. Here is an NDTV newsreport which details the violent ‘recapture’ of Nandigram by the CPI-M in mid-November 2007. Further information about Nandigram can be found at the websites of alternative media outfits here and here. Though some of us on the blog had previously focused on the issue for what it revealed about the contentious SEZ policy, it has taken on far wider implications since.

The ruling CPM party in West Bengal clearly believes that Nandigram is an issue over which it has the final say, and upon which other institutions of governance have no standing to comment. In recent days, the CPM was reported to have asked Parliament to stay away from the issue because it is a 'state subject'. Here is a newsreport from this morning’s Telegraph which reflects this stance in respect of institutions within West Bengal – specifically, the High Court of Kolkata and the office of the Governor. I am struck by the fact that this line of reasoning is quite similar to that employed by General Musharraf recently to fend off attacks by the courts and other political parties on his administration. This may, however, be a knee-jerk reaction, and the issue seems far more complicated, involving as it does a multitude of interests and competing agendas of political parties, corporate groups, the media in India, constitutional authorities, economic policy-makers and other actors.

This post is not making an argument as much as pointing to analysis offered by others that seek to unpack the issues involved. I rely principally on two columns that appeared recently in the pages of the Hindustan Times by regular columnists Barkha Dutt and Vir Sanghvi. Here are extracts from Dutt’s piece:

This time the violence has unfolded behind a veil of intrigue and secrecy. Unlike in March, when an entire country watched horrified as police guns pummelled unarmed villagers with bullets and bulldozed their way through Nandigram, this week Marxist foot soldiers made sure that blockades and threats and the stealth of the night would keep them protected from public gaze. But, as horror stories managed to break through the shroud of silence — bone chilling stories of rape, plunder and murder — the West Bengal Chief Minister gave away the game himself. With the transparent aggression that marks a man with a guilty conscience, he flared up in rare anger and told journalists that the protestors in Nandigram been “paid back in their own coin.”

And so, just like that, the mask was off.

There wasn’t even a feeble attempt to deny that CPM cadres had been permitted by the party to storm their way back into Nandigram. If they had to shoot, kill and rape to make their way back in, so be it. No explanations were provided for why central paramilitary forces were sent in only after the Left’s militia was firmly back at home base. No apologies were offered for why a state government in democratic India should need to wage an extra-constitutional war. Other than contempt and criticism, there was no response at all to the high-minded public lament by Governor Gopalkrishna Gandhi. As far as the Chief Minister was concerned his party’s private army had “retaliated in desperation”.

Twenty fours later, after a storm of protests over his remarks, Buddhadeb Bhattacharjee had another opportunity to take back his words, or make a retraction that is standard for politicians. He didn’t bother. Instead, he took it all one step further by declaring that he stood by his comments because he could not forget his “political identity” and he was “not above the party”.

But what happened to not being above the law?

… … … After two eruptions of political violence in Nandigram, the dispute has gone much beyond a debate over economic reform. The controversy is no longer confined to whether an Indonesian chemical plant should have been allowed to come up in villages that don’t want it. It’s now only about one thing — the abject failure of governance. And to borrow a phrase from the Left, the state government will eventually be paid back in its own coin.

Vir Sanghvi offers a different perspective, where he rejects the bulk of Dutt’s analysis. For him, this is not an issue about the rule of law or governance, but one that demonstrates to him the essential nature of the CPM. His piece is strongly polemical, and I for one was not entirely persuaded. However, his piece is useful for the facts he asserts to build his argument:

If it was the state that had to impose the rule of law, then why didn’t the West Bengal government send in the police? Instead, it was armed CPM cadres who went into Nandigram and fought pitched battles with the extremists, killing and raping villagers in the process while simultaneously assaulting the media to prevent their violent acts from being recorded.

All this was because the CPM, in the manner of all communist parties, sees no distinction between the party and the state, between the cadres and the police and between the enemies of the party and the enemies of the nation.

Anybody who thinks that the true lesson of Nandigram is about the poor man’s right to hold on to his land or to the imposition of the rule of law on extremists misses the point. The debate about acquisition is an old one and there can be no dispute over the need to fight extremism.

The lesson of Nandigram is not about any of those things. It is about the true nature of the CPM, a totalitarian party that does not recognise the difference between the rule of law and the rule of the Politburo. If Buddhadeb Bhattacharjee had used the instruments of the state to regain control of Nandigram, many of us would have supported him.

Beneath the extremely rancorous debate, there are genuine issues that those with an interest in our legal system should be concerned about. I hope that some of us on the blog will be able to both comment upon, and follow this issue closely. As this report indicates, the issue is scheduled to be raised in Parliament tomorrow.

Harish Khare on what constitutional actors within India can learn from recent events in Pakistan

This post continues the theme addressed in the previous one. Harish Khare , the political editor of the Hindu, has a stimulating and provocative piece in today’s issue where he begins by commenting on the typical trend of reactions within India to the democratic troubles of our neighbours in South Asia:

Sooner rather than later, films and cricket should provide distractions that would help us move out of our current patronising preoccupation with the developments in Pakistan. A collective sense of smugness informs most of the Indian reactions to President Pervez Musharraf’s Emergency proclamation in a country that has not been allowed by a combination of external and internal forces to construct a durable structure of governance. Arguably, it is at a time like this that we can feel good and even superior about our democratic arrangements; but, it is also at times like these that we need to summon the humility to learn a lesson or two from the turmoil next door.

The foremost lesson that is obvious for us in India from the recent events not just in Pakistan but also in Bangladesh is that there would be consequences if the idiom of confrontation is pushed too far and too hard. Despite a seemingly robust institutional arrangement of checks and balances, we too are in imminent danger of giving in to a culture of confrontation, a culture that puts a premium on the right to oppose without the obligation to produce minimum orderly conduct of governing processes. This creeping culture of confrontation has already set precedents, which are stoked by all-too-over-enthusiastic, under-supervised, discourse-manufacturers.

Khare proceeds to enumerate the lessons that he believes different political and constitutional actors within India should draw from recent events in Pakistan. He addresses, in turn, such lessons for the political parties, the army, the judiciary, the press and the foreign policy establishment in India. While the entire piece is worthy of a close read, I extract here his views on what our judiciary should consider:

A similar lesson ought to be imbibed by the judicial fraternity in India: do not overstep the institutional boundaries. Pakistan’s Chief Justice Iftikhar Mohammed Chaudhry is also in part author of the mess that is Pakistan today. He and some of his brother judges allowed themselves to be provoked by the gentlemen in the black coats into a confrontation with the Islamabad establishment. The Bar and the Bench goaded each other to assume the role of the principal opposition to President Musharraf. This was presumptuous and was bound to invite reaction.

Similarly, some of our judges in the Supreme Court and the High Courts would do the institution they preside over and the country a whole lot of good if they understand a simple maxim: there will be consequences, not always healthy, if you decide to play politics or decide to get involved in politicians’ quarrels. The judges’ job is to interpret the law and to promote constitutional wholesomeness; judges are not and cannot be arbiters of political morality. Moreover, there can be the most unpredictable consequences if the judges continue to refuse to set their own house in order by addressing allegations of corruption while arrogating to themselves the right to preach and prosecute an errant political class.

There is the issue of the nature and content of the democratic discourse, which claims its credentials from a membership in civil society but, in fact, is a neat commercial arrangement, unaccountable and unanswerable in any democratic forum. The problem, as it manifested itself so acutely in Pakistan and which manifests itself day in and day out in India, is that this so-called democratic discourse ends up de-legitimising every democratic symbol and institution.

Because of our six decades of democratic give and take and the gradual deepening of the democratic spirit, the democratic structure is able to absorb the daily assault on the legitimacy of politics and politicians. In Pakistan, this produced insecurity and irrationality at the very core of the ruling arrangement; and, there was no mechanism for self-correction. Our own media leaders need to reflect on their own institutional arrogance and their own frailties; more than that, the democratic discourse has a responsibility to ensure that it does not create conditions which may tempt the non-democratic forces and voices to step in.

I think Khare makes telling points in this piece. In particular, I think he does well to focus on a tendency that is common amongst many within and outside India: of constantly extolling India’s democratic tradition by comparing it to those of its immediate neighbours. As Khare alludes to in this piece, and as astute academic observers of India’s democracy (especially in recent times) have noted, Indians can indeed take pride in their record of largely democratic rule over the second half of the Twentieth Century; however, this pride must not breed complacency or an attitude of blindness towards the several major problems that our democratic tradition continues to confront on a daily basis. Despite India's relative success in maintaining constitutional democracy, our democratic and political culture still has far more in common with our neighbours than most of us would like to admit.

The status of Election Commissioners vis-a-vis the Chief Election Commissioner

As we near Independence Day, the papers are full of retrospective pieces, and the talking heads are holding forth on what makes India tick. One institution which is now credited with playing a significant part in holding constitutional democracy together in India is the Election Commission ("EC"). The EC is an interesting institution, which has come into prominence only since the early 1990s, around the time TN Seshan was appointed the Chief Election Commissioner ("CEC"). Clearly, Seshan had much to do with its transformation into a proactive custodian of constitutional democracy in India. The Supreme Court has also had a role in this story, and has alternatively backed and rebuked Election Commissioners who have played hardball. Another regular feature of the functioning of the EC has been a tendency for the CEC to squabble with other Election Commissioners (recall the unseemly struggles between Seshan on the one hand, and MS Gill and GVG Krishnamurthy on the other).

It would seem that this cycle of events continues. Today's Hindustan Times carries a column by Pankaj Vohra which focuses on what he terms a "constitutional crisis" allegedly caused by the current CEC, N. Gopalaswamy's claim that "Article 324 (5) of the Constitution gives him the power to remove an Election Commissioner." Vohra explains the background of the controversy:

"The crisis has developed following the pending demand of the NDA for the removal of Navin Chawla as an Election Commissioner. The Supreme Court had last week allowed BJP leader Jaswant Singh to withdraw his petition against Chawla. The court had ruled that it was allowing the petitioners to withdraw the petition without expressing any opinion on the CEC’s powers vis-a-vis his fellow Election Commissioners. However, the confusion started with Gopalaswamy claiming in an affidavit that he had suo motu powers to act against his fellow Election Commissioners.

This position is also a departure from the stand taken by former CEC B.B. Tandon, apparently after he sought the best legal advice — that he did not have suo motu jurisdiction over his colleagues. Tandon had inferred this after 205 MPs had gone to the President against Chawla and a copy of the petition was handed over to him by BJP leader, V.K. Malhotra. It can be safely presumed that after going through every aspect of the matter, Tandon concluded that the CEC could not act suo motu and must wait for the President to forward such a petition and, therefore, refrain from initiating an inquiry on his own. The fall-out is that in the said matter, if the CEC entertains any petition officially, he will be reduced to a minority. Therefore, his recommendation will be a minority recommendation and not the view of the full commission. Thus, it will have no grounds to be entertained. Even in the Seshan case where the former CEC tried to humiliate his then colleagues M.S. Gill and G.V.G. Krishnamurthy repeatedly, the apex court had put Seshan in his place and had defined the powers of the other two making them equal in all respects in the conduct of the commission except administrative matters. Anybody else in Seshan’s place would have resigned after the severe strictures passed by the Supreme Court."

Vohra's analysis is substantially similar to that contained in this Hindu article which appeared in its issue dated Aug 11, 2007. The Hindu piece in turn elicited this response from CEC Gopalaswami, who clarified that he had never claimed the power to remove an Election Commissioner, but had only noted, following from the proviso to Article 324 (5), that while contemplating action against an Election Commissioner, the opinion of the CEC would have to be sought.

In his piece, Vohra makes the following persuasive point about the implications of the current controversy:

"While it is for the legal eagles to fight over the finer points of the various interpretations, the controversy is lowering the image of the Election Commission. While Chawla is being accused of being close to the Congress, Gopalaswamy’s detractors claim that he was acting in this manner because of pressure from the BJP, in whose government he was the Home Secretary under L.K. Advani. There are also allegations that Gopalaswamy’s proximity to Advani goes back to when the latter was the I&B Minister during the Janata Party rule.

However, all these charges are not doing any good to our system. One has to see how Chawla and Gopalaswamy conduct themselves while holding their august offices. It is not Gopalaswamy vs Chawla or the BJP vs the Congress. The ambiguity over the power-sharing and the role of the CEC vis-a-vis the ECs needs to be defined once and for all. It is not a case of individuals squabbling but a case where the role of functionaries appointed as per our Constitution has to be defined."

While Vohra may be right in making this point, his legal analysis, like that of the Hindu correspondent to whom the CEC responded, may not be spot on. The CEC is probably right in pointing out that whatever be the provisions of the 1993 Act, the situation is still governed by the relevant provision in the Constitution. An analysis of the provisions of the Chief Election Commissioner and other Election Commissioners (Conditions of Service Act), 1991 (the full text of which is available at India Code) shows that that law is not attracted in a situation where an Election Commissioner is sought to be removed (as in the present case, involving Navin Chawla), and actually has a fairly limited scope.

Article 324, as originally drafted and as it stands today, clearly does provide that while considering action against any Election Commissioner, the CEC's view has to be taken into account. Relying only on the text of the provision, it is possible to argue that it places the CEC in a higher position than the other Election Commissioners. Indeed, this is exactly the interpretation arrived at by a two judge bench of the Supreme Court after perusing through the constitutional history of the provision in S.S. Dhanoa v. Union of India, AIR 1991 SC 1745.

Vohra relies on the ruling of the Constitution Bench of the Supreme Court in T.N. Seshan v. Union of India, (1995) 4 SCC 611, where the Supreme Court did modify the understanding of the role of the other Election Commissioners as it had been set out in the Dhanoa case. However, that ruling is better understood in the context of the bickering between Seshan and his fellow Election Commissioners, and was clearly an attempt by the Court to rein in the high-handed behaviour of Seshan. The fact remains that though interpretations of the Constitution are supposed to endure, they are coloured by the facts against which such interpretation arises.

Leaving aside the often confusing precedents of the Supreme Court, if one were to rely on the text of the Constitution, and the drafting history of the provision in the Constituent Assembly (which have been, as noted earlier, closely examined and clearly set out in Justice Sawant's erudite judgment in the Dhanoa case), it seems clear that the CEC was intended to be first among equals within the EC. To underscore this point, Justice Sawant's judgment in Dhanoa (at para 14) draws an analogy between the role of the CEC and that of the Prime Minister vis-a-vis the other members of the Cabinet.

One may well argue that constitutional history and text have to be set off against arguments of prudence, rationality, and experience. Given that the EC has been a multi-member Commission for so long now, it would be a hindrance to its functioning if the CEC is given pervasive control over the functioning of the EC and can browbeat the other Commissioners. I can see problems with this argument as well, given that we know that governments often manipulate appointments to the EC keeping in mind the future electoral prospects of their respective political parties (this may sound like a conspiracy theory, but a reading of the Dhanoa case will show that such a fear is not unfounded). Given how difficult it is to remove a CEC by initiating
impeachment provisions, governments will always be tempted to "pack" the EC by appointing pliable individuals.

Whatever be the force of the view supporting equal status between the CEC and other Election Commissioners, in order for it to be effective, it must be incorporated by virtue of a constitutional amendment. The CEC is right in noting that the constitutional provision as it stands today favours his interpretation. I do, however, agree with Vohra that this ambiguous situation may need to be resolved clearly once and for all, lest we have more such episodes in future, where the ambiguity causes a loss in stature of the institution as a whole. The way to do so is by virtue of a constitutional amendment to clarify this issue, which in turn will provide an opportunity to debate the best possible way of securing ideal conditions of work in a multi-member Commission.

Important Achievements of the RTI and the NREGA Acts for rural Indians

Today's Indian Express features an op-ed by Sandeep Pandey who explains the significant practical achievements of the Right to Information Act and the National Rural Employment Generation Act for rural India in particular:

"Take the RTI Act. Meant to create more transparency and accountability in governance, it has for the first time provided an opportunity to ordinary people to intervene in political and administrative decision-making. Politicians and bureaucrats have, thus far, considered it their prerogative to keep information secret. What is not widely recognised is that this mindset characterises not just secretaries and under-secretaries but those who man the lowest tier of government. For instance, in January 2003, the gram pradhans of Ambedkar villages and two MLAs (including a minister in the then Mayawati government) unanimously passed a resolution calling for the jailing of anyone demanding income-expenditure details from the Gram Panchayat Bharawan of Hardoi district, Uttar Pradesh, or for holding dharna to push for their claims. As people’s representatives, they argued, they enjoyed a privileged position and were above providing a statement of accounts for public funds.

Before the RTI Act came into force, officials would humiliate citizens who asked for information and sometimes even threatened them. In their arrogance they did not even bother to do basic book-keeping. The first statement of accounts for the Bharawan Gram Panchayat, which was given to the people by the block development officer (BDO), did not carry any entries under expenditure. When asked about it, the officer explained that that was how accounts have been kept all those years. This was confirmed by the District Rural Development Agency, where employees confessed that once funds left their office, they did not bother to follow up on any details of how they were spent — the assumption was that the funds disbursed were spent for the intended purpose. In a detail of accounts the Bharawan Block Panchayat obtained using the RTI Act, it was discovered that the desilting of a canal was shown to have been performed for more than Rs 3 lakh when no work was done at all.

The RTI Act has made a difference to this situation of complete unaccountability. Today, if an ordinary villager goes to an office with an application seeking information under the RTI Act, she would be treated with respect, offered tea and asked about her problem. Officials would promise to address her problem in a bid to convince her to withdraw her application. Although officials try their best to evade accountability, there is a realisation that they cannot continue to function like they used to. This is good news for democracy. The BDO of Behender block in Hardoi recently confessed that it is only since people have started asking for information that the office has been compelled to keep books.

The NREGA goes a step further and secures the legal right of the people of a gram sabha to conduct social audits of work being performed under the NREGA. This is the first acknowledgement by the government that it requires people’s help in tackling an imperfect system. Earlier, one could only complain if one suspected a misappropriation of funds and then it was up to the authorities to institute an inquiry. Now ordinary citizens have the right to all data pertaining to the workings of the NREGA and must receive it within 15 days of their application. They can then place the records before the villagers for physical verification. The social audits conducted at various places in the country under the NREGA have uncovered numerous discrepancies, ranging from fake names in muster rolls to the fact that facilities for workers are not provided for. Labourers are at last getting their dues in most places where the NREGA is in force."

The Naxalite/Maoist Movement in India: Facts, Current State and Analysis

Revisiting the online edition of The Nation (which describes itself as "the flagship of the left" in America) after a long time, I was pleasantly surprised to find in its current issue an article on the state of the Naxalite movement in India by the prolific Ramachandra Guha (what a year 2007 is turning out to be for him). For quite some time now, one has heard about the grave challenges posed by the Naxalite or Maoist movements across several states in India. However, I have yet to come across good analysis which offer concrete numbers and accurate information about the issue. Guha's essay, which is based on his personal research through visits to Bastar and other affected areas, seems to provide at least a good starting point for those interested in finding out more about an issue that a lot of careful observers of Indian democracy have been consistently highlighting for some time. As Guha notes, Prime Minister Manmohan Singh recently described the Maoist movement as "the biggest internal security threat" confronting India.

Here are extracts from the essay, though it should really be read in its entirety:

"Until the 1990s the Naxalites were a marginal presence in Indian politics. But in that decade they began working more closely with the tribal communities of the Indian heartland. About 80 million Indians are officially recognized as "tribal"; of these, some 15 million live in the northeast, in regions untouched by Hindu influence. It is among the 65 million tribals of the heartland that the Maoists have found a most receptive audience.

... ... This twin marginalization [of tribals], economic and political, has opened a space for the Maoists to work in. Their most impressive gains have been in tribal districts, where they have shrewdly stoked discontent with the state to win people to their side. They have organized tribals to demand better wages from the forest department, killed or beaten up policemen alleged to have intimidated tribals and run law courts and irrigation schemes of their own.

... ... ...How many Maoists are there in India? Estimates vary widely. There are perhaps 10,000 to 20,000 full-time guerrillas, each armed with an AK-47, most of them conversant with the use of grenades, many with landmines, a few with rocket launchers. They maintain links with guerrilla movements in other parts of South Asia, exchanging information and technology with the Liberation Tigers of Tamil Eelam and, at least before their recent conversion, the Nepali Maoists.

The Indian Maoists got a huge shot in the arm with the merger, in 2004, of two major factions. One, the People's War Group, was active in Andhra Pradesh; the other, the Maoist Co-ordination Committee, in Bihar. Both dissolved themselves into the new Communist Party of India (Maoist). Since the merger the party has spread rapidly, with former PWG cadres moving north into the tribal heartland from Andhra, and erstwhile MCC cadres coming south from Bihar.

... .... ....How influential is the Maoist movement in India? Once more, the estimates vary widely. The Home Ministry claims that one-third of all districts in India, or about 150 in all, are recognized as "Naxalite affected." But this, as the Home Minister himself recently admitted, is a considerable exaggeration. State governments have a vested interest in declaring districts Naxalite-affected, for it allows them to claim a subsidy from the center. Thus, an armed robbery or two is sometimes enough for a district to be featured on the list.

My guess is that about forty districts, spread across ten states and containing perhaps 80 million Indians, live in a liminal zone where the Indian state exercises uncertain control by day and no control by night. Some of these districts are in the northeast, where the nighttime rulers are the Naga, Assamese and Manipuri rebels. The other districts are in the peninsula, where Naxalites have dug deep roots among low castes and tribals grievously shortchanged by the democratic system.

... ... ... In the long run, perhaps, the Maoists might indeed make their peace with the Republic of India, and the Republic come to treat its tribal citizens with dignity and honor. Whether this denouement will happen in my lifetime, I am not sure. In the forest regions of central and eastern India, years of struggle and strife lie ahead. Here in the jungles and hills they once called their own, the tribals find themselves harassed on one side by the state and on the other by the insurgents. Speaking in Hindi, a tribal in Bastar told me, "Hummé dono taraf sé dabav hain, aur hum beech mé pis gayé hain." It sounds far tamer in English--"Pressed and pierced from both sides, here we are, squeezed in the middle.""

Reflecting on Sorabjee's response to the Speaker's public lecture

The previous post focused on Somnath Chatterjee's recent public lecture where he seemed to be providing a theoretical and intellectual framework to the current struggles between the Legislature/Executive and the Judiciary, and also counselled the judiciary on its future course of action.

Predictably, the Speaker's strong message has evoked an equally forceful response. Today's Indian Express carries an op-ed by Soli Sorabjee who has long been a defender of the Judiciary, even while he has occupied the position of a law officer of the government. While reacting specifically to the Speaker's comments, Sorabjee also reiterates positions he has canvassed over a considerable period of time, in academic articles and public lectures. His views in this column consist of a mix of the traditional arguments raised in defence of judicial activism in India, as well as newer points relating to the current context. At the same time, Sorabjee attempts a point-by-point rebutall of the views expressed by the Speaker. While the piece should be read in its entirety, I focus on the following portions:

"Remember that it is thanks to judicial creativity or if you like judicial activism, that certain freedoms like freedom of the press, the right to privacy, the right to travel abroad, the right to education, freedom from cruel and inhuman punishment or degrading treatment have acquired the status of fundamental rights. This is because of Supreme Court decisions that certain unspecified rights are implicit in the express enumerated guarantees in the Constitution and can be deduced therefrom. Would any person, including the speaker, seriously quarrel with this innovative judicial technique, which has enlarged the fundamental rights of our people?

... ... ...

Another assumption in the speaker’s lecture is that courts strike down legislation because of disapproval of legislative policy. Far from it. The Supreme Court did not strike down nationalisation of banks because of its disapproval of the policy of nationalisation. Indeed the court rejected the challenge that the legislation was not in public interest. The Act was struck down because of the omission to provide for compensation under the then existing constitutional provision. The Act was subsequently amended and nationalisation went through. The Supreme Court, in its judgment in the BALCO case, has authoritatively ruled that it is not permissible for courts to strike down a policy decision on the ground that it is unwise or unscientific or uneconomic or illogical or that there could be a better policy decision.

Proper research and statistics would establish that in a vast majority of cases the Supreme Court has upheld socio-economic legislation by invoking the doctrine of presumption of constitutionality of a law and also the unreal presumption that the legislature correctly understands the needs of its people.

... ... ...

Mention of ‘we the people’ in the Preamble and the will of the people in passing a law are certainly relevant considerations but are not decisive in constitutional adjudication of the validity of the law in question. What is controlling is the mandate of the Constitution. Suppose by an overwhelming majority a law is passed which outlaws strikes and demonstrations by government employees, or which sanctions gender discrimination by prohibiting employment of women in any section of the armed forces. Are courts bound to uphold such laws, which violate the fundamental rights of workers and women, on the ground that the will of the people must prevail? Such a stand makes a mockery of judicial review by an independent judiciary, which is a basic feature of our Constitution.

Enumeration of a list of erratic orders passed in PIL makes interesting reading but is not an answer to the legitimate exercise of judicial activism in several other cases. Many over-enthusiastic impermissible judicial orders passed by the high courts have been set aside by the Supreme Court, and exemplary costs have been imposed.

The undeniable fact is that in most cases, it is on account of the lethargy or continued inaction of the executive branch that the court is constrained to direct the executive to implement the laws made by the legislature, particularly when such inaction results in violation of fundamental rights. For example, violation of the rights of children working in hazardous occupations or of the fundamental right to live with dignity of the inmates of asylums and so-called care homes.

... .... ... Let us not forget that thanks to PIL, undertrial prisoners rotting in jails for inordinately long periods, inmates of lunatic asylums and care-homes, children working in hazardous occupations have secured relief. Juristic activism in the arena of environmental and ecological issues has led to accountability in the use of hazardous technology and has yielded salutary results. For example: court’s directions regarding the use of CNG. If this be judicial activism, so be it. The executive may bemoan the court’s directions compelling it to discharge its obligation of law enforcement. The citizens rightly rejoice, because thanks to activist judicial intervention, some semblance of governance and decency in areas affecting their lives has been achieved.

... ....Vigorous exercise of judicial review, in other words judicial activism, largely depends on the prevailing situation in the country, its laws or absence of laws, the level and quality of public administration and the availability of means of redress. It is not static. It cannot be strait-jacketed into a rigid formula. The extent and intensity of judicial review depend on the subject matter of the legislation. In case of socio-economic legislation, judicial activism should be minimal. Where legislation violates fundamental rights of equality, life and liberty, and freedom of expression, judicial activism is not an option but a necessity if the fundamental rights of the indigent and the exploited are to be made living realities.

Alas! We do not live in a perfect world in which there would be no occasion for the judiciary to order the executive to perform its duty of implementing the laws. In this imperfect state of affairs, if the judiciary sometimes exceeds its bounds by passing certain orders, the same should be corrected, but that is no reason for questioning the legitimacy of judicial activism and advocating judicial restraint to the point of judicial abnegation. All said and done judicial review is the heart and soul of our Constitution. "

In making these remarks, Sorabjee appears to be responding not only to the Speaker's lecture, but also to comments made by other politicians in the aftermath of the Thakur order, about the supposed anti-democratic nature of judicial review. Despite his forceful tone, Sorabjee does not, however, endorse judicial activism in general, and concedes that the role of courts in bringing about socio-economic reforms should be limited. But, he points clearly and forthrightly to the 'elephant in the room' that Chatterjee's lecture sought to ignore - that the fundamental problem in Indian governance is not so much that the judiciary is over-enthusiastic, but that the institutions which should be governing are, for a variety of reasons, unable to do so.

In the course of his comments, Sorabjee makes the oft-cited claim that PIL has been a panacea for the Indian populace. This claim in increasingly being contested, as it is becoming evident that many PIL orders have either been ignored or under-implemented. There is also the perception among social activists that the changing nature of PIL (which is increasingly being initiated by the middle class for causes that serve its interests) is causing it to become a tool against the interests of its original constituency: the poor, disempowered and oppressed communities among Indians. Those who disagree with Sorabjee's characterisation of PIL (or would seek to moderate his enthusiastic portrayal of it) would subscribe to the views espoused in this recent editorial in the EPW:

"Of late, the judiciary is giving the impression of stepping in to fill the vacuum by often forcing the executive to take action (against the privileged sons of politicians, as in the Jessica Lal case) or compelling Parliament to enact laws (for example, to curb sexual harassment at workplaces). This has encouraged the Indian urban middle class to repose its faith in the new-found concept of judicial activism, and to wish that the judiciary replaces the corrupt legislature and bureaucracy as the benevolent authority. But there is a catch in this wishful belief. Barring a
few recent cases of judicial intervention, which have had some positive effect on governance, the Indian judiciary on the whole has not displayed any spontaneous will to act on behalf of the common people. The success stories, cited above, were the results of long legal battles by the rich relatives of the victims, or campaigns by social activist groups.

Contrary to the image of a magnanimous judiciary, judicial activism is increasingly sliding into injudicious and irresponsible judgmentsheavily loaded against large sections of the poor and marginalised. To quote a couple of instances, thousands of workers have been uprooted due to court orders to shift polluting industries out of Delhi and slumdwellers are facing removal to far outside the city as a result of a Supreme Court declaration that they have no right to notice before eviction or rehabilitation thereafter. In the short-sighted pursuit of delivering justice to some segments, such judgments are creating new long-term injustices for vaster sections of the population. Further, the breathtaking eagerness with which the judiciary has over the past decade upheld draconian laws like the Terrorism and Disruptive Activities (Prevention) Act (in 1994), the Armed Forces (Special Powers) Act (in 1997) and the Prevention of Terrorism Act (in 2004) portends an ominous future for the democratic rights of Indian citizens."

This debate points to the dire need for comprehensive and meticulous quantitative studies of the actual impact and achievements of the PIL jurisprudence of the Supreme Court. For over three decades now, opponents and defenders of judicial activism have used isolated examples to either attack or glorify the phenomenon. The need for detailed studies which help answer at least some of the questions raised seems evident. The late Professor Sathe is known to have spent several years collecting the data for precisely such a project. One hopes that the project has not been given up after his passing.

An aside: One of the interesting parts of the Chatterjee-Sorabjee exchange is how they have both sought to draw support from the views and judgments of former Chief Justice J.S. Verma to buttress their own positions. The EPW editorial, by contrast, reminds its readers that Justice Verma is also to be remembered for his contribution in another landmark case:

"A dangerous example of such judicial mindlessness was the 1995 Supreme Court benchverdict in favour of Hindutva which put the seal of approval on the politico-religious philosophy of the saffron brigade. Surprisingly enough, J S Verma, the then chief justice who headed the bench that passed the verdict, was to lament in May 2002 following the Gujarat riots that his judgment was being “misused” by many for narrow interests. In a lecture in Jabalpur recently, justice Verma asserted the need for “greater expertise and self-restraint of the judiciary…eschewing personal predilections and emotive responses.” A belated realisation when the damage had already been done! "

The EPW editorial got its facts wrong on one small point : at the time when the decision in Dr. Ramesh Prabhoo v. Prabhakur Kunte (1995) (popularly known as the 'Hindutva' case) was handed down, Justice Verma was not yet the Chief Justice of India (his tenure as CJI lasted from March '97 to Jan '98). However, the editorial is right in noting that whatever may have been Justice Verma's motivations as the principal author of the decision, it was perceived by the Hindu right parties, and by those who backed them, as a victory for their political views.

Contentious issues beyond quotas: The Forests case

For now, debates on OBC quotas are on hold, as we wait for the Supreme Court's next move on May 08. But it is becoming clear that the quota issue is but one among many that are at the heart of the recent institutional struggles between the Judiciary on the one side, and the Executive and the Legislature on the other.

On April 26, Lok Sabha Speaker Somnath Chatterjee addressed the overall issue squarely while delivering a public lecture. Excerpts from that speech are carried in this column in the April 27 issue of the Indian Express. For the most part, the lecture covers fairly conventional analysis, focusing on the roles of the three wings of government, and quite predictably, making the case that the Indian Judiciary should respect the constitutional powers of the Parliament and Executive.

I was drawn to the section where Chatterjee focuses on some recent judicial actions which he considers problematic, though he prefaces that statement by making the reasonable (and necessary) concession that judicial review is of course entirely legitimate. This is refreshing, particularly in view of recent statements by members of other Left parties, which seem to betray a misunderstanding of basic notions of constitutionalism, by asserting that the Indian constitutional regime is one where parliamantary supremacy is the governing rule.

"NO ONE can take exception to any decision in the exercise of judicial review (subject, of course, to the provision of review or appeal, where it lies) invalidating any law or executive action, but where it seeks to lay down some new policy to be adopted or actions to be taken and uses its supposed power to compel executive action on the same without any known authority or procedure, serious questions necessarily arise about the source of such power.

Now-a-days, there are umpteen instances where the judiciary has intervened in matters entirely within the domain of the executive, including policy decisions. Recently, a media correspondent has compiled a list of issues and matters in which the courts have apparently, if not clearly, strayed into executive domain or in matters of policy. He has noted that the orders passed by the hon’ble high court of Delhi in recent times dealt with subjects ranging from age and other criteria for nursery admissions, unauthorised schools, criteria for free seats in schools, supply of drinking water in schools, number of free beds in hospitals on public land, use and misuse of ambulances, requirements for establishing a world class burns ward in the hospital, the kind of air Delhiites breathe, begging in public, the use of sub-ways, the nature of buses we board, the legality of constructions in Delhi, identifying the buildings to be demolished, the size of speed-breakers on Delhi roads, auto-rickshaw over-charging, growing frequency of road accidents and enhancing of road fines.

The Jagadambika Pal case of 1998, involving the Uttar Pradesh Legislative Assembly and the Jharkhand Assembly case of 2005, to my mind, are two glaring examples of deviation from the clearly provided constitutional scheme of separation of powers. The interim order of the Supreme Court in these two cases, to my mind, upset the delicate constitutional balance between the judiciary and the legislature. I feel that these were instances of unfortunate intrusion by the Supreme Court into well-demarcated areas of powers of the legislatures, contrary to the provisions of Articles 122 and 212 of the Constitution. Chief Justice Verma has recently described the orders in the UP and Jharkhand cases as judicial aberrations and has expressed his hope that the Supreme Court would soon correct them."

In the subsequent sections, Chatterjee focuses on the principles of constitutionalism which counsel against such aggressive judicial actions. Again, much of this is trite, and this could well be an abstract academic paper discussing principles without referring to any specific country, because Chatterjee seems to ignore the realities and political factors in India which have led over time to the judiciary adopting such an aggressive position. It is only towards the end of the lecture that Chatterjee implicitly recognises this, when he asserts:

"ALMOST all votaries of judicial activism, including the hon’ble judges themselves, while exercising power in such assumed jurisdiction justify it on the supposed failure of the legislature or the executive authorities in taking proper action to mitigate the people’s grievances or to find solutions to people’s problems."

Chatterjee's response is interesting, because it seems to concede the force of this criticism. He does not seek to refute it, but focuses instead on the judiciary's institutional incapacity to address these problems on its own:

"But with regard to dispensation of justice, how many ordinary citizens of the country, who are oppressed and subjected to various forms of discrimination and denial of rights, particularly women who are victims of torture and exploitation, can have access to the courts, specially the highest court of our country? How many dismissed employees, how many victimised teachers, how many senior citizens, how many disadvantaged people staying in far flung areas of the country who would need to seek justice can approach the apex court of our country? The geographical distance, prohibitive cost of litigation, inordinately long time taken for disposal of matters, discourage or otherwise make it impossible for ordinary litigants to approach the court.

The large number of arrears pending in almost all the courts is affecting the people’s faith in our justice-delivery system. These issues require to be given very serious attention not only by the legislature or the executive but also by the judiciary. One has to admit that in many instances the judiciary (without attributing any fault to it) is not able to cater to the needs of the common people of the country in adequate measure. Now, in such a case, can any other organ of the state take up on itself the right to exercise judicial powers on the plea that judiciary has not adequately been able to do so?"

It is interesting to contrast the Speaker's take on the issue with that of Rajeev Dhavan who addressed the same issues in an op-ed piece which appeared in the April 27 issue of the Indian Express). Dhavan's piece, reflecting his academic background as well his current role as a leading Supreme Court lawyer, provides a historical perspective of the tussles between the three wings of government and lays out four broad categories of judicial actions that he terms "areas of discontent." Dhavan concludes that "[w]e are in the midst of a controversy as big and complex as the property and sovereignty controversies of the Nehru and Mrs Gandhi eras. "

While Dhavan's tone and style throughout the piece is academic and objective, there is one issue on which his comments are quite scathing. This is in reference to the Supreme Court's intervention in the Forest cases, and this is what he has to say:

"Can a case concerning forests go on for years — with decision-making shared with an amicus and a Supreme Court created committee that holds hearings with pride and prejudice as if it were a consultative wing of the Supreme Court."

Interestingly, this is strikingly similar to the argument adopted by the Additional Solicitor General in opposing the Supreme Court's continued intervention in the forest cases. More details of the latest order in the Forest case, including the argument of the ASG resisting judicial intervention, can be found in this newsreport from the April 27 issue of the Indian Express.

Even if the OBC quotas issue gets resolved equably (and there don't seem many signs of that as of now, given the strident statements issued by politicians over the past few days), the leaders of the three main institutions of Indian goverment will have to adopt sagacious steps to avoid a constitutional crisis in the coming months.

Update, May 03: The full text of the Speaker's speech is available here.