I just read an interesting post by Sandy Levinson on the blog, Balkinization on Nativism and the American Right. Levinson endorses abolishing the American Constitutional provision that the President and Vice President shall be a natural born citizen. He writes: “We should not be proud of the fact that the only explanation for Arnold Schwarzenegger's absence from the presidential race is the fact that he, by being born abroad, he is an irredeemably second-class citizen so far as the Constitution is concerned. I obviously wouldn't support him, but that's entirely different from prohibiting his candidacy on nativist grounds.” Schwarzenegger is an Austrian-born Governor of the U.S.State of California.
Levinson refers, while reviewing Larry Sabato’s recent book on Constitutional reform, to the argument of those who favour the retention of the clause. One view is that it would be good to have people in the White House (and the Vice Presidency) who were familiar with the "rule of law,". He asks: “Why would anyone seriously think that limiting the pool for presidents and vice presidents would produce such people? That certainly isn't the case with the present President and Vice President, nor, frankly, did I ever get the impression that Bill Clinton was willing to walk an extra mile for "the rule of law" ...And does anyone seriously believe that Rudy Giuliani has any commitment to the rule of law? (Giuliani currently is seeking Republican nomination in 2008 U.S.Presidential election) It is nothing more than bigoted nativism to believe that being a native-born citizen is the relevant marker. Obviously, I don't believe that all naturalized citizens are paragons of the rule of law. Just take a look at many leaders of the Cuban-American community in Miami. The point is that there is simply no reason to believe that birth-status correlates with the good we're trying to identify, i.e., "commitment to the rule of law."
While reading the post, I cannot resist the temptation to compare similar illogical, but seemingly patriotric arguments advanced against the candidature of Sonia Gandhi for the Indian Prime Ministership,in 2004 even though her critics, including the mercurial Subramanian Swamy have been unable to establish any irregularity in her acquisition of Indian citizenship.
Does not the absence of the U.S.-like provision in the Indian Constitution point to the maturity of the Indian Constitution makers? Sonia Gandhi may be as competent or as incompetent like any other natural-born Indian to be chosen as the PM. Because of the Opposition’s illogical opposition to her becoming the PM, we now have the aberration of having a PM, who is otherwise competent, with no real powers. In other words, there is force in the suggestion that Sonia Gandhi, as the Chairperson of the UPA, may be said to exercise or influence the PM’s powers with no accountability.
Interestingly, the advocates of the reservation of high Constitutional posts to the natural-born citizens have often pointed out to the U.S. provision. Levinson's post can persuade them to realise that the U.S. provision is not a sacred cow.
The link to my article on the question published in 2001 is here.
Tuesday, November 20, 2007
Sunday, November 18, 2007
Harish Khare's lessons from Pakistan Continued: A Perspective
Mr.Thiruvengadam, in a previous post, brought to attention a recent op-ed in the Hindu by Harish Khare on the lessons that constitutional actors in India can learn from the recent turmoil in Pakistan. Mr.Venkatesan, in his response, noted that these happenings being deeply rooted in historical events peculiar to Pakistan, an analogy with India is inapposite and the inferences erroneous. I find Mr.Venkatesan’s arguments largely correct and convincing. However, I do not see a major conflict between his post and Khare’s article probably because I interpret the latter’s views differently. I think Harish Khare’s lessons from Pakistan are these: (1) for a country to function harmoniously, it is necessary to have strong state institutions that also stay within their boundaries (2) a culture of confrontation can weaken institutions and cause them to lose popular legitimacy (3) if the lack of popular legitimacy of one institution is sought to be used by another as a necessity or a pretext to intrude into its domain in violation of the boundaries laid down, conflict is not only likely but inevitable. The analogy ends there. There is no suggestion that excessive political partisanship or judicial activism in India is likely to lead to a putsch by the army. His article, as I see it, is primarily focused on India and he finds a similarity only to the limited extent to which he can identify like problems with political legitimacy and inter-institutional conflict.
I do not think he makes out a case that a culture of confrontation leads to a military takeover, only that it obstructs the course of administration and norms of accountability, diminishes the democratic space and eventually manifest in dramatic and extra-constitutional outcomes. He argues that the judiciary set itself up as a political opposition to the government thus inviting the retaliation that followed. If one accepts that premise, the likelihood of an eventual showdown, like the one that just happened, is not hard to fathom. Even in India, on a few occasions, clearly unconstitutional orders of Courts have been implemented by elected officials primarily to avoid a constitutional crisis. If such judicial abuse of power were to become more frequent, it is not altogether unlikely that a particular state or central government may at some point refuse to implement one such order setting up a confrontation with unforeseen consequences. For example, Justice B.N.Agrawal’s recent outburst about dismissing the Tamil Nadu state government, if actually put in writing as an order, who knows what would happen? That may just be the spark that lights a fire.
Mr.Venkatesan has commented at length about the circumstances that led to army takeovers in Pakistan. I am not sure that Musharraf’s current actions can be called a takeover since the army was already in charge and the purge has been limited to the judiciary. It is not altogether clear at this point that this was done for the purpose of prolonging military rule. For the same reason, I am also not entirely convinced that the factors that have led to repeated bouts of military rule (which I fully accept) are also primarily behind the recent events. Nevertheless, he is correct to say that the betrayal of public trust by politicians has not been the reason behind these events.
Speaking more generally about military takeovers in Pakistan, political legitimacy has mattered to the Pakistan army which would explain the interregna of civilian rule. Had the army felt so vulnerable about its own associations and interests under civilian rule, one ought to have expected simply a transition from one dictatorship to another which is not the case. Also, the army often took over when the civilian leadership was widely perceived to be at its weakest. That is also true of the Musharraf regime. He struck when the Nawaz Sharif government was seen as no longer enjoying the support it once did. Whether due to the extensive corruption and nepotism that was alleged or the setback in the Kargil conflict that he could not disown or transfer responsibility for, or his dictatorial tendency to use the instruments of state power to eliminate all his potential political rivals, he had rendered himself unpopular in many quarters. That is also consistent with the fact that a priori, Gen. Karamat, his predecessor, when reprimanded by Sharif chose to resign and the two generals who were senior to Musharraf in the army also chose to step down (upon his elevation as Chief of Army Staff) at that time rather than confront the prime minister or attempt a coup d’etat. The evidence seems to suggest that while the army saw direct rule as important to protecting its own interests and was a necessary reason for the repeated takeovers – as Mr.Venkatesan points out, there is a great deal of evidence to suggest this – it does not appear to have been a sufficient one.
Mr.Venkatesan argues that the theory that the army assumed a political role only to fill up a vacuum of authority is a misconception. In my view, a true vacuum meaning a complete lack of state authority, i.e., anarchy in other words, has never existed in Pakistan. Rather, what the army has meant is that no suitable civilian exists who, in its view, is fit to lead the country – witness Musharraf’s first television address soon after he deposed Sharif when he spoke of the army’s takeover as a ‘last resort’. The recent activism of Pakistan’s Supreme Court also appears to have been an attempt to step into the ‘vacuum’ left by an anemic opposition, particularly in light of Musharraf’s own perceived unpopularity. These claims of a vacuum are not all that different in principle from the judiciary in India justifying its own activism as being necessary because political leadership had failed to implement existing laws or address policy concerns that it believed ought to get priority. In any of these cases, it does not matter whether the claim is true or not; the thing that counts most is that an unelected but prominent segment of the state apparatus either holds such a sentiment (that is perhaps deeply institutionalized) or in any case, believes it can be sold publicly to undermine the elected leadership. Khare’s point is two-fold – firstly, that political legitimacy is vital and the elected leadership ought to respect boundaries to maintain it and secondly, in its perceived weakness or absence, the takeover by unelected institutions whether in the name of filling up this ‘vacuum’ or in the ‘public interest’ or under any other guise will eventually cause more conflict, not less. The reasons, means and consequences are all certainly different and more extreme in Pakistan’s case, yet the dynamic inter-relationship between these forces is governed by general rules of power play amongst state actors; it is from an application of the latter that Khare seeks to draw morals of good conduct based on events that unfolded in a context specific to Pakistan.
I do not think he makes out a case that a culture of confrontation leads to a military takeover, only that it obstructs the course of administration and norms of accountability, diminishes the democratic space and eventually manifest in dramatic and extra-constitutional outcomes. He argues that the judiciary set itself up as a political opposition to the government thus inviting the retaliation that followed. If one accepts that premise, the likelihood of an eventual showdown, like the one that just happened, is not hard to fathom. Even in India, on a few occasions, clearly unconstitutional orders of Courts have been implemented by elected officials primarily to avoid a constitutional crisis. If such judicial abuse of power were to become more frequent, it is not altogether unlikely that a particular state or central government may at some point refuse to implement one such order setting up a confrontation with unforeseen consequences. For example, Justice B.N.Agrawal’s recent outburst about dismissing the Tamil Nadu state government, if actually put in writing as an order, who knows what would happen? That may just be the spark that lights a fire.
Mr.Venkatesan has commented at length about the circumstances that led to army takeovers in Pakistan. I am not sure that Musharraf’s current actions can be called a takeover since the army was already in charge and the purge has been limited to the judiciary. It is not altogether clear at this point that this was done for the purpose of prolonging military rule. For the same reason, I am also not entirely convinced that the factors that have led to repeated bouts of military rule (which I fully accept) are also primarily behind the recent events. Nevertheless, he is correct to say that the betrayal of public trust by politicians has not been the reason behind these events.
Speaking more generally about military takeovers in Pakistan, political legitimacy has mattered to the Pakistan army which would explain the interregna of civilian rule. Had the army felt so vulnerable about its own associations and interests under civilian rule, one ought to have expected simply a transition from one dictatorship to another which is not the case. Also, the army often took over when the civilian leadership was widely perceived to be at its weakest. That is also true of the Musharraf regime. He struck when the Nawaz Sharif government was seen as no longer enjoying the support it once did. Whether due to the extensive corruption and nepotism that was alleged or the setback in the Kargil conflict that he could not disown or transfer responsibility for, or his dictatorial tendency to use the instruments of state power to eliminate all his potential political rivals, he had rendered himself unpopular in many quarters. That is also consistent with the fact that a priori, Gen. Karamat, his predecessor, when reprimanded by Sharif chose to resign and the two generals who were senior to Musharraf in the army also chose to step down (upon his elevation as Chief of Army Staff) at that time rather than confront the prime minister or attempt a coup d’etat. The evidence seems to suggest that while the army saw direct rule as important to protecting its own interests and was a necessary reason for the repeated takeovers – as Mr.Venkatesan points out, there is a great deal of evidence to suggest this – it does not appear to have been a sufficient one.
Mr.Venkatesan argues that the theory that the army assumed a political role only to fill up a vacuum of authority is a misconception. In my view, a true vacuum meaning a complete lack of state authority, i.e., anarchy in other words, has never existed in Pakistan. Rather, what the army has meant is that no suitable civilian exists who, in its view, is fit to lead the country – witness Musharraf’s first television address soon after he deposed Sharif when he spoke of the army’s takeover as a ‘last resort’. The recent activism of Pakistan’s Supreme Court also appears to have been an attempt to step into the ‘vacuum’ left by an anemic opposition, particularly in light of Musharraf’s own perceived unpopularity. These claims of a vacuum are not all that different in principle from the judiciary in India justifying its own activism as being necessary because political leadership had failed to implement existing laws or address policy concerns that it believed ought to get priority. In any of these cases, it does not matter whether the claim is true or not; the thing that counts most is that an unelected but prominent segment of the state apparatus either holds such a sentiment (that is perhaps deeply institutionalized) or in any case, believes it can be sold publicly to undermine the elected leadership. Khare’s point is two-fold – firstly, that political legitimacy is vital and the elected leadership ought to respect boundaries to maintain it and secondly, in its perceived weakness or absence, the takeover by unelected institutions whether in the name of filling up this ‘vacuum’ or in the ‘public interest’ or under any other guise will eventually cause more conflict, not less. The reasons, means and consequences are all certainly different and more extreme in Pakistan’s case, yet the dynamic inter-relationship between these forces is governed by general rules of power play amongst state actors; it is from an application of the latter that Khare seeks to draw morals of good conduct based on events that unfolded in a context specific to Pakistan.
Saturday, November 17, 2007
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.
Wednesday, November 14, 2007
Mr.Harish Khare’s simple lessons from Pakistan & the risk of over-simplification
Mr.Harish Khare’s op-ed piece has stirred a lively debate on our blog. I hope to carry it forward by expressing my unease over this analysis, which has seemingly been endorsed by Arun and Dilip. Mr.Khare seems to attribute Pakistan’s present and past predicament of army take-overs to the culture of confrontation. He, therefore, assumes that we may face similar consequences if we give in to this culture, that is, putting a premium on the right to oppose, without the obligation to produce minimum orderly conduct of governing processes.
This overly tempting inference, however, overlooks certain historical truths regarding army take-overs in Pakistan. At the time of independence, Pakistan had no well-developed party organization, and as a result, it was not able to steer its way to a stable, consensus based political culture. The Muslim League was never able to transform itself from a nationalist movement into a national party. The Congress Party, on the contrary, was able to perform the twin tasks of institution building and political mobilization more successfully. The Muslim League did not promote the culture of internal discussion and working as a team. Most Muslim League leaders hailed from Muslim minority provinces in undivided India and lacked the popular base in Pakistan territory. Therefore, they were not inclined towards holding early elections.
Besides, Pakistan faced certain unfortunate historical circumstances. Jinnah died in September 1948. The first PM, Liaquat Ali Khan was assassinated in October 1951. The absence of competent leadership – in contrast to Nehru’s continuous leadership for nearly two decades since independence in India – contributed to the politics of confrontation and non-consensus.
Bengalis constituted majority population of Pakistan (54%). It was clear that election on the basis of adult franchise would shift the power away from the Punjabi-Muhajir elite to the Bengalis. The reluctance to resort to Parliamentary democracy in the early years, therefore, stems from this fear.
Pakistan Army was created from scratch. As Stephen P.Cohen mentions in his seminal work The Pakistan Army (1984), it inherited very few training institutions; it was seriously deficient in most stores, supplies, and weapons, and it received far fewer officers with staff college or advanced training than did the Indian Army. This meant that it was dependent on British officers for its first four years, and this led to a mixed legacy of pride and bitterness at having to create a virtually new army in the face of active Indian hostility. This explains why Pak Army was not rooted in the tradition of non-interference in the political domain like the Indian Army.
Although civilian incompetence (which may be to a limited extent comparable to present day India)might have been a factor, it was not a decisive factor why Army took over the reins of Government repeatedly.
The Pakistan Army, another scholar Veena Kukreja remarks in her book (Contemporary Pakistan, Sage, 2003), entered the political arena with the explicit intention to ward off challenges to its alliance with the civil services and certain dominant social and economic classes. The theory of filling up the vacuum, to explain Army take-overs, may be too tempting to adopt, but in reality, it conceals several other factors.
As Khare notes, democracy has always been a messy arrangement. In Pakistan, it was not allowed to be so from the beginning because of peculiar historical circumstances. Khare’s analysis would have been convincing had Pakistan been a continuous experiment in democracy, and suddenly collapsing under the weight of intractable political confrontation. But that has not been the case. Pakistan’s present turmoil cannot be traced to any recent betrayal of public trust by politicians: it is a product of certain historical factors. Had India faced similar factors at the time of its birth, probably we might have faced similar consequences.
This overly tempting inference, however, overlooks certain historical truths regarding army take-overs in Pakistan. At the time of independence, Pakistan had no well-developed party organization, and as a result, it was not able to steer its way to a stable, consensus based political culture. The Muslim League was never able to transform itself from a nationalist movement into a national party. The Congress Party, on the contrary, was able to perform the twin tasks of institution building and political mobilization more successfully. The Muslim League did not promote the culture of internal discussion and working as a team. Most Muslim League leaders hailed from Muslim minority provinces in undivided India and lacked the popular base in Pakistan territory. Therefore, they were not inclined towards holding early elections.
Besides, Pakistan faced certain unfortunate historical circumstances. Jinnah died in September 1948. The first PM, Liaquat Ali Khan was assassinated in October 1951. The absence of competent leadership – in contrast to Nehru’s continuous leadership for nearly two decades since independence in India – contributed to the politics of confrontation and non-consensus.
Bengalis constituted majority population of Pakistan (54%). It was clear that election on the basis of adult franchise would shift the power away from the Punjabi-Muhajir elite to the Bengalis. The reluctance to resort to Parliamentary democracy in the early years, therefore, stems from this fear.
Pakistan Army was created from scratch. As Stephen P.Cohen mentions in his seminal work The Pakistan Army (1984), it inherited very few training institutions; it was seriously deficient in most stores, supplies, and weapons, and it received far fewer officers with staff college or advanced training than did the Indian Army. This meant that it was dependent on British officers for its first four years, and this led to a mixed legacy of pride and bitterness at having to create a virtually new army in the face of active Indian hostility. This explains why Pak Army was not rooted in the tradition of non-interference in the political domain like the Indian Army.
Although civilian incompetence (which may be to a limited extent comparable to present day India)might have been a factor, it was not a decisive factor why Army took over the reins of Government repeatedly.
The Pakistan Army, another scholar Veena Kukreja remarks in her book (Contemporary Pakistan, Sage, 2003), entered the political arena with the explicit intention to ward off challenges to its alliance with the civil services and certain dominant social and economic classes. The theory of filling up the vacuum, to explain Army take-overs, may be too tempting to adopt, but in reality, it conceals several other factors.
As Khare notes, democracy has always been a messy arrangement. In Pakistan, it was not allowed to be so from the beginning because of peculiar historical circumstances. Khare’s analysis would have been convincing had Pakistan been a continuous experiment in democracy, and suddenly collapsing under the weight of intractable political confrontation. But that has not been the case. Pakistan’s present turmoil cannot be traced to any recent betrayal of public trust by politicians: it is a product of certain historical factors. Had India faced similar factors at the time of its birth, probably we might have faced similar consequences.
When a Tree Shook Delhi
I have just finished reading the book, When a tree shook Delhi: the 1984 carnage and its aftermath by Manoj Mitta and H.S.Phoolka (Roli Books, 2007). The book serves the useful purpose of bringing together various bits of information regarding the carnage, emanating from official and non-official sources, and raise crucial questions about what went wrong and how.
The authors, journalist Mitta and senior advocate, Phoolka have brought together their years of association in their individual capacities in reconstructing the tragedy and its aftermath. Although there are a couple of official reports of inquiry commissions regarding the carnage, the book fills a void in that it brings together all these reports, and analyse their findings holistically from the readers’ point of view.
What struck me after reading the book are a few nagging questions which perhaps were beyond the scope of this book.
The first is the authors’ claim, duly substantiated by the affidavits of the victims before the inquiry commissions, that the carnage was an organized one (which would perhaps justify the use of the term pogrom, rather than carnage, as the role of the State was implicit in terms of its connivance, and the active participation by the police). It was organized because the actual killings of Sikhs began only on the morning of Nov.1, 1984, although Indira Gandhi was assassinated on the morning of October 31, 1984.
Had it been spontaneous, then the killings must have started almost on the same day. The interregnum, perhaps, points to the constant signals to the would be rioters, that anything would be tolerated for at least three days, and the State, with all its instrumentalities, would look the other way. Thus signals led to meetings at various places, and organization, materials, men and so on.
Of course, this is quite a plausible account. But it falls short of answering the question, why? Did the Congress stand to benefit from the carnage? It is true that Rajiv Gandhi who succeeded as the PM, made no effort to stop the killings immediately; instead he encouraged them, by his statements seen by many as justifying the violence. But did he have the ensuing elections in mind? Did he think the carnage would polarize the voters?
Mitta admits that he did not deal with this issue, but said (while discussing it with me), that the Congress campaign managers were under the compulsion to demonstrate that the Indian State had the potential to strike back, as the assassination suggested that the fight against Sikh terrorism suffered an irreversible setback. The Indian State had to demonstrate this potential, by its inaction against the rampaging mobs in Delhi for three days. And the voters, convinced as they were about this potential, decided to vote en masse the Congress, to further strengthen its resolve to control Sikh extremism.
Two things follow from this. One is that the Congress leaders assumed that through carnage, it would be easier to consolidate and mobilise the Hindu vote-bank. However this is only a facile assumption. In my view, the voters in 1984 election voted out of sympathy for the assassination, no doubt. But would they have voted so as to show their approval of the carnage? If the vast majority of voters did feel that carnage was necessary to send a strong signal, then we could as well be subscribing to the theory of spontaneity as a probable cause of the violence. But as the authors show it was not a credible explanation. Indeed, there were many Hindus on October 31, 1984 and later, who went out of their way to help and save the Sikhs from the rampaging mobs in Delhi and elsewhere.
Therefore, the question of what the top Congress leaders stood to gain by being indifferent to the carnage on the first three days has not convincingly been answered yet. Well, it could be said that similar interpretation can be placed on the 2002 Gujarat carnage and the subsequent consolidation of Hindu voters in Gujarat assembly and Lok Sabha elections.
Were the voters influenced by the fear of reprisals by the minority community in both the instances? If that is so, it clearly shows that the voters disapproved the original carnage, because they undoubtedly feared reprisals. In which case, the political class could be said to have felt that the carnage would serve a political purpose, by instilling this fear, and thereby serve the immediate purpose of consolidation and mobilization of the majority community.
The lack of clarity on the issue was so glaring to me also because in the post-1992 phase, the BJP did not actually benefit from the demolition of Babri Masjid, as every election after that it only paid diminishing returns to the party. Are the killings of minorities less tolerable than the demolition of a religious structure of minorities? Well, I have no answers, as no serious academic has addressed this issue in this manner.
The book also raises an important issue regarding institutional safeguards. The book confirms the worst suspicion that had the army been deployed in all the trouble-spots of the Capital on October 31 itself, the killings would have been almost nil. So, who delayed the deployment? The L-G of Delhi has the powers to deploy Army in such circumstances, without waiting for political clearance. The L-G claimed that he gave the go-ahead to the Police Commissioner on the morning of Nov.1. What followed was the clash of institutional egos between the Police Commissioner and the general officer commanding of Delhi area, as the Army did not want to work under the Police in Delhi, although the peculiar position of Delhi required that Army was answerable to Delhi Police in such situations.
Mitta told me –although he did not elaborate this issue in the book – that this was perhaps the reason why there was the needless delay in deploying the Army. Strangely, I find this issue –although it must have been obvious to any observer – has not been addressed at all, and corrective steps taken so that such clash of institutional egos does not undermine our response to a grave national crisis in the Capital.
Another larger issue also deserves consideration: how to fill a political and administrative vacuum in a crisis of this proportion. If a Prime Minister dies in office under tragic circumstances, why can’t we institutionalize his or her succession,(I mean automatic) so that there is no vacuum till a successor assumes office? It appears that certain political leaders of Congress used this vacuum and the inexperience of Rajiv Gandhi in governance to teach Sikhs a lesson, although the political and electoral benefits to the Congress from this carnage were dubious.
The authors, journalist Mitta and senior advocate, Phoolka have brought together their years of association in their individual capacities in reconstructing the tragedy and its aftermath. Although there are a couple of official reports of inquiry commissions regarding the carnage, the book fills a void in that it brings together all these reports, and analyse their findings holistically from the readers’ point of view.
What struck me after reading the book are a few nagging questions which perhaps were beyond the scope of this book.
The first is the authors’ claim, duly substantiated by the affidavits of the victims before the inquiry commissions, that the carnage was an organized one (which would perhaps justify the use of the term pogrom, rather than carnage, as the role of the State was implicit in terms of its connivance, and the active participation by the police). It was organized because the actual killings of Sikhs began only on the morning of Nov.1, 1984, although Indira Gandhi was assassinated on the morning of October 31, 1984.
Had it been spontaneous, then the killings must have started almost on the same day. The interregnum, perhaps, points to the constant signals to the would be rioters, that anything would be tolerated for at least three days, and the State, with all its instrumentalities, would look the other way. Thus signals led to meetings at various places, and organization, materials, men and so on.
Of course, this is quite a plausible account. But it falls short of answering the question, why? Did the Congress stand to benefit from the carnage? It is true that Rajiv Gandhi who succeeded as the PM, made no effort to stop the killings immediately; instead he encouraged them, by his statements seen by many as justifying the violence. But did he have the ensuing elections in mind? Did he think the carnage would polarize the voters?
Mitta admits that he did not deal with this issue, but said (while discussing it with me), that the Congress campaign managers were under the compulsion to demonstrate that the Indian State had the potential to strike back, as the assassination suggested that the fight against Sikh terrorism suffered an irreversible setback. The Indian State had to demonstrate this potential, by its inaction against the rampaging mobs in Delhi for three days. And the voters, convinced as they were about this potential, decided to vote en masse the Congress, to further strengthen its resolve to control Sikh extremism.
Two things follow from this. One is that the Congress leaders assumed that through carnage, it would be easier to consolidate and mobilise the Hindu vote-bank. However this is only a facile assumption. In my view, the voters in 1984 election voted out of sympathy for the assassination, no doubt. But would they have voted so as to show their approval of the carnage? If the vast majority of voters did feel that carnage was necessary to send a strong signal, then we could as well be subscribing to the theory of spontaneity as a probable cause of the violence. But as the authors show it was not a credible explanation. Indeed, there were many Hindus on October 31, 1984 and later, who went out of their way to help and save the Sikhs from the rampaging mobs in Delhi and elsewhere.
Therefore, the question of what the top Congress leaders stood to gain by being indifferent to the carnage on the first three days has not convincingly been answered yet. Well, it could be said that similar interpretation can be placed on the 2002 Gujarat carnage and the subsequent consolidation of Hindu voters in Gujarat assembly and Lok Sabha elections.
Were the voters influenced by the fear of reprisals by the minority community in both the instances? If that is so, it clearly shows that the voters disapproved the original carnage, because they undoubtedly feared reprisals. In which case, the political class could be said to have felt that the carnage would serve a political purpose, by instilling this fear, and thereby serve the immediate purpose of consolidation and mobilization of the majority community.
The lack of clarity on the issue was so glaring to me also because in the post-1992 phase, the BJP did not actually benefit from the demolition of Babri Masjid, as every election after that it only paid diminishing returns to the party. Are the killings of minorities less tolerable than the demolition of a religious structure of minorities? Well, I have no answers, as no serious academic has addressed this issue in this manner.
The book also raises an important issue regarding institutional safeguards. The book confirms the worst suspicion that had the army been deployed in all the trouble-spots of the Capital on October 31 itself, the killings would have been almost nil. So, who delayed the deployment? The L-G of Delhi has the powers to deploy Army in such circumstances, without waiting for political clearance. The L-G claimed that he gave the go-ahead to the Police Commissioner on the morning of Nov.1. What followed was the clash of institutional egos between the Police Commissioner and the general officer commanding of Delhi area, as the Army did not want to work under the Police in Delhi, although the peculiar position of Delhi required that Army was answerable to Delhi Police in such situations.
Mitta told me –although he did not elaborate this issue in the book – that this was perhaps the reason why there was the needless delay in deploying the Army. Strangely, I find this issue –although it must have been obvious to any observer – has not been addressed at all, and corrective steps taken so that such clash of institutional egos does not undermine our response to a grave national crisis in the Capital.
Another larger issue also deserves consideration: how to fill a political and administrative vacuum in a crisis of this proportion. If a Prime Minister dies in office under tragic circumstances, why can’t we institutionalize his or her succession,(I mean automatic) so that there is no vacuum till a successor assumes office? It appears that certain political leaders of Congress used this vacuum and the inexperience of Rajiv Gandhi in governance to teach Sikhs a lesson, although the political and electoral benefits to the Congress from this carnage were dubious.
Monday, November 12, 2007
Frank Rich does a Harish Khare
I have been struck by how closely the global media is tracking the developing story in Pakistan, and how so many commentators in different parts of the world believe that events in that nation have ramifications far beyond its borders. These events also appear to be causing thoughtful journalists in many constitutional democracies around the globe to take a long hard look at the state of their domestic politics.
In a recent post, we saw how Harish Khare used recent events in Pakistan as a hook to issue some harsh judgments about Indian democracy. More recently, Frank Rich of the New York Times has done the same for U.S. democracy. In an op-ed that appeared in the Nov 11 issue of the New York Times, Rich has much scorn to pour over some recent decisions - and political trends - within the U.S. Here are some extracts from his piece:
“[T]he coup in Pakistan has been almost universally condemned as the climactic death knell for Bush foreign policy, the epitome of White House hypocrisy and incompetence. But that’s not exactly news. It’s been apparent for years that America was suicidal to go to war in Iraq, a country with no tie to 9/11 and no weapons of mass destruction, while showering billions of dollars on Pakistan, where terrorists and nuclear weapons proliferate under the protection of a con man who serves as a host to Osama bin Laden.
… … The Pakistan mess, as The New York Times editorial page aptly named it, is not just another blot on our image abroad and another instance of our mismanagement of the war on Al Qaeda and the Taliban. It also casts a harsh light on the mess we have at home in America, a stain that will not be so easily eradicated.
In the six years of compromising our principles since 9/11, our democracy has so steadily been defined down that it now can resemble the supposedly aspiring democracies we’ve propped up in places like Islamabad. Time has taken its toll. We’ve become inured to democracy-lite. That’s why a Mukasey can be elevated to power with bipartisan support and we barely shrug.
This is a signal difference from the Vietnam era, and not necessarily for the better. During that unpopular war, disaffected Americans took to the streets and sometimes broke laws in an angry assault on American governmental institutions. The Bush years have brought an even more effective assault on those institutions from within. While the public has not erupted in riots, the executive branch has subverted the rule of law in often secretive increments. The results amount to a quiet coup, ultimately more insidious than a blatant putsch like General Musharraf’s.
… … … Even if Mr. Bush had the guts to condemn General Musharraf, there is no longer any moral high ground left for him to stand on. Quite the contrary. Rather than set a democratic example, our president has instead served as a model of unconstitutional behavior, eagerly emulated by his Pakistani acolyte.
… … … Tipping his hat in appreciation of Mr. Bush’s example, General Musharraf justified his dismantling of Pakistan’s Supreme Court with language mimicking the president’s diatribes against activist judges. The Pakistani leader further echoed Mr. Bush by expressing a kinship with Abraham Lincoln, citing Lincoln’s Civil War suspension of a prisoner’s fundamental legal right to a hearing in court, habeas corpus, as a precedent for his own excesses. (That’s like praising F.D.R. for setting up internment camps.) Actually, the Bush administration has outdone both Lincoln and Musharraf on this score: Last January, Mr. Gonzales testified before Congress that “there is no express grant of habeas in the Constitution.”
To believe that this corruption will simply evaporate when the Bush presidency is done is to underestimate the permanent erosion inflicted over the past six years. What was once shocking and unacceptable in America has now been internalized as the new normal.”
In the remainder of the piece, Rich offers some deeply pessimistic views about the current - and future - state of democratic politics in the U.S. I am not sure whether these will draw as much support as some of the views extracted above. However, his piece, like that of Khare, reminds us that the achievements of liberal constitutional democracy are not something to be taken for granted, or indeed always something to crow about. Both Rich and Khare also note the classic weaknesses of liberal constitutionalism - that it is prone to being misguided by populism, and that it relies too much on the hope that the sense of outrage of the masses will result in corrective action (which, in some cases, results in overly delayed and tame responses).In a blog post reacting to Rich's piece, American constitutional scholar Sanford Levinson argues that Rich, like other commentators, fails to ask the more fundamental question : whether there is anything wrong with the design and structure of the U.S. Constitution which enables such actions to be undertaken by the representative wings of government. (To get a sense of what those changes should be, browse through the archive of posts authored by Levinson and other U.S. constitutional scholars at Balkinization over the past few months).
Reading Levinson's post made me reflect upon the fact that despite Khare's deeply critical comments about the state of Indian politics, he too does not question whether any fundamental changes in the Constitution of India are called for to remedy the problems he identifies. My own interest is in the constitutional provisions relating to emergency powers, and I hope to post about that in the near future.
Friday, November 9, 2007
Karnataka circus: Lessons on the use of Article 356
Now that President’s rule has been revoked in Karnataka, to facilitate the assumption of office by the BJP-led Government, it is perhaps time to look back and examine how the events ought to have evolved.
Most analysts (including edit writers) had assumed that imposition of President’s rule in Karnataka on October 9 was something inevitable, following the resignation of H.D.Kumaraswamy Government after the withdrawal of support by the BJP, a coalition partner of Janata Dal (Secular). The Governor, Rameshwar Thakur recommended President’s rule probably on the belief that inability to form a Government by any political party/parties is equivalent to failure of constitutional machinery – as all the three parties, the BJP, JD(S) and the Congress-I pleaded their inability to form the Government and suggested President’s rule , dissolution of assembly, and fresh elections as a solution.
This was exactly what Buta Singh as Governor of Bihar did in 2005 after the Bihar assembly elections when none of the parties was in a position to stake claim to form the Government. Singh quoted, in his report to the President dated 6.3.05, paragraph 153 of Bommai Judgment to support his view. However, it is clear that the expression ‘failure of constitutional machinery’ contained in Paragraph 153 of the Bommai judgment is Justice K.Ramaswamy’s minority opinion.
Further, the expression ‘failure of constitutional machinery in States’ occurs only in the marginal note of Article 356, whereas the provisions of Article 356(1) are plain, clear, simple and unambiguous, according to which a situation must have arisen in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution. According to Maxwell (Interpretation of Statutes), the headings prefixed to sections or sets of sections in some modern statutes are regarded as preambles to those sections. They cannot control the plain words of the statute, but they may explain ambiguous words.
The right course for the Governor on October 9 was to ask Kumaraswamy to continue in power till alternative arrangements were made, including holding of fresh elections, as urged by all the parties on October 9, rather than recommend President’s rule.
Another myth or misconception which well-known analysts have assumed is that once the President’s Rule is imposed, and assembly is kept under suspended animation, according to the Bommai judgment, within two months, Parliament must approve the Proclamation, and only then the President can dissolve the assembly. For revoking the Proclamation, Parliament’s approval is not necessary. If Parliament does not approve the Proclamation within two months, then the assembly and the dismissed Government spring back to life.
Here the myth is the assumption that only the President has the power to dissolve the assembly, and that Parliament’s approval is a must. As per Article 174(2)(b), only the Governor can dissolve the Legislative Assembly, and this is an independent legislative power of the Governor. When the legislature is kept under suspended animation, under Article 356 (1) (b), the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament. Clearly, the assembly cannot dissolve itself, and has no such power. Even though the Governor is part of the Legislature, his power to dissolve is an independent power, and Parliament is not entrusted with this power under Article 356 (1) (b).
Again, under Article 356(3) every proclamation under this article shall be laid before each house of Parliament, and shall, except where it is a Proclamation revoking a previous Proclamation, cease to operate at the expiration of two months unless before the expiration of that period it has been approved by resolutions of both Houses of Parliament. Curiously, in the case of Bihar, the Proclamation dissolving the assembly (as distinct from the one imposing President’s rule) was not laid before Parliament in 2005. The Government did not bother about securing the Parliament’s approval for the dissolution either, before going ahead with the elections. Even the E.C. connived at this gross defiance of the Constitution. The Supreme Court’s judgment in the Rameshwar Prasad case, delivered in January 2006 is also silent on this.
The long interregnum between the BJP’s staking of claim to form the Government and the revoking of the President’s rule (there was a delay of 13 days), has been explained by the fact that the Proclamation imposing President’s rule had suspended Article 164 – which facilitates the appointment of Chief Ministers and other Ministers by the Governor. Therefore, it is important to ask whether suspension of this article with every Proclamation imposing President’s rule is necessary. The Proclamation does not even disclose the objects required to be fulfilled as contemplated under A.356 (1) ©.
Most analysts (including edit writers) had assumed that imposition of President’s rule in Karnataka on October 9 was something inevitable, following the resignation of H.D.Kumaraswamy Government after the withdrawal of support by the BJP, a coalition partner of Janata Dal (Secular). The Governor, Rameshwar Thakur recommended President’s rule probably on the belief that inability to form a Government by any political party/parties is equivalent to failure of constitutional machinery – as all the three parties, the BJP, JD(S) and the Congress-I pleaded their inability to form the Government and suggested President’s rule , dissolution of assembly, and fresh elections as a solution.
This was exactly what Buta Singh as Governor of Bihar did in 2005 after the Bihar assembly elections when none of the parties was in a position to stake claim to form the Government. Singh quoted, in his report to the President dated 6.3.05, paragraph 153 of Bommai Judgment to support his view. However, it is clear that the expression ‘failure of constitutional machinery’ contained in Paragraph 153 of the Bommai judgment is Justice K.Ramaswamy’s minority opinion.
Further, the expression ‘failure of constitutional machinery in States’ occurs only in the marginal note of Article 356, whereas the provisions of Article 356(1) are plain, clear, simple and unambiguous, according to which a situation must have arisen in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution. According to Maxwell (Interpretation of Statutes), the headings prefixed to sections or sets of sections in some modern statutes are regarded as preambles to those sections. They cannot control the plain words of the statute, but they may explain ambiguous words.
The right course for the Governor on October 9 was to ask Kumaraswamy to continue in power till alternative arrangements were made, including holding of fresh elections, as urged by all the parties on October 9, rather than recommend President’s rule.
Another myth or misconception which well-known analysts have assumed is that once the President’s Rule is imposed, and assembly is kept under suspended animation, according to the Bommai judgment, within two months, Parliament must approve the Proclamation, and only then the President can dissolve the assembly. For revoking the Proclamation, Parliament’s approval is not necessary. If Parliament does not approve the Proclamation within two months, then the assembly and the dismissed Government spring back to life.
Here the myth is the assumption that only the President has the power to dissolve the assembly, and that Parliament’s approval is a must. As per Article 174(2)(b), only the Governor can dissolve the Legislative Assembly, and this is an independent legislative power of the Governor. When the legislature is kept under suspended animation, under Article 356 (1) (b), the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament. Clearly, the assembly cannot dissolve itself, and has no such power. Even though the Governor is part of the Legislature, his power to dissolve is an independent power, and Parliament is not entrusted with this power under Article 356 (1) (b).
Again, under Article 356(3) every proclamation under this article shall be laid before each house of Parliament, and shall, except where it is a Proclamation revoking a previous Proclamation, cease to operate at the expiration of two months unless before the expiration of that period it has been approved by resolutions of both Houses of Parliament. Curiously, in the case of Bihar, the Proclamation dissolving the assembly (as distinct from the one imposing President’s rule) was not laid before Parliament in 2005. The Government did not bother about securing the Parliament’s approval for the dissolution either, before going ahead with the elections. Even the E.C. connived at this gross defiance of the Constitution. The Supreme Court’s judgment in the Rameshwar Prasad case, delivered in January 2006 is also silent on this.
The long interregnum between the BJP’s staking of claim to form the Government and the revoking of the President’s rule (there was a delay of 13 days), has been explained by the fact that the Proclamation imposing President’s rule had suspended Article 164 – which facilitates the appointment of Chief Ministers and other Ministers by the Governor. Therefore, it is important to ask whether suspension of this article with every Proclamation imposing President’s rule is necessary. The Proclamation does not even disclose the objects required to be fulfilled as contemplated under A.356 (1) ©.
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