Decoding India’s Political Paralysis

Leading Indian businessmen are crawling out of the woodwork bleating that the government is harming business by moving too slowly. Mr Azim Premji, Mr Deepak Parekh, Mr Adi Godrej, Mr Ashok Hinduja and a host of big names are publicly expressing alarm. The latest to cry out is Mr Mukesh Ambani. Speaking at the annual Economic Summit in Mumbai he said that the nation should move “from the 20th-century-delivery mindset to the 21st-century delivery mindset”. He said: “Both the central and state governments need to align and move a lot faster.” Mr Ambani is right like others to recognize paralysis in governance. He is horribly wrong likerest to yearn for a 21st century model. What India needs is to return to the 1950 mindset of the framers of our Constitution. That would enable the central government and the state governments to align much more closely to deliver swifter governance. Our system is paralyzed because our Constitution was subverted from day one. Nothing illustrates better the legal knots into which our stupid politicians and dishonest jurists have tied the nation as the current Armed Forces Special Powers Act (AFSPA) controversy raging in Kashmir.

 Mayawati’s upper caste card

Constitutional hurdle!

On the run up to the Uttar Pradesh Assembly polls early next year Chief Minister Miss Mayawati has adroitly played the caste card. She wooed upper caste voters by acknowledging that many of the poor among the upper castes were economically deprived. She said: “This is the main reason why poor and unemployed people among the upper castes have been demanding reservation on economic basis in the sphere of education and government jobs. The BSP fully supports this.” She indicated that she would create quotas for the upper caste poor.

However, there is a complication. If she creates a quota for merely the poor, reservations in that quota would be open to all the poor regardless of caste. If she specifies the upper castes that may qualify for the proposed quota she would be creating an unconstitutional law. Article 16 (2) of the Constitution states: “No citizen shall, on grounds only of religion, race, caste, sex, descent, residence or any of them, be ineligible for, or discriminated against in respect of , any employment or office under the State.”

In the light of this how has caste based reservation become a law? It happened because the government played a deceitful trick and the judiciary through perverted logic allowed an unconstitutional law to become legal. The government in order to circumvent Article 16 (2) misused Article 16 (4) which states: “Nothing in this Article prevents the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services of the State.”

Subverting Article 16 (4) the government created the Backward Classes category. Several criteria were listed to define backwardness. One criterion included was caste. Weight was given to each criterion. By giving preponderant weight to caste the Backward Classes became defined for all practical purpose by caste. The courts allowed this duplicitous sleight of hand by the government to make a mockery of the Constitution. The simple question that the courts never addressed was: If on principle caste cannot be a single criterion for reservation, how can it become one criterion among others for reservation? The Constitution enunciated a principle which cannot be glossed over by hiding caste among other criteria for the purpose of reservation. Thereby caste reservation which clearly is unconstitutional has been allowed to become legal!

Even if this distortion is accepted there is a serious complication in giving reservation to the upper caste poor by specifying caste. Disproportionate weight was given to the deprived castes to enable them to masquerade as members of a Backward Class. The same cannot be repeated for upper castes that are socially forward. Therefore if Miss Mayawati wants to help the upper castes by offering reservation to the poor among them on the basis of economic criteria, she cannot deny entry to even non-upper castes into the same quota. This is Catch-22. Miss Mayawati would be well advised to consider scrapping all caste based reservation for Other Backward Classes (OBC) and instead offer a general and generous reservation quota on the basis of economic criteria ignoring caste. She is unlikely to do it for the electoral risks this would entail. But has she ever considered gambling for a political wave that could make her a real game changer in national politics?                                                                                                                                                                                         (RP)

Demanding the withdrawal of AFSPA from parts of Kashmir, Chief Minister Mr Omar Abdullah argued that since the State issued the notification for AFSPA the State can withdraw it. This is logical. But legal experts pointed out that under the structure of AFSPA the State is just a recommending agency. The final decision rests with the Centre and the Governor who is part of the State but is appointed by the Central Government. Noted lawyer Mr Rajeev Dhavan told the media: “The Act provides that the Centre or State Government has power to impose AFSPA. While the Centre need not consult the State Government to impose AFSPA, the same is not true for the State Government. Its power is exercised through the Governor in that State.”

Mr Dhavan has bracketed the Governor with the Centre. But to which Centre is he alluding to? In the Dr. Tilak Raj Case (1979) the Supreme Court ruled that in no manner was the Governor “subordinate or subservient” to the Union cabinet. This ruling preceded the 43rd Amendment curtailing Presidential powers. Therefore replicating Mr Abdullah’s perfectly reasonable logic, since the President appoints the Governor the latter must be accountable to the President. But according to the Supreme Court’s ruling in the Shamsher Singh versus the State of Punjab Case the President is a titular head and must abide by the advice of the Union cabinet. The Honourable Supreme Court never explained where it obtained this nugget of information from. In India’s longest written Constitution of the world nowhere is it written that the President is a titular head or that India is committed to the Westminster model. And yet the Indian President has been reduced to the Union cabinet’s dummy to read out the written scripts prepared by it and to take a salute annually at the Republic Day Parade. I have repeatedly pointed out that unless the President exercises the powers assigned to the post by the Constitution India will never get a cohesive administration capable of delivering good governance.

By our Constitution the President is the sole and final authority to protect Law and Constitution. Without directly participating in the execution of policy the President is empowered to advise the Union cabinet and Parliament on all matters of policy. The President is of course the Supreme Commander of the nation’s armed forces. The Governor as the agent of the President in all the States of the Union is expected to perform the same role in the State as the President does at the national level. It is for the Governor to ensure that the State government does not violate the Constitution or law. The Governor is fully accountable to the President. If the President exceeds or misuses authority, Parliament has the power to impeach the President. If such a state of affairs existed chief ministers would think twice before descending on police thanas to interfere with police action, or allow police to send a colleague exposing corruption to the mental asylum. Mr Ambani’s distant hope of closer alignment between the centre and the states to deliver swifter governance could become a reality.

It is good that big businessmen have started to squeal because their profits are starting to shrink. But apart from being able to make money they should spare a thought for the system which allows them to do so. They should take a closer look at the politicians they fund so generously for quick quid pro quo. For a change they should think of the nation apart from their own businesses. It is good that they are beginning to worry. Their worry may induce their political beneficiaries to also rethink. Indian politicians do not lack brains. But where are their brains located? For the most part they sit on them.

 By Rajinder Puri