Thursday, November 29, 2007

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.

Thursday, November 22, 2007

Caste and Economic Discrimination: A Few Comments

This is a belated commentary on the series of studies on the relationship between caste and economic discrimination in the Indian urban labor market conducted by Sukhdeo Thorat, Katherine Newman and others that was published last month in a freely available special issue of EPW. The studies are fairly comprehensive and include a number of pieces of evidence, both objective and subjective, that presents a compelling and complex picture of social reality in the marketplace. The first of the five papers presents an overview of the topic, the authors’ findings, their meaning, implications and a very limited discussion of remedies. The second and third papers provide an insight into a variety of perceptions of employers and students at several universities in Delhi regarding questions pertaining to merit assessment, reservation policy, caste discrimination, job prospects, income expectations and other related matters. The fourth paper presents the findings of a study of communal and caste-based discrimination in screening job applicants. The fifth and last publication studies caste discrimination in the urban salaried sector using data from the National Sample Survey. The first three of these largely detail subjective views of participants and are easy on the lay reader; the last two comprise of statistical analyses whose quantified outcomes are more authoritative and constitute the backbone of this entire set of studies. Popular accounts of their findings can also be found in media reports which appeared at the time (a link to a news item in Yahoo!India is here).

The purpose of this post is not to provide an exhaustive account of their findings, reasoning and conclusions – that would be impossible in a short write-up given the numerous observations they make at every stage. Instead, I simply highlight here a few key findings and my own views on them. In a nutshell, these are: (1) Employers universally claim that they do not discriminate on caste grounds, that such discrimination, whether done out of individual prejudice or to comply with a state mandate are undesirable. By non-discrimination, they generally mean a policy that is caste-blind but a few employers instead follow a conscious policy of caste balancing. A variety of stereotyping is also, at the same time, widely prevalent and employers see nothing wrong in holding such views. (2) Reserved (i.e. dalit) and general category (i.e. non-dalit) university students have differing preferences, expectations and understanding of the marketplace. General students prefer private sector jobs, have higher salary expectations, disfavor caste-based quotas, are more willing to employ family-based or other connections, exhibit greater confidence in their own abilities and are less perturbed by unjust hiring practices of employers. Reserved category students prefer public sector jobs, have lower salary expectations, favor quotas, are less likely to employ family-based or other connections and are generally more sensitive both to perceived slights by employers as well as to unjust hiring practices. (3) Amongst young men with stereotypically identifiable caste-specific or distinctive surnames, those from an upper caste are more likely to obtain an interview for an entry-level job than a similarly qualified dalit or Muslim applicant. (4) SC/STs suffer a 15% wage differential as compared to others who are equally qualified; job discrimination occurs in both public and private sectors but reservation policies compensate for it in the public sector to some extent. A large part of the earning differential is attributable to factors other than discrimination collectively called ‘endowment’ such as education attainment, level of occupational skill, etc.

The authors discount employers’ claims of equal treatment in light of all the other evidence and suggest that they probably understate the bias in hiring. They argue that antidiscrimination laws are needed to ensure truly caste-blind policies and a government organization similar to the Equal Employment Opportunity Commission that monitors caste data routinely is required for this purpose. An interesting theory suggested by one of the managers interviewed is that globalization imposes a pressure that competitively favors companies adopting more ‘broad-minded’ and equitable merit-based selection policies. Hence, he argued, companies that are more globalized are less likely to adopt caste, family or other identity –based hiring practices, the latter being more prevalent in smaller firms catering only to the local market. The authors did not comment on this beyond stating it perhaps because this study presented no evidence in support of such a contention. Rather, stated preferences of employers regarding preferential hiring of people who are ‘cultured’, ‘stylish’, etc. as well as student assessments of employer expectations suggest that globalization, by favoring particular cultural attributes – socio-cultural capital, as the authors call it - more prominently associated with the urban and upper caste segments of society may actually be prejudicial to people coming from a lower caste or rural background.

The disparity between reserved and non-reserved categories of students in terms of expectations and preferences together with evidence of actual wage and job discrimination suggests that a relationship likely exists between these trends. This is one aspect where I found these papers lacking. It is suggested that employer expectations confer a premium on certain extracurricular traits that dalit students lack rendering them less competitive when they graduate and are about to enter the job market. They speculate that awareness of this fact causes a crisis of confidence and leads to pessimism which accounts for their lowered expectations. Yet, this does not address the key question that arises: do differing preferences account for the wage and job discrimination or does it work the other way around? This is particularly important to the conclusions of their last study as there is no real way, applying the methods they use, to distinguish between lowered expectations and discrimination (see paper V by Madheswaran and Attwell for details).

I also found the variety of reasons students cited in support of continuing reservations interesting. Barring one instance, all the others were about everything save caste, the primary basis of state-mandated quotas – poverty, rural background, absence of access to exclusive social networks or other implications of the same such as ‘family background’ suggestive of a lack of affluence.

Their study showing discrimination at the preliminary stage of inviting applicants for interviews is strongly suggestive of caste and communal prejudice in hiring. This is not altogether surprising knowing the opinions expressed in their managers’ survey. In fact, it is likely that a variety of other discriminatory characteristics – regional, linguistic, etc. will also come to the fore if one were to only look for them. On a dissenting note, many of the factors such as stereotyping and discriminatory hiring that they disparage may actually be beneficial to the well-being and growth of businesses, particularly in traditional markets, notwithstanding the arguments of mainstream economic theory – apart from offering cultural cohesion, hiring people of specific caste backgrounds may help smaller businesses better address the requirements of their relatively caste-specific clientele. The authors too note in their introductory article that labor market discrimination can be quite durable. They quite naturally root for non-discriminatory practices, particularly a legal and policy framework to safeguard employment opportunities of marginalized sections of society in the private sector. This might well require a high degree of intrusive regulation to enforce and I am not sure how feasible it would be for small and medium-scale enterprises. From a policy perspective, it would therefore be important to know whether such tendencies are equally common in large industrial houses and medium to small scale family-based ventures – the former appear to be facing the brunt of governmental pressure to introduce affirmative action policies. Future studies may throw more light on this.

Tuesday, November 20, 2007

Non-Nativist Exclusion: A non-debate in India

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.

Monday, November 19, 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.

Sunday, November 18, 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.

Thursday, November 15, 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.

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.

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 09, 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) ©.

The Insufficiency of Economic Growth

Today’s Economic Times carries an article by Sunil Khilnani that raises serious questions about India’s increasing focus towards economic growth to the exclusion of other important concerns. He argues that India’s unity and social justice problems cannot be resolved through economic growth alone. Economic factors (that are tangible and relatively easily comprehensible) have gained prominence over questions of distribution, social justice, political unity and so on. He says:

“There is an easy comprehensibility to economic success or failure — its metric is standard, a global currency. However there is a danger in our recent obsession with economics: a sense now common among the elite that all of India’s hard questions of distribution and social justice, of political unity, of preserving the habitat, will be resolved for us by growth. Yet how then can we explain the fact that one of our most prosperous and globalised states, Gujarat, can also claim to exemplify in recent times the worst bigotry and intolerance of our compatriots? It is not as easy as some of us would like to imagine to escape or transcend politics. India’s great distinction, historically, is political: the creation, out of material unparalleled both in its diversity and its entrenched hierarchy, of an open society committed to democratic politics, to a pluralism of human life, and to a project of common development. This was the founding idea of India. And one quality of Nehru’s thought whose force remains undeniable today is his insistence on the primacy of politics as we negotiate our differences and unity. Three fundamental questions will demand all the political skills we can collectively muster. How do we think of ourselves as a community? What sort of a society do we want to be? And what do we wish to do in the world? These connected issues — of identity, solidarity, justice and security — Nehru had long recognised as fundamental, and they will continue to define our political horizon as we move forward towards the first century of our existence as free nation.”

The questions he raises go far beyond economic growth and prosperity of India as a nation. He further goes on to add:

“The market-and-merit camp believes that social justice will come from growth, as benefits slowly trickle over the parched voids of India’s social landscape. But a decade of economic growth hasn’t much changed, for instance, our percentage of underweight children. Our population of hungry children is still much larger than that of sub-Saharan Africa. But we’ve all but abandoned Nehru’s belief in the state and its policies as an important agent for remedying social inequality. We’d prefer to leave social justice to the captains of industry — people who create wealth and then give some of it away. A new generation of philanthropists is certainly to be welcome and encouraged, and some of them are engaged in vital projects. But charity is ultimately contingent and dependent on the whims of the giver, and it is almost never accountable. It cannot, in a nation of one billion people, resolve underlying issues of social opportunity and distribution. Between the rigid dogma of reservations and the whimsy of philanthropy, we need to steer a steady line of innovative and focused policies.”

There are a couple of significant takeaways from this. First, benefits of economic growth need not necessarily percolate to the bottom rung of society. Even if does, it is likely to take an unduly long period of time for such percolation to materialize, before which it may be too late. Timing of the benefits of growth is as important as receiving the benefit itself.

Second, the state or Government cannot abdicate its responsibility for upliftment of the downtrodden by citing to economic growth. Even though private enterprises may possess distributable wealth, and many indeed in fact distribute their wealth magnanimously by way of charity (as we have seen in the case of several large responsible Indian corporates), that cannot be relied upon on a sustainable basis. Apart from the accountability issue that Sunil Khilnani raises, there is also an issue of incentives. What incentives do private enterprises have to act towards social development? In a larger context, corporates are likely to be socially responsible only if they obtain perceivable gains. For instance, a company may act in a socially responsible manner if that results in an enhancement of its image or reputation among consumers and thereby a tangible increase in its sales and profitability, or because such a company is likely to attract large institutional investors who are socially conscious. In the final analysis, a corporate’s ability to act in a socially responsible manner is driven by its incentives that is represented by the classic conflict as to whether it should work to enrich its owners or shareholders on the one hand or whether it should work to bring about overall benefit on the other hand to the society in which it operates. It appears that the answer is still somewhat elusive.

Thursday, November 08, 2007

Breaking News: Supreme Court breaks silence on Justice Sabharwal issue

The Campaign for Judicial Accountability and Judicial Reforms had alleged that Justice Y.K.Sabharwal called for and dealt with the sealing of commercial property case in March 2005, though it was not assigned to him. “It is only the Chief Justice who can assign pending cases to various Judges. He was not the CJI at that time”, the CJACR said, annexing the copy of the order dated March 17, 2005 along with its press release issued on September 19, 2007. (At that time, Chief Justice was Justice R.C.Lahoti) The press release added that Justice Sabharwal, while responding to the Campaign’s charges in his article in the Times of India, did not answer this particular charge.

The CJAJR's rejoinder is here.

As I was intrigued by this charge, I filed an application under RTI seeking relevant answers from the Supreme Court. I am giving below my questions and the answers provided by Mr.Ashok Kumar, Central Public Information Officer, Supreme Court.

Q: With reference to the above order dated 17.3.05, was the CJI’s consent obtained to transfer the cases of commercialization of residential areas and the appeals arising out of the Delhi High Court judgment about the absence of power of sealing in respect of unauthorized construction or misuse, and post them for hearing before the Bench which issued the above order dated 17.3.05?

A: The matter was directed to be listed before the Bench of Hon’ble Mr.Justice Y.K.Sabharwal with the approval of Hon’ble the Chief Justice of India.

Q: Does the CJI have exclusive discretion on the distribution of cases? Is the CJI’s consent mandatory to post a case before a particular Bench?

A: The matters expected to be filed in the Supreme Court have been divided into 45 subject categories which have been further divided into various sub-categories. Each fresh matter is categorized as per those subject categories. Each subject category has been allocated to one or more Judges and the allocation has been fed in the computer. Subject to orders of Hon’ble the CJI, fresh matter are allocated to them through computer, as per the subject category.

When I sought CJAJR's convenor, Mr.Prashant Bhushan’s reaction to this, this is what he said: “The technical requirement might have been fulfilled with the consent of the CJI to listing the matter before Justice Sabharwal. But the question of conflict of interest remains unanswered.”

If we read the 17.3.05 order carefully, it is clear that Justice Sabharwal's order directing the sealing case to be listed before him stemmed from the suggestion of Ranjit Kumar, Amicus Curiae, and other counsel in the case.

The order says: "Learned counsel also seeks to challenge the expansion of the list of household industries as arbitrary. It is further contended that this aspect is intimately connected with the issue of commercialisation of residential areas, change of use of industrial areas for non-industrial purposes.

"It is expedient, and all learned counsel appearing also submit, that while dealing with the issues arising out of the 3rd and 4th Progress Reports (submitted by the Supreme Court Monitoring Committee set up in this case) and the issues as raised by the learned Amicus Curiae, it may be necessary to hear and decide the aspect of commercialisation of residential areas as well which was earlier deferred.

"Further, it is pointed out that Civil Appeal No.5413 of 2002 (D.Bhowmick & Ors. Vs. Delhi Development Authority & Ors) and other connected appeals arising out of the same judgment of the Delhi High Court holding about the absence of power of sealing in respect of unauthorised construction or misuse shall also be taken up for hearing along with these matters."

The question is, if the facts as shown above, indeed favour Justice Sabharwal, why did he not answer this particualr charge in his article in the Times of India? Was it inadvertent? Or does his silence reflect his expectation that the answer may well be provided by the Supreme Court? My previous post referring to this article is here.

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.

Wednesday, November 07, 2007

Andhyarujina on recent events in Pakistan

In a previous post, Vikram drew our attention to recent events in Pakistan, and invited comparisons to debates about judicial activism in India. Even the most bitter critic of judicial activism (in India or anywhere else for that matter) would not wish for the turn that events in Pakistan have taken over the past week. Today's Indian Express carries a piece by the noted constitutional lawyer, T.R. Andhyarujina, who has in the past been highly critical of judicial activism in India, especially in PIL cases. (See, for instance, his 1992 book which remains a classic work that even supporters of PIL and judicial activism regard as making valid criticisms). In this piece, Andhyarujina analyses recent events in Pakistan, places them against the backdrop of the history of the judiciary in Pakistan, and also draws lessons for nations beyond Pakistan. While the whole piece is an interesting read, here are some extracts:

The emergency declared by Pervez Musharraf in Pakistan must be the strangest emergency ever declared in the catalogue of such emergencies by authoritarian rulers. For the first time an emergency has been declared because an activist judiciary is accused of having created conditions by which government cannot be carried out in accordance with the constitution.

In the predominant part of the official text of the proclamation, Musharraf complains that some members of the judiciary were working at cross purposes with the executive and legislature; of increasing and constant interference by them in government policy and functions, including that of combating terrorism by ordering the release of militants; of taking over the administration of the government. He complains of the order of the country’s supreme court nullifying his order of suspension of Chief Justice Ifthikar Chaudhary and the humiliating treatment being meted out to government officials by the judiciary during court proceedings, which had demoralised the bureaucracy.

It does not require much political acumen to conclude that the real intention of the emergency is to muzzle the supreme court which, it was apprehended, would pronounce an adverse verdict on Musharraf’s election as president in the next week. The actions which followed the proclamation amply prove this.

Immediately after the proclamation, a bench of seven judges of the supreme court declared it illegal. We do not know how and at what time this bench took cognisance of the proclamation. Musharraf retaliated by dispensing with the services of Chief Justice Ifthikar Chaudhary and placed him and six other judges under house arrest. Later Justice Hameed Dogar, fourth in line of seniority, was administered the oath as chief justice by Musharraf under the new provisional constitutional order. The government also appointed new chief justices of the Sindh, Lahore and Balochistan high courts simultaneously. Later Chief Justice Dogar revoked the order of the seven-judge court declaring the emergency illegal and cancelled the hearing of the cases pending in the supreme court against Musharraf.

This is the most surprising and bizarre development in the history of the judiciary of Pakistan. In the past, the Pakistan judiciary, with rare exceptions, had displayed a general timidity and compliance to the regime of military rulers of the country that had governed Pakistan for all but 12 years. The judgments of the supreme court were protective of the military rule and unresponsive to the basic rights of the citizens by inventing recondite doctrines of revolutionary legality and state necessity to legitimise military rule.

After providing a brief overview of earlier and more recent trends in decision-making of the judiciary in Pakistan, Andyarujina concludes:

After all this, one may have to revise Hamilton’s famous statement that of the three branches of government the judiciary is the weakest, having neither the power of the sword nor of the purse. The Pakistan experience shows that it required an emergency to control the judiciary.

Monday, November 05, 2007

Mandal II: Oral arguments of Harish Salve & K.K.Venugopal

In view of extraordinary interest in my posts on oral arguments in the Mandal II case, I am posting below the summaries of rejoinders of Harish Salve and K.K.Venugopal, as I could gather from my notes taken on Nov.1. I must admit that these are not exhaustive, as I might have missed out some crucial aspects of their arguments, due to my absence in the Court. Although I have tried to be as accurate as possible in reporting the arguments, I take responsibility for any inaccuracy (which could be unintentional).

I wish to return to their arguments, and also to others’ arguments whom I might have missed for want of time (especially, that of Mr.Parasaran and Mr.Gopal Subramanian) within a few days (before the Bench delivers the verdict), by closely examining all the written submissions, to find out whether we have answers (may be conficting) for all the questions raised by the Bench at the time of the reference.
Taken together, all these four rejoinders (Salve, KKV, RD and PPR) could shed some light on why the petitioners are dissatisfied after the conclusion of the hearing. The section on K.K.Venugopal could have been longer, but unfortunately I found my notes on his argument sketchy and inadequate. I hope to return to his submission at length later.

Harish Salve:
1.Nobody said on our side that Article 15(4) is an exception. This debate is the most irrelevant.
2. Strict scrutiny is called for if Article 15(1) applies.
3. There is an inherent tension between social enginnering and votebank politics. Power is given for social engineering and not for collateral purpose. That is why the Court has to carefully scrutinize. Judicial review was created for this. Compelling state interest would apply if you are treading on dangerous ground. That is why strict scrutiny test is required; it is not alien. (Justice Pasayat said we apply a test of our own, which may be akin to strict scrutiny test) Harish Salve said: We have never been insular; we have enriched ourselves. We rejected some, eminent domain for example.
Justice Pasayat: American decisions can be considered as articles written by some eminent persons. They shed some light, but have no precedent value.
Justice Thakker: Like we say dissenting judgments also have some value.

4. Harish Salve: Supreme Court judgment in M.Nagaraj case is not obiter (except the part relating to creamy layer). I strongly resent the remarks made by Ram Jethmalani calling some of us on this side as creamy layer.

Justice Pasayat: Ram Jethmalani was referring to creamy layer among lawyers in general. (laughter)
Harish Salve: We take pride in rising above these social barriers while discussing these issues. Such comments from a senior colleague in the bar are hurtful.

5. If the State has quantifiable data, then it can make reservations.
6. Identified class minus creamy layer is equivalent to cohesive class. Social engineering, therefore, must go on even if it creates ripples in society. Harmony and good governance are part of rule of law. This impugned law smacks of politics, not social engineering.
7. Article 15(5) purports to overwrite Article 19(1)(g). The Act also overlooks Article 26 (a) (establish and maintain institutions for religious and charitable purposes). According to T.M.A.Pai decision, charitable purposes include education. Articles 26a –19-30 constitute one composite scheme. Nagaraj principle of interpretation must be applied. You are disturbing the delicate balance between Article 26a and A.30. T.M.A.Pai judgment deals with A.19(1)(g) and A.26.
8. Article 29(2) guarantees to all equality, where public funding is involved. Every student has a right under this Article. Both Venkataramana and Champakam were delivered on the same day. (also by the same Bench; Salve perhaps means here that the same Bench could not have delivered two verdicts with different import on the same day).
9. After strict scrutiny was brought in by Nagaraj, the law must move forward.
10. Article 15(5) is an unqualified way of saying Inamdar was wrong.

K.K.VENUGOPAL:1. Mr.Parasaran says Article 15(5) must be read in addition to A.15(4). But if A.15(4) permits reservation in aided minority institutions, the impugned Act says no to it, because A.15(5) says it cannot.
2. If A.15(4) operates in a parallel position as suggested by Mr.Parasaran, then it will create confusion.

Friday, November 02, 2007

Mandal II: Dr.Rajeev Dhawan's rejoinder

Dr.Rajeev Dhawan, one of the counsel for the petitioners, replied to the arguments of the respondents' counsel on Oct.31 and Nov.1. This is a selective summary of his oral arguments.
1. The claim of the respondents that the impugned Act expands capability is a farce. No part of the Act is severable. It is impossible to increase capacity (of the intake of the higher educational institutions) in a proper sense in a reasonable manner.
2. The SG says castes are also professional in character. But the criteria of backwardness is much more complex. It involves the principle of inclusion and exclusion. The excluded include rich as well as the poor.
3. Limitations of judicial review: Main arguments of the other side centre around the doctrine of judicial deference – an area where judicial hands must be off. (Justice Pasayat sought to correct him saying the SG did not exactly mean that the judicial review is inapplicable in the present case – Dhawan agreed to reformulate it as judicial deference).
4. The non-obstante clause in Art.15(4) has a limited application. (It shuts out Article 15(1) and 29(2). Article 14 remains. (Justice Thakker pointed out it is an enabling clause.) Level of scrutiny in Constitution varies from Article to Article.
5. What is not in dispute? : Constitution is a social document; There is social justice in Fundamental Rights; the issue of balance (which is partly disputed by Ram Jethmalani), that is, social justice and group rights cannot overwhelm individual rights.
6. Is power under A.15(4) coupled with duty? The concept of power coupled with duty has been rejected in Ajit Singh II and III cases. (Justice Thakker here pointed out that even in absence of A.15(4), (5) and Article 16(4), SG and Mr.Parasaran had pointed out that it is part of Preamble.) Article 15(3) may be justified in the case of women; but here the State’s contribution is deficient. Ajit Singh III is a forgotten decision.
7. There is no obligation to remove historical wrongs. Constitution does not say you must right historical wrongs. It says help the disadvantaged. Reservation is not a penance for past discrimination. It is not retributive justice.
8. Ram Jethmalani’s emphasis on “only” in Article 15(1) and (2) is an over-simplification.
9. There has been an attack on the American doctrines, especially strict scrutiny, from the other side. Agreed that they are not relevant, not binding. But the level of scrutiny is written into the Constitution. Foreign doctrines are illustrative of an idea. Let the Court lay it down. Level of scrutiny is so detailed here.
10. The impugned Act is a farce. Its purpose is to achieve quick results at the expense of education. Is it a reasonable exercise? Is it a correct method to achieve that objective? There is an implicit balance between Article 14 and 15. Scrutiny relevant to this case.
11. If caste is used as a starting point, there has to be a comprehensive look. Until you do a proper survey, rational, balanced and proportionate affirmative action is not possible. Can this process be short-changed? Census is considered divisive. Then information be placed before the Supreme court. The SG says there may be potholes in the criteria. (Justice Raveendran said they say there is a road in existence) Potholes affect rich and the poor. (Justice Pasayat asked is it a walkable road? Pitfalls, not potholes). Government has not placed a proper and comprehensive criteria of backwardness. Court should ask Government to establish criteria for backwardness.
(The rejoinders of Harish Salve and K.K.Venugopal will be posted later)

Thursday, November 01, 2007

Mandal II hearing ends: Petitioners’ counsel reply (P.P.RAO)

The Constitution Bench completed the hearing today. I will sum up the oral replies of P.P.Rao, Dr.Rajeev Dhawan, Harish Salve and K.K.Venugopal to the arguments of respondents’ counsel. In view of time constraints, I am posting Rao first, and others later.

P.P.RAO: On October 31, Rao had a difficult time explaining to the Bench that he was not against expenditure on higher education. First, Justice Pasayat explained that the SG in fact, meant that both primary and higher education can be balanced. Justice C.K.Thakker told Rao: “Your position seems to be that unless 100 per cent school education is achieved, you can’t proceed towards higher education at all”.

Justice Pasayat intervened to say that the SG in fact, said that our lack of progress in basic education cannot be a ground to invalidate the law making OBC reservations in Central government institutions. Justice Raveendran also pointed out that school and higher education are different issues, and cannot be linked. Justice Dalveer Bhandari specifically asked Rao whether it is his argument that till 100 per cent success is achieved in basic education, you cannot spend on higher education.

The Chief Justice expressed his surprise that Rao was in fact suggesting that the Government need not focus and spend on higher education. Rao’s reference to Article 21A mandate did not help. The CJ said: “There are many Constitutional mandates. It is a question of priorities by the Government." Justice Bhandari asked: “If we say Article 21A is to get priority, then are you suggesting that until the goal of Article 21A is achieved, no additional funds can be spent on higher education?" Justice Thakker added: “You cannot correlate”.

Justice Pasayat tried to mollify the criticism of his brother Judges, by asking Rao whether according to him, educational backwardness would disappear with the completion of school education, and therefore, the question of addressing educational backwardness in higher education does not arise. Justice Thakker suggested: “Article 15 has no application at all, because according to you, they are in advanced stage (in higher education)”.

Rao then suggested that educational backwardness can be removed within a time frame. He said there is need for a special package for backward class citizens, to address their educational backwardness.

Then followed the CJI’s retort to Rao: “IITs, IIMs, - should they be closed down? Was the Government wrong in starting IITs, and IIMs, and AIIMS? This is something very strange. Thousands of applications are submitted for admission to these institutions. These institutions have produced many outstanding scientists and engineers."

Rao replied that these institutions should go on. "I am on the point of reservations", he said. He added it is not his case that higher education does not require investment. Those who completed 10+2 belong to creamy layer among the educationally backward; therefore, they must be denied quota. Once you complete +2, you enter the level playing field, he explained.

Rao continued: Mr.Parasaran suggested that Article 19(1)(g) can be abridged, if not abrogated. The Court cannot accept it.
Justice Thakker: Article 19(1)(g) must be read with Article 19(2) to 19(6).