Archive for the ‘public policy’ Category

Bilkis Bano case – the interface of law and ethics

If 2012 saw the conscience of a nation shaken by the Nirbhaya rape incident, 2022 has witnessed an equal nightmare in the wholesale release of eleven men convicted of gangrape and mass murder in 2002 in Gujarat, that too on the very day that India was celebrating the 75th anniversary of its independence. The Government of Gujarat utilised its good fortune in being declared the “appropriate government” by the Supreme Court decision of May 2022 (which overrode Section 432(7) of the Code of Criminal Procedure (CrPC)) to arrive at the facile reasoning that the 1992 remission policy provided for remission of life sentence (even in cases involving rape and murder) after 14 years in prison. The subsequent tightened guidelines on remission by the Government of Gujarat (2014) are apparently not applicable since the 11 men were convicted in 2008, when the 1992 remission policy was in place.

The decision of the Government of Gujarat begs many answers. Let us accept the argument that, as per the 1992 remission guidelines, these 11 men were eligible for release from prison. Some other nagging questions of law still remain. The case was prosecuted by the Central Bureau of Investigation (CBI), an agency created under the Delhi Special Police Establishment Act, 1946. Section 435 of the CrPC makes it mandatory for the state government to consult the Union Government in cases prosecuted by the CBI (note well that consultation here means concurrence of the Union Government). If such permission was not taken, the remission of sentence is ab initio void in law. If concurrence was taken, the Union Government is a willing party to this decision. Since, as in many other decisions of the Government of India today, no clarification is provided on this issue, the public is left guessing. Even if concurrence of the Union Government under Section 435 of the CrPC was taken, there is still the matter of taking the opinion of the presiding Judge of the court which passed the original order of conviction, regarding grant of remission of sentence under Section 432(2) of the CrPC: this has been mandated by the Supreme Court as well. This process has definitely not been gone through in the appropriate special CBI court in Mumbai.

These are the legal issues on which no clear answers are forthcoming as of now. But even more troubling is the process of decision making at the level of the committee on remission headed by the District Magistrate, Godhra, and the Home Department, Government of Gujarat. Even granting that the 1992 remission guidelines allowed for remission of sentence to those convicted of murder and rape, there are still other considerations that have to be kept in mind when granting remission. The Supreme Court has, as far back as 2000, laid down guidelines for remission of sentence which include, inter alia, whether the crime affects society at large and whether recurrence of commission of crime is possible. In the Bilkis Bano case, there can be no doubt that the nature of the crimes committed — gangrape and mass murders — definitely affected society at large. On the issue of possible recurrence of criminal acts by the convicts subsequent to their release, newspaper reports indicate that witnesses were threatened when the convicts were released on parole during their incarceration. Whether these factors were taken into consideration while granting remission is a matter of speculation — there is no clarification from the state government.

However, as much as these legal issues, what ought to concern us all as citizens of a humane, compassionate society are the ethical dimensions of this entire episode. Photographs have been shown of the distribution of sweets to the released convicts; even more appalling are reports of the felicitation of the convicts by the Vishwa Hindu Parishad, this in a criminal case monitored by the Supreme Court and where verdicts of conviction were confirmed by the Bombay High Court. Common decency dictated that the release, even if in accordance with the procedure laid down by law, be kept low-key in deference to the sentiments of the survivors of the crimes. A member of the remission committee and a sitting ruling party legislator went so far as to suggest that the convicts were of high caste, had good upbringing and that charges were framed against them because of ill intentions of some persons. It was incumbent on the administration of the Government of Gujarat to take steps to prevent the organisation of such events and to discourage such statements which could cause unease in the minds of the victims and the minority community.

In fact, the Government of Gujarat should have taken the initiative to organise a reconciliation meeting between the victims and the perpetrators of crimes. The effort should have been to bring a sense of closure to the tragic incidents of 2002 and promote a spirit of harmony in the village where both sides would be residing henceforth. Nelson Mandela adopted this approach with his Truth and Reconciliation Commission, following the end of apartheid in South Africa, to build an atmosphere of trust and cooperation between the coloured and white communities. Our own Bapu, Mahatma Gandhi, spent the first Independence Day wiping the tears of the victims of communal fury in Bengal.

It is this spirit of fraternity (bandhutva) that is sorely lacking in the India of today. We can debate till eternity whether the 11 persons should have been released or should have continued in prison, depending on our ideological predilections. But unless those who committed these crimes are fully aware of the damage they have caused to the psyches of their victims and are truly remorseful for their past misdeeds, there can be no meeting of minds between the different communities. Immense damage is caused to the social fabric, when vested interests dabble in spreading hatred and misunderstanding among communities. Let us, in this 76th year of India’s independence, move from untruth to truth and from darkness to light: only then will we truly be free.

The Idea of India – at 75

As India celebrates the 75th anniversary of her existence as an independent nation, it is time to reflect on what ‘India’ truly represents. What has given this country the resilience to meet multiple challenges on the economic, political and social fronts over three-quarters of a century and retain her status as the largest democracy in the world (even if there is still a gap between the actual and the potential)?

India has been fortunate that eminent personalities oversaw the transition from imperial to democratic rule, developing a robust Constitution of India (‘the Constitution’) that has, in spite of many amendments, stood the test of time. At this juncture in our history, it would be appropriate to identify the core principles that have enabled India to chart her course of nationhood. The strength of India rests on three fundamental principles embedded in her Constitution: the primacy accorded to the individual, the emphasis on pluralism and the operation of the federal structure of the nation.

India has, over the ages, taken into her fold people from diverse races, cultures and religions. The country displays a heterogeneous collection of languages and traditions. Pluralism is not confined to religion: it is the trait which welcomes and embraces different ethnicities, linguistic groups and those from diverse cultural backgrounds. The Constitution’s greatest boon has been its focus on bringing together in one nation-state people who were earlier subjects of British India and nearly 600 princely states. It has located a number of pluralist measures in the Part on Fundamental Rights (‘Part III’). These include the freedom to profess, practice and propagate any religion as well as the protection of cultural and educational rights of minorities. Discrimination on grounds of religion, race, caste, sex or place of birth is specifically prohibited.

What is equally noteworthy is the primacy accorded to the individual in Part III. Article 14 guarantees equality before the law to all persons, irrespective of whether they are citizens or not. The subsequent Articles lay down clearly the rights of citizens — of life and liberty, freedom of speech and association, public employment, etc. This marks a sea change in a social milieu where the collective, in the shape of the family, clan or community, was, in centuries past, the arbiter of the rights and duties of the individual. The Constitution gives the individual a dignity of her own, not linked to any entity other than the nation of which she is a citizen.

It is significant that the very first Article of the Constitution defines India as a ‘Union of States’. The territories administered by the British and the princely states which signed the Instrument of Accession to the Indian Union were amalgamated into different states. Article 1 of the Constitution was a recognition of the reality that it was these states that constituted the nation.  There is a clear division of responsibilities between the Union and the States in the matter of governance. The Seventh Schedule delineates the subjects which are the exclusive domain respectively of the Union and of the States (as well as those where there is concurrent jurisdiction of both). The Constitution provides for a Finance Commission to propose, at regular intervals, the allocation of financial resources between the Union and the States; it also created All India Services that serve both the Union and the States. These provisions are intended to ensure a collaborative and synergistic relationship between the two, often governed by different political parties. Recognising that federalism has to strike roots below the state level, the Constitution (73rd and 74th) Amendments provided for substantive devolution of powers to rural and urban local bodies.

However, there are areas where closer attention from the Union and state governments, the judiciary and civil society is necessary if India is to serve as an example of a healthy democracy. Powers of arrest are still exercised by law enforcement agencies in a routine fashion and subordinate courts treat bail applications with a negative frame of mind, so much so that the Supreme Court was constrained to recently observe that India should not become a “police state”. Special acts have severely circumscribed the granting of bail in certain cases. These lead not only to the “process becoming the punishment” (as observed recently by the Chief Justice of India), but also to the burgeoning number of undertrials in jails in India. The 2006 directives of the Supreme Court to insulate the police forces from political pressures need to be implemented by all governments in letter and spirit if the sanctity of individual liberties is to be maintained.

The pluralist ethos has come under strain in recent years, through a combination of executive actions (and inaction) and the emergence of vigilante groups that seek to deliver ‘justice’ in a summary manner. Increasing intolerance for the views of others, especially with the explosive growth of electronic and social media, has contributed to the growing incidence of hate speech, which sows the seeds of bigotry and hatred in large segments of society. It is time governments impartially administer the laws which check such actions (and courts take a severe view of infractions of laws causing social unrest). The media and civil society also need to call out those elements that seek to sow dissensions among different sections of society.

There is an urgent need to tone down the adversarial relations between the Union and state governments. A spirit of mutual goodwill, respect and consensus between the Union and state governments, especially those governed by parties other than that governing the Union, is crucial in furthering the economic development of the country and improving the lot of the common citizen.

The promise in the Preamble of the Constitution to secure to all citizens of India justice, equality, liberty and fraternity will be realised in ample (if not full) measure when all the stakeholders in the country actively promote the values enshrined in the Constitution. Only then will India’s tryst with destiny truly be fulfilled.

This blog was published in the Free Press Journal (15 August 2022) (here)

The loaves and fishes of office

The recent brouhaha over the extension of tenures for specific officers of the Government of India even when they are well past the normal age of retirement has brought into focus again the issues of the sanctity of the retirement age and the possible interference by government in the independent functioning of officers handling crucial organisations, especially those endowed with enormous powers to investigate offences, both economic and otherwise. However, this is no recent development: fixed tenures for the Cabinet Secretary, Home, Foreign and Defence Secretaries, and Directors of the Intelligence Bureau and Research & Analysis Wing, extending beyond the normal age of superannuation, have been in vogue for a number of years now.

What has occasioned concern in recent days has been the Government of India’s decision to give five-year tenures to the heads of two Central Government investigative agencies that have often been caught in the crosshairs of political wars. The Central Bureau of Investigation (CBI) is no stranger to controversy: no less a body than the Supreme Court termed it a “caged parrot”. To the CBI has been added the Enforcement Directorate (ED) which has come into the public eye only in recent years. These two agencies, along with their country cousins, the Income Tax department, the National Investigation Agency and the Narcotics Control Bureau, have developed into falcons from parrots, with their deployment by the Central Government in a wide range of cases, amidst concerns as to whether these serve merely political ends or the ends of justice (the Sushant Singh Rajput and Aryan Khan cases serve as examples). Of even greater concern are the cases of raids, and selective disclosures, that surface whenever election time surfaces. Karnataka in 2018, West Bengal and Tamil Nadu in 2021 are states where politicians of parties opposed to the BJP received special attention from central investigative agencies.

It is significant (and glaringly obvious) that officers were being given tenure posts or extensions in service just days before their date of superannuation (as witnessed in the appointment of the Police Commissioner of Delhi and the last-minute extension of tenure of the Director, ED). The recent amendments in Fundamental Rules and the changes in the Acts governing the CBI and ED aim to legalise extensions and attempt to put them beyond the pale of judicial challenge.

What is equally notable is the plethora of appointments to post-retirement posts, from the ranks of both the higher judiciary and the top echelons of the civil services. That this practice has the sanction of precedent is no cause for comfort. There have been far too many cases in the past three decades where the appointments to crucial posts of retired judges and bureaucrats have raised uncomfortable questions about possible quid pro quos for decisions favourable to the government of the day taken by the beneficiaries while in positions of power. While some of the pre- and post-retirement appointments go through a committee which has, apart from the Prime Minister, the Leader of the Opposition and the Chief Justice of the Supreme Court as its members, other crucial appointments, as for example, the Election Commissioners, are made purely at the discretion of the executive.

At a juncture in our democratic existence when many executive decisions are viewed with some measure of suspicion, there is need to evolve norms for appointments to the highest positions in the civil services that ease such suspicions as also mitigate the rising apprehension that serving civil servants are being induced through the carrot of continued service to shed their independence and impartiality in decision making. I venture to make some suggestions below to address this vexing issue.

Superannuation from public service should be mandatory on attaining the age of 60 for all members of the civil services. On attaining the specified age, civil servants should follow the shining example of RCVP Noronha, former Chief Secretary of Madhya Pradesh, who refused any extension and rode away happily from the Secretariat on his Luna moped on the day he superannuated.

For all senior positions in constitutional/statutory bodies, like Members/Chairpersons of Commissions and Tribunals, where judicial/administrative experience is required, selection should be through a process of application. This should also apply to the heads of major investigation agencies, which enjoy powers of. search, seizure and confiscation. The final selection should be done by a Committee which comprises representatives of the concerned government, the judiciary or the Union Public Service Commission and representatives of opposition parties (for specific constitutional/executive posts, as is the case at present).

Most importantly, the selection of civil servants for all higher posts (administrative and quasi-judicial) should be structured such that the person superannuates from the post at the age of 60 years. This would imply that a person would be selected for such a post around the age of 55 years (for those in government), so that (s)he would cease to hold office, after a tenure of five years, at or just before her/his normal superannuation date. This has certain implications, both for these functionaries and for those in the organisations they have left in order to hold these select posts. For one, those who move to posts outside the government structure will create openings for their juniors to move into senior positions in their departments/organisations. There may also be cases where, in full knowledge of the fact that (s)he is not likely to be in the running for the top job in the executive, a person may choose to move laterally to these posts. It would certainly enable governments, both at the centre and in the states, to dispense with many posts at apex levels, which (especially in state governments) seem to be virtually dished out with the rations.

As for the contention that officers’ talents will not be used beyond their age of superannuation, these talents and competencies can well be displayed in a variety of other fields — media, business, academics, social service and politics being obvious avenues. Rephrasing the recent utterance of a noted senior advocate, “the heavens will not fall if a worthy replacement takes on the responsibility of the retiring incumbent.” Nor does it preclude the truly ambitious from aspiring to governorships/ambassadorships/Rajya Sabha memberships, depending on their equations with the central government of the day.

In the final analysis, such a change would spare us the unseemly spectacle of persons jockeying in their final days of service with the powers that be to ensure their continued access to naukar-chakar-bangla-gaadi, apart from the heady access to power and prestige that continued occupation of prestigious posts brings. Civil servants, indeed all humans, would do well to heed the words of Adi Sankaracharya in the Bhaja Govindam:

दिनयामिन्यौ सायं प्रातः, शिशिरवसन्तौ पुनरायातः।

कालः क्रीडति गच्छत्यायुस्तदपि न मुन्च्त्याशावायुः ॥१२॥

Day and night, dusk and dawn, winter and spring come and go again.

Time sports and life ebbs away, and yet the gust of desire never leaves us.

Opposition In Residence

(James Hacker, Minister in Her Majesty’s Government: “The Opposition aren’t the opposition…They’re only the opposition in exile. The Civil Service is the opposition in residence.” – Yes Minister, Antony Jay & Jonathan Lynn)

Politicians in India, at least from Indira Gandhi onwards, have, notwithstanding their pious public utterances, always veered in favour of a “committed bureaucracy”, faithfully executing the dictates of the party in power. The general public, therefore, has this mistaken impression that civil servants mindlessly toe the line of their political masters (I don’t dare use the feminine equivalent). This is not quite the whole truth, at least in the three decades when I was in service from 1980 onwards. Not that we did not have our share of those who were ready to oblige the political executive for a mess of pottage. But there were sections of the civil service that did their utmost to ensure that their political bosses did not get their way in issues that reeked of impropriety or financial wrongdoing.

I have written earlier on the tactics that can be employed to forestall patently illegal requests from the political class (see here). These include (a) let us see, “Parkalam” in Tamil and “Baghoon sangto” in Marathi; (b) making oneself scarce; (c) sending the file into orbit; (d) setting up a committee; (e) recording one’s views on file; (f) asking for written orders; and (g) asking/getting  ready for a transfer. These distracting tactics are not necessarily a reflection of bureaucratic ego or of an innate desire to take no decisions. Mostly, they are intended to give time for reflection on the proposed course of action or to make the vexed issue irrelevant with the passage of time.

Apart from the bureaucratic bulwark against impetuous, risky decision making, there are even more crucial checks and balances in a functioning democracy which are intended to check autocratic tendencies in the political executive. Brute majorities in the Lok Sabha (think India 1971/1984/2019) tend to invest a sense of infallibility in the minds of the majority party leaders. It is easily forgotten that democracy is not just the exercise of their electoral rights by citizens at five year intervals but also the giving of voice to their hopes and aspirations in the interregnum between elections. Four institutions play major roles in this theatre of democracy: legislatures, the judiciary, media and civil society.

Central and state legislatures are the first check on arbitrary executive actions. Even where the opposition is in truncated numbers, its voice can be powerful when its representatives speak fearlessly on issues of public importance. In the Nehru-Indira heyday, politicians like Minoo Masani, Piloo Mody, Nath Pai, Madhu Dandavate, Atal Bihari Vajpayee and Jyotirmoy Basu commanded respect with their scathing denunciations of ruling party actions, couched always in parliamentary language. House committees were dreaded by bureaucrats for their interrogation of executive actions. Parliamentary debates, reported fully by the print media, gave citizens an idea of what their leaders were up to. Bills went through discussions in select committees before they were put to vote. Ordinances were resorted to as a last, emergency option only when the House was unlikely to convene in a reasonable time period. That these vital functions of the legislature have been given the go-by in recent months and years is a cause for concern. Important bills are either subject to inadequate legislative scrutiny or are rushed through as money bills, obviating the need for passage by the Upper House – abrogation of Article 370, passage of the CCA and farm bills are prime examples of legislative bulldozing. Ordinances are now the new flavour, with the COVID pandemic providing a ready excuse to bypass legislatures.

The courts are the main support of citizens against arbitrary executive actions backed by pliant legislatures. While the seal of approval given by the highest court of the land in the early years of our democracy to preventive detention and sedition laws caused unease in liberal minds, the court did qualify the exercise of such sweeping powers by the state in a number of landmark judgments. The enunciation of the principle of “basic structure of the Constitution” in the 1973 Kesavananda Bharati case had reassured the public that the judiciary would safeguard the Constitution against executive encroachment. That the Supreme Court went against this principle in the 1976 ADM Jabalpur case was a setback to personal freedoms, though the court corrected its position in this case forty years later. With the Supreme Court entertaining public interest litigations (PILs) and taking suo motu cognisance of issues of vital public importance, the next few decades saw a phase of judicial activism that seemed to bode well for a healthy democracy where the judiciary kept the executive in check. This trend has, unfortunately, gone into reverse gear in recent times with a number of executive and legislative actions yet to go on the anvil of judicial scrutiny. Prominent among these are the electoral bonds issue, demonetisation, the abrogation of Article 370 of the Constitution, the CAA law and the three farm laws. More worryingly, the Supreme Court (and many High Courts) are yet to pronounce on executive actions that have impinged on basic freedoms of citizens: the large number of pending habeas corpus petitions, the internet restrictions in Jammu & Kashmir and the incarceration and denial of bail in many cases involving civil society activists, journalists and intellectuals.

The media, both print and electronic, has largely abdicated its role as guardian of the qui vive. During the 1975-77 Emergency, it crawled when merely asked to bend: now it is, with notable exceptions, ready to lend its services for dissemination of inaccurate, sensational news and take partisan positions on issues of public importance. The spread of digital and social media has mitigated this one-sided view somewhat but, with the likely introduction of curbs on such independent media, the prospects for free and frank expression of points of view appear dim.

Finally then, it is left to civil society, especially those in its ranks who cherish the values enshrined in the Constitution, to raise the flag for the fundamental rights listed in Part III of the Constitution. When all other avenues to secure timely justice and redress of grievances seem to be foreclosed, sections of civil society have resorted to the satyagraha route propounded by Mahatma Gandhi during the freedom struggle. This was vividly illustrated in the two mass movements — the anti-CAA and the farmers’ protests — over the past year. As the Mahatma was to emphasise in his experiments with satyagraha, it is based on an inviolable relationship between the means and ends, with its essence in the purity of means, totally non-violent in nature, adopted by a pure person, as also in the constant quest of this person to purify her/himself through self-examination. The satyagraha effort can be undermined and brought to a close because of external “Chauri Chaura” events, such as civil disturbances (riots/violence) or natural occurrences (COVID), as witnessed in recent times.

Mutual tolerance and respect for institutions are the hallmarks of true democrats. A democrat at heart is aware that (s)he holds the position of power for only as long as the people wish and that there has to be space for opposing viewpoints in a functioning democracy. Equally, other political formations have to be given due regard and the space to function freely. But even more important is the recognition of the inviolability of institutions meant to safeguard democracy. It is these institutions that, as the checks and balances in a democratic society, act as the real “opposition” in keeping the executive under control. As in the case of charity, democracy too begins at home.

 

 

 

 

 

 

 

 

Farm Laws: Good Economics, Bad Politics

The road to hell is paved with good intentions”. This saying sprang to my mind once the three Farm Bills were rammed through Parliament, with the opposition not even being given the parliamentary freedom to have its say in the Rajya Sabha. The absence of collegial decision making seems to be the signature tune of the present central government, as I have had occasion to bring out in an earlier blog (see here). Starting with the enactment of anti-beef laws in different states and moving on through demonetization, triple talaq, Kashmir, CAA, COVID lockdown, labour laws, farm laws and now ‘love jihad’ laws, the governments of the ruling party at the centre and in states ruled by them have relied on legislative majority, Prime Ministerial 8 PM pronouncements and the Ordinance Factory route to push policy down the throats of the citizenry.

The three bills focus on (a) freeing private entities from the oversight and jurisdiction of the Agriculture Produce Marketing Committee (APMC) in respect of transactions outside the APMC market yard area, with no licences being required from and no fees being payable to the APMC; (b) easing up the Essential Commodities Act to allow for far greater price variation in commodities before state restrictions on prices kick in; (c) providing for direct contractual arrangements between farmers and private entities. On the face of it, these measures seem to be exactly what are required to free the agricultural sector from the clutches of exploitative middlemen, ensure a fairer deal for the farmer in terms of better prices for his produce and encourage the growth of entrepreneurship to promote innovation and investment in the farm sector. Why then have these “reforms” attracted so much ire from the farming community, leading to a virtual blockade of the national capital?

It would be easy (and the lazy option) to dismiss the present turmoil as a political gimmick, sponsored by vested interests who stand to lose from the reforms process. Deeper reflection would, however, reveal the inadequate homework done by the authors of these three bills on critical issues, with the lack of clarity sowing major doubts in the minds of farmers. Though it might appear on the face of it that the agitation is largely driven by the interests of the better-off farmers, the issues that remain unresolved need to be squarely faced as they will raise their heads in the years to come and continue to act as flash points for farmers’ discontent.

The future of Minimum Support Price (MSP)

The first issue that has reverberated over the past couple of months has been the future of the MSP. While this has largely been operative only in respect of the two major cereals, paddy and wheat (and, to a far lesser extent, in respect of some other crops), the farmer is apprehensive that the move to a “free trade area” outside the APMC and the entry of contract farming on a large scale in the days to come will sound the death knell of the MSP. While the Government of India has been at pains to stress its commitment to retain the MSP in the future, it has not spelt out its strategy in respect of the MSP in an environment where there is extensive private entity-farmer trade, with prices being determined by direct negotiations between the farmer and the private party. This issue assumes importance especially in a set up where there is an unequal relationship between the farmer and the purchaser of his produce. If there are just two or three big oligopsonistic buyers, there would be grounds for apprehension that, sooner or later, the few buyers could start dictating prices to the farmers. In the absence of a trading licence system and the lack of institutional oversight by the APMC or any other regulatory body, the field would be open for the entry of any oligopsonistic private entity to attempt to dominate the market on its terms. The dilution of the stocking limits in the Essential Commodities Act can also justifiably give rise to fears in the farmers’ minds that end-buyers (read large corporates) will build up stocks to drive down agricultural product prices. At that point, the farmer would expect the government to step in and guarantee purchase of his produce at the APMC at a price that meets the cost of production plus a markup for profit. The legislation, as it stands at present, is silent on this eventuality.

The MSP system needs to be remodelled over time to achieve a much greater diversity in the crops procured, from millets and maize to pulses, oilseeds, horticulture and cash crops. This is essential if the huge surplus stocks of rice and wheat in Food Corporation of India (FCI) godowns are to be reduced. Not only does this increase the financial burden on the Government of India of paying the FCI for these stocks, it also increases wastage percentages. Reducing the incentive to grow water-guzzling, input intensive paddy in states like Punjab and Haryana is also crucial to checking environmental degradation, reflected in the deteriorating soil quality and depleting groundwater levels in these states. It should also not be forgotten that the MSP will have an important role to play as long as government has to guarantee the supply of foodgrains through the public distribution system (PDS), with the FCI as the prime supplier to the PDS.

Marketing issues (including price discovery)

Mandi/APMC related prices play an important role today in fixation of the price at which trade takes place outside mandi/APMC areas between farmers and traders. There is little clarity on how price discovery will take place in future in direct contracts between traders/sponsors and farmers, where there may be few buyers and a vast body of sellers. Realisation of a price that is fair to the farmer presupposes availability of price information and the ability to source the buyer who can offer the most favourable price. This requires the presence of a well-developed electronic marketing network, as envisaged by the announcement of the e-National Agricultural Market (e-NAM) system in the Budget of 2016-17. The e-NAM drew on the Rashtriya e-Market Services Private Limited (ReMS) initiative launched in Karnataka in 2014, which has been analysed in a November 2016 paper by researchers of the Indira Gandhi Institute of Development Research, Mumbai. Their study reveals three major areas where reforms are essential if a thriving national e-market for agricultural products is to flourish: (a) a legal framework which supports a platform for agricultural transactions across the country; (b) incentives to all stakeholders — farmers, traders, commission agents, mandi/APMC officials and others who are part of the agricultural marketing ecosystem — to participate in the new electronic platform at locations across the country; and (c) development of physical and financial payments infrastructure to facilitate seamless real-time trading across multiple locations.

Unless APMCs/mandis act as countervailing centres to forestall efforts to dictate prices of agricultural commodities through the more powerful bargaining position of a few buyers, farmers would be placed in a position where they are compelled to accept not so favourable prices. But this requires vibrant APMC/mandi centres fully linked to e-NAM, so that farmers have a ready alternative site to sell their produce in the event they are not happy with the terms offered by private buyers. Governments, especially at the state level, will need to invest in physical and financial infrastructure in terms of many more APMCs/mandis, facilities to grade produce, accurate weighing, quick delivery and easy online payment to attract farmers to the APMCs/mandis. Winding up APMCs does not promote a flourishing trade in agricultural products, as the experience of Bihar, which abolished APMCs in 2006, amply shows. Opposition from traders and commission agents, who stand to benefit from opaque transaction systems, will need to be effectively countered by assimilating them into the new marketing process.

Regulation and dispute resolution

The provisions for regulation and dispute resolution in the new laws are woefully inadequate. Conciliation and adjudication of disputes between seller-farmers and buyers have been brought solely within the jurisdiction of the executive magistracy. As one who has functioned as an Executive Magistrate during his career in the civil service, I can safely assert that the Executive Magistracy does not have the requisite knowledge skills to adjudicate on commercial disputes. More disturbingly, this responsibility comes on top of multifarious responsibilities already cast on the executive magistracy. Even with the best of intentions, cases are going to pile up in their courts. The absence of alternative avenues to redress grievances through the judicial system will not only adversely impact the rights of farmers but is also, in my view, a violation of the fundamental rights guaranteed to every citizen under part III of the Constitution of India.

The absence of a regulatory framework to oversee the proper conduct of transactions between buyer and seller will also, without doubt, affect the weaker side, clearly, in this case, the farmer. The uncertainty caused by prolonged litigation will have its deleterious impact on agricultural investments and will contribute to significantly weakening the bargaining position of the farmer.

What should the Government of India do to restore farmer confidence?

The quotation with which I began this blog in effect means“…promises and plans must be put into action, otherwise they are useless”. The Government of India (GoI) needs to:

first, repeal the two Farm Acts and the amendments to the Essential Commodities Act;

second, come out with a White Paper listing the issues that are crucial to the success of farm reforms, especially the backward and forward linkages that will enable the farmer to access the marketplace as an equal. These include availability of credit and insurance, easy access to efficient markets and a legal framework that honours contracts promptly;

third, give a guarantee that the APMC/mandi system will continue on the same basis as before the enactment of the Farm Laws;

fourth, involve all stakeholders in discussions on the future directions that the MSP and procurement should take, especially in relation to changing cropping patterns to both meet nutrition needs of the population as well as to tackle the growing ecological degradation caused by rampant overuse of fertilisers, water and power, with its attendant implications for high-cost agriculture;

fifth, while meeting the food requirements of the population, notably its vulnerable sections, through the PDS, work out mechanisms to ensure a fair deal for the farmer as well, without taxing the government budget to breaking point;

sixth, consult with state governments on a subject that falls squarely within the State List in Schedule VII of the Constitution of India. The GoI could possibly incentivise the adoption of these reforms in different states, starting with those states where its party is in power. The demonstration effect of successful reforms can then percolate to other states.

In the final analysis, I have to come back to where I started this blog. The present government at the centre has, in the recent past, pushed through too many measures without adequately consulting stakeholders or taking the advice of those who have the benefit of years of experience of working in those areas. The damaging effects of such unitary approaches not only sow distrust about the intentions of the central government in the states ruled by opposition parties and in the population at large, they also adversely affect the lives of millions of people. It may be good politics in the short run (from the viewpoint of the ruling party) but it leads to disastrous economic, political and social consequences, in the short, medium and long term, for the country. The government at the centre now needs to talk the walk (i.e., discuss before framing policy) since its approach hitherto has been to walk through without talking.

The Four Sins of the Delhi Police

One dislikes passing judgment on others, mindful of the Biblical saying “judge not lest ye be judged”. And yet a time comes when it is difficult to be dispassionate, particularly when there is organised violence aimed at creating fear and poisoning relations between India’s two largest religious communities. What makes the recent horror in North-East Delhi totally unforgivable, especially for those of us who have served in one of the two All India Services (IAS/IPS), is the complete abdication of its statutory duties by the Delhi Police. The events of the last week of February 2020 were the tragic denouement of a sequence of happenings over the past two months, as the Delhi Police slipped deeper and deeper into the mire of partisanship and extremely unprofessional functioning, when one was left wondering if the Indian Penal Code (IPC) and the Criminal Procedure Code (CrPC) were applicable in the National Capital Region of Delhi. We can list the four instances, culminating in the recent violence, when the Delhi Police gave short shrift to the criminal laws of the land and, indeed, to the very Constitution they are sworn to uphold.

It all started with the entry of the police into the Jamia campus on 15 December 2019. Even presuming grave provocation from the students, the videos of the library assault (not denied or controverted officially) point to a mentality in the guardians of law and order of “teaching a lesson” to students. All the canons of law and order maintenance enshrined in India’s criminal laws do not permit the police to use force to an extent greater than is needed to restore normalcy. The videos show helmeted policemen using lathis on students sitting in the library, who were certainly not engaged in any violent act. Even if they were wanted for any previous transgressions of the law, they could have been arrested following the usual procedure. By this one irresponsible action, the Delhi Police set off a chain reaction that has since reverberated across University campuses throughout the country.

The second instance of police apathy was even more inexcusable. The JNU was invaded by gangs of armed thugs on the evening of 5 January 2020. The same police which raided the Jamia Campus without any request from the Jamia authorities decided to stay put at the JNU gate even when there was enough evidence (on social and electronic media) that cognizable offences involving danger to life and property were being committed within the campus. What makes the entire episode ludicrous is the fact that, two months after the incident, no FIRs have been registered against a single goon who indulged in violence and vandalism; instead, the only FIRs that have been lodged have been against the victims of the assault.

Act 3 of this sordid drama took place in late January/early February 2020 during the elections to the Delhi Assembly. Three violations of the Election Commission’s Model Code of Conduct, two by elected Members of Parliament (one of them a Minister in the Government of India) and one by a BJP candidate, merited action under the IPC. But even though all three of them were slapped with limited campaign bans by the Election Commission, the Delhi Police did not invoke Sections 153A/295A of the IPC, which would have served as a salutary reminder to politicians not to resort to incendiary campaigning to win votes. The failure of the Delhi Police to rein in the political class when they were presented with a golden opportunity laid the seeds for the bitter harvest that followed in the last week of February.

The final nail in the coffin was hammered in when Kapil Mishra, the same local politician indicted earlier by the Election Commission (and who lost the elections) decided to refurbish his standing by giving an ultimatum to the anti-CAA/NPR protesters in N-E Delhi to remove their blockage of public spaces, failing which the threat of direct action was given. The resultant outbreak of violence spiraled into full-fledged arson and murder. It is here that the conduct of the Delhi Police comes in for the most criticism. With protests across the city over the past two months, the police should have been alert to nip any violence in the bud. Preventive action against criminal elements, presumably taken during the elections, should have been continued with thereafter, given the ongoing protests. Delhi’s borders with neighbouring states, especially UP, should have been sealed to prevent infiltration of outsiders. But what was damningly on view over three days was the inaction (at best) and complicity (at worst) of the police. Given the fate of all postmortems into riots in India, one is doubtful whether the truth will emerge in the future. But intrepid young journalists have captured on camera roving gangs indulging in assault and arson. That the violence ceased once there was a show of force is a clear indication that it was a case of “too little, too late” as far as the Delhi Police was concerned.

Three basic lessons in law and order maintenance were ignored by the Delhi Police:

  • Making it clear from the outset that the police is in control: At no stage should politicians, their henchmen and anti-social elements get the feeling that they can operate in violation of the law. The JNU incident had already infused confidence in some groups that the police would not act against them, even when they indulged in violence. Strong preventive action under the CrPC and the local police laws, externment from Delhi of certain criminal elements and, where required, use of draconian laws like the National Security Act would have sent a clear message to those intent on disturbing the public peace.
  • Zero tolerance for offences posing a threat to person and property: From my own experience, I can aver that unless incidents of assault and arson are dealt with firmly and promptly, they tend to snowball into a free for all between members of different communities. Lathi charges are normally enough to cool down even impetuous hotheads; however, on occasions, stronger action, such as police firing, may be required to restore order in a short timeframe and reduce casualties.
  • Leading from the spot: By far the most crucial element in law and order policing is the quality of leadership. The leader must inspire confidence in his/her force by being on the street. DMs and SPs in the districts and Police Commissioners / Joint and Addl. Commissioners must be in the thick of the fray. It was inexcusable that senior police officers from the Police Commissioner downwards were not visible till Day 3 of the disturbances in even one of the many videos shot from the scenes of arson and assault. A leaderless police force then took the path of least resistance since there was no one in authority to spur it to action.

The Delhi Police has suffered serious damage to its image and self-esteem. A new Commissioner has taken charge. It is now time for the Delhi Police to assert its authority and make it clear that it will not tolerate violations of the law from any quarter. It is also time for all governments, including the central government, which supervises the Delhi Police, to act on the 2006 directions of the Supreme Court in the Prakash Singh case, aimed at professionalising the police and insulating them from political interference. Above all, it is time for my fellow colleagues in the two All-India Services charged with the maintenance of law and public order to reaffirm their complete faith in and loyalty to the Constitution of India and rise above all sectarian considerations in discharging their duties honestly and diligently.

(The edited version of this blog is carried in the 5 March 2020 edition of the Deccan Herald)

 

 

Jeenaa Yahaan Marnaa Yahaan

(The full forms of the acronyms used in this blog are given at the end for easy reference)

Like a pesky earworm, the words of songs from Raj Kapoor’s Mera Naam Joker keep reverberating in my ears nowadays when I sit down to pen my blogs. If it was Jaane Kahaan Gaye Voh Din that resonated with me when I wrote my last blog, the present blog brought to mind that priceless masterpiece Jeenaa Yahaan Marnaa Yahaan. Lest my reader think that I am engulfed in maudlin sentimentality, let me emphasise that there is a logic to the use of these titles. My last blog reflected my dismay at the state of affairs in India’s district/police administration. The present blog focuses on the issue uppermost in the minds of most, if not all, of India’s 1.3 plus billion inhabitants. Yes, I refer to the CAA-NPR-NRIC triad, which has occasioned intense but non-violent protests on a scale not seen for many years.

Thanks to the wisdom and humanity of the politicians at the helm of India’s governance in the years after her independence, India went in for a liberal interpretation of citizenship, based on the jus soli principle, i.e, birth in India after 26 January 1950 was deemed to qualify one for Indian citizenship. The first blow to this principle came in 1987 in the wake of the Assam Accord. From 1 July 1987, birth in India was not a sufficient condition for citizenship: one parent also had to be a citizen of India by birth. This meant a move towards the concept of jus sanguinis in defining citizenship, with descent, rather than birth alone, being the defining criterion for citizenship. The second, and far more telling, move towards a more constricted definition of citizenship came with the 2003 Act. Not only was one parent required to be a citizen of India, there was the additional stipulation that, at the time of birth, the other parent should not have been an “illegal migrant” (defined as a foreigner who entered India without valid documents or who, with valid documents, overstayed in India beyond the permitted period). It is instructive to note that the 1987 and 2003 changes in the definition of “citizenship by birth” in the 1955 Act, as well as the 2003 Rules seemed to enjoy a broad consensus across the political spectrum. Not only did the previous UPA government go along with all these provisions, it even toyed with the idea of the NPR followed by the NRIC before carrying out the NPR exercise in 2010 and then dropping the idea of the NRIC in favour of the Aadhaar exercise.

It is the third move in 2019 to amend the 1955 Act that has finally set the cat among the pigeons. Efforts since 2016 to amend the 1955 Act to provide fast track access to Indian citizenship to “persecuted” persons belonging to specific countries (Pakistan, Bangladesh, Afghanistan) had been stymied by the inability to get the legislation through the Rajya Sabha; support from non-BJP parties, which either did not understand the implications of the legislation or chose to support it out of their own political calculations saw it enacted within the space of three days in December 2019.

A reading of the CAA reveals nothing about granting fast track citizenship to “persecuted” minorities from the three countries in our neighbourhood. While this view may have been put forth in the Statement of Objects and Reasons of the CAB, its absence in the CAA is puzzling. Even if the word “persecuted” finds its way into the Rules to be enacted to give effect to the CAA, determining whether or not a claimant for Indian citizenship has indeed  been persecuted in his/her former country will be very difficult. There is also the issue of the claims of refugees from other countries in the neighbourhood – Shias/Ahmadiyyas from Pakistan, Tamils from Sri Lanka, Rohingyas from Myanmar – which will fall through the sieve. Not only, therefore, are there serious issues relating to the CAA violating the principles of equality and secularism (parts of the inviolable basic structure of the Constitution of India), there is also the moral indefensibility of a statute that seeks to pick and choose who among the residents of India’s neighbouring countries is eligible for Indian citizenship. In any case, the process had already commenced from 2015: in a set of four notifications issued quietly between September 2015 and September 2016 under the 1955 Act, illegal migrants from the religious communities from Afghanistan, Bangladesh and Pakistan now covered under the CAA had already been exempted “from the adverse penal consequences of the Passport (Entry into India) Act, 1920 and the Foreigners Act, 1946 and rules or notifications made thereunder” (as stated in the same Statement of Objects and Reasons at the time of introduction of the CAB in Parliament). These notifications exempted such classes of “illegal immigrants” from prosecution and also provided for their obtaining long-term visas  to stay in India. A government that wanted to favour specific groups from certain countries could well have exercised its existing powers on a case by case basis without highlighting the exclusion of India’s largest minority religion.

It, therefore, appears that the BJP wanted to ensure that the NRC process in Assam does not affect the large number of Hindus who had been declared “illegal immigrants” under that exercise. In the process, the government and the party ruling at the centre ended up with a double whammy. The indigenous people of Assam have made it clear for over forty years that they are opposed to migration from across the international border, irrespective of the religion of the migrant. Even the exclusion of tribal and Inner Permit line areas in the North East from the ambit of CAA has not assuaged feelings, especially in Upper Assam. At the same time, the exclusion of Muslims from the CAA has occasioned a different sort of apprehension in India’s largest minority. This is linked to the feeling among Indian Muslims that they have been at the receiving end of many events over the past five years – the beef ban and consequent lynching of Muslim dairy farmers, the love jihad crusade of Hindu vigilante groups, the opposition to the performance of namaaz in public places and, in general, a vitiated level of public discourse which questions the loyalty to India of the Muslim community.

Brutus may have seen the tide in the affairs of men, taken at the flood, leading on to fortune. Unfortunately, for the central government, the tide has come in at a rather inopportune time. The CAB was on the anvil from 2016. Had it been passed at that time, when the NPR and NRIC were nowhere on the horizon, the three issues may not have been linked together. There are also various events since the middle of 2019 which have heightened the sense of insecurity in Indian Muslims. The abrogation of Article 370 of the Constitution of India and the virtual shutdown of Kashmir since August 2019 followed by the Supreme Court decision in the Ayodhya matter had already caused deep unease in the community. The reports of human suffering occasioned by the Assam NRC as lakhs of people ran from pillar to post to establish their rights to Indian citizenship were compounded by the belligerent statements from those at the highest levels of the central government that the NRC would be extended to the entire country, coupled with accounts of detention centres coming up in different parts of the country. These developments, linked with the CAA’s specific exclusion of Muslims, raised fears that the CAA-NPR-NRIC combination could see substantial segments of the Muslim community losing their Indian citizenship.

While the central government has been reiterating that the CAA is intended only to enable those from the three neighbouring countries get fast track citizenship, the NPR-NRIC provisions (enunciated in the 2003 Rules), which allow for a government functionary at a fairly junior level to raise doubts about the citizenship status of a person, give cause for apprehensions. As of date, there is still no clarity as to what documents, if any, will be required to establish one’s citizenship. In a country where birth registration systems have been notoriously lax in the past (though improving now), proving the fact of one’s birth in India could prove well-nigh impossible, more so if the standard documents, such as passports and voter identity cards, are not acceptable as proof of citizenship.

This is not the place to raise all the issues relating to the difficulties in proving one’s citizenship. Suffice to say that, post-1991, the Indian populace was getting used to not having to stand in queues for every facility, a feature of the forty years prior to 1991 for getting access to milk, kerosene, landline telephones and LPG connections. This habit was revived in the post-demonetisation phase from November 2016, when every resident of India stood for hours in queues to be able to draw cash from banks. One certainly hopes and prays that the NPR-NRIC exercise, wherever implemented, does not lead to interminable queues in front of tahsil and municipal offices as people seek to prove their Indian citizenship. Political parties and governments have their own reasons for carrying through this onerous exercise. The aam aurat/aadmi just wants to carry on with the business of daily life and securing her/his roti, kapda and makaan. For her/him, what is relevant is this line sung by Mukesh:

 

जीना यहाँ मरना यहाँ इसके सिवा जाना कहाँ

 

1955 Act: Citizenship Act, 1955

2003 Act: Citizenship (Amendment) Act, 2003

2003 Rules: Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003

BJP: Bharatiya Janata Party

CAA: Citizenship (Amendment) Act, 2019

CAB: Citizenship (Amendment) Bill, 2019

NRC: National Register of Citizens

NRIC: National Register of Indian Citizens

NPR: National Population Register

UPA: United Progressive Alliance

 

Model Code of Conduct for elections – the use of cards

After nearly thirty years of participating in the conduct and supervision of Indian elections and observing elections at national, state and local levels since 1971, I am struck by the abyss into which debate has descended in the 2019 general elections as well as the open challenge thrown to the authority of the Election Commission of India by all political parties and candidates, especially the ruling party at the centre. What is even more dismaying than the “in your face” behaviour of the political class has been the servile responses of sections of the bureaucracy, the latter constituting, in my view, a far more serious threat to democratic norms.

Standards of decent discourse have virtually vanished from the Indian political firmament and the present elections confirm this depressing phenomenon. Humans have been classified as termites and sections of them have been threatened with expulsion from the country. Blatant appeals have been made to divisive religious sentiments and politicians have gone so far as to warn voters of the consequences of not voting for them. The sacrifices made by security forces are being made to serve as election fodder. Vicious personal attacks are the order of the day and serial offenders from previous elections are displaying their dubious talents freely. Equally galling has been the brazen promotion of a single personality through multiple media modes without any hint of embarrassment or concern for conventions. We have also been treated to the disgusting spectacle of a self-styled Sadhvi denigrating the memory of a police officer who lost his life in the Mumbai 26/11 attacks.

2019 also marks, in pronounced fashion, the entry of the disease of political partisanship into the bureaucracy. In previous elections, it was the normal practice to transfer officers who had done adequate time in their current postings as well as those perceived as unduly close to those in power. But the need to move officers at the topmost levels of the police and civil services after the election process got under way points to the rot in the steel frame. Three top functionaries of the NITI Aayog, the central government’s top policy think tank, have, through electronic and social media, expressed views and displayed achievements which have the effect of supporting the government of the day and downplaying its opponents. The NITI Aayog is reported to have asked district collectors, who are the fulcrum of the election process, to furnish information on the achievements in different government programmes for use by the Prime Minister in his election speeches. A serving Air chief makes a public statement about the Balakot air strike and, for good measure, also drags in the controversial Rafale aircraft into his observations. In a first for India’s highest bureaucracy, the attitude of its central Department of Revenue in not keeping the Election Commission apprised in advance of income tax raids on political personalities has been castigated by the Election Commission as “insolent”. To cap it all, a junior functionary of the Union Home Ministry wakes up from slumber after many years to ask the leader of the opposition Indian National Congress to prove his nationality. It almost makes one wonder whether government departments have been awakened like Kumbhakarna only at the time of electoral battle.

Even though the Model Code of Conduct has a moral rather than punitive force, Article 324 of the Constitution of India, backed by various Supreme Court rulings, gives the Election Commission wide powers to enforce its writ in grey areas where the law is silent. Taking an analogy from the game of field hockey, it makes sense to enforce the three card rule: a green card for minor fouls, a yellow card for more serious infractions (with suspensions for repeat offences) and a summary send-off on being shown a red card. The Election Commission should devise its own sets of cards, one set for unruly politicians and another set for errant bureaucrats.

The green card rule for politicians would involve censure of the offensive act with or without fine. This will not deter the “thick-skinned” among the tribe but would serve as a warning that their conduct is under close watch. Another offence would have the effect of moving them to the yellow card category, which could see bans on campaigning by the concerned individual, ranging from a few days to a total ban for the entire election period, depending on the gravity of the offence. The red card would come into play when the candidate/politician commits a really serious offence, like open incitement to violence or indulging in major criminal offences. It would involve the cancellation of elections in that particular constituency, with these elections being held a couple of months after the completion of the election process under close supervision of the Election Commission and with heavy deployment of security forces.

The bureaucracy’s “three card” rule would more or less conform to the disciplinary proceedings which are presently initiated against government personnel. Officials who are green-carded would be censured, the censure being reflected in their annual confidential reports, with impact on future promotions. The yellow card would involve imposition of punishments like withholding of pay increments for a certain period or reduction to a lower time-scale of pay, grade, post or service for a specified period (without cumulative effect). Major penalties (the “red card”) would range from loss of seniority to compulsory retirement to dismissal from service. Such action by the Election Commission would be taken in consultation with the concerned government, with confirmation by the appropriate Public Service Commission.

Of course, judicious and strict enforcement of the “three card” rule would require a strong and impartial referee who does not hesitate to blow the whistle when needed and to flash the relevant card. Sanctions against erring politicians/bureaucrats need to be promptly enforced to serve as a warning to potential transgressors. Most importantly, the teams (political parties/governments) themselves need to introspect on whether they should retain such players (politicians/bureaucrats). If all concerned do not abide by the rules of the game, elections will descend into anarchy, with the danger of the eventual demise of democracy.

We don’t need Chowkidars

On my innumerable trips from Pune to Aurangabad and vice versa, I have sometimes taken a detour off the highway to the village of Shani Shinganapur. Located in the district of Ahmednagar, this village is home to a highly venerated temple of Shani, the planet-god who evokes immense fear in devout Hindus and whose propitiation is considered essential to progress in life. But what marks out this village, apart from the recent decision to admit women to the shrine, is the fact that there are no doors to houses in the village. This is based on a popular myth that anyone committing theft in the village is visited with the direst of consequences by Shani Maharaj.

Unfortunately, those committing theft/dacoity elsewhere in the country do not seem to fear adverse results for their actions, which is why the institution of chowkidars (guards) is a well-established one in every rural and urban habitation, right from the days of the British Raj. This hallowed heritage is now sought to be appropriated by the members of the political party ruling the country. Visit the Twitter website and you will see that ruling party functionaries, from the Prime Minister downwards, have prefixed “Chowkidar” to their names. Not content with this gesture, the Prime Minister has invited all fellow citizens of India to take the following pledge and join the Chowkidari movement: “As a citizen who loves India, I shall do my best to defeat corruption, dirt, poverty and terrorism and help create a new India which is strong, secure and prosperous.”

While dirt, poverty and terrorism have deep-rooted causes which are beyond the competencies of a chowkidar, the chord that is sought to be struck with the common citizen relates presumably to that old bugbear: corruption. Fair enough, except that here we are dealing with white-collar crime, not its blue-collar or no-collar versions, which would cover, say, a factory worker stealing some goods from the workplace or a petty burglar forcing his entry into a house, both of which the chowkidar is eminently equipped to handle. “Corruption” in its modern Indian avatar relates to the propensity of the dispenser of a scarce commodity (whether a good or service) to extract economic rent for making available the commodity at a price higher than its stated official or market price. If the followers of the Chowkidar movement really mean to remove corruption, they must eschew the noxious habits of mamool or lanjam, those lubricants which grease the wheels of public service delivery. Since it would be highly optimistic to predict a dramatic sea-change in attitudes in a public inured to years of petty (and mighty) corruption, maybe we should see what those in power have done over the past many years to cut corruption at its roots. The results, sadly, are dismal.

Let us start with the Lokpal and Lokayuktas Act. Enacted on the first day of 2014, the Lokpal is just now being appointed after five years, that too after the Government of India received a rap on the knuckles from the Supreme Court. To date, most states have not appointed Lokayuktas; in those which have, there is no news of any major effort to prosecute wrongdoing by those in power, barring Karnataka, which has, in the past, seen a sitting Chief Minister being unseated based on a Lokayukta indictment. Given the past record, the provisions in the 2013 Act for Inquiry Wings and Special Courts do not give much cause for cheer, being a case of more old wine in recycled bottles. The list of failed or partial prosecutions over the past decade give no reason for sudden optimism, be it the CWG scam, the Adarsh imbroglio, the 2G prosecution or even the coal scam. In the last-named case, the only ones to go behind bars on a technicality in the Prevention of Corruption Act (which has since been repealed but which, alas, could not help them) are hapless officers who were manning the Coal Ministry in Delhi at the relevant time. Whether telecom or coal, the judicial verdict seems to have been that the politicians in charge were innocent. Having spent thirty years in government, including in a key economic ministry in the Government of India, I find this conclusion very difficult to swallow. My pessimistic forecast is that we will continue to see years of inconclusive investigations, interminable court proceedings and unsatisfactory convictions.

Changes in rules and procedures governing the allocation of scarce resources, including natural resources, are again conspicuous by their absence. If governments at the centre and the states were serious about checking corruption, especially at the highest political levels, what is needed is the removal of all decision-making powers on procurements and allocations (ranging from coal/oil-gas blocks, defence equipment and spectrum to schools, private universities and food supplies) from the Ministries at the centre and the states and a grim determination to clamp down on political interference in such decisions. State governments are even more prone to this evil. The February 2019 decision of the Supreme Court striking down the award of tenders in 2016 by the Government of Maharashtra for Take Home rations for supplementary nutrition to pregnant/nursing mothers and children under three years of age is a glaring instance where the same firms/entities continue to be favoured regardless of the regime in power.

The present ruling dispensation, despite its protestations about curbing corruption, has taken no steps in this direction. Merely keeping power brokers away from the corridors of North/South Block and Shastri Bhavan is not enough; there are enough meeting places elsewhere in the world. The electoral bonds scheme introduced in 2018 provides a fertile breeding ground for corruption, with identities of both donors and donees (political parties) remaining anonymous. Rupee-laden suitcases or even bank transfers are no longer required; a transfer from an offshore account, with anonymity guaranteed, for favours rendered will do the trick.

Ease of doing business rolls glibly off the tongues of politicians and policy-makers in the India of 2019. Visit a Regional Transport Office (RTO) in any state for a driving licence or a municipality for a building permission and you will be struck by the ease with which business is done in these offices. Portia’s famous speech in The Merchant of Venice on the quality of mercy could apply just as well to corruption as to the quality of mercy: “…It is twice blest; It blesseth him that gives and him that takes…”  Amendments in 2018 to the Prevention of Corruption Act provide for complaints by a person, who is compelled to give “undue advantage”, within seven days of giving such undue advantage. While we are yet to see how this provision works in practice, it is debatable if this will induce bribe-givers to come forward to report bribes, given that they will have to go through the subsequent legal chakravyuha of proving that they were indeed compelled to offer the bribe. In any case, unless processes for licences and permits are time bound with limited areas for discretion and with clearly stated reasons for refusal, removal of petty corruption will remain a pipe dream.

I am not condoning the present state of affairs. All I wish to aver is that unless there is utmost respect for the rule of law and the fear of prompt retribution, corruption is not going to wither away. Doing away with corruption does not require chowkidars, it requires honest thanedars and conscientious nyaya-devatas who will prosecute offenders and deliver timely justice. Till that day dawns, the citizen should use the most effective weapon available to her: she should remorselessly vote out the corrupt politician and hold the government of the day to account. The conventional saying “यथा राजा तथा प्रजा” has to be stood on its head in India of 2019. It should now read “यथा प्रजा तथा राजा”: as are the citizens, so will be the rulers. People get the governments they deserve: if they want a straightforward, corruption-free existence, they must put their political representatives on notice.

Running with the Hares, Hunting with the Hounds – A Dangerous Game

I know it has become a pastime, especially among those sympathetic to or following the present ruling dispensation, to lay the blame for all India’s ills at the door of the Indian National Congress and its presiding deities, the Nehru-Gandhi family. We may pass over the apparent errors of India’s first Prime Minister, including his neglect of primary education and agriculture and his obsession with the public sector, not to mention his disastrous tryst with the Chinese, relying on incompetent advisers. But what, even for true-blue liberals, is not so forgettable are the errors of commission and omission over the last forty years, which have landed the country in crisis after crisis. In trying to be all things to all people, the Congress has been withering away, in the best traditions of Marx’s Communist state.

Let us start with its missteps in Punjab in the late 1970s/early 1980s, followed by the Shah Bano-Ram Janmabhoomi fiascos of the 1980s. Catering to what it thought were specific constituencies, the Congress played with fire and, as expected, sustained severe burns. It forfeited the support of the Sikhs after the storming of the Golden Temple and the pogrom of Sikhs in Delhi in 1984 and alienated moderate Muslims with its anti-woman stance in the Shah Bano case. It then provided oxygen to a weakened BJP by opening the locks of the Ram Temple, followed by a spell of masterly inaction when the Babri Masjid was being demolished. The electorate rightly banished it to the boondocks for eight years, till its return in 2004.

But this blog is not about the past; it is about how the Congress party refuses to learn from its past mistakes. Four recent incidents highlight its continued bumbling and raise serious doubts in the mind of the swing voter about the capabilities of this party to govern the country for the next five years. After managing to secure power in three Hindi heartland states, one would have hoped that the new broom would sweep clean. But there seems to be no effort (at least not in public view) or intention to implement the rule of law in dealing with vigilante rowdyism. Following up on the prosecution of lynchers would have sent a clear message to those who indulged in murder under previous ruling regimes. Not only was this not done, there was the recent incident of film personality Naseeruddin Shah being prevented from participating in the Ajmer Literature Festival. The Chief Minister tweeted weakly about his commitment to the rule of law. But there was no firm police action to make it clear to the protesting hoodlums that their nonsense would not be tolerated. Added to this is the continued ambivalence of the new Congress governments on the “beef ban”. The Rajasthan government seems to have gone further. Newspaper reports speak of its efforts to felicitate those who shelter cows; there is no discussion on reviving the cattle industry and restoring the livelihoods of millions from the minority and disadvantaged communities, while guaranteeing protection to the cow, if the intention was to assuage majority community feelings as well.

The approach to the Sabarimala issue highlights a similar lack of conviction. The party of Mahatma Gandhi and Jawaharlal Nehru is not able to come out with unequivocal support for the right of women to worship at the shrine even after a Supreme Court judgement. Nor is it able to provide a public forum for a reasoned discussion on possible solutions. Caught between the Scylla of belief and the Charybdis of the rule of law, the party has surrendered its moral authority to regressive religious forces. In the process, it has ensured that it will gain the support of neither the pro-changers (especially its women segments) or the conservative no-changers.

A strong enunciation of its belief in the right to equality of all humans by the Congress would have gone down well with the liberal intelligentsia and India’s largest minority community as regards the hasty attempts by the present central government to introduce the Citizenship Amendment Bill. This travesty of a legislation which seeks to confer inferior status on a particular community should have been roundly condemned and public opinion should have been built up against it. Instead, the Congress Party chose to boycott the vote in the Lok Sabha instead of voting against it: yet another opportunity lost to reiterate its clear support for minorities.

Most laughable has been the denunciation of the sedition provisions in India’s criminal laws by a spokesperson of the Congress party, who has also been Law Minister in the previous UPA government. Congress governments of the past have never been chary of using this execrable provision. Sedition cases are now being lodged against students, intellectuals and journalists. Congress governments never tried to do away with this colonial anachronism. In fact, they introduced even more draconian legislation that hit at the liberty of the individual. The Unlawful Activities (Prevention) Act, 1967 (UAPA) was first passed during Congress rule and most amendments stiffening its provisions have been enacted by Congress governments. It has been used against social activists rather than terrorists and seems designed more to stifle freedom of expression and association rather than tackle terrorism. For the Congress party to shed crocodile tears when these laws are misused by police under the present ruling dispensation represents the height of hypocrisy.

Nor has there been any real commitment to administrative, judicial or police reforms on the part of the Congress party. The Reports of the Second Administrative Reforms Commission were ignored by the very Congress government that set it up. India’s governance systems are hamstrung by outmoded management structures and criminal justice (and police) reforms are not even on the horizon. No party, including the Congress, has shown any enthusiasm for the institutions of the Lokpal and Lokayukta, raising serious questions about their commitment to eradicate corruption.

There appears to be no realisation that a political party needs a base of committed voters. This requires the articulation of a clear ideology and adherence to a set of specific principles. These ideological positions also attract an adequate mass of swing voters who are not committed to any specific party but vote on the basis of the programmes that a particular party espouses. Given its past mistakes and the absence of committed cadres, it is little wonder that the Congress party has had a virtual no-show in a number of states in the last general elections. Subsequent disenchantment with the BJP may have yielded seats to the Congress in a number of states, but it should not be forgotten that it could not retain power in the state of Karnataka on its own strength. Even today, the loyalty of its legislators in Karnataka remains suspect, compelling its party managers to resort to resorts to keep the flock together.

Cobbling together a mirage of coalitions is not the route to political power for the Congress. Too many of the players in the political parties that make a great show of unity today have gone through the experiences of unhappy (and uneasy) past cohabitations. Nor have any of these parties inspired confidence in the public regarding the values they stand for. The animals in India’s Animal Farm may then decide to continue with Farmer Jones rather than opt for Napoleon if, the more things change, the more they remain the same.