We the People Have No More Say on the Constitution

By B R P Bhaskar

The Wire.in

Last year the Lok Sabha, whose 543 members were elected on the basis of universal adult suffrage and thus directly represent India’s 1.2 billion people, unanimously approved a bill to incorporate in the Constitution a provision to set up a National Judicial Appointments Commission to pick judges for the superior courts. The next day the Rajya Sabha, all but 12 of whose 245 members were elected by the elected members of state Assemblies and thus indirectly represent the 1.2 billion people, approved the bill, again unanimously.

Within five months a majority of the state Assemblies ratified the bill. Thereafter the President, who was elected by an electoral college comprising members of both houses of Parliament and the Assemblies, signed the bill into law. With that, the procedure laid down to make changes in the Constitution was complied with fully, and the provision to set up the National Judicial Appointments Commission became a part of the Constitution.

Last week, four learned judges, who represent none but themselves, said it is not part of the Constitution. Judges must continue to appoint judges, they declared. Anywhere else it would have been put down as judicial arrogance. In India, it is supposed to be affirmation of judicial independence.

The separate judgments of the five judges who examined the validity of the Constitution (99^th Amendment) Act and the National Judicial Appointments Commission Act is notable for several observations that militate against common sense.

Take, for instance, the assertion that the Judiciary can be independent only if judges appoint judges. There are several constitutional bodies, besides the Judiciary, which are required to function independently of the Executive. The Election Commission, the Comptroller and Auditor General and the Union and State Public Services Commissions are among them. Must they also not then become self-perpetuating?
No evidence that marginalised benefited

One judge argued that Executive participation might lead to exclusion of persons on grounds of sexual orientation. There is nothing on record to show that any member of the LGBT community – or for that matter any other marginalized group — came into the Judiciary through the judges-appoint-judges system, which has been operating for two decades. 

Actually, there is no evidence to believe that even the Scheduled Castes, the Scheduled Tribes and Other Backward Classes, for whom special provisions exist in the Executive and Legislative branches, fared better in the Judiciary under the judges-appoint-judges dispensation than earlier. There is no need to dispute the widely held belief that under the original constitutional scheme, in which the Executive had primacy, the best candidates were not always picked for the posts of judges. But isn’t this true also of the judges-appoint-judges system?

Justice U.L. Bhat, who was Chief Justice of the Guwahati and Madhya Pradesh High Courts, writes in his autobiography that M. N. Venkatachalaih, the first Chief Justice of India to enjoy primacy in appointments, told him that his junior, Justice K. S. Paripoornan, was being elevated to the Supreme Court, bypassing him, since “my colleagues feel that you are irreverent to them”.

Justice Venkatachalaiah is one of the most highly respected former CJIs. Justice Bhat’s revelation suggests that even under him merit was not the first consideration. One of the judges on the bench, which heard the NJAC case has, in his judgment, referred to a couple of more recent and far worse choices.

Wrong choices are often the result of human fallibility, and the system cannot be blamed for them. An objective study will probably show that their incidence went up under the judges-appoint-judges system. This may have nothing to do with the system itself, and may be the result of the general deterioration in the standards of society.

Members of the Executive and the Judiciary come from more or less the same sections of the society. Any deterioration in the standards of society will naturally reflect in the composition of these institutions. If the Executive appears in poorer light than the Judiciary, it may be because politicians come under greater public scrutiny than judges.

Judiciary’s dismal record

The Judiciary has a dismal record in dealing with acts of misdemeanour in its ranks. Judges of a High Court whom the local Bar dubbed as corrupt and boycotted remained on the Bench without hearing any case until they retired. Even some CJIs have attracted serious charges but did not have face any action. Former Supreme Court judge Markandey Katju, in a recent Facebook post, said he had with him a dossier on Justice H. L, Dattu, the present CJI, and was ready to give it to any one willing to file public interest litigation. It is not clear why he wants someone else to bell the cat.

All the four judges who joined hands to throw out the NJAC agreed that the judges-appoint-judges system had problems which need to be set right. After throwing out the NJAC, the bench decided to sit again on November 3 to deal with what the presiding judge described as the “surviving issue of grievances as to working of the pre-existing system”. What the bench plans to do is not a judicial function, but one of law-making – more precisely one of further amending the constitutional provisions regarding appointment and transfer of judges.

The Constitution, in its original form, was prepared by an Assembly with 305 members. They were not elected representatives of the people. As many as 229 of them were elected by provincial Assemblies of British India, whose members were elected on the basis of limited franchise. Seventy represented the princely states. Many of these states had no Legislatures and their representatives were nominated by the ruler. Only seven members – six from Travancore and one from Cochin – could claim to truly represent the people, because their Assemblies were elected on the basis of adult suffrage.

The Constituent Assembly members assumed theirs was a fully representative body and enacted the Constitution in the name of the People of India. They did not hand over the Constitution they had enacted to the President or the Executive or the Legislature or the Judiciary. They entrusted it to the People. Note the words of the Preamble:  “We the People of India ….hereby adopt, enact, and give to ourselves this Constitution.”
We the People were thus the makers of the Constitution as well as its custodians. But not any more.

We the People in our Constituent Assembly, who enacted the Constitution, laid down that We the People in our Parliament will make changes in it whenever necessary. The Constitution worked in that manner for two decades, during which period the Judiciary, when called upon to interpret its provisions, upheld Parliament’s unfettered right to amend it.

Then, the Judiciary changed its tune. It ruled that Parliament could not make changes in the Fundamental Rights chapter. Later, it changed its stand. It said Parliament could amend any part of the Constitution, including the Fundamental Rights chapter, but not in such a manner as to alter its basic structure.

With the basic structure remaining undefined, the Judiciary – more precisely, a bench of three to nine judges — has the unfettered right to say not only what the Constitution is but also what it should be. This is a perversion of parliamentary democracy and it is time to think of ways to restore the role of We the People as makers and keepers of the Constitution.

Hindutva’s two-fold strategy

BRP Bhaskar
Gulf Today

While Prime Minister Narendra Modi has been going around talking about development, shadowy groups have been conducting murderous campaigns to overawe and silence the society.

The violence is directed not against political opponents but against writers, Dalits and Muslims. The game plan, it appears, is to clear the way to declare India a Hindu Rashtra (nation), the proclaimed goal of the Rashtriya Swayamsevak Sangh, fountainhead of the ruling Bharatiya Janata Party’s Hindutva ideology.

An atavistic element is discernible in the choice of targets. Hindu texts testify to violent attacks on Buddhist centres of learning by proponents of the Vedic religion in the medieval period. Dalits who were outside the Vedic society came under duress after Buddhism declined and a casteist society emerged.

Muslims were the ‘other’ whose presence helped the Vedic community to posit a Hindu society. According to VD Savarkar, originator of the Hindutva concept, a life-and-death struggle began the day Sultan Mahmud of Ghazni, who had raided the subcontinent 17 times, first crossed the Indus.

Three eminent thinkers have been killed under a plot which was hatched before Modi came to power. Narendra Dabholkar of Maharashtra, a campaigner against superstition, was shot dead in 2013 when there were Congress-led governments at the Centre and in the state. Govind Pansare, also of Maharrashtra, and MM Kalburgi, of Karnataka, were killed after BJP-led coalitions took office at the Centre.

Police investigating the cases have said all three were killed by members of a Goa-based outfit called Sanatan Sanstha, founded 25 years ago to provide education in Dharma. A trial court had found six of its members guilty of planting bombs.

Atrocities against Dalits have been reported from several states. The BJP or its associates have not been implicated in any of the incidents but the party’s caste supremacist approach and failure to condemn the gruesome killing of two children and a youth in two separate incidents in Haryana, where it is in power, put it in the dock.

To make things worse, Union Minister of State VK Singh callously likened the killing of children to stoning of street dogs. Public outrage forced Singh, who is a retired Army chief, to tender an apology.

According to the National Crime Records Bureau, last year 47,064 crimes against Dalits by non-Dalits were reported. This was 19 per cent higher than the previous year’s figure. More than half the cases were reported from the socially and economically backward BIMARU states – Uttar Pradesh (8,075), Rajasthan (8,028), Bihar (7,893) and Madhya Pradesh (4,151).

Congress Vice-President Rahul Gandhi, who visited the family of the deceased children, linked the incident to the Prime Minister’s attitude and accused the BJP-RSS combine of crushing the weak and the poor. However, his party bears as much blame, if not more, for the current situation in Haryana.

Based on official data, the National Confederation of Dalit Organisations recently said 3,198 cases of atrocities against Dalits were registered in Haryana during the 2004-2013 decade, which was 245 per cent more than in the previous decade. From 2005 to 2014 Haryana was under Congress rule.

The most ominous part of the Hindutva project aims at accentuation of Hindu-Muslim polarisation through campaigns on the sensitive issue of cow slaughter. After the lynching of a man at Dadri in UP on false allegations of killing a cow, a truck driver was set upon by a gang at Udhampur in Jammu and Kashmir state, where the BJP is the junior partner in a coalition government headed by the People’s Democratic Party.

The driver died in a Delhi hospital a few days later. A protest by dissidents paralysed life in the Kashmir valley. In Jammu, members of the RSS held a route march, openly displaying firearms.

RSS chief Mohan Bhagwat said the small incidents which had taken place would not dent the country’s prestige, which, he claimed, had gone up under Modi’s prime ministership. However, Modi himself found it necessary to break his long silence and talk of the diversity which was India’s beauty.

What rattled the government was the spirited protest of scores of writers in different languages who returned the awards they had received from the state or its agencies. Most of them pointedly referred to Modi’s silence on the Dadri lynching and the official literary establishment’s failure to condemn the murder of writers. It was protest of a kind with no parallel in living memory.

Some observers are of the view that the violent activities of small Hindutva groups are hurting Modi’s development agenda. But, then, Hindu Rashtra is also part of his agenda. --Gulf Today, October 27, 2015 

A law unto themselves

BRP Bhaskar
Gulf Today

Will the Executive meekly submit to the Supreme Court’s decision quashing the National Judicial Appointments Commission Act or will it seek to override it? 

India is the only country where judges appoint judges. The Constitution makers did not envisage such a system. It was willed into existence by the Judiciary itself through two verdicts in the 1990s, in exercise of its right to interpret the Constitution.

The Constitution empowers the President to appoint judges of the superior courts in consultation with the Chief Justice of India. Since the President is required to act on the advice of the council of ministers, the Executive enjoyed primacy in the process. .

The system worked on that basis for more than 40 years, until the Supreme Court, in a 1993 judgment, created a collegium of judges, headed by the CJI, to decide on judicial appointments. Five years later, in response to a Presidential reference, it vested the right to choose judges exclusively in the collegium and reduced the Executive’s role to that of a postman carrying the CJI’s recommendations to the President.

Quashing of the NJAC Act designed to restore a reduced role for the Executive in judicial appointments is the latest act of aggrandisement which has virtually made superior court judges a law unto themselves. The process began with the Golaknath case judgment that overruled previous verdicts upholding Parliament’s unfettered right to amend the Constitution and said it could not make changes in the Fundamental Rights chapter.

Significantly, every forward step by the Judiciary came when the Executive and the Legislature were weak.

The Golaknath judgment came after the 1967 elections which, for the first time, left the ruling party without the two-thirds majority needed to amend the Constitution. On several earlier occasions, when the Supreme Court ruled a law unconstitutional, the Executive had got around by making suitable changes in the Constitution. 

In the 1971 elections the Congress under Indira Gandhi received a strong mandate and the Executive and the Legislature were once again powerful. At that time the Supreme Court stepped back a little. In the Kesavananda Bharati case, it said Parliament could amend the Fundamental Rights chapter but not in such a way as to alter its basic structure.

The 1993 judgment came when PV Narasimha Rao became Prime Minister without majority support in the Lok Sabha and was busy buying up MPs to keep his position. The 1998 judgment came when AB Vajpayee was heading a coalition with more than a score of parties. 

Since the ‘basic structure’ conjured up by the Judiciary remains undefined, the last word on the Constitution now rests with it. Predictably, Justice JS Khehar, who headed a five-member bench, invoked it to invalidate the 99th constitutional amendment and the NJAC Act.

The main argument of supporters of the collegium system, which the four judges who gave the majority verdict echoed, is that its continuance is necessary to ensure the independence of the judiciary. The lone dissenter, Justice J Chelameswar, countered the argument by drawing attention to lack of transparency in the collegium system and to specific instances of inappropriate exercise of power by the court-mandated body.

Justice Madan B Lokur and Justice Kurian Joseph, while agreeing with Justice Khehar that the new measures were unconstitutional, shared Justice Chelameswar’s views on the shortcomings of the collegium system. Accordingly, the bench decided to sit again on November 3 to hear the parties’ views on ways to improve it.

The claim that the presence of the Law Minister in the Judicial Commission will compromise the independence of the judiciary is questionable. The Law Minister was part of the selection process of judges from the time the Constitution came into force and it was through that process that those who decided the Golaknath, Kesavananda Bharati and Judges cases reached the apex court.

Many distinguished jurists like former CJI JS Varma have expressed themselves against the collegium system. The decision to set up a national commission to replace it was based on a recommendation of a Law Commission headed by MN Venkatachalaiah, who too is a former CJI.

The Congress, with whose support the Modi government enacted the NJAC law, has said it would not back any new move on the subject. This severely limits the government’s legislative options.

Shorn of legal and political rhetoric, what the country is witnessing is a power struggle among the three limbs of the state. It may have to go through a long and painful process to restore the system of mutual checks and balances, a basic feature of the Constitution which judicial overreach has destroyed. -- Gulf Today, Sharjah, October 20,  2015.

The ironies of cow politics

BRP Bhaskar
Gulf Today

Two weeks after a man was lynched in a village near Dadri in Uttar Pradesh, no more than 56 km from the national capital, New Delhi, the ruling Bharatiya Janata Party’s role in the duplicitous beef war stands exposed.

A mob attacked Mohammad Akhlaq’s house after a priest of the local temple announced over the loudspeaker that he had killed a calf which had been missing. Some Hindu neighbours went to the family’s rescue but not before Ashlaq was killed and his younger son was seriously injured. The women were unharmed. The older son, who works with the Indian Air Force, was away at Chennai, where he is posted.

The police arrested a few persons, including a local BJP leader’s son and the priest who made the loudspeaker announcement, in connection with the crime. BJP leaders claimed UP’s Samajwadi Party government had picked up innocent persons to placate the Muslims. Forensic examination of meat collected from Ashlaq’s house revealed it was mutton, not beef.

The lynching invited widespread condemnation. BJP leaders played it down and called for a Central law prohibiting cow slaughter in deference to the sentiments of Hindus who consider it a sacred animal.

Last week Ashlaq’s family moved to a house in Delhi for its own safety. The IAF arranged to shift his injured younger son to a military hospital.

A committee of academicians from the Jawaharlal Nehru University and Delhi University, which conducted a fact-finding study, said the lynching did not happen on the spur of the moment but was pre-planned. It demanded investigation of the role of Hindutva groups in the incident. It also deplored justification of the event by several BJP leaders, including Union Minister Mahesh Sharma, and asked Prime Minister Narendra Modi to break his “shameful” silence on the subject.

Modi finally spoke at an election meeting in Bihar state but there was no condemnation of the lynching or the violent speeches of his partymen.

He merely appealed to Hindus and Muslims to stop fighting each other and join hands in the war on poverty. The seemingly statesmanlike appeal reinforced the BJP’s electoral objective of consolidation of Hindu votes by setting the event firmly in a religious context.

The demand for a central law banning cow slaughter was disingenuous since it is already banned under local laws all over the country except Kerala, West Bengal and the tribal northeastern states.

Cow politics abounds in ironies. Muslim-majority Jammu and Kashmir has the oldest law banning cow slaughter. It was promulgated by a governor of the Sikh empire in 1819 at the request of the Pandit community.

The Pandits, who are Brahmins, cook and serve meat, chicken and fish on Shivratri, the most important festival on their calendar.

Some state laws prohibit killing of all cattle and some others ban only killing of cows and calves. The jail term for cow slaughter varies from six months in Andhra Pradesh and Telengana to 10 years in Jammu and Kashmir.

Hindus constitute an overwhelming 78.35 per cent of India’s population but vegetarians are a minority. Surveys have put the number of vegetarians at 31 to 40 per cent. A 2006 survey, conducted by the Centre for the Study of Developing Societies, found that all-vegetarian families constituted only 21 per cent.

The CSDS found that even among Brahmins, legatees of the Vedic tradition, only 55 per cent were vegetarians. The Lingayats, a Hindu sect which rejects the authority of the Vedas, and the Jains had a higher percentage of vegetarians. At the bottom of the vegetarian table were the Adivasis (12%), Christians (8%) and Muslims (3%).

Incidentally, the Vedas testify to ritual sacrifice of cows and consumption of beef by early Aryans.

While non-vegetarians constitute a majority, frequency of meat consumption is low. Many non-vegetarians avoid beef for religious or sentimental reasons.

Last year India became the world’s leading exporter of beef, accounting for 23.5 per cent of the global trade, pushing Brazil (19.7%) down to the second place. Carabeef (buffalo meat) makes up the bulk of the exports under this head. To make sure that exporters do not ship beef labelled as carabeef the BJP government plans to set up a lab in Mumbai.

India earned $4,781.18 million from beef exports last year. The export business is mostly in the hands of Hindus. Documents published by the media show that Sangeet Som, BJP member of the UP Assembly, who stoutly defended the Dadri lynching, was a founder director of an Aligarh firm which describes itself as a leading producer and exporter of halal meat. -- Gulf Today, October 13, 2015.

End of black money chase

BRP Bhaskar
Gulf Today

Why did Indians holding secret accounts in foreign banks contemptuously reject the corporate-friendly Narendra Modi administration’s generous offer to them?

During the Lok Sabha election campaign, Modi had declared he would bring back the money stashed abroad within 100 days of taking office. He would then have enough money to pay out Rs1.5 million to each citizen, he said.

When the deadline passed without any action, critics taunted him. The government then framed a law prescribing stiff penalties for holding undisclosed income and assets abroad, and offered a three-month window, from July 1 to September 30, to disclose black money accounts without attracting its harsh provisions.

In his Independence Day address, on August 15, Modi said the government had already received disclosures to the tune of Rs65 billion. However, when the time set for voluntary disclosure ended, only hoardings worth Rs37.70 billion had come to light.

That reduced the notional share of each citizen from 1.5 million to a measly Rs37. More taunts followed.

India has been living with the problem of black money, generated at home and abroad, since long. Businessmen are known to create black money abroad by under-invoicing exports and over-invoicing imports. Politicians and officials also park ill-gotten money abroad. Ahead of elections, money hoarded abroad flows into the country.

Modi’s was the fourth voluntary disclosure scheme in 40 years. About 260,000 persons disclosed concealed income of Rs15.90 billion in the first one in 1975. The second one in 1985 brought out Rs29.40 billion held by about 150,000 persons. The third in 1997 was the most successful one: about 470,000 persons disclosed concealed income of Rs330 billion.

The latest scheme, limited to foreign account holders, evoked the poorest response. There were only 638 disclosures. In absolute terms, the income disclosed is the second largest but it has to be viewed against the growth in the size of black money accounts since 1991 in the wake of economic liberalisation.

Modi, who is a prolific communicator, has not spoken or tweeted on the collapse of the scheme. The formal official response came from a bureaucrat who said, “We will now start taking action against those who have not declared their concealed income.”

If caught, a black money holder faces the prospect of a 120 per cent tax penalty and a 10-year jail term. The way the illicit account holders have ignored the scheme suggests they are supremely confident of their ability to evade the law.

There are no large industrial houses or tycoons among the 638 who made disclosures. Most of them are medium-sized industries or businessmen. It is possible that some made partial disclosures to avoid further scrutiny. Having made disclosures, they are immune from prosecution.

The government has no information about the assets held abroad by Indians. In a 2013 report, the Washington-based Global Financial Integrity put illegal outflow from India in the previous 10 years at about $440 billion. It ranked India third in illegal overseas money transfers, after China and Russia.

In 2006, Switzerland’s Banking Association revealed that Indians topped the list of secret account holders in that country with deposits totalling $1,456 billion. This was higher than the combined deposits of nationals of Russia ($470 billion), the UK ($390 billion), Ukraine ($100 billion) and China ($96 billion).

As Switzerland initiated steps to live down its reputation as a parking station for illicit wealth, Indian clients started moving their money elsewhere. By 2011, Indian deposits slid to the 61st place and stood at less than $2 billion. The 2014 figure is $1.98 billion.

The government’s hope of black money recovery now rests mainly on the multilateral automatic exchange of information system due to come into force in 2017. But those with undisclosed funds have enough time to move the money to countries which are out of it.

There is reason to doubt if the government is serious about unearthing black money. How can politicians who need black money to finance election campaigns crack down on black money?

Modi’s Bharatiya Janata Party is now the biggest beneficiary of corporate funding. Published accounts show that it received more than Rs12 billion from big companies last year. The Congress party’s share of corporate donations was only about $480 million. It is reasonable to assume that black money holders are actuated by the same considerations as the corporate since their interests coincide.

Finance Minister Arun Jaitley virtually proclaimed the end of the chase of foreign account holders when he wrote on Facebook on Sunday that the bulk of the black money is within India. He also bailed them out with the observation that the high tax regime of the past was to blame. --Gulf Today, Sharjah, October 6, 2015