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.

Challenges to federalism

BRP Bhaskar
Gulf Today

The feud between the Bharatiya Janata Party, which heads the Central government, and the Aam Admi (Common Man) Party, which runs the Delhi state government, and the skirmishes between the Telugu Desam Party, which rules Andhra Pradesh state, and the Telangana Rashtra Samithi, which is in power in the recently created Telangana state, are sure signs of deterioration in India’s political climate.

The conduct of the constitutional authorities involved in the fracas poses threats to the future of democracy as well as the federal polity.

The trouble in the National Capital Territory of Delhi, which is not a full-fledged state, began as an ego clash between Lieutenant Governor Najeeb Jung and Chief Minister Arvind Kejriwal, both former bureaucrats.

Kejriwal had led the AAP to a massive victory in the Assembly elections last February, foiling Prime Minister Narendra Modi’s bid to bring Delhi state also under BJP rule. He believes the BJP is now seeking to rule the state using Najeeb Jung as proxy.

Relations between Jung and Kejriwal soured when the former appointed an officer of his own choice as the acting Chief Secretary, ignoring the Chief Minister’s wishes. Kejriwal retaliated by removing the officer who had issued the appointment order at Jung’s behest. Jung asserted that he alone was competent to appoint and transfer officers.

Throwing democratic niceties to the winds, the Centre endorsed Jung’s stand that he could act without consulting the elected government. The issue is now before the court.

Last week the Delhi police, which is under the control of the Lieutenant Governor, arrested State Law Minister Jitender Singh Tomar on a charge of using forged university degrees. If the arrest had not come in the wake of the battle between the Chief Minister and the Lieutenant Governor, it could have been viewed as an act in keeping with the principle that no one, howsoever high, is above the law.

Until recently the BJP was an ardent advocate of full statehood for Delhi. Its present stance shows that it is unwilling to forgive the AAP and the capital’s voters for dashing its hopes in Delhi and bringing the Modi juggernaut to a halt.

The trouble in the South is a fall-out of the division of Andhra Pradesh state, which had come into being in 1956 as the common home of the Telugu-speaking people who lay scattered in British Indian provinces and princely states during the colonial period. The Telangana state was carved out a year ago following prolonged agitation by people of the region, which was formerly part of the princely state of Hyderabad, alleging neglect by successive Andhra Pradesh governments.

Under the law enacted for the bifurcation, Hyderabad will serve as the capital of both Telangana and the residuary Andhra Pradesh state for 10 years. This arrangement was made to give AP time to build a new capital since Hyderabad is now part of Telangana. The two states also have a common Governor, who is in charge of law and order in the joint capital during the interim period.

A piquant situation arose when Telangana’s Anti-Corruption Bureau arrested A Revanth Reddy, a Telugu Desam Party MLA, on a charge of bribing a nominated member of the Assembly to vote for a TDP candidate in the Legislative Council elections. Chief Minister K Chandrasekhar Rao later released the tape of an alleged conversation between Andhra Pradesh Chief Minister N Chandrababu Naidu and the nominated member to show that he (Naidu) was aware of the bribery.

Naidu said the tape was a fabricated one. He accused Chandrasekhar Rao’s party of encouraging defections from the state unit of TDP. Workers of the TDP filed complaints at several places in Andhra Pradesh against Chandrasekhar Rao and the Telangana Home Minister on charges of tapping Naidu’s phone.

Any step taken by any government against corruption deserves to be welcomed. But the developments in Hyderabad have to be viewed in the broad context of attempts by the two regional parties which hold power in the neighbouring states to settle political scores. An ugly situation involving a serious challenge to the federal structure can develop if the two Chief Ministers persist in the present course.

The Constitution is resilient enough to deal with tricky situations. But it can work smoothly only if constitutional authorities rise above petty politics and display statesmanship when the occasion demands it. -- Gulf Today, Sharjah, June 16, 2015.

Perpetuation of inequality

BRP Bhaskar
Gulf Today

An attempt to amend the Constitution to ensure fair representation for Dalits and Adivasis in the higher echelons of government service failed last week, revealing once again the hurdles in the path towards an equitable society.

The United Progressive Alliance government, which does not command the two-thirds majority needed for passage of a constitutional amendment, introduced the bill in the Rajya Sabha without mobilising the requisite support. The opposition National Democratic Alliance, led by the Bharatiya Janata Party, took no firm stand on the measure, confident that the government cannot go forward in the absence of a consensus.

A confrontation on the floor of the house between members of the Bahujan Samaj Party and the Samajwadi Party, both of whom support the UPA from outside, prevented discussion and adoption of the measure. Ironically, both the parties are champions of socially disadvantaged sections. The BSP, a Dalit party, wanted the bill to be passed but the SP, which draws support mainly from the other backward classes (OBCs) and Muslims, blocked it as these sections have been kept out of its purview.

Dalits and Adivasis, officially classified as the Scheduled Castes and the Scheduled Tribes respectively, comprise communities which were victims of the inhuman practice of “untouchability” for centuries. They have had the benefit of reservation in government service from 1950 when the Constitution came into force. The OBCs, too, have reservation but that came about under different circumstances and the system operates differently in their case.

To begin with, SC and ST reservation was limited to the entry stage. In 1955, the government provided for reservation in promotions, too, realising that these communities are not getting adequate representation at higher levels in the service. Thirty-seven years later, the Supreme Court ruled that reservation cannot be extended to cover promotions.

The government nullified the judgement through a constitutional amendment. After a couple of skirmishes over the provision, last April the Supreme Court struck it down saying the government must first demonstrate that the groups concerned remain backward and do not have adequate representation in the service and that provision of reservation will not result in loss of efficiency.

Reservation for members of the backward sections in government service and in school and college admissions was in force in some princely states like Kolhapur, Mysore and Travancore and the British-ruled Madras province before Independence. When the Constitution came into force, the judiciary held that such reservation offended its equality provisions. At the government’s instance parliament amended the Constitution to assert the state’s power to make special provisions for the socially and educationally backward sections.

For years this provision was used only for the limited purpose of protecting pre-Independence reservations. In 1989, VP Singh’s government, invoking it, extended reservation in government service to OBCs all over the country. While upholding the provision, the judiciary has circumscribed its application by ruling that the “creamy layer” of these communities is not eligible for reservation.

The central government has identified some sections of Muslims as backward, making them eligible for reservation. While the judiciary has accepted caste as a factor that can be taken into account while identifying socially and educationally backward sections, the relevance of religion in the process is still to be decided finally. The Andhra Pradesh high court recently struck down the state government’s decision to provide four per cent reservation for Muslims within the OBC quota on the ground that the sub-quota was fixed on religious lines and had no other intelligible basis.

There is difference in the approaches of the Executive and the Judiciary to the reservation issue. The former, under elected representatives, takes note of popular sentiments, and is therefore susceptible to charges of appeasing vote banks. The latter, dominated by beneficiaries of the old order, is susceptible to charges of not being sufficiently sensitive to the issue of social iniquity.

The suggestion that there is no evidence of inadequacy of SC and ST representation is ill-founded. Figures given to Parliament recently show that they are grossly under-represented in the higher echelons. What’s more, 25,037 posts meant for SCs and 28,173 meant for STs are lying vacant. These include both direct recruitment and promotion posts.

There is a strong anti-reservation lobby in the country consisting of people who benefited from the old order and want to retain the advantage it confers on them. They have used the merit argument to conceal the inequality of opportunity they are seeking to perpetuate. The Supreme Court has routinely endorsed this argument even though it is not substantiated by any empirical study. -- Gulf Today, September 11, 2012.

Judiciary’s growing clout

BRP Bhaskar
Gulf Today

The clout of India’s Judiciary, already considered the most powerful institution of its kind in the world, continues to rise, thanks to its successful interventions to right the wrongs of the Executive and the Legislature.

The Constitution envisages a system of mutual checks and balances by the three limbs of the state. While the Judiciary has exercised its corrective power extensively and effectively, internal weaknesses have prevented the Executive and the Legislature from playing their role well.

Over the years, the Judiciary, exercising its exclusive right to interpret the provisions of the Constitution, has enlarged its powers. Today it has the last word on the Constitution. Early Supreme Court verdicts had said Parliament’s right to amend the Constitution was unfettered. Later, the apex court said there were limits on its amending powers and ruled that constitutional amendments were subject to judicial review.

The Judiciary also has the last word now on who should be made judges of the superior courts, the apex court having appropriated to itself, through successive judgments, primacy in the consultation process that precedes judicial appointments.

It also has assumed legislative powers with a view to filling perceived gaps in the framework of laws. The Supreme Court verdicts prescribing procedures to be followed by the police in making arrests and laying down guidelines for dealing with complaints of sexual harassment at the workplace are now part of the laws of the land.

The Constitution lists “justice — social, economic and political” as the first of its several objectives. The Judiciary vastly expanded the scope for its intervention to ensure justice when it gave all citizens the right to move courts for redress of grievances through public interest litigation (PIL). Earlier, only an aggrieved person had the right to seek remedy from the courts.

The first public interest litigants were social activists and voluntary organisations. Later, politicians entered the field. Some of them appear to have found the courtroom a better battleground than the legislative chamber.

The 2G scam case in which A Raja, a former Dravida Munnetra Kazhagam member of the Central government, Kanimozhi, MP and daughter of DMK chief M Karunanidhi, several top bureaucrats and a few corporate honchos figure as the accused arose out of a PIL filed in the Supreme Court by Subrahmanyam Swamy, president of the Janata Party, a relic of the collective of that name which had seized power in the 1977 elections, ousting Indira Gandhi’s Emergency regime. Swamy and his party are not significant entities in parliamentary politics.

Former Kerala Chief Minister VS Achuthanandan’s vigorous pursuit of a corruption case, which he took up as PIL, resulted in a jail term for R. Balakrishna Pillai, a former minister belonging to a rival party. He is involved in PIL cases against some other political rivals also.

Achuthanandan’s Communist Party of India-Marxist is the state’s largest party, and the Left Democratic Front which it heads has been wielding power alternately with the Congress-led United Democratic Front for three decades. But in the five years that he headed the Executive he could not register a victory comparable to what he achieved as a public interest litigant.

It was a petition filed by the pro-CPI-M Democratic Youth Federation of India that led to the Supreme Court’s order banning the use of the pesticide Endosulfan in Kerala, where its indiscriminate use had caused severe public health problems in some areas.

When a civil society group drew attention to the partisan attitude of the Gujarat police the Supreme Court appointed a special investigation team to probe cases arising from the 2002 communal riots. Last week, a trial court gave life term to 31 persons in one of the cases.

PIL has no doubt added a new dimension to democracy. However, the political parties’ increasing reliance on the Judiciary to keep the Executive and the Legislature on the straight path is a sad commentary on the quality of Indian democracy.

From time to time the Judiciary has come under criticism for its activist role. Even some distinguished retired judges have opined that it overstepped its limits on a few occasions. However, public opinion appears to favour its interventions inasmuch as they provide relief against the Executive’s acts of omission and commission. The Executive must take note of this and set its house in order.--Gulf Today, Sharjah, November 14, 2011.

On Republic Day awards

In a Republic Day post on Facebook I offered felicitations to friends who received Padma awards this year. It elicited some critical and derisive comments.

Bestowal of honours by the ruler (read state) for services rendered to him is a practice that goes back to the feudal era. The knighthood in Britain is said to have originated in Saxon times (449-1066). In the 19th century non-whites who served the colonial administrations began to be considered for the honour, and Mutu Coomaraswamy of Sri Lanka became the first Asian to be knighted. The British instituted a system of graded civilian awards exclusively for Indians – Diwan Bahadur, Rai Bahadur and Rai Sahib in (Rai became Rao in the South and Roy in Bengal and Khan in the case of Muslims and Parsis regardless of geographical location).

Many Maharajas instituted awards of their own -- like Rajyasevaniratha.in Travancore. .

Article 18 of the Constitution of India says: “No title, not being a military or academic distinction, shall be conferred by the State.”

The Article reflected nationalist sentiments against the colonial-feudal reward system. Mahatma Gandhi was the only high-ranking leader of the freedom movement to have received a British honour. In 1915, he was awarded the Kaiser-i-Hind medal in recognition of his services in organizing an Indian ambulance corps during the Zulu revolt in South Africa. He had just returned to India at the time and was helping to recruit soldiers to fight for Britain in the World War I. He returned the medal a few years later in protest against the Jalianwala Bagh massacre.

Following the adoption of Article 18, many Indians gave up titles conferred on them by the British.

Four years after the Constitution came into force, the government instituted the Bharat Ratna, Padma Vibhushan, Padma Bhushan and Padma Shri awards, reviving the imperial knighthood, Diwan Bahadur, Rai Bahadur and Rai Sahib under a republican garb. Many questioned the propriety of instituting such awards when the Constituent Assembly had rejected the concept of titles, holding that it militated against the concept of equality. The government clarified that the awards were meant to honour people for services rendered to the nation and that since they are not titles that can be used with the name they did not attract the constitutional bar.

In total disregard of the government’s clarification, many award winners use the Padma awards as titles. Even when they have the good sense not to do so, their admirers often insist on using them. This tendency is very pronounced in Kerala.

In the beginning, following the colonial practice, awards were given only to the living. When K. Kamaraj died in 1975, Indira Gandhi conferred the Bharat Ratna on him posthumously in the hope that the gesture will win her the support of his Congress (O) followers. This prompted Morarji Desai, who succeeded her, to suspend the award system. On her return to power Indira Gandhi revived it. Following her example, Rajiv Gandhi conferred Bharat Ratna posthumously on M. G. Ramachandran. In 1990, V. P. Singh set the tone for the birth centenary celebration of B.R. Ambedkar by conferring Bharat Ratna on him 33 long years after his death.

The award system was suspended again in 1992 as the Supreme Court was examining a petition challenging its constitutional validity. The court rejected the petition in 1995 and the government revived the awards in 1997.

Morarji Desai was honoured with the Bharat Ratna in 1991. He also received a Pakistani honour: Nishaan-e-Pakistan.

Normally the President confers the awards on the advice of the Council of Ministers. But when Jawaharlal Nehru returned from a successful visit to the Soviet Union in 1955 President Rajendra Prasad conferred the Bharat Ratna on him without any ministerial advice.

The manner in which selections are made for the awards was seriously questioned for the first time when an engineer who was given the Padma Shri in recognition of his role in the execution of a major project was later arrested on a charge of corruption.

There are a few known cases of eminent persons refusing awards as they believed they deserved something better than what was offered. K Subrahmanyam, who had served as civil servant, strategic analyst and journalist, had refused a Padma award for personal reasons. In a television interview, he said, "In my view I should not accept an award from the Government in any of the capacities as that would compromise my independence vis-a-vis the state.” That is a refreshingly welcome statement from one who was a part of the Establishment all his life.


I hold the view that the system of awards is not in conformity with the spirit of the Constitution. But, then, the Indian state is essentially a continuation of the colonial state and, what’s more, the system of awards appears to have wide acceptance not only among those looking for recognition but also among the general public. It is for an individual chosen for an award to decide whether or not to accept the honour. When someone is chosen for an award, I believe, felicitations are in order -- unless there are reasons to believe he does not deserve the honour.

The words Rabindranath Tagore wrote to the Viceroy in 1919 relinquishing his knighthood in the wake of the Jalianwala Bagh massacre are worth remembering: “The time has come when badges of honour make our shame glaring in the incongruous context of humiliation, and I for my part, wish to stand, shorn of all special distinctions, by the side of those of my countrymen who, for their so called insignificance, are liable to suffer degradation not fit for human beings.”

Humiliation of our countrymen for their so-called insignificance is a continuing story but how many are ready to stand by their side, shorn of all special distinctions?

India has a long way to go, says AHRC

The following is a statement issued by the Asian Human Rights Commission on India’s Republic Day:

The integrity of a republic and the determination of its people depend upon the legitimacy of their government. Since declaring the Union of India to be a sovereign, socialist, secular, democratic republic that assures its citizens justice, equality, and liberty and to be a nation that endeavours to promote among them all fraternity, 61 years ago, the country today has still a long way to go to realize the dreams of its founding fathers. The Indian Constitution, a social document, as referred to by Granville Austin, drafted to further "the aim of social revolution or attempt to foster this revolution by establishing conditions necessary for its achievement" depends much upon a government that has a democratic executive which is stable, responsible and impartial.

The defining characters of the country's executive has deteriorated to such levels over the past 61 years that it is not even a shadow of what it ought to be. Instead of undertaking honest endeavours to correct this and to contribute to the nation building exercise, today, despite of its symbolic value, the integrity of the republic, according to the determination of a large section of its people, has been reduced to the hoisting of the national flag in states like Jammu and Kashmir that struggles to return to normalcy from the externally sponsored and internally motivated civil war.

After declaring the country as a republic 61 years ago and 63 years since gaining independence from colonial rule, India today is still an underperforming state for more than 60 percent of its population. Despite maintaining a steady and decent growth rate for the past five years, the country is home for an alarmingly high number of persons, estimated to be 75 percent of its population, who live below the poverty line. This is a condition worse than in Sub-Saharan Africa.

Corruption, the omnipresent cancer that has eaten the country from within, has reduced the executive and the administration to a condition comparable with that of a termite ridden tree that waits for a strong wind to complete its downfall. Irrespective of their ideologies the political parties that exercise power in India have only competed between themselves to preserve the corrupt bureaucracy that always yearned to remain the mainstay of the politicians and rich. Despite the weekly reportage of corruption, where politicians and bureaucrats have been exposed of swindling millions worth tax payers' money there is no healthy debate yet in the country of the urgent requirement for a credible corruption prevention agency. One among the many that already exist, the Central Bureau of Investigation, yesterday was pulled up by the Kerala High Court and cautioned that the Court would have to take action against the Bureau should it continue intervening in the investigation of a politically sensitive murder case to save some of the high-ranking, as well as corrupt politicians. The Bureau is a typical Indian example of how these agencies are created and accustomed to doing anything else other than their statutory mandate, which is to detect, investigate and prevent corruption. The allegations of corruption against the present Chairperson of the National Human Rights Commission, is yet one more example of the stark reality of the extent to which corruption has eaten into the justice system of the country. The continuing reluctance of the Union Government to initiate an investigation into the scam, that it its wild course has tainted further none other than the Supreme Court of India, the highest seat of justice in the country, shows the extent to which this cancer has nullified the notion of justice in the country.

Corruption however is not a problem in itself. It is the result of much more deep-rooted issues within the administration of a state. In that, corruption flourishes only to the extent to which an environment for corruption prevails. This environment includes not only the administrative mainframe, but also the general perception of the public about the character of their state. For the ordinary citizen, there are some key institutions that represent the symbols of the state. Of them one of the most important element is the police, as the police is not only a uniformed state presence, but is also the symbol of its authority. A reform to the existing framework of administration is thus not possible in India without addressing the entrenched problems relating to policing in the country. Foremost in the list is the practice of the use of brutal force with impunity. So far the national debate to bring about changes to this unacceptable status quo has halted at the stage of the Parliamentary Select Committee proposing drastic revisions to the proposed law against torture. The Committee has suggested overarching revisions to the proposed law, which in its present form is none other than an eye wash legislation to justify India's proposal to ratify the United Nations Convention against Torture and Other Cruel, Inhuman, Degrading Treatment or Punishment. The proposed law against torture, the Prevention of Torture Bill 2010 in its current form will be just one more legislation to justify the usual claim of the Government of India before the international community that the country has adequate legislation to guarantee the rule of law. What is ignored by international jurists and kept hidden by the country's government is that despite having laws, justice and redress remains a distant dream for most in the country.

This denial of justice is visible in the extrajudicial executions and encounter killings reported from states like Manipur and Jammu and Kashmir; in the despicable neglect of the state and central government of the tribal and otherwise ethnically minority communities that led to the disastrous and dangerous growth of armed extremist groups like the Naxalites and the other armed militia groups; in the cases of torture reported from the length and breadth of the country; in starvation deaths, forced evictions and bonded labour.

Every case of unresolved human rights violation that is reported from India is an assertion that the country needs much more than the pseudo chivalry of the hoisting of a flag in a state that has an alarming and disproportionate army presence. Every case of rights violations in the country is yet another cry for help of a hapless citizen who is denied his or her fundamental right to be treated equally and humanely that the constitution they believe in guarantees.

January 26 will be meaningful only if the guarantees in the constitution that proclaimed India a republic 61 years ago are also realized. Until then the Republic Day will remain an occasion for the annual remembrance of that great nation India once resolved to become and Indians thus far have failed to realize.

The Asian Human Rights Commission is a regional non-governmental organisation that monitors human rights in Asia, documents violations and advocates for justice and institutional reform to ensure the protection and promotion of these rights. The Hong Kong-based group was founded in 1984.

Call to scrap Unlawful Activities Act which criminalizes dissent

The following is the text of an online petition appealing to the President of India to scrap the Unlawful Activities (Prevention) Act:

To
The President of India,
Rashtrapati Bhavan,
New Delhi.

We, the undersigned, are gravely concerned about the use of Unlawful Activities (Prevention) Act (UAPA) by the government of India and state governments to silence voices of dissent and opposition. Recently, a large number of political activists, human rights defenders and journalists have been arrested and convicted on the basis of this draconian law. We view this act only as a means of state terror intended to endanger citizens who are brave enough to speak, write or act against the interests of the ruling party and big business. The case of Dr. Binayak Sen confirmed our worst fears- that nobody who exercises their free speech to expose the violent state is spared.

If Dr. Sen is one of the more famous victims of this anti-democratic law, hundreds languish in jails in the country for speaking out against the collusion between multinational companies, politicians and the police. UAPA is being used to repress struggles by poor peasants and Adivasis for their land and resources , against striking workers, minorities, civil rights activists, journalists, lawyers and students for protesting against anti-people policies of the government. Swapan Dasgupta, the editor of a political magazine from West Bengal, died in police custody after being booked under UAPA in 2009. Spokesperson of People’s Committee Against Police Atrocities (PCPA) Chhtaradhar Mahato was arrested under UAPA in 2009 and still is in jail in West Bengal. It has been used against journalists like KK Shahina of Tehelka who dared to write about a legal system discriminating against minorities and against Dalit activists like Sudhir Dhawale who worked in open and public platforms. The law gives unlimited freedom to the police to interpret what constitutes “terrorism” and “unlawful activity” to suit the interests of the rich and the powerful.

This law is against the spirit of our Constitution and should be opposed on the basis of the following:

• UAPA criminalizes dissent. Section 15 of the act defines ‘terrorist activity’ extremely vaguely and gives enough room for executive to illegalize activities that challenge the anti-people policies of governments.

• Through this law, governments can brand any organization that it finds inconvenient as “terrorist” or “unlawful. Section 39 makes support to a terrorist organization an offence and criminalizes common activities like arranging, organizing or addressing public meetings.

• It permits longer detention of ‘terror suspects’, up to 6 months, without charge or trial. It sanctions harsh and tough procedures for the detained person to obtain bail which curtails the rights of the accused. This facilitates long incarceration of political activists and members of civil society who question the government.

• It allows anonymous witnesses which limits and curtails the right of the accused for a fair trial. Needless to say, all these provisions violate fundamental rights guaranteed by the constitution of India.

We understand that UAPA is an anti-people legislation that is designed to silence voices of dissent and bury political freedom. We feel that the continuance of this law and its extensive use to annihilate opposition is against the spirit of free speech, human rights and democracy enshrined in our constitution. We, therefore, appeal to you to immediately repeal UAPA and to free all political prisoners booked and arrested under this draconian law.
Sincerely,

Please sign the petition here:
http://www.petitiononline.com/rpluapa/petition.html

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We the People of India: makers and keepers of the Constitution

It was not a directly elected house that drew up India’s Consttution. The members of the Constituent Assembly were chosen ny the provincial assemblies of British India, which were elected on the basis of limited franchise. When the princely states merged in India they too were given representation in that house. Only a few princely states had legislatures. The representatives of states without legislatures were nominated by the maharajas. Although they were sent to the Constituent Assembly by legislatures and rulers who lacked representative capacity, the members believed they had the right to represent the entire people of India. In the belief that they the people wanted free India to be a democratic secular republic and that they bore the responsibility to realize that goal, they prepared a constitution that suited that purpose. And they wrote in the preamble that We the People of India are the makers of the Constitution.

Legal pundits had studied the constitutions of many lands and incorporated their best elements in the draft constitution. So it became the longest constitution in the world. The preamble proclaimed that its aim was to secure for all citizens justice, liberty, equality and fraternity. The unique character of our Constitution can be gleaned from this declaration. Equality, fraternity and liberty are ideas that emerged in France at the time of the Revolution. They very quickly won recognition worldwide as the fundamental principles of democracy. The most important factor that distinguishes our Constitution from other statutes of its kind is that places justice above these principles. It elaborates the concept of justice in these words: Justice, social, economic and political.

Most democratic countries have societies of a more or less homogenous kind. Social inequality is not a serious problem for them. What prompted the constitution makers to give primacy to justice was the realization that in this land, where the majority of the population had been subjected to graded inequality for centuries, fraternity and liberty cannot be ensured without first ensuring a modicum of justness. In the final analysis, the future of Indian democracy will be determined by success or failure in securing justice, social, economic and political. Much is happening in the country that does not accord with democracy. Those who wield power and those ranged against them indulge in such activities. Some are seeking to deny justice, some others to ensure justice.

Basically, all democratic constitutions divide power among the three limbs of the state, the Executive, the Legislature and the Judiciary, and provide for a system of mutual checks and balances. Our Constitution, too, provided for such a dispensation. But in half a century of working distortions have crept into the system of checks and balances. If the head of the Executive is an extremely powerful person the Legislature’s ability to keep it in check shrinks. Such a situation prevailed in the early years of Independence. Later the polity got fragmented and the Executive became weak. When the ability of the Executive and the Legislature to check each other declined, the Judiciary’s prestige grew as the lone establishment to which the citizens can turn for relief against wrong- doing by them. This provided the Judiciary an opportunity to enlarge its powers. Utilizing this opportunity the Supreme Court assumed the power to appoint judges.

The Constitution had vested the right to appoint judges in the President. He is required to act on the advice of the Union Cabinet. The Constitution, however, provides that the Chief Justice must be consulted in the matter of appointment of judges. In a judgment, the Supreme Court declared that the provision requiring consultation means the Chief Justice’s concurrence is required. The position now is that the President can appoint as judge only a person selected by the Chief Justice and two senior judges. This is quite different from what the constitution makers visualized. Moreover it does not accord with either democracy or commonsense.

The Constitution vests in the Court the right to interpret the provisions of the Constitution. The courts have enlarged this into a right to decide what the constitutional provisions must be. The present state of affairs suggests that the Judiciary is under the impression that it is the keepers of the Constitution and that the other, weakened institutions are ready to concede this status to it. A close look at the preamble will show that the Constitution has not granted to any limb of the state the onerous responsibility of being its keepers. It says We the People of India have given the Constitution unto ourselves. In other words, the People who are the makers of the Constitution are also its keepers.

In Jawaharlal Nehru’s time, a conflict arose between the Allahabad High Court and the Uttar Pradesh Legislative Assembly over their respective powers. When, on the advice of the Union Cabinet, the President sought the advisory opinion of the Supreme Court on the relative powers of the two institutions, it stated that each was supreme in its own sphere. However, subsequently, in a judgment, the Supreme Court observed that since all institutions derived their authority from the Constitution, it was the Constitution that was supreme. The quest for the source of authority must go beyond the Constitution. Where does the Constitution derive its authority from? The answer to that question is in the preamble. It derives its authority from We the People of India, who are both the makers and the keepers of the Constitution.

The Constitution is subject to changes. The changes in it must accord with the wishes of the people. We the People of India had vested the amending power in Parliament. Many of the changes that have come about in the Constitution through judicial interventions are in accord with the people’s wishes. But there have also been changes that are not in accord with them. The change in the provision relating to appoint of judges is one such. Many constitutional experts have said so openly. It is a mistake that needs to be corrected. It will be good for the Supreme Court itself to do this through a judgment. If it is not ready to do so, Parliament, as the body empowered to make changes in the Constitution, must fulfil that responsibility.

We don’t become a democratic society merely because elections are held once in five years. As the keepers of the Constitution, it is the duty of We the People of India to ensure that evevry constitutional institution discharges its duties properly. In view of the tendency among these institutions to overstep the limits of their power, civil society must be on guard and ensure that no institution makes inroads into others’ spheres. This is a process that must go on all the time.

Based on an article written for the Annual Number of Madhyamam, Malayalam daily

The Supreme Court sets the stage for roll-back

I wish to congratulate Justices A. K. Mathur and Markandey Katju of the Supreme Court who have called for judicial restraint and cautioned against the Judiciary encroaching upon the realms of the Executive and the Legislature.

In a judgment, delivered on December 10, they said, “Jagadambika Pal’s case of 1998, involving the U.P. Legislative Assembly, and the Jharkhand Assembly case of 2005 are two glaring examples of deviation from the clearly provided constitutional scheme of separation of powers.”

They added, “The interim orders of this court [on the conduct of floor test and motion of confidence], as is widely accepted, upset the delicate constitutional balance among the judiciary, the legislature and the executive, and were described by J.S. Verma, former Chief Justice of India, as judicial aberrations which he hoped the Supreme Court will soon correct.” ( The Hindu, December 10, 2007)

Judicial excess was the topic of the first piece that appeared in this blog: Judiciary: Time to Roll Back (April 24, 2007). Two days later I reproduced here an editorial on the subject, which had appeared in the Economic and Political Weekly: “Constitutional separation strained” (EPW, November 26, 2006).

With the Mathur-Katju judgment, I believe the roll-back process has begun. On December 12, another bench, comprising Justices S. B. Sinha and H.S. Bedi, taking note of that judgment, decided not to proceed with the hearing of a public interest litigation which had been before it since 2004. It requested the Chief Justice of India, Mr. K. G. Balakrishnan, to post the matter before a larger bench. (The Hindu, December 12, 2007)

On December 13, the issue was raised before a three-judge bench, headed by Justice Balakrishnan himself. This bench decided to proceed with the matter before it, holding that the Mathur-Katju judgment does not apply. (Zee News, December 13, 2007)

Former Chief Justice P. N. Bhagvati, in whose time public interest litigation grew in size and scope, immediately hailed Justice Balakrishnan’s decision.

Naturally the different positions taken by the three benches have given rise to confusion all around. Many are wondering whose will be the last word. It may take quite some time to resolve the confusion.

It is not anybody’s case that public interest litigation must be jettisoned. It has served as a corrective mechanism and must stay as a necessary instrument to further the cause of justice -- social, political and economic. What needs to be curbed is not the citizen’s right to seek redress through public interest litigation but the judge’s tendency to exercise powers that do not belong to him.

West Bengal government promoting organized crime

A woman injured in the Nandigram violene. Photo: Courtesy www.sanhati.com

The following is the text of a statement issued by the Asian Human Rights Commission, Hong Kong, on November 13, 2007

NANDIGRAM, a remote village in West Bengal state of India is once again in front page news in the country.

This remote village in West Bengal was in the news 11 months ago when violence erupted in the village. The Communist party led state government used force to silence the protesting farmers who were agitating against the proposed acquisition of their land by the state for establishing a special economic zone. The state government, with the aid of the local police and its party cardres, silenced the protest using brute force. The violence resulted in heavy loss of life and property, which is still not completely accounted for.

On 10 November, 2007, violence erupted again in Nandigram. This time too the violence was spearheaded by the party cadres of the ruling political party of West Bengal state – the Communist Party of India (Marxist) (CPM).

On the first instance and even now, the state government is defending its position of justifying the use of force. The only exception is that this time the local police remained confined to the police station when the party cadres shot at will on protesters. The death toll is yet to be ascertained and the villagers are in the grip of fear.

The state government on both occasions said that the use of force was to bring the region back within the control of the state administration. While debates are underway arguing for and against the state government and its actions, for an ordinary person the incidents reported from Nandigram raises a few questions. Had the state administration consulted the local people before it decided to acquire their land? If yes, whether such an acquisition is justifiable? Had there been any credible procedures and mechanisms in place to compensate those who could lose their land? If the administration had withdrawn from the proposal of acquiring the land what erupted the current tragedy? What prevented the administration from resolving the issues in Nandigram through legitimate means? Why did the state government employ party cadres to ‘repossess’ its control of the area? Was the ‘repossession’ for administrative control or an action looking forward to the oncoming local body elections? Even then what justifies the use of illegal force by party cadres? What happened to those who lost their relatives and property in the earlier incident? What will happen to those who suffered in the recent incident? Will the government and the justice mechanisms in the state be able to prosecute those who are responsible for loss of life and property? Which law in India authorise organised violence to curb protest?

Above all what is that matters to the state government of West Bengal – the people or the party?The government in any country or region has a constitutional obligation to promote and protect the life and property of the people within its jurisdiction. Whatever be the political ideology the government believes in or follows, such ideologies must not supersede the paramount law of the country – the Constitution. While the Constitution of India guarantees certain rights and privileges to the state administration, it equally guarantees the citizen certain rights, which the government by oath and mandate is bound to protect and fulfill.

Nandigram as of today is the sad reminder that the state government of West Bengal has failed in their duty. By justifying violence the state government has breached the inalienable constitutional guarantees of the people and has played fraud upon the people and the Constitution of the country. Such a government is promoting organized crime.

On these counts the CPM led West Bengal government is no different from its counterpart in Gujarat led by Mr. Narendra Modi. No one other than the West Bengal state government and their political think tanks and their supporters will concur with the idea of using organized violence to curb protest. A government which has played fraud upon the Constitution that it has sworn to protect and the people it is duty bound to serve has no legitimacy to continue in authority.

# # # About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation monitoring and lobbying human rights issues in Asia. The Hong Kong-based group was founded in 1984.