"The government of the people, by the people, for the people"

At what point of time I was introduced to this definition of democracy, I can hardly remember. It is quite ingenuous though; I am yet to come across any other; quite a few descriptions could be found, but not definitions. It is exhaustive, avoids jargon and yet, one can't quite put one's finger on a particular word and say that it's too simplistic. But, this post is not about the definition or its ingenuity, it is not about the Gettysburg address in which Abraham Lincoln first pronounced it in 1863. It is about democracy and its working in this age, nearly 150 years after Abraham Lincoln inadvertently used the phrase to describe democracy in America (incidentally, as a friend of mine pointed out, even Abraham Lincoln wasn't very optimistic that the world would remember, what he said then - "world will little note, nor long remember what we say here"). The sole purpose of beginning the post with this definition was to remember, what really democracy was supposed to be and what it has come to be.

It is some worrisome features that the Indian democracy has acquired over the past 60 years of its independence, that concern us here. And they are not worrisome because they are faulty, which they certainly are. They are so, because we seem to be perpetuating their existence by using the same faulty line of thinking, that created them, to rectify them.

I think this would be an appropriate juncture to declare any prejudices I may have here, before I endorse or criticize a particular view-point. I have always criticized the Parliamentary form. Considering that many, though not all, features of political systems originate from their parent systems of government (Parliamentary, Presidential or Collegial), I am bound to link these features to their origins. Then again, I have no intentions of comparing the two systems today. They will be discussed only as far as their effects are concerned.

The features that I intend to discuss are,
- Representative form and its limitations for enforcing political accountability
- The multi-party system and its working
- The anti-defection law (52nd Amendment to the Indian Constitution)

Naturally, all these topics are linked with each other. So, their separate treatment will only be for the sake of understanding their effects in isolation to begin with. They will find a mention in all the posts intermittently, as and when the linkages need elucidation.

When I began writing this post, the idea was to write a short one, describing each feature in brief. But as I actually sat down to write it, I realized that it was much more complicated than I had perceived it to be. Ergo, I have decided to break it down into parts, each covering one topic and hopefully, to conclude in a separate post. So, here we are.

Representative Democracy and Political Accountability

We are often told that administration is becoming complex, because of progress in science and technology and population explosion. As Humphrey Appleby, the quintessential British bureaucrat, often told his "political master", Jim Hacker, that the size of bureaucracy had increased because of the volume of legislation passed by the Parliament and not, as is usually thought, by the bureaucracy that creates work for itself (Parkinson's law). Ignoring the self-serving/self-seeking rhetoric of Sir Humphrey, it can't be denied that there is some substance to it. Legislation and hence administration have become complex. And in this complex world, where the government has come to occupy a cardinal role that compels it to regulate the activities of citizens in almost every single sphere, how evolved are the instruments of ascertaining the will of the people that it claims to represent? In short, when we say that it is "the government of the people, by the people and for the people", how do we make sure that it really is the government of the people, all the time, on every single issue?

This brings us to the most basic requirement of a democracy - instruments of public accountability. The most rudimentary forms of accountability and ways of ascertaining people's will that democracies conventionally offer are,
- Periodic Elections
- Judicial Recourse

Election was invented as a way of ascertaining people's will - that people elect their representatives periodically and the representatives govern them on their behalf. This, incidentally, created, what is currently the most popular form of democracy, known as the Representative Democracy. The other form being Participative Democracy, some what akin to Gandhiji's vision of self-sufficient villages and indirectly elected and organically linked provincial and national governments. One hardly needs to go into the details of why the Indian electoral system needs reforms (and I am not alluding to the electronic voting machines here either).

And although, generally, the Judiciary has been considered as the most satisfactorily run branch of the government (notwithstanding the objections of the Legislature in general and Mr. Somnath Chatterjee in particular, who was joined by Justice V. R. Krishna Iyer recently) in India, the recent instances of intransigence of some of the judges of the honourable courts, allegations of corruption and the unpleasant episode between the Supreme Court and the Central Information Commission have only added to the conclusion that even the Judiciary is in a dire need of reforms, systemic and otherwise. The 3 crore cases pending in the courts further strengthen our case.

These are, but the most general objections to the conventional instruments of accountability. They tell us that these instruments are not working effectively even with the originally limited expectations from them. The second category of objections relate to their inadequacy vis-à-vis the changed role and the expanded reach of the government. The first we hope should be addressed at least partly by electoral and judicial reforms. It is the second one that concerns us here in this post.

After assuming the role of a welfare state post-independence the government entered the social and industrial sectors and the bureaucracy started expanding. Even after the advent of L-P-G (liberalisation-privatisation-globalization) the government machinery remained as vast as ever, but for a very different reason. It is regulating and legislating in more areas than it did 60 years ago and it needs just as large a bureaucracy as it did, as a welfare state.

But, this ubiquitous nature and the expanded mandate of the government is hardly ever reflected in elections. They are still fought on limited issues, which have been pursued and discussed ad nauseam. And I concede that not all issues are as important as 'secularism' (can't help but roll my eyes here!), but occasionally, when other equally or more (and possibly the most) important issues emerge, they rarely find a mention in any of the election manifestos, or are brought up in the public sphere to seek people's mandate on them (and not to instigate 'big fights' and shouting matches of similar genres). There has been a myriad of such issues, but the one that comes to my mind immediately is Nuclear Liability.

It may not be appropriate to describe its timing as 'fortunate', but the judgement on Bhopal gas tragedy came at the second most opportune moment (considering that it arrived too late, anyway), when the government is investing massive amounts of money in nuclear energy. It is not only the utterly irresponsible manner in which the entire matter was handled that's appalling, but also the absence of any genuine efforts to learn lessons from this bitter experience. The Legislature, it is said, failed to create a legal framework to prevent such industrial disasters in the first instance by failing to encourage internalisation of the cost for adherence to the safety norms by providing for stringent penalties for negligence and secondly to create a liability regime that can at least get sufficient compensation for the victims (though I am told that the Law of Torts and the Indian Penal Code are adequately capable of addressing these concerns).

Notwithstanding the absence of such laws or their incompetence, the least anybody would agree to is that they deserve a thorough public scrutiny. The government envisages a contribution to the tunes of 20 GW to India's energy mix from nuclear sources by 2020. The nuclear reactors will be located all over the country exposing majority of the population to possible nuclear disasters. The world so far has seen 2 instances of major nuclear disasters (Three Mile Island and Chernobyl) and it goes without saying that India is not capable of handling a disaster of even half their intensity. The point I am trying to make here is that when the government decides to
1. Make nuclear energy a major source of energy
2. Route the liability for a nuclear disaster to operators alone (thereby failing to create any incentive for the suppliers to invest in safety features)
3. Cap the liability arbitrarily without any reference to a future revision
4. Provide for a substantial part of the capped compensation to be made from the public purse and does it all so surreptitiously, under whichever political compulsions it may have had, it leaves us hardly any alternative but to question the very legislative mandate of the government.

The Loksabha is elected on election manifestos. Did the election manifestos of either the ruling party or the parties in opposition have any reference to Nuclear Liability? If we decide to cover it under the general subject of 'infrastructure development', it only goes to show how cavalier an attitude we have adopted on issues, which can affect the lives of millions of people.

Notwithstanding the election manifestos, the analyses of past elections have proved amply that voting patterns are highly subjective and dynamic. For one, the basis of voting for a particular party can also be negative as has been proved time and again. Secondly, with a multi-party system and the system of first-past-the-post, one has to be too naïve to believe that a candidate representing a particular constituency was elected by a majority of people from that constituency, let alone assuming that his party's stand represents the stand of a person voting for him on every single issue. These follies are only compounded by the inadequate separation of powers afforded by the Parliamentary system (here we go!) between the Legislature and the Executive.

Now we can certainly understand the preoccupation (bordering on obsession) of the major parties with, what they think are the most important issues and that not all issues can be foreseen and discussed at the time of elections. But the least that can be done is to encourage a public debate on such issues. There has to be some way of ascertaining people's will on issues that have never been discussed in the public domain or during elections.

In times when the government that represents 1.2 billion people, tries to regulate their activities in almost every single sphere, it is too simplistic and naïve to assume that the people have given the government the mandate to legislate on every single issue. We can probably leave defence out of this for its implications on national security and emergencies that need quicker responses, but other issues have to be in public domain for sufficient period before a decision is made.

The most commonly used argument against this is that people are not educated enough to contribute constructively to such debates because of their "technical" nature. I think this argument smacks not only of a patronizing attitude but also of political convenience. The argument that people are intelligent enough to decide what constitutes 'secularism' (the word continues to be considered vague and debated on even by constitutional experts as to whether it means equal treatment to all religions or state neutrality in the matter of religion) but they can't decide for themselves if there should be a cap on compensation in the event of a nuclear disaster is highly untenable.What is really so incomprehensible? Do people need to understand nuclear physics and the working of nuclear reactors to decide if there should be a cap on compensation in case of a disaster that can kill and handicap millions and affect generations and pollute environment irreversibly?

Even if we consider these arguments to be genuine, there has to be a beginning on public education. Quite mysteriously this lack of faith in people's ability to adapt to new systems because of lack education is often absent when it comes to introducing things like plastic bags or pesticides, which need more public education to ensure a responsible usage and disposal than political reforms. How long can we hide behind the argument that the Indian voter is not capable of handling referenda or the system of proportional representation or multi-member constituencies? Today, 27 years after Bhopal gas tragedy, when there is a general feeling of dismay at political and corporate apathy, people hardly have anybody but themselves to blame. If there is a nuclear disaster awaiting us in the future, the fall of the government for its "collective responsibility" will hardly help the victims.

I realise that I have used only one example here, that of Nuclear Liability, as it was the most recent one that I could think of. But it applies to every single important issue, such as constitutional amendments, creation of new states, caste-based census and anything and everything that has never been in public domain or not been discussed adequately and generally legislated by circumventing public mandate.

To conclude, elections are only an instrument and not the only instrument of ascertaining people's will. With the increasing complexity of administration, more effective instruments must be utilized and invented. Referenda are quite popular in many countries and it wouldn't hurt to give them a try. Over the period of past 60 years we seem to have forgotten that elections are important only as far as they help us elect people's representatives in an effective manner. Neither are they infallible nor are they a panacea; they are only a means to an end. If they are inadequate they must be supplemented. We are facing a new age which brings with it its own unique problems, which need new solutions, which, of course, can't be instant. There will have to be a learning process, which can evolve a system that addresses our concerns, but the process must start, if it is to be effective, by accepting the shortcomings of representative democracy.

The Ultimate Instruments of One-upmanship in the World of Constitutions

After having resisted for nearly 3 weeks, I could no longer put off the discussion on the most controversial topics of Indian Constitutional Development. The one-upmanship referred to in the title is the conflict for supremacy between the two arms of the Government - the Parliament and the Judiciary. It would have been almost impossible to refrain from getting into the discussion on how it is not so much a conflict between the Parliament and the Judiciary, as between the Political Executive in collaboration with the majority in Loksabha and the Judiciary, had it not been for the main object of the topic, the ultimate instruments developed by each of these arms. So this post is not about separation of powers, Parliamentary or Judicial Supremacy, comparison between the Presidential or Parliamentary forms, the primacy between Fundamental Rights and Directive Principles of State Policy, although these topics will be touched upon for their incidental, consequential and not substantial values.

The conflict has had a 60-year long history. It started in the Constituent Assembly, when its members debated the extent to which the Judiciary was to be made independent and the Parliament supreme (little did they expect that both the arms would develop their own ingenious and then extra-constitutional means to change this state of affairs).The means referred to here are
1. the IX schedule
2. the Doctrine of Basic Structure

It is quite apparent why the IX Schedule is being referred to as an instrument here. What makes it the Ultimate instrument of the legislature is the preclusion of any law included in the IX schedule from judicial review.

But the instrumentality of Doctrine of Basic Structure is perhaps not as intuitive. If one looks at it, it only appears to be like any other ordinary principle, like the Doctrine of Progressive Interpretation or the Doctrine of Severability. What makes it powerful is its a non-exhaustive nature. The SC after the invention of the doctrine has added many more features to it in its subsequent judgements. As basic structure finds no clear mention in the Constitution, it's definition is completely at the mercy of the SC's discretion. In short, basic structure is, what the SC says it is.

What is fascinating though, is not that both the arms invented their own instruments, but the fact that just like these arms were supposed to complement each other, so do their instruments. The Doctrine of Basic Structure is to the Judiciary exactly what the IX schedule is to the Parliament. Both have monopolies on their respective inventions and their contents, and use them against each other, when crossing into each others' jurisdictions, while preserving their own autonomy. The only saving grace in case of the judiciary is that it has tried to attribute its invention to the Constitution itself, so the arbitrariness was well-concealed in the alleged liberal interpretation of Constitution. The parliament on the other hand was pressed for more urgent matters such as land reforms and socio-economic equality, so it did not offer any other explanation to the arbitrary use of its Constituent powers.

So what is the status of this conflict today? Which instrument prevails over the other? From the most recent judgements of the SC it would seem that Basic Structure has won the battle. The SC judgement in Minerva Mills Vs.Union of India (1980) pronounced Judicial Review to be a basic structure, while its judgement of 2007 on IX schedule has given a clear cut primacy to Basic Structure over the IX schedule. The judgement pronounced by the then Chief Justice of India, Justice Sabharwal, on January 11 (incidentally just a day before he retired as the CJI) said that the inclusion of any law into the IX schedule after the Kesavananda Bharati judgement (24th April, 1973) can be challenged under the Basic Structure Doctrine.

So do these judgments make the judiciary more powerful than the legislature? I beg to differ on this point with many experts. What needs to be balanced is the combination of the legislature and its powers with the judiciary and its powers. So individual arms cannot and should not be compared without taking into account their powers and the procedure of invoking them.

Thus, though it seems that the Doctrine of Basic Structure can over-ride that of the IX schedule, it cannot be invoked unless the laws included in the IX schedule are challenged in the court of law. Supreme Court invented a powerful instrument for itself, but it cannot act on its own accord. It cannot take suo motu actions. It's extra-ordinary powers can be invoked only by the citizens of India, who are sovereign. One can therefor say that it is the sovereignty of People of India that prevails, neither the Basic Structure nor the IX schedule. In conclusion it can be said that the instrumental nature of Basic Structure and IX schedule also reinforces the instrumentality of their creators.

The research for this post helped me sort out my own thoughts on Basic Structure Doctrine and the IX Schedule among many other things to a certain extent. Another discussion on these two concepts about their sui generis nature will hopefully take care of the rest. Until then I conclude this discussion here and hope to be able to move on to a new topic in the next post.

Federalism and India

Federalism, I admit, would not have been my first choice for the opening post. Anybody who has studied the Constitution and its 60 years of working would agree that there is no dearth of current or chronic constitutional issues to choose from, be it the conflict between fundamental rights and directive principles of state policy, the IX schedule, Judicial Activism, so on and so forth, which incidentally also embody sui generis constitutional deadlocks of Indian Polity (a topic which we will reserve for a later post).

Nevertheless, as has been mentioned in the description of this blog, there were other considerations that affected the choice of topic and federalism won (pun unintended). Having settled on the topic a background research on the origin and evolution of federalism and its implementations in other more federal countries (which I concede was like opening the pandora's box - there's an entire journal of Oxford Press devoted only to federalism) seemed inevitable. However on a more cheerful note, several vague themes started materialising from these comparisons. Discussions on constitution can become fairly technical and a discussion on topics like federalism especially more so. There was a danger of it veering off into technicalilities (a more appropriate word would be 'tangents') of federal and unitary features and their antagonism, but for the emergence of the aforementioned themes. What follows is an attempt to expand them into something more concrete, though hopefully not too technical.

1. Dysfunctions of Imposition of Federal structure on the Westminster Model
There is a fundamental difference between the federal structures of US and Switzerland on one hand and India and Canada on the other, which has nothing to do with their operational features. The former experienced a natural evolution as part of evolution of their political systems, while the latter were surgical implantations on the base of the pre-existing Parliamentary systems of government. Consequencially, the dysfunctions that ensued were completely unique and will neither find a precedent nor a solution in the federal structures of the US or Switzerland.

The office of Governor has been the most controversial in this regard. In spite of being the ceremonial head of a state (like the monarch in UK), he works during the pleasure of the President (who has to work with the aid and advice of his Council of Ministers), in turn making him responsible to the Union Government. His power of discretion and his appointment (and NOT election) only further strengthen our case.

Another feature of Westminster system that tends to work against federalism is the overlap between the political executive and the legislative arm of the government. This overlap combined with the limited powers of Rajyasabha and the unequal representation given to different states completely punctures the inherent but not very apparent protection that presidential system provides to federalism.

2. Federalism - A Dynamic Equilibrium
Constitutional experts have made several attempts at trying to fit the Indian form of federalism into federalism's textbook definitions, with terms like Co-operative Federalism (Granville Austin) or Quasi-federalism (K.C.Wheare). For an amateur like me, Dr.Ambedkar's explanation that "Indian political system is both unitary as well as federal according to the requirements of time and circumstances" appears far more plausible.

[1] tends to concur with Dr.Ambedkar's viewpoint that federalism is an ongoing process of achieving a dynamic equilibrium between unitary and federal features. The catch here is that the process of clinching the equilibrium, and a dynamic one at that, needs a more fluid (amendable) constitution. Indian Constitution falls in the category of rigid constitutions and far more importantly, the constituent states can neither initiate the process of amendment nor are they required to be consulted on most of the occasions.

As the constitution does not provide any explicit means to the states to participate in the process or rather more precisely does not even recognise their locus standi in the process, progressive use of extra-constitutional means has become apparent over years. Rise of regional political parties that arm-twist the central government in this era of coalition politics, rising enmity and competition between states are indications that India is in a dire need of decentralisation that will at the very least provide some constitutional and more explicit means to the states to demand for and co-operate with the Union Government to reach this dynamic equilibrium.

3. Need for federalism and the continuum of federation-union
One of the most confusing outcomes of the comparisons between Indian and American federalism was the very need for it. Despite being traditionally accustomed to unitary and centralised form of Political structures the framers of the Indian Constitution introduced several federal features in it. Following can be said to be the characteristics that can render federal form of government more desirable than a unitary system
i. Vast geographical expanse
ii. linguistic, cultural, religious diversity
iii. regional inequalities among states
Indian example satisfies all three conditions. India is a very large nation, with a state-wise division largely based along linguistic lines and geographical proximity.

US on the other hand has a far more homogenous population. Lines of Linguistic, cultural divisions do not coincide with those of geographical origin (for the obvious reason that these cultures were imported into America and as such its geography had no implication on them). This is corroborated by the fact that tendency of balkanization is non-existant in US. Consequently the confusion as to why the US should have developed such a rigid federal structure, when decentralisation would have been sufficient to tackle the geographical vastness.

If we plot Indian and American forms of federalism on a continuum with a true federation at one end and a true union at the other, the US is closer to the federal end than India inspite of India having more ideal circumstances for a federal structure. The reason for this is the direction of movement along this continuum and the initial inadvertent exclusion of a point, which is farther away from the unitary system than the federal one. The current position of the US on this continuum should be considered not in isolation but as the consequence of its movement (flow and not stock) from a Confederate structure towards a federal structure. Thus, albeit less unitary than India, US has progressively become more unitary than, when it began as a nation state in the 18th century. The ideological divisions between the two political parties in US, the Republicans and the Democrats substantiates this claim. While Democrats want a more centralised polity, the Republicans prefer a federal structure. On the other hand starting from a purely unitary form of government India has become more federal than it was in the past, and by the looks of it the movement will continue in responce to the changing circumstances.

With these three themes my knowledge on federalism stands exhausted. When I started background reading for this post the aim was to be able to write intelligibly on federalism and its implications on Indian political system. In the process I also seem to have satisfied my penchant for theorising. I admit I took a mostly descriptive approach in spite of being a critic of Behaviouralism. But a prescriptive approach would have taken us to the most commonly discussed topics on federalism, which I chose to avoid for the obvious reason that with my limited knowledge in this field I would have very less to offer on things that have already been discussed so extensively in academic books (and journals too, apparently). To conclude this post and defer any further discussion on federalism to a future revisit, I would like to quote Alexander Pope here (which would render the entire discussion moot)

"for forms of Government let the fools contest, what is best administered is best"