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India’s Nepal policy after Prachanda’s elevation to Prime Minister

India’s policy towards Nepal should be viewed as a friend and trusting neighbour rather than a bully

By Guru Aiyar (@guruaiyar)

Mr Pushpa Kamal Dahal aka Prachanda’s ascent to being the Prime Minister of Nepal on August 3 has come at an opportune time for India. Unveiling ‘Neighbourhood first’ policy in 2014, Prime Minister Narendra Modi broke through the tradition when he invited the heads of state of all bordering countries for his swearing in ceremony. The case of Prachanda is unique in the sense that he has had a blow hot-blow cold relationship with India in the past. In that sinusoidal curve of blow cold in the latest phase, it was in all probability that India catalysed his ascendancy, miffed as it was with his predecessor K.P. Sharma Oli.

If Monroe doctrine is the bible to international relations, then India’s moves with Nepal do not fit into this framework at all. Put simply, Monroe doctrine dictated to the European powers in the early part of 19th century that the USA would brook no interference in its politics and no further colonisation could take place. This was one of the factors that helped the US emerge as a hegemon in the 20th century. A landlocked country like Nepal situated in the northeastern part of India and sharing a long 1850 Km border with India should in all probability be a client or a satellite state of India.

India for its part has been blamed by Nepal for being too overbearing. Consider this—during the devastating Nepal earthquake in May 2015, in spite of $1 billion help and the speed with which it was rendered, India was left red faced when it reminded Nepal about this during Nepal’s new constitution. India’s response of advising Nepal to address the concerns of all by which it meant Madhesis (people in the southern plains of Nepal) irked Nepal to no end. Nepal accused India of interfering in its affairs and nonchalantly went ahead and enforced the constitution. India retaliated by blockading Nepal that resulted in critical supplies being denied, chief among them being diesel.

Meanwhile, the then PM of Nepal, K.P.Sharma Oli was consistently battling his opponents as his own position was getting weakened. The main charge against him by Prachanda was his inability to give political stability.  Prachanda, who was the PM from 2006, had to step down in 2008 due to his differences with his army chief. He blamed India for this. The wheel has now come full circle. Prachanda has become the PM courting India’s help. The charge that India has acted like a big brother trying to meddle in Nepal’s domestic politics is not without substance. In 1989, India imposed economic sanctions on Nepal for importing military equipment from China. Nepal has not forgotten this.

As a result of feeling dominated, Nepal does what a weak power normally will do—seek a stronger power’s help, which in this case is China. Nepal feels that by doing this, it can keep India in check. Now, it is for India to get its Nepal policy back on track after some misses in the recent past. Assistance in the form of infrastructure building will go a long way in assuaging Nepalese. The actions must be seen in the form of friendly help rather than a big bully. Only this would help cement India’s Monroe doctrine.

Guru Aiyar is Research Fellow with Takshashila Institution and tweets @guruaiyar

Featured Image – Stars over Everest 2 by Sam Hawley licensed from Creativecommons 

 

 

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Interpreting Section 124 (a) in the context of JNU students’ protest

The history of prosecution success of sedition law in India has been rather mixed and its application in the case of JNU students too raises uncomfortable questions

The arrest of seven students of JNU and its president on February 10 for allegedly shouting anti-India slogans under section 124 (a) has sparked a debate whether this section is needed in a modern democratic society. The constitution of India does not define the word sedition.  Section 124 (a) of the Indian Penal Code(IPC) defines the defines the offence of ‘Sedition’ as below:

Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the government established by law in India shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.”

The sedition law is a colonial hangover (like many other archaic laws). Interestingly, it is linked to the Wahhabi movement in India. Although the IPC was brought into force in 1860 (after the bloody 1857 revolt or the first war of independence), this section was introduced only in 1870. Reason being that our colonial masters were drawing their lessons after fighting the Wahhabi rebels. The movement was ruthlessly put down by the then British government.

During the freedom struggle of India, the British Raj used this law against many freedom fighters, notable among them being Annie Besant, Bal Gangadhar Tilak, and Mahatma Gandhi. This in no way condones the allegedly anti-national slogans raised by the JNU students, one of them being  desh ki barbadi (destruction of the country) and if proven, action needs to be taken.  At the time of writing, the case is still under investigation by the Delhi Police.

The successful prosecution under this section has been very patchy in independent India. Some of the personalities against whom this section was applied but could not be prosecuted are Maneka Gandhi, Arundhati Roy, cartoonist Aseem Trivedi, and Binayak Sen. In a well known case, 67 Kashmiri students were booked under this act by the UP government in 2014 when they cheered for Pakistan in an Asia Cup match against India. Again, this could be applied subjectively. If in a match between India vs Australia, you cheer for Australia, it may not be termed sedition because the relations between the two countries are not by any stretch of imagination, inimical. The charges were dropped later on due to intervention by Omar Abdullah, the then Chief Minister of Kashmir.

The Supreme Court has repeatedly cautioned that even words indicating disaffection against the state will not constitute the offence, unless there is a call for violence or a pernicious tendency to create public disorder. In this specific case, reportedly the JNU students union had even dissociated itself from the views of the group of students who had organised the ill conceived anniversary of Afzal Guru’s hanging.

Even other political parties have resorted to use this section selectively at various times. Taking a non-partisan approach, the time has come to genuinely debate whether we need this, almost 70 years after independence.

 

Guru Aiyar is a Research Scholar with Takshashila Institution and tweets @guruaiyar.

Featured Image: Really old law books by umjanedoan, licensed from creativecommons.org

 

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A Socialist Justification for Market Pricing

As a socialist, welfare State, India needs to obtain the best price for distributing public property like roads

 

Car Parking

The average Indian is extremely reluctant to pay for parking. He will prefer parking for free on public roads rather than pay for a spot in a parking lot or mall, even if this involves the inconvenience of parking much further away, and navigating poorly lit and constructed pavements. It is a failure of the State that they are allowed to do this. Roads are public property or part of the public wealth and as such, are meant for the use and enjoyment of all, not just those who can afford their own private transport. There are many reasons to levy a fee on parking – as is the practice in many developed countries – some economic and others moral. While the one with the most popular appeal might be to reduce congestion on roads, the most important is that it is the constitutionally mandated duty of the State to do so. Article 39 of the Constitution of India (found in Part IV: Directive Principles of State Policy) declares that the State shall direct its policy towards securing:

(b) that the ownership and control of the material resources of the community are so distributed as best to subserve the common good;

(c) that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment;

 The current free parking system clearly violates these two provisions as the failure to distribute the material resource (roads) for the common good has resulted in the concentration of wealth (with private car owners) to the common detriment (traffic congestion). However, Article 37 also states that even though the Directive Principles are “fundamental to governance” and are the “duty of the State to apply”, they are not enforceable by courts. But this issue has been circumnavigated by the Courts in cases questioning the validity of public tenders for material resources.

In Ram And Shyam Company vs State Of Haryana And Ors, the Supreme Court held that because India is empowered to be a “Sovereign Socialist Secular Democratic Republic” by the Constitution, the property of the State is “socialist property” or community property and that every citizen has a vital interest in its effective use and legitimate disposal. The Court clearly differentiates between private property and public property and holds that India’s status as a welfare State means that the latter must be dealt with differently for the following reasons:

Public Property is held in trust

Owners of private property have complete freedom in how to dispose their property as long as they remain within the law. They may gift the property or sell it at a fraction of its full value if they so wish to. But the Court held that a “welfare State as the owner of the public property has no such freedom while disposing of the public property. A welfare State exists for the largest good of the largest number, more so when it proclaims to be a socialist State dedicated to the eradication of poverty…. public property has to be dealt with for public purpose and in public interest” It went on to argue that because the State is merely holding public property in trust for the benefit of the community it must ensure that its disposal is free of any favouritism or untowardness. The Court quoted from one of its previous cases, Kasturi Lal Lakshmi Reddy v. State of Jammu & Kashmir and Anr where it had held that “the Government cannot act in a manner which would benefit a private party at the cost of the State; such an action would be both unreasonable and contrary to public interest.”

There are already a number of judgments limiting the arbitrariness of government actions. When they are read together with the statements delivered by the Supreme Court in the Ram and Shyam case, they essentially make the provisions of Article 39 enforceable in Indian Courts. While the Court may have substituted “material resources” and “common good/detriment” with “public property” and “public interest”, the intention remains unchanged; the State must act for the largest good of the largest number, and must do so in a fair manner.

Disposal of Public Property should be done at Market Price

The Court also interpreted the phrase “public purpose” as a validation of market pricing for public property. It held that if public property was disposed of at the highest possible price, the State would be “able to expand its beneficial activities by the availability of larger funds”. As such, its intention must always be “to obtain the best available price while disposing of its property.” At this point, readers will probably be wondering how this reconciles with the Indian government’s perennial preference for subsidies as a welfare mechanism. The Court did, in fact, take this into account and held that “socialist property may be disposed at a price lower than the market price or even for a token price to achieve some defined constitutionally recognised public purpose, one such being to achieve the goals set out in Part IV of the Constitution.” But even this limitation has the following proviso: “where disposal is for augmentation of revenue and nothing else, the State is under an obligation to secure the best market price available in a market economy”

It has already been established that the “constitutionally recognised purpose” under the Directive Principles, if anything, requires that parking on public property should be charged at the market price. The current framework allows the rich to enjoy public wealth at the expense of those less privileged. Even a relatively small parking charge would go a long way in rectifying this situation. Take Bangalore for example, instituting a simple parking fee of Rs. 7 per hour could yield as much as Rs. 4 lakh per hour for the State exchequer. Such revenue would help finance urban infrastructure projects and result in immediate benefits for payees of the fee.

As India continues to grow and more people migrate to cities, it is imperative that the government gets its act together and charge urban space at a premium. A fear of the negative repercussions from the rich and privileged is insufficient reason for the State to shy away from instituting parking fees. The Constitution requires it, the Courts expect it and the people need it; the onus of establishing is now on the government.

Madhav Chandavarkar is a Research Associate with Takshashila Institution and can be found on Twitter on his handle @MadChap88.

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ಭಾರತದ ಸಂವಿಧಾನ ಹಾಗು ಸಾಮಾಜಿಕ ಕ್ರಾಂತಿ

ಜನವರಿ ೨೬, ೧೯೫೦ ರಂದು ಸ್ವತಂತ್ರ ಭಾರತದ ಸಂವಿಧಾನ ಜಾರಿಗೆ ಬಂದಿತು. ಸಂವಿಧಾನದ ಅನೇಕ ಗುಣಗಳ ಬಗ್ಗೆ  ನಾವು ಕೇಳಿದ್ದೇವೆ ಆದರೆ ಸಂವಿಧಾನದ ರಚನಕಾರರು ಸಂವಿಧಾನದ ಮೂಲಕ ಸಾಮಾಜಿಕ ಕ್ರಾಂತಿಯನ್ನು ತರಲು ಹೊರಟ್ಟಿದ್ದರು, ಇಂದಿಗೂ ಇದೊಂದು ಅದ್ವಿತೀಯ ಪ್ರಯೋಗ.  ‘ಕ್ರಾಂತಿ’ ಹಾಗು ‘ಸಂವಿಧಾನ’ವೆಂಬ ಪದಗಳು ಒಂದು ತರಹದ ವಿರೋಧಾಭಾಸವನ್ನು ಕಲ್ಪಿಸುತ್ತವೆ. ಕ್ರಾಂತಿಯೆಂದೊಡನೆ ನಮ್ಮ ಮನಸ್ಸಿನಲ್ಲಿ ಘರ್ಷಣೆ, ಪ್ರತಿಭಟನೆ ಇತ್ಯಾದಿ ಚಿತ್ರಗಳು ಬಿಂಬಿತವಾಗುತ್ತದೆ . ಸಂವಿಧಾನವೆಂದಾಗ ವಿಚಾರ-ವಿನಿಮಯ, ವಿವೇಚನೆ ಈ ತರಹದ ಮೃದು ಪ್ರವೃತ್ತಿಗಳ  ಕಲ್ಪನೆ ಬರುತ್ತದೆ.  ಆದರೆ ಈ ಬಗೆಯ ಸಾಂವಿಧಾನಿಕ ಕ್ರಾಂತಿಯೊಂದನ್ನು ತರಲು ಯತ್ನಿಸಿವುದೇ  ನಮ್ಮ ಸಂವಿಧಾನದ ಅನನ್ಯ ಲಕ್ಷಣವಾಗಿದೆ. ಸಂವಿಧಾನಕರ್ತರು  ಕ್ರಾಂತಿಯನ್ನು  ಆರ್ಥಿಕ ಹಾಗು ಸಮಾಜೋದ್ಧಾರದ  ಮೂಲಕ ತರಲು ಯತ್ನಿಸಿದರು. ಈ ಲೇಖನವು ಸಮಾಜೋದ್ಧಾರದ ಮೂಲಕ ಕ್ರಾಂತಿಯನ್ನು ತರುವ ಪ್ರಯತ್ನದ ಬಗ್ಗೆ ಹೇಳಲು ಹೊರಟಿದೆ.

ಭಾರತದಲ್ಲಿ ಸ್ವಾತಂತ್ರ್ಯ ದೊರಕುವ ಮುನ್ನವೇ ಅನೇಕ ಮಹಾಜನರು ಸಮಾಜ ಸುಧಾರಣೆ ಹಾಗು ಸಮಾಜಕಲ್ಯಾಣದ ಕಡೆ ಒತ್ತು ನೀಡಿದ್ದರು.ಆದರೆ ಸಂವಿಧಾನದ ಮೂಲಕ ರಾಜ್ಯವು (the state)ಸಮಾಜ ಸುಧಾರಣೆಯ ಹೊಣೆಯನ್ನು ಹೊರಲಾರಂಬಿಸಿತು(ಪ್ರಾಯಶಃ ಇದರಿಂದಾಗಿಯೇ ಸ್ವಾತಂತ್ರ್ಯದ ಈಚೆಗೆ ನಾವು ಮಹಾನ್ ಸಮಾಜ ಸುಧಾರಕರನ್ನು ಕಂಡಿಲ್ಲ?). ಈ ತರಹದ ಹೊಣೆ ಹೊರುವುದು ಕೇವಲ ಕಷ್ಟಮಾತ್ರವಲ್ಲ ಇದೊಂದು ಅಪಾಯಕಾರಿಯಾದ ಸಂಗತಿಯೂ ಕೂಡ,ಏಕೆಂದರೆ

  • ಸಾವಿರಾರು ವರ್ಷಗಳಿಂದ  ಅವರವರ  ಚೌಕಟ್ಟಿನಲ್ಲಿ ಬದುಕ್ಕಿದ್ದ  ಜನರಿಗೆ  ಒಂದು  ಸಂವಿಧಾನವು “ಇದು ಹೀಗೆ” “ಅದು ಹಾಗೆ”  ಎಂದು ಹೇಳುವುದನ್ನು ಸ್ವೀಕರಿಸುವುದು ಕಷ್ಟವಾಗಬಹುದಿತ್ತು. ಅದರಲ್ಲೂ ಜಾತಿ, ಮತ ಇತ್ಯಾದಿ ವಸ್ತುವಿಷಯಗಳ ಬಗ್ಗೆ ಸಂವಿಧಾನದ ನಿರ್ದೇಶತ್ವವನ್ನು  ಸ್ವಿಕಾರ ಮಾಡುವುದು  ಇನ್ನೂ ದೊಡ್ಡ ಸವಾಲು. ಇಂದಿಗೂ ಈ ವಿಷಯಗಳ ಬಗ್ಗೆ ಚರ್ಚೆ ನಡೆಯುತ್ತಲೇ ಇವೆ, ಸವಾಲುಗಳನ್ನು ನಾವು ಒಂದಲ್ಲ ಒಂದು ರೀತಿಯಲ್ಲಿ ಎದುರಿಸುತ್ತಲೇ ಇದ್ದೇವೆ.
  • ಒಂದು ಅಂಶದ ಬಗ್ಗೆ ಅಸ್ವೀಕೃತಿ ಇದ್ದಮೇಲೆ, ಸಂವಿಧಾನದ ಬೇರೊಂದು ಅಂಶದಮೇಲೆ ಪ್ರಶ್ನೆ ಬರುವುದೂ  ಸಹಜವೆ. ಹೀಗಿದ್ದಾಗ ಇಡೀ  ಸಂವಿಧಾನವೇ ಅಸ್ವೀಕಾರವಾಗುವ ಸಾಧ್ಯತೆ ಇರುತ್ತದೆ. ಖಾಪ್ ಪಂಚಾಯತದ ಸದಸ್ಯರು ಹೀಗೆಯೇ ಸಂವಿಧಾನವನ್ನು ಪ್ರಶ್ನಿಸುತ್ತಾರೆ, ಅವರ ಮಾಪದಂಡಕ್ಕೆ  ತಕ್ಕಂತೆ ಅವರ ಜನರು ಬದುಕಬೇಕೆಂದು ಅಪೇಕ್ಷಿಸುತ್ತಾರೆ, ಹೀಗಿರುವ  ಹಕ್ಕು ಅವರಿಗೆ ಇದೆಯೇ? ಪ್ರಾಯಶಃ ಇದೆ, ಆದರೆ ಅವರು ಅವರ ನಿಯಮ   ಪಾಲನೆಯಾಗಬೇಕೆಂದು ಅಪೇಕ್ಷಿಸುವುದಲ್ಲದೆ ಅದನ್ನ ಪಾಲಿಸದಿರುವವರಿಗೆ (ಹಾಗು ಅವರ ಅಧಿಕಾರವನ್ನು ಸ್ವೀಕರಿಸದಿರುವವರಿಗೆ) ಕ್ರೂರ ದಂಡವನ್ನು ನೀಡುತ್ತಾರೆ.
  • ಅಮೇರಿಕಾ, ಬ್ರಿಟನ್ ನಂತಹ ದೇಶದ ಸಂವಿಧಾನವು ಕೇವಲ ಕಾನೂನಿನ ಚೌಕಟ್ಟಿನ ನಕ್ಷೆಯನ್ನು ನೀಡಿ ಜನರ ಸ್ವಾತಂತ್ರ್ಯವನ್ನು ಕಾಪಾಡುತ್ತದೆ.  ಇದೇ ಒಂದು ಮಹತ್ತರವಾದ ಕರ್ತವ್ಯ, ಇದರೊಡನೆ  ಸಮಾಜ ಸುಧಾರಣೆಯೂ ಸೇರಿಸಿದರೆ  ಕರ್ತವ್ಯದ ಮೇರೆ ಇನ್ನಷ್ಟು ಬೆಳೆಯುತ್ತದೆ.  ಈ ಜವಾಬ್ದಾರಿಯನ್ನು  ಪೂರೈಸಲು  ಸಾಧ್ಯವಾಗದಿದ್ದಲ್ಲಿ ರಾಜ್ಯದ ಮೇಲೆ ಬೇಜವಾಬ್ದಾರಿ ತನದ ಆರೋಪ ಹೂಡುವ ಸಾಧ್ಯತೆಯೂ  ಹೆಚ್ಚಾಗುತ್ತದೆ.  ಹೀಗಾದಲ್ಲಿ ಸಂವಿಧಾನದ ನ್ಯಾಯಸಮ್ಮತತೆ (legitimacy), ಸ್ವೀಕೃತಿ, ಹಾಗು ಅಸ್ತಿತ್ವವೇ ಪ್ರಶ್ನೆಗೊಳಗಾಗುತ್ತದೆ.

ಒಟ್ಟಿನಲ್ಲಿ ಸುಮಾರು ೬೫ ವರ್ಷದ ಇತಿಹಾಸವನ್ನು ನಾವು ಗಮನಿಸಿದರೆ, ಸಾಂವಿಧಾನಿಕ  ಕ್ರಾಂತಿಯನ್ನು ಸಂಪೂರ್ಣವಾಗಿ ಗಳಿಸಿಲ್ಲವಾದರೂ ತಕ್ಕ ಮಟ್ಟಿಗೆ ಯಶಸ್ಸನ್ನೇ ಪಡೆದಿದೆ. ಮೂಲಭೂತ ಹಕ್ಕುಗಳು ಎಲ್ಲಾ  ಪ್ರಜೆಗಳಿಗೂ ಇದೆ. ಇದಕ್ಕೆ ವಿರುದ್ದವಾಗಿ   ಮಾವೊವಾದ, ಖಾಪ್ ಪಂಚಾಯತ್ ತರಹದ ದುರಾದೃಷ್ಟಕರವಾದ ಪ್ರತಿಭಟನೆಗಳನ್ನೂ ನಾವು ಕಂಡಿರುವೆವು.  ಈ ಸಂಧರ್ಭದಲ್ಲಿ ನಾವು ಸಂವಿಧಾನ ಶಿಲ್ಪಿ ಡಾ।ಭೀಮ್ ರಾವ್ ಅಂಬೇಡ್ಕರ್ ಅವರ ಅವಿಸ್ಮರಣೀಯ ಮಾತುಗಳನ್ನ ಸ್ಮರಿಸಬೇಕು.  “(…)however good a Constitution may be, it is sure to turn out bad because those who are called to work it, happen to be a bad lot. However bad a Constitution may be, it may turn out to be good if those who are called to work it, happen to be a good lot. The working of a Constitution does not depend wholly upon the nature of the Constitution. The Constitution can provide only the organs of State such as the Legislature, the Executive and the Judiciary. The factors on which the working of those organs of the State depend are the people and the political parties they will set up as their instruments to carry out their wishes and their politics. Who can say how the people of India and their parties will behave? Will they uphold constitutional methods of achieving their purposes or will they prefer revolutionary methods of achieving them? If they adopt the revolutionary methods, however good the Constitution may be, it requires no prophet to say that it will fail. It is, therefore, futile to pass any judgement upon the Constitution without reference to the part which the people and their parties are likely to play” ಭಾಷಾಂತರ ಗೊಳಿಸಿದರೆ ಎಲ್ಲಿ ಅದರ ಸ್ವಾರಸ್ಯವು ಕಳೆದುಹೋಗುವುದೋ ಎಂಬ ಭಯದಿಂದ ಆಂಗ್ಲಭಾಷೆಯಲ್ಲೇ ಆಯ್ದ ಭಾಗವನ್ನು ಇಲ್ಲಿ ನೀಡಿರುವೆನು.

 

 

 

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सामाजिक क्रांति और भारतीय संविधान : एक अद्वितीय प्रयोग

असंख्य सामाजिक कुरीतियों पर अंकुश लगाने की ज़िम्मेदारी संविधान के लिए एक कठोर परीक्षा है

– प्रणय कोटस्थाने

आम तौर पर ‘क्रांति’ और ‘संविधान’ को विरोधार्थी सन्दर्भों में समझा जाता है । क्रन्तिकारी बदलाव के बारे में सोचते हुए अक़्सर हमारे मन में आंदोलन, जोश-ख़रोश, हिंसा और विशाल जनसमूहों के चित्र सामने आ जाते हैं । वहीं संवैधानिक बदलाव के साथ हम अक़्सर समझौते, धीमें बदलाव, विचार-विमर्श वगैरह जैसी मंद क्रियाएँ जोड़ देते हैं । केवल भारतीय संविधान ही एक ऐसा प्रयोग है जो इन दोनों भिन्न धारणाओं को व्यापक तौर पर साथ ला सका है ।

संविधान को सामजिक बदलाव का मुख्य एजेंट बनाना न केवल एक साहसिक प्रयोग था, यह एक अद्वितीय कदम भी था । साहसिक इसलिए क्यूंकि १९४७ तक भारतीय समाज नाना प्रकार की कुरीतियों की वजह से खोखला हो चूका था । जातिवाद, साम्प्रदायिकता, भूखमरी और गरीबी ने समाज को कमज़ोर बना दिया था । ऐसे वक़्त पर हमारे संविधान के रचयिताओं ने इन समस्याओं का ख़ात्मा करने का बीड़ा उठाया । साथ ही यह कदम अद्वितीय इसलिए था क्यूंकि उस वक़्त तक किसी भी संविधान ने क्रान्ति लाने का जिम्मा नहीं उठाया था । उदराहणार्थ , अगर हम अमरीकी संविधान पर नज़र डाले तो पता चलता है कि वह एक कन्सर्वेटिव रचना है । उसमें  केवल उस समय के मानदंडों की रक्षा करने का भाव है ।

संविधान रचयिताओं की यह असाधारण पहल ज़रूरी भी थी और शायद सही भी थी , किन्तु इस प्रयोग के कुछ साइड इफेक्ट्स भी हुए जो आज तक चले आ रहें हैं और जिन्हें समझना ज्ञानवर्धक होगा ।

एक, इस क्रांतिकारी बदलाव की कोशिश ने पूरे संविधान की वैधता पर सवालिया निशान लगा दिए । जो लोग सदियों से जात-पात या दहेजप्रथा जैसी दक़ियानूसी बातों में विश्वास रखते थे , वे यह पूछने लगे कि चंद लोगों के कल लिखे हुए कुछ  पन्नें आखिर किस रूप से प्राचीन रीति रिवाजों से बेहतर हैं ? ऐसा सोचने वाले आज भी मौजूद हैं खाप पंचायतों के रूप में जो गोत्र और जाति जैसी मनघड़ंत बातों पर आँख मूँद कर विश्वास रखने पर आमादा हैं । और जब कुछ लोग संविधान के एक क्षेत्र को नकारने लगें तो इस अवैधता का डर संविधान के अन्य क्षेत्रों को भी सताने लगा । उदाहरणार्थ, जो संविधान की छुआछूत उन्मूलन के सविचार के विरोध में थे, वह संविधान के धर्मनिरपेक्ष प्रावधानों को भी धिक्कारने लगे ।

दूसरा, सामाजिक परिवर्तन का जिम्मा उठाने की वजह से भारत गणराज्य का काम कई गुना बढ़ गया । कौटिल्य अर्थशास्त्र में कहा गया है कि राज्य के अभाव में मत्स्यन्याय की अवस्था होती है जिसमें व्यक्ति अपने बल के आधार पर अपने से कमज़ोर व्यक्तियों के साथ जैसा चाहे व्यवहार कर सकता है । अतः राज्य का स्थापन मत्स्यन्याय की स्थिति का अंत करने के लिए हुआ। चाहे राजतंत्र हो या लोकतंत्र, राज्य की सबसे बड़ी ज़िम्मेदारी है हर व्यक्ति की स्वतंत्रता की रक्षा करना, चाहे वह कितना ही कमज़ोर क्यों न हो । इस धारणा को rule of law कहा जाता है और हम अपनी ओर ही देखें तो स्पष्ट हो जाएगा कि हमारा गणराज्य इस मुख्य उद्देश्य को पूरा नहीं कर पाया है । ऐसी नाज़ुक अवस्था में भारतीय गणराज्य ने सामाजिक परिवर्तन का एक और महाकार्य अपने कन्धों पर ले लिया जिससे राज्य की कठिनाईयाँ और बढ़ गयी । उदाहरणार्थ, एक पुलिस अफसर का कार्य सिर्फ कानून की रक्षा करने तक सीमित नहीं है – उसे यह भी सुनिश्चित करना है कि दहेज, छुआछुत जैसे प्रकरण समाज में ना हो पाए ।

इन दोनों नकारात्मक पहलुओं का तात्पर्य यह नहीं कि हमें अपने संवैधानिक मार्ग त्याग दे, बल्कि हमें इस बोल्ड प्रयोग को सफल बनाने की और दृढ़ता से मेहनत करनी चाहिए । शायद हमारा गणराज्य निर्दोष नहीं , लेकिन यह हमारा सर्वश्रेष्ठ विकल्प हैं । इसके सारे पहलुओं पर रोशनी डालने से हम इसको बेहतर समझ पाएंगे । आख़िर इसकी सफलता में ही हम सबकी कामयाबी है ।

Pranay Kotasthane is a Policy Analyst at The Takshashila Institution. He is on twitter at @pranaykotas.

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What’s in a name?

By Madhav Chandavarkar

It is perhaps not commonly known that the majority of the sign boards of shops and establishments in Bangalore and indeed, Karnataka were illegal under Rule 24-A of the Karnataka Shops and Establishments Rules, 1963 (“the Rules”). Rule 24-A required all establishments to display their name more prominently in Kannada than in English. The Rules were originally drafted by the State Government to enforce the provisions of the Karnataka Shops and Establishments Act, 1961 (“the Act”), a legislation enacted to create a unified law protecting the rights of workers in Karnataka.

If the existence of Rule 24-A was not common knowledge it is definitely less known that as of June 5, 2009, Rule 24-A and the corresponding penalty for any non-compliance with its provisions under Rule 26 (which also provides the penalties for all other rules) are no longer applicable. These two Rules were struck down as unconstitutional by the High Court of Karnataka in Vodafone Essar South Ltd. vs. State of Karnataka & Ors., on the grounds that they did nothing to protect workers, which was the original purpose of enforcing the Act.  

Rules 24-A and 26 in their current form were inserted into the Rules by the Karnataka Shops and Establishment (Amendment) Rules, 2008 with the aim of promoting the Kannada language. The amendment was suggested by the Kannada Development Authority  after agitations by pro-Kannada activist groups such as the Karnataka Rakshana Vedike. Rule 24-A required all name boards to be in Kannada and if a version in another language was to be used, that version would have had to have been “below the Kannada version” and it further stated that the “Kannada version shall be written more predominantly by providing more space than for other languages”.

Under Rule 26, there was a separate penalty for a contravention of Rule 24-A which was vastly higher than the penalty for a contravention of any of the other rules. A first offence would have attracted a fine not more than ten thousand rupees, while the penalty for a contravention of any of the other rules couldn’t (and still can’t) exceed one thousand rupees. Furthermore, the penalty for continued offences of Rule 24-A contained no such prescription on an upper limit; Rule 26 only stated that the fine could not be below ten thousand rupees . This is normally not the case in penal provisions as it empowers the State to levy whatever fine they wish to, which can lead to an arbitrary levy of unreasonable and crippling fines.

Within two days from the notification of the amendment in the Official Gazette, various departments in the Karnataka government were directed by the Labour Commissioner to ensure almost immediate compliance with the new provisions of the Rules. Notices were then served to Vodafone by the Senior Labour Inspector requesting them to show cause as to why the penalties under Rule 26 should not be levied against them.

Vodafone responded by challenging the Rules in a Writ Petition filed in the High Court of Karnataka, largely because the operation to change the sign boards in all their stores across the State would have cost a vast amount of money. The principle argument advanced in Court by Vodafone was that Rule 24-A and 26 were unconstitutional as they exceeded the mandate of the original Act to ensure the safety and conditions of employment for workers, and could thus be declared ultra vires (a legal doctrine that allows actions done outside the scope of the legal authority to be declared as void). Vodafone argued that these Rules interfered with their right to conduct business under Article 19 by denying them the use of their recognised Trademark.

The State government countered this argument by stating that the powers of delegated legislation conferred by the Act allowed the Government to draft Rules on anything that is ‘incidental’ to enforcing the Act and as such, Rule 24-A and 26 were  not ultra vires. The State Government also contended that similar provisions existed in corresponding legislations in Tamil Nadu and Maharashtra and they had not been challenged and given that Rule 24-A had already been challenged in the Karnataka High Court (in Laxman Omanna Bhamane vs. State of Karnataka & Ors. 2002 Vol. 2 KLJ 208) the writ petition was liable to be dismissed.

The Court rejected the contentions of the State Government, pointing out, amongst other things, that a previous version of Rule 24-A had been challenged in Laxman Omanna and that too under different grounds. The Court ultimately decided that the principal issue to be decided was whether Rule 24-A was “ultra vires as beyond the delegated legislative power”. To answer this the Court first determined the purpose of the Act by examining its pre-amble as well as going into a detailed reading of the provisions of the Act and the Rules, and the penalties for contraventions under both. It came to the conclusion that the sole purpose of the Act was to provide a uniform law to ensure the safety, work conditions and conditions of service for employees in the state.

The Court next went through all the Articles of the Constitution regarding languages and found that there are no provisions allowing for a restriction of language in trade and commerce, and that at best, the Constitution empowers States to only prescribe one or more official languages for use by government agencies. The Court finally cited Supreme Court cases on the scope of delegated legislation wherein the Supreme Court had held that rules can neither widen the purposes of the Acts from which they emerge nor add new or different provisions that were excluded by the original Act itself. Reading these three points together, the Court declared that even though provisions regulating the display of name boards in Kannada may be  “laudable”, the Government did not have the power to pass such rules, and declared Rule 24-A and Rule 26 (insofar as it punished a contravention of Rule 24-A) as ultra-vires.

However, this judgment seems to have fallen under the radar; both the government as well as pro-Kannada agitators seem to be under the assumption that Rule 24-A is still in force. The government appealed the 2009 decision in a Writ Appeal to a larger bench of the High Court, but the Court dismissed the appeal on March 17, 2014. However, ultimately the case is unlikely to have a major practical effect on the ground situation. The likelihood of an establishment displaying a Kannada name board was always determined more by the number of glass panes the manager wishes to keep intact from mob violence than by any zeal for regulatory compliance and this scenario is unlikely to change.

Madhav Chandavarkar is an intern at the Takshashila Institution. His Twitter handle is @MadChaP88

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India’s independent judiciary

A summary of the debate in the Constituent Assembly about the need for a separation of the judiciary.

In December 1948, the Constituent Assembly gathered to discuss the advantages and disadvantages of having a separate executive, legislature and judiciary. The advantages of a Parliamentary democracy were advocated the most strongly, thereby resulting in an interdependent executive and legislature (wherein the executive, or Prime Minister, is decided by the majority in the legislature). However, it was agreed upon to make the complete independence of the judiciary a Directive Principle of State Policy.

There were several reservations towards this amendment also, though –the primary one being the dangers of giving too much power to the judiciary. As T. T. Krishnamachari said, “In trying to give the judiciary an enormous amount of power, a judiciary which may not be controlled by any legislature in any manner except perhaps by the means of ultimate removal, we may perhaps be creating a Frankenstein which would nullify the intentions of the framers of this Constitution.” He also felt that it was too early to appoint such a responsibility on a judiciary whose members had not yet even been fully decided and had not yet shown themselves to be the best people for the job. This, in addition to the high costs of paying salaries of separate lawyers, judges, and executive officers, was why Krishnamachari and B. Das suggested that India make the decision for independent bodies in a year, when it had experience as a nation-state.

However, it was more fervently agreed upon that despite its shortcomings, an independent judiciary was essential for a democratic and accountable government. It was what the Congress had been demanding of the British on principle for years and had never got. An example was related by Dr. Bakshi Tek Chand, of an incident of the Ministry trying to get a Magistrate to stay the proceedings of a criminal court case against an official. This incident brings out how politicians interfered and would continue to interfere with the judiciary if this motion was not passed. In this instance, the High Court expressed its disgust with this attempt by the executive to influence the way they functioned, and today’s judiciary often shares the same sentiment, as we have seen by Chief Justice R. M. Lodha’s reaction to the government refusing to clear Gopal Subramaniam as a Supreme Court judge.

This incident, however, shows clearly that the anxieties of the Assembly Members were not unfounded. The appointment of Supreme Court judges is not the responsibility of the Prime Minister or anyone representing a particular party. However, Gopal Subramaniam’s critical remarks of the Modi government in its early weeks led to his segregation from a list of four Supreme Court Judge candidates, without the knowledge of the rest of the Chief Justices, resulting in his withdrawal from the candidacy. This type of interference of the executive with the judiciary’s functioning is exactly what the Constituent Assembly Members wanted to avoid.

As in most of their debates, the Constituent Assembly showed sharp awareness of both the daunting nature of their task in shaping laws, as well as the nature of the people they were trying to both represent and reform at the same time.The kind of segregation being practiced by the current Centre in appointing judges for the Supreme Court is clearly something the Assembly had the foresight to be wary of. This was the objective of making an independent judiciary a Directive Principle. And, as Shri Loknath Mishra went the extra mile in pointing out, good administration of justice is not just about an independent judiciary – it is about just laws, and laws which are intelligible to the masses, both of which he said India lacked. These conflicts are inherent in this group of people that were too far ahead of their time, and they mirror the conflict embedded in the Constitution, the conflict between representation and reformation.

Apoorva Tadepalli is an intern at the Takshashila Institution.

This article is part of a series of posts on the constituent assembly debates, meant to highlight the various points of views and negotiations that went into the creation of the Indian Constitution. Each post analyses the debates on a particular issue.

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Constituent assembly debate on Directive Principles of State Policy

by Surabhi Rao

Why were directives that were not enforceable included in the Constitution? Do these continue to remain mere ideals without form?

We do not want merely to lay down a mechanism to enable people to come and capture power.  The Constitution also wishes to lay down an ideal before those who would be forming the government.  That ideal is of economic democracy. – B.R. Ambedkar

India is at a point where she has to achieve economic development, to be at par with the rest of the world, and at the same time, ensure that social and economic justice is also achieved in the country. Thus it is relevant to discuss the Directive Principles of State Policy (DPSPs) provided for in the Indian Constitution in Part IV (Articles 36-51) which lay down principles for the achievement of this social and economic justice. The DPSPs along with the Preamble and the Fundamental Rights can be said to be the soul of the Indian Constitution.

The DPSPs are merely guidelines for the establishment of a social order guided by social and economic justice, freedom, and liberty. The Articles include matters relating to right to work, right to education, the uniform civil code, and other principles of good governance that the State must take note of.

The august Constituent Assembly recognised the distinction between government and politics, and principles of good governance, even as far back as the 1940s while drafting the Constitution. Article 37 specifically mentions that DPSPs, though not enforceable through any court of law are “fundamental” to the governance of the country. It is interesting to see why the drafters would include something in the Constitution that is not enforceable.

There were apprehensions even at the time of drafting about how useful the DPSPs would actually be. Prof. K. T. Shah felt that by not making the Directive Principles justiciable, they were making merely pious wishes, and the intention of the Directives would never come into force.

But Dr. B.R. Ambedkar called the DPSPs ‘Instruments of Instructions’.  He referred to them as policies and principles to achieve economic democracy, which is an ever changing concept and is dependent on the times and circumstances, how it is achieved, and it would be wrong to lay down a fixed concept of it. Further, the State would have to answer to the people, and thus these Directive Principles would not be mere pious declarations.

Another reason, scholars say, why the Directive Principles were made unenforceable was because India did not possess the adequate resources to enforce all the DPSPs, and thus, it was left to the future Governments to follow them voluntarily.

Legally speaking, when the issue of the DPSPs has come up before the courts, the courts have stressed upon the importance of them time and again.

They have repeatedly read the DPSPs with the Fundamental Rights. Thus, the right to education mentioned in Article 41 has been held to be a part of Article 21, in turn making it a fundamental right. In a few cases, the Courts have even issued directives to the government to implement the DPSPs.

This leads to the question if this indeed was the intention of the Constitutional framers? If the DPSPs are being enforced by the Courts through Directives, could they still be said to be voluntary?  In today’s context, the implementation of the DPSPs should impose a financial burden on the government, and on the finite resources of the nation. For example, in many states the Right to Education was imposed mandatorily, even though the state lacked the resources leading to the result that the initiative did not succeed.

It is also to be noted that it has been 64 years since the adoption of the Constitution, and the relevance of the implementation of the DPSPs then was not the same as it is now. The ideals of the welfare state cannot be an unfulfilled principle.

Article 41 directs the State to make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want. This Article is an exemplification of social policy and security that every person ought to have. There have been various schemes by the government like the NREGA, integrated rural development schemes that have been enacted for the purpose of social and economic justice. However, the success of these schemes is dismal. The actual benefits derived to the people are marginal. Other initiatives taken like the Public Distribution System (PDS) have also not borne the desired fruits. The right to health under Article 46 has also not received the required attention. But there also exist Articles which exist merely because they have been there since time immemorial. Among these include the State’s duty to protect animal husbandry, and participation of workers in the management of industries.

A review of the DPSPs might be of use to organize, and to segregate them. Priority should be accorded to which Directive Principle is of greater importance. Moreover, the decision of prioritizing these principles should explicitly be decided by the Union and State governments. In 2002, it was recommended by the National Commission on the Working of the Constitution to reword Part IV to “Directive Principles of State Policy and Action”, to ensure that the DPSPs are implemented, and not remain a mere letter of the law.

The main problem with the Directive Principles is that even if were to be justiciable, who would it be enforced against? It cannot be against any individual, or even the State. The NCRWC has recommended the setting up of a body to oversee the schemes and the initiatives undertaken for social and economic welfare.

Making the DPSPs justiciable would result in complete restriction of the government’s freedom to legislate, and it would be a scenario of ‘one size fits all’ which is not what the drafters intended. The driving force behind the DPSPs is public opinion, and the necessity of the measure. Thus, middle ground can be found wherein welfare schemes are introduced voluntarily by the government, but a body set up oversees the successful implementation of these schemes, which ensures greater social and economic justice.

Surabhi Rao is an intern at the Takshashila Institution.

This article is part of a series of posts on the constituent assembly debates, meant to highlight the various points of views and negotiations that went into the creation of the Indian Constitution. Each post analyzes the debates on a particular issue.

Ruchita Sharma, Apoorva Tadepalli and Surabhi Rao are the contributors for this series.

The previous posts are here: Post1Post2, Post3.

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