It is frustrating, being a non-powerful citizen, politically, to watch from the sidelines. You feel as many do of seeing redundant things perpetually continuing. An aspect of this frustration is to watch things play out, with an air of apathy – if only I was at the wheel; the rulers could have avoided this perverse mistake.
The judiciary’s obdurate desire to be an exclusive club, to the reductionist exclusivity of our foreign policy to our western neighbour or the failing and unethical scheme based on which politicians ask for votes, these are three things I felt are rather fitting to be terminated by the next Prime Minister of our country. Systemic as they are, they will produce more problems for our country than the odd badly designed scheme or the well-intention but poorly implemented law. My generation will be the one to bear the brunt of these problems whose roots lie in our recent political history and remain unchanged ever since.
MPLADS Scheme
I asked Dr Shashi Tharoor: “Do you think that the MPLADS Scheme is a good scheme?“. The intention of the question was from a strictly constitutional perspective. I was rather keen on his answer, and sensing, after he went on a litany of his achievements in using that scheme for his constituency, clearly memorised down to a T, that I would not get an opportunity again.
I raised my hand again and interjected – “But, do you think its a good scheme and has it helped in the development of your constituency?” He replied in the affirmative and the recital of achievements started again. Although, His party’s president has the opposite belief.
This scheme, in full called the Member of Parliament’s Local Area Development Scheme, is a mechanism which gives the MP a certain amount of money (Rs. 5 crores at the latest) and says “you know your area best, go develop it“. This includes Rajya Sabha Members who can spend funds anywhere for their elected state, obviously, given their superior knowledge of every nook and cranny. On paper, rather promising, this helps the people who elected the member, sort of similar to a return gift. This scheme, unfortunately, is perpetually underutilised and clearly unconstitutional.
The first question to ask when this was made policy in 1993 was; is this a tacit admission by the Government of their own failures? Can the Government not provide public services and depends, instead, on the good graces of a lawmaker who is not part of the Government? A report to review the Constitution recommended the abolition of the MPLADS. Various committees, scholars, institutions including our favourite constitutional auditor, the CAG, are in agreement here; this scheme is pernicious, additionally, politically to, as many accounts of favouritism arise. Why then, is it still here? Victor Hugo said “There is nothing more powerful than an idea whose time has come“; he clearly never met Indian politicians and their will to mercilessly drag on schemes which cry out for reform or abolition.
The job of a legislator is to make laws, raise issues, deliberate on problems and scrutinize the Government, especially on the amount of money the Government has spent. The scrutineer cannot do the very thing i.e. spend money on the development, that he is supposed to be scrutinising. Contrary to the role of a legislator; it takes an aspect of something the Government must do. The proponents argue: “it helps in ensuring political calculations do not come into play”; that an opposition MP does not get their constituency’s progress hindered merely because of his party symbol.
Interestingly, it seems that MPs, being what they are, might have control, or final say, over the development, however in reality, whatever they recommend is optional in principle. It depends on the District Administrator/the Municipalities or Panchayats’ discretion to implement it plus there is an MPLAD Committee in Parliament. This technicality is why the Supreme Court in 2010 ruled the scheme constitutional. This coupled with the knowledge that most MPs readily do not any research facilities available, institutional or otherwise, to aid or assist them in identifying areas or works that could have the maximum impact on their voters, makes the clear argument for its removal. If it is already optional and contingent upon local Government; the sanction of the scheme, with a high chance of wastage (due to its non-lapsable nature) and non-utilisation of Rs. 1,734.43 in the present Lok Sabha, seems redundant.
Additional reasoning is political divisiveness that this scheme potentially entails. Of course, the usual corruption argument sticks to the scheme that it promotes the contractor-politician-bureaucrat nexus (which the CAG pointed out), but also, it can lead to preferential treatment amongst the constituency. Appeasement of a particular caste, religion or any other group identity is a real danger that cannot be stopped, especially since there is no social audit mechanism attached to this scheme. Fissures growing within a constituency due to skewed development can be easily latched onto by a wily politician unsure if this time the electorate was satisfied with his due representation or not.
Corruption-inducing, unconstitutional (in my view), poor data, lack of proper utilisation and non-mandatory- this scheme must go.
Status-Quo On Judicial Appointments
We go to the courts, our revered courts, and the judge gives us a date for the next hearing; repeated so many times, that a certain Hindi film’s simplistic and seemingly cartoonish dialogue, starts to look like an under-exaggeration. The hiring of judges on a faster pace is hailed as a panacea, perhaps not so much considering with newer judges, the cases increase at a faster rate, making the change incremental.
Obviously, I want to see judges appointed faster, but, rather, more importantly, I want to see them institutionally properly undergo checks and balances. “Who Judges The Judges?“: an argument deftly espoused by many in the public sphere, which culminated in the NJAC Act or the 99th Constitutional Amendment being passed.
In terms of judicial delinquents, India’s list is rather high. We have had the Cash-at-Door Scam, Justice CS Karnan’s logic-defying antics, Justice Soumitra Sen: quitting just days before certain impeachment and Justice V Ramaswami’s calls to be impeached by the Supreme Court Bar Association; as is of course the suicide letter by an ex-CM of Arunachal Pradesh accusing the former Chief Justice of India , and of course Dipak Mishra and the medical college scam. The current CJI, who was one of the four in the famous press conference in January 2018, is no better. His confounding and frankly unpalatable response to sexual harassment was to –
a) quote a bank balance of Rs. 6,80,000 as though anyone with that amount is humanly incapable of sexual harassment
b) suo-moto constitute a special bench, headed by himself, melodramatically titled “Re: Matter Of Great Public Importance Touching Upon The Independence Of Judiciary“, denied the charges.
Whatever happens, these issues must be up for scrutiny and intense public scrutiny before they escalate to the level that they do. Coming back to the NJAC, a body which had equal representation, in fact, a slight majority to the judiciary, as well as the legislature. It was struck down as unconstitutional. Since the Second Judges case, the word ‘consultation’ in Article 124 was changed (read: creatively interpreted) to ‘concurrence’. Judges decide who becomes a judge. The US has the consent of the Senate, the UK has the JAC similar to the NJAC. I believe a body, whether it is the erstwhile NJAC or something similar where perhaps, civil society is involved would do a much better job than the clearly faulty and undemocratic Collegium System, which the judges themselves admitted could be made more transparent when they struck down the NJAC.
Are judges superhuman? No! Fallible like the rest of us, but perhaps, thrust a more important duty than most of us: of protecting our rights, adjudicating our disputes and acting as a check on the Government; which is exactly why it needs a better system for themselves. I believe the NJAC should come back. The current Memorandum of Procedure has many flaws, and the Constituent Assembly, more than 60 years ago would have rejected the near-primary of the judiciary. The ever-prescient Dr Ambedkar’s words shed light –
“…..With regard to the question of the concurrence of the Chief Justice, it seems to me that those who advocate that proposition seem to rely implicitly both on the impartiality of the Chief Justice and the soundness of his judgment. I personally feel no doubt that the Chief
Justice is a very eminent, person. But after all the Chief Justice is a man with all the failings, all the sentiments and all the prejudices which we as common people have; and I think, to allow the Chief Justice practically a veto upon the appointment of judges is really to transfer the authority to the Chief Justice which we are not prepared to veto is the President or the Government of the day. I, therefore, think that is also a dangerous proposition”
The fear of the judges of having their independence “usurped” must be quelled by the fact that independence cannot, and should not, exist without accountability. In the NJAC, representation was equal. If the Supreme Court, as brazenly as it does, makes laws (such as the alcohol ban on national highways), rather than interpreting them, or interpreting them as creatively as it does, does not think of itself as crossing the proverbial line of separation of powers, why should the Parliament be accused of something, which it anyway (with equal representation) is not?
I hope vacancies are reduced and I hope the vacancy fillers are vetted better than they are now. It is understandable the lack of trust a judge might have in our politicians, but, to think that that should serve as an eternal cautionary tale against ever ceding legitimate power back to the executive would be folly.
Focusing Excessively on Pakistan
Wrongly so, India’s foreign policy discussion in many circles, particularly in regard to the national security, starts and ends with Pakistan. Of course, our right to defend ourselves is inviolable. No denying that stopping the clear export of terrorism from Pakistan, especially of non-state actors is necessary. Ceasefire violations must be responded in kind, severely. There must be a solution to Kashmir and hopefully, although this could be construed quixotic, stronger economic relations with Pakistan due to shared geography, culture, traditions and language.
The ignorance of China however, especially its muscular foreign policy; its hegemonic desire in the South China Sea; or its ‘debt-entrapment’ led strategy to dominate and ensure vassal states in South Asia as well as poor African countries; its Belt and Road Initiative with Pakistan that India has a good case to make, passes through its sovereignty. And unfortunately, most importantly, it’s encircling of India through access or strategic purchasing of various ports (String of Pearls) in or near the Indian Ocean. India must admit tacitly that economically we might not be as powerful, but, more likely given our long-standing democratic traditions, constitutional push for international peace and respect for other countries’ autonomy to conjure a coalition of countries to stand up to China. Bullies must be stood up to.
The present dispensation did good in audaciously standing up to China in Doklam in 2017. Even there it was 2 countries who were affected by China’s brutish push for building a road on disputed territory, Bhutan and India. It must build on this, but more diplomatically. Another Doklam situation serves no one well, except of course, if China conducts another incursion which would be surprising; subtlety is an art the Chinese are well-versed in.
Economically, it is imperative that China comes nowhere near our ports since we are dependent, among other things, on imported oil which arrives by sea, the Chabhar Port being an example. Another thing we must protect is the rule of law and upholding of basic human rights, by either going to the UNHRC for exposing China’s violations.
The focus on Pakistan and the drumming up of war drums are unnecessary and miss the point about who actually poses the bigger threat. I believe that the focus should shift, especially in discourse from the Government regarding Pakistan who is much more likely to be quelled, especially if there is a strong deterrent in responding to ceasefire violations than China is: an inevitable superpower who is more than happy being a silent aggressor.
Of course, China also holds huge economic potential for us, even more so than the current $70 billion that we trade with them. The point is to not hurt India’s businesses, especially SME’s who import raw materials, but rather to protect our interests, point out violations and pursue trade smartly and reciprocally as much as we can. With China, the problem is more complicated than merely viewing it from a hostile lens as we need to work with it, as we currently are, in establishing a ‘buyer’s block’ to counter the undue power that sellers of oil i.e. OPEC continues to wield.
In contrast, to reiterate, when China tries to claim Arunachal Pradesh and call it “South Tibet” or cosies up with Pakistan and prop it up as a power against us, we need to, akin to a true friend, respond sternly. The Pakistan problem exists, but will get and is getting smaller when compared to the looming shadow of China’s presence on the world stage and subsequently, against us.