Wednesday, August 17, 2011

Anna Hazare and Ambedkar's constitution

As I was mulling over the Hazare drama that unfolded over a day I picked up Donald Kagan's "Pericles of Athens and the birth of democracy". Kagan, Yale history professor, is the foremost authority on the Peloponnessian war and Athenian history. Kagan states democracies "need to meet three conditions if they are to flourish. The first is to have a set of good institutions; the second is to have a body of citizens who possess a good understanding of the principles of democracy;the third is to have a high quality of leadership, at least at critical moments". India suffers from a serious deficiency of the first and the third conditions leading to an erosion of the second.

I remember vividly the attempts by Subramanian Swamy to prosecute Jayalalitha based on prima facie evidence. His stumbling block was the Indian constitution that made it necessary for a litigant to get the 'permission' of the Governor to prosecute a Chief Minister. India's constitution framers retained the feudal mindset of protecting the ruling elites despite overthrowing feudal colonialism. While the framers of US constitution agonized over separation of powers and checks and balances the framers of Indian constitution gladly concentrated power in the hands of very few with no checks. Paula Jones, a literal nobody, sued the US  President who is often referred to as the most powerful man on earth. Bill Clinton had to testify before a grand jury. He was reprimanded too for his perjury. Let's not nitpick his impeachment and find faults with the US system. What is to be gleaned here is that a common woman could sue and bring to court the President. There is no constitutional bar. If Americans, even in 1776, were told that a President is beyond the reach of the law until he demits office in order to maintain decorum, they would reject it outright as laughable.

The Karnataka spectacle was shameful. That a corrupt chief minister had to be cajoled into leaving office is despicable. What is even worse is that he could dictate the choice of his successor. Corruption and politics are inseparable in any corner of the world. US politicians have paid a high price for corruption. Governors and Congressmen have been charged and sent to jail.

The Lok Pal exemption of the Prime Minister is ridiculous. The excuses given for the protection are childish. It is said that the office of  PM is dignified and hence should not be subject to litigation. The dignity of an office is in the transparency not in how the office holder is shielded. As always, national interest, is another excuse trotted out. We are told that foreign powers would instigate law suits and destabilize the country. Silly. It shows a complete lack of faith in the judiciary and law enforcement agencies. The ever present excuse is that PM should be protected from frivolous law suits. Yet again it shows a complete lack of faith in the judiciary.

Every August 15th a handful of Tamil bloggers with DK/DMK allegiance would decry India's independence and the Union itself. A throwback to the Dravidanadu days of C.N.Annathurai. Their chief grouse is the many shortcomings of the Indian state. Kashmir, step motherly treatment of North East, Tamil Nadu's perennial riparian problems with neighboring states etc. Nobody has paused to reflect on the simple fact that their beloved idol Ambedkar is the architect of a shoddy constitution from which all these flaws emanate from. Ambedkar learned law in Columbia University under the aegis of none other than John Dewey.

That Indira Gandhi could dismiss governments at will, that corrupt ministers cannot be prosecuted by an independent authority, that government servants can never be fired for any misdeed, that authority is centralized with no respect for federalism etc etc are all features of the constitution is lost on many. It took just 3 days for Indian parliament to ratify the constitution. That Indira Gandhi could paralyze democracy by declaring Emergency signed off by a pusillanimous parliament and a weasel of a President is a shameful feature.The ratification of US constitution itself is worth volumes of Pulitzer prize winning books. The furious debate, the Federalist Papers, the anti-Federalist papers are all stories worth reading and learning from. Sadly, even a US educated lawyer failed to give his countrymen a good constitution. Every so called safe guard in the Indian constitution has caused more havoc than serving the intended good purpose. 

The founding fathers of US agonized endlessly over writing laws in such a manner as to avoid a monarchy. They deeply distrusted human nature to do good. The very Bill of Rights was written only because they felt that rights were not sufficiently guarded in the original constitution. 

How many of us have reflected on the fact that Indian Penal Code is very draconian and gives very wide powers to the police? Pre-emptive arrests alone exceeded 1000+ yesterday. That a government can arrest people preemptively before they start a peaceful protest is an anachronism in civilized world. When the Patriot Act was passed in USA, addressing serious loopholes in national security, it was debated hotly to protect individual rights. It is still not set in stone. The act needs to be renewed by the Congress. Rajiv Gandhi passed TADA without a murmur of protest. NSA, MISA, TADA, POTA all were done within the framework of the Indian constitution. Remember it was the Supreme Court that sanctioned suspending habeas corpus during Emergency. Habeas Corpus is considered the corner stone modern law. Even today a producer of a stage play has to submit his/her script to the local police station in order to secure permission to stage the play. A remnant from the British Raj days when dramas were considered seditious. 

Ambedkar. US framers were particular in designing a system of polity that was very unlike the British. Whereas Indian framers were content to mostly do a copy and paste of various constitutions finally rendering a mish-mash. Until a recent high court ruling the common man in India could not fly his national flag whereas every minister and government functionary could. In Ambedkar's constitution retains the spirit of the colonial midst that thee rulers are to be judged by a different law if at all they are to be judged.The Indian constitution fully qualifies for the cliche that what is good is not original and what is original is not good. 

In fact I wonder what if any is Ambedkar's original thinking other than the quota system. Even that was not designed well. It was originally envisaged only for 10 years. Its in vogue for 64 years. The constitution stipulated that quota should not exceed 50%. Tamil Nadu has a draconian 69% and is tucked sneakily into the 9th Schedule.

Ahhh the 9th schedule. ONLY the Indian constitution has got a section of the laws walled off from judicial review. 9th Schdule is non-justiciable. The 9th schedule was created to prevent judicial review of the Urban land ceiling act. Protecting ULCA from judicial review was necessary in order to prevent courts from overturning laws that were promulgated to redress the Zamindari system. Today that spirit of 9th schedule is violated and the 9th schedule is used as a catch all bucket for any legislation that Parliament does not want the courts to review. The inclusion of TN's oppressive quota regime is pending before a constitution bench for over a decade.

Most of the ills that plague Indian politics can thus be traced to an effete constitution written by unimaginative people who were only fit to be clerks. Everything highlighted above has contributed to corrupting every facet of the society. Indira's dismissal of Farooq Abdullah fomented Kashmir's problems. Quotas have generated the most shameful vote bank politics. Stifled freedom of opinion has often suffocated ideas and engendered mediocrity. 

A tamil blogger today tweeted "A taste of Indian democracy for the middle class, arrest of Anna Hazare". What eventually happened was UPA getting a taste of democracy. The upsurge in spontaneous protests brought the gargantuan Indian state to its knees to release Hazare. This is democracy at its best moment. It is extremely shameful that Harvard educated Chidambaram, Harvard law school alumnus Kapil Sibal and Oxford educated Manmohan Singh have perpetrated this despicable arrest. 

At the end of the day whether its Columbia educated Ambedkar or these Harvard and Oxford alumni they all remained just Indians at soul and never learned anything from their US education. I don't know if its a failure of education or of the pupils. That they had lived in societies far more free has done nothing to their spirits to give their fellow countrymen good governance or the framework for it. 

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