Thoughts on economics and liberty

Tag: Constitution of India

Let’s make sure we don’t subvert India’s democracy

While noting that the middle classes of India are entitled to some jubilation at the outcome achieved from Anna Hazare's fast (this also being one of the first times since independence when our dormant middle class has actually done something collectively),  two fundamental issues need to be kept in mind:

1) Legal status of fast unto death

In my draft manuscript, The Discovery of Freedom I've been grappling with the issue of fast to death. What is the legitimacy of such a thing in a free society. Is self-harm permitted? Up to what stage? And why?

I can well understand Gandhi's fast unto death in order to calm down tempers and bring an end to communal violence. But I'm not able to understand the legitimacy of a fast unto death to bring about a Bill. Despite my sympathies with Anna, I'm unable to endorse his approach, else he or others could hold the entire country's policies to ransom and totally subvert the democratic process.  

In particular, why is Anna not force-fed when he fasts, but others are (http://www.wahsarkar.com/2011/04/the-art-of-hunger-strikes/)? The law on this matter should be clear and apply uniformly to everyone. No one should be permitted to fast unto death. Period. Indeed, all hunger strikes must be prohibited, being a kind of self-harm – particularly as they seek to change others' behaviour.

The Gandhian times are over. Let us follow some discipline and use the electoral process which is available to EVERYONE. Why create extra-constitutional mechanisms and dilute the discipline of the rule of law?

2) Role of un-elected citizens vs role of elected representatives 

It is crucial that no unelected citizen be permitted to subvert the democracy that we have established – at great cost and effort – in India. I therefore encourage Anna and his supporters to form a political party and contest elections and then, once they have a formal mandate for change, bring about the reforms they have obtained people's authorisation for (subject to preserving the freedoms guaranteed in the Constitution).

I would much rather have the most corrupt elected Parliament make laws for India than unelected people who threaten suicide and bring the entire Parliament to its knees. As I have often said, I believe that even our most corrupt elected representative (e.g. Sonia/Rahu Gandhi) do greater service to India than those who berate them from outside but refuse to challenge them at the hustings. Use the hustings, please, not the streets.

To everyone who wishes to see change in India , let me make this appeal:If you have true COURAGE and INTEGRITY, please fight elections. Don't just start mass movements to destroy democracy and create a rule by mobs.

ADDENDUM

"Hazare said once Lokpal Bill becomes a reality, he would take up inclusion of "none of the above" choice in voting." (TOI, Apr 11, 2011)

I'm afraid I don't agree to this proposal, being anti-democratic. Let no one sit in judgement as GOD over those who contest elections. If you find no one who good from those who are contesting an election, then contest elections YOURSELF. Please don't damage democracy by refusing to send a representative to Parliament.

Further it would be obnoxious in the extreme for Hazare to impose his personal views on the country through another round of fasting. This destruction of democracy must come to an end. 

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The fast track to an excellent Constitution for India

Given some of its shortcomings we have explored, and numerous others that I have not touched upon to conserve space, the Indian Constitution should now be completely re-made. Its language and style should be made extremely simple, with its length drastically reduced to a maximum of ten pages. It should focus on the basic principles of freedom and create institutional flexibility and agility to enable each generation to arrive at, and implement, its own policy choices.

 
How are we to transition[i] to a new Constitution? The steps below can help us get there:
 
1.    First, a new representative Constituent Assembly, comprising 20 persons – say, proportionally from the main five parties from the current Parliament – should brainstorm and arrive at a draft constitution of ten pages. This Assembly should be supported, purely for the purposes of drafting, by ten outstanding experts in politics, law and economics, selected on the basis of their international renown, along with one of our Booker or Nobel prize winners in literature who will do the final writing. It is crucial that these ten pages talk only of fundamental things, which can be explained even to an illiterate person in about an hour. These ten pages should then be put to a vote in the full Parliament, upon receiving the endorsement of which, a referendum should be held across India. Once passed by the majority of Indians, it should be declared to be TheSocial Contract and Constitution of India.
 
2.    Simultaneously, the Parliament should translate, i.e. transcribe without making any substantive changes, the institutional framework currently prescribed by the Constitution into various Acts of Parliament, such as the President of India Act, Legislative Bodies Act, Courts Act, Election Commission Act, Civil Services Act, Reservations Act, Directive Principles Act (yes, even these last two!), Responsibilities of State and Central Governments Act, and so on. The commencement of these Acts should be linked to the date when the new Constitution takes effect. With these two steps, India will have its new Constitution as well as a set of flexible laws that will potentially defend our freedom. However, nothing would have changed on the ground – yet!
 
3.    Change would come as follows:
 
a)    The Reservations Act and the Directive Principles Act would be repealed by the Parliament, also given that they will become unconstitutional under the new Constitution. Alternatively, any citizen would be able to launch a petition with the Supreme Court to get these two Acts declared null and void.
 
b)    The other translated Acts should then be reviewed by Parliament in a prioritized manner. Each review can take up to two years including extensive India-wide consultation. At least half the review work can happen prior to the new Constitution taking effect since everyone would know what will be contained in the translated Acts. These translated Acts could then be re-enacted, amended or repealed, as appropriate. Acts that would likely be modified include the Civil Services Act, Comptroller and Auditor-General Act, and Election Commission Act. Acts that are likely to remain entirely unchanged would include the President of India Act, Legislative Bodies Act, and the Courts Act.
 
What will this new Constitution look like? I’ve provided my thoughts on its shape and form in the Online Notes.[ii] Of course, this is not a matter for me but for the elected bodies. Anyway, a bare-bones Constitution of this type will ensure that it does not need to be amended for its entire life of 30 years. It will also allow our institutions to be continuously improved upon through ordinary legislation. The other advantage of having such a clear and simple Constitution will be that all Indians will understand it fully and genuinely ‘own’ it, both through the referendum and by signing it before being licensed to vote. The process of renewing our social contract every 30 years will make explicit our trust in the adults of future generations to make their own laws.
* * *
 
I admit that this approach, being extremely flexible, will potentially create a situation where legislation inimical to freedom can be enacted by a Parliament through simple majority. The big barrier to bad legislation will be the extremely powerful role of the Supreme Court in the new Constitution which could suo moto nullify laws that violate our freedom. That should protect us for the most part. In the end, though, freedom can never be protected by a contract, no matter how long or short. Even our ‘cast iron’ and ridiculously long Constitution was found wanting when the crunch came; it was unable to withstand Indira Gandhi’s assault on freedom through the 1975 Emergency. We will therefore need the following two strategies to protect our freedom, apart from the very strong Supreme Court:
 
  • First, we will need to elect representatives who are passionate about our freedom.
  • Second, we will need to be extremely vigilant as citizens. Freedom can be protected in the end only by each of us being vigilant and participating actively in the political process.
[This is an extract from my book, Breaking Free of Nehru]


[i] Note: I use the noun ‘transition’ as a verb consciously here and in a few other places in this book even though it may not represent the most chaste English.

[ii] [https://www.sanjeev.sabhlokcity.com/book1/BFN-Notes.doc].

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Institutionalised discrimination in India’s constitution

In its Part XVI, our Constitution has institutionalized social inequality and inequality of opportunity, despite the claims in the Preamble to the contrary. Article 15 (1) states quite clearly, ‘The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them’. And yet, the Constitution goes off to do precisely that! On the ground presumably of social justice and of the ‘justice of yesterday’, Part XVI recognizes multiple classes of citizens, namely, the scheduled castes and tribes and the rest of us – each being treated quite differently from the other through affirmative action such as by Article 335 which enables the ‘relaxation in qualifying marks in any examination or lowering the standards of evaluation’ for such classes of citizens.

The argument underlying affirmative action is the following – that non-scheduled members of the present generation should legally relinquish their equality of opportunity in order to compensate the scheduled groups for the harm allegedly caused by the forefathers of the non-scheduled groups. This is an untenable argument. The present generation both of the scheduled and non-scheduled groups was not even born when the alleged harm took place. If the current generation of non-scheduled people have harmed ‘lower’ castes or tribes in any way, they must be punished, but individually, not collectively. This is a matter of justice, not a matter of the ‘justice of yesterday’.

Ours appears to be a contract between two types of slaves. As Gandhi said, ‘A slave is a slave because he consents to slavery’.[i] One claims to have been discriminated against and hence wants compensation from people who had nothing to do with it. The other group offers to be punished for the alleged discrimination that someone else practised in the past! No one can remain free in a society where both parties violate the basic principles of accountability. This masochistic self-flagellation on the one hand, and the opportunistic beggary on the other, diminishes everyone. 

On a personal level, I would hate to be a member of a ‘lower caste’ or ‘tribe’ who takes advantage of a more meritorious person. It would lower me, demean me; it would reduce my sense of self-worth. Charity is anathema to able-bodied free peoples, an insult greater than no other. I would be unable to get out of a sense of deep anguish at being an able-boded person given other’s charity. Therefore I would say to such foolish ‘higher’ caste people, ‘Stop this! Stop perpetrating this mayhem of charity towards me, you slaves of injustice! Let me find my own way and own level in life through my own effort. Let me be a man. Do not treat me as a cripple’. I admire Ambedkar precisely for getting out of the stigma imposed on him by Hindus who called him a lower caste person. He joined Buddhism. Mass-scale exodus of this sort is perhaps one of the most effective ways to fix Hinduism’s flawed caste system that deeply insults virtually half its members. I would suggest an exodus to reason as an even better option.

Let India become a place of respect-worthy people and not a land of cowards, each coward begging for a little ‘extra marks’ from others. If you were to call me backward I would be extremely angry. And yet today, entire groups of people seek to be labelled as backward! This is a clear sign of a great people who have lost their way. Let all men and women of India forget their social and economic past, and stand up as Indians – no less, no more. Let each person meet the great challenge of making the greatest possible contribution to society by dint of his or her determination, hard work and merit. Let the best man or woman win in every field of life in India.

I love the story about a young couple, Craig and Helen Elliott, who started with virtually nothing in their pockets in 1995 and have built their own farm in New Zealand which now generates 26,000 litres of milk per day. Between the two of them they milk 900 cows a day; only two of them work on the farm! And they have done this without any government assistance as well.[ii] That is the minimum standard of sheer determination that each of us must show. No more of this shameful desperation to be labelled as ‘backward’! Let us cast out all charity into the ocean! And throw the person who gives us charity far into the ocean as well. That is the only way we will grow up into humans worthy of living in a free country.

Many things are deeply wrong with Part XVI of the Constitution:

  •  Sociologists and anthropologists can use terms like tribes and castes, but not a government. A government only recognizes citizens. Period.
  • As already indicated, Part XVI perpetrates grave injustice by punishing people who have not, as individuals, participated in any crime.
  • By recognizing these castes and tribes in our Constitution, we have effectively frozen them forever. Our culture and society should remain free to evolve and change in any way that its people individually choose to, so long as they remain accountable for their actions. In any event, the time has come for people to move from tribal modes to a modern, individualist mode sooner rather than later.
  • Affirmative action increases caste-based inequality. If the caste system would have disappeared on its own in, say, a hundred years in capitalist India, the socialist intervention of reservations will now sustain it for ever. Thus, our Constitution has made it very hard even for the best social reformers of Hinduism to do anything about the caste system now. There has never been greater awareness of one’s own caste than in today’s India. We don’t know our politicians by their views any longer, but by their caste. Perhaps even primary school children think about their caste now.

These things should be completely out of the reach of a government. A government should entirely focus on the economy, on the education of our children, on teaching them the wonders of science. The way to break the back of the invasive and insulting caste system is the following:

  • abolish reservations;
  • remove all references to any religion, tribe or caste in the Constitution;
  • review, and where possible repeal, any law in India with the words Hindu, Muslim, Christian, Jain or Sikh included in it; and
  • ban the census of India from asking us silly questions about our religion or caste. Let us only be Indians. Period. That should do.
* * *
I am not denying the deplorable practice of caste discrimination. I strongly oppose it, it being one of my reasons for choosing not to be a Hindu (I have, in addition, many other reasons for opting out of the business of religion altogether). Nevertheless, eliminating the caste system is not a matter for a government to get involved in – it is a matter purely for social and religious reformers.
Similar discrimination or stereotyping has occurred in the past in every part of the world. Ending these things needs a different approach. Even as George Washington was taking on the role of American presidency after the 1776 Declaration of Independence, he owned hundreds of slaves. Thomas Jefferson, the man to whom we owe the sentiments of the Declaration, also owned over 180 slaves; even as late as in 1824. Similarly, providing equality and adult franchise to women took a very long time coming in the USA. In other words, there has been massive discrimination in the past even in today’s relatively free societies.
The lesson here is that while a government can set minimum standards and punish people if they violate these standards, the task of preparing a society to accept these standards requires social reformers to spend decades, if not generations, in preaching the message of reform. Yes, governments can set in place non-discretionary outcomestandards, and they should. In the case of caste discrimination, the government can do the following two things:
  • Ensure that poverty is eliminated and all children receive education of decent quality up to their twelfth year. This will involve a total revamp of the school education system, as outlined in Chapter 6.
  • Enact an Equal Opportunity Act in order ‘to enforce everyone’s right to equality of opportunity; to eliminate, as far as possible, discrimination against people by prohibiting discrimination on the basis of various attributes’.[iii] A government can definitely control people’s behaviour, even if can’t change people’s feeling. Such a law will clarify, extend and enforce Articles 15 and 16 of our Constitution. The government would then need to build a very strong capacity to enforce this law.
But to ask a government to do anything beyond these two is not realistic or reasonable. If a government attempts social reform, it faces the following problems:
  • Governments are not credible. Their sincerity is questionable. Members of a government are not qualified to touch our hearts and to make us change. People know that politicians are on the lookout for votes.
  • The opinions of the political class or the bureaucracy merely reflect existing social opinion. They can’t become reformers, anyway.
  • Bureaucracies established to ‘reform’ the society have no interest in eliminating the social problem, for if that problem goes away then they will lose their jobs! 

The diagram below tries to distinguish the role of government from that of social reformers.

It is therefore up to social reformers to initiate community-based action to educate and change people’s minds and hearts. When we feel really bad about the terrible things that continue to happen in Indian society, we can try to do the following few things:

  • We can begin by setting aside, in differently coloured piggy banks – labelled separately as ‘Ending the Caste System’, etc. – all the money that we would have been otherwise willing to let the government take away from us in taxes for the purpose of social reform (say 1 per cent of our income?). Presently, this money would go towards establishing mammoth ineffective bureaucracies which are focused entirely on increasing the problem.
  • Instead of then funding the government through this 1 per cent increase in our taxes, we can get together with others who believe in similar causes and form associations to promote our chosen causes. There may already be many such associations in existence that need volunteers like us. Let us network with other like-minded people and expand India’s social capital. Let us build civil society.
  • Once we are satisfied about the quality of work of these associations, let us then break open our piggy banks and fund these associations.

We will be pleasantly surprised by participating in such associations that social causes are impacted quickly, economically and very effectively. In addition, those of us who belong to a so-called ‘high caste’ should not forget to clarify to our children that we will be equally happy if they marry a person from a social category considered by un-enlightened Indians to be ‘lower’ than ours –as long as the person they choose is of good character. We can also use non-caste titles in our names. Finally, we can place the entire offending religion on notice and publicly declare that we will abandon it if it refuses to reform

There is another problem brewing on the horizon. In addition to caste-based affirmative action, gender-based affirmative action is gathering momentum, namely, reservation of seats for women in elected bodies. This, once again, is primarily a matter for social reformers to deal with. There can never be any justification for a government to legislate quotas for women. Reservations for women (or any other group) in Parliament or any other elected body goes against equality of opportunity. Sweden doesn’t have any reservation of seats for women, but its political parties have a voluntary norm under which 50 per cent of their candidates are women. As a result, women constitute 45 per cent of Swedish parliamentarians. The way out for India would similarly be for political parties to take the lead and not to have the government do things which are none of its business.

[This is an extract from my book, Breaking Free of Nehru]


[i] Fisher, Louis, op. cit., p.204.

[ii] Article entitled ‘A Rich Harvest and No Handouts’, by John Dyson, Readers Digest of January 2008.

[iii] This is a paraphrase of the objective of the Victorian Government’s Equal Opportunity Act.

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Official government meddling in religious matters

In numerous places our Constitution recognizes a range of religious ‘minorities’, specific castes and ‘backward’ groups, as well as specific religions such as the Hindu, Sikh, Jain and Buddhist religions. It also discusses religious matters such as prohibition of cow slaughter and opening up Hindu religious institutions. In this manner, the Constitution implicitly enables governments to enact a range of religious laws; that is presumably why Hindu laws[i] are not unconstitutional. Our government is also empowered to operate religious institutions. A government officer manages the Tirupati temple as its Executive Officer.[ii] The government also organizes and pays subsidies to Indian Muslims for their Haj pilgrimage. Rampant dabbling by Indian governments in religious matters has made a complete mockery of India’s claim of being a secular nation, or a free nation. There are many other problems with such Constitutional arrangements:

This has created a great deal of confusion in the society about the proper role of the state.The state and religion are totally different spheres of our life. The state has a geographical boundary; religion is infinite, beyond all boundaries. These are two radically different jurisdictions. A government must therefore be religion-blind (as in colour-blind) if it wishes to perform its role of justice without blemish. The rule that suits a free society best is, ‘Render unto Caesar the things which are Caesar’s, and unto God the things that are God’s’. In other words, a government cannot even recognize a religion, leave alone helping people specifically on the basis of their religion. It is the job of religious believers to support their own religious practices like the Haj or manage the Tirupati temple; the government can never have anything to do with these matters. Politicians can, of course, individually be as religious as they wish to be. But their role in government is exclusively to govern and provide justice.
 
The current practice forces citizens like me who do not have any religious beliefs to subsidize those who are religious. This is truly bad policy, sufficient to make people like me want to rebel and stop paying taxes to the government. I am happy to pay to raise the poor above poverty; but not one paisa for anyone’s religious practices.
 
The religious pronouncements of the government, which thinks as a committee and knows very little of anything, are full of inaccuracies. For instance, the Hindu laws combine independent world-views like Buddhism, Sikhism and Jainism together under one religion, Hinduism. To mix these distinct offshoots of Hinduism with the main religion is the height of absurdity.
 
Government religious laws lead to false implications in some places. For instance, according to explanation (a) under s.2(a) of the Hindu Succession Act, 1956, I am deemed to be Hindu since both my parents are Hindu. ‘The following persons are Hindus […] by religion: any child legitimate or illegitimate, both of whose parents are Hindus.’ But I am neither a Hindu nor a member of any other religion. My being deemed by a Parliamentary law to be a Hindu is amusing, if not disturbing. At the leastit amounts to interference by the state in my private affairs. The government should stay completely clear of all religions matters if it doesn’t want to give offence to all and sundry.
 
Such laws are anticompetitive and block competition among various religions and branches of religions. As usual, all long-term monopolies are always created by governments. Nehru, who avoided religion and definitely disliked its excesses, seems to have helped a particular brand of Hinduism to get a legal foothold in India. I just can’t figure out what he was thinking at that time! 
 
Freezing religions practices such as Hindu caste practices in the schedules of the Constitution has simply blocked all possible reform of Hinduism. No one wants to get rid of the caste system any longer; for how else will some people get the ‘benefit’ of being a ‘scheduled’ caste? Didn’t it strike the Constituent Assembly that dong so would simply pour cement on the caste system?
 
Constitutional and Parliamentary interference in religions in India has dramatically aggravated the religious divides of this country which would have eased off had they not been given such elevated status in the law and focus had been entirely given to the primary business of promoting freedom. As a result, the so-called religious ‘card’ is now played feverishly during elections by many irresponsible politicians wanting a quick route to power by rousing our tribal emotions. The BJP’s repeated demand for a UCC[iii] and its infamous ‘rathyatras’, which are the lowest form of mixing of religion with politics, are cases in point.

The solution to this chaos is simple – the Indian government should never talk or write about religion or discuss this issue in any of its laws, statistical publications including its census or other reports and documents. Religion is a purely personal matter for each of us; it is none of the business of the government.

[This is an extract from my book, Breaking Free of Nehru]

 


[i] These comprise the Hindu Marriage Act 1955, Hindu Succession Act 1956, Hindu Minority & Guardianship Act 1956, Hindu Adoptions & Maintenance Act 1956, Hindu Disposition of Property Act 1916, and perhaps the Dowry Prohibition Act 1961. These have a long history with previous Acts that interpreted various elements of Hinduism, e.g. Hindu Widows’ Remarriage Act 1856, the prohibition on polygamy among Hindus, Parsis and Christians (not Muslims) in the Indian Penal Code 1860, Native Converts Marriage Dissolution Act 1866, the Brahmo Samaj Marriage Act 1872, the Child Marriage Act 1929, the Anand Marriage Act 1909 and the Arya Marriage Validation Act 1937, among others.

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