Category Archives: Governance and Development

The Dilemma of Land Acquisition

MANAGING THE INTERESTS OF CONFLICTING STAKEHOLDERS WITHIN THE NEOLIBERAL MODEL OF DEVELOPMENT

– DIVYA DUA

For a developing country like India, managing the interests of a heterogeneous population at home, whilst simultaneously accommodating the interests of the global capital was a challenge posed at the dawn of the new century. The Indian experiment with the changing processes of production and the changing nature of the factors of the production is a unique one. The most crucial factor of production, land, is a resource that is both valuable and scarce. This resource becomes the harbinger of growth and development in the economic sense of the term, but also holds deep cultural and social value in rural hinterlands of India, that are largely untouched by discourses of development. The neoliberal model of development is dependent upon the clear definition of property rights and places a great deal of importance on private property. (Harvey 2005) For development i.e. taking up of infrastructure projects, building dams and laying down of national highways, the state often has to step into the realm of private property of the individual and take it over for the larger interest of the public. This is essentially the eminent domain principle. The property taken often belongs to farmers, tribal communities or hamlets of fishermen (if the land under question is near a water source) etc. These henceforth will be referred to as the ‘marginalised landed communities’. However, the land acquisition legislations can and do impact them differently. These communities are often unwilling to give up rights to their land and move to newer pastures to pave way for developmental projects. This unwillingness is often traced back to their backwardness and lack of faith in the developmental initiatives, however, it has got far more to do with the unfair compensation packages they are offered in return for their land and less with the neoliberal model initiating the project.

It is essential to understand the conflict over land as a consequence of the inefficient management of the interests of the marginalised landed communities by the State. It probes the possible position of a developing neoliberal state in negotiating with various stakeholders, reconstructing concepts like private property rights and continuing on the path of development not necessarily set at home but abroad.

MAINSTREAM DEVELOPMENT AND DIVERGENT INTERESTS

One of the most recent successful examples of land acquisition has been in the state of Andhra Pradesh, with a mass of land being bought from farmers and other occupants alike for the ambitious capital city of Amravati. Some 33,000 acres of land have been sourced for various developmental projects without much protest, in the post-bifurcation state of Andhra Pradesh. The land has been acquired based on a land pooling system in which the farmers will get back entirely developed “residential and commercial plots ranging from 900 to 1700 square yards for every one acre (4840 square yards) of land surrendered. Farmers will further receive an annual compensation of Rs 30,000 to 50,000 per acre — with a 10% yearly increase —for a ten-year period.” (Express 2015). Under this system, the agencies of the government develop the city by laying down electricity connections and sewage lines, building roads etc. and once that is done a substantial portion of the land is returned to the original inhabitants. The new portion is smaller than the portion initially handed over by the farmer, but the justification of it lies in the provision of amenities and a subsequent rise in the value of the plot of land. The Chandrababu Naidu government managed to not only get on board investors and industrialists for starting developmental projects in Amravati but also brought on board farmers by accruing due importance to their interest and identifying them as participants in the mainstream development paradigm. Similarly, farmers in other parts of the country, such as Punjab, Maharashtra and Haryana have been willing to part with their land when offered lucrative compensatory packages from the government. (Sathe 2016)

Land acquition

The example of Amravati and others helps ascertain a fundamental idea that the resolution or minimization of conflicts around land lies in the assessment of stakeholders’ interests and a reasonable negotiation of those by the state. This can be done by exercising the eminent domain principle, but by also recognising private property rights of even the marginalised landed communities. This not only guarantees limited intervention by the neoliberal state in the market exchange but also ensures a participatory framework for the development of the neoliberal kind.

MODEL (OF DEVELOPMENT) SPECIFIC INTERPRETATION OF RULE OF LAW

Rule of law and components therein must be understood as per the state’s development model for conceptual relevance in contemporary times. In this regard, private property as a means and component of rule of law is one of the principal tenets of neo-liberalist theory. The protection of it is therefore one of the primary duties of the neoliberal state. The rule of law with a clear understanding of property rights ensures development for stakeholders across the board. The property rights of the marginalised landed communities need to be recognised and compensation packages given to them should be in tune with the market value of land.

The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (also Land Acquisition Act, 2013) is a move in this direction. One of the key provisions that the act lays down is that the consent of 80 percent landowners is required for private projects and the consent of 70% land owners is required in Public Private Partnership projects. This gives communities a chance to negotiate with the government and the industry their demands for a compensatory package. The act however exempts five categories of land use namely: (i) defence, (ii) rural infrastructure, (iii) affordable housing, (iv) industrial corridors, and (v) infrastructure projects including Public Private Partnership (PPP) projects where the government owns the land. The two provisions when read in consonance with each other reflect a protection of the state’s interest, consideration of the interests of the industry and a fair view of the concerns of the marginalised landed communities. (PRS legislative research 2015)

CONCLUSION

The model of development debate from liberal, to neoliberal, to socialist-liberal to other combinations of political colours and ideologies cannot deny the shift in the world order towards a more market-friendly view of development and societal organisation. Now, neoliberal states juggle to accommodate the interest of all sorts of classes in the developmental agenda and when they fail to do so, it leads to societal backlash and uproar. The neoliberal state, therefore, needs to ensure a better management of interests of its various stakeholders through minimalist government interventions and progressive legislations to ensure participatory development.

(Divya is pursuing Master’s Programme in Public Policy at the National Law School of India University. She can be reached at divyadua@nls.ac.in)

 

References

Express, Indian. 2015. “Land acquisition: A new capital city in farmland.” Indian Express. December 25.

Harvey, David. 2005. A brief History of neoliberalism. Oxford University Press.

PRS legislative research. December 2015.

http://www.prsindia.org/billtrack/the-right-to-fair-compensation-and-transparency-in-land-acquisition-rehabilitation-and-resettlement-amendment-bill-2015-3649/

Sathe, Dhanmanjiri. 2016. “Land Acquisition: A need for a shift in discourse .” Economic and Political Weekly 1-7.

Featured Image Source: http://www.indino.in/the-right-to-fair-compensation-and-transparency-in-land-acquisition-rehabilitation-and-resettlement-amendment-ordinance-2015/

Diminishing Ratnas in India

AN ANALYSIS OF THE PRIVATIZATION POLICY ADVOCATED BY GOVERNMENTS SINCE 1991 ECONOMIC REFORMS

ROHITH C.H.

rohiths-article

After attaining independence in the year 1947, it was all left to the national leaders like Jawaharlal Nehru, Sardar Vallabhai Patel and a few others, to frame an economic roadmap for the development of India. Nehru, who is undisputedly the architect of the economy after independence, always advocated industrialisation of the economy.

Even though agriculture was given importance in the initial few five-year plans, the Industrial Policy Resolution (IPR) of 1956 changed it and induction of public sector units was advocated. Hence, Nehru decided to incorporate a number of PSUs (Public Sector Units) in order to provide employment and economic growth with the major sectors of the economy mainly held by the government until 1991.

Why are we taking the particular time frame of 1991? The answer to that would be that the process of privatisation in India was a result of a worldwide movement towards privatisation as a result of Reagan-Thatcher policy of minimal State control on the economy. The fall of USSR was inferred as a big defeat of socialism and also of the policy of increased State control on the economic drivers in the form of PSUs. This article tries to look at the political and the economic dimension of the policy of privatisation and how each passing government since 1991 has dealt with it.

The year 1991-92: Budget speech by Chandra Shekhar government (1990-91)

The initial stage of privatisation was started in the year 1991-92 by the Chandra Shekhar government. Chandra Shekhar Singh joined politics through Praja Socialist Party and has always been an avid advocate of socialism. In a desperate attempt to fill up the government coffers during his term, the economic condition then made privatisation inevitable. Therefore, a socialist PM like Chandra Shekhar had to announce the first string of privatisation of several public manufacturing units.

The year 1991-96: PV Narasimha Rao government (1991-96)

After the fall of the Chandra Shekhar government, the general election which followed it saw INC (Indian National Congress) winning most seats. It formed a minority government, with PV Narasimha Rao being elected as the PM. Rao’s policy from the start itself saw a major shift from the mixed economy of Nehru to a market driven one.

Then in the historic financial budget by then Finance Minister Dr Manmohan Singh announced the privatisation of PSEs, but with a few changes from the earlier Industrial Statement. There was a cap of twenty per cent imposed to the extent of disinvestment and the umbrella of investors was also restricted to only mutual funds and other institutional investors.

The year 1996-1998: United Front Government

The United Front Alliance headed by Janata Dal party was a self-proclaimed socialist party. So, under the United Front government, led by HD Deve Gowda and then later by IK Gujral, and with the support of other left-leaning parties like CPI (M), privatisation took a big hit. The left parties have a few apprehensions about the process of privatisation as they feel that the transfer of ownership and management rights to private players would lead to a monopolisation of market, and instead of competition in the market it would lead to concentration of market power. As a result of the concentration of market power, there would be an inefficient allocation of resources and this would result in a concentration of wealth and increase in inequality.

Total amount of privatisation during the period: Rs 1289.67 Crores

The year 1998-2004: BJP led NDA Government

The NDA (National Democratic Alliance) government was a pro-free market government. PM Atal Bihari Vajpayee appointed Yashwant Sinha as the Finance Minister. Mr Yashwant Sinha, a former IAS officer and a former Janata Party member, took several decisions to open up the markets. He is credited with opening up the telecommunication sector, and deregulation of petrochemicals.

It was considered a radical move by the political analysts then. It was proposed that the government share in almost all the Public Sector Enterprises be transferred. Major privatisation processes were undertaken during this time. VSNL was totally privatised and it led to the opening up of the telecommunication sector. The strategic sale of BALCO, a PSU which was a profit-making manufacturing unit, created several controversies. The sale of BALCO to Vedanta resources was questioned and protested by the employees and the anti-privatisation groups. In a challenge to the sale of a profitable PSU, BALCO to Sterlite, the Supreme Court in December 2002 handed down a landmark verdict against opponents of privatisation. The court legitimised the privatisation procedures and refused to second-guess the government with respect to its privatisation policy.

The major string of privatisation happened after the budget presented by Jaswant Singh for the year 2003-2004. A staggering amount of Rs 15,547.41 Crores was raised as a result of privatisation, an amount way higher than previous years.

Total amount of privatisation in this period: Rs 33,655.59 Crores

The year 2004-2009: UPA-I

In the general elections of 2004, INC was the single largest party with 145 seats. INC in alliance with other parties mostly left-leaning parties managed to form an alliance under the umbrella name of UPA (United Progressive Alliance). The second biggest party in the alliance was the Communist Party of India (Marxist). This was more of a Centre-Left alliance. Due to this alliance, many watershed schemes like MNREGA and acts like RTI were passed. The left-leaning policies had an impact on privatisation.

Total amount of privatisation in this period: Rs 8515.94 Crores

The year 2009-2014: UPA II

The exit of CPI (M) in 2008 saw a UPA-II in 2009 with INC winning 206 votes, and the major coalition party being DMK (Dravida Munnetra Kazhagam). This era saw a lot of privatisation happening and this also had the uncovering of many scams. 2G spectrum scam revealed the deep-rooted nepotism and corruption which ran in the government. The coal allocation scam later revealed the absence of fair allocation of the nation’s resources. CAG found a lot of misappropriations and irregularity in the auctioning of nation’s resources, including the public sector units.

Total amount of privatisation in this period: Rs 99,367.46 Crores

The year 2014-present: NDA government

BJP won the 2014 general elections with a thumping majority. BJP single-handedly won 282 seats and the coalition of NDA won 335 seats in total. Narendra Modi was elected as the leader of BJP. Modi, as evident from the policies he implemented as the Gujarat CM is pro-business and pro-market. As soon as they were elected, the NDA government discontinued the Planning Commission which was the backbone of the mixed planning economy and was replaced with NITI (National Institution for Transformation of India) Aayog. NITI Aayog is headed by the Prime Minister as its Chairman, with Arvind Panagaria (from Chicago University, a big proponent of Neo-Liberalism) as its Vice-Chairman. Arvind Subramanian is appointed as the Chief Economic advisor of India, who also is pro-market.

Total amount of privatisation in this period (2 years): Rs 59,680.33 Crores

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The incorporation of Public Sector Enterprises was done with several objectives like providing employment, equitable development across all the regions and for the sustainable growth of the industrial sector in India. After the introduction of the economic reforms of 1991, the privatisation process got underway. Pre-economic reform, the government’s believed that the Public Sector Enterprises comprise and form the pillars of the economy and the government’s believed that it was of vital importance that PSEs be managed and controlled by the government. We could see that the INC only cautiously privatised after the economic reforms. But the same party, which claims to be pro-poor and one with a political alignment of centre-left, went ahead with outright privatisation of the PSEs in the late 2000s and early 2010s. This was clearly the result of the political parties’ shift towards neo-liberalism after the 1991 economic reforms. The process of privatisation has come under the scrutiny of CAG (Comptroller and Auditor General) and many financial irregularities were found in the CAG’s reports. Many instances of crony capitalism being practised were also seen, with the CAG reports stating instances of undervaluation and sale of PSUs which were performing well and were making a good margin of profits. The NDA which had publicly promoted privatisation in the year 1998 maintained its stance on it after coming back to power in 2014. The BJP led NDA has been the biggest implementers of privatisation and the principle of neo-liberalism which supports minimal governmental interference in the economy is clearly seen in their regime. The process of privatisation is a necessary step in the development of a nation and its economy, but it can turn out to be against the interests of the public when it is done without fairness and by pandering to vested interests.

(Rohith is pursuing Master’s Programme in Public Policy at the National Law School of India University. He can be reached at rohithch@nls.ac.in)

References

Bhattacharya, Dipankar. 1999. “Political Economy of Reforms in India”. Economic And Political Weekly 34 (23): 1408-1410.

Chandrashekar, C.P. 2014. “An Obsession To Sell”. Frontline. http://www.frontline.in/cover-story/an-obsession-to-sell/article6496179.ece.

“Government On A “Selling Spree” Of Profit-Making PSUs: CPI (M)”. 2016. The Financial Express. http://www.financialexpress.com/india-news/government-on-a-selling-spree-of-profit-making-psus-cpim/328162/.

“Home Page – DIPAM”. 2016. Dipam.Gov.In. http://dipam.gov.in/

Makhija, Anil. 2006. “Privatisation In India”. Economic And Political Weekly41 (20): 1947-1949.

Mathur, B.P. 2006. “Audit Reports On Disinvestment”. Economic And Political Weekly 41 (50): 5114-5118.

Mohan, T. T. Ram. 2005. Privatisation In India. London: RoutledgeCurzon.

R. Iyer, Ramaswamy. 1988. “The Privatisation Argument”. Economic And Political Weekly 23 (11): 554-555

 

 

Featured image source: http://www.frontline.in/cover-story/an-obsession-to-sell/article6496179.ece?homepage=true

 

Trajectory of Land Reforms in J&K and its Outcomes

Tushar Gupta

 

Land reforms in Jammu & Kashmir did not prove to be effective in addressing poverty mitigation and the removal of inequality emerging from land ownership. The reforms ended up becoming little more than a political gimmick. The analysis in this paper has been divided into three trajectories and development within each has been elaborated. The paper attempts to analyse the geopolitical situation at the national and international level and its relation to land reforms in the state. The impact of the Separatist movement on state economy in light of the land reforms has also been addressed.

A. Background

A1. National Land Reform Debate

The National land reform debate was based on the assumption that if the land is redistributed it will lead to more equity and alleviate poverty which emerged from landlessness (Besley, 2000). The debate followed from the pre-independence debates in All India Congress Committee (AICC).

A2. Land Reform Trajectory in J&K
A2.1. Pre 1947

Land was part of common property resource before the 12th century in J&K. With the end of the 12th century came monarchy in the state, meaning land was thus owned by the successive kings or the state. The state-owned land was termed as “Khalsa”. King was the supreme authority and land was allotted to the peasants on request after a payment of fixed rent. The remaining land was with army chiefs, subedars and taluqdars (Bhat, 2000).

 With the beginning of the 19th century, rulers tried to marginalise the landed autocracy and dealt directly with the cultivator.  This effort was thwarted by the powerful chieftains, leading to the creation of Jagirs, Munafiqs, Mukarraries.

Post 19th century with the British coming into the picture of modern India, Maharaja Gulab Singh of Jammu signed the “Treaty of Amritsar” with them and paid a sum of Rs 75 lakh (Nanak Shahi) for purchasing the state of J&K.  Now the ownership of the land vested with the Maharaja of Jammu. Residents of the Kashmir valley were called “Assamis” who had to pay besides land revenue, Malikaana in recognition of his being the owner of the land. The state-appointed the exploitative land agents called “kardars” who dealt directly with the peasants.

The exploitative process continued till the entry of Sheikh Abdullah who fought for the rights of Assamis. In 1931 Abdullah started a movement against the Raja for recognition of the land rights with popular support of the masses. Raja was thus forced to set up a Commission under Englishman BJ Glancy to look into the matter.  The main suggestion of the report was to transfer land to the cultivators who were till then tenants at the will of government-owned lands (Galancy, 1933). The success of the movement comes from the point that the then PM of J&K Colonel Colvin asked for the acceptance of the recommendations.

A2.2. Post 1947

1947 called for the need to look into the land reform question again. Though the recommendations of the Glancy commission were accepted, the jaghirdars and chakdars who till then had the status of tenants-at-will acquired vast areas of land by exploiting the poor villagers. They manipulated the poor farmers and accumulated a lot of lands. The condition of farmers in J&K was still of a “serf” in the medieval world. Sheikh Abdullah came in with the demand of reorganisation of agriculture on modern lines to raise the consciousness of these peasants so that the society could shift from medieval to modern.

Maharaja Hari Singh signed the instrument of accession in 1947 and Sheikh Abdullah became the PM of the state in 1948. He was determined to abolish landed aristocracy along the lines of his “New Kashmir manifesto (1944)” which was a blueprint for a futuristic welfare state. He came up with the Big Landed Estates Abolition Act, 1950 to supplement the success achieved in 1931 and to undo the ills of the system. This act provided for the ceiling on property at 22.75 acres (182 kanals), surplus land to be transferred to the tiller without payment, fixation of the ceiling at 160 kanals and land in possession of no one, to be taken by the state (Saxena, 2007).

Enforcement of the Big Landed Estates Abolition Act, 1950 led to the dispossession of 4.5 lakh acres of land which was concentrated in only 9000 landowners (Aslam, 1977). To further reinforce the reform process and focus on the tiller, the Government of J&K set up a Land Commission in 1963. The report of the commission formed the basis of the J&K Agrarian Reform Act of 1972. This Act ended the rights in the land of those who personally never cultivated, and also reduced the ceiling limit to 12.5 acres which ended the Tenant-Landlord relationship completely. It was not in consonance with some landlords who depended heavily on income from the land and wanted to cultivate personally but couldn’t. Hence the act was replaced by the Reforms Act 1976 which fixed a ceiling of 12.5 standard acres including orchards with certain conditions. It kept the option for the petty landlord to resume for his personal cultivation on that fraction of his holdings which is equal to the fraction of that produce which he was recovering as rent from the tenant.

Table: Land Transferred to the Tillers in J&K from 1951-52 to 1980-85

Sl. no. Year No of Tillers Land transferred (in Acres) No of beneficiaries
1 1951-52 30,418 92,927 2,98,922
2 1952-53 50,189 66,755 1,70,165
3 1953-54 32,260 36,915 1,15,831
4 1980-85 3,08,000 1,06,000 5,38,000
Total 4,20,867 3,02,301 11,22,918

Source: Rekhi, 1993

A2.3. Post 2000

“The Jammu and Kashmir State Lands (Vesting of Ownership to the Occupants) Act” was enacted by the government in 2001. This Act, commonly known as the Roshni Act aimed at generating Rs. 25,000 crore by transferring ownership rights of ‘Nazool land’ or in other words, state land. The idea was to sell the state land at market rates to the people who had illegally encroached upon it. The idea, however, couldn’t be carried forward due to political reasons. Later in 2007, the Ghulam Nabi Azad’s Congress government with an eye on 2008 assembly elections reformed the bill which now provided free ownership of 16.6 lakh kanals, land worth Rs. 20,000 crores targeting 19 lakh cultivators. Land occupying farmers were to pay a nominal fee of Rs 100 per kanal to get the land transferred in their name. The land was given at a rate of 10 percent of the existing market rate. However, the land was also given for residential and commercial use under the act which led to various irregularities. The irregularities and the Roshni Scam have been discussed separately in section-D of the paper.

B. Geopolitics of J&K and its Impact on land Reform

Korbel (1954) brings about the basic reason for exhaustive land reforms in J&K. According to him, these reforms were introduced to counter the demand of plebiscite made by Pakistan. Hence ending the feudal aristocracy and giving land to the landless at that particular point of time would ensure winning the hearts of the people of Kashmir. The question attached is, why, the elite responsible for the implementation of reforms in the state chose India over Pakistan? He answers the question by saying that the elite was sure of the fact that their radical agenda of bringing about reorganisation in the agricultural structure will not be possible in feudal Pakistan.

Ankit (2010) brings about the transition of the Kashmir issue from a regional conflict to a national question to an international concern. The year 1948 was crucial in changing the entire nature of J&K. Indirectly both the superpowers during the cold war era were interested in the Kashmir question. Americans wanted to control the Kashmir area indirectly to tackle the Soviet Union and their control from Turkey to Tibet. The Soviet Union never wanted to let go of the area as it would then act as a standstill to the spread of Communism down towards South East Asia. This argument explains the international importance the area got. The question was thus never of development but of geopolitical influence. Hence the State got entangled between national, regional and international questions and land reforms were never capitalised.

B1. Role of Pt. Jawaharlal Nehru and Sheikh Abdullah [Divergence of J&K’s Land Reform Approach from National Approach]

As brought about by Korbel (1954), the idea of land reform in Kashmir was to deviate from the demand of plebiscite by Pakistan. From his argument, I infer that there was Indian National machinery involved during the process. Motilal Nehru, father of Pandit Jawaharlal Nehru was himself from Kashmir. Pt. Nehru knew all about the political dynamics in the state. The man of the moment who could implement the cause was Sheikh Abdullah himself. Prasad (2014) talks about the bent of mind people had during that time, ‘people were neither pro-Pakistan nor pro-India they were just pro Shiekh because of his untiring implementation of radical agrarian reforms’. The sole legal reason why land reforms were successful was a special status J&K enjoyed under Article 370.

Nehru-Abdullah Agreement was signed in July 1952 which is also known as the Delhi agreement after his speech in the Lok Sabha on 26 June 1952 which confirmed that “the residuary powers of legislation” (on matters not mentioned in the State List or the Concurrent List), which Article 248 and Entry 97 (Union List) confer on the Union, will not apply to Kashmir. This addresses the question of the role played by Nehru and Sheikh in the implementation of the land reform.

One major point where Sheikh’s role is seen of critical importance is that the protest against the land reform in the state came only from the Dogra ruler and people. Surprisingly Kashmiri pandits who formed just 5 percent of the population of Kashmir but had 30 percent of the land with them never protested.  Pandits were suppressed by giving them 10 percent reservation in the administrative jobs (Rai, 2004).

Addressing the question of how the land reforms in J&K were different from that in the nation was in terms of the question of Article 370. Article 370 gave the state of J&K interim provision of not granting fundamental rights to the citizens in order to bring about the vision of New Kashmir Manifesto. Hence when Benami transfers and locking of property in courtrooms was taking place in the rest of the country, Kashmir land reforms became a success story. “The success of the Act of 1950 can be very well appreciated from the fact that out of 9.5 lakh acres of land distributed throughout the country till 1970, about half (i e, 4.5 lakh acres) was distributed in J&K alone” (Verma, 1994).

B2. Water Treaties

Alleviation of poverty was one of the main aims of land reform at the national level. Land reforms were of drastic success in the state of Jammu and Kashmir. One state which was comparable to that of J&K was Kerala. The human development index figure of 2007-08 Kerala is at 0.790 while J&K lags behind at 0.529. Two main reasons why the first phase of land reforms in the state couldn’t take off are political issues of the occupation of land and restrictions on the use of state water use (Government of Jammu & Kashmir, 2006).

One of the main factors to supplement the land reforms and to achieve its goal of poverty alleviation is the creation of necessary infrastructure, for example, irrigation which requires water. By signing Indus water treaty in 1960 with Pakistan, India could use only 20 percent water of the Indus basin. Most of this water is used for irrigation in Punjab and its agricultural production is a hit. Here there was a compromise on the Nehruvian and Sheikh vision of land reform in J&K and the international pressure. All the three rivers which drain the state of J&K (Indus, Jhelum, and Chenab) were handed over in the treaty and the states right as Upper Riparian party were not protected as the treaty places a restriction on both the use of water for irrigation and for harnessing power. According to the treaty, the flow of water cannot be interrupted or reduced by building a reservoir (Navlakha, 2007).

The first phase of the land reform would have had an altogether different impact had the Indus Treaty not been signed and some amount of political willpower been shown.

B3. Role of Separatist Movements

The Separatist movement was a result of chaos and confusion. Poverty and Landlessness which land reforms were to address, when couldn’t be taken care of, manifested itself in the movement. Masses with no education were mobilised by the elite in a different direction altogether and thus the debate shifted from land reforms and development. Post-1987 which was the start of the separatist movement in Kashmir, people on call resorted to the politics of boycotting elections, which was undemocratic as in a democracy elections are regarded as one of the main steps towards social change. The entire idea of land reforms which is to increase self-sufficiency and efficiency somehow got lost. Chapter V (Planning Commission of India, 2014) on state finances tells that the state government for the year 2000-01 had a revenue deficit of Rs. 961 crore which is an increase of 77 percent over previous year. The chapter clearly states that the state has suffered a lot financially during the years of turmoil and revenue collecting authorities were unable to work efficiently. The state has really never recovered from the damage to the infrastructure and lack of investment post movement. The data shows the financial condition of J&K post movement period:

Year Total Income Total Expenditure Revenue Expenditure Revenue Surplus/Deficit Fiscal Surplus/Deficit
1996-97 3226 4180 3129 +94 -954
1997-98 4646 5147 4191 +451 -501
1998-99 4513 5567 4909 -400 -1054
1999-2000 5519 6857 6055 -541 -1338
2000-01 5674 7547 6621 -961 -1873

Source: Comptroller and Auditor General of India, 2001-2002

The movement addressed the cause of secession from the Indian state and never focussed on the development agenda and capitalisation of land reforms. Now people have realised that the democratic process is the only way forward to address social problems. Chowdhary & Rao (2006) bring about the shift from the politics of ‘Boycott of election’ to ‘Bring change with the election’ by supplementing it with the voter turnout. They bank on the people’s urge to go back to the normal situation and their desire to exercise choice.

C. Marginalisation of Social needs and Social Reality

The marginalisation between the needs and reality post-2000 as pre-1947 and post-1947 have been addressed to in different sections of the paper. Roshni bill which formed one of the major land reform policies post-2000 was supposed to streamline the land holdings, empower the farmers and regulate land mafias but the picture looked different when CAG came up with irregularities in the scheme. On 24th January 2015, the State Vigilance Organization (SVO) filed a FIR against several officers of the revenue department for their involvement in the irregularities committed under Roshni scam. According to CAG performance report (Comptroller and Auditor General of India, 2013) after approving the transfer of lands measuring 3,48,160 kanals only Rs.76.24 crore has been realised against a demand of Rs. 317.54 crore. Scam figuring in a land reform scheme being mooted as pro-poor and farmer clearly bring about the paralysis our political machinery is going through. Roshni scam has shown that there is a clear divergence of social reality from social needs in the state of J&K.

D. Conclusion

Land reform did not achieve its goal. It got hijacked by International bindings at the first stage, national politics at the second and state politics at the third stage. Every successive state government found it difficult to match development planning with social reality because of various personal benefits attached. It is up to the people of the state to realise what is happening and elect their representatives sensibly. Good representation in the assembly can only put forth the cause and thus reduce the gap between social needs and social reality.

(Tushar Gupta is a graduate student of Master of Public Policy in the National Law School of India University. He can be reached at tushargupta@nls.ac.in)

Sources

Ankit, R. (2010). 1948: Crucial Year In The History Of J&K. Economic and Political Weekly, XLV (11), 49-58.

Aslam, M. (1977). Land Reforms in Jammu and Kashmir. Social Scientist, 6 (4), 59-64.

Bhat, M. (2000). “Land Distribution in Rural Jammu and Kashmir: An inter-temporal Analysis. In Pushpendra, & B. Sinha, Land Reforms in India: An Unfinished Agenda (pp. 139-169). New Delhi: Sage Publications.

Besley, Timothy, and Robin Burgess. “Land reform, poverty reduction, and growth: Evidence from India.” Quarterly journal of Economics (2000): 389-430.

Chowdhary, R., & Rao, N. V. (2006). Changed Political Scenario. Economic and Political Weekly, 11963-65.

Comptroller and Auditor General of India. (2001-2002). Audit Report (Civil), Jammu and Kashmir. New Delhi: Comptroller and Auditor General of India.

Comptroller and Auditor General of India. (2013). Performance Report. New Delhi: CAG of India.

Glancy, B. J. “Report of the Commission appointed under the order of His Highness, the Maharaja Bahadur, dated 12th November 1931 to enquire into Grievances and Complaints, Jammu.” (1933).

The government of Jammu and Kashmir. (2006). Economic Survey. Jammu: Government of Jammu & Kashmir.

Korbel, J. (1954). Danger in Kashmir. New Jersy: Princeton University Press.

Navlakha, G. (2007). State of Jammu and Kashmir Economy. Economic and Political Weekly, 4034-38.

Nehru, J. (2006). Selected Works of Jawaharlal Nehru. Oxford New Delhi University Press.

Planning Commission of India. (2014). Jammu And Kashmir Development Report. New Delhi: Government of India.

Prasad, A. K. (2014). Sheikh Abdullah and Land Reforms. Economic And Political weekly , 131-137.

Rai, M. (2004). Hindu Rulers, Muslim Subjects: Islam, Rights, and the History of Kashmir . Delhi: Permanent Black.

Rekhi, T. S. (1993). Socio-Economic Justice in Jammu and  kashmir: A Critical Study. Delhi: Ideal Publications.

Saxena, A. (2007, September 26). ANOTHER LEAP TOWARDS LAND REFORMS IN J&K. Mainstream Weekly , XLV (40).

Saxena, A. (2007, september 26). ANOTHER LEAP TOWARDS LAND REFORMS IN J&K. Retrieved August 16, 2015, from Mainstream weekly website: http://www.mainstreamweekly.net/article323.html

Verma, P. S. (1994). Jammu and Kashmir at the political crossroads. New Delhi: Vikas Publishing House.

 

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Utopian Socialism: An attempt to understand the precursors to Scientific Socialism

Anmol Narain

Utopia has been lovingly described as a state of speculative existence in which society possesses qualities that are highly desirable and near perfect with respect to the dynamics of the division of labour, of individual liberties enjoyed by citizens in a collectivist framework and the distribution of power amongst the inhabitants of that particular entity. The word utopia was first coined by Sir Thomas Moore in 1516, in his book describing the fictional island of Atlantis.

The term has, over the years, been used to describe both social experiments grounded to reality and works that have been associated with the description of a fictional state of existence that chronicle a perfect end to be achieved. Dystopia, on the other hand, finds its way into the murky waters of well written fictional enterprise that elaborates upon everything that could go wrong in situations that, in practice, centralise power to such an extent that individual freedoms take a back seat. Take, for example, George Orwell’s 1984, the epitome of everything that could go wrong with the excessive centralization of power to the extent that freedoms thought to be free from infringement, such as basic privacy, are rendered unimaginable. One could even think of Aldoux Huxley’s Brave New World, which takes one to the institutionalisation of mankind’s most basal sexual passions, the underlying theme amongst both pieces converge in the excesses of power and control, which could be interpreted to be manifestations of the biggest fears of western liberal thought espousing individual freedoms. This, as well as practical failures of excessive centralization and their eventual collapse, has created a culture that cringes at the every hint of the term ‘social engineering’, which is quite detrimental to the pursuance of certain value orientations, albeit, with a healthy system of checks and balances in place.

This very end to be achieved, in terms of the virtues that the near perfect state will possess, varies across different conceptions of the term utopia. One could start by categorising the differences in all of these near perfect ends on the basis of the themes that are most commonly addressed in the most prominent works of discourse ranging from Plato to utopian socialists like Owen that consolidated the platform for the beginnings of scientific socialism. These differing ideas vary along the lines of the distribution of power within social systems in relation to the ownership of property, in the division of labour with respect to the contribution of different aspects of the population in the process of production and in individual freedoms and liberties that citizens enjoy. All these processes are then seen in the light of the larger moral structure that conforms to each author’s perception of what is right and wrong, built upon socio-cultural institutions that complement each other like the family in relation to theology, music, literature and systems of education.

The earliest conception of an ideal society can be traced to Ancient Greece, within which, the works of Plato delve into fundamental questions about what constitutes justice, virtue and reason. The true nature of these absolutes can only be perceived if people manage to obtain a great degree of control over the mind and body that arises from years of rigorous training in mental, physical and moral arts. This, in essence, would allow people with the necessary intellectual vigour to perceive reality in its absolute form, as an interaction of abstractions removed from reality allegorically described as the objects that cast a shadow on the walls of the cave that represents the vision of humanity (Cohen 2006). Plato, in one of his last dialogues refers to the creation of his ideal city, Magnesia, which would be situated far from ports that would have facilitated maritime trade, which by consequence would have made the population of the city more vulnerable to corruption that stems from the mercantile aspiration of profit making, wealth creation and hoarding. His conception of the city is influenced by the close relation between ethics and law, between education and moral psychology in bestowing upon the citizens, the ability to attain true virtue (Plato Laws 664 CE, cited in Bobonich and Meadows, 2013).

In accordance with what was stated earlier in The Republic, it consists of a society that is divided into classes on the basis of a division of labour. It proposes a categorization of citizens into a class structure of producers in the form of farmers and artisans, the warriors which are the auxiliaries and guardians which constitute the ruling class. Virtue, at first glance, can be contextualised as adherence to normative functions that place people along the societal hierarchy. But at a deeper level of understanding, the very concept of what virtue constitutes of becomes of paramount importance in relation to the true nature of things and the existence of absolutes that only those with the necessary intellectual vigour can grasp. This is where the role of the king who understands the fluidity between the true nature of things and how they have to be contextualised to different situations in practical reality, comes into play.

Power hence rests within the hands of those who have access to resources involved in the process of production such as the merchant class but even more so with the guardian classes and the philosopher kings. They, by virtue of being on a higher platform in terms of intellect combined with access to robust training, have a clearer understanding of the forms and hence have greater moral authority. Each household within Magnesia is to be given ownership of two plots of land that are equally productive. Hence, there is individual ownership of land but each shareholder must consider his share to be the common property of the whole city, though the land itself is passed down within the family over generations. Further, each household is to help fund the city’s system of common meals. The volume of land allocated differs in within the classes wherein those at the top receive land that has assets four times worth the value of the lot a given to the class at the bottom (Plato 740A3–6, Bobonich and Meadows, 2013)

In terms of citizenship, it is only the landed gentry and their male heirs that constitute the decision-making mandate in a participative direct democracy of the polis. But within Plato’s utopian city of Magnesia, Although women lack an independent right to own property, they are liable to military training and service and attend their own common meals. The Athenian holds that they can attain the four cardinal virtues and for this reason requires that they are educated (Laws 804D-805A, Bobonich and Meadows, 2013).

For Aristotle, women are not citizens of the ideal city, since they are excluded from political office. But in Plato’s Magnesia, women can participate in elections and hold political office and so the Athenian explicitly counts them as citizens. All citizens apart from the philosopher-rulers arguably remain within the cave with access to the glorified vices of music and poetry that is correct only if deemed virtuous by a man that possesses virtue himself, of a higher social standing, of course, which in effect, though extremely subjective, leaves little room for individual choice, freedom and creativity. But this is only in respect to creativity in expression, in terms of rhetoric and logic, all citizens are educated in accordance with their aptitude for mathematics, resistance to basal pleasures and rhetoric wherein those who qualify to move on to dialectics and become the future pool of guards and rulers. Those who do not, are directed towards practical aspects of social life such as trade and commerce.  In terms of religion, god is presented as the appropriate source of law and human institutions. But the very definition of god is that of the immortal element within each human, which is the reason.  Hence virtue is equated with a godlike quality of reason and the standard that one must aim towards. (Peters, Zarnic, Besley and Gibbons 1999)

As society trudged through the rise and fall of empires that had consolidated themselves into the ambit of a feudal nature with the surplus of mercantile capitalism, it eventually came to a point where the change in the productive forces was such that it brought to light the beginnings of a new class struggle that stemmed from changing social relations between the dispossessed and those with resources. The identity of the proletariat developed in this context of the aftermath of the French revolution and the beginnings of industrial capitalism stemming from science, innovation and the influx of capital from colonies. (Mukherjee 2010)

There came a point in time during the Kantian period of enlightenment that constituted the bedrock of the greater movements towards positivist empiricism, that everything was subjected to the most unsparing of criticism wherein everything had to justify its existence before reason. Hence, the reason became the sole measure of everything. Hegel characterised this point as one in which the world stood upon its head (Engels 1880)

It was only later on in history, that it became possible to contextualise this vision only to the bourgeoisie. And virtues of justice and reason could only be confined to beneficiaries within that class. Hence the ideals of the French revolution (liberty, equality, fraternity) though the product of the antagonism between the feudal nobility and the powerful guilds, were only limited to those that had the material resources to benefit from the auctions of the land seized from former nobility. This is in contradiction to the general perception of the victory of the exploited masses over the rich and lazy.

At this point in time, the antagonism between the masses and the capitalists had not developed because it was at this point that the workers began to get alienated from the guild workers as capitalism moved from her mercantile origins to industrial vigour which later consolidated proletariat identity. Hence, the great thinkers of the 18th century could no more than their predecessors; go beyond the limits imposed upon them by their epoch. (Engels 1880)

It was in this context that Saint-Simon, Fourier and George Owen came to be and the one thing they had in common was the fact that none of them represented the interests of the proletariat in particular. They didn’t claim to emancipate a particular class to start with, but all aspects of the population in one go. They, like the French philosopher Rousseau, wished to bring about a kingdom of eternal reason and justice, but this kingdom, they realised was as far from reality as that of the French philosophers. It is to all three that the bourgeoisie world seemed as irrational and unjust as the feudalism and barbarism that preceded it. This claim towards a higher ideal, a truth of sorts was seen more as a happy accident from individual men of genius, isolated from the chains of historical development. The ideals of  Rousseau’s social contract, convoluted in practical reality, had found their way into the reign of terror, from which the wealthy upper middle classes, who had lost confidence in their own political capacity, had taken respite in the corruption of the directorate and finally under Napoleon’s despotism. The polarisation of the working class as an identity came to be a consequence of the freedom from property that the small-scale peasant and capitalist proprietors were subjected to.

To sum it up, the brilliant promises of the French philosophers and what they believed to achieve with the social and political institutions born out of this triumph of reason were, disappointing caricatures, beings of satire. The time was apt for men to formulate this disappointment and search extensively for better alternatives. 

The categorization of a class war

It was in 1802 that Henry Saint Simon’s Geneva letters came to be. Born in 1760, as Engels puts it, he was the son of the great French revolution. Quite scientific in his approach, he has been known as the founder of modern sociology. His analysis of class difference and human ideals to achieve were less based in the quantitative but on more qualitative aspects such as socio-cultural institutions that, according to him, would foster an environment conducive to the achievement of his ideals of a just and fair society. To him, the conflict between the 3rd estate and the privileged classes was one that was characterised by friction between the workers and the idlers. These workers and idlers were, in his account, not restricted to particular classes. The workers included the wage workers, the merchants and the bankers. From the reign of terror, it had become apparent that the workers were not capable of handling political power in a just and transparent manner. The idlers had already lost their capacity for intellectual leadership, he, therefore turned to a rigidly hierarchic New Christianity that would combine science and industry, while giving legitimacy to political power in a pseudo-theocratic structure. (Caspar J M Hewett 2008)

The scholars that represented science and the bourgeois that represented industry were to transform themselves into public servants while at the same time, retain a position of social and economic privilege. It was at this time that he showed fluid tendencies towards authoritarianism within a capitalist setup and welfare in terms of responsibility to the poorest of the poor that would, through concerted action like the extension of credit to all, eventually be elevated to higher levels of socio-economic prosperity. This must be seen in a temporal context wherein there was no significant polarisation along the market-state continuum in popular political discourse. (Vincent Geoghegan 1988)

What Saint-Simon especially laid stress upon is this: what interested him first, and above all other things, was the lot of the class that is the most numerous and the poorest (“la classe la plus nombreuse et la plus pauvre”).

Due credit must be given to him for categorising the French revolution as a class war, not one between the nobility and the guild workers but also one that involved the non-possessors, which was in the year 1802, a pregnant discovery. It was in 1816 that he declared that economic conditions were the basis for political institutions. In terms of administrative structure, he called for the decentralisation of power wherein decisions would be made on the basis of unbiased market forces and precedence to be given to individual decision making in the hands of the aware and reasonable. (Engels 1892)

An Amorous World: Coming to terms with our metaphoric relation with Nature and the Law of Passionate Attraction

Charles Fourier was born in 1772 at Lyons into a family of drapers. After losing all his property to the revolution, he went into business as a broker. It was in the context of this market-oriented structure that he was struck by the shortcomings and injustices of individualism in a competitive social space. He spoke about the perfectibility of human nature and put emphasis on the free play of appetites and passions as opposed to the misery that stems from the restraints imposed by society. Unlike his contemporaries, his criticism of society on the basis of its historical growth is valuable in the anticipation of scientific socialism. The four stages of the development of society are Savagery, Barbarism, Patriarchy and Civilization. (William Morris and E. Belfort Bax 1886)

Civilisation represented the period of modern society that he happened to live in during the post-enlightenment era. In his criticism of mercantile and industrial capitalism, he insightfully speaks of the creation of poverty as a result not of a lack of resources but, of superabundance in direct reference to systems of competition that increase the gulf between those that have access to resources related to production and those that do not. “under civilization poverty is born of superabundance itself” (Engels 1892)

In terms of his utopian vision, he wrote, in precise mathematical formulations, the exact number of people he wanted one polis to consist of. His people were to be governed by a ministry of Amorous Relations. He does not dispute the division of labour, rather, he celebrates it in a form that encourages and enables people to do what they want to do, thus abolishing the opposition between pleasure and work. Hence power would be centralised to the extent of proper state machinery which would not come at the cost of individual freedoms and passions. The link between pleasure and wealth is the very ground of his conception of an alternative social order. (Christopher Prendergast 2012)

Family relations were to be deconstructed and reconstituted in accordance with god-given passions which were the elementary fluid of the cosmos wherein the purpose of science was to discover a mechanism by which the satisfaction of human beings was the highest. Hence, in the Amorous world, Omnigamy was imperative to the functioning of utopia.(Beecher 1986)

Social Experiments: New Harmony and New Lanark

Robert Owen was a welsh industrialist who conducted several social experiments in order to create self-sustaining systems of utopia that he invested and lost most of his fortune in. His alternative to the existing regime was not based on a theory rooted in progressive history. He was of the opinion that history was a series of fortunate or unfortunate accidents dictated by chance rather than the human agency, independent of patterns of any significance. He had the utmost faith in the ability the of capitalist enterprise to uplift the masses. It was on elite social engineering and the manipulation of the environment by those with means in the form of resources at their disposal, that he laid emphasis on. This would primarily be the initiative of the government which would take the lead in policy and practice to kick start a slow and gradual process of transition towards his utopia of freedom from the dogma of religion and institutionalised norms supporting specific status quos, a society where reason would prevail. (Stewart, Anne 2012)

It was he who popularised the notion of establishing islands of socialism in a sea of capitalism. He happened to be a successful capitalist himself.From 1800 to 1829, he directed the great cotton mill at New Lanark, in Scotland, as managing partner with a population, originally consisting of the most diverse and educated elements that gradually grew to 2,500. He turned an industrial township into a model colony called New Harmony within which drunkenness, police, magistrates, lawsuits, poor laws, charity, were unknown. He was the founder of infant schools and introduced them first at New Lanark. (William Morris and E. Belfort Bax 1886)

He posed great faith in the development of human agency at the hands of external circumstance and nurturing environments. It was with this in mind that he set up comprehensive systems for education and at the age of two, the children in his experiment went to school, where they enjoyed themselves so much that they could scarcely be home again. (Engels 1892)

Whilst his competitors worked their people 13 or 14 hours a day, the working-day at New Lanark was only 10 and a half hours. When a crisis in cotton stopped work for four months, his workers received their full wages all the time. And with all this, the business more than doubled in value, and to the last yielded large profits to its proprietors. In spite of all this, Owen was not content. The existence which he secured for his workers was, in his eyes, still far from being worthy of human beings. “The people were slaves at my mercy.” Three great obstacles seemed to block the path to social reform: private property, religion, the existing form of marriage. He knew what confronted him if he attacked these – outlawries and excommunication from official society.

Banished from official society and ruined by his unsuccessful Communist experiments in America, in which he sacrificed all his fortune, he turned directly to the working-class and continued working in their midst for 30 years. Every social movement, every real advance in England on behalf of the workers links itself on to the name of Robert Owen. He forced through in 1819, after five years’ fighting, the first law limiting the hours of labour of women and children in factories. He was president of the first Congress at which all the Trade Unions of England united in a single great trade association.

Conclusion

The new mode of production was only beginning to gain momentum in terms of the consolidation of the class antagonism between the newly forming proletariat and the bourgeois capitalists. Socialist thought until the advent of scientific socialism was governed by notions of breaking away from systems to create entirely new ones. The formulations of different ideals to be achieved came out of a need for meaning and greater purpose, the conquest of reason, in a society manipulated by greed and crony profiteering. Escapists, as some might call them, they were well-informed mechanisms that isolated themselves to a very large extent from the existing mode of production and called for a leap to a greater pedestal of clarity and truth. The fundamental flaw common to all conceptions of utopia before the advent of scientific socialism was an understanding of the historical process that didn’t base itself on historical materialism but rather to random happenings of chance not worth studying in detail, Fourier being the only exception to the rule. Unfortunately, he proposed a resolution between Freudian repression and actual impulses which were, and still is to a very large extent, an idea that most societies aren’t ready to face.

 

(Anmol Narain is a graduate student of Master of Public Policy in the National Law School of India University. She can be reached at anmolnarain@nls.ac.in)

 

References

Beecher, J. (2008). Charles Fourier: Il visionario e il suo mondo. Bolsena: Massari Editore.

Bobonich, C., & Meadows, K. (2013, June 21). Plato on utopia (Stanford Encyclopedia of Philosophy/Summer 2013 Edition). Retrieved from http://plato.stanford.edu/archives/sum2013/entries/plato-utopia

Cohen, S. (2006). Allegory of the Cave. Retrieved from https://faculty.washington.edu/smcohen/320/cave.htm

Engels, F., & Aveling, E. B. (1892). Hegel: The Philosophy of History. In Socialism, Utopian and scientific (p. 535). New York: New York Labor News Co.

Frankel, B., & Geoghegan, V. (1988). Utopianism and Marxism. Contemporary Sociology,17(6), 763. doi:10.2307/2073573

Geoghegan, V. (1987). Utopianism and Marxism. London: Methuen.

Hewitt, C. M. (2008, December 28). The Great Debate 10th Anniversary, 2008. Retrieved from http://www.thegreatdebate.org.uk/TGD10Page.html#Progress08

Morris, W., Bax, E. B., & Oliver Wendell Holmes Collection (Library of Congress). (1886). The Utopists: Owen, Saint-Simon, and Fourier. In Socialism from the root up. London: Swan Sonnenschein & Co.

Mukherjee, A. (2010). Empire: How Colonial India Made Modern Britain. Economic and Political Weekly45(50), 73-82. Retrieved from http://www.epw.in/journal/2010/50/special-articles/empire-how-colonial-india-made-modern-britain.html

Oliviera, R. (1999, July 6). Plato and Philosophy of Education – The Encyclopaedia of Educational Philosophy and Theory (edited by M. Peters, B. Zarnic, T. Besley and A. Gibbons) – EEPAT. Retrieved from http://eepat.net/doku.php?id=plato_and_philosophy_of_education

Stewart, A. (2012, February 16). Social engineering can have positive outcomes too | Owen Sound Sun Times. Retrieved from http://www.owensoundsuntimes.com/2012/02/16/social-engineering-can-have-positive-outcomes-too

 

 

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When Bad Guys Get Elected: A Quick Take on the Electoral Process

 

Sachin Tiwari

This polemical account is an upshot of a twitter conversation with another MPP grad on an article in New York Times by Maskin and Sen that he shared. The authors explain how a majority rule based electoral process (instead of the prevailing plurality rule) might have stopped Trump, who is the leading presidential candidate in the upcoming election in the US and has won the primaries in 23 states (Read: How Majority Rule Might Have Stopped Donald Trump). The authors seem to suggest that on a one-on-one contest, Trump would have been defeated in 17 states. Sure! But, it is a conjecture as best as anyone else’s because it just did not happen. Giving it to the authors, they do say that it might have stopped Donald Trump.

The alleged outcome must necessarily happen for this thesis to hold any water. Launching off from this point, the authors write –

In the early contests, Mr. Trump attracted less than 50 percent of the vote (in Arkansas he got only 33 percent); a majority of voters rejected him. But he faced more than one opponent every time so that the non-Trump vote was split. That implies he could well have been defeated in most (given his extreme views on many subjects) had the opposition coalesced around one of his leading rivals.

 True! Anyone with a keen eye on elections and voting behaviour would agree with that one on defeating a candidate by coalition of the opposition around a leading rival. This leads to the question – does it (coalitions as these) happen? If yes, what prevented it from happening in Trump’s case? The near impossibility of determining this curious phenomenon is the point of this post. I would argue that this is at best an academic quest which helps scholars but lacks the capacity to look beyond the process and account for the outcome. It appears sloppy on account of the fact that the reasoning (as quoted above) is used to argue that the candidates getting elected are not the right ones or desirable ones. It is theoretically correct that the winners lack the support of a majority of voters. The problematic bit comes next –

As with the Republicans and Mr. Trump’s flirtations with fear and violence, India now suffers the ill effects of a serious confusion when a plurality win is marketed as a majority victory. The Muslim Brotherhood government of 2012 to 2013 in Egypt provides another, and similarly disturbing, example; it helped to undermine democracy in Egypt altogether.

The assumption that the winning candidates in the cited examples from US, India and Egypt (party in this case) are ‘disturbing’ and have had negative consequences is the problem. This is an impressionistic inference. Let me present a counter view – that the inherent ability of a democratic setup in checking the unrestrained behaviour of elected leaders prevents the ‘disturbing’ consequences from happening, although during the campaign the contesting candidates might come across as potentially problematic if they act on their rallying points.

Systemic checks in a democratic setup

This is true of India and the US as history suggests. The system of governance – executive, legislature and the judiciary, are at least minimally robust enough to check the anti-public interest and self-serving (or even party serving) of the winning candidate when he is appointed. Except for the period of emergency in India during Indira Gandhi’s reign, we can see no evidence of a leader running amuck with his own agenda. The analysis by Maskin and Sen stands reasonable in the electoral process but runs out of consistency when it comes to their assertion that this process produces winners who are likely to undermine democracy or are against the best interests of the country. It would have been nice to see a specific example supporting their assertion. In India, even a seemingly larger than life leader like Prime Minister Modi has had a tough rope walk in terms of appeasing the Hindutva groups supporting his party, and keeping the interests of other minority groups in regard. It is not as straightforward as the article might suggest. When bad guys get elected bad things do not necessarily happen! A campaigning Donald Trump is very likely to undergo a change as Donald Trump in the White House. This change will be due to the candidate being given the power as a result of his electoral win. This power is not dictatorial. This power is not freewheeling. It comes with rules, conditions and protocols of decision-making. And hence, it should not be assumed that a candidate pitching contentious and potentially divisive policies during campaigns when given power will be able to do exactly same things. That is the strength of the democratic system.  Otherwise, one can forever imagine and probably introduce more workable election procedures and keep finding problems with the winning candidate because he may end up acting in problematic ways. That failure of the winning candidate is not because he was not voted by the right procedure. What stands as a guarantee in the ranking system that the winning candidate who will ‘truly command majority support’?

If the challenge is to arrive at an election system which leads to a winner who truly commands majority support then that elegant suggestion by the authors is well taken. But for those who are keen on understanding leaders in roles of power and acting in full public glare, this is only a wishful arrangement. There are other variables like human behaviour which can lead to equally desirable or undesirable outcomes. The point is to throw light on those situations that can make a useful contribution to political theory.

 

(Sachin Tiwari is a graduate student of Master of Public Policy in the National Law School of India University. He can be reached at sachin.t@nls.ac.in)

 

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Case Study on Elections and Decentralisation

Meenu Maria Joseph

Elections and Decentralisation: A Case Study of Kudumbashree in Select Panchayats of Kerela

Understanding Kudumbashree

Kudumbashree, the flagship poverty eradication programme of Kerala government was launched in the year 1998 in urban Alappuzha and in rural Malappuram under the aegis of Government of Kerala to scale up the strategy to the entire state. This was to be introduced through concentrated community action with the support of the Local Self Governments (LSGs) that would facilitate convergence of the available schemes and resources to tackle the multiple dimensions and manifestations of poverty holistically. For this purpose, Kudumbashree with the support of the LSGs facilitated the building of Community-Based Organisations (CBOs) of women across the state. Today, with the participation of more than 41 lakh women; Kudumbashree is the biggest CBO in Asia.
The primary aim of Kudumbashree was to eradicate poverty in the state by the year 2008.Women were recognised as the most suitable drivers for bringing about poverty eradication. Even though women emancipation was an unintended consequence, Kudumbashree ensured one of the most successful examples in independent India of women empowerment along with the elimination of poverty.
The 73rd and the 74th amendment of the Indian constitution coupled with the Kerala specific legislation in 1994 were crucial for the effective decentralisation process of Kerala. Kerala initiated a process which probably no other state in India would have implemented. People were involved in the consultation, identification of problems and development of effective solutions at the local level. The state government set aside nearly 40% of the planned fund for the panchayat bodies. This required each panchayat preparing detailed plans for the devolution of the funds. They were also encouraged to enhance the collection of own revenue, which had been an important source of income for panchayats in Kerala even before the decentralisation process (Kannan and Jagajeevan, 2013).
The people’s plan campaign was probably the single largest experiment in local democracy strengthening people’s voices and giving them a role to play in the decision that affects them. This process directly impacted the lives of nearly 31 million people across the state. It led to the emergence of several landmark mass programmes and certainly Kudumbashree being the most important one of them.

Process of Development of the Kudumbashree Structure

Practices such as Pidiyari sambadhyam, Kuri Kalyanam, Weekly chit funds, Kettu Thengu project etc. are examples of traditional saving schemes that existed in Kerala wherein a mutual support system existed to help each other in cash and kind was an inspirational idea for the setting up of Kudumbashree in the state.
Two important initiatives under the PPC, firstly, the creation of Women Component Fund under the Gram Panchayats and secondly, the idea of making women Neighbourhood Groups, an important tool for better functioning of Gram Sabhas- both strengthened the thoughts on the emergence of the Kudumbashree project in Kerala.
There are several programs which provided the background for the thought process of introducing a model like Kudumbashree for poverty eradication in Kerala. The Urban Poverty Alleviation Programme implemented in Alappuzha municipality in 1992 – 93 formed NHGs of women in seven wards, formed a Community Development Society (CDS) and started functioning as a CBO network. This model spread across all 36 wards in the Alappuzha municipality by 1993 – 94. This model was then adopted by all the Panchayats in Malappuram district in 1994. By 1995, this model was adopted by 58 municipalities across Kerala. In 1995 – 96, the Kerala Municipalities’ Act was amended to include that two per cent of the municipalities own fund would be kept aside for poverty eradication activities.
In 1994, apart from the Poverty Alleviation Project, Malappuram district had also implemented the CBNP project with the assistance from UNICEF under which 4000 plus NHGs were formed. It was registered as a State Poverty Eradication Mission in November 1998 and it became functional in April 1999.

Structure of Kudumbashree – The Community Based Organization

Kudumbashree developed an innovative methodology to identify the poor using non-economic parameters. The poor thus identified are organised under a well networked Community Based Organization (CBO).

Kudumbashree

Neighbourhood Group (NHG)

The lowest tier constitutes the Neighbourhood Group consisting of 10-20 women members from economically backward families. Meetings are convened on a weekly basis in the house of one of the NHG members. In the weekly meetings, all members bring their thrift, which will be collected and recycled to the system by way of sanctioning loans. The thrift amount is decided on the basis of how much the poorest member in the NHG unit is capable of paying every week.The NHG has 5 office bearers, who are elected through an internal election process for a period of three years. The office bearers are:
1. President
2. Secretary
3. IGA Volunteer
4. Health and education volunteer
5. Infrastructure volunteer

Area Development Society (ADS)

The second tier is the Area Development Society, which is formed at ward level by federating all the NHGs in the ward. The activities of the ADS are decided by the representatives of the women elected from various NHGs. ADS consists of a General body which consists of the 5 representatives from every NHG in the ward. From the general body, an executive committee consisting of 7 members is elected and this includes the chairperson, vice-chairperson and a secretary.

Community Development Society (CDS)

At the Panchayat / Municipal level, a Community Development Society (CDS), a registered body under the Travancore-Cochin Literacy Scientific and Charitable Societies Act is formed by federating all ADSs in the Panchayats. The CDS is constituted by a General Body which consists of all ADS Governing Body members. Further, an Executive Committee is selected through elections and consists of representatives of each ADS. From the CDS executive committee, a chairperson and a vice chairperson are elected. The chairperson is the highest office bearer of Kudumbashree in a panchayat.

Studying the Election process

The elections to the three-tier structure of Kudumbashree concluded on the 25th, January 2015 immediately after the start of my internship. Even though Kudumbashree came into existence in 1998, the elections to the three-tier structure lacked uniformity and there was a clear political intervention for obtaining the top positions in the organisation. Elections to the NHGs was often presided by the panchayat ward members. The president, the secretary and the other volunteers were decided based on the preference of the panchayat representatives. Often importance was given to members with education. This essentially meant that everyone in an NHG unit didn’t have an equal chance of becoming an office-bearer. When the volunteers weren’t nominated by the members themselves, the democratic character of the elections was lost.
The existence of the three-tier structure was also not uniform. For instance, in some panchayats, the CDS, ADS and the NHG existed for 1 year and in others for 2 years etc. before 2008.
Positions to the top office namely the election of the CDS chairperson and the vice chairperson was undertaken under political considerations. The CDS office more often than not lacked autonomy through the constant intervention of the panchayat officials. Panchayat officials being elected directly by the people considered themselves superior to the CDS office bearers and constantly subjugated them. The CDS bye-law which came into existence in 2008 rejuvenated the election process by regaining the confidence of women and gave a new life to Kudumbashree.
I was assigned with the task of evaluating the entire election process after the initiation of the CDS bye-law in 2008 and also to study how the initiation of democratic elections into a poverty eradication policy is capable of altering the social-democratic capabilities of women. For the purpose of the study, I was expected to undertake both desk research as well as field work. The desk research was mainly to understand the election to the three-tier structure before 2008 and how it has changed with the initiation of the bye-law. I also conducted discussions and interviews with several people who have been working within the fold of Kudumbashree to understand how the election process has changed over the years.
For my field work, I was assigned to evaluate the election process of the panchayat of Pandalam Thekkekara in the Pathanamthitta district of Kerala for a span of one week. During this process, I attempted to study the election process to all the three structures. For this purpose, detailed interviews were conducted with several NHG units, office bearers of ADS and CDS. In the course of my interaction with women, the focus was on understanding how after assuming roles of leadership through the election process their capabilities have been altered. Attempts were also made to understand if the election process was transparent and if there was any kind of political influence during the conduct of these elections.

Bringing a Democratic Process to a Poverty Eradication Program

Kudumbashree made a relatively late arrival to the panchayat of Pandalam Thekkekara in the year 2002. But it has undoubtedly transformed the lives of women and the way a male-dominated society perceived them. It has been a long journey in transforming a society wherein women were meant to be within the four walls of their houses to a time where women are holding positions of power and are involved in all the major decision-making process of the panchayat. Kudumbashree has undoubtedly played a pivotal role in altering the lives of millions of women. The success of Kudumbashree lies in making women partners in the democratic process. For many a journey from a normal member to an office bearer has greatly transformed their lives both personally and their stature in the society.
Women in this panchayat clearly recall how men in the house detested the idea of their womenfolk joining Kudumbashree and sitting in a circle of other 10-20 women. For men, Kudumbashree in its initial phase was just a gathering of a set of women from the neighbourhood sitting and gossiping and coming together for no constructive purpose. But the initial success of Kudumbashree started changing the tide of things when men pushed their women to get out of the houses and become a part of the neighbourhood groups.
By becoming a part of the Kudumbashree network women now had their own set of savings which could be put forth along with the income of the men in the house. With ready availability of loans which could be repaid at minimal interest rates, Kudumbashree clearly ensured greater financial independence for women and relieved them from constantly demanding money from men for every small need of the household.
Most women in the panchayat proudly claim about handling all the expenses incurred for the kids in the beginning of an academic year. All major expenses right from the purchase of uniforms, books etc. are completely handled from the savings a woman gathers from Kudumbashree. With the initiation of MGNREGA, this process has become more enhanced.
Most women recount a time when they didn’t even know how to withdraw money from the banks and had to go in a group of 3 or 4 for any bank transaction. Now every woman has a bank account of her own by being in the fold of Kudumbashree and later in MGNREGA.For many signing a cheque on their own has now become a sign of empowerment.
Being involved in Kudumbashree has brought in significant changes in the way women were perceived in the society. Not only have women been economically empowered but she has also been socially strengthened. Activities are not limited merely to a weekly collection of money and internal lending or setting up of micro enterprises. With the involvement in Kudumbashree, complete development of women has been ensured. Right from the weekly discussions of the happenings in the society to the regular training and classes has successfully opened up new horizons for women. Things which seemed completely inaccessible now seem to have become an integral part of their lives.
This is true with women assuming roles of leadership within the NHG units and the structure upwards. The office bearers of the three tiers have now become involved in the entire decision-making process of the panchayat. We see a scenario wherein they sit along with the Panchayat representatives and pose questions, seek clarifications and put forth their suggestions. Assuming roles of leadership within the three tier structure of the Kudumbashree has instilled the confidence and have given them space which was purely dominated by men till more recently. Many of them after assuming various roles of leadership within the fold of Kudumbashree have joined active politics and have gone on to contest elections for the post of panchayat presidents or the MLA etc.

(Meenu Maria Joseph is a graduate student of Master of Public Policy in National Law School of India University. The article is based on a month-long field trip to study the election process of Kudumbashree Kerala. Email: meenujospeh@nls.ac.in )

Featured image source: http://www.ipsnews.net/2008/09/india-empowering-women-is-about-basic-funding/
Other images: author.

The Rural Rural Divide: Mobile Phone in Rajasthan

Srisagar B.

Mobile Phone Penetration in Rural Rajasthan Understanding the Rural-Rural Divide: A Study of Two Panchayats

India’s tryst with telecommunication began with the laying down of the first telegraph line between Calcutta and Diamond Harbour in 1850 and setting up of a separate department of posts and telegraph in 1854. Since then India has come a long way from ‘land line phones’ to ‘GSM’ mobiles. The telecom revolution in modern India began during the liberalisation period (1990) when the mobile phone subscribers increased from just 10 lakh to 94 crores until December 31st, 2014, making India the world’s second-largest mobile phone user base (TRAI, 2014). After the opening up of the economy in 1990, private investment in the sector of Value Added Services (VAS) was allowed and cellular telecom sector was opened up for competition from private investments. It was during this period that the Narasimha Rao-led government introduced the National Telecommunications Policy (NTP)  in 1994, which brought changes in the following areas: ownership, service and regulation of telecommunications infrastructure. The policy introduced the concept of ‘telecommunication for all’ and its vision was to expand the telecommunication facilities to all the villages in India. Liberalisation in the basic telecom sector was also envisaged in this policy. The LPG (Liberalisation, Privatisation & Globalisation) policies of the 1990s created huge inequalities in society as we focused more on growth and less on distribution. One such inequality related to telecom sector is between ‘digital haves’ and ‘digital have not’s’. As it is said that India lives in its villages, it has created a huge rural-urban digital divide as development in telecom sector was focused mainly in urban areas leaving the rural people behind. This is the challenge for the future policy makers to reduce this digital divide between rural and urban people. My study focuses on how people in two panchayats (Kakarmala and Barar) of Rajasthan were accessing mobile phone technology, two decades after the country opened up to the mobile phone revolution.

Location of the studyim1im2

My first field trip was on October 27, 2014, to October 31, 2014. I had been to Khakarmala Panchayat of Amet Tehsil in Rajasamand district of Rajasthan. In my second field trip from November 4, 2014, to November 8, 2014, we had been to Barar Panchayat of Bhim Tehsil in Rajasamand district of Rajasthan.

Rural-rural digital divide

The Khakarmala Panchayat had no internet or mobile connectivity, whereas as the neighbouring village Nanana, which was just 2 km away had network coverage. The main reason for this is the hilly topography of Rajasthan and while travelling from Nanana to Khakarmala. This was creating a Rural-rural digital divide between the two villages.

Usage of mobile phones by different kinds of people

Accredited Social Health Activist (ASHA) workers

ASHA workers in Rajasthan were using their mobile phones to contact Auxiliary Nurse or Midwife (ANM) and doctors before bringing a pregnant woman to the Primary Health Centre (PHC). It can be said that usage of the mobile phone by ASHA workers in an effective way has reduced the MMR to some extent.

I compared this with a similar service in my home state Karnataka, in the south of India. Mother and Child Tracking System (MCTS) in Karnataka: an example for usage of mobile phone effectively in public service delivery. This is a centralized web-based application for improving delivery of health care services to pregnant women and children up to five years of age through name based tracking of each beneficiary and monitoring service delivery. The ASHA worker identifies the pregnant women in her locality and persuades her to come to PHC for health checkups. Once the pregnant women visit the PHC for the first time her mobile phone number is noted down in a registry and fed into a computer database which in turn sends SMS to the mobile phone of the pregnant women informing her of the next due date for a check up.

Once the baby is delivered periodic SMS are sent until the baby turns five years informing the mother about the immunisation and vaccination programs being run in her locality. Also, nutrition tips for feeding the baby are sent over the phone.This kind of public service delivery system using mobile phone has helped Karnataka to reduce MMR and IMR. The state was awarded the Rockefeller foundation innovation award in 2011 for making use of technology effectively for public service delivery.

Farmers

Few farmers in the villages we met were using their mobile phones to call ‘kisan call centre’ (1800-180-1551) to get the market price of their produce so that they are not cheated by the middlemen who directly buy from the farm of the farmer.

Women in the house

The villages we had been to, had a huge outward migration of the male family members. So the women in the house used their mobile phones to stay connected with their male relatives and children.

College going students

The college-going youth in the villages used mobile phones to stay connected with their friends via Whatsapp and Facebook.

Markets for mobile phones in Bhim town

The picture below shows a place called as Badnaur Chauraya in Bhim town where the study was conducted. This is the place where people from surrounding villages congregate on every Thursday to participate in a fair. This fair is usually organised on Thursday because it is a holiday for MGNREGA workers in Rajasthan.
The study was conducted in this area by interviewing 5-6 mobile shop owners.

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The number of mobile shops has increased from 15 in 2008 to 90 in 2014. This shows that the mobile phone market is expanding and the demand has increased enormously and hence the number of shops.

Type of mobile phone most sold

Spice (M-5007) is the most sold mobile phones in the Bhim market. 20-30 pieces of Spice (M-5007) mobile are sold every month per shop depending on the location of the shop. The reason for people choosing this one particular model over the other is that it is cheaper, simple to operate, supports regional language and has long durability.

Most preferred networks

Almost 60 percent of the mobile phone owners subscribed to ‘Airtel’ network, 30 percent of them to ‘Vodafone’ and the remaining 10 percent to BSNL. The reason for this is the quality of network offered by the private players and easily available SIM cards at low cost.

Effect of MGNREGA (Mahatma Gandhi National Rural Employment Guarantee Act) on mobile phones

I happened to talk to two women in the mobile shops who were buying mobile phones from the savings they had done by working under MGNREGA. It is no doubt that MGNREGA has increased the purchasing power of the people and also empowered the rural women by putting money into their hands as more than fifty percent of the MGNREGA workers are women. It is not that only literate people can use the mobile phone, but also the illiterate can operate the basic function of receiving and making a call. So mobile phone is no more a luxury good, it has become a basic necessity for the people and has become a part and parcel of their life. So mobile phones have been as indispensable as the three basic necessities of life, namely, Roti, kapda, makan – “Roti, kapda, makan aur mobile phone”.

Conclusion

Mobile phone technology is a wonderful platform that still needs to be explored for effectively delivering public services. The TRAI data shows that mobile phone penetration India is skewed towards urban centers with a teledensity of 142 percent whereas rural areas witnessing a teledensity of 40 percent. So one has to take this huge digital divide into account before deciding to make mobile phones as the core for the beneficiaries to receive their entitlements. Mobile phones with internet connectivity would make life simpler for the citizens to access services of the government. Also, it is very important to provide internet connectivity to the panchayat offices as they are the main source of contact for the people in villages. So the Government of India in 2011 has come out with a project called as National Optical Fiber Cable Network (NOFN) to connect 2 lakh odd Gram Panchayats with broadband connectivity so that the people in the rural areas can access the government services offered over the internet. Also, few initiatives like ‘internet.org’ by social media website Facebook which offers to provide free internet facility by placing drones over an unconnected locality would go a long way in bringing down the rural-urban digital divide in India. So connectivity should be seen as a basic human right in future for the all round development of the country.

Bibliography and References

Bharat Broadband Network Limited (n.d.). Project National Optical Fibre Network (NOFN). Retrieved on 27 February, 2015 from http://www.bbnl.nic.in/content/page/national-optical-fibre-networknofn.php .

TRAI (2015, February 6). Highlights of Telecom Subscription Data as on 31st December, 2014. In Press Release No. 11/ 2015. New Delhi: Telecom Regulatory Authority of India.

(A graduate engineer having worked with a leading IT firm of international repute and a gym enthusiast, the author is reading for Master of Public Policy (2016) at the National Law School.)

Featured image source: http://www.pciglobal.org/portfolio-posts/economic-empowerment/
Other images: author.

The Executive Vs the Judiciary: The Ghost of Rex Lex

Anirudh T.

The Executive Vs the Judiciary: The Ghost of Rex Lex with special focus on the Judicial Accountability Commission (JAC) Bill 2013, and the 120th Constitutional Amendment Bill (CAB)

Before Aristotle, the belief was Rex Lex or ‘The King is Law’. But it was the great Aristotle of Stagira who proposed Lex Rex or ‘The Law is King’. This was later popularized by the British jurist, Albert Venn Dicey as ‘The Rule of Law’(RoL). According to Dicey, RoL is one of the fundamental principles of any civilized legal system. He attributed the following three meanings to it: (i) Supremacy of Law, (ii) Equality before Law and (iii) Judicial Independence.

The founding fathers of the Indian Constitution ensured that this principle of Rule of Law was enshrined in the document. Consequently, this was included in Article 14 as the ‘Right to Equality’ which includes: (i) Article 14 (a) – Equality before Law and (ii) Article 14 (b) – Equal protection of the laws. The independence of Judiciary under Article 50, Part IV, Directive Principles of State Policy. Our Constitution mandates an integrated judiciary with the Supreme Court (SC) at the apex court under which High Courts (HC) and subordinate courts function. The Supreme Court has been vested with the responsibility of being the guardian of the Indian Constitution and a faithful custodian of the fundamental rights. This was also suggested by Dicey, who had said that rights would be secured more adequately if they were enforceable in the courts of law.

The great French luminary Montesquieu elucidated the doctrine of separation of powers viz. The Legislature, the Executive and the Judiciary, with appropriate checks and balances. The interference of the Executive in the functions of the Judiciary has repeatedly happened in India. This article especially focuses on the contentious CAB and JAC bills, 2013. The independence of Judiciary, recognized as one of the basic features of the Constitution in the several landmark judgments of the Supreme Court of India, must be respected and any attempt to abrogate it by any of the State institutions should draw attention of not only the legal community but also each and every citizen of this country as the repercussions of such an action would touch every life aspiring and hoping to get justice. A history of such interferences by the Executive is also discussed along with the evolution of the present day “Collegium System” of judicial appointments accompanied by the reasons for its criticism. Finally, the article touches upon the pièce de résistance of the theme, the Executive’s malicious attempt to muzzle the Judiciary’s enthusiasm with the Machiavellian JAC Bill 2013. The threat of the return of Rex Lex looms in the form of the controversial JAC Bill 2013 and the CAB 2013.

Brief History

The independence of the Judiciary has been recognized as one of the basic features of the Constitution (Kesavananda Bharati Vs State of Kerala 1973). This principle of independence of Judiciary also compliments the constitutional principle of the separation of powers.

The first instance of interference by the Executive was the bypassing of senior judges (Justices Hegde, Shelat and Grover) to the post of the Chief Justice of the SC in April 1973, instead, A.N. Ray was appointed superseding the above three senior judges. In 1975, as a result, the SC’s decision in Indira Gandhi Vs Raj Narain 1975, upheld the verdict of Allahabad High Court declaring Prime Minister Indira Gandhi’s election ultra vires to the election procedures. Subsequently, the Emergency was declared on 25th June, 1975 unilaterally. In 1976, HC judges were transferred without providing valid reasons by the Government.

The 42nd Amendment to the Constitution was introduced in 1976, It introduced Articles 323A and 323-B, which was an attempt to curb judicial independence. Article 323-A, empowered the Parliament and Article 323-B, the respective State Legislatures, to create tribunals which could adjudicate upon disputes, which were originally under the jurisdiction of the SC and the HCs. There was also a provision made to transfer pending cases from HC to these special tribunals. These tribunals were also empowered with judicial review, giving rise to a parallel judiciary remote controlled by the Executive itself.This would have set a dangerous precedent and an independent judiciary would have just been a farce in such a system where the balance of power with delicate checks and balances institutionalized by our Constitution would have been disturbed with direct interference in the independent functioning of the judiciary.Without an independent judiciary, a vibrant democracy is impossible to imagine and it would ultimately lead to concentration of power following the trail of autocracy by institutionalizing a “surrogate judiciary” put in place by the executive to compete and subdue the original institutions of judiciary enshrined in the Constitution.

The Judiciary has upheld its credibility, respecting the Constitution by exercising constraint on its jurisdiction. In the Rustom Cavasjee Cooper Vs Union of India 1970, the SC held that the court is only required to adjudicate the legality of the policy, its coherence with the Constitution and not its contents, merits or demerits. In the Delhi Science Forum and Others Vs Union of India 1996, the Supreme Court held while rejecting a claim against opening up of the telecom sector, reiterated that the policy efficacy must be debated in the Parliament alone and not in the courts.

Evolution of The Collegium

In S.P.Gupta Vs Union of India 1981, the SC opened the weir to executive interference in the appointment of judges by making the executive the ultimate authority in the appointment of judges of SC and the HCs.It could consult the CJI but the executive was not bound to act in accordance with the CJI’s recommendation completely tilting the pivot of power towards the executive. This was subsequently overruled by the SC in Advocates- on- Record Association Vs Union of India 1993, a nine judge’s bench decision restored the balance in favour of the Judiciary by introducing the ‘Collegium System’. The Collegium is a system under which appointments and transfers of judges are decided by a forum of the Chief Justice of India and the four senior most judges of the SC and three senior most judges of the HC.

According to the Constitution, Article 124 deals with the appointment of SC judges. It says the appointment should be made by the President after consultation with such judges of the HCs and SC as the President may deem necessary. The Chief Justice of India (CJI) is to be consulted in all appointments. Article 217 deals with the appointment of HC judges. It says a judge should be appointed by the President after consultation with the CJI and the Governor of the state. The Chief Justice of the HC concerned too should be consulted. Article 222 deals with the transfer of judges.Article 124, 217 and 222 all are very significant in constitutionalizing the independence of the judiciary. A constitutional backing would be absolutely necessary to protect and safeguard the offices of the judiciary from executive interference for time-bound delivery of justice to common man.The executive encroachment would have been imminent in the absence of such a constitutional provision providing for judicial independence, again clearly mentioned under Article 50, Part 4, Directive Principles of State Policy emphasizing the importance of maintaining the delicate balance of powers with checks and balances, the most important prerequisites for a vibrant democracy. In the presence of these constitutional safeguards for judicial independence itself, there have been repeated attempts to penetrate the judiciary, we just cannot imagine the counterfactual!

In 1998, there was a Presidential Reference to SC as to what the term ‘consultation’ between the President and the CJI meant in the Articles 124, 217 and 222 of the Constitution. The term ‘consultation’ was defined very elaborately that it is not discretionary but it involves a series of internal peer consultations in the judiciary in writing and such a recommendation should be in accordance with such internal consultations. The collegium system gradually took its current shape and finally introduced for the appointment of judges.It is this watershed moment of giving a concrete definition to the term “consultation” by the SC that leads to the gradual development of the current collegium system of appointments.It doesn’t allow to vest the power of appointments in a single office of the Chief Justice of India, eliminating discretion and infusing a more democratic flavour to the appointment of judges by including other senior SC judges in the loop of decision-making.This definition simply implies that this recommendation to the executive is not just from the CJI but from the judiciary as a single organic institution.

However, the Collegium system has been criticised as an opaque and a non-accountable system. Justice Ruma Pal, a former SC judge, calls it as “one of the best-kept secrets in the country” (Shah, 2012). The administrative burden of appointing and transferring judges without a separate secretariat or intelligence-gathering mechanism is another lacuna in the system. To eliminate non-transparency, CAB was proposed.

CAB 2013 – a coup de grâce for the Indian Judiciary?

The proposed JAC Bill, 2013 (pending before the Parliamentary Standing Committee) and the CAB 2013 (already passed by Rajya Sabha) aim to constitute JAC instead of the incumbent Collegium in the appointment and transfers of SC and HC judges. According to the Bill, the JAC will consist of (i) CJI, (ii) two senior most judges of the SC, (iii) Union Minister for Law and Justice, (iv) two eminent jurists to be nominated by the Prime Minister, CJI and the Leader of Opposition and (v) the Secretary to the Government of India in the Department of Law and Justice.

The alternative to the Collegium was a National Judicial Commission (NJC). The Constitution (98th Amendment) introduced in the Lok Sabha by the NDA Government in 2003. It provided for the constitution of an NJC to be chaired by the Chief Justice of India and with two of the senior-most judges of the Supreme Court as its prime members representing the Judiciary. The non-judicial members of the NJC would not be endowed with any voting rights regarding the appointments and transfer of judges. But, they would play an important role in conveying its views, making recommendations and providing fruitful suggestions to the Judiciary in its process of appointments and transfers. These recommendations for the non-judicial side would not be binding on the Judiciary.

The ‘raison d’être’ of the non-judicial side is that it would help in establishing a double feedback channel with the Executive and with the highest echelons of the civil society, taking all the stakeholders on board and also keeping the checks and balances on the State institutions intact. The NJC ultimately, would decide the appointment and transfer of judges and also probe cases of misconduct by judges, including those of the highest judiciary.

The appointments and transfers of judges, their qualifications and antecedents would be published and updated regularly on the NJC’s website. A dedicated, digitized All India Judicial Registry would be created consisting of all the judges’ records, previous judgments, qualifications, experience at the Centre and in the States The NJC would also be armed with wings connected to the proposed Lokpal.

Separate judicial tribunals and fast-track judicial courts would be established to deal with the cases that would arise involving the alleged corruption in the offices of the Judiciary. Such a reform would safeguard the independence of Judiciary and at the same time introduce transparency, accountability into its system and further instil the trust and faith in its ardent believers.

Conclusion

This JAC Bill 2013 and the CAB 2013 pose a serious threat to the independence of Judiciary and the other democratic institutions in our country. There may be lacunae in the Collegium system, but the Executive’s interference in the Judiciary’s affairs in the form of JAC cannot be the solution. The judicial appointment is the sole prerogative of the judiciary.

The enthusiasm to reform the Judiciary by the Executive must be channelled in a direction in which alternatives can be sought without abrogating the basic structure of the Constitution. We should remember the old saying that “a bad remedy can be worse than the disease itself”.

Bibliography and References

Divan, A. (2013, June 14). A trojan horse at the judiciary’s door. Hindu. Retrieved on 25 February 2015 from http://www.thehindu.com/opinion/lead/a-trojan-horse-at-the-judiciarys-door/article4811353.ece

PRS Legislative Research. Last viewed on 24 June 2014 at http://www.prsindia.org.

PTI. (2013, August 29). Bill to scrap collegium system of appointing judges. Hindu. Retrieved on 26 February 2015 from http://www.thehindu.com/news/national/bill-to-scrap-collegium-system-of-appointing-judges/article5071469.ece

Shah, A. P. (2012, January 26). Who should judge the judges? Hindu. Retrieved on 22 January 2015 from http://www.thehindu.com/opinion/op-ed/who-should-judge-the-judges/article2832090.ece

(A graduate engineer, university hockey player and an Indian civil service aspirant, the author is reading for Master of Public Policy (2016) at the National Law School.)

People’s Governance

Deepa K. S.

Governance has come to denote a larger domain of decision-making of which government is only a factor. With increasing democratization in parts of the world, governance in development literature stands for decision-making. Development itself has come to mean the enlargement of choices and a way towards fulfilling human lives. Traversing the path of this enlarging definition, this section is devoted to thoughtful takes on what it means to be developing in an environment of governance and participatory decision-making. This is especially relevant for a country like India, whose vantage point gives valuable insights into how people’s power work in a complex calculus of power.

Image Credit: guardian.com