PM Modi’s Visit to Nepal: Challenges and Opportunities

C D Sahay, 

Distinguished Fellow, VIF

The past three months since the Narendra Modi-led NDA government assumed office in India have been momentous in terms of defining, inter alia, a new era of Indo-Nepal relations. The pace at which events have unfoldedhas been unprecedented. Starting with Nepal Prime Minister Koirala’s visit to New Delhi in end-May 2014 to attend the swearing in ceremony of the Modi cabinet in response to the new govt’s invitation to all the SAARC leaders to the event, there have been two further high level contacts between Kathmandu and New Delhi over a short span of less than two and a half months. On July 25-26, Foreign Minister Sushma Swaraj was in Kathmandu to attend the third meeting of the Nepal India Joint Commission, held after a long gap of 23 years! These were followed by the big one.

Prime Minister Modi paid a two-day high profile visit to on August 3-4, 2014, the first bilateral visit by an Indian Prime Minister to Nepal since 1997 by the then PM, I K Gujral. The long gap between the two visits should certainly not be seen as reflective of any dilution in the importance that India attaches to its relations with a close neighbour like Nepal. Possibly, it was more on account of the internal turmoil and intense political instability that Nepal experienced since the Maoist led armed agitation that commenced in 1996 and eventually led to the establishment of a new political order in 2006. And even after that, political confrontation and the state of uncertainty did not abate. To say the least, it has not been smooth sailing for the newly established dispensation in Nepal that is still struggling to give the country a constitution and a well settled political order even after four years of the first Constituent Assembly and almost a year’s existence of the second.

Modi’s visit was hailed by analysts, media and the political leaders cutting across party lines, as a ‘historic’. This was not so much for the number of agreements and protocols signed or for the commercial deals stuck during the visit. In fact, on these parameters, there could have been a touch of disappointment at the absence of any big-ticket announcements. However, a closer look at the list of issues highlighted in the joint statement issued at the end of the visit does not paint an entirely disappointing picture. Apart from reiteration of the two governments’ determination for promoting sub-regional cooperation through the mechanism of the re-activated Joint Commission, the agreements included a soft credit line of US$ 1 billion, assistance for development work in Janakpur, Baraha Chetra, Lumbini and Pashupatinath, increase in ITEC and Colombo Plan scholarships to 250, setting up of Pancheshwar Development Authority within 6 months for rapid development of the Upper Karnali Hydropower Project, finalization of agreement on Power Trade Agreement (PTA) within 45 days, establishment of Project Development Authorities for Arun III, Upper Marsyangdi and Tamakoshi III, assistance in completion of the Mid Hill Highway, bridge over Mahakali River, completion of Postal and feeder roads, cross border rail connectivity etc.

The visit of PM Modi was, it could be said, more remarkable for its all-round impact on the hearts and minds of the Nepalese people. The Indian Prime Minister managed to convince his political interlocutors and the larger audience comprising the common people that India was not interested in playing the role of ‘a big brother’ but that of an ‘elder brother’. India was Nepal’s ‘best friend’, fully committed to upholding its sovereignty. PM Modi also reiterated India’s willingness to renegotiate the 1950 Treaty of Peace and Friendship, an issue that has been raised oft and on by a motivated section of the Nepalese political parties. Moving a step further, the two Prime Ministers even agreed to review, adjust and upgrade other agreements and treaties as well, to ‘better reflect the current realities’. This should give the govt. and the people of Nepal the level of comfort and assurance that India does not intend to ‘impose’ its will or agenda on them.

It is not yet clear whether the Nepalese side has made up its mind on the shape and content of new or modified agreements that it wants to enter into with India. What is, however, certain that the Nepalese approach to some of their long standing demands on the issue would set the templates for the future shape of bilateral relations. Nepal has to clearly define its priorities. As far as the Modi government is concerned, it has clearly indicated its commitment to work for peace, stability and all round economic development in India’s neighbourhood. It seems prepared to walk the extra mile to achieve this, particularly with Nepal.

His other political messages were equally unambiguous. He stressed the need for Nepal to draft a new constitution providing for a federal democratic republican state that ‘brings the poor and the rich, the rural and the urban, those hailing from the mountains and the Terai’, together. Modi’s message also carried a subtle hint that ethnicity or identity-based polices may not work in the present context. Most significantly, he expressed the view that peace must triumph over war.

While there could be some validity in the general perception about India’s track record in delivering on its project related promises not only in Nepal but even in some of our other neighbours. As far as Nepal is concerned, a part of the blame must be shared by the Nepalese side as well. For one, the leaders there seem to suffer from a pronounced, though highly misplaced, sense of being overwhelmed by India through ‘unequal’ treaties and agreements. They prefer to see a lurking Indian design where none really exists. In contrast, one does not come across any major media campaign of this nature in dealing with bilateral arrangements with other countries! It is entirely up to the leadership to create a favourable environment in Nepal for a more positive and productive engagement, based on trust and understanding. Nepal has to come to a clear determination of what kind of relation it wants to have with India. In this context, political observers maintain that this can happen more easily and smoothly with the establishment of a strong and stable political order in the country.

For far too long, Nepal’s political order has been in a state of flux. In fact, for over the last nearly two decades, the country has been beset by lack of effective governance and absence of development oriented approach to its economic reconstruction. There could be many reasons for this but the prime factors have been identified by political analysts as a bitterly fractured political order resulting in the absence of stable political order, deep rooted suspicion between political parties based on ideological differences, ethnic divides, lack of consensus among the political stakeholders on key issues of national concern, and such others. Most of these problems, it is argued, emanate from two critical decisions taken by the political parties after the ‘revolution’ that established a democratic republican order in the country. These were (i) clubbing together of the tasks of governance and constitution drafting in the same body namely the Constituent Assembly (CA) and (ii) the unwieldy size of the CA itself. As a result of the former, the CA leaders allegedly spent more time and energy in forming alliances to set up governments and then undermining them to form new cabinets. The second decision to establish a large CA with 601 elected representatives only ensured that the body charged with the responsibility of delivering a constitution to the new republic in quick time, could not do so even in four years of extended tenure of the first CA. The leaders could not arrive at workable consensus on critical aspects of the new constitution such as federalism, devolution of power, form of government etc. And the same state of confusion continues even in the new CA.

The preceding two paragraphs may otherwise be perceived as unrelated to the main theme of this paper meant to review the visit of the Indian Prime Minister to Nepal and the prospects for the future course of India-Nepal relations. A closer examination of some of the political issues mentioned above would however reveal their deep connect with the political message that Modi carried for his interlocutors wherein he called upon them to prioritize drafting of the new constitution providing for a federal democratic republican state that would address the aspirations and concerns of all sections of the Nepalese people in an inclusive manner. India as a friendly neighbour should be willing to assist in this task in whatever manner it could, taking great care of Nepalese sensitivities and aspirations and fully respecting its sovereignty.

The challenge to build on these commitments and assurances begins now. Political leadership and the official machineries in both countries will have to get cracking in quick time to follow up on the stated good intents. Initial reports suggest that this has already started happening in Kathmandu and in New Delhi. Latest reports indicate the officials have already beaten the time limit of 45 days by finalizing the PTA within a month! There need not be any doubt that Indian side will pursue the implementation process with the same vigour in a time bound manner. This would also be line PM Modi’s commitment to delivering on his promises. It may be noted that this concern was not only mentioned specifically in the joint statement with the two Prime Ministers expressing concern over the slow pace of implementation of various projects but also by laying down clear time frame for completion of negotiations and agreements. Clearly, the euphoria generated by the visit will be translated into concrete action plans to enable the two countries to build on the existing and to further explore the vast unlimited opportunities that exist for mutually beneficial cooperative relations. It would not be over optimistic a statement to conclude the analysis with the hope that the coming years could well set new markers and bench marks for good neighbourly relations.

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Published Date: 8^th September 2014, Image source: http://www.thehindu.com

Uniform Civil Code: Time for a Serious Endeavour

RNP Singh, 

Senior Fellow, VIF

The principle of application of Uniform Civil Code contained in the Directive Principles under Article 44 of the Constitution, describes “The state shall endeavour to secure a uniform civil code for all citizens throughout the territory of India”. This provision of the Directive Principles could not be made possible inspite of sixty- six years of independence even though the Supreme Court, on number of occasions, expressed distress over the government’s failure in enacting a common civil code to end discrimination between various religious communities in matters of marriage, succession and property.

The spine of the controversy surrounding the uniform civil code has been the issue of secularism even though the Preamble of the Constitution states that India is a “Secular Democratic Republic” which clearly means that there is no state religion. A secular state shall not discriminate against any one on the ground of religion. It is not concerned with relation of man with God. In the matter of S R Bommai Vs Union of India (1994), as per Justice Jeevan Reddy, it was held that the religion is the matter of individual faith and cannot be mixed with secular activities. Secular activities can be regulated by the state by enacting laws.

The objection to the implementation of uniform civil code is not a new phenomenon. The objection against it was raised by some Muslim members even in the Constituent Assembly when the motion was placed and debated on 23 November 1948. Some of the Muslim members put forward several objections on the ground of religion and placed amendments. But after thorough debate their amendments were negatived and the motion was adopted.

Mohammad Ismail Sahib (Madras: Muslim) while placing his amendment had argued “if anything is done affecting the personal laws, it will be tantamount to interference with the way of life of those people who have been observing these laws for generations and ages. This secular state which is trying to create should not do anything to interfere with the way of life and religion of the people. Another Muslim member Naziruddin Ahmed while supporting Mohammad Ismail argued “in fact, each community, each religious community has certain laws, certain civil laws inseparably connected with religious beliefs and practices. I believe that in framing a uniform draft code, these religious laws or semi-religious laws should be kept out of its way?” He further said that “what the British in 175 years failed to do or was afraid to do, what the Muslims in the course of 500 years refrained from doing, we should not give power to the state to do all at once.”

Mahmoob Ali Baig Sahib Bahadur (Madras) advocating on the same lines said that “I wish to submit that they are overlooking the very important fact of the personal law being so much dear and near to certain religious communities. As far as Mussalmans are concerned, their laws of succession, inheritance, marriage and divorce are completely dependent upon their religion”.

B. Pocker Sahib Bahadur (Madras: Muslim) while placing his amendment went a step further and said that “it is a tyrannous provision which ought not to be tolerated; and let it not be taken that I am not voicing forth the feelings of the Mussalmans. In saying this, I am voicing forth the feelings of ever so many sections in this country who feel that it would be tyrannous to interfere with the religious practices, and with the religious laws, which they are governed now. He further said, “I wish to submit that they are overlooking the very important fact of the personal law being so much dear and near to religious communities. As far as Mussalmans are concerned, their laws of succession, inheritance, marriage and divorce are completely dependent upon their religion”.

While supporting the motion on Uniform Civil Code, KM Munshi (Bombay: General and Alladi Krishnaswami Ayyar (Madras: General) put forth some such forceful arguments that it did not leave any scope to accept the amendments of Muslim members. Their arguments were so strong and logical that Dr. B. R Ambedkar refused to accept the amendments which were moved to this Article.

K M Munshi submitted that “…It must be remembered that if this clause is not put in, it does not mean that the Parliament in future would have no right to enact a civil code. The only restriction to such a right would be Article 19 (Protection of certain rights) of the Constitution and I have already pointed out that Article 19, accepted by the House unanimously, permits legislation covering secular activities. The whole object of this Article is that as and when the Parliament thinks proper or rather when the majority in the Parliament thinks proper an attempt may be made to unify the personal law of the country.

“….A further argument has been advanced that the enactment of civil code is tyrannical to minorities. Is it tyrannical? Nowhere in advanced Muslim countries, the personal law of each minority has been recognized as so sacrosanct as to prevent the enactment of Civil Code. Take for instance Turkey or Egypt. No minorities in these countries are permitted to have such rights. But I go further. When the Shariat Act was passed or when certain laws were passed in the Central Legislature in the old regime, the Khojas and Cutchi Memons were highly dissatisfied. Then they followed certain Hindu customs; for generations since they became converts they had done so. They did not want to conform to the Shariat; and yet by a legislation of the Central Legislature certain Muslim members who felt that Shariat law should be enforced upon the whole community carried their point. The Khojas and Cutchi Memons most unwillingly had to submit to it. Where were the rights of minority then? When you want to consolidate a community, you have to take into consideration the benefit which may accrue to the whole community and not to the customs of a part of it”.

Munshi further submitted that “It is therefore, not correct to say that such an act is tyranny of the majority. If you will look at the countries in Europe which have a civil code, everyone who goes there from any part of the world and every minority, has to submit to the Civil Code. It is not felt to be tyrannical to the minority. The point however is this, whether we are going to consolidate and unify our personal law in such a way that the way of life of the whole country may in course of time be unified and secular. We want to divorce religion from personal law, from what may be called social relations or from the rights of parties as regards inheritance or succession. What have these things to do with religion I fail to understand?”

While citing examples of the Hindu Law Draft, which was before the Legislative Assembly, K M Munshi submitted “if one looks at Manu, Yagnyavalkya and all the rest of them, I think most of the provisions of the new Bill will run counter to their injunctions. But after all we are an advancing society. We are in a stage where we must unify and consolidate the nation by every means without interfering with religious practices”.

K M Munshi while elaborating his point further said “… I know there are many among Hindus who do not like a Uniform Civil Code, because they take the same view as the honourable Muslim members who spoke last. They feel that personal law of inheritance; succession etc is really a part of their religion. If that were so, you can never give, for instance equality to women. But you have already passed a Fundamental Right to that effect and you have an Article here which lays down that there should be no discrimination against sex. Look at Hindu Law; you get any amount of discrimination against women; and if that is part of Hindu religion or Hindu religious practice, you can not pass a single law which would elevate the position of Hindu women to that of men. Therefore, there is no reason why there should not be a civil code throughout the territory of India”.

Munshi held the British rule responsible for this mindset. He said that “… this attitude of mind perpetuated under the British rule, that personal law is part of religion, has been fostered by the British and by the British courts. We must therefore, outgrow it. If I may just remind the honourable Member who spoke last of a particular incident from Freshta which comes to my mind, Allauddin Khilji made several changes which offended against the Shariat, though he was the first ruler to establish Muslim Sultanate here. The Kazi of Delhi objected to some of his reforms, and his reply was ‘I am an ignorant man and I am ruling this country in its best interests. I am sure, looking at my ignorance and my good intentions, the Almighty will forgive me, when he finds that I have not acted according to Shariat’. If Alauddin could not, much less can a modern government accept the proposition that religious rights over personal law or several other matters which we have been unfortunately trained to consider as part of our religion. That is my submission.”

Munshi’s submission was fully supported by another Member Alladi Krishnaswami Ayyar (Madras: General). Krishnaswami submitted that “A civil code has been pointed out, runs into every department of civil relations, to the law of contracts, to the law of property, to the law of succession, to the law of marriage and similar matters. How can there be any objection to the general statement here that the state shall endeavour to secure a Uniform Civil Code throughout the territory of India?”

While contradicting the arguments of Muslim members that their religion would be put to danger, Krishnaswami said “the second objection was that the religion was in danger, that communities can not live in amity if there is to be Uniform Civil Code. The Article actually aims at amity. It does not destroy amity. The idea is that differential systems of inheritance and other matters are some of the factors which contribute to differences among the different peoples of India. What it aims at is to try to arrive at a common measure of agreement in regard to these matters. It is not as if one legal system is not influencing or being influenced by another legal system”.

While replying to B Pocker (Muslim member) who had levelled an attack against the Drafting Committee on the ground that they did not know their business, Krishnaswami said “I should like to know whether he has carefully read what happened even in the British regime. You must know that the Muslim law covers the field of contracts, the field of criminal law, the field of divorce law, the field of marriage and every part of law as contained in the Muslim law. When British occupied this country, they said, we are going to introduce one criminal law in this country which will be applicable to all citizens, be they Englishmen, be they Hindus, be they Muslims. Did the Muslims take exception, and did they revolt against the British for introducing a single system of criminal law.”

Krishnaswami further argued “Now again there are Muslims and there are Hindus, there are Catholics, there are Christians, and there are Jews, in different European countries. I should like to know from Mr Pocker whether different personal laws are perpetrated in France, in Germany, in Italy and in all continental countries of Europe, or whether the laws of succession are not coordinated and unified in the various states. He must have made a detailed study of Muslim jurisprudence and found out whether in all those countries, there is single system of law or different systems of law”.

After hearing forceful arguments of K M Munshi and Alladi Krishnaswami Ayyar, Dr Ambedkar while rejecting the amendments said “I am afraid I can not accept the amendments which have been moved to this article. In dealing with this matter, I do not propose to touch on the merits of the question as to whether this country should have a civil code or it should not. That is a matter which I think has been dealt with sufficiently for the occasion by my friend Mr. Munshi as well as by Shri Alladi Krishnaswami Ayyar”.

Ambedkar while making his observation on the amendments said “… I think most of my friends who have spoken on this amendment have quite forgotten that up to 1935 the North- West Frontier Province was not subject to Shariat Law. It followed the Hindu Law in the matter of succession and in other matters, so much so that it was in 1939 that the Central Legislature had to come into the field and to abrogate the application of the Hindu Law to the Muslims of North – West Frontier Province and to apply the Shariat Law to them”.

He further observed “My honourable friends have forgotten that apart from the North- West Frontier Province, up till 1937 in the rest of India, in various parts, such as the United Provinces, the Central Provinces and Bombay, the Muslims to a large extent were governed by the Hindu Law in the matter of succession. In order to bring them on the plane of uniformity with regard to other Muslims who observed the Shariat Law, the legislature had to intervene in 1937 and to pass an enactment applying the Shariat Law to the rest of India. I am also informed by my friend Karunakara Menon, that in the North Malabar the Marumakkathayam Law applied to all – not only to Hindus but also to Muslims. It is to be remembered that the Marumakkathayam Law is a matriarchal form of law and not a patriarchal form of law”.

The excerpts of the debate in the Constituent Assembly, on the issue of Uniform Civil Code, mentioned above, does not leave any scope for any further discussion on this subject. The debate is so exhaustive, logical and convincing for all sections that is ample proof to show that it has nothing to do with the religion. Even then, its enactment is delayed and Article 44 of the Directive Principles of the Constitution is kept waiting is a matter of surprise. No further argument for its implementation is needed. The entire country is anxiously waiting to see whether the new government would now make a serious endeavour to secure for the citizens a Uniform Civil Code which is overdue in the absence of any effective or serious move by the earlier governments.

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Courtesy: Vivek: Issues and Options; May-June 2014, Image source: http://i1.wp.com

Disclaimer: The views and opinions expressed in this article are those of the author and do not necessarily reflect the official policy or position of the Vivekananda International Foundation

Things Fall Apart, the Centre Will Not Hold

Dr M N Buch, 

Dean, Centre for Governance and Political Studies, VIF

In 1947, despite the fact that Britain was the imperial power and India was the Indian Empire of the British Sovereign, the British did leave behind certain legacies, certain institutions, which did provide us the framework of administration and which still forms the skeleton and the sinews of our republic. India was governed by laws and we are a society of laws. At the level of the District and Sessions Court, the High Court and the Federal Court (now Supreme Court), the Judiciary was independent of the Executive and though the Magistracy worked under the District Magistrate the District and Sessions Judge exercised powers of both superintendence and supervision over the magistracy, apart from judicial superiority. The Legislature was functional both at the Centre and in the States (then Provinces) and there was an organised Executive consisting of the Covenanted Services (now the All India Services), the Central Services and Provincial Services. The Police was a part of civil government and though a servant of the law it worked under the superintendence of government. However, in the investigation and prosecution of offences the police enjoyed complete autonomy under the Code of Criminal Procedure, a position reinforced by the provisions of Chapter XII Cr.P.C., 1973. The difference between the Code of Criminal Procedure of 1861 and 1898 and the present Cr.P.C. is that the present law brings about total separation of the Judiciary from the Executive even at magisterial level and whereas the Executive Magistracy continues to function under the District Magistrate and is no longer under the supervision of the Sessions Judge, the Judicial Magistracy now stands subordinated to the Chief Judicial Magistrate who, in turn, is subordinate to the District and Sessions Judge.

The nearest thing to a Constitution that British India had was the Government of India Act 1935. This gave India a federal structure in which the centripetal forces were strong and which moved India towards a representational democracy. The Constitution of India as adopted by the Constituent Assembly on 26.11.1949 and made effective from 26th January 1950 borrows heavily from the Government of India Act, 1935, especially in terms of the relationship between the Union and the States. The centripetal character of the Government of India Act 1935 is carried forward in the Constitution of India. Of course we have borrowed from other democratic constitutions also and the Chapter on Fundamental Rights is inspired by the Bill of Rights which forms a part of the American Constitution. Certainly the British, as represented by the Viceroy, did have overriding powers, especially in matters relating to the maintenance of the empire, but seeds of independent, republican India were undoubtedly sown by the Government of India Act 1935. It would be churlish to deny this. The major contribution of our Constitution is that it did away with limited franchise, it recognised all citizens as equals, it extended the constitutional right of equality before law to all persons within the territory of India by Article 14, it eliminated separate electorates, it introduced universal adult suffrage under Article 326 and gave every Indian an equal say through his vote on who will govern India and how it will be governed. This is no mean achievement for a country which virtually shifted overnight from imperial rule to complete independence and that, too, in the midst of strife caused by partition and the massacres which went with it. This happened largely because the British left us the basic infrastructure of a State and our leaders were wise enough to not only keep it intact but to strengthen it. Pakistan lapsed into military dictatorship, despite the fact that we shared a common system and heritage of administration, because Pakistan had no leaders worth the name. The paths of India and Pakistan have diverged completely and whereas our democracy is strong enough to withstand even the onslaught on it between 1975-1977 through declaration of Emergency by Indira Gandhi, Pakistan continues to be just one step away from total chaos.

The first two decades of independence were glorious. The Nehruvian version of a planned economy resulted in massive investment, largely in the public sector, which created the basic capital goods industry in which we were lacking, built the infrastructure of roads, railways, power, irrigation and other key elements of a modern State, revolutionalised agriculture through the Green Revolution and lifted India from the depth of poverty and backwardness to a level where it began to be recognised as a State with great potential. Because the dream of Nehru was socialist, equity was at the core of all development and certainly land reforms gave the farmer hope and the public sector kept the predatory private sector at bay. The present day votaries of liberalisation and privatisation would find these words anathema, but they are too young to have seen the India into which I was born, in which a total of five thousand towns and villages were electrified (India has 5.5 lakh villages), the tiller of the soil was not its owner and we had just staggered out of the shock of the Bengal famine which killed over three million people. These economists, these acolytes of the private sector, who now denounce socialism, would probably not have reached the present place of eminence but for the institutions of higher learning created by the State. Macaulay may have made some Indians literate, but it is Nehru and Maulana Azad who made us educated. The Indian Institutes of Management which were not then the predatory agents of the corporate world, both to provide them employable youngsters and to train them at the cost of the State, charged a modest fee and created management cadres which have served the newly emerging corporate India with great distinction. This is because the fees structure was affordable, the State bore the cost of education, the students were not under pressure to get really high paying jobs because it was government which had invested in their education and, therefore, they were in a position to imbibe education rather than merely improve their own employability. The Indian Institutes of Technology and the Agriculture Universities such as the Punjab Agriculture University, the Pant Agriculture University and Jawaharlal Nehru Agriculture University produced experts in technology, agricultural science and veterinary science who on the one hand propelled India into the space age and on the other converted India into a country of agricultural surplus. It is the State which played the lead role and this is something we must never forget. Today IIsM charge a cripplingly high fee and institutions such as Indian School of Business at Hyderabad and Mohali in the private sector charge a fee which would put Harvard to shame. This has driven any desire for real education out of the management students and made them strive for that skill which will make them fit for high salary corporate employment. The day the Indian Institutes of Technology follow suit, higher education in India will take a nosedive.

Growth has both a positive and a negative side. Without a certain basic level of the economy the nation would be one in which resources are scarce and the economy and psyche of its people will both be coloured by a scarcity syndrome. In an environment of scarcity where there is a cut-throat competition for available resources, it is but natural that the law of the jungle will prevail, the strong will corner the major part of resources and the weak will be reduced to a level of serfdom. Let me give one example. Anyone who visits both Pakistan and India is shocked by the low level of agricultural productivity in Pakistan and is impressed by how far India has developed in agriculture. Not that we do not have drought and hardship from time to time, as is happening in Maharashtra this year, but thanks to Verghese Kurien we are the world’s biggest producer of milk, thanks to Y.S. Parmar we are one of the largest apple producers and because our land reforms have made the tiller of the soil its owner, the incentive to invest in long term improvement is strong and, therefore, whether it is wheat, soya bean or paddy even States like Bihar have moved into an era of surplus. By contrast in Pakistan 120 families own the major part of agricultural land and because the system of tenure and tillage is feudal, despite having the largest perennial irrigation system in the world, the Indus irrigation system, Pakistan’s agriculture is in dire strait. There are many amongst us who decry land reforms because according to them business like capital investment is thereby precluded from agriculture. I have never heard such hogwash in all my life because if we take the cumulative investment made by small farmers, with very encouraging results, it far exceeds the investment that would have been made had agriculture been made over to the corporate world. All this has been possible because India claims to be a socialist republic, not in terms of dogmatic socialism but certainly as an economy in which equity and social justice are the ruling principles and, therefore, land reform became the sine qua non of equitable government.

This is not an essay on socialism and undoubtedly many elements of the Nehruvian model are in tatters. The politics of the country is highly fragmented and fragile and because the desire for power has completely overtaken the desire for service, politics has become immoral, venal and totally unprincipled. There is so much corruption, not only at policy making level but right down to the lowest functionary with whom a citizen may be forced to interact, that we are almost beginning to compete with Kuomintang China. There is no area of endeavour, public or private, in which money, muscle power, intrigue, violence and cheating are not the dominant factors. India was considered a spiritual nation, but now spirituality is replaced by superstition and materialism has eroded value systems. In some ways the country is beginning to resemble a cartoon in which there is a long line of fish ranging from minnow to shark. The larger fish is trying to swallow the smaller one virtually ad infinitum, with the ultimate target being the minnow. Whether it is politics, or business, or social organisation, the largest predator is the one who is bound to win. This is the very antithesis of the society we must try and create so that the words of the Preamble, “Justice, social, economic and political” come true.

The much wider question of ethics, morality, principled politics and good, effective government will be addressed a little later, but let us first see what went wrong with our model of planned development. One can consider here two different models, the Soviet plus Mahalanobis model of a much milder one of state planning as adopted by India; and the Meiji era model that Japan adopted after the Meiji revolution. As the West impacted Japan and that country watched in shock and awe how Commodore Perry’s small American fleet with modern firepower easily overcame the Japanese forces. The Shogunate was overthrown, the Emperor, or Meiji, assumed power and Japan decided to modernise. Being a highly disciplined and organised people the Japanese sent droves of students to foreign universities to acquire a modern, scientific and technical education and the State made heavy capital investment in modern industry. The Japanese economy was totally state driven then, but the great business house, the Zaibastu, were co-opted very early to build and operate the economy. Being practical people the Japanese constantly reviewed development plans and as the business houses acquired skills, managerial ability and trained manpower, the State stepped back, let private business manage industry and increasingly adopted the role of a helper, a facilitator, but also a very strong regulator.

By contrast in India we just allowed the public sector to bloat itself. For the politician it became a cow to be milked for personal profit and a venue for extending patronage. All public sector undertakings became grossly over stuffed, with efficiency being in inverse proportion to staff expansion. Corrupt politicians corrupted the managers and almost the entire public sector became a byword for mismanagement, corruption, inefficiency, indiscipline --- with almost all undertakings making heavy losses and undermining the economy. Because we did not review, evaluate, step back where necessary, co-opt the private sector as it matured , we have brought the entire model into disrepute. Perhaps wholesale disinvestment is not the answer because today the private sector is also thoroughly corrupt and inefficient, but we need to loosen the control of government, give genuine autonomy to the management so that it runs the undertaking efficiently and swiftly punish all objectionable deviations and perversions. The public sector and what we have made of it is only one of the factors which has brought India to its present sorry state. I have been writing ad nauseam that after 1967, when the culture of purchasing power through bribing legislators afflicted us, the objective of being in politics has changed from the old concept of serving the country and instead it has made power and what can be personally gained by power the new paradigm. The old style politician who had come through the freedom movement and was still influenced by the austere philosophy of honest service, ahimsa, satya and satyagraha of Mahatma Gandhi, did not consider power an end in itself, acquisition of power as the sole purpose of being in politics and the loss of power representing the greatest tragedy, gave way after 1967 to a new breed of acquisitive, power hungry, unprincipled and dishonest politicians. The minute this happened no party any longer had any room for ideology, programmes, principled politics, a national vision and a declared and widely publicised policy statement or manifesto. In the absence of ideology and declared policy what remains is (1) management of elections by fair means or foul to maximize representation in the Legislature, (2) coalitions, generally between parties which had no common interests, which would bring the coalition partners to power, to retain which immediate expediency, unprincipled compromises and sheer populism would be the guiding principles of government. All these require complete eradication of conscience, values and morality from one’s psyche, a total rooting out of any feeling of guilt at wrongdoing and a mentality in which wrong became right because it is wrongdoing which brought profit and power. This, then, is the root cause of corruption, because purchasing of power itself is corruption and only corruption can feed the means by which power can be purchased. Corruption then becomes a way of life and once there is indifference or even acceptance, the nation is doomed.

Let us take any issue. There is inflation, which causes middle class unrest and the government answers by tightening money supply through high interest rates. The real cause of high prices is the parallel economy which is not amenable to fiscal or monetary control. A principled government would tackle the parallel economy, but an unprincipled government will not touch it because it is the main source of money for buying power. Therefore, in order to feed the parallel economy and keep it intact unscrupulous businessmen bribe politicians who, in turn, pressurise the civil servants whose duty it is to ensure good government, subject to policies framed by the politicians. The civil servants, in turn, begin to participate in corruption because why should they be left out when everyone else is making money. At a higher policy level this hurts the nation, but it does not directly affect the common man. Corrupt civil servants, however, do not restrict themselves to the high plateaus. They descend into every valley and gulley, and the common man, the one who is most exploited, is squeezed by lower functionaries in the village itself. What is more, all the programmes meant for his upliftment, such as the National Rural Employment Guarantee Programme, are subjected to such massive corruption, such massive leakages, that very little reaches the beneficiary and the major part is swallowed by politicians and officials. This is a negation of government.

We have no shortage of laws and the Indian Penal Code already has sufficient provisions for dealing with murder, rape, communal violence, etc. However, the politicians and influential criminals do not permit the Police to exercise its legal power vested by Chapter XII of the Code of Criminal Procedure, to detect and investigate and prosecute offences. After a while the police also become participants in corruption, with the result that crime goes unpunished. What is our answer? We enact more laws. Old laws are not enforced, harsh new laws increase the opportunities for corruption, crime remains uncontrolled, the average citizen suffers and politicians and civil servants garner wealth. How can such a system function? I am trying to avoid the retired civil servant’s disease of harking back on old days as a golden period and the present era being a black hole by comparison. However, the fact remains that upto 1967, by which year I had put in ten years of service, then upto 1975 till Indira Gandhi imposed a State of Emergency, India did have honest politicians and parties which had ideology. The civil servants, right down to constable, forest guard, village level worker and the Patwari, were not under the present day pressure to collect money for unscrupulous politicians and, therefore, were better, more honest, more people friendly officials than those of today. When the politicians become corrupt the civil servants are bound to be victims of this disease and this should cause us a great deal of anxiety.

We need to bring principles back to politics. Articles by me and speeches by learned people will not achieve this because ultimately the political parties themselves have to decide to go back to ideology and programmes. It is doubtful whether this will happen spontaneously and, therefore, it is for the electorate to punish every politician who fails to come up to their expectations. I have faith in the electorate because it is the people of India who voted Indira Gandhi out of power in 1977 for imposing Emergency and brought her back to power in 1980 because the Janata Government failed. I hope the day is not far when members of unscrupulous coalitions are similarly punished by being defeated at the polls. Meanwhile public pressure must be kept up to punish wrongdoing, to enforce the law, to ensure that every public servant is assigned responsibility and then held accountable and by social boycott, through the vote, by publicity, by building of public opinion, unprincipled politicians and corrupt officials are weeded out. At present the words, “Things fall apart, the centre will not hold”, seem to be true in India.

Religion Based Reservation is Anti-Constitution - II

Prof. Makkhan Lal

Senior Fellow, VIF

Among the political parties, who treat Muslims as a vote-bank, the clamour for the reservations for Muslims is increasing every day. Every time elections, be it of a State Assembly or the Parliament, approach the pitch for reservation for Muslims increases. Recently held Assembly election in Uttar Pradesh which has sizable presence of Muslims population, is an example. Various political parties promised from 9% reservations 18% reservations for the Muslims in Government jobs and educational institutions. It is ironical that Prime Minister of India should declare from the Rampart of the Lal Qila on 15^th August 2007 that “Muslims have the first right on the resources of the country.” This is the mental makeup of the Prime Minister and the largest political party which claims the legacy of the Freedom movement, then what can be said about smaller leaders and the parties. The Congress leaders, freedom fighters, the Constituent Assembly and Jawaharlal Nehru had given enough thought on the issue and felt that reservation of any kind will be detrimental for the development of the nation and a cohesive society.

These leaders often quote Justice Ranganath Mishra Commission and Justice Sachar Committee Reports for such reservations for Muslims. This is despite the fact that Muslims are enjoying the benefits of reservation having been included in various states lists for the OBC/BC/SC and ST; despite the fact that Islam or Christianity denies existence of caste system within its fold.

Several times in the past separate reservations enacted in the name of religious denominations have been struck down by courts and the latest is the judgement delivered by Andhra Pradesh High Court declaring 4.5% sub-quota for the Muslims within 27% quota for the OBCs as unconstitutional. Predictably, the Central Government appealed for a stay of Andhra Pradesh High Court’s judgement. After hearing the matter argued by the Attorney General of India the Hon’ble Supreme Court declined to stay Andhra Pradesh High Court’s judgement and indeed made indicting comments on the Government that there is no rationale and justification for 4.5% sub-reservation for the Muslims within the 27% quota for the OBCs. . The Supreme Court criticized the government for the way it had handled the "complex" and "sensitive" issue. The apex court had also expressed its "unhappiness" that the Centre was blaming the High Court when it had itself failed to produce documents to support its case.

Justice Ranganath Mishra Commission

A ‘National Commission for Religious and Linguistic Minorities’ was set up by the Government of India in October 2004 under the Chairmanship of Justice Ranganath Mishra t. Other members were Prof. Tahir Mahmood (Muslim), Dr. Anil Wilson (Christian), Dr. Mohinder Singh (Sikh) and Mrs. Asha Das (SC and a former IAS officer) as Member Secretary. The Commission submitted its report in May 2007.

The terms of reference of the Commission were:

1. To suggest criteria for identification of socially and economically backward sections among religious and linguistic minorities;

2. To recommend measures for welfare of socially and economically backward sections and among religious and linguistic minorities, including reservation in education and government employment; and

3.  To suggest necessary constitutional, legal and administrative modalities required for the implementation of its recommendations.

However, subsequently following point was also added to the above terms of reference:

“To give its recommendations on the issues raised in writ petitions 189/04 and 94/05 filed in Supreme Court and in certain High Courts, relating to para 3 of the Constitution (Scheduled Castes) Order 1950 in the context of ceiling of 50 per cent on reservations as also the modalities of inclusion in the list of scheduled Castes.”

The Commission lists following communities as recognized minorities: Muslims, Christians, Sikhs, Buddhists, Jains and Parsi. Accepting the Hon’ble Supreme Court Judgement in TMA Pai Foundations and others Vs State of Karnataka and others the Commission says that “for the purpose of Article 30 a minority, whether linguistic or religious, is determinable with reference to a state and not by taking into consideration the population of the country as a whole.”

The Commission took the trouble of going through the economic, education and employment opportunities for all the people of India on the basis of religious denominations and to its dismay it found that by-and-large no substantial gaps exists among the various communities/religious groups – be it Hindus, Muslims or Christians. They are all suffering same level of disadvantages or having almost the same level of opportunities. In fact, in many aspects minorities and especially Muslims and Christians are doing much better. After discussing various issues like education, poverty, employment opportunities, caste and social status, and the various measures undertaken for the upliftment of disadvantaged groups, the Commission expresses it complete disillusionment with the existing system of reservation. It concluded as follows:

1. The inclusion of an entire caste, tribe or class in the list, is contrary to the principle of social justice. No 'caste’, or class or tribe suffer from social, economic and educational deprivations as a whole. Class or caste or tribe as a criterion identifying the socio-economic backward has become totally irrelevant. The only option is to identify families that are socially and economically backward and devise criteria that are implementable. (Chapter 6, para 40),

2.  The lack of a system to regularly assess the impact on castes, tribes or classes enlisted of schemes and programme under implementation, to exclude categories either wrongly included in the list or no longer being eligible, has further complicated the situation. Non-exclusion of the ineligible has marginalised the poorest and most backward amongst various categories including the minorities. (Chapter 6, Para 41)

3. Religion or castes do not determine 'socio-economic backwardness. Poverty is not religion or caste based and the socially, economically backward should be identified on uniformity applicable criterion throughout the country irrespective of caste, creed / religion affirmatives’. (Chapter 6, Para 42)

4. The poorest of the poor families should get opportunities for advancement. Those falling in the creamy layer category should be excluded from the lists of backwards. Family-wise data should be collected and treated as valid for at least ten years and renewed periodically. Benefits of reservations should be made time-bound and for one generation only. (Chapter 6, Para 45 to 49)

5. All lists (SC/ST/OBC) have been prepared without any scientific basis (no data base as no surveys were undertaken). (Chapter 6, para 65)

6. Since BPL (below poverty line) lists are prepared on the basis of social/educational and economic criteria, they are more scientific. They are also revised periodically. BPL lists should, therefore, be made eligible for grant of reservation without distinction on caste, class, groups or religion basis.” (Chapter 10, Para13)

However, all good intension end here. When it came for suggesting concrete steps for a fair reservation system Commission not only failed in recommending any such measure but also to make the matter worse it jumped into the same rotten system, for the inclusion of Minorities also in the categories of OBC/BC/SC/ST. The recommendations read like a charter of demands on behalf of Muslims rather than a Commission’s report on all religious and linguistic minorities of India which also include Christians, Buddhists, Sikhs, and Zoroastrians and so on. It says:

“We recommend that in the matter of criteria for identifying backward classes there should be absolutely no discrimination whatsoever between the majority community and the minorities; and, therefore, the criteria now applied for this purpose to the majority community whatever that criteria may be - must be unreservedly applied also to all the minorities…. “To be more specific we recommend that all those social and vocational groups among the minorities who but for their religious identity would have been covered by the present net of Scheduled Castes should be unquestionably treated as socially backward, irrespective of whether the religion of those other communities recognises the caste system or not…. that the caste system should be recognised as a general social characteristic of the Indian society as a whole, without questioning whether the philosophy and teachings of any particular religion recognise it or not… (Chapter 10, Paras 5-16)

Unbelievable, as it may sound, the Commission Members totally forgot that reservations for SC/ST come into force because of the peculiar social-system and religious practices of Hindu society. They forget that it is this cast system for which Hindu society is constantly berated at political, intellectual, social, religious and academic platforms. Can the Islam and Christianity accept that in their social and religious practices they are same as their fellow Hindus? Are they willing to accept that caste system exists in the Islam and Christianity as a part of religious and social tenets?

The Member-Secretary very rightly questioned the wisdom of the Commission regarding the existence of caste system in the Islam and Christianity and submitted a 13 pages Note of Dissent. The Commission had no cogent reply to this note of dissent.

Sachar Committee Report

Justice Ranganath Mishra Commission report perhaps fell short of Government’s expectations, at least from the point of view of enhancing Muslims’ tilt toward the Congress. The Government of the day started looking for some other avenues for catering to the Muslims alone. Justice Rajinder Sachar Committee, appointed on 9^th March 2005, filled this space. What was missing in the report of Mishra Commision, Sachar Committee compensated that in ample – reservation in the legislature and elected/political bodies.

Sachar Committee was ostensibly appointed by the UPA Government to look into the matters concerning “Social, Economic and Educational Status of the Muslim Community”. The subject matter itself shows as if the social, economic and educational problems in the other communities and among the followers of other religions in India do not exist. If that is not the case, then it can be safely said that even if the social, economic and educational problems do exist in other communities and amongst the followers of other religions in India, they do not merit any attention because they do not form a vote-bank or they do not form a “very strong, well knit and well-organized minority… that could force the partition of the country.”1 Be it as it may.

However, while going through Sachar Committee report, one can see that it is not only full of inaccurate data but also in many areas it dwells in the realm of fantasy. A large number of problems and deprivations that are being faced by most of the Indians, irrespective of caste, creed and religion, have been presented as those of Muslims’ alone. Many of the problems discussed in the report have nothing to do with the polity, government and the economic condition. They emanate directly from the social customs and the religious beliefs. It is impossible to believe that Justice Sachar and his learned colleagues are unaware of this aspect of the problem. They have simply ignored it. The entire report reads like compilation of reasonable and unreasonable complaints, grievances and demands of Muslims since independence.

One can reasonably expect that many people will continue to discuss various aspects of this report for sometimes to come. Our purpose is limited; only to discuss the insinuating statement concerning the ‘political participation of the Muslims’ and the recommendations that the report has made in the matter. The notification of the Government of India certainly had not mandated the Committee to go into political matters. But it still has gone into it. What is most shocking is that it has suggested the very same remedy which was based on two-nation theory that finally led to the unprecedented human miseries, both for the Hindus and Muslims, and partition of the country. The Committee has recommended reservations in the legislature and in the other elected bodies besides having reservations in the services, educational institutions and public and private sectors.

These recommendations though discussed and contained in just two paragraphs of the report, become significant in the light of explanations given by Abusaleh Shariff, Member Secretary in the Sachar Committee. Mr. Shariff writes:

“It is a cruel irony that the development process by passed in particular Muslims who stayed back in India after the partition – those from Uttar Pradesh, Bihar and West Bengal.

The root cause of this neglect is lack of political empowerment. While the Constitution and the democratic framework allowed Muslims to maintain their identity and profess their faith, their representation in political system has suffered. This impacted their participation in governance.”

After this the Mr. Shariff talks about the population ratio in terms of Muslims belonging to the OBC, SC and ST categories. This is nothing less than a revelation that among the Muslims there exists caste system which discriminated them socially within the realm of Islam. Mr. Shariff now gives the solution of the problem:

“However, problems of Muslim deprivation cannot be addressed adequately through extension and implementation of reservations alone. OBC reservations apply only to public employment and now at higher levels of education. With the report detailing the nature of discrimination against Muslim, the challenge before Government, political class, private sector and civil society is to create institutional mechanism t ensure the delivery of essential public goods.

“To begin with, Muslims should be represented in political bodies, policy-making agencies, administration and law-enforcement agencies in relation to their share in the population.”

Reservation and the Constituent Assembly

The question of reservation in the services and in the elected bodies for the religious minorities was considered and discussed in detail by the Constituent Assembly. It constituted an Advisory Committee of 43 eminent political and religious leaders and social workers. The Committee was headed by was Shri S.C. Mookerjee, a Christian. Some of the Members were Maulana Abul Kalam Azad, Khan Abdul Samad Khan, Hifzur Rehman, Syed Ali Zaheer, Abdul Quiyum Ansari, Chaudhari Khaliquzzam, Saiyid Jafar Imam, Haji Abdul Sathar, Haji Isaq Seth. Jawaharlal Nehru, and Sardar Patel, Rajendra Prasad and B.R. Ambedakar (for the speeches of some of the leaders see earlier article on reservation on VIF web site - Reservation Based on Religion is Anti-Constitution).

However, the recommendations of the Advisory Committee were taken up for the discussion in the Constituent Assembly on 27 and 28 August 1948 and then again for two days, 25 and 26 May 1949. While submitting its recommendations to the Constituent Assembly the Committee reported:

“The Committee considering the whole situation came to the conclusion that the time has come, when the vast majority of the minority communities have themselves realised after great reflection the evil effects in the past of such reservation on the minorities themselves, that the reservations should be dropped.”

The recommendations as adopted by the Assembly were included in the Draft Constitution. In nutshell the committee recommended that:

“It was no longer appropriate in the context of free India and of present conditions that there should be reservation of seats for Muslims, Christians, Sikhs or any other religious minority. Although the abolition of separate electorates had removed much of the poison from the body politic, the reservation of seats for religious communities, it was felt, did lead to a certain degree of separatism and was to that extent contrary to the conception of secular democratic State."

On the issue of reservation in public services it was recommended that there shall be no reservation in the public services and competitive services except for the Scheduled Castes and Scheduled Tribes.

The Constituent Assembly debates (Vol. V) on the issue of religion based reservation is an eye opener. Most of the Muslim leaders like Z.H. Lari, Naziruddin Ahmad, Begum Aizaz Rasul, Muhammad Ismail Khan, Tajmul Hussain, Maulan Hasrat Mohani, and Col. B.H. Zaidi, who spoke on the occasion said in one voice that reservation on the basis of religion has been responsible for the division of country and is certainly an evil. They opposed any kind of reservation for Muslims just because they happen to be Muslims and have been enjoying reservation since 1906.

Jawaharlal Nehru speaking on 26^th May 1949 in the Constituent Assembly on the issue of reservation based on religion said:

“Where you are up against a full- blooded democracy, if you seek to give safeguards to minority, and a relatively small minority, you isolate it. May be you protect it to a slight extent, but at what cost? At the cost of isolating it and keeping it away from the main current in which the majority is going, – I am talking on the political plane of course – at the cost of forfeiting that inner sympathy and fellow-feeling with the majority. … It is a bad thing for any small group or minority to make it appear to the world and to the majority that "we wish to keep apart from you, that we do not trust you, that we look to ourselves and that therefore we want safeguards and other things". The result is that they may get one anna in the rupee of protection at the cost of the remaining fifteen annas.”

Later, on the issue of any kind of reservations in general Jawaharlal Nehru wrote to all the Chief Ministers on 27 June 1961:

“I have referred above to efficiency and to our getting out of our traditional ruts. This necessitates our getting out of the old habits of reservations and particular privileges being given to this caste or that group. The recent meeting we held here, at which the Chief Ministers were present, to consider national integration, laid down that help should be given on economic considerations and not on caste. It is true that we are tied up with certain rules and conventions about helping the scheduled castes and tribes. They deserve help but, even so I dislike any kind of reservation, more particularly in Services. I react strongly against anything which leads to inefficiency and second-rate standards. I want my country to be a first class country in everything. The moment we encourage the second-rate, we are lost.

“The only real way to help a backward group is to give opportunities of good education; this includes technical education which is becoming more and more important. Everything else is provision of some kind of crutches which do not add to the strength or health of the body. We have made recently two decisions which are very important: one is, universal free elementary education, that is the base; and the second is scholarships on a very wide scale at every grade of education to the bright boys and girls, and this applies not merely to the literary education, but, much more so, to technical, scientific and medical training. I lay stress on the bright and able boys and girls because it is only they who will raise our standards. I have no doubt that there is a vast reservoir of potential talent in this country if only we can give it opportunity.

“But if we go in for reservations on communal and caste basis, we swamp the bright and able people and remain second-rate or third-rate. I am grieved to learn how far this business of reservation has gone based on communal considerations. It has amazed me to learn that even promotions are based some times on communal or caste considerations. This way lays not only folly, but disaster. Let us help the backward groups by all means, but never at the cost of efficiency. How are we going to build the public sector or indeed any sector with second rate-people?”

For Part I Click here : (Reservation Based on Religion is Anti-Constitution)