Need to Treat Naxalites with Iron Fists, not Kid Gloves

Dr M N Buch, 

Dean, Centre for Governance and Political Studies, VIF

On 11^th March 2014, Naxalites ambushed a Road Opening Party of the Chhattisgarh Police and the Central Reserve Police in Bastar Division of Chhattisgarh killing fifteen policemen and an innocent civilian. This happened in the Jhiramghati area, very near Darbaghati where last year much of the senior leadership of the Chhattisgarh Congress was wiped out in an ambush, which killed twenty-six people, including members of the police escort. Earlier still, when the Collector of Sukma was abducted and held hostage, the Naxalites shot dead in cold blood the two personal security officers of the Collector, one a Muslim and the other a tribal. This region saw the deadliest ambush on the police ever, when 75 jawans were killed in one incident alone. Even at the height of the Nagaland insurgency, this magnitude of casualties in one incident had not been suffered by jawans of the Army or the Police. In the fight against Naxalism, more than 3000 policemen have been killed, about 1500 in Chhattisgarh alone.

The Naxalite dominated districts have the local population, largely tribal, living in remote areas, with poor infrastructure and with considerable poverty. In old Madhya Pradesh, the southern part of which has become Chhattisgarh, there was always the Ryotwari system of tenure, which meant that there were no intermediaries between government and the agriculturist, who was the Bhoomiswami or owner of the land. In 1951 even the intermediaries for revenue collection and management of common lands, the Malguzars, were abolished. In Bastar, later extended to the whole State, the Aboriginal Tribes (Protection of Interest in Trees) Act was in operation and this ensured that the tribes would be protected from exploitation on account of timber standing on their bhoomiswami land, with felling being permitted only under strict control and that, too, only by the Forest Department, with the permission of the Collector. There was also a total ban on transfer of tribal land to non-tribals. In other words, the exploitative Zamindari system which prevailed in neighbouring Telangana, formerly a part of Hyderabad State and then Andhra Pradesh, did not prevail in Madhya Pradesh which, before 1956, included Chandrapur and Gadhchiroli Districts of what is now Maharashtra. As a result of this, whilst Bastar and other tribal areas may have been poor, they were not in ferment caused by iniquitous land tenure. In trying to understand Naxalism, it is important to bear this fact in mind.

Long before Naxalbari, extreme left violence prevailed on a large scale in Hyderabad State in the Telangana portion because the peasants, largely tribal, were mercilessly exploited by the Zamindars. The resistance movement became so violent that in 1943 the Government of the Nizam of Hyderabad banned the Communist Party. When Hyderabad State was taken over by India after the Police Action, Telangana was marked out for special attention in order to restore the rule of law there. V. Nanjappa was appointed Special Commissioner and with great vigour he pursued the extremists and brought the area under control.

When the State of Andhra Pradesh was formed, it embarked on land reforms on the pattern of Madras Presidency and extended them to the Telangana Region. Various rural development programmes were also introduced. However, because the People’s War Group remained active, there was considerable violence. The Andhra Pradesh Police introduced three different tactics to deal with the situation. The first was to substantially increase the police presence in the disturbed region, establish fortified police stations which were impregnable to Naxalite attack and which provided a safe zone from which police counter measures could be launched. Once this exercise was completed, not a single police station in the region was successfully attacked by the extremist. This gave a boost to police morale.

The second measure was to set up a Special Task Force called the Greyhounds. This elite force had an integral intelligence wing, its officers and men were trained in jungle warfare and taught to be self-sufficient while operating in small units. By aggressive patrolling for area domination, by conducting strikes against Naxalite bases on receipt of credible intelligence, the Andhra Pradesh Police was able to restore command over the areas and bring the Naxalites under tremendous pressure.

The third measure was that the Andhra Pradesh Police identified the top leaders of the Naxalite movement, located them and then proceeded to eliminate them. Simultaneously the police also targeted the sympathisers of Naxalism who were playing an active role in giving them strength. Many of these persons were arrested and brought under judicial process. The net result of relentless policing by Andhra Pradesh was that many of the Naxalites fled the State and obtained sanctuary in neighbouring Odisha, southern Madhya Pradesh (now Chhattisgarh) and Maharashtra. In Madhya Pradesh and Maharashtra, Naxalism was not home grown, but the foreign elements who came in organised the tribals and because the reaction of the State was tardy and weak, this imported Naxalism soon took roots. The Naxalite leaders were ruthless. Anyone who opposed them locally was liquidated and soon a reign of terror was established whereby the question of resistance by local people was not allowed to rise. In Madhya Pradesh, two officers, L.K. Joshi of the IAS, Commissioner, Bastar Division, through his outreach to the people and A.N. Pathak of the Indian Police Service, through his own leadership, personal bravery and continuous presence in the field, were not only able to keep Naxalism in check but had brought the situation to a stage where Naxalites would soon have been pushed out. At this stage, Digvijaya Singh, then Chief Minister of Madhya Pradesh, under the misguided impression that the problem was socio-economic and should be dealt with accordingly, ordered the extra police out of Bastar, thus leaving a vacuum. The Naxalites flooded in to fill the vacuum, all the good work of the past was undone and now violent extremism had a firm base in southern Madhya Pradesh. In 2000, the new State of Chhattisgarh was carved out of old Madhya Pradesh. It was too small, too parochial, too bereft of administrative resources, for handling Naxalism, which the larger State of Madhya Pradesh could have done. Today, despite large scale injection of the Central Reserve Police, large swathes of southern Chhattisgarh are under the total control of the Naxalites. Once again, this fact of territorial loss must be borne in mind if we are to understand the true nature of the problem.

There is a group of activists, whose names are well known but which need not be repeated here, who argue that Naxalism is only a reaction to the traditional and age old exploitation of the tribal people, who are denied access to education, health and basic services, whose lands have been taken away from them and who are even under the threat of having their ethnicity destroyed. It is to protect the downtrodden that the Naxalites are there. Every organ of government is a part of the exploiters and, therefore, the Naxalites are justified in eliminating government functionaries by physical liquidation. Every successful action against the security forces is welcomed by these people, every attempt by the State to restore order is decried and an environment is created in which the Naxalites are heroes and State is the villain. A hero can do no wrong, a villain can do nothing right, or so say these activists.

There is a standard response to every incident, every ambush, in which policemen are killed. Ministers and government functionaries always say that this is a dastardly act of desperation of cowards. The activists laud every ambush as a victory of the people, a natural response of the tribals against exploitation. The fact is that the ambushes are not acts of desperation of cowards. They are deliberate, designed, well planned actions of motivated and highly organised groups of terrorists whose sole objective is to so demoralise the security forces so that the Indian State loses control over territory. One fact of which special notice must be taken is that every single attack by the Naxalites is aimed at killing every single policeman and then to booby trap the dead bodies of the policemen so that rescue parties may suffer injury or worse as they try to recover the bodies. No quarter is given to any policeman, no mercy is shown, so much so that even the basic fundamentals of the Geneva Convention are not followed. No prisoners are taken, no respect shown to the bodies of the slain and all that is aimed at is the disintegration of the police. Has anyone, the sympathisers of the Naxalites, the so called activists, the intellectual mentors of the extremists, ever said a condemnatory word about this extreme violence? However, even legitimate police measures to restore order are immediately condemned by the do-gooders as police brutality and unfortunately even our Courts and Human Rights Commissions fall prey to this temptation to attack the police. It is even more unfortunate that within the government itself, there are so many people, including P. Chidambaram, who refuse to see the true nature of the Naxalite terror and still harbour a feeling that the problem is socio-economic and not one of law and order. It was shocking to hear E. Rammohan Rao, former DGP, Border Security Force, stating on TV that the problem was not amenable to a police solution and that the question must be asked, “What led to the emergence of Naxalism?” At some stage this becomes relevant, but today we are faced with a situation in which law and order has broken down, the writ of government does not run, large chunks of territory are not under the control of government and ruthless murderers are calling the shots. The causes of Naxalism can be gone into later but today the government can have only one objective, which is to regain territory, reestablish the rule of law and restore law and order.

In order to restore governance to the Naxal affected areas, first and foremost the government must understand the nature of the Naxalite movement. The Naxalites do not want development; which is why they do not allow roads to be constructed, they blow up school buildings and do not allow schools to function, deployment of normal civil administration staff is not permitted, trade and commerce are hindered and money is collected through loot. Under these circumstances, the institutions of democracy and of decentralised local government cannot prosper or gain strength. If development and good governance are not the objective of the Naxalites, if the destruction of the security forces is considered the normal method of interaction with government then, by reductio ad absurdum, the only objective of the Naxalites can be the destruction of the Indian State. What is shocking is that even today government refuses to acknowledge that it is engaged in a war, a war which it cannot win unless it acknowledges the enemy to be an enemy and to deal with him as one would be in a war, that is, with no holds barred. The might of the Indian State has to be used to restore the presence of the Indian State in the Naxalite hit districts and let there be no pussyfooting around the problem The very government which established the National Investigating Agency using Entry 1, List 1 of the Seventh Schedule by stating that anything which threatens the State must be treated as an attack on the State and falls within the general definition of Defence of India, cannot simultaneously use Entries 1 and 2 of List 2 of the Seventh Schedule to claim that law and order is a State subject and the Naxalite threat falls within this definition. Now is the time to stop pretending that everything is normal in the Naxalite areas and stating that a slightly higher police presence which, nevertheless, treats Naxalites as fragile objects to be handled with care, can succeed. War is cruel. War may cause collateral damage, but losing the war destroys the nation itself. Can we afford to lose the war?

Undoubtedly government has professionals to advise it on strategy and tactics. Much of the action takes place in afforested areas and here it might be worth recollecting the doctrine whereby Field Marshal Sir William Slim, after being crushingly defeated by the Japanese in Burma, went about the task of laying the foundations of victory and training the XIV Army for this purpose. The nature of warfare in Burma was somewhat similar to that in Bastar in that there are the Naxalites, who know the terrain and are buoyed up by a series of successful ambushes against the security forces who, in turn, are increasingly demoralised as they lose large numbers of men. In Burma, of course, the Japanese were the enemies and it is the British who were on the run and thoroughly demoralised. In his book “Defeat Into Victory”, Slim says, (i) “The individual soldier must learn, by living, moving and exercising in it, that the jungle is neither impenetrable nor unfriendly. When he has once learnt to move and live in it he can use it for concealment, covered movement and surprise. (ii) Patrolling is the master key to jungle fighting. All units, not only infantry battalions, must learn to patrol in the jungle, boldly, widely, cunningly and offensively. (viii) If the Japanese are allowed to hold the initiative they are formidable, when we have it they are confused and easy to kill. By mobility away from roads, by surprise and offensive action, we must regain and keep the initiative”. The police in the Naxal affected areas must operate by the same principles. These include terrain familiarisation, aggressive patrolling, deep penetration into Naxalite areas and bold strikes which inflicts heavy casualties. Unfortunately, today’s position is that the Police still moves in a conventional manner, thus making it vulnerable to successful ambush. In an ambush, the ambusher chooses his ground, generally occupies high ground and then lures the ambushed party into a killing ground which can be enfiladed with fire. In the Jhiramghati incident, a forty-five strong patrol first went to investigate a burning vehicle and then, bunched up as it were, the patrol was subjected to heavy fire. Obviously we have not trained our men to go to ground, to attempt to reach high ground behind the enemy and then to engage the Naxalites on an equal footing. When Narendra Prasad, IPS was commandant of the Thirteenth Battalion, MPSAF in Nagaland at the height of the Naga insurgency, his unit was never successfully ambushed because it followed all the classical steps necessary to ensure the safe movement of troops. The camps of the battalion were so located that they commanded a height and the outposts could intercept any lurking Naga attack. Movement of Road Opening Parties was not only along roads and instead patrols went up on the high ground flanking the road and, by occupying it, were able to prevent Naga ambushers from attacking the road. We need to train the Chhattisgarh Police and the Central Reserve Police in these tactics so that ambushes can be taken on successfully.

Even today the police is armed with light weapons. When the enemy fires from high ground he must be dislodged by bringing heavy ordnance to bear on him. This means projectiles with explosive warheads fired from rocket launchers, armoured fighting vehicles with quick firing cannon of 20 mm or 30 mm calibre and helicopter gunships which deluge the high ground with fire from automatic weapons. Every successful ambush bring hordes of recruits to the Naxalites, every ambush that is broken raises the morale of the security forces. Why is there hesitation on the part of government to train and arm the police appropriately so that it can fight the new war?

Once the Naxalites are on the run, normal civil administration must be quickly established and development programmes accelerated, but in a way in which the local tribal can be both participants and beneficiaries. Till then let the police go on the offensive and, by successful ambush, by aggressive patrolling, by deep penetration into Naxalite areas by parties which are trained and equipped to overwhelm even larger groups of Naxalites and inflict heavy casualties, the Indian State has to carry the war successfully to the door step of the Naxalites. The activists, the media, even the human rights organisations and authorities have to be told very categorically that nothing will deter government from the main objective of destroying the Naxalites . Let this message also go to the Naxalites so that the sensible among them surrender themselves and the fanatics can be isolated and liquidated.

Dinesh Trivedi, DG, CRPF, has angrily stated that he will not leave the massacre of his men go unavenged. How? By brave words? The slog will be hard, but if Slim could rebuild the XIVth Army, then let the Chhattisgarh Police and CRPF rebuild themselves. If even one unit of the two Forces can spontaneously and successfully attack a Naxalite stronghold and virtually wipe out an entire dalam, that would be a start. Are you game, Dinesh Trivedi?  

Politics and Polls: Need to Move to a Higher Plane

Dr M N Buch, 

Dean, Centre for Governance and Political Studies, VIF

Indian elections in the past have always tended to be rambunctious, rowdy, noisy and not always necessarily peaceful. I have had the great good fortune of being an international observer nominated by the Sri Lankan Government to observe four levels of elections in that country, local government, provincial government, parliamentary and presidential. As Collector of a district I have had the opportunity to run two general elections in my district and, therefore, I have had firsthand knowledge of how elections are conducted. What struck me about Sri Lanka was that there were no posters and banners except at the offices of different political parties and at the site of approved public meetings. Walls were not defaced by slogans, loud speakers were used only at designated places and for meetings authorised by the district administration and the police, canvassing was low-key and candidates had to observe a strictly enforced code of conduct. The contrast with India could not be more complete.

The Election Commission, starting with T.N. Seshan as the Chief Election Commissioner, initiated changes which brought some order and discipline to our elections. The first step in this direction was the enforcement of a model code of conduct which, broadly speaking, laid down that once the schedule of election was announced, government could not initiate any new projects, make any postings and transfers, give promise of future developments of a particular type, sanction additional funds without the approval of the Election Commission and generally government was required to act in a caretaker capacity only. The idea was that all the political parties will go into the elections on an equal footing, with the ruling party being prevented from giving favours which might give it an undue advantage. Gradually the Election Commission, under successive CECs, moved the country towards a position in which almost the entire government machinery connected even remotely with elections came under the control of the poll panel. The purpose of this was to ensure that government servants did not take sides in any election, did their duty impartially and were immunised against any undue pressure by the ruling party or the contending opposition parties. The grip of the Election Commission is now so tight that right from the lowest level of government servants to the highest, every single posting comes within the purview of the Election Commission and government has no discretion in this behalf.

After initial resistance against this state of affairs all State Governments fell in line and a few months before the elections the entire government machinery virtually passes into the control of the Election Commission. This includes the police, whose deployment to maintain order during an election is done under the overall control of the Election Commission, the State Chief Electoral Officer and the District Election Officer, that is, the Collector. The process which started with T.N. Seshan whereby elections could become fair, be conducted in an orderly manner in an environment of public peace and order, bribery could be controlled or even eliminated and parties forced to function within a frame of decency, has been continued by successive Chief Election Commissioners. It is a very well recorded fact that for the first time in the history of Jammu & Kashmir, the Election Commission under N. Gopalaswamy ensured free and fair elections in that State. A similar exercise was conducted in West Bengal in which the Left Front registered an impressive victory despite their being strict control over rigging, though in the subsequent election under similar conditions the Left Front was defeated at the polls by Mamata Banerjee’s Trinamool Congress. It is no mean achievement of the Election Commission to conduct fair polls in two of the most difficult States in India.

I have recently canvassed for an independent candidate in Betul for the State Assembly polls conducted on 25^th November, 2013. I was Collector Betul fifty-one years ago and have been the District Election Officer in that capacity and have conducted a general election there. It is a district of which I am very fond and I know it intimately. All the persons contesting the polls were known to me, probably because their fathers and grandfathers knew me when I was the Collector. I found that the noise level of electioneering was much less than before , city walls were not defaced by painted slogans, the posters and banners were few and far between and the schedule of public meetings approved by the authorities was adhered to. There was a genuine apprehension that violation of any of the conditions prescribed by the authorities would lead to immediate action. One advantage of an orderly election is that there is a sharp decline in public violence which hitherto has unfortunately marred many elections in India. In the northern districts of Madhya Pradesh, notorious for dacoity and general lawlessness, there were a few ugly incidents, but these were very quickly suppressed by the police and order was restored. This is a very significance achievement of the Election Commission because absence of violence almost automatically leads to a high turnout of voters. Madhya Pradesh registered a seventy-one percent turnout and Mizoram had about eighty-one percent turnout. A high voter turn-out is indicative of the health of our democracy because it means that people are prepared to accept personal discomfort in order to vote, confident in their belief that law and order will be maintained, they need not have any concern about personal safety and that public awareness of the power of the vote has permeated down to the last village and the last citizen. I consider the conduct of elections in this manner by the Election Commission as both a hallmark of the maturity of our democracy and also of the dedication of the Election Commission to conduct free and fair polls. It is also a tribute to our voters that they realise the power of vote, they are prepared to exercise their franchise and they have faith in the system which encourages them to be so forthcoming in casting their votes. It is also a tribute to the Electronic Voting Machines (EVM) , which makes India the most technically advanced nation in the world in the matter of casting of votes. Despite allegations to the contrary, the EVM is virtually pilfer-proof, it is fast, it enables results to be announced within a few hours of the beginning of counting of votes and it has worked wonders in curbing rigging. I know that there are allegations that voting machines can be fixed, but my own experience is that even if one or two aberrations are found basically the EVM is an excellent method of casting the vote, protecting it from subsequent interventions which are mala fide and ensuring that a very fast count gives us results in a matter of hours. As people become used to the idea of voting machines being difficult to rig, incidents of booth capturing and other forms of violence during elections have drastically reduced. These are all positive factors of which the country can be proud. It is unfortunate that the media is quick to report the odd complaint about EVM malfunction, but reluctant to present the full picture of how India conducts its elections with great sped, competence and in a secure environment. The proof of this is that apart from two attempts by Naxalites to disrupt proceedings in Bastar Division of Chhattisgarh, the terrorist forces were kept at bay and people exercised their franchise without fear.

There are some things which need immediate attention. In its zeal to ensure that elections are free, fair and conducted in a civilised manner, the Election Commission is over reacting to complaints and perceived fears regarding the fairness of the elections. For example, a senior police officer in Madhya Pradesh was posted as a Zonal IG. Some distant relation of his was standing for election in another Zone. Nevertheless the IG was transferred to police headquarters from a field posting. How that IG could influence elections in another Zone when he himself would be busy with ensuring security during elections within his own Zone beats me. In fact the possibility of his intervening with elections when located in PHQ, where he would have almost no work and could have spare time to promote mischief in the area where his relation was standing for election, would be much more than what he could do in another Zone where he himself would be extremely busy attending to field work. I think the Election Commission needs to settle down and work out a manual which gives guidelines on postings and transfers, with subsequent monitoring of such transfers being done, with the Commission’s intervention being limited to those cases where there is a genuine and compelling reason to believe that a person is unsuited for a particular post. I am not decrying Election Commission’s excessive sensitivity in this behalf, but I do believe that the Commission should move towards a more balanced view on how to deal with complaints.

Another area of concern is the immediate reaction of the Election Commission to statements made by politicians in election meetings and assemblies. I wish our politicians were mature enough to restrict electioneering to issues only, though my fear is that this would reduce the size of their audience, a large part of which turns up to hear the candidates and their supporters by way of entertainment in a place which is otherwise devoid of means of amusement. In their public speeches our leaders, charged up with emotion, are likely to make exaggerated claims for their own parties, put excessive emphasis on the shortcomings of their opponents, up to an including vilely opposing them whilst promising the sun, the moon and a generous slice of the Milky Way Galaxy to their own supporters. In a village an election meeting is more entertaining than a travelling circus. I am not suggesting that the Election Commission should give unbridled licence to what can be said in an election meeting, but I would suggest that they must accept that elections are a time for exaggeration, denigration of one’s opponents and generally attempting to fool the people, or persuade the people to vote in a particular way. Let the Election Commission monitor, but let it not act as a moral police and take all the fun out of electioneering. Who does not like to hear which candidate has the greater share of illegitimacy in his family? Sant Tukdoji may be ideal for a religious pilgrimage, but the seventh generation of illegitimate births is so much more spicy and entertaining in an election speech. Stop being a wet blanket, Mr. CEC and your colleagues.

The Election Commission is fighting a heroic battle to try and keep electoral expenditure under control so that it is genuine political belief which sways a voter, rather than the “Kambal-Bottle philosophy”, or bribery. The Commission has prescribed strict norms of expenditure, has posted financial observers in every district, has conducted search of vehicles suspected of carrying money for an election campaign and is doing its best to ensure honesty in elections. This is one area where the success ratio is very low because many of our voters expect some personal benefit and the candidates are prepared to bribe. Perhaps State funding of elections is the only answer to the present chicanery which is the hallmark of most election funding. The next major reform which the Election Commission must persuade government to undertake is the mandatory state funding of elections and a virtual total ban on private funding even by the candidate.

I am not happy about the Election Commission’s decision to include None of The above (NOTA) as an option when voting. I had advocated a similar move, but my suggestion was that if NOTA got the highest number of votes, then the election to that constituency should be countermanded, all the persons whose nominations have been accepted should be debarred from election for six years and the cost of holding a fresh election for that constituency should be charged pro rata to the political parties who had nominated candidates whom the people did not accept. Then NOTA would be worthwhile because it would force the parties to field candidates who are locally acceptable and also cause them monetary loss. Otherwise the present exercise is meaningless, it wastes valuable votes but it still allows the worthless to be elected. This is a retrograde step and I hope the Election Commission is broadminded enough to accept this and take the next step as suggested by me. If not then the NOTA button should be removed.

Regardless of the results the people of India and the Election Commission have much to be proud of because we are emerging as a matured and responsible democracy. The next step in this direction is that the parties realise that issue based politics, clearly enunciated ideologies, programmes and policies, practical suggestions for development which promotes welfare is what will bring them to power. That is when politics and elections will move to a higher plane, a larger orbit.

The Case Against Smaller States

Dr M N Buch, 

Dean, Centre for Governance and Political Studies, VIF

In his book, “The Story of the Integration of Indian States”, V.P Menon, who was Sardar Vallabhbhai Patel’s right hand in ensuring that the British legacy of lapse of paramountcy which virtually gave independence to the Princely States in India was nullified, negated and reversed so that India became a united country, makes certain statements which very aptly described what India was and what it is thanks to Sardar Patel. Certain quotations from his book must be given if one is to understand how India became one. He writes “India is one geographical entity. Yet, throughout her long and chequered history, she never achieved political homogeneity. From the earliest times, spasmodic attempts were made to bring about her consolidation… These and later attempts at political consolidation failed again and again for one chief reason:… The empires were held together almost entirely by the personality and might of the Emperor. The whole edifice crumbled when the line of supermen came to an end.

Even under these Emperors, a diversity of autonomous states constituted the mosaic of an empire. The Emperor claimed suzerainty over these rulers, who offered allegiance to him, coordinated their foreign policy to his diplomatic moves; usually served him in war and offered him tribute; but who, in other respects, retained their sovereignty. Whenever the authority of the Emperor weakened the subordinate rulers asserted their independence… Mutual jealousies and conflicts made the country an easy prey to any organised invasion”.

This situation continued when the Mughal Empire disintegrated after Aurangzeb’s death till the British stepped in and by conquest, subsidiary alliances, annexation and military defeat of intransigent Princes took over the entire governance of India. However, they continued to give a special place to the Princes who, within the limitations prescribed by the British Government, enjoyed considerable autonomy and freedom to manage their own internal affairs. Control vested in the Political department and the Residents appointed in Indian States or group of States. Under the Government of India Act, 1935, some sort of a federal structure was created and a new direct relationship established between the Princely States and the British Crown as represented by the Viceroy and Governor General. However, the full integration of Princely India and British India never took place and the paramount power continued to be paramount and paramountcy remained as vague and undefined as ever.

When paramountcy lapsed, there was an uncertainty about the relationship of the Indian States with newly independent India. This is the time when V.P. Menon suggested to Sardar Patel that the lapsing of paramountcy might in fact be good for India because now the State could be dealt with on a clean slate without being hampered by the treaties entered into by them with the British. It is on this basis that Sardar Patel and Jawaharlal Nehru approved the Standstill Agreement and the Instrument of Accession which were ultimately entered into by the rulers with India. Ultimately these were succeeded by instruments of merger, the Princely States were done away with and the Dominion of India, succeeded by the Republic, became one nation. The integration of Indian States brought into the Indian Union as an integral part of the country about five lakhs square miles of territory which formed Princely India under British rule. We lost 3,64,737 square miles of territory to Pakistan, but Sardar Patel ensured that this was more than compensated by the assimilation of Princely India into the Indian Union. From Kashmir to Kanyakumari, from Kathiawar to Kamrup, India became one. The Government of India Act, 1935, which was virtually the Constitution under which British India was governed and which had introduced elements of federalism into a unitary State, was replaced by the Constitution which made India a Union of States and introduced a unique brand of federalism which has no parallel. Unlike the United States of America, where thirteen separately governed colonies voluntarily came together at the time of the American Revolution to form the United States of America, in India, the provinces and subsequently the merged Princely States formed a Union of States. This was not a Union formed by the coming together of separate entities, but rather a convergence of what were units of administration into States and then bringing them together into an India which existed under the 1935 Act. The States have a degree of autonomy under List 2 of the Seventh Schedule of the Constitution, with concurrent legislative powers of the State Legislature with Parliament on matters included in List 3.

However, in this Constitution there are certain factors which make it centripetal. The first is that the Governors of States are appointed by the President. The second is that the Judiciary forms a single hierarchy from the lowest civil court or magisterial court all the way through the District and Sessions courts, the High Court and the Supreme Court. Any Judge or Magistrate can try any case under any law, whether of Parliament or of the State Legislature. In the United States of America, there are separate Federal Judges and State Judges, each of them having jurisdiction over federal laws and state laws respectively. In India, the Supreme Court is at the apex. In the United States, at the apex is the Supreme Court, but otherwise the Federal Courts do not have any jurisdiction in matters of state laws and the States have no jurisdiction in matters of federal laws.

The third element which distinguishes the Indian Constitution from others is that residuary powers vest in the Union under Article 248, whereas in the United States, under the Tenth Amendment, residuary powers vest in the State. The fourth element of centripetalism is the provision relating to the All India Services contained in Article 312, whereby officers of the All India Services, who are under the rule making control of the Central Government, man all cadre posts, whether in the States or at the Centre. No other federal constitution has such a provision. This Union of States, with its centripetal orientation, is what keeps this country united because unfortunately India has always had a tendency to fissiparousness, to which V.P. Menon has referred in his book. What Sardar Patel brought about by the integration of States, what our Constitution makers have enshrined in the Constitution, is that a system has been established which would keep India politically homogenous and end the dependence on the personality of the ruler. Theoretically the Indian Union cannot be broken merely because the rulers have become weak. A democratic, constitutional entity is ruled by the will of the people and, therefore, no individual leader can cause the disintegration of India.

That is the theory. What is the reality? After good and positive government by leaders who had been through the freedom movement, we suddenly introduced an element of acquisition of power through engineering defections. When history is written objectively, we would perhaps find that the single biggest blow to good governance and primacy of the rule of law is this single act of the making power a purchasable commodity. Pt. D.P. Mishra, the then Chief Minister of Madhya Pradesh whose government was threatened by the defections engineered by Govind Narain Singh, had advised the Governor to dissolve the assembly and order fresh elections. Mrs. Indira Gandhi, who was Prime Minister and who personally disliked D.P. Mishra, informally advised the Governor not to accede to this demand and instead invite Govind Narain Singh to be the Chief Minister. I am sure she herself did not realise what disturbances, what a political whirlpool this single pebble thrown into a tranquil lake would cause and what irreparable harm it would do to the country’s political fabric. It introduced corruption into politics on a scale which could not even be imagined in 1967 because it converted power from being an instrument of public service into a commodity which could be purchased. A commodity market cannot be expected to be philanthropic and once political power had been converted into a commodity, such politics could not be expected to be welfare oriented. Now the sole purpose of politics was to somehow collect the funds through which power could be purchased and then to use power to recoup the funds and earn a surplus which could be used to buy power next time. Countervailing bidding was naturally done by the Opposition aspirants for power and thus the levels of corruption kept jumping up. Today the position has become one in which every politician is suspect, the motive of every political decision is deemed to be dishonest and every policy of government seems to be short term and aimed not at welfare but at obtaining some political advantage which can be encashed in terms of funds for the next election. This is a horrendously ugly scenario because a democracy, in which the entire political class comes into disrepute, can no longer function as a democracy at best it becomes an oligarchy and at worst it becomes a collection of thugs, thieves and dacoits. The graph is moving fast in the direction of the worst case scenario. The people now become the prey, good governance has been buried deep underground and the State itself has become a milch cow which has to be exploited to the point where it runs dry. This is the stark reality facing India, in which political power is the most profitable lever of business for unscrupulous politicians.

Political power is even more easily gained when through vivisection, we partition existing administrative units and create new ones so that the number of posts increases. Every new State creates the post of a Governor, a Chief Minister, Ministers, a new Legislative Assembly with a Speaker, a new High Court with a Chief Justice and Judges, a new Public Service Commission and the entire paraphernalia of government. In a large State for a person to be Chief Minister he has to have a State wide image and identity, which a person like D.P. Mishra or Shyama Charan Shukla had in what was then India’s largest State, Madhya Pradesh. Local influence could make you the Mayor of your city, but it would not earn you power in the State. If, on the other hand, a city itself becomes a State, the Mayor automatically becomes Chief Minister. Political interest, therefore, lies in creating the maximum number of States. The statement of K C Rao who has led the agitation which will now create a new State of Telangana that all government servants from outside the ten districts of Telangana will have to quit Hyderabad puts in a nutshell the mindset of our divisive politicians. There is no question of any public interest in the creation of the new States, there is only the question of how a small minded person of no status can suddenly acquire the stature of a Chief Minister.

There is a fallacious belief that the demand for States’ reorganisation is a popular one having mass appeal. To the people it makes no difference where the Chief Minister resides because the interaction of the common citizen with officialdom is at the level of the village, the town, the tehsil or the district. He wants that the interaction should be absolutely minimum, but the attitude of government officials should be positive, they should be insulated against unauthorised influence and the legitimate work of the citizens should be done with due dispatch. From this, one can deduce that the demand for new States is entirely engineered by selfish politicians who are looking after their own interests.

It is these politicians who say that if the United States of America can have fifty States, then why should India be confined to twenty-eight plus one, the twenty-ninth State of Telangana. What they forget is that the territorial spread of the United States of America is three times that of India and the States have come into being as the nation expanded from the original thirteen colonies through westward migration right up to the Pacific shore. It is the extent of the colonisation of America and quite often geographical boundaries which determined the shape and size of the States of America. For a very long, time there were only forty-eight States and the States of Hawaii and Alaska were added only because these federally administered areas had become ripe for statehood. In India, we seem to run a cycle whereby we think that agitations can redraw the boundaries of States at the whims of the politicians.

It started with Potti Sriramulu who agitated for the creation of a separate Telugu speaking State, which would include the Telugu speaking districts of the Madras Presidency, together with the Telugu speaking districts of Hyderabad State. The agitation succeeded because unfortunately Sriramulu, who was on a fast unto death, died because his followers who had a vested interest in a Telugu speaking State did not allow him to break his fast. Jawaharlal Nehru panicked, a States Reorganisation Commission was set up, Andhra Pradesh was formed, Malabar District was transferred to Kerala from Tamil Nadu, the Kannada speaking districts of Hyderabad State was transferred to Mysore State, which became Karnataka, the Marathi speaking districts of Hyderabad State were transferred to Bombay State and became Marathwada and in sharp contrast with other States, the new bilingual State of Bombay was enlarged by merging Saurashtra into it, Even this was undone subsequently through public agitation in Bombay which brought the State of Gujarat into being. Madhya Pradesh lost Marathi speaking Vidarbha to Bombay State but gained the Hindi speaking States of Madhya Bharat, Vindhya Pradesh and Bhopal. Punjab was split, with Himachal and subsequently Haryana separating from it. In the east, Assam has been divided, with NEFA becoming the State of Arunachal Pradesh, Mizoram, Nagaland and Meghalaya being made into three separate States out of Assam and the empty shell of residuary Assam being left to fester with sponsored revolts by the Bodo people and Ahoms. The British left us with a unified North East and we have divided it into a mosaic of tiny States.

In the last splitting up of States, Madhya Pradesh lost Chhattisgarh, a State with such paucity of administrative infrastructure that the Naxalites have virtually captured it. In Bihar, Jharkhand was separated and the new State became a byword for political instability. Residuary Bihar lost its entire forests and mineral wealth and in the parochial environment in which we find ourselves, Jharkhand has always refused to share anything with Bihar. It will not end here because the demand for the splitting of Uttar Pradesh into four States, the creation of a State of Vidarbha and a demand for statehood for Darjeeling and Bodoland have picked up steam. A weak Central Government whose political leadership seems to have become completely bankrupt is all set to surrender to such demands and one fears that the mosaic of tiny States which existed when paramountcy lapsed may be re-created in India. The BJP, which has publicly come out in favour of small States, is as much a partner in the disintegration of States as is the Congress.

The argument is that small States are better governed and better designed for development. Has the separation of Uttarakhand from Uttar Pradesh brought it development? In the recent catastrophe which overtook Garhwal, one thing has emerged very clearly. Being a hill state, the administration in Uttarakhand is very thinly spread on the ground. The State Government’s resources are very limited and whereas the huge resources at the disposal of Uttar Pradesh would have been diverted to Uttarakhand had it continued to be part of Uttar Pradesh, they were no longer available to the new government. But for direct central intervention and the superb work done by ITBP, IAF and the Army, the death toll in Uttarakhand could well have gone into five figures. When the entire resources of Madhya Pradesh were available to the whole State, of which Chhattisgarh was a part, Madhya Pradesh Police had Naxalism under control. In Chhattisgarh, it is absolutely rampant.

Even if small States do show some initial signs of progress, that soon fizzles out because the politics of a small State tends to be incestuous. What this means is that the same half a dozen families and interest groups which, in a large State, would have been submerged, now rotate power amongst themselves. I stated earlier that power is no longer an instrument of service and, therefore, the purchase of the commodity called power opens unlimited opportunities to the purchaser to milk the State and make huge sums of illegal money. How can such a State promote welfare? Small States also breed extreme regionalism and as has been our experience in the recent past when regionalism moved into Parliament and small regional groups assumed excessive importance because delicately balanced coalitions need the support of regional parties, then compromise, corruption and bad governance become the order of the day. That is what small States do to us. 

Maoist War Against India: Time for United & Strong Response

Ajit Doval, KC 

(Director, VIF)

The May 25^th extremist attack by Maoists in Chhattisgarh was one of the depredations that hit India. But, more tragic is what follows – delayed tactical response, leadership confusion and helplessness, scripted statements carrying no conviction and even ministers looking for opportunities to derive political mileage. In the world of security what happens is important, but what decides the end game is how the governments respond to them. While the former is not always and fully in their control, the latter is a matter of their conscious choice. The tragedy of what they fail to protect and prevent is compounded by the wrong or inadequate response that guarantees perpetual failures.

There is a predictable pattern of discourse that follows major attacks. Political statements and counter statements, Centre versus State blame game, accusations of intelligence and security failure, all relevant, but leading nowhere. There is no clear and unequivocal message to the perpetrators, enunciation of a new national policy and strategy, initiatives towards capacity building and pressing into action innovative tactical plans.

Prevention of this obfuscated discourse necessitates clarity on the fundamentals. Left wing extremists are enemies of the nation – their ideology, political goals, trans-national linkages, strategic plans all make it amply clear. Their history of siding with the Chinese during the 1962 war, supporting Pakistan Army’s genocide in East Pakistan and dubbing Indian intervention as imperialist, aligning with Kashmiri separatists and supporting North-East insurgents leave no doubt about their intentions. Their putting in place an 18,000 plus guerrilla force, nearly 16,000 sophisticated arms, weapon procuring and manufacturing infrastructure, fund raising abilities and an effective propaganda apparatus clearly indicate their burgeoning capacities. Misled by the rhetoric of them being social activists or crusaders for the poor, we should not underestimate their intentions and capabilities. There is no room to treat them anything other than being enemies of the state who have to be fought, vanquished and neutralised.

The second point that obfuscates the discourse is its political dimension. The message that goes out to the Naxalites is that the government is confused and weak, dishonest and insincere, lacks the gumption to take the battle to its logical end, and wilts under the pressure of media, local level political workers, extremist linked NGOs, etc. The political cross-fire between the Centre and the States only gladdens their hearts. There is a need to make the message to the extremists loud and clear that the state will use all its power to protect its sovereign rights. In the instant case, the Congress leaders were wrong in trying to give it a political colour and advance possible conspiracy theories. There is no ambiguity whatsoever about the role and responsibility of the Centre and the States. Article 355 of the Constitution unequivocally affirms that “It shall be the duty of the Union to protect every State against external aggression and internal disturbance”. Left Wing Extremism (LWE) is no more a “public order” issue, and falls well within the innermost circle of what Justice Hidayatullah calls “three concentric circles” of threats. In the judgement in Ram Manohar Lohia vs. State of Bihar (1965), the Supreme Court asserted that when a threat transcends limits of public order and threatens internal security, the overriding responsibility lies with the Union government. However, to make it happen, the Prime Minister needs to be strong to have his writ run both at the Centre and in the States.

The next requirement is strong laws with an efficient criminal administration system to administer them. The threats, internal or external, that threaten the unity, integrity and sovereignty of India, require a different jurisprudence than ordinary criminal laws and must empower the state to deter and neutralise the enemies. The front organisations, masquerading as NGOs and think tanks, who skilfully assist the extremists in exploiting discontent and subvert them to take recourse to the gun must be made accountable. Those who provide them intellectual and ideological space by projecting them as social revolutionaries are as guilty as the gullible people who take to arms. It is also necessary that the justice system functions with speed, fairness, transparency and honesty. To bring down the crisis of legitimacy, any illegal police action or efforts to frame the innocents should be dealt with an iron hand.

The state police forces, due to their superior knowledge of terrain, language and customs of the local people. are best suited for counter-LWE operations. There is an urgent need to increase their strength, provide them better leadership, training, weapons and equipment. It is pertinent to note that Naxalism has assumed deep roots in States where the number of policemen available per one lakh population is amongst the lowest and much below the national average of 135. This situation should be corrected immediately and minimum of 200 policemen per lakh population must be made available to the Naxal affected states. Not just quantity, but quality equally matters. What India requires is, as the Padmanabhaiah Committee advocated, a “highly motivated, professionally-skilled, infrastructurally self-sufficient and sophisticatedly trained police force.”

The availability of real-time actionable intelligence is critical for launching surgical operations against the Naxal leadership and guerilla armies. For this the operational capabilities of state intelligence, right up to the police station levels must be bolstered for undertaking tactical operations. A good intelligence often has made the difference between victory and defeat, and life and death. We have to develop a totally different set of capabilities to cater to our rapidly changing intelligence requirements. This needs to be done at several levels—from our training modules to doctrines to equipment. This transformation has to be across the spectrum of our intelligence capabilities and operations. Concerted efforts to choke Maoists’ sources of finance and channels of procuring weapons also deserve high priority.

The war is difficult but winnable. The need is for capacity building both at the Central and State levels and right leadership to convert plans into realities on the ground. They have started the war; it will be finished by us.

Freedom of Speech and Archaic Law on Sedition

Dr. M.N. Buch
Visiting Fellow, VIF

The Chambers Twenty-first Century Dictionary defines sedition in the following words: “Public speech, writing or action encouraging public disorder, especially rebellion against the government “. The word itself comes from the Latin word seditio, or growing apart. In a way it is connected with the word seduce, one meaning of which is to lead astray or to tend into wrong doing. The Indian Penal Code has section 124-A which makes sedition a criminal offence with the full section reading as under:

Section 124-A IPC—Sedition:: “Whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in India, shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.

Explanation 1. The expression “dissatisfaction” includes disloyalty and all feelings of enmity.

Explanation 2. Comments expressing disapprobation of the measure of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under the section.

Explanation 3. Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt, do not constitute an offence under the section ”.

The offence of sedition carries imprisonment for life as a sentence in its extreme form and rigorous imprisonment for up to three years if the court determines that the seriousness of the offence is mitigated by circumstances. This gives an enormous leeway to a court in the matter of sentencing and this in itself can be called into question for permitting excessive judicial discretion to a court. For example, under section 302 IPC the offence of murder carries a liability of either a death sentence or imprisonment for life and a trial court has to give one or the other sentence. The Supreme Court has laid down guidelines in the matter of sentence by directing that it is only in the rarest of rare cases that the death penalty should be imposed. Under section 304 IPC in a case of culpable homicide not amounting to murder the court may impose a penalty of imprisonment for life where the act which caused death in the ordinary course could be fatal, or imprisonment of up to ten years if such act was committed without any intention to cause death. In the case of section 124-A IPC no such guidelines are provided by the law and, therefore, a judge would be able to pass a sentence which could be quite inappropriate. The Indian Penal Code is one of the laws which govern this country within the framework of the Constitution. Under Article 13 a law which is inconsistent with or in derogation of the fundamental rights would be void. The Preamble to the Constitution mandates liberty of thought, expression, belief, faith and worship and Article 19 (1) (a) gives citizens the right to freedom of speech and expression. No doubt Article 19 (2) and (3) permit the Legislature to make laws to impose reasonable restrictions on the rights given in Article 19, but the operative word here is “reasonable”. In other words, the freedom of speech and expression is almost absolute and a restriction thereon is an exception which has to be imposed after very great thought and only in the interest of public peace and tranquility.

Chapter VIII of the Code of Criminal Procedure relates to security for keeping the peace and for good behaviour and in case the said person cannot provide adequate security, then under sections 107, 108 and 109 Cr.P.C. the person may be kept in jail for up to one year and under section 110 for up to three years. Section 108 applies to persons disseminating seditious matters. In other words, the Police and the Executive Magistracy can prevent a person from disseminating information which is seditious. Then we have Chapter X Cr.P.C. which relates to maintenance of public order and tranquility and permits the Police, the Magistracy, and on requisition the armed forces may cause an unlawful public assembly to disperse, if necessary, by use of force and to restore public order. In other words, acts which could be deemed to be seditious can in fact be prevented by pre-emptive action.

Section 124-A speaks of bringing into hatred or contempt the lawfully constituted government. The word “contempt” is defined by the Chambers Twenty-first Century Dictionary as either disregarding or disobeying the orders of a court of law or despising a court or a lawfully constituted authority. The Contempt of Court Act is sufficient to uphold the dignity of the courts and, therefore, the law relating to sedition would not be applied so far as courts are concerned, despite the fact that the Judiciary is one of the three pillars of the State. Hatred is defined as intense dislike, enmity or ill-will. There is a whole chapter in the Indian Penal Code, Chapter X, which deals with matters relating to contempt of the lawful authority of public servants. Under section 186 IPC if a public servant is obstructed in the discharge of his public functions the offender can be punished. Under section 188 IPC if there is an order duly promulgated by a public servant, then disobedience of such an order is liable both to imprisonment and a fine. Chapter XI of IPC relates to offences against public justice. An insurrection against government amounts to waging war against government under section 121 IPC can be punished with death. In other words, jeopardizing the security of the State to an extent where it is tantamount to armed rebellion is also subject to the most stringent penalty permissible by law. Section 124-A relating to sedition aims at preventing and punishing the exciting of disaffection towards government; the purpose of which obviously would be to bring about a downfall of government. Now it so happens that we are living in a democracy whose Constitution, in its Preamble, constitutes India to be a sovereign, socialist, secular, democratic republic. So long as the Preamble exists, the said Preamble being immutable, democracy cannot be denied to the people. What is more, the opening words of the Preamble are “We, the People of India …” In India sovereignty vests in the people and not in a monarch or in Parliament. Parliament is only the instrumentality through which in a representative democracy people exercise their rights. In this republic the citizen is supreme and the government is an organisation through which citizens exercise their supremacy through the executive powers which vest in the President and the Governors. Therefore, the right to criticise government and to call government to account is far superior to the right of government to protect itself against sedition. The words ‘treason’ and ‘sedition’ have to be used with great care and caution in a democracy.

Article 14 of the Constitution guarantees for every citizen equality before law and equal protection of laws. This makes India a society of laws and every action of government has to be within the framework of law. This includes depriving a citizen of his liberty through the operation of law because that is exactly what Article 21 says. Article 21 reads,” No person shall be deprived of his life or personal liberty except according to a procedure established by law”. The chapter on Fundamental Rights apart, Part IV of the Constitution lays down the Directive Principles of State Policy. Article 38 directs the State to secure a social order for the promotion of the welfare of the people. Supposing the State is in neglect of this principle? Do the citizens not have the right to be critical of the government, even stridently critical, even critical to the point of calling the government useless and worthless, if it does not strive to establish such a social order? Would critcism by people who accuse it of not doing its duty amount to sedition? After all, if a government is proved to be corrupt, unwilling to look after the welfare of the people, incompetent and negligent of its duties, the people have every right to call for the overthrow of such a government but through due process.

Under Part V, Chapter 2 of the Constitution and in particular Article 79 it is constitutionally mandated that there will be a Parliament for the Union. The House of the People is directly elected from territorial constituencies by the electorate consisting of every citizen of India not less than eighteen years of age on the date prescribed by law in this behalf. As per Article 326 of the Constitution the basis of election is universal adult suffrage. Every single Indian above the age of eighteen is, therefore, an integral part of the process of constituting the Parliament of India. Under Article 83 the normal duration of the House of the People is five years from the date of its first meeting after an election. Every five years the citizens of India, therefore, constitute the House of the People through a process of elections in which there is adult franchise. The executive government is conducted by the President on the aid and advice of the Council of Ministers which, under Article 75(3), is collectively responsible to the House of the People. Therefore, every citizen is a part of the process of the constitution of the Council of Ministers on whose advice the President of India conducts the executive government of the Union. Through adult franchise, through participation every five years in the process of constituting Parliament, through the constitutional requirement of collective responsibility of the Council of Ministers to the House of the People, every citizen of India has a say in how the duly constituted Government of India will conduct itself. The government cannot try and silence a citizen and accuse him of sedition if he criticizes the government.

When an election takes place contending parties do not fight it on the basis of praise of the party in power. It is the job of the opposition to criticise government, point out its shortcomings and ask the people to defeat the ruling party at the polls and place before the people its own agenda of how it will govern. The objective of such a campaign is to convince the people that the government in power is so worthless as not to merit its return to power. The objective is to create in the public mind such a feeling of disappointment about how they have been governed and in fact to arouse dissatisfaction with the ruling party that it is defeated at the polls. Because the ruling party and government are virtually one, till the ruling party is defeated, will such criticism amount to sedition? Incidentally, propaganda against the ruling party and government does not begin only after the election is announced. It is a continuous process in which government would be liable to criticism in the Legislature, by the press and electronic media, through public meetings, agitations and movements and through the expression of the right to free speech by individual citizens. Does all this amount to sedition?

Let us try another tack. Parliament frames laws, almost all of which are drafted by the Executive and, because the ruling party has a majority, they reflect the will of the Executive. High Courts and the Supreme Court quite often strike down such laws as being inconsistent with the Constitution. Sometimes strictures are passed. In cases involving government very often the courts are stridently critical of executive action. Can this be construed to be sedition? What about the Comptroller and Auditor General of India appointed under Article 148? Under Article 151 the audit reports prepared by the CAG are placed before Parliament by order of the President after CAG submits them to him. Generally audit reports are critical of government, up to and including CAG’s comments on transactions which virtually accuse the government of wrongdoing which may be tantamount to corruption. Is this sedition? Is criticism of government based on an audit report an act of sedition? Is a movement which says that corruption be rooted out an act of sedition because it does, in the eyes of the public, paint the government to be worthy of contempt because of its own actions?

The Constitution permits criticism of government to the point where the people are so fed up with it that they call for a change of government through the process of election. What the Constitution does not permit is the overthrow of government by violence or by means other than constitutional. The Constitution enjoins government to govern for the welfare of the people; it does not state anywhere that a government must govern wisely and well. What it says is that every five years the people of India will judge the performance of government and will decide whether there should be a change in those who govern us. To take care of a situation where people are trying to unlawfully overthrow the government, apart from section 121 IPC, we have Article 352 whereby if the security of India or any part thereof is threatened by war, external aggression or armed rebellion and this gives rise to a grave emergency, the President may issue a Proclamation of Emergency and assume extraordinary powers to deal with the Emergency. Similarly, if it is found by the President that there is failure of the constitutional machinery in a State he may issue a proclamation under Article 356 and pro tem take over the government of the State. During the Proclamation of Emergency operation of Article 19 can be suspended and enforcement of the Fundamental Rights may also be suspended. This, however, is possible only in a situation in which the very existence of India is jeopardised. Indira Gandhi misused the provisions of Article 352 and we went through a two-year period of virtual dictatorship. The Constitution and the people proved themselves to be stronger than arbitrary rule, Mrs. Gandhi was defeated in 1977 and the supremacy of the Constitution, constitutional government and the people of India were restored, hopefully never to be breached again. When we have all these provisions in the Constitution why do we need section 124-A IPC?

I am no great supporter of Binayak Sen. I am totally against violence against people and the State and I do feel that Naxalite terrorism must be suppressed with a heavy hand. If Binayak Sen supported the Naxalites and it can be proved that he and the Naxalites were part of a criminal conspiracy under section 120-A IPC or had a common intention under section 34 IPC to commit acts which led to culpable homicide amounting to murder I would be quite prepared to have Binayak Sen charged with these offences and suitably punished. But to accuse him of sedition under section 124-A is ridiculous, just as it is idiotic to charge Aseem Trivedi, a cartoonist, of sedition because he substituted three wolves for three lions and the legend ‘satyameva jayate’ for‘bhrashtameva jayate’ in a symbol which was an obvious caricature. For material which is libelous, or is otherwise defamatory we have Chapter XXI of IPC to provide legal remedies. Certainly a charge under section 124-A IPC is not justified. In fact I am now of the confirmed view that taking into account the constitutional right to criticise government, the duty of the citizens, the Legislature, the courts and the other constitutional authorities to call government to account and the freedom of speech that we all enjoy, there is no justification for the existence of section 124-A IPC which defines sedition and provides drastic penalty against it. The offence of sedition as defined by section 124-A IPC is similar to laws of blasphemy as operated in the medieval Europe and even today in some countries such as Pakistan which claims to be Islamic theocracies. Allah, Jehovah, God, Parmatma, call Him what you will, is too powerful to be threatened by a puny mortal who blasphemes. The Indian State is too powerful to be threatened by a seditious individual because normal law can effectively neutralise active sedition. Therefore, Section 124-A IPC needs to be immediately repealed.

How Should The Executive Government Function?

Dr. M.N. Buch

Visiting Fellow, VIF

The Constitution of India in Part V for the Union and Part VI for the States divides the functions of the State between separate, equal and interconnected wings, the Executive, the Legislature and the Judiciary. 

Article 53 of the Constitution and Article 154 of the Constitution vest the executive power of the Union and the States in the President and Governors respectively. As per Articles 76 and 163 the executive power is to be exercised on the aid and advice of the Council of Ministers. In effect, therefore, the Council of Ministers exercises executive power. Under Articles 73 and 162 the executive power of the Union extends to all matters with which Parliament has power to make laws and, for the States, to the extent of power of the Legislature to make laws. The executive power, therefore, is to be exercised at the judicious discretion of the President or Governor and it is only the Legislature which by law can circumscribe the executive power. Otherwise neither the Judiciary nor the Comptroller and Auditor General, nor the Legislature acting in a watchdog capacity can limit this executive power. To put it another way, that which the law does not either limit or prohibit is permissible in the exercise of executive power. As will be explained later, this is an extremely important point because many of the problems of governance in India have arisen out of an incomplete or wrong understanding of what executive power means and the manner in which such power can be exercised.

The conduct of business of the Government of India is governed by rules framed under Article 77 and in the case of the States by rules framed under Article 166. These rules divide the business of government between different ministries or departments and assign to each department its area of jurisdiction and competence. The rules also prescribe how a minister will deal with a case and how the Secretary and his officers will advise the minister or implement laws, policy or lawful orders of the minister. The rules also categorically state and it is the personal responsibility of the Secretary concerned to ensure compliance with the Business Rules. Where an individual department cannot take a decision or where more than one department is involved in decision making, the case may be referred to the Prime Minister or Chief Minister in coordination or it may be submitted to the Council of Ministers for orders. Within its own area of competence and subject to laws, rules or normal practices of the department, the department is competent to take an executive decision. If the decision is legal and not contrary to rules, it cannot normally be called into question, unless there is positive evidence of wrong doing. The fact that a particular decision may opt for a more costly option does not by itself make the decision bad in law or even executively ill-advised. 

Let us take the case of spectrum allocation. At the time when mobile telephony began to make its presence felt in India, this country had about the worst telecommunication system in the world. It is only the introduction of digital telecommunications which transformed the telephony picture. It is in this context that government decided to throw open the doors of the telecommunication industry in order to attract more participants. Present revenue was not the concern but rather the swift development of a sector which provided vital infrastructure for communications. The policy followed was that spectrum would be allotted on a first come first served basis. Because in implementation there were severe flaws, including major complaints about corruption, the case came under audit scrutiny and the Comptroller and Auditor General went public in stating that by not auctioning spectrum government incurred a loss of Rs. 1,72,000 crores. If auction had been done the exchequer should have benefitted to this extent. The word ‘if’’ is very dangerous here because if wishes were horses pigs would fly. Therefore, speculation on what might have been is quite unacceptable. The problem with the 2G spectrum case was that in implementation the then minister committed a number of unacceptable mistakes, including going ahead with allocation contrary to the stand taken by the Ministry of Finance. In fact the Secretary of the Ministry should have refused to issue any orders in this case until the Council of Ministers took a decision, but the Minister was in a hurry. When the bubble burst government panicked and heads were allowed to roll. This is a case where if the executive power had been correctly exercised there would be no scam, largely because it is still not clear whether there actually was a scam or not. What should the government have done? There should have been a clear-cut decision on policy about allocation of spectrum. This could be by auction, it could be by allowing every serious contender to participate in the development of telephony, it could even be a decision to allocate a spectrum on a nominal fee, but with annual fee being periodically adjusted according to expansion of the network. Eventually this would come to a huge amount and while giving India even greater mobile telephony facilities, it would have served the consumer by keeping call rates low but, because of the size of the market, giving government enormous revenues. Nothing of the sort happened and instead we had arbitrariness of the minister on the one side, dithering of government on the other side and government generally behaving like a naughty school boy caught with his hand in the jam jar. The quite uncalled for statement of CAG that a loss of Rs. 1,72,000 crores had been suffered only added fuel to the fire, despite the fact that the calculated loss is based on an argument somewhat on the following lines, “ If A had been done instead of B, then the revenue would have been XXX and because it was not done and because the revenue did not reach this figure, therefore, XXX is the loss”. This whole argument falls to the ground because it is based on pure speculation. Why has government been hesitant in stating this in clear terms? Why has government not taken the stand that it took a certain executive decision about spectrum allocation and that it stands by this decision and strongly refutes any suggestion or wrongdoing? 

There is another area which is of some concern and that is equipment of the armed forces adequately to fulfill their task of defending India against all comers. Defence deals right from the time of Krishna Menon as High Commissioner in London have been subjected to complaints, counter complaints and hesitation on the part of government to take a final decision. It was not always so because our defence agreements with the Soviet Union, for guns, armoured vehicles, fighter and transport aircraft, fighting ships and every conceivable piece of military equipment seem to have been completed without undue delay. Again, all these agreements were government to government, which made decision making relatively easy, but they were not necessarily without some consideration passing at individual levels. It is in our weapons deals with western bloc countries that we seem to have had trouble because here it is the private contractors or suppliers who provide the equipment. When the Bofors gun was purchased there was loud and persistent complaints about corruption in the deal, the echoes of which still reverberate. The gun is first rate and it has been the mainstay of our artillery arm. However, because the then Prime Minister stood accused of wrongdoing, every government now hesitates to take a decision about weapons purchase. Scorpene and HDW submarine deals with France and Germany seem to be on a roller-coaster ride and the purchase and production have been inordinately delayed. The purchase of T-90 tanks seems to be hanging fire. The Army has not acquired any artillery gun since the purchase of Bofors 155mm guns. The specialised ammunition needed by our Armoured Corps is not being acquired because the firm supplying is has been blacklisted. Even Rafale fighter purchase seems to be slowing down because someone has complained. The net result is that the armed forces just do not have the equipment they require to fight a war successfully on at least two fronts, Pakistan and China. What use is our claiming to prevent corruption if as a result thereof India is left defenceless? 

This issue is stressed because equipping the armed forces is an executive decision and lies entirely within the realm of the executive government. Here the process of decision making would involve the armed forces in that they would project their requirements and convince government of the need for a particular weapon system. This calls for a constant dialogue between the Service concerned and the Ministry of Defence, with a clear understanding on both sides that the matter has to be finalised within a given finite period. Once government is convinced of the requirement of that particular Service, the sanction for purchase must be given and the budget placed at the disposal of the Service Chief concerned. The entire process of testing of equipment before starting the process of purchase, floating tenders, evaluating tenders both technically and financially, arriving at the best option, making the final selection and placing an order should all be done on the advice of a committee set up by the Service Chief and including a representative of finance and one or more expert scientists who could give technical and scientific advice. The role of the executive government would be to stand by the decision taken and to defend it at all levels, including in Parliament. Unless there is proven misconduct, with the proof being of the highest order, government should not hesitate in approving the weapon acquisition concerned. That is how a government must behave. Provided that the process of acquisition is according to set procedures, rules, principles of prudence and is transparent one need not be afraid of any ex post facto criticism.

There are many areas in which the executive government is subjected to directions by the courts on how an executive decision should be taken or how and in what areas legislation must be enacted. One such area is police reforms. It is legitimate for the Supreme Court to direct that the police, which is the investigating arm of government in the matter of criminal law, should be insulated from every kind of pressure or influence when investigating a case so that the cause of justice is furthered by impartial investigation. For this purpose certainly the Supreme Court can direct government to take necessary executive measures or to provide legal safeguards whereby the police performs its functions without fear or favour. What the Supreme Court cannot direct is that the law governing the police must be worded in a particular way, the police organisation should be of a particular kind and that the personnel policy relating to the police must be as suggested by the Supreme Court. How to insulate the police from undue pressure, what personnel policy to follow to protect individual policemen who do their duty, without reducing the superintendence, direction and control role of the executive government are all issues on which it is the executive which will take its own decision and prepare the draft legislation for the consideration of the Legislature. It is the Legislature which will decide how the Bill in its final form as approved by the Legislature is enacted into law. In other words, micro-management of the police is beyond the jurisdiction of a court and fully within the domain of the executive. This does not mean that one wants a police force which is servile but one does want government to retain the authority to restrain the police if it exceeds its legal brief or begins to operate in a manner which is not in the public interest. The executive decision regarding this and the draft of the legislation to be placed before the Legislature fall within the executive domain.

One very sensitive area is corruption. Can the executive, which itself is corrupt, be trusted to ensure a corruption free society? Here the campaign against corruption is to be divided into three parts. The first relates to legislation and it is the job of the executive to suggest what laws are needed and for the Legislature to enact laws which would facilitate the fight against corruption. The second part relates to the role of the executive, which has to implement anti-corruption laws. The executive must set up an efficient agency which investigates cases of corruption without fear or favour and then takes suitable steps to prosecute offenders. Like the police this agency must be insulated from pressure, partly through legislative cover and partly through executive decisions to give autonomy to the agency. This is a very important executive function. The third part would be prosecution and trial in which the Judiciary will have to pronounce on guilt or innocence and to determine the quantum of punishment in cases where conviction takes place. It is for the executive to facilitate the Judiciary in arriving at just and fair decisions, which also means that the executive must not come in the way of trials, either by refusing or delaying sanction of prosecution or by asking the investigating agency to go slow in the presentation of its case before a court. However, there is a further role for the executive in curbing corruption, which is a review of all rules, regulations and procedures which bring about a citizen-government interface, with a view to reduce this interface to a minimum, simplifying procedures and drastically reducing or eliminating delays in decision making. This has to be linked with a firm decision to bring about one administrative reform. There should be clear-cut assignment of functions and duties to government officials at all levels, with interlocking accountability whereby the superior of the government official concerned is held fully accountable for the action or inaction of his subordinate. This would dramatically improve supervision of subordinates because the superior knows that a default of the subordinate will be visited on him also. Simplification of rules and procedures, avoidance of delay and inter-locking accountability would bring about a major improvement in the functioning of government and make the executive government function more efficiently.

At the highest level of the Prime Minister or a Chief Minister the executive government has to make its policy on any issue completely clear, specific and unambiguous. If it is a policy relating to land allotment, let it be made public. If it is a policy relating to purchases, let the policy be made public. If it is a policy relating to government’s approach to specific problems let the policy be made public. However, once a decision is taken the executive government must stand by it and not get swayed or deviated because someone does not like the policy or has complaints against its implementation.

The present position is that the executive government has abdicated its functions through sheer indecision. Thus if a person raises a claim against government the officer empowered to take a decision just pushes the file back and forth, forcing the claimant into expensive and long drawn out litigation. This does not necessarily stop corruption, but it does provide a shield to an officer because in our system indecision is not penalised. At the level of policy government avoids all hard decisions under the excuse of the compulsions of coalition. In areas of national security, economic development, education policy, even fighting corruption, if there is no consensus there is no decision, but only a dangerous drift. This is a negation of government. Into this vacuum other players step in -- Naxalites, terrorists, agitators to name just a few. Or the judiciary takes on an executive role. This is why through public interest litigation our High Courts and Supreme Court increasingly venture into areas where no court in other democracies would dare to tread. Or else the Legislature refuses to allow even such vital Bills as 13 Bills of the Human Resources Development Ministry to be introduced, much less enacted. Such a grid lock can only be broken by an assertive executive that functions as an executive should, firmly, decisively and with confidence. India needs such an executive – fast.