26 January 2016

Republic Day

Disclaimer : I am not a political scientist. Nor a legal expert.

An earlier version of this post appeared in January 2013.

What does a Republic mean?

I remember studying it in school but don't seem to remember much. The current NCERT Class 9 textbook defines a Republic as "The head of the state is an elected person and not a hereditary position."

The concept of a Republic came into inception as an alternative to a monarchy. The business of running a country/nation/territory cannot be vested with a particular individual (or family) and it cannot be passed down from one generation to another.

Some internet pages attribute the following words to Justice Hidayatullah - "A Republic is a State in which the supreme power rests in the final analysis with the people and not with a single individual like a king or the like."

A Republic usually has a Head of State. She is either directly elected or indirectly elected (as in the case of India) and in some cases she is nominated to the post; nevertheless people usually have a say in her appointment and the appointment is not by the virtue of royal blood. The concept of adult suffrage (that is every adult has a right to vote) is complementary to the idea of a Republic.

So how is a Democracy different from a Republic? In a Democracy, the rule of the majority is supreme. Everyone votes for their representative and those representatives collectively decide the law and policy of the land. Thus, the majority can decide to kill a minority or decide to call their nation/country/territory as the nation/country/territory of only a specific community or religion or race.
However, in a Democratic Republic, the elected representatives cannot make any and every law or policy. They must function within the ambit of "Rule of Law." And, this is the most striking feature of a Republic.

According to "Rule of Law", the law is supreme and no one (including the State) is above it.  The Constitution of India sets out the supreme law of the country. It provides for the separation of powers between the various organs of the State (i.e.: Legislature, Executive & Judiciary) and sets out the limits within which they must act. An act that goes beyond these limits is ultra vires and stands void. Thus, if the legislature enacts a law which it is not competent to make, then such enactment is unconstitutional and will have to go.

There is another ground on which a law (other than a constitutional amendment) can be challenged and that is, if it violates the fundamental rights. Thus, the laws of the legislature and acts of the executive must not violate the fundamental rights of the people; and if they do, then those acts are bad in law and can be challenged. But the remedy isn't limited to the declaration that the law/act is unconstitutional. In appropriate cases, the Courts have awarded compensation for the violation of fundamental rights by the State (See Bhim Singh v. State of J&K).

An additional ground is available when it comes to constitutional amendments. The Parliament is free to amend any portion of the Constitution (including the Preamble). However, any such amendment must not alter the basic structure of the Constitution.  In Keshavananda Bharti v. Union of India, C.J. Sikri remarked that "The true position is that every provision of the Constitution can be amended provided in the result the basic foundation and structure of the Constitution remains the same."

What constitutes as basic structure is a grey area. Over the years, the Supreme Court has held that secularism, independence of judiciary, supremacy of the constitution, federalism, democratic character, separation of powers etc. form the basic structure of the Constitution. Any amendment which alters this structure must go away. Recently, the Supreme Court set aside the 99th Constitutional Amendment regarding the National Judicial Appointments Commission, as according to the Court, the amendment violated the principle of independence of the judiciary.

(I am not sure if a legislative enactment can be challenged on the grounds of basic structure. This idea was rejected in Union of India v. R. Gandhi, however I remember the issue being raised again in the recent NJAC proceedings. I do not know what came of that.)

Thus, the Constitution of India holds the reigns on the Executive & Legislature. It assigns them powers and also limits the exercise of those powers. It provides for a Judiciary to check the actions of the Executive & Legislature.

(What remains to be seen is who checks the actions of the Judiciary? While the Parliament has powers to remove judges, it's rarely exercised. Any action by the Parliament to check the Judiciary maybe politically motivated and maybe seen as violating independence of judiciary. Thus, the check on the Judiciary is only the Constitution, the guardian and interpreter of which is the Judiciary itself.)

But, what about the people? Isn't the Legislature a representation of the will of the people? By setting aside a legislation aren't we setting aside the will of the people?

Yes. Note the following remarks of the Supreme Court in B. R. Kapur v. State of Tamil Nadu:

"In other words, the people of the country, the organs of the Government, legislature, executive and judiciary are all bound by the Constitution which Hon. Justice Bhagwati, J. describes in  Minerva Mills case (1980 (3) Supreme Court Cases, 625) to be  suprema lex or the paramount law of the land  and nobody is above or beyond the Constitution.  When Court has been ascribed the duty of interpreting the Constitution and when Court finds that manifestly there is an unauthorised exercise of power under the Constitution, it would be the solemn duty of the Court to intervene.  The doctrine of legislative supermacy distinguishes the United Kingdom from those countries in which they have a written constitution, like India, which imposes limits upon the legislature and entrust the ordinary courts or a constitutional court with the function of deciding whether the acts of the legislature are in accordance with the Constitution." (J. Pattanaik)

"The Constitution prevails over the will of the people as expressed through the majority party. The will of the people as expressed through the majority party prevails only if it is in accord with the Constitution." (J. Brijesh Kumar)

And that's what it truly means to be a Republic. The Constitution stands supreme. Not the will of the people, not the Government, not the law makers, not the judiciary and not the corporates.

Of course, the implementation of the Constitution is a separate analysis. The Constitutional promises are violated everyday and in that sense, the Constitution is meaningless; no matter how salutary its provisions. We still have a long way to go when it comes to making the provisions of the Constitution a reality.

However, if assigning blame I would not limit it to the State. It would be a chutzpah to say that WE THE PEOPLE OF INDIA gave ourselves this Constitution and then assigned all the responsibility to the State. Surely, we are to blame.

A page from the NCERT textbook ' Democratic Politics - I '


1 January 2016

Happy New Year

New Year’s Eve automatically generates a pensive mood. The holidays make me think of the year gone by. In corporate terminology - what went well, what did not and what we can do it better. It’s like my annual official review; the only difference is that I am super lax with respect to the evaluation. I think a lot of the reflection is also caused by a solitary NYE. Existential question have a way of cropping up when you are alone in your room while your peers are partying outside.

My year was quite the roller coaster but I think I came out stronger and happier. I will spare you from the excruciating details and will focus on what I think was the key message of it all. 

We are crappy people expecting others to be angels.

I will start by something as simple as lying. I was taught in school that honesty is the best policy (remember the woodcutter story?). Every major religion preaches that one should be honest. I haven’t done any research, but most parents would say that they teach their kids to be honest and truthful. Yet the outcome we see in the world is appalling. Everybody lies.

If one were to analyse the motivations for lying, then they would find that desire lies at the centre. We don’t want to hurt someone, we don’t want them to know about this, we don’t want to tell them that we don’t want to meet them etc. These are all ways of conning ourselves into believing that we lie for others. I disagree. We lie because we don’t want to appear as the bad person. We’d rather create a false image of ourselves than tell the truth.

If that be the case, then why do we feel bad when people lie to our face? If we don’t keep our word then why should anyone else? We expect decency from everyone but ourselves. I have told people I will call them and eventually have not called them; and so I should not be surprised when people don’t turn up at my party after saying that they would be there. I have gate crashed someone’s party and eaten food there; and so I should not be surprised when someone flicks my wallet and takes away my money. Sometimes I have lied to get an extension on a project. Then a politician lying to me regarding his promises and deadlines shouldn’t come as a surprise.

We’ve all heard the national motto of India - Satyamev Jayate i.e.: Truth alone triumphs. Yet, we have zero faith in it. If we did, we wouldn’t lie as indiscriminately as we do right now. I mean, we’ve become so used to lying that it doesn’t bother us at all. The worst is that it no longer feels wrong.

I am not saying this is Karma (or maybe it is). I am saying that - if we don’t uphold any ideal, then despicable behaviour from others should not be a surprise.

Lets take another example. My school motto was Vasudhev Kutumbakum i.e.: the world is a family. That sounds like a dream everyone dreams but a reality no one wants to work towards. We don’t treat our own family as family, let alone treating a stranger as family.

Then why are we surprised when strangers misbehave with us? In India, you don’t have to go very far to find someone you can help. Yet we don’t. We don’t want to give our domestic helps a day off. But we feel incredibly wronged and violated, if our leave application is denied. We rarely help any strangers that ask us for help or those who we see are in need help. How many of us donated towards Nepal earthquake, Chennai floods, warm clothing for the poor or a child’s education? Then why is it any surprise that when we run into an accident, no one comes forward to help. We are dreadful samaritans and we expect saints. We will honk like a maniac at everyone else on the road but when someone honks at us, oh boy, the rage. Where is our empathy?

What are the seeds that we are sowing and what is the harvest that we are expecting? Often, I have remarked that Delhi is dead. In this case, I would amend my statement. My soul is dead. How can I look at tragedy and turn a blind eye? How can my heart be accustomed to poverty & hunger?

Is our time and money so precious that no one other than our small group of 'mutual ego massagers' deserves it?

Finally, a short note about cheating. At some point or the other, we’ve all cheated the system. In exams, in admissions, in government offices etc. Work seems to get done faster when you slip in a few thousand rupees to the clerk. If that doesn’t work, we’ll find some jugaad or some approach.

If that is our behaviour, then it should not bother us when merit/rule of law is blatantly compromised. When someone uses his contacts and gets admission in his desired educational institute. When someone gets a food license for a shop that clearly does not meet food safety standards. When politicians stash away millions of black money in foreign countries.

I mean if we can request the clerk to bump up our attendance, or pay a tout to get our driving license, or ask our accountant to convert black money into white; then why should the freedom of others be compromised?

When we do it, it’s either about efficiency or the government procedure being slow or about our family members future; but when others do it, it’s a crime against society, a failure of legal machinery and the collapse of a system. If we have motivations to take questionable steps, then so do others. At the heart of it, it’s always about personal gain.

What are we living for? Is there anything other than personal profit that we aspire for? Do we have any principles? If not, then we shouldn’t feel bad when we get treated like crap. Because, when we don’t have principles, then people effected by our actions also feel like crap. But that also doesn't mean we should embrace anarchy.

I am not advocating that we give up ideals or that ideals are unreal or that it is okay to break rules so long as you don’t question others who also break rules. Principles are meant to be followed. They are meant to be fought for. These are concepts for which people sacrifice their lives. Don’t sacrifice principles altogether. Instead find some (your svadharma) and follow them. Lead a life that  has some weight in it.

I say this to motivate myself to follow these principles. This new year my resolution is to try and be a more honest person because I would love it if people were honest to me. I hope and pray that it works.

Happy New Year.



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