Who am I?

 Born in this land called India, also called as Bharat, but referred to by our Islamic neighbors as Hindustan; who exactly am I? What is my identity? Where lies my purpose? What are my responsibilities and most importantly, where are my priorities supposed to connect with those of others from my own land?

 The lack of this defined identity is one of the most predominant cause of unrest and divisive character of our country. A country can never be classified as a Nation, unless the people believe in a shared common identity. Unity does not lie in diversity; unity lies in shared values, shared responsibilities and a shared vision for a nation and its future.

Historians have offered various theories as to the origin of the name Bharat for our country. According to one version, the Rig Veda’s 18^th hymn of the 7^th book describes a vicious war known as “Dasharajna” or battle of ten kings; where ten of the most powerful tribal kings of those times fought against King Sudasa of the Bharata tribe of Trtsu dynasty. Sudasa was victorious in this battle and in honor of this victory, the people of this region started to identify themselves as member of the Bharata tribe and the land was named Bharat Varsha, meaning the land of Bharata. In another version, according to the Mahabharata, our land was named Bharatvarsha after the legendary emperor Bharata Chakravarti; who was the founder of Bharata dynasty and the ancestor of the Pandavas and the Kauravas; who fought against each other in the battle of Kurukshetra for the throne of Hastinapur, also known as the Mahabharata battle.

The term ‘India’ has evolved from the Greek Ἰνδία to Latin India as known in the old English (5^th - 12^th century AD).

The origins of the name ‘Hindu’ is said to have derived from the river Sindhu, the name of the Indus river as mentioned in the Rig-Veda, somewhere around 1700 - 1100 BC. The neighboring Arabs and Persians who uttered the alphabet ‘s’ as ‘h’, called the land as Hindu which then morphed into Hindustan - the land of Hindu.

 Mahmud of Gazni invaded Hindustan around 1001 and started the process of six hundred years of Islamic rule over majority of the country, which was challenged successfully by the Maratha Empire that formally existed with the coronation of Chhatrapati Shivaji Maharaj in 1674 and ended in 1818 with the defeat of Peshwa Bajirao the 2^nd at the hands of the British East India company. In 1858, the governance was transferred to the British Crown and India became a colony of the Britain till 1947, when it gained independence.

 The Constitution of India, as presented to the people of India by Dr. Bhimrao ‘Babasaheb’ Ambedkar was exclusively a document for the People’s Rights and Freedom, and defined the identity of the country as “a shared race, culture and language (that) may provide the basis for a patriotism that was particularly Indian … For nationality to exist there needed to be more than a common race, language or culture. There needed to be a “spiritual essence,” a tie of kinship. Above all, it required “the will to live as a nation” (Ambedkar 1946: 39)”. It can be interpreted that according to Dr. Ambedkar, the identity of our Nation would be a “social feeling” that imbibed a sentiment of fellowship and superseded class and caste differences. 

Contrary to his opinion, today we are a nation divided along religion, regionalism, caste, creed and financial inequality. Socialism as a political tool has been the main pillar of all political parties, but in reality the mix economy of free-market and socialism has given rise to lack of rational calculation of costs of development, bureaucratic inefficiency and deep rooted state corruption at all levels of governance due to the concentration of power in the hands of government officials; with limited freedom to entrepreneurs and free-market customers.

This has led to pre-millennial, millennial and GenZ generations of our country to live under the restrictions of aspirations that cannot be met, being victims to distorted thinking about the historical past, myths about governmental successes; all which lead to bad attitudes, poor civil and social habits, lack of self-care, various addictions and lack of balance in life. This further leads to a lack of a clear sense of meaning, purpose and direction in life, with no clear idea of who they are and what they should achieve in life. Without proper guidance, sufficient support from all parts of society, and clear perspectives; they lack the required skills and insights to develop effective strategies in life and sustainable action plans to implement changes in their outlook and daily activities to achieve successful goals.

In order to overcome many of the issues that are creating social and civil unrest in our country and its effect of the deteriorating law and order implementation; its the responsibility of our elected representatives to define our country by one single name - which will be its identity. Once the name has been chosen and made permanent. Governmental ideology cannot be a mix of socialism and free-market. It has to be one or the other, for a clear definition for effective long term strategies. People make up the society that makes up a Nation. If the guidelines stated by Dr. Ambedkar are followed, it would mean that class, caste and religious differences have to be overcome. This can happen by officially identifying our people only by name, age, gender and skill-sets; and replacing cronyism with meritocracy. Cronyism via religion, caste, creed, political affiliations and financial bonding exists as fact of life, rather than an exception. This is one of the prime reasons for constant civil unrest; the others being unfulfilled political promises, differentiation in economic opportunities, institutional ignoring of merit in favor of vote-bank politics, and the lack of effective implementation of law and order which, when reinforced by an inefficient and at times incompetent judiciary leads to a constant social frustration among the majority.

Technology is assisting our current generations to overcome many issues, but the dependence of technology means an higher distrust of the government, its policies and its leaders. Our country is fractured from the inside and unless there are decisive changes that positively impact the majority of our citizens, a looming Constitutional disaster should not be a surprise to anyone.

 

 

 

 

 

     

Referendum - The Citizens Voice

 A referendum is a vote by the citizens of a country to approve or reject any proposal by their government; and the result of a referendum can support or oppose such proposals. It is similar to casting a vote in an election, except that in a referendum, the citizens have the option of writing ‘yes’ or ‘no’ in the opinion box of the proposals. During the referendum exercise the government may put before its citizens one or more proposals for consideration.

 It can be argued that referendums play a constructive role in an democracy due to its deliberative role, and helps to focus the nation on events that affect every-day life decisions. It can be further argued that nation-wide deliberative processes work better when they are focused on collective decision-making between the government and the citizens.

 Critics can counter-argue that influential politicians can misuse the process for agenda manipulation, yes-or-no questions instead of bilateral dialogue, brute strength of majority politics to extract a favorable decision; et.al. Therefore, it’s necessary to consider referendum as one part of the democratic process and not the system as a whole. To become ‘as democratic as systematically possible’ it needs to be connected to the demands, narratives, claims, deliberations and experiences at one end, and to the Constitutional framework on the other; to ensure a high standard of democratic decisiveness. Basically, it cannot be exclusively the “Citizen’s Will” unless it fits into the accepted parameters of the Constitution of the Nation. However, the process must result in a direct political consequences, supported by policy, adequate allocation of resources and legal enforcement. Only then, can the process be termed as a democratic exercise of the citizen’s policy mandate.

 In India, the issue of conducting referendums has been intensely debated since independence from British Rule. There has been a belief that conducting referendums is not permitted in India, since the Constitution has no provision for it and because the Constituent Assembly which ratified the Constitution of India believed that; since elected parliamentarians would truly represent the ‘will of the people’, there was no need for a separate process of referendums. However, in later years, there have been instances when referendums have indeed been conducted in our nation.

 In 1948, a referendum was conducted in the princely State of Junaghad, where the citizens voted to accede to the Republic of India [Refer: 1959 AIR 1383, 1960 SCR (1) 537]. Similarly, in 1949, a referendum was conducted in Chandernagore (now part of the Hooghly district in Bengal), which was at that time a French territory; whereby the citizens voted in favor of merging with the Republic of India rather than stay as a free territory controlled by France. Subsequently, the administration of Chandernagore was transferred to India. [Refer: AIR 1960 SC 845, 1960 3 SCR 250]; and also in Pondicherry ( now named Puducherry, a former French territory) where citizens voted to join the Indian Union in 1954. 

The last referendum happened in 1975, wherein the inhabitants of Sikkim decided on their merger with India [Anjan Banerjee v. Union of India, Civil Order No. 8509(W) Of 1992 | 29-03-1993]. It should be noted that while the Constitution does not allow for referendums, the tribal areas in the states of Assam, Meghalaya, Tripura and Mizoram, recognised under the Sixth Schedule have incorporated provisions allowing referendums in election matters. [Refer: The United Khasi Jaintia Hills Autonomous District (Appointment and Succession of Chief and Headman) Act, 1959].

The Constitution of India does not contain any references to a referendum, therefore it can be assumed that while referendums are not encouraged, they are also not totally prohibited. In the landmark case of ‘Kesavananda Bharti v. State of Kerala (1973)’ [Writ Petition (civil) 135 of 1970], the Supreme Court laid down the “Basic Structure Doctrine” according to which certain basic features of the Constitution could not be taken away by the Parliament, under its amending powers. In this very case, Justice S.N. Dwivedi had remarked that in India there can be no law for a referendum, as the exclusive procedure for amending the Constitution is Article 368.  

 However, since governments in the past have conducted referendums, the same is possible now and in the future, to ascertain the will of the people towards major policy decisions or possible amendments to such decisions. It is important to note that the current government of Prime Minister Narendra Modi, in its submission to the Supreme Court in November 2020 on the issue of a referendum to ascertain the views of the citizens, as to whether a new Parliament building should be constructed; stated that “We are not a participative democracy. Fortunately, we are a representative democracy. You cannot seek a referendum. Objections (to environment impact) have been made to the CPWD. These have been considered. Participative democracy is a Utopian idea,” [Solicitor General Tushar Mehta to a three-judge bench led by Justice AM Khanwilkar].  

A country as diverse as India needs to hold referendums, in order to have a two-way consistent dialogue between the Government and the People who appointed it into power. While, political parties like to argue that frequent elections act as a platform for citizens to express their views, and that an election can also be considered as a referendum on the basis of agenda and ideology; the converse argument is that elections do not necessarily define national policy and program implementation. Elections are won on promises and lost due to lack of performance. Sometimes, they are re-won on performance delivered; but in every circumstance the citizens have to gamble five years or more of their lives without guarantee of achieving national goals.

The lack of a referendum policy carry’s the risk of stifling the voices of those who are marginalized due to various reasons, across various sections of society. Governments seem to be averse to referendums which carry the inherent risks of refusal of the governments proposals, and because even the Supreme Court would be hesitant to overturn the results of the process, knowing that the opinion of the citizens is supreme. The question that should concern us all is that; had the government of Prime Minister Modi conducted referendums on the Citizens Amendment Act (CAA), National Registry of Citizens (NRC) and the three Farm Bills 2020; would the government have been in a better position to clarify the doubts raised by those opposed to it, convince the majority, of the benefits of these laws towards the security of the nation, and more importantly; would it have prevented the violence and chaos that negatively impacted commercial activities and, law and order?

References:

1. Advocate Swapnil Tripathi / The Basic Structure Blog

2. M.N Roy’s Constitution of Free India

3. Ministry of External Affairs [MEA], Government of India. 

 

 

  

Overstepping its boundaries - an autocratic Supreme Court?

 Articles 141, 142 and 144 of the Constitution of India ensure that the Supreme Court is a uniquely powerful institution in our country and has wide powers conferred onto it vide Articles 32 and 136. Such unrestrained power without any accountability to the People of India, makes it autocratic, conceited and even egotistical in its general behavior. While being accused of failing at times to perform its required judicial functions, the SC has made it it’s unrestrained business to interfere in matters that pertain exclusively to the executive branch of the government, the council of ministers selected from the elected members of Parliament, by the citizens of India.  

 Former Prime Minister Dr. Manmohan Singh, had stated in 2007 that “The dividing line between judicial activism and judicial overreach is a thin one. However, substituting mandamus (a type of judicial writ) with a take-over of the functions of another organ may, at times, become a case of over-reach. These are all delicate issues which need to be addressed cautiously. All organs, including the judiciary, must ensure that the dividing lines between them are not breached. This makes for a harmonious functioning.” It is not only the problem of over-reach of the judiciary but also of avoiding its primary responsibility, that of delivery of justice within a reasonable time frame. All this overreach is possible because judges are not made accountable to the citizens under the current framework of our Constitution.

 When challenged with the issue of pendency of cases in various courts, the standard response from the judiciary is to blame the situation on lack of adequate judges and infrastructure to overcome this problem. With a financial budget of Rs 3173.36 crore in 2019-20 which was revised downwards to Rs 2200 crore, mainly on account of the expenses incurred in the holding of Lok Sabha elections in May 2019, (since the Election Commission's expenditure comes under the budget for the Ministry of Law and Justice), the judicial system in our country is not starved for funds.

The above mentioned budgetary allocations by the Union Government for administrative and other expenditure of the Supreme Court of India includes the provision for salaries and travel expenses for the Chief Justice and other Judges, staff and officers of the Registry including the departmental canteen, charges for professional service towards personnel deployed for security and expenditure on establishment related needs including stationery, office equipment, security equipment, maintenance of CCTV and printing of annual Report of the Supreme Court. 

In January 2018, the salary of the Chief Justice of India was revised upwards from Rs. 1 lakh per month to the current salary of Rs. 2.8 lakhs per month; a hike of nearly 200%; and salaries of the judges of the Supreme Court and Chief Justices of the high courts was revised upwards from Rs. 90,000 to Rs. 2.50 lakh per month. Additionally, the Chief Justice receives a Rs 16.8 lakh-plus dearness allowance, the Supreme Court Judges a Rs 15 lakh-plus DA and high court judges Rs 13.5 lakh-plus DA. Their gratuity is around Rs 20 lakh. 

Tax payers can argue that the judges are paid handsomely for the positions that they hold and for the primary task to which they are appointed; viz, dispensing justice to those in need, and dispensing it within a reasonable time frame. They seem to have forgotten the legal maxim that ‘justice delayed is justice denied’. Whether it was the 1993 interference in an then ongoing anti-terrorism military operation in Hazratbal, Kashmir; or that It took seven long years to arrive at conclusion on the Narmada Bachao Andalan case, or its ruling in the Ram Jnama Bhumi case, or its judgement of Diwali firecrackers, or the appointment of an empowered committee in the matter of environmental cases that created a parallel executive apparatus, or its intervention to form a committee to run the Medical Council of India; many such instances of judicial over-reach have been noted.

The Supreme Court is able to do all this because it is not held to account for all its actions. The judiciary is often doing with impunity what the executive could not or can never do, since the executive is answerable to the people. All these instances seem to indicate distrust, and in some cases a disdain for democratically elected institutions. Even more disturbing is the message that it sends to the executive branch. When the Supreme Court decides to intervene in the implementation of policy as decided by elected parliamentarians, it is asserting itself as a dictatorial institution that can interfere and supersede the democratic process of the nation, while being safe within its constitutional protection that allows it to be unanswerable to the citizens of the country, the very taxpayers who afford its judges a comfortable and secured lifestyle.