Mumbai High Court
Snapshot
  • Some checks and balances on the higher judiciary. Some accountability for the bureaucracy for its actions and inaction. Some respect that our defence forces richly deserve. A nationwide movement to create greater awareness of our incomparable civilisational heritage. These are some of the things that the government could focus on in 2018.

As this essay is being written, the results of the Gujarat and Himachal Pradesh (HP) state elections are still being analysed and assessed. While HP saw a reassuring performance on the part of the nation’s ruling BJP-led political alliance, Gujarat was not really in the comfort zone.

The political analysts in academia and in the various think tanks are still doing their assessments. The Fourth Estate, specifically its electronic component, has been at its usual vociferous best (or worst, if we want to be less euphemistic). Even allowing for the fact that these outlets have a strict time constraint, the debates on TV were as jejune, loud, ill-informed and frenetic as they usually are.

There was enormous gloating from the usual suspects. An English-language TV channel, that was arguably the pioneering private channel in the mid-late 1990s, and is now facing numerous charges of grave financial offences (committed during the halcyon days of the Congress-UPA regime), understandably led the cheer brigade. The other English channels were more or less in the same league and one Hindi channel I watched was equally bullish about the prospects of the return of the Congress raj.

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The overnight rest enabled some commentators, especially in the print media, to take a more nuanced view of the Gujarat results. HP was not a contentious matter. It turned out that the BJP vote share in Gujarat had actually gone up from 47.9 per cent to 49.1 per cent, an absolute increase of 1.2 per cent, but a more impressive proportional increase of 2.5 per cent. It should also be noted that the BJP did better than the Congress in every voter segment, whether rural-urban, reserved-unreserved or regional demarcations.

The Congress, with its overall share of 41.4 per cent recorded an absolute increase of 2.47 per cent, and a proportionate increase of 6.3 per cent. Despite this, the Congress trailed the BJP in the total number of votes by 7.7 per cent. The fact that this was accompanied by a drop in the number of seats won by the BJP from 115 to 99 can only be explained by the first-past-the-post electoral system that we have inherited from our colonial masters.

In the present case, there is clearly a disproportionate drop in the seat count of the BJP; in fact, in a proportional voting system, the BJP would have won the Gujarat seat battle by a whopping number and this would have been a fairer outcome. All theoretical studies for many decades by welfare economists and those who have specialised in the theory of choice have unequivocally demonstrated that the electoral system we have is demonstrably unfair, inequitable and unsound.

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However, we have to study the scenario against the backdrop of the constitutional framework we have adopted, for better or worse. Here, what I propose to do is to suggest to the BJP’s top rung leaders and their advisers a road map they should consider, in order to ensure that the party and its allies comfortably return to power in 2019. In my view, the BJP high command should reflect on the 6.3 per cent proportionate increase in the Congress vote share in Gujarat, and treat it as a red flag.

Some disclosures are in order at this stage. In my personal view, I would definitely like the BJP and its allies to return to power in 2019 and the recommendations I will be making in this essay are partisan to that extent. In 2014, I was in the good company of hundreds of millions of fellow Indians, when we welcomed the victory of the BJP-led alliance in the national elections. The defeat of the Congress and its fellow-traveller parties was a breath of fresh air. The years of family rule, graft, inefficiency had seemingly ended — that seemed to be the predominant view.

In the three-and-a-half years since May 2014, there are many in my group who are sorely disappointed with the performance of the new occupants of Raisina Hill. Yet, we persevere with the present disposition, since the alternative, in our worldview, is so dismal. Therefore, I feel it is my bounden duty to make feasible suggestions to the Narendra Modi administration that will give them an enhanced chance of a return to power in mid-2019.

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I also believe firmly that the policies I recommend here are also good for the country and its citizens. Readers who do not share my worldview and my explicit values may not like to proceed further — I will, of course, have full respect for their decision.

The action plan I suggest to the BJP think tank and the apex decision makers is centred around the following themes/issues/areas, not necessarily in any order of priority: (1) Governance, including bureaucratic and political accountability; (2) Judicial accountability, particularly in the case of the Supreme Court and the high courts; (3) Corporate offences, economic and business crimes; (4) the Economy, with special emphasis on employment generation; (5) Armed Forces, defence and national security; (6) International affairs; and (7) Preserving and promoting India’s civilisational and cultural heritage, leading eventually to a national renaissance.

We should be clear at the outset that these above categories are not mutually exclusive. In fact, they overlap considerably. As we progress further, it will be necessary to have cross-references and links in many cases. The common thread that will be present throughout this suggested action plan is that of governance, ethics, corruption (and its eradication/ minimisation) and efficiency.

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We can therefore start with the first subject, governance. I am not an uncritical advocate of the following dictum of the good poet Alexander Pope: “For Forms of Government let fools contest; whatever is best administered is best.” However, it provides a fairly good foundation for a meaningful debate on the entire theme of administrative probity and efficiency.

Among the most scandalous legacies of approximately 60 years of Congress rule, with seven years of nearly-equivalent venality by NDA1 and the post-Emergency Janata government in the late 1970s, are the abysmal administrative structures in our country, both at the level of the Union government and in the state governments. From 2014 onwards, the present occupants of Raisina Hill have made some welcome efforts to reform the bureaucracy and the horrendous maze of rules, regulations and red tape that had accumulated since 1947 and before.

Indeed, there has been partial vindication of the Modi government’s efforts in this area. India has had an impressive improvement in its ranking in the World Bank’s report on “Ease of Doing Business”. The country jumped 30 spots to the 100th position in the 2017 rankings.

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However, the mandarins and netas in Delhi should not go overboard with this. A rank of 100 is nothing to be satisfied or proud about. The lower bureaucracy continues to be as venal as ever, though the senior mandarins have made some effort to change themselves. The major hurdle in reining in the babus is the notorious Section 197 in the CrPC (Criminal Procedure Code), a disgraceful colonial-era statute that provides almost blanket immunity to errant government employees.

Basically, this section provides that if any “public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction...” of the central government or the state government where the public servant was employed. The entire mischief of this tainted provision lies in the innocuous phrase “purporting to act in the discharge of his official duty”.

The various courts, including the Supreme Court (SC) on a number of occasions, have given widely different verdicts. A 2015 judgement of the apex court gave much-needed relief to citizens when it stipulated that previous government sanction was not necessary when the public servant was clearly engaged in a corrupt act. In other words, the protection under Section 197 was only available to a public servant for the honest discharge of his duty.

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True to form, the SC did an about-turn in its stance just a year afterwards, when a bench headed by Justice J S Khehar (who later became the Chief Justice of India), again made government sanction obligatory.

For the Modi government to gain credibility and also to do a right thing, it should abrogate Section 197 altogether and replace it with another provision that respects citizens’ rights and also protects honest public servants genuinely discharging their functions. This is not nuclear physics that we are talking about — it is eminently doable and highly necessary.

As far as accountability of politicians is concerned, they are already subject to periodic reviews and assessments by the voters during elections. Also, the new move to have separate fast-track courts for politicians is a welcome move that must be tweaked and fine-tuned, so that it achieves its stated objectives.

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Now we come to another critical feature in the country’s socio-political framework. This is the functioning of the Indian judicial system, particularly the higher judiciary. The recent functioning of the SC has been most worrying to all citizens and informed observers. The root of the malaise is the notorious Veeraswami judgement of 1991. By virtue of this untenable and iniquitous decision, the SC unilaterally expanded the constitutional immunity (under Article 124) of the higher judiciary, namely judges of the apex court and the high courts, to an almost complete protection from the applicability of all Indian laws. To add to this deadly formula, the apex court, over time, obtained exclusive power to induct and appoint its own members.

The nation’s elected executive was barred from playing any role in the selection and appointment of Supreme Court and High Court judges. When Parliament enacted the National Judicial Appointments Commission (NJAC) Act, 2014, as well as the 99th Constitution Amendment Act, 2014 (amending Articles 124 and 217 of the Constitution), the SC stepped in promptly.

In October 2015, it struck down the NJAC Act. The recent conduct of the apex court has been far from the elevated standards that the nation expects from it. It has exceeded its brief and encroached on the executive’s domain in a number of cases. In a bizarre decision, it even took upon itself the task of monitoring how the armed forces should deal with terrorists in J&K.

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The current government has very little time until May 2019 to go through the tortuous process of legislating any form of amendment to the procedure of appointment of SC and high court judges. However, it can easily introduce legislation to neutralise the Veeraswami judgement. This is a moral imperative and will bring substantial electoral dividends to the government. It will be a win-win situation with voters, especially if the ministers explain the logic of the move to ordinary citizens.

We now come to the sensitive issue of corporate offences and how business fat cats have lined their pockets with money from banks and the public and got away with it. The Modi administration has indeed made efforts to combat this malaise. In company law and in real estate law, new statutes, that are well-conceived, have been put in place.

In the related subject of economic policies, there is also satisfactory progress, but the government seems to be floundering on the employment generation front. India must do everything to ensure that we do not lose out on our much-vaunted “demographic dividend”.

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On both demonetisation and the goods and services tax (GST), this writer is clear about the benefits of these policy measures. My caveat is on the horrible bungling and misuse by the babus and the crooks in the implementation of these measures. In the first case, venal bank officers enabled a huge number of holders of unaccounted cash to deposit their stash in banks, while the Reserve Bank made a copybook hash when it came to ensuring availability of new banknotes. In the case of GST, the babus made a fool of the netas by drafting rules and regulations that were illogical, ill-conceived and unintelligent. Readers who have tried to go through the expensive government advertisements in the press in the form of “Questions and Answers on GST” will get the gist of what I am saying.

We now come to an area where the Modi government has made a major snafu. This is the treatment it has meted out to our armed forces and the veterans, who expected much from the new dispensation. Indeed, the veterans had constituted a significant segment of the government’s support base in the 2014 polls. The new defence minister has her work cut out for her, particularly because her two predecessors do not seem to have done much.

I have just three recommendations here. The first is to sort out the one-rank-one-pension imbroglio. After having traversed most of the journey, the BJP-NDA regime has to walk the last mile. Stop listening to the babus and the khaki lot — just do your duty and the right thing. The second is to implement the long-awaited policy of having a chief of defence staff, who will be the interface of the armed forces with the defence minister and the government. To have a babu defence secretary as an intermediary between the soldiers and the political executive has been an unmitigated disaster.

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The Modi government has blindly followed the utterly indefensible 70–year old policy regime of the Gandhi-Nehru-Gandhi cabal vis-à-vis the nation’s defenders and sword arm. This hara kiri has to stop. The third suggestion is to restore the parity between the soldiers and the babus. Just see how the general electorate will applaud when there is a return of our soldiers to their designated status. Once the babu-soldier status is corrected and the two measures mentioned earlier have been implemented, the republic’s sword arm will be rejuvenated, and all other connected issues will be resolved and fall in place.

On the international relations front, the Modi regime has done a fairly good job. One caveat though — relying excessively on the Donald Trump administration in the US may not be a wise idea. The Japan-Russia-Israel framework is clearly a viable one for India in the medium term. South-East Asia is always important for us and South Block has done a good job in this part of the world, as well as in Sri Lanka. Nepal is one natural ally, where we seem to have lost out somewhat, but the situation is not irreversible. Bangladesh always needs careful attention and so far we have walked the tightrope quite successfully.

And now to the issue of preserving and promoting our civilisational and cultural heritage, leading eventually to a national renaissance. The fundamental problem with the Congress regime from 1947 onwards is that it crudely and systematically denied and relegated India’s unmatched historical legacy that can be traced back to 5,000 years at least. A crude mishmash of European (read British) and Islamic-Mughal relics was served to us for at least 70 years.

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Indeed, it needed some Westerners to remind us of what we had forsaken. A rediscovery of our incomparably rich roots will provide the psychological and mental compass for our future journey. It will also provide the ethical and moral bearings that we need so much. Philosopher Jiddu Krishnamurti wrote so perceptively: “It is no measure of health to be well adjusted to a profoundly sick society”.

French economist Frédéric Bastiat too had it spot on when he said: “When plunder becomes a way of life for a group of men in a society, over a period of time they create a system that authorises it and a moral code that glorifies it”. If we substitute “plunder” with “distortion” and “deceit”, we can almost hear Krishna’s discourse to Arjun before the battle commenced.

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