GOVERNANCE AND ELECTORAL COMPULSIONS

Prime Minister Manmohan Singh observed at an NGOs' and social activists' meeting in Jaipur the other day that the NGOs should appreciate the relevance of electoral compulsions in the process of decision-making in a democracy. He said that the choices before the people's elected representatives were shaped considerably by these factors. "We have to balance various interests…but they (Civil Society groups) must come to accept that in the management of social change there can be different routes to the same goal" he said.

Lest this very logical statement be applauded as educating the people about the realities of a political system in a democracy, its success will always be dependent on the clear understanding that compulsions and choices in decision-making and especially in a democracy must remain bounded within the limitations of the laws the peoples' representatives have made and the people have accepted. Legislatures have full powers to change laws, but always subject to the limitations put down in the Constitution as it is interpreted by the Apex Court. But even that power should not be taken to mean that laws may be changed at will before the need for the change is fully explained to the people. This applies also particularly to subordinate legislation which should be made after consulting public opinion organizations and the public at large. Thus in both cases the procedure should be fully consultative. Governance also requires that in appropriate situations these laws and rules must be applied promptly and firmly without distinction to say, special vested interests, religion or caste etc. In serious cases such non-application of the laws in time can not only worsen the situation but would amount to abuse of power. I will give only three brief examples.

To take a quite recent example, the 2002 carnage in Gujarat was left to be dealt with by the State Government, being a "State Subject" which could be given assistance by the Central Government only as requested by the former. However, in the Constitution there is also a provision that if there is a breakdown of law and order in a State, the President can dismiss the State Government and delegate its powers to the Governor for short periods not ordinarily exceeding 6 months.

I do not think that any thoughtful and secular Indian will disagree. I would also say that the large majority of the Indian people thought the State Government's inaction at least amounted to non-use of its power if not also to direct

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collusion. This is an example of ignoring the people (not the Gujaratis) and their representatives that has caused not only great anger, but what is more, far reaching changes, social and political, and of course world-wide criticism of the world's largest democracy.

Then, let me mention another example of non-use of the powers of the Central Government in the case of the very large Bangladeshi immigration that has gone on for over 40 years at least. Politicians, particularly in the seriously affected Western and Eastern Border States, including the Communist ruled West Bengal, may not agree. However, all others have sharply criticized it and blamed the Government for the strange inaction it has shown, resulting in "electoral compulsions" leading to the immigrants virtually, but quite illegally, being given all the facilities, even citizenship rights of possessing ration-cards and election identity cards, ignoring social, political and even serious security implications. Manmohan Singh's party and government were not involved for the last 10 years, but the problem that started 30-40 years ago remained and grew exponentially under that very party, with the same inaction and also participated in under "electoral compulsions". The recent elections in Assam and the Panchayat elections in West Bengal are examples where so-called political compulsions generally led to the creation of favourable vote-banks. That may explain inaction but remains a major failure of governance.

The third example, which is indeed the cause for this brief comment, is the ongoing battle in Delhi between citizens' groups and the Superior Courts on the one hand, and the people's representatives in the Delhi Assembly and Parliament on the other hand. Strangely under the Constitutional arrangement none of the local bodies concerned came under the administrative control of the Delhi Government. Even though the Lieutenant Governor was in direct charge of one of the organizations, the DDA, he was responsible only to the Central Government.

The reasons were well-known: All concerned, with rare exceptions, starting with the corrupt municipal authorities and police and also the Corporators, MLAs, MPs and it is believed some Ministers too, were deeply involved in this racket. If say, demolition action was ordered by the Court and even if the demolition party was supported by some policemen, the people's representatives stood as a wall, objecting, shouting slogans, on occasion even when stone-throwing and destruction of public property was done by the mobs and the demolition could not be taken up. In the absence of public outrage, and mainly under pressure of work, the Courts too did not follow up to see if their orders were complied with.

However, some NGOs filed petitions both in the High Court and later in the Supreme Court complaining of the total inaction of MCD, DDA and NDMC that had left the field clear for unauthorized constructions, encroachments on Government lands constructing shops, narrowing roads in that process, constructing houses, multi-storey flats and even a multi-storey hotel.

The Courts had also by then lost their patience at the almost wholesale non-compliance of their orders over the years and admitted the petitions. As hearings began, both Superior Courts started issuing interim orders for very strict, time-bound compliance and also appointed their own Commissioners when they were informed about laxity on the part of he civic authorities. As very large numbers were involved there was an outcry for the issue of an Ordinance or passing of a law by Parliament excluding the subject from the jurisdiction of the Courts. Since both the Delhi Government and the Union received these protests and a 100% resistance from the Congress MLAs, keeping particularly in view Delhi Municipal elections in the next few months, they quickly passed a Special Law in Parliament negating some of the important decisions of the High Court and Supreme Court. The Law was passed by literally 100% of the Parliament. The Government immediately, without comment, forwarded the Bill to the President and strangely, the President signed it immediately too. In fairness to him, it must be said that he had expressed the view that a compromise formula should be devised to solve the problem.

Promptly there was a public interest litigation questioning the validity of a law interrupting ongoing proceedings of the Apex Court. Short of declaring the whole Act unconstitutional and void but giving a few reliefs, the Apex Court is continuing the hearings and the Central Government Solicitor General has produced a suggestion for leaving a few violations. COMMON CAUSE has been permitted to intervene (a copy of the Intervention Petition is included in this issue later). COMMON CAUSE is now awaiting the findings.

Meanwhile, coming back to the "electoral compulsions" mentioned by the Prime Minister: one would say that if instances like the three described briefly above, should lead to connivance and inaction by the State, the Union should not only not remain a silent observer but should make use of its Constitutional powers. It must not allow lawbreakers, including State Governments and Civic Authorities, to violate laws in the type of cases described. In such cases the Prime Minister's role shall remain crucial.

P.K. Davé

October-December 2006