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Prerequisites of freedom
Arun Shourie
Prerequisites of freedom
Mr. Palkhivalas was a life lived by the highest values. His vast
learning, his incredible memory these are, of course, legend. In
anyone they would be enough to mark the person for the highest
distinction. And in Mr. Palkhivalas case, they were to be a great
boon for the country. But even more than these, it is that
commitment to the highest values that we treasure when we
remember Mr. Palkhivala. To give a tiny example, not once on the
occasions that I had the honour to call on him -- not even when he
was not well did he say a word about himself. And never one
bitter word, not even a harsh one about any one else. How different
from, and how far above most of us.
And he was ever full of help to every worthy cause. The first time I
saw him was at the house of Mr. Soli Sorabjee here in Bombay.
The Emergency was still on. JP was lying stricken in Jaslok
Hospital. Mr. V. M. Tarkunde had asked me to attend a meeting of
the key group that was running the Citizens for Democracy. Mr.
Palkhivala was there. Mr. Tarkunde mentioned what is the
perennial difficulty of every good cause -- finances. Without a
pending
immediately
before
the
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to understand what the people demand and keep in tune with what
the people want.
In the Rajya Sabha the Law Minister embellished this concern for
the judiciary. He declared that it cannot be that the Constitution is
what the court says it is. The record shows, he said, that in every
important matter the judiciary has transgressed its limits.
It is against such dangerous drivel that Mr. Palkhivala raised his
voice. It is from the ruinous consequences of such pernicious
claims that Mr. Palkhivalas erudition and courage saved us.
And the episodes, and Mr. Palkhivalas conduct through them
illustrate the first prerequisite of freedom. In the end, everything
turns on the individual. And in the individual, there is no substitute
for character. For at that critical moment that moment when you
are to appear in the Supreme Court, and the previous day the law
has been changed by and in favour of your client all will be lost
if at that critical moment we relapse into thinking, into calculating
ratios, into weighing pros and cons. Instinct, character alone will
determine whether we will use the new law to win the case and
thus notch up another victory, or, as Mr. Palkhivala did, return
the brief.
Camus put the point well in The Fall:
.Without slavery, as a matter of fact, there is no definitive
solution. I very soon realized that. Once upon a time, I was
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The one great assault on freedom since then was during the
Emergency, and that too was an assault by and in the name of
the State.
Left-rhetoric has dominated public discourse in India over
the past fifty years. And, while they have been the most
ruthless wielders of State power, their rhetoric has been antiState. Witness the justification that has been advanced for
Naxalite terrorism that it is but a reaction to State
terrorism.
But since that fateful encounter in 1975, the State of India has
become progressively weaker. Today governments are riddled
coalitions. Therefore, they just cannot mount an out-and-out
assault on freedom.
And so we feel our freedoms are secure.
But having muscle to withstand an open assault does not shield one
against slow rot from within.
That is the problem. And it can be encapsulated in three passages
from our Constituent Assembly Debates passages that you would
have often heard Mr. Palkhivala recite from memory.
Three prescient passages
The first, of course, is the warning of Joseph Storey that the
Provisional Chairman, Dr. Sachchidananda Sinha recalled in his
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are
beautiful,
as
well
as useful;
its
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and less able to go to the people with their record of service and
performance, they have stoked these primal identities, they have
conjured up threats to them, and presented themselves as the only
available saviours.
So, even that keystone of the democratic arch the periodic
election is deepening fault-lines. This, quite apart from other
effects it is having on national life, will soon tell on freedom. A
society so splintered will not be able to stand up to an all out
assault by one determined to crush freedom. Indeed, you and I,
fixated as we are on governments in Delhi, do not see what has
already come to prevail in many a region. In region after region,
the splintering has already delivered power into the hands of local
toughs. Moreover, the toughs proclaim that all means are justified
to crush those whom they dub the oppressors, that everything is
justified to avenge centuries of oppression and humiliation. The
consequence? Freedom has a very restricted meaning in Bihar
and Eastern UP today. In fact, the splintering, and the kind of
person who is capturing office as a result, a matter to which I shall
just turn, has already fomented among vast numbers a yearning for
the strong man, for some strong man or woman -- of their
caste, for only he or she will deliver them from the tough of the
other caste. A Mayawati to counter a Mulayam Singh. Anybody to
counter Laloo Yadav.
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differences,
caste
differences,
language
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Has his prayer been answered? Has his faith in events and chance
been vindicated? Has our political class been exerting itself to
reconcile those conflicting claims or fanning claims so many of
them, contrived to foment conflict so as to cement its own
following? Has it escaped the snare of those temptations the
loaves and fishes to distribute, the powers to share?
But I am on two other points. That the hour of crisis will throw up
men and women the Emergency a JP is not enough. For
governance has to be of a standard from day to humdrum day. So,
the questions we must face are: Is the electoral system that was
adopted under the Constitution; rather, more accurately, is what we
have made of the electoral system that was adopted under the
Constitution throwing up, a set of honest men who will have the
interest of the country before them? Is it bringing to the fore a set
of men of strong character, men of vision, men who will not
sacrifice the interests of the country at large for the sake of smaller
groups and areas and who will rise above the prejudices which are
born of those differences? Are elections throwing up persons who
have the ability to run governments?
And is one of the reasons they are failing to do so not the one to
which Dr. Rajendra Prasad had drawn attention even at that time?
You will recall the passage that preceded the one I have just
reproduced. He said that, as deliberations of the Constituent
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in
to have character.
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In these cases, the defence has been that the persons concerned
have not been convicted, and that, like everyone else (except, of
course, those whom we dislike for other reasons!) they are
innocent till they are convicted. But under this system, we provide
the greatest incentive to the one who has wreaked evil and who
happens to be a legislator or aims at becoming a legislator, to
stretch the judicial process out for ever. Suppose you had the
opposite provision: that once the court frames the charges, a
person, howsoever honest and innocent, shall immediately demit
office, and that he will not be qualified to stand for office till
acquittal. He would then have the opposite incentive: his interest
would be best served by assisting the courts so as to ensure the
speediest conclusion to the judicial process.
But anyone can get any charge framed against anyone in politics
these days, say politicians specially those from Bihar. The best
way to induce them to work to remedy this situation is to inflict
consequences of it on them which they would find unacceptable!
That is, disqualify them till they are acquitted. They would then
join others in bringing about a situation in which investigating
agencies and courts are not suborned by the one in office.
Many aspects of the present arrangements are indeed ludicrous.
Consider Section 8A of the Representation of Peoples Act. It says
that a sitting member of Parliament or an Assembly who gets
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the
poor
quality
of
persons
who
this
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There are several other proposals that have been advanced from
time to time. Each of these should be examined threadbare:
A salutary improvement was instituted by the NDA
Government: that the size of the ministry shall not be larger
than 15 per cent of the lower House. But in several states the
ceiling has been circumvented by the predictable dodge:
persons who could not be retained as ministers have been
allowed to retain what they really value -- all the perquisites
of ministership -- by being made heads of public sector
corporations. Surely, this sort of a dodge can be nipped.
The way legislatures are fractured today gives persons a huge
incentive to form two-member parties than be parts of a
larger party this is the way to maximize chances of
becoming a minister. A thoughtful observer put the
alternative to me the other day: why not provide that a party
with less than five per cent of the legislature must become
part of one alliance or another, and, more important, none of
its members must be taken in as minister?
Compulsory voting will make manipulation of the electorate
that much more difficult.
During every election central forces are sent to states
ostensibly to ensure that the poll is fair. But, as the theory is
that they are there only to assist state forces, the resourceful
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come to a complete stop, and then take off again. At last I asked
him why he was doing that. But there was a Stop sign there, he
explained. Here we were on a vast plateau with no one around for
miles. But just because there was a sign, he would bring the car to
a complete stop.
In our case, the status of a person is known by the number of rules
he can disregard. That is a major reason why ministers and
legislators figure so high on the status ladder!
But sturdy banks enable water to flow faster. Indeed, can there be a
river without banks? Rules enlarge my freedom as they bind others
to limits that they cannot cross. Indeed, a collection of people is a
community in as much as its members obey a common set of rules,
in as much as they abide by a common set of values. For our
structures to function, we have to instill this habit, of rule
abidingness in our legislators as much as in our children. Look at
what happens in Parliament. At its fiftieth anniversary, M. Ps.
unanimously pledged to abide by a Code of Conduct. The Code
prescribes, to take just one instance, that no one shall step into the
well of the House, and anyone who does so shall be automatically
suspended. Is that rule observed? Is it enforced? Does any M.P.
fear that it will be enforced?
But can institutions function if we do not obey rules any more than
traffic move if everyone drives where he will?
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who are creeping and abject towards us, will ever be bold and
incorruptible assertors of our freedom against the most
seducing and the most formidable of all powers. No! Human
nature is not so formed; nor shall we improve the faculties or
better the morals of public men by our possession of the most
infallible receipt in the world for making cheats and
hypocrites.
Let me say, with plainness, I who am no longer in a public
character, that if by a fair, by an indulgent, by a gentlemanly
behaviour to our representatives, we do not give confidence
to their minds, and a liberal scope to their understandings; if
we do not permit our members to act upon a very enlarged
view of things, we shall at length infallibly degrade our
national representation into a confused and scuffling bustle of
local agency. When the popular member is narrowed in his
ideas, and rendered timid in his proceedings, the service of
the Crown will be the sole nursery of statesman. Among the
frolics of the court it may at length take that of attending to
its business. Then the monopoly of mental power will be
added to the power of all other kinds it possesses. On the side
of the people there will be nothing but impotence; for
ignorance is impotence; narrowness of mind is impotence;
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any set of men living. These he does not derive from your
pleasure; no, nor from the law and the constitution. They are
a trust from Providence, for the abuse of which he is deeply
answerable. Your representative owes you, not his industry
only, but his judgment; and he betrays, instead of serving
you, if he sacrifices it to your opinion.
Burkes opponent had said that he would subordinate his will to the
opinion and instructions of those he sought to represent. Burke
turned the argument on its head, telling them candidly that, while
they may have opinions and inclinations, government and
legislation are matters of reason and judgment, and not of
inclination. He told the constituents,
My worthy colleague says, his will ought to be subservient
to yours. If that be all, the thing is innocent. If government
were a matter of will upon any side, yours, without question,
ought to be superior. But government and legislation are
matters of reason and judgment, and not of inclination; and
what sort of reason is that, in which the determination
precedes the discussion; in which one set of men deliberate,
and another decide; and where those who form the
conclusion are perhaps three hundred miles distant from
those who hear the arguments?
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for
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If you point to the truth about reservations: that they are a sleight
of hand of the politician instead of working to ensure better
education, better hostel facilities, superior tuition for the
disadvantaged, he gets posts reserved, and proclaims that he has
brought boons for them; that these are boons in the most
stagnant part of our society namely, government service; that
they have led to a perverse race, a jostling to get ones group
declared backward; that in several states, the reservations are
being cornered by a few sub-castes; that the proportions of jobs
that are now being reserved far exceed even the illustrative
proportions that had been stated in the Constituent Assembly by
Dr. Ambedkar himself
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so much better off if the resources that are locked up in these units
were put to more productive use. Sugar subsidies? You dare not
touch them even though they perpetuate the growing of this
water-intensive crop in drought prone areas of Maharashtra, even
though the subsidy benefits the mills and keeps them inefficient to
boot, rather than the cane-growers. Fertilizer subsidies? You dare
not reduce them even though times without number it has been
shown that they are being cornered by mills and not being passed
on to farmers, even though by subsidizing chemical fertilizers we
are encouraging farming practices that harm our soil, that poison
our food. Locating industries in uneconomic sites? You dare not
question the policy for then you would be against the development
of backward regions of the country even though the concessions
are repeatedly exploited by unscrupulous elements to escape taxes,
even though in the long run the units are not able to compete
because the location remains inappropriate.
It is not the general interest that has occasioned these programmes
and concessions. Nor the need of the particularly disadvantaged.
Jiska daav lag gaya, use mil gaya. And the agglomeration of these
concessions is the human face of our policies. I have little doubt
that if the total amounts that have been squandered on such
programmes had been used productively, the country would have
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grown so much faster and the poor themselves would have been
better off.
The economic consequences of such pandering are very important
in themselves and would certainly have troubled an observer like
Mr. Palkhivala. The other consequences are just as injurious.
When a polity once accepts that this is the way to look after the
interests of the poor that is, by diluting standards, by making
special concessions regarding outcomes to a group it just has to
go on extending the ambit of dilutions and concessions. And no
segment of the polity, no political party for instance, can resist the
pressure to go on a hunt of its own for groups for which it will
wrest concessions. Even in that pusillanimous judgement, Indira
Swahney vs. Union of India, the Supreme Court provided six or
seven apertures through which to roll back the excesses in which
the reservations-race had ended. But such are the compulsions of
vote-bank politics that whips were issued, and bills to amend the
Constitution and thereby plug the apertures were passed
unanimously with only one solitary member, Cho Ramaswamy,
in the Rajya Sabha dissenting.
In a case like that there are whips, of course, and, as I mentioned,
the anti-defection law, the Tenth Schedule leaves no freedom to the
individual legislator to vote in accordance with his own assessment
of the merits of the case. But even short of whips, the pressures
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the State loses legitimacy, rules and laws are flouted with even
greater abandon, institutions like the police and civil service are
suborned with even more brazenly.
All this while, there is the myth of democracy that what is being
done is the will of the people, that the rulers have the mandate
to do what they are doing. High on social justice, there are
legions of legitimizers servants ever so civil to whoever happens
to be in office; legislators; lawyers; alas, many a journalist too.
We talk of Freedom under the law, we repeat Government of
laws not men. But what is law in such a circumstance? What
protection can it afford against a demagogue who has donned the
cloak of a man of the masses, who has bamboozled enough
people for the moment that he is the messiah delivering social
justice?
Alas, even courts are not immune from such rhetoric. Injustices are
exaggerated to legitimize what the politician has, for other reasons,
found convenient. Indira Sawhney itself constitutes a particularly
egregious example of the genre. The text of one judge after another
is written as if India were still in the middle-ages. That some
passage occurs in Manu is taken as proof that what the passage
implies was indeed the actual situation at that time an inference
without the shred of evidence; not just that it is presented as
proof that that is how things are today!
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The advances that have been made, that are daily being made the
way modernization is eroding caste to which I drew attention
earlier are stoutly ignored.
Worse, norms that are absolutely essential for us to hold our own in
the fiercely competitive world of today are thrown out of the
window and that too on the say-so of an opportunist of a
politician. Trying to justify what he had done V. P. Singh had told
Parliament in August 1990,
We talk about merit. What is the merit of the system itself?
That the section which is 52% of the population gets 12.55%
in government employment. What is the merit of the system?
That in Class I employees of the government it gets only
4.69%, for 52% of the population in decision-making at the
top echelons it is not even one-tenth of the population of the
country; in the power structure it is hardly 4.69%. I want to
challenge first the merit of the system itself before we come
and question on the merit, whether on merit to reject this
individual or that. And we want to change the structure
basically, consciously, with open eyes. And I know when
changing the structures comes, there will be resistance
What I want to convey is that treating unequals as equals is
the greatest injustice. And, correction of this injustice is very
important and that is what I want to convey. Here, the
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