Tuesday, December 10, 2013

Start of something extraordinary in India

Two years ago, India witnessed its version of the Arab spring in the fiercest extra-parliamentary movement against corruption in its history as an independent nation. We are now seeing the electoral dividends of the movement that many had begun to write off as yet another failed attempt at reforming a robust but increasingly tainted political system.

The Aam Aadmi (ordinary man's) Party, a by-product of the protests of 2011, has emerged as the second-largest party in the state elections in the capital, Delhi, and could potentially break the mould of Indian electoral politics. India's noisy and resilient democracy does not need a revolution, but, for many, the Aam Aadmi victory is the sign of great hope at the end of a year in which the nation's political and economic stock reached a nadir. Using a broom as its symbol, Aam Aadmi promises to clean Indian public life of its muck and has injected the capital's voters with new energy and enthusiasm.

In April 2011, Anna Hazare, a 74-year-old follower of Mohandas Gandhi who was known for his work for rural empowerment, led the protests against the corruption that is almost endemic in Indian public life, and particularly entrenched in traditional political parties. The demand was for the appointment of a constitutionally empowered ombudsman who would have extraordinary powers to deliver swift justice.

While the demand was never fulfilled and Hazare all but retreated to his rural haven, the need for more honest politics became the zeitgeist of an anti-establishment political culture among India's growing middle class. Led by a Hazare protege and former civil servant, the 45-year-old Arvind Kejriwal, Aam Aadmi has defied all odds by emerging as the second-largest party in Delhi and holds the balance of power in the state's legislature.

Few believed the party would do so well, with Kejriwal defeating the capital's most recognised face, its thrice-elected chief minister, Sheila Dikshit, by more than 22,000 votes.
In India belonging to a political family and having huge financial backing were seen as critical requirements in the electoral system. Many parliamentarians belong to political families, many are millionaires, and political parties are widely seen as dependent on ''shady'' or ''black'' money on which no taxes are paid.

Aam Aadmi, by contrast, had no political lineage, raised money transparently, was driven by a spirit of volunteerism, and relied on the social media for political mobilisation. It refused to have any truck with either of the main parties, the ruling Congress or the opposition Bharatiya Janata Party and has now declared its preference to sit in opposition rather than form a coalition with either party in a hung legislature.

Many view Aam Aadmi as a sign of middle-class radicalism, which has captured the imagination of the people in a city-state that represents, more than any other part of the country, a middle-class sensibility and middle-class aspirations. In the past few years, while the capital's infrastructure has improved beyond recognition, it has been in the headlines for the wrong reasons: the rape of a college student in a moving bus; the scam involving the Commonwealth Games; and the evidence of crony capitalism with lobbyists making deals to influence the appointment of cabinet ministers. Ironically, the government is led by unarguably one of the most honest political leaders in Indian public life. And yet Prime Minister Manmohan Singh, who has an Oxford doctorate in economics, in public perceptions, is seen as having presided over the most corrupt government in recent years.

While Aam Aadmi has been a game-changer in Delhi, the capital is not India and the party barely has a presence elsewhere in the country. In other states that went to the polls the mood against the Congress was clearly in evidence with the BJP gaining significantly. Caste, religion and traditional political loyalties a well as big money have traditionally played a significant role in elections. But these differences may be less important now than in the past. The internet, mobile phones and television may be building a pan-India spirit against outdated politics and traditional parties. In a country of 1.2 billion, with nearly 500 million aged under 25, there seems to be a new awakening, new aspirations and anger towards a system that fails to deliver. Aam Aadmi in Delhi may hence be just the beginning of new politics in India.

A few months ago, it invited me to join its policy group to prepare a policy document, ''A New Agenda for India'' that would offer ethical policy alternatives. I dismissed this as yet another maverick attempt at taking on the impossible and did not respond with much enthusiasm. It is time to review that decision as India prepares for change.


(Source: The Age)

Friday, December 6, 2013

Understanding Article 370

At the Bharatiya Janata Party’s recent Lalkar rally in Jammu, its prime ministerial candidate, Narendra Modi, called for a debate on Article 370. This is encouraging and suggests that the BJP may be willing to review its absolutist stance on the Article that defines the provisions of the Constitution of India with respect to Jammu and Kashmir. Any meaningful debate on Article 370 must, however, separate myth from reality and fact from fiction. My purpose here is to respond to the five main questions that have already been raised in the incipient debate.

Why it was incorporated
First, why was Article 370 inserted in the Constitution? Or as the great poet and thinker, Maulana Hasrat Mohini, asked in the Constituent Assembly on October 17, 1949: “Why this discrimination please?” The answer was given by Nehru’s confidant, the wise but misunderstood Thanjavur Brahmin, Gopalaswami Ayyangar (Minister without portfolio in the first Union Cabinet, a former Diwan to Maharajah Hari Singh of Jammu and Kashmir, and the principal drafter of Article 370). Ayyangar argued that for a variety of reasons Kashmir, unlike other princely states, was not yet ripe for integration. India had been at war with Pakistan over Jammu and Kashmir and while there was a ceasefire, the conditions were still “unusual and abnormal.” Part of the State’s territory was in the hands of “rebels and enemies.”

The involvement of the United Nations brought an international dimension to this conflict, an “entanglement” which would end only when the “Kashmir problem is satisfactorily resolved.” Finally, Ayyangar argued that the “will of the people through the instrument of the [J&K] Constituent Assembly will determine the constitution of the State as well as the sphere of Union jurisdiction over the State.” In sum, there was hope that J&K would one day integrate like other States of the Union (hence the use of the term “temporary provisions” in the title of the Article), but this could happen only when there was real peace and only when the people of the State acquiesced to such an arrangement.

Second, did Sardar Vallabhbhai Patel oppose Article 370? To reduce the Nehru-Patel relationship to Manichean terms is to caricature history, and this is equally true of their attitude towards Jammu and Kashmir. Nehru was undoubtedly idealistic and romantic about Kashmir. He wrote: “Like some supremely beautiful woman, whose beauty is almost impersonal and above human desire, such was Kashmir in all its feminine beauty of river and valley...” Patel had a much more earthy and pragmatic view and — as his masterly integration of princely states demonstrated — little time for capricious state leaders or their separatist tendencies.

But while Ayyangar negotiated — with Nehru’s backing — the substance and scope of Article 370 with Sheikh Abdullah and other members from J&K in the Constituent Assembly (including Mirza Afzal Beg and Maulana Masoodi), Patel was very much in the loop. And while Patel was deeply sceptical of a “state becoming part of India” and not “recognising ... [India’s] fundamental rights and directive principles of State policy,” he was aware of, and a party to, the final outcome on Article 370.

Negotiations
Indeed, the synergy that Patel and Nehru brought to governing India is evident in the negotiations over Article 370. Consider this. In October 1949, there was a tense standoff between Sheikh Abdullah and Ayyangar over parts of Article 370 (or Article 306A as it was known during the drafting stage). Nehru was in the United States, where — addressing members of the U.S. Congress — he said: “Where freedom is menaced or justice threatened or where aggression takes place, we cannot be and shall not be neutral.” Meanwhile, Ayyangar was struggling with the Sheikh, and later even threatened to resign from the Constituent Assembly. “You have left me even more distressed than I have been since I received your last letter … I feel weighted with the responsibility of finding a solution for the difficulties that, after Panditji left for America ... have been created … without adequate excuse,” he wrote to the Sheikh on October 15. And who did Ayyangar turn to, in this crisis with the Sheikh, while Nehru was abroad? None other than the Sardar himself. Patel, of course, was not enamoured by the Sheikh, who he thought kept changing course. He wrote to Ayyangar: “Whenever Sheikh Sahib wishes to back out, he always confronts us with his duty to the people.” But it was Patel finally who managed the crisis and navigated most of the amendments sought of the Sheikh through the Congress party and the Constituent Assembly to ensure that Article 370 became part of the Indian Constitution.

Third, is Article 370 still intact in its original form? One of the biggest myths is the belief that the “autonomy” as envisaged in the Constituent Assembly is intact. A series of Presidential Orders has eroded Article 370 substantially. While the 1950 Presidential Order and the Delhi Agreement of 1952 defined the scope and substance of the relationship between the Centre and the State with the support of the Sheikh, the subsequent series of Presidential Orders have made most Union laws applicable to the State. In fact today the autonomy enjoyed by the State is a shadow of its former self, and there is virtually no institution of the Republic of India that does not include J&K within its scope and jurisdiction. The only substantial differences from many other States relate to permanent residents and their rights; the non-applicability of Emergency provisions on the grounds of “internal disturbance” without the concurrence of the State; and the name and boundaries of the State, which cannot be altered without the consent of its legislature. Remember J&K is not unique; there are special provisions for several States which are listed in Article 371 and Articles 371-A to 371-I.

Fourth, can Article 370 be revoked unilaterally? Clause 3 of Article 370 is clear. The President may, by public notification, declare that this Article shall cease to be operative but only on the recommendation of the Constituent Assembly of the State. In other words, Article 370 can be revoked only if a new Constituent Assembly of Jammu and Kashmir is convened and is willing to recommend its revocation. Of course, Parliament has the power to amend the Constitution to change this provision. But this could be subject to a judicial review which may find that this clause is a basic feature of the relationship between the State and the Centre and cannot, therefore, be amended.

Gender bias?
Fifth, is Article 370 a source of gender bias in disqualifying women from the State of property rights? Article 370 itself is gender neutral, but the definition of Permanent Residents in the State Constitution — based on the notifications issued in April 1927 and June 1932 during the Maharajah’s rule — was thought to be discriminatory. The 1927 notification included an explanatory note which said: “The wife or a widow of the State Subject … shall acquire the status of her husband as State Subject of the same Class as her Husband, so long as she resides in the State and does not leave the State for permanent residence outside the State.” This was widely interpreted as suggesting also that a woman from the State who marries outside the State would lose her status as a State subject. However, in a landmark judgement, in October 2002, the full bench of J&K High Court, with one judge dissenting, held that the daughter of a permanent resident of the State will not lose her permanent resident status on marrying a person who is not a permanent resident, and will enjoy all rights, including property rights.

Finally, has Article 370 strengthened separatist tendencies in J&K? Article 370 was and is about providing space, in matters of governance, to the people of a State who felt deeply vulnerable about their identity and insecure about the future. It was about empowering people, making people feel that they belong, and about increasing the accountability of public institutions and services. Article 370 is synonymous with decentralisation and devolution of power, phrases that have been on the charter of virtually every political party in India. There is no contradiction between wanting J&K to be part of the national mainstream and the State’s desire for self-governance as envisioned in the Article.

Separatism grows when people feel disconnected from the structures of power and the process of policy formulation; in contrast, devolution ensures popular participation in the running of the polity. It can be reasonably argued that it is the erosion of Article 370 and not its creation which has aggravated separatist tendencies in the State. Not surprisingly, at the opposition conclave in Srinagar in 1982, leaders of virtually all national parties, including past and present allies of the BJP, declared that the “special constitutional status of J&K under Article 370 should be preserved and protected in letter and spirit.” A review of its policy on Article 370, through an informed debate, would align today’s BJP with the considered and reflective approach on J&K articulated by former Prime Minister Atal Bihari Vajpayee. Only then would the slogans of Jhumuriyat , Kashmiriyat and Insaniyat make real sense.


(Source: The Hindu)