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The Palkhivala Memorial Lecture, 2005

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

moments thought, Mr. Palkhivala said he would send Rs. five


lakhs out of his own funds.
Later, when the Spastics Society was trying to raise resources for a
building in Delhi, I wrote to Mr. Palkhivala. He at once got TISCO
to supply steel at a concessional price.
But it was difficult for the children to come in public transport, and
most parents did not have cars to bring them to school. I again
wrote to Mr. Palkhivala. He at once got TELCO to donate a
specially designed bus.
The other day, when I mentioned to my father that I had been
asked to deliver this lecture in honour of Mr. Palkhivala, he
reminded me that it was Mr. Palkhivala who had arranged Rs. 20
lakhs from the TATAs to get Common Cause started.
That he was always there to support every worthy cause is precious
in itself. But with this went two other things that make that trait
triply precious. He never but never asked for anything in return
that was so unthinkable in his case that you would think me
blasphemous even to mention it. Even more telling of his nature is
the fact that hardly anyone here would have known that he had
given any help in the instances I mentioned. Though he had done
so much for the Spastics Society, for Common Cause, for Citizens
for Democracy, I never heard him mention it even once on
subsequent occasions. I dont think he even remembered the help

he had given. What an example for us: that we should always


remember what someone does for us, and never remember what
we do for anyone.
Above all, his life was marked by total commitment to our country,
to the public weal. In the first lecture in this series, Mr. Fali S.
Nariman recalled what we owe him: the dyke of Basic Structure,
no less: in Golaknath; in Keshavananda; in the absolutely
unparalleled, and yet unequalled achievement of getting the Chief
Justice to dissolve the Bench he had constituted during the
Emergency to overturn the Keshavananda decision; in getting the
Court to strike down in Minerva Mills the provision introduced
into Article 31C during the Emergency that no legislation passed
either by Parliament or a state legislature could be challenged so
long as it said, it merely said that the law had been enacted to
implement a basic principle of State Policy.
Dark times, times when a word is a deed
Each of us could add a number of instances to Mr. Narimans list
of the debts we owe Mr. Palkhivala. I would recall just two or three
to illustrate the deep commitment that Mr. Palkhivala had to first
principles, to fundamentals, a commitment we must imbibe.
Mr. Palkhivala was to defend Mrs. Gandhi against the verdict of
Justice Sinha. Literally on the eve of the hearing before the

Supreme Court, the Constitution was changed by the 39 th


Amendment. The designations of the President, Vice President and
Speaker were thrown in but the target was only the case against
Mrs. Gandhi. We really should recall what was done to see what
gets done in the name of principle and the people. The 39th
Amendment provided:
The election of a person who at the time of the election
or thereafter is appointed Prime Minister shall not be
called in question except before such authority or
body and in such manner as may be provided for by or
under any law made by Parliament and any such law
may provide for all other matters relating to doubts and
disputes in relation to such election including the
grounds on which such election may be questioned.
The validity of any such law and the decision of any
authority or body under such law shall not be called in
question in any court.
Where any person is appointed as Prime Minister
while an election petition in respect of his election to
either House of Parliament or, as the case may be, to the
House of the People is pending, such election petition
shall abate upon such person being appointed as Prime
Minister.
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The diabolic and conclusive clause (4): No law made


by Parliament before the commencement of the
Constitution (Thirty-ninth Amendment) Act, 1975, in so
far as it relates to election petitions and matters
connected therewith, shall apply or shall be deemed
ever to have applied to or in relation to the election of
any such person and such election shall not be
deemed to be void or ever to have become void on any
ground on which such election could be declared void
or has, before such commencement, been declared to be
void under any such law and notwithstanding any order
made by any court, before such commencement,
declaring such election to be void, such election shall
continue to be valid in all respects and any such order
and any finding on which such order is based shall be
and shall be deemed always to have been void and of
no effect.
Any appeal or cross appeal against any such order of
any court as is referred to in clause (4) [the preceding
sub-para]

pending

immediately

before

the

commencement of the Constitution (Thirty-ninth


Amendment) Act, 1975, before the Supreme Court shall

be disposed of in conformity with the provisions of


clause (4).
Mr. Palkhivala returned the brief.
Then followed the notorious Swaran Singh Committees proposals
to recast the Constitution. In an article marked by his trademark
reasoning and courage, Mr. Palkhivala took the so-called report of
this so-called Committee apart proposal by proposal. In
particular, he demolished the claim on the basis of which
everything was being done and urged that the Parliament is
supreme, and therefore its power to amend the Constitution shall
not be subject to any limit. This theme constitutes not only
defiance of the law laid down by the Supreme Court but is
insupportable on first principles, Mr. Palkhivala argued. If
Parliament has the power to destroy the fundamental principles of
our polity, he wrote, it would cease to be a creature of the
Constitution, it would become supreme over the Constitution. As
so much is even today claimed on behalf of legislatures to say
nothing of individual legislators, and also because the passage
contains a seed to which I shall return, permit me to recall what
Mr. Palkhivala wrote in this regard, and please remember that this
was at the height of the Emergency when everything was being
justified on the ground that it had been sanctioned by Parliament:

As regards constitutional amendments, Parliaments will is


certainly not the peoples will. To equate Parliament with the
people is to betray complete confusion of thought. In
choosing their representatives, the electorate takes into
account a number of factors which have nothing to do with
constitutional amendments. This has been proved time and
again in countries where the peoples will is ascertained on a
referendum held upon Parliaments proposal to alter the
Constitution.
The nefarious 42nd Amendment was enacted nonetheless. Again, at
the height of oppression, Mr. Palkhivala articulated a devastating
critique of the provisions. In particular, he showed how the new
provisions fell afoul of the Basic Structure doctrine that the
Supreme Court had laid down. He argued against the axe that had
been wielded to cut the powers of the judiciary.
Mrs. Gandhi told the Lok Sabha that the power of Parliament to
change the Constitution is an unfettered, unqualified and
unabridgeable right. She declared that the Basic Structure
doctrine is an invention of judges.
What is the Basic Structure?, asked one of her acolytes of that
time, Siddhartha Shankar Ray. What are its contents, ingredients?
Has the Constitution defined what is basic and what is not? Is there

any part of the Constitution that is so sacrosanct that it cannot be


taken away? There is not a single authority throughout the
country please pause and consider what he is saying, There is
not a single authority throughout the country; the Supreme Court
is thus no authority at all who has suggested that there are
certain basic features in a Constitution.
The new provisions were advocated in the name of the people, of
course on the ground that they were necessary for upliftment of
the downtrodden. But there is no socio-economic policy that is
impeded by the human freedoms that are enshrined in our
Constitution, Mr. Palkhivala argued.
In particular, Mr. Palkhivala argued against the provisions which
pared down the judiciary.
The new provisions, Mrs. Gandhi declared, are merely going to
re-establish harmony between the legislature, executive and the
judiciary as originally provided in the Constitution which had
been disturbed by that invention of judges, the Basic Structure
doctrine. We are removing the cobwebs created by some recent
attempts of the judiciary to encroach into policies and legislative
spheres. We are reasserting note the words that follow the
sovereignty of the people and pointing out that everything else,
including the Constitution, is for the people. We are trying to end,
once and for all, some needless controversies which stood in the

way of quicker progress. Words whose echoes we hear today, as


we shall soon see.
During discussion of the 42nd Amendment itself, Government told
the Rajya Sabha that it would undertake a review of the entire
judicial system and recast it. The reason? Because, the Law
Minister told Parliament, the present judicial system is neither in
tune with our national genius nor with the aspirations and
expectations of our people. He developed Mrs. Gandhis theme
about restoring harmony, and declared, It will be a bad day for the
judiciary if this the confrontation that the judiciary had
engineered by laying a limit to the power to mutilate the
Constitution It will be a bad day for the judiciary if this recurred
now after this Amendment.
Of course, he had no intention to denigrate judges, the Law
Minister told the Lok Sabha. All that I was trying to do was to
emphasize that the judges have to be in tune with the movement of
the times and with the felt necessities of the times. If that does not
happen, it is not that the people can be held back, but the judiciary
would come into disrepute. It is to prevent that thing from
happening how touching: he and the Government are cutting the
judiciary down only for the sake of the judiciary itself that I and
many of us emphasized in our speeches that we wanted the judges

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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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always talking of freedom: At breakfast I use to spread it on


my toast, I used to chew it all day long, and in company my
breath was delightfully redolent of freedom. With that key
word I would bludgeon whoever contradicted me; I made it
serve my desires and my power. I used to whisper it in bed in
the ear of my sleeping mates and it helped me to drop them. I
would slip it Tchk! Tchk! I am getting excited and losing
all sense of proportion. After all, I did on occasion make a
more disinterested use of freedom and even just imagine
my naivet -- defended it two or three times without of
course going so far as to die for it, but nevertheless taking a
few risks. I must be forgiven such rash acts; I didn't know
what I was doing. I didn't know that freedom is not a reward
or a decoration that is celebrated with champagne. Nor yet a
gift, a box of dainties designed to make you lick your chops.
Oh, no! Its a choice, on the contrary, and a long-distance
race, quite solitary and very exhausting. No champagne. No
friends raising their glasses as they look at you affectionately.
Alone in a forbidding room, alone in the prisoner's box
before the judges, and alone to decide in face of oneself or in
the face of others' judgment.

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The new challenge


The victory against the Emergency was one of the most
exhilarating moments since Independence. A determined assault
against freedom had been pushed back. But an assault is not the
only way freedom may perish more trees succumb to termites
than fall to storms. And the spectacular, heroic deed is not the only
sort that is needed.
Indeed, that the country succeeded in thwarting that assault has in a
sense left us complacent that freedom is secure. This confidence
is misplaced. On the one hand, the memory of that assault is now
as dim as that of the original struggle for freedom. Over 62 per
cent of Indians alive today were not even born in 1975. And
another 20 per cent of those alive today were too young to
remember June 1975. On top of this, laws and passages of the kind
I just recalled, the arguments by which they were advanced, have
been buried deep beneath quilts of hagiography.
We think of freedom primarily as freedom of the individual vis a
vis the State. This is so for three among several reasons:
Such ideas of freedom as we have today were nurtured
primarily during the struggle against the British. The British
controlled the State, and so that struggle was against the
State.

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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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Inaugural Address, and which Mr. Palkhivala put as the


frontispiece to his book, Our Constitution, Defaced and Defiled.
Storey had said,
Let the American youth never forget that they possess (in
their Constitution) a noble inheritance, bought by the toils,
and sufferings, and blood of their ancestors; and capable, if
wisely improved, and faithfully guarded, of transmitting to
their latest posterity all the substantial blessings of life, the
peaceful enjoyment of liberty, property, religion, and
independence. The structure has been erected by architects of
consummate skill and fidelity; its foundations are solid; its
compartments

are

beautiful,

as

well

as useful;

its

arrangements are full of wisdom and order; and its defences


are impregnable from without. It has been reared for
immortality, if the work of man may justly aspire to such a
title. It may nevertheless perish in an hour by the folly, or
corruption, or negligence of its only keepers, the people.
Republics are created and here Dr. Sinha looked up, and
told the assembled members, these are the words which I
commend to you for your consideration by the virtue,
public spirit, and intelligence of the citizens. They fall, when
the wise are banished from the public councils, because they
dare to be honest, and the profligate are rewarded, because

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they flatter the people, in order to betray them. [Constituent


Assembly of India, Debates, 9 December 1946, Book I,
Volume I, p. 5.]
Pause at the last few words for a moment: They fall, when the
wise are banished from the public councils, because they dare to be
honest, and the profligate are rewarded, because they flatter the
people, in order to betray them. Can there be a better description
of what has been made of Dr. Sinhas state, Bihar? The precise
condition having been brought about, can the consequence Storey
foretold be escaped? What freedom will survive the wreckage?
Turn next to the closing speech of Dr. Ambedkar. He had been
explaining how the Constitution had come to be put together, piece
by piece, how so many had contributed to its evolution, and been
countering some of the criticisms that were already being leveled.
And then he said,
Here I could have ended. But my mind is so full of the
future of our country that I feel I ought to take this occasion
to give expression to some of my reflections thereon. On 26 th
January 1950, India will be an independent country (Cheers).
What would happen to her independence? Will she maintain
her independence or will she lose it again? This is the first
thought that comes to my mind. It is not that India was never
an independent country. The point is that she once lost the

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independence she had. Will she lose it a second time? It is


this thought which makes me most anxious for the future.
What perturbs me greatly is the fact that not only India has
once before lost her independence, but she lost it by the
infidelity and treachery of some of her own people. In the
invasion of Sind by Mahommed-Bin-Kasim, the military
commanders of King Dahar accepted bribes from the agents
of Mahommed-Bin-Kasim and refused to fight on the side of
their king. It was Jaichand who invited Mahommed Gohri to
invade India and fight against Prithvi Raj and promised him
the help of himself and the Solanki kings. When Shivaji was
fighting

for the liberation of Hindus, the other Maratha

noblemen and the Rajput Kings were fighting the battle on


the side of Moghul Emperors. When the British were trying
to destroy the Sikh Rulers, Gulab Singh, their principal
commander sat silent and did not help to save the Sikh
kingdom. In 1857, when a large part of India had declared a
war of independence against the British, the Sikhs stood and
watched the event as silent spectators.
Will history repeat itself? It is this thought which fills me
with anxiety. This anxiety is deepened by the realization of
the fact that in addition to our old enemies in the form of
castes and creeds we are going to have many political parties

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with diverse and opposing political creeds. Will Indians place


the country above their creed or will they place creed above
country? I do not know. But this much is certain that if the
parties place creed above country, our independence will be
put in jeopardy a second time and probably be lost for
ever.
He added an exhortation, of course: This eventuality we must all
resolutely guard against. We must be determined to defend our
independence with the last drop of our blood. And this
exhortation was greeted with acclamation, Cheers, states the
Record. [ibid, 25 November, 1949, Book VI, Volume X, pp. 97778.]
But in view of what we see around us today, what strikes us? That
our political parties are living up to Dr. Ambedkars exhortation?
Or his foreboding?
And look at what has become a contributory factor. The centrepiece of our constitutional system, indeed of every democratic
system is the periodic election. In a society as vast and as diverse
as ours, to win an election, it used to be that a party had to be a
hold-all. That was for long the reason the Congress prevailed it
appealed to diverse groups. And elections used to nudge other
parties to progressively broaden their appeal by chiseling away
their corners. There was a contrast between leading a movement

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and winning elections, it used to be said -- Movements divide,


elections bring together. For a movement stirs strong passions.
You are either with JP or against him. You are either with the
Assam students or you are with those who shoot down 800 of
them. That is why a person who leads a movement, it used to be
said, can seldom win elections. In a sense, therefore, that centrepiece of democracy, the election, itself used to help fashion a
political class in the image of the country, a political class that
would, to use Dr. Ambedkars words, place country above creed.
But that was three decades ago. Today the national parties are
stuck. Parties that appeal exclusively to sectional interests for
instance, to particular castes -- have pushed them out from one
state after the other. Every party that tries to focus on nation-wide
issues is finding that it is just not able to mobilize sufficient
support. On the other hand, the campaign of each sectional party
has but one theme that the group which it represents is separate
from, that it is different from and at loggerheads with all other
groups; indeed, that it is being done in by other groups. The
election strategy of the one who seeks to get such a group behind
him is not to unify and bring people together. Quite the contrary. A
person leading a caste that constitutes 16 per cent of the population
strategizes to but one purpose to break the caste that is 18 per
cent into factions smaller than his 16 per cent. Elections over,

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coalitions are cobbled together of parties whatever their beliefs


that is easier done than said for none of them believes in much.
The Government is formed, true, and functions. And the
politicians themselves get along famously in the central halls of
legislatures. But outside, in the field so to say, the residue of each
round is an even blacker pile of bitterness, even sharper divisions.
We see the consequence in the North these days. Economic
development -- for instance, the way it multiplies occupations;
modernization -- the new modes of transport, the more and more
distant places from which one gets one supplies, for instance;
urbanization the crowding that inevitably follows in its wake; all
these were erasing the caste rules we used to read about. Recall
Dumonts account in Homo Hierarchicus. He told us about people
who would not eat food or take water served by persons of this
caste or that: today, who knows the myriad hands through which
the food he eats has passed? Today people fight to get municipal
authorities to provide water to them: do they first verify the caste
of the person working in the waterworks? Dumont narrated how in
the South, if so much as the shadow of an untouchable fell on a
person from a high caste, he had to bathe. Today, in an
overcrowded bus, does the passenger first check the caste of the
man crushing him? So, in a hundred ways caste was being
dissolved. But in the last thirty years, as politicians have been less

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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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That dnouement apart, there is a debility that follows from the


theory of democracy itself. We have seen the first steps: win
elections by fielding whoever will win and by using whatever
means will deliver; the results in, cobble together parties whatever
their beliefs. The next step follows from the premise of what we
have made of parliamentary democracy that is, whatever this
contrived majority does is the will of the people, it is what the
people gave a mandate for! Recall the passages I listed from
Mrs. Gandhi and her minions. Look at the way a fatuous document
the Common Minimum Programme, drafted after the elections
to rationalize the coming together of disparate parties -- has
suddenly acquired scriptural status. Look at the way, on the claim
that the people have given them a mandate, these persons suborn
investigative agencies and public prosecutors to defang cases in
which they are implicated.
We feel secure in the belief that that invention, the doctrine of
the Basic Structure will shield us from extreme excesses. But the
content can be, in many regions it already has been hollowed out
though the external structure is all that the Constitution requires.
True, there is the Comptroller and Auditor General of India and his
large organization as provided for in the Constitution. True, they
produce detailed reports about the accounts and administration of
state governments as they do in regard to central ministries. But

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have you ever seen whether anything has been done as a


consequence of the absolutely shocking facts they have set out
about the way finances have been managed by, for instance, the
Government of West Bengal? That the structure is in place
means little. It protects few, rather a few the rulers, not the
citizens.
This is bad enough. But there is another feature, and it will become
apparent from the next passage to which I request you to turn. You
will recall the concluding Address of the President of the
Constituent Assembly, Dr. Rajendra Prasad. You will recall his
words,
Whatever the Constitution may or may not provide, the
welfare of the country will depend upon the way in which the
country is administered. That will depend upon the men who
administer it. It is a trite saying that a country can have only
the Government it deserves. Our Constitution has provisions
in it which appear to some to be objectionable from one point
or another. We must admit that the defects are inherent in the
situation in the country and the people at large. If the people
who are elected are capable and men of character and
integrity, they would be able to make the best even of a
defective Constitution. If they are lacking in these, the
Constitution cannot help the country. After all, a Constitution

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like a machine is a lifeless thing. It acquires life because of


the men who control it and operate it, and India needs today
nothing more than a set of honest men who will have the
interest of the country before them. There is a fissiparous
tendency arising out of various elements in our life. We have
communal

differences,

caste

differences,

language

differences, provincial differences and so forth. It requires


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 over the
prejudices which are born of these differences.
Given the occasion, he too expressed hope:
We can only hope that the country will throw up such men
in abundance.
And faith:
I can say this from the experience of the struggle that we
have had during the period of the freedom movement that
new occasions throw up new men; not once but almost on
every occasion when all leading men in the Congress were
clapped into prison suddenly without having the time to leave
instructions to others and even to make plans for carrying on
their campaigns, people arose from amongst the masses who
were able to continue and conduct the campaigns with

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intelligence, with initiative, with capacity for organization


which nobody suspected they possessed. I have no doubt that
when the country needs men of character, they will be
coming up and the masses will throw them up.
Of course, he was not no one in that generation was -- the
resigning kind. He did not want, not one of those assembled in the
Central Hall would have wanted affairs of State to be left to events
and chance. And so, in spite of the decades of suffering that those
before him had endured for the country, he counseled them,
Let not those who have served in the past therefore rest on
their oars, saying that they have done their part and now has
come the time for them to enjoy the fruits of their labours. No
such time comes to anyone who is really earnest about his
work. In India today I feel that the work that confronts us is
even more difficult than the work which we had when we
were engaged in the struggle. We did not have then any
conflicting claims to reconcile, no loaves and fishes to
distribute, no powers to share. We have all these now, and the
temptations are really great. Would to God that we shall have
the wisdom and the strength to rise above them, and to serve
the country which we have succeeded in liberating. [ibid, 26
November, 1949, Book VI, Volume X, pp. 993-94.]

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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

26

Assembly drew to a close, he had two regrets. One regret he said


was that it had not been possible in the time available to prepare
for adoption simultaneously the version of the Constitution in an
Indian language. The other regret he expressed is the one to which
I want to draw your attention -- for its cumulative consequences
are upon us. Dr. Rajendra Prasad said,
.I would have liked to have some qualifications laid down
for members of the Legislatures. It is anomalous that we
should insist upon high qualifications for those who
administer or help in administering the law but none for those
who make it except that they are elected. A law giver requires
intellectual equipment but even more than that, capacity to
take a balanced view of things, to act independently and
above all to be true to those fundamental things of life
one word

in

to have character.

Hear, Hear, all assembled exclaimed. Of course, there was a


basic difficulty, Dr. Rajendra Prasad acknowledged, but then there
was a consequence too, one that was just as certain as the difficulty
was apparent:
It is not possible to devise any yard-stick for measuring the
moral qualities of a man and so long as that is not possible,
our Constitution will remain defective.

27

The consequences of that omission pile one on the other. To start


off, the Executive is to be chosen from among the legislators: with
the stock that our elections are throwing up, it is just a chance if a
fifth of any Council of Ministers consists of persons who have the
requisite executive ability. Do not be misled by the one who
happens to be Prime Minister. Look at his Council of Ministers as
a whole -- for, while in theory he is the first among equals, no
Prime Minister can squander his authority picking a quarrel over
every issue with minister after minister. Do not be misled by a
Council of Ministers. Look at the legislature as a whole: in the end,
no Prime Minister, certainly not one faced with fractured
legislatures of the kind that are now the order of the day, can
disregard the clamour of the generality of the political class, that is
of the legislature as a whole. Thus, irrespective of how sagacious
the Prime Minister is, irrespective of the fact that six or seven of
his colleagues are world class, the character, comprehension and
capabilities of the average legislator have decisive, and all too
often deadly consequences for programmes and policy.
But arent civil servants the ones who are meant to advise, and
then, after policies have been set by ministers, to execute? To be
able to choose between possible courses of action which civil
servants and others will proffer, especially in the fast-changing,
high-technology, interdependent world in which we now live,

28

ministers must themselves be knowledgeable. Moreover, their


knowledge wont go far either if the political class as a whole is as
little equipped to choose as it is today: it will go by slogans, it will
be propelled by interested parties, and, to put it no higher, will
unknowingly derail rational policies. The unending arguments over
WTO, over patents, over public sector enterprises all bear
testimony to the mal-effects of this multi-tier unacquaintance. In
any event, it wont be long before the civil service acquires the hue
of political leaders: look at the way civil services in Bihar and UP
have become casteist, and how individual civil servants strive to
hook on to some political side or the other.
And the disease is progressive. Each round of elections enfeebles
the polity further. Each round of discretionary appointments to
Civil Service Selection Boards in state after state, for instance
weakens administration further. Dr. P. V. Indiresen has a law to
explain the condition affairs of State have reached, Indiresens
Law: Second rate persons select third rate persons. You do that
for fifty years, and governance becomes what it has.
In such a swamp, neither the courts nor the civil administration
shall be sturdy enough to protect freedoms and rights of citizens
against encroachments by domineering leaders and factions. Again,
consider Bihar. Which court, what iron frame stands in the way

29

of the kidnapper? Which policeman comes in the way of persons


usurping property?
Structure
Structures are the ones who man them. And the latter are their
conduct. But structures too influence conduct.
As we have seen, the existing constitutional structure is not
elevating into office persons who will put interests of the country
above those of self or section. It is not placing governance in hands
of persons who have the ability to run affairs of State. Every
passing election is clearing the way for an ever-worse sort to enter
legislatures, and, through them, governments. Moreover, it is
providing an avoidable impetus to factors that pull us apart.
We have to face these facts.
And to examine whether some alterations in the structure would
not help turn the slide around.
Even in the decades that immediately followed the adoption of the
Constitution, there was keen argument whether the structure that
had been adopted was the most appropriate one for the country.
You will recall that in 1959, JP put forth his well-known Plea for
the Reconstruction of the Indian Polity. A few years later, Mr. B.
K. Nehru argued for wholesale changes in his Rajaji Memorial
Lecture. Later, Mr. L. P. Singh urged an altogether different system

30

of representation -- with multiple member constituencies in place


of the single-member constituencies we have. These were persons
of the highest commitment to freedom. They were patriots of the
first water. They were persons of vast experience. Who can doubt
their motives? But since then discourse has got so vitiated that to
even suggest that we re-examine the structure is to lay oneself
open to the charge that one has some hidden agenda. That is how
the one great opportunity that was created the establishment of
the Constitution review Commission under Justice Venkatchelliah
was as good as killed even before it could commence work.
That effort was killed. But the system is not working. Therefore,
we must recommence the debate on possible alternatives.
Naturally, the place to start is the problem to which Dr. Rajendra
Prasad had drawn attention the qualifications that persons must
fulfill before they aspire to enter legislatures. The cases that have
occasioned the recent disquiet over tainted ministers are just the
more conspicuous instances of the consequences that Dr. Rajendra
Prasad apprehended. Both aspects are important: the lacunae which
allow nefarious persons to become legislators you have just had a
vivid example in Maharashtra that would rival any in Bihar; as
well as the circumstance that compels even an honest Prime
Minister to induct them into the Cabinet.

31

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

32

convicted of, say, murder, shall be disqualified unless he files an


appeal within three months of the conviction. Which fool will fail
to file an appeal within three months? And then ensure that the
case keeps getting adjourned for ever? Why not have the opposite
provision? That the person will be disqualified but that the appeal
shall be heard day to day without any adjournment, and be
concluded within three months?
Consider the larger question of sending persons to legislatures who
have the aptitude and ability to weigh legislative proposals, to
reflect on policy alternatives. The fact is: it just is not possible for a
Palkhivala to win an election to Parliament today. One of the
considerations that persuaded Mr. L. P. Singh to argue for multimember constituencies was that they would help parties field a
better type in elections. Were we to have a list-system extending
over the entire country, voters would just not know the merits of
individual candidates: India is a continent; a person may have done
exemplary work in Maharashtra and yet be unknown in Assam.
But if we clubbed five neighbouring constituencies, and required
each party to field a list of five candidates for the enlarged
constituency, it is possible that the party would be able to induct
two or three persons on to the list who were equipped for
legislative and executive work. That was the reasoning.

33

Mr. B. K. Nehru, on the other hand, argued in effect for a full


Presidential system. He was greatly concerned with both
consequences

the

poor

quality

of

persons

who

this

parliamentary system I put the words within inverted commas


because what we have made of the system bears little resemblance
to what a parliamentary system is supposed to be was throwing
up, as well as the divisive pulls that it was triggering. A list system
or its variant, Mr. Nehru felt, would give an even greater boost to
caste-parties. You will only get lists of rival castes, young man, he
admonished me when I broached the proposal with him. On the
other hand, were we to require that the head of the Executive shall
be chosen directly through a nation-wide election, we would
ensure that no one who appealed to just a section of the population
would get elected. Simultaneously, were we to give him the
freedom to select members of his Cabinet from outside the
legislature also, we could give ourselves a better chance of placing
our governments in hands of persons qualified to run them.
Those two are not the only elements, of course, in such proposals:
after all, unless the institutions that are meant to ensure
accountability the C and A G, the Lok Ayuktas and Lok Pal, etc.
are simultaneously made effective, a Presidential system can
result in Government passing into the hands of a total rogue and he

34

being completely liberated from even the minimal oversight that


todays unruly legislatures secure.
So, direct elections and recruiting colleagues from outside the
legislature are not the only elements in the alternative we should
consider. Moreover, there are many gradations: in the US,
members of the Cabinet are neither members of nor do they
participate in deliberations of the legislature though the
questioning they are subjected to in appearances before
Committees of the Senate and the House of Representatives is far
more exacting than the one that ministers in our system have to
face. We could have an intermediate arrangement: that the
President could select persons from within or from outside the
legislature for his Cabinet; that, once appointed, they would no
longer be able to vote in the legislature but would participate in
debates so as to convey to the legislature the reasons that have
prompted the Executive to decide things one way rather than
another.
The point thus is not that there is an alternative system readymade
that will attend to all our difficulties. The point is that we must face
the fact that the present system is not providing the sorts of
legislatures and executives that would enable us to meet the
challenges we face, and that, therefore, we must explore
alternatives.

35

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
36

fixers in state governments just ensure that the central remain


in the school compounds in which they are camped.
Everyone knows that this is the case. Yet the farce is kept up.
Why not place them under the direct charge of the Election
Commission?
The anti-defection law in its present form, the Tenth Schedule
of the Constitution, completely stifles the freedom of
individual legislators for it provides that, whatever the
matter, a member who votes against the directions of his
party shall be guilty of anti-party activity and thus be liable to
expulsion from the legislature. Why not restrict its
application to votes of confidence or no-confidence? Why not
also jettison the anachronistic convention of one-Rupee cutmotions leading to the fall of the Government, and provide
that a Government can be brought down only by a noconfidence motion? Discussion on subjects like the Budget
would then be more candid, decisions on them would be
taken with some elbowroom.
And on the no-confidence motion itself, why not adopt the
German provision that the motion cannot be one expressing
no-confidence in the Prime Minister; that it can only be one
expressing confidence in some other person as Prime

37

Minister? That way the haggling that we have had to witness


after a Government was voted out would be prevented.
Rules and institutions
Of course, there is no structure that cannot be perverted.
Exasperated at the way our country was being kept from attaining
its potential by socialist controls and policies, Mr. Palkhivala used
to say that it requires real genius to keep India down, but that our
governments have it. We have the same order of genius to put
every institution, to twist every law to our personal and immediate
advantage.
I still remember a vivid lesson I learnt when I first went to the US
to work for a doctorate. In those days for just a hundred dollars one
could buy a ticket and travel anywhere in the US on a Greyhound
bus for several months. I decided to use the first vacation to go
from Syracuse to Seattle to San Francisco to San Jose to., a
complete circle. At the last minute a Professor told me that I could
travel for a part of the journey more comfortably than in a bus, that
he was driving across to his home in Seattle and I was welcome to
ride in his car.
It was a sports car. We were racing across the mid-Western states.
You couldnt see anyone for miles and miles. The Professor drove
at unnerving speed. But every now and then he would slow down,

38

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?

39

We have, of course, to devise ways and conventions by which


appropriate persons are appointed to institutions. And I do think
that what has been done this time round where Secretaries and
others have been moved around on the charge that X is Ys
man, etc. has infected the central Secretariat with the very virus
that has already ruined many a state administration. But placing the
best persons in jobs is only the first step. Institutions are
strengthened or destroyed by the way they function every day in
ordinary cases. Just as in our dusty summers we bathe twice a day,
we need to nurture institutions twice a day.
Throughout the day.
Every day.
As long as we live.
Nor is there a switch which, once it is turned on, will ensure that
the institution shall function well thereafter, there is no alteration in
the structure that will ensure that it will subserve the general good
forever thereafter.
Heed the Dhammapada. What it counsels us as individuals is also
exactly how institutions are to be tended:
As the silversmith removes impurities from silver, so the
wise man from himself: one by one, little by little, again and
again.
Again and again the key words.

40

A myth, and a mistaken notion


But proposals such as the one you mentioned direct election of
the head of Government; multi-member constituencies -- strike at a
fundamental feature of our system. The M. P. represents his
constituents. Who will look after their interests in the sorts of
alternatives you are talking about?
That an M. P. does, or even can look after the interests of eighteen
lakh people the average number in a Lok Sabha constituency is
just a myth. By clutching this myth we divert our effort from the
two things that we should really be striving to ensure. No Prime
Minister can solve the problems of a billion people; no M. P. can
solve the problems of eighteen lakh people by attending to them
one by one. The only way either can help is to work to create a
system of administration, and to help have those policies adopted
that will alleviate their problems. By retaining this myth The M.
P. is to solve the problems of persons in his constituency we
send the wrong kind to legislatures, the one who has the guile to
promise ever-more; once he is there, we force him to expend his
energy on the wrong things; we even help him rationalize the
wrong he may do he can explain away his efforts to get a road
construction contract to a relative or a financier by showing that he
is just helping persons from his constituency.

41

Remember Edmund Burke. You will recall the anger of his


constituents. When time came for his re-election, they conveyed to
Burke their anger at the fact that, during the time he represented
them, he strove to advance not their interests they were mainly
traders but what he concluded were the interests of the country.
His letter to his constituents in Bristol, his speeches on the question
whether a member of Parliament must obey instructions of his
constituents state precisely what we should learn.
We look for the man who will pander to us, for the one will cater to
our locality, to our caste. I certainly have very warm good wishes
for the place of my birth, Burke tells his constituents frankly. But
the sphere of my duties is my true country.
We look for the man who will do as we want, who will be the
Tulmohan Ram, with the difference that he will be so on our behalf
also and not just on his own. And each politician out-does the other
telling us how he will be a better Tulmohan Ram on our behalf
than the other. And Burke? Depend upon it, he tells his
constituents,
.that the lovers of freedom will be free. None will violate
their conscience to please us, in order afterwards to discharge
that conscience, which they have violated, by doing us
faithful and affectionate service. If we degrade and deprave
their minds by servility, it will be absurd to expect that they

42

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;

43

timidity is itself impotence, and makes all other qualities that


go along with it impotent and useless.
At present it is the plan of our court to make its servants
insignificant. If the people should fall into the same humour,
and should choose their servants on the same principles of
mere obsequiousness, and flexibility, and total vacancy or
indifference of opinion in all public matters, then no part of
the state will be sound; and it will be in vain to think of
saving it.
A rival told the constituents that he would always proceed by their
instructions. Burke repudiated the proposition wholeheartedly,
knowing full well what cost he may have to pay for what he was
saying. He told his electors,
Certainly, gentlemen, it ought to be the happiness and glory
of a representative to live in the strictest union, the closest
correspondence, and the most unreserved communication
with his constituents. Their wishes ought to have great
weight with him; their opinion, high respect; their business,
unremitted attention. It is his duty to sacrifice his repose, his
pleasures, his satisfactions, to theirs; and above all, ever, and
in all cases, to prefer their interest to his own. But his
unbiased opinion, his mature judgment, his enlightened
conscience, he ought not to sacrifice to you, to any man, or to
44

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?

45

To deliver an opinion, is the right of all men; that of


constituents is a weighty and respectable opinion, which a
representative ought always to rejoice to hear; and which he
ought always most seriously to consider. But authoritative
instructions; mandates issued, which the member is bound
blindly and implicitly to obey, to vote, and to argue for,
though contrary to the clearest conviction of his judgment
and conscience, -- these are things utterly unknown to the
laws of this land, and which arise from a fundamental
mistake of the whole order and tenor of our constitution.
And then he described the true nature and function of a legislature.
If only our legislators and commentators were to bear the words in
mind. Burke said,
Parliament is not a congress of ambassadors from different
and hostile interests; which interests each must maintain, as
an agent and advocate, against other agents and advocates;
but parliament is a deliberative assembly of one nation, with
one interest, that of the whole; where, not local purposes, not
local prejudices, ought to guide, but the general good,
resulting from the general reason of the whole. You choose a
member indeed; but when you have chosen him, he is not
member of Bristol, but he is a member of parliament. If the
local constituent should have an interest, or should form an
46

hasty opinion, evidently opposite to the real good of the rest


of the community, the member for that place ought to be as
far, as any other, from any endeavour to give it effect. I beg
pardon for saying so much on this subject.
Accused of being an Irishman on the Irish question, of being an
American on the American question rather than a Britisher

for

he defied popular sentiment on both occasions, he stood up to


popular indignation and urged that the just demands of these
peoples be conceded

he tells his constituents point-blank how

he had foreseen the disasters they have invited upon themselves; he


had warned them, he reminds them, and they had scorned him.
What! Gentlemen, he asks,
was I not to foresee, or, foreseeing, was I not to endeavour
to save you from all these multiplied mischiefs and
disgraces? Would the little, silly, canvass prattle of obeying
instructions, and having no opinions but yours, and such idle
senseless tales, which amuse the vacant ears of unthinking
men, have saved you from, the pelting of that pitiless storm,
to which the loose improvidence, the cowardly rashness, of
those who dare not look danger in the face, so as to provide
against it in time, and therefore throw themselves headlong
into the midst of it, have exposed this degraded nation,
beaten down and prostrate on the earth, unsheltered,
47

unarmed, unresisting? Or on the day that I hung down my


head and wept in shame and silence over the humiliation of
Great Britain? I became unpopular in England for the one,
and in Ireland for the other. What then? What obligation lay
on me to be popular? I was bound to serve both kingdoms.
To be pleased with my service was their affair, not mine.
I was an Irishman in the Irish business, just as much as I
was an American, when, on the same principles, I wished you
to concede to America, at a time when she prayed concession
at our feet. Just as much was I an American, when I wished
Parliament to offer terms in victory, and not to wait the wellchosen hour of defeat, for making good for weakness, and by
supplication a claim of prerogative, pre-eminence, and
authority.
Thus, competence, sturdy independence, commitment -- not to us
and our group but to the whole.
There is an even more elementary reason to commit Burkes
example to memory. In India today being a representative of the
people has gone beyond the premise that the persons task is to
wrest special benefits for them. It is taken to mean that he is a
representative in that he is like the people he represents. Look at
the behaviour of, and the qualifications of many a man of the
masses who people our legislatures.

48

But, as Burke taught, by his example as much as by his words, a


person deserves to be elected not because he is like the people -as little literate as they are, as unaware of the world as they are, as
little able to weigh legislative proposals as they are. He is to be
elected because he is best equipped to weigh which among
competing proposals and options is best for them. And not for them
in particular, but for the country as a whole.
The great justification for assault
Today, governments spend about Rs. 45,000 crore on subsidies. If
you suggest even that governments should ascertain whether these
are really reaching the poor, you are against the poor.
Standards are dismissed as contrivances to keep the backward
down. Mediocrity is the norm. Ignorance is argument. Intimidation
is evidence. Assault is proof. And if you question any of this, you
are against the backward, you are for perpetuating exploitation
by the high castes.
If you do no more than use the word that Gandhiji used, Harijan,
and not the one that has been coined as a weapon in the politics of
grievance-mongering, and to justify norm-less conduct Dalits
-- you are a Manuvadi, and, therefore, by definition an oppressor
who secretly wants millions to be made untouchables again.

49

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

-- if you request even that these

apprehensions be examined, you are part of the oppressor-regime,


and are scheming to divide the oppressed to boot.
Initially all sorts of aggression was justified in the name of class.
While it successfully silenced the rich, while it got the literati to
start parroting the same verbiage, Communists and socialists soon
found that class rhetoric was not enlarging their base. The way
forward was out-and-out caste politics. But how were these
progressives to adopt such a retrograde category into their
platform? Hence, the breakthrough formulation: In India caste is
class!

50

Since then social justice has been the great rationalization of


every step to pander to sections, in particular to castes and
minorities.
Bosses who control such groups are, ex officio, exempt from all
norms. Their vulgarity is authenticity. Their ignorance of affairs of
state that are put in their hands is precisely what makes them like
the people. Whosoever talks of exactions by them and their
relatives, does so only because they are from the lower castes, and
he cant stand their being heads of government! Today no officer,
even if he has conclusive proof of wrong-doing by an officer who
got in through the reservation route, dare say so even in the annual
CR lest he himself be charged with hostile attitude towards
SCs/STs.
There cannot be any doubt at all that those who are disadvantaged
must be helped. But today all that is being done is to pander to
groups to buy votes, and to dress this pandering up as social
justice. That moment when, frightened of a rally, a politician
one whom his closest associates did not remember having so much
as talked of the matter earlier -- lunged for Mandal is the true
symbol of the times. As is the avalanche which is sent hurling
down on even the minutest effort to deport illegal Bangladeshi
infiltrators.

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Social justice has thus resulted in a moral and mental paralysis.


Labour laws? Dare not touch them as you would be injuring poor
workers even though organized labour is the aristocracy of the
Indian working class: specially so the workers in public sector
units, their pay and allowances being higher than those of workers
in private units! Subsidies? Dare not question them as you would
be kicking the stomachs of the poor even though the Planning
Commission itself has said how those below the poverty line
would automatically be lifted above it if all the anti-poverty
programmes and subsidies were scrapped and they were sent the
amounts by money-order! Free power? Dare not say anything
against it as you would then be against the poor farmer even
though the poor farmer is not the one who gets such power as
reaches the village, even though farmers are willing to pay for
power if only they get reliable power. Minimum Support Prices?
You dare not question them as you would then be anti-farmer
even though these prices are benefiting farmers in just four states,
even though even in these states they are keeping the farmers from
diversifying into higher-value crops. PSU corpses kept on artificial
respiration? You dare not say anything about them for then you
are against hard working labourers who, with their blood, sweat
and tears have built the temples of modern India never mind
how the country, and therefore the workers themselves, would be

52

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

53

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

54

that such blind worship of a chimera like social justice engenders


silence the one who might venture to state the truth. In April 1992,
while responding to a discussion in the state Assembly, the then
Chief Minister of Assam, Hiteshwar Saikia admitted that there
were 30 lakh illegal Bangladeshi immigrants in the state. Unless he
withdraws that statement within 48 hours, thundered the head of
the Muslim United Front, his Government will be brought down.
Saikia immediately declared that he had never made the statement
though he had made it on the floor of the Assembly itself. Last
year, Mr. A. K. Anthony, one of the most upright of recent Chief
Ministers, warned that minorities were exacting too much in the
form of benefits, that their organizing themselves into vote banks
was bound to create a backlash. He was traduced no end. And
eventually that statement cost him the Chief Ministership. Or take
what happened in Kerala the other day. All of you know what a
great reformer Sri Narayana Guru was, and what a sea-change he
brought to the lives of millions, in particular to the lives of the then
untouchable Ezhavas. The SNDP is the Ezhava organization today.
On 2 January, 2005, at one of the most significant gatherings in the
state, the congregation of the Nair Service Society, the General
Secretary of SNDP, Vellappali Natesan said that the minorities
were capturing all the benefits in the country in the name of
secularism, that they were swallowing the majority, that a situation

55

has arrived in Kerala when members of the majority can escape


from this only by converting themselves or committing suicide. He
blamed politicians for making the situation worse by hankering
after vote banks. He asked the majority to come together. He
narrated how, precisely because the SNDP and the Nair Service
Society were striving to bring their followers together, they were
being attacked day in and day out. [The New Indian Express, 3
January, 2005.] The account of this speech appeared in the papers
on the morning of 3rd January. The afternoon was not over and an
avalanche of denunciations was sent down on Vellapalli. He cares
only for the rich in his community. He is fomenting communal
hatred. He has no shame in making himself available to the
RSS.
Where is the freedom of speech in such an atmosphere? How can
rational examination survive such verbal terrorism? But those who
hurl the denunciations do so to a well-honed strategy: to make an
example of the person who speaks that fragment of fact and
thereby frighten everyone else so that the claims of that particular
group low caste, minority, labour are put beyond
examination.
There is another consequence too one that will tell on both the
effectiveness of the State as well as on freedom within it.

56

What the outcome of what I do will be depends not only on the


opportunities I have, not only on my effort, but also on
circumstance for instance, the effort put in by others on that
matter that day; much as whether an item will make it to the frontpage of the newspaper tomorrow depends in part on what else has
happened that day. And the outcome depends on chance. Today,
social justice is taken to mean that the State must guarantee
equality of outcomes to all, indeed in many instances that it
guarantee particular outcomes to members of particular groups
independently of whether or not they make the effort that is
mandated for that outcome witness the way qualifying marks are
lowered, sometimes to near nothing, for candidates from particular
castes.
As one group after another is able to get on to the Schedule or
wrest the label backward, the spheres in which the State must
intervene becomes larger and larger: witness the proposals today
that reservations be extended to private enterprises. You would
have noticed a curiosity: the very persons who habitually denounce
the State as it seeks powers to maintain law and order, to fight
terrorism, say, are the ones who demand that it discharge more and
more functions to abolish poverty, to deliver social justice.
Now, these demands are being heaped on the State at a time when
it is able to deliver less and less. Indeed, almost the only thing that

57

is putting a limit to the concessions that political parties are ready


to make to sectional demands is that the resources at the command
of the State are limited: witness the second thoughts on the
Employment Guarantee Bill, witness the way the promise of free
power is being scaled down in Andhra.
The consequences are certain. Tugged and pushed, the State will
lurch from one concession to another. As there are many groups
that can claim that they deserve social justice, and as their claims
often conflict with each other, the State will often be paralyzed -witness what has happened to administration and development
projects in UP as a result of the conflict that has been stirred
between Mayawatis Dalits and Mulayam Singhs backwards.
The leader of each group foments a zero-sum mentality, and this
intensifies as, aided by the paralysis that the rival claims to social
justice have caused, the sum indeed does not grow. Two
apparently contradictory things happen simultaneously: on the one
side, as it fails to live up to promises, the State loses legitimacy;
and, on the other, capturing the State becomes all-important. All
means are therefore unleashed to capture the State witness what
is being used to win elections these days. And that contributes to
intensifying all the ills we have been noticing: the diversion away
from growth; suborning of institutions; the flouting of rules and
norms; thus the continuing de-legitimization of the State; and, as

58

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!

59

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

60

National Front Governments commitment for not only


change of government, but also change of the social order, is
something of great significance to all of us; it is a matter of
great significance. Merely making programmes of economic
benefit to various sections of the society will not do
There is a very big force in the argument to involve the
poorest in the power structure. For a lot of time we have
acted on behalf of the poor. We represent the poor.
Let us forget that the poor are begging for some crumbs.
They have suffered it for thousands of years. Now they are
fighting for their honour as a human being.
All the clichs are there: the poor, fighting for their honour,
involving the poorest in the power structure, they have suffered
for thousands of years. But I dont have to trouble you to find out
why none of this had occurred to the leader till his recently
expelled Deputy Prime Minister announced that a rally would be
held in Delhis Vijay Chowk; nor to trouble you to find what the
leader had done till then or indeed has done since then to involve
the poorest in the power structure. I am on his dismissal of merit,
of the need to assess whether a candidate has the qualifications for
the job that has to be done. What is the merit of the system?.... I
want to challenge first the merit of the system itself before we

61

come and question on the merit, whether on merit to reject this


individual or that.
The rhetoric is taken to such a pitch that if you say that everyone
must have the skills that a job requires, these proponents of the
poor insist that you believe that the person concerned is
inherently, congenitally, permanently, deficient. But no one was or
is saying that. All that is being implied is that the job has to be
done today, and that today X has the requisite qualifications and
training, and Y does not. Nor is anyone casting the blame on
X. That is obvious, yet, What is the merit of the system?.... I
want to challenge first the merit of the system itself.
If the system itself has no merit, why should it be saved?
Here was self-serving rhetoric at its worst, here was the moments
compulsion made into a matter of principle, a moments panic
transformed into the great struggle to set right humiliation and
suffering of thousands of years. Well, what can one expect of a
politician?, you may say. But the surprise was that passages such
as these were quoted with manifest approbation in the judgement
of the Supreme Court itself!
What more would a wrecker want after he has this seal from the
highest court?
Therefore,

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We should be alert to the way catch expressions the poor,


the backwards, social justice are being used to
undermine standards, to flout norms, to put institutions to
work not for the millions in those categories but for the
ones who have fooled those millions too with the same catch
phrases.
Subject every claim whether it is made in the name of the
poor, the backward, whosoever to rational examination.
After it has been in effect for a while, subject every
concession to empirical evidence.
Shift from equality of outcomes to equality of opportunities.
And in striving towards that, nudge politicians to move away
from the easy option of just decreeing some reservations,
etc. to doing the detailed and continuous work that positive
help requires, the assistance that the disadvantaged need for
availing of equal opportunities.
Be alert to the way never-never goals like social justice
over-extend and eventually undermine the State. Shift the
debate from a large State vs. a small State to a State that
performs.
Bear in mind that if the majority disregards smaller sections
in the community, it drives them to rebellion. Equally, if their
leaders stoke the smaller sections into aggressive behaviour,
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if they wrest concession after concession, if they are welded


into blocs for votes, etc., there will be a backlash from the
majority.
Refashion policies of State on truly secular and liberal principles:
The individual, and not the group should be the unit of State
policy.
Never concede to one group for instance, one religion
what you will deny to another group for instance, another
religion.
Never concede to a caste or religious group what you will
deny to a secular group.
I remember saying all this at the time Bhindranwale was being
patronized. I was denounced as a communalist. What transpired
exceeded my apprehension.
I remember saying the same thing when concessions were being
extracted, and given in the name of secularism at the time of the
Shah Bano case. I was denounced as a communalist. The backlash
exceeded my apprehension.
I sense the same cycle of pandering begin again. The dnouement
will be no different. There will be little point in moaning about
freedom then.
Discourse
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Intellect has been driven out of discourse in India.


By intimidation, as we have seen.
By superficiality debate seldom goes beyond the slogan.
By superciliousness in the month that Manipur was on fire, the
two great questions that gripped Delhis two largest papers were
why liquor vends should not remain open till midnight, and why
citizens of Delhi should not have the convenience of shopping
round the clock.
By balanced journalism Murli Manohar Joshi says. Arjun
Singh says. So that, if tomorrow June 25 were to occur again,
The Times of India would have, as it does on other issues, two
editorials one pro, one con. Though I confess that would be a
vast improvement over what it had on that June 25: led as it was by
very progressive intellectuals then, it endorsed the Emergency out
and out!
Sad to say, even the judgments of our courts do not give evidence
of the deep reflection that we find in the judgments of, say, Lord
Denning, or even the US Supreme Court. Perhaps our judgments
are too prolix. Perhaps they are too case-specific. But I detect
another problem: there is, among lawyers as much as among
judges, too much of head-note jurisprudence. The convenient
sentence or two from some earlier judgement, and the verdict goes

65

one way rather than another. There is scarcely a glimpse of deep


reflection, scarcely a trace of reference back to first principles.
All this leaves us dangerously exposed.
It may be that once poison enters the body, one just has to wait for
it work its way out of the entire body that we will just have to
wait till a modernizing, increasingly intertwined economy will be
so stymied by an inefficient State apparatus that it will bring to
bear sufficient pressure to bear for reform. That may imply that
remedying the basic ills that we have encountered above may be
beyond our reach. But even if that were indeed the case, and even
in regard to those basic ills there is much we can do to give
history a helping hand. We can explore alternative constitutional
arrangements. We can inject those alternatives into public
discourse. We can puncture the falsehoods by which standards are
being diluted, institutions suborned. Each of us can each take up an
institution and work to making it run better, to make it more
accountable. The fulcrum of reform, discourse, is within the grasp
of each of us.
Again, Mr. Palkhivala is a good model for us. He could have
confined himself to income tax law, and even then he would have
accomplished both he would have done extremely well by
himself, and at the same time he would have made signal
contribution to his profession. He could have enlarged his work to

66

cover constitutional law: he would have made a great name for


himself in the courts, and done even greater service to society. He
did all that. But that is not all he did. As the articles he wrote
during the Emergency, and to which I had occasion to draw your
attention testify, he stepped out into the public arena, and on one
issue of public concern after another, he put forth cogent argument.
Thereby citizens were educated on that particular issue.
Even more important, discourse was lifted higher. Reason,
evidence, good sense were brought to bear on the great issues of
the day.
Freedom has many prerequisites, but none more fundamental than
free speech for by that alone can the usurpers assertions be
punctured. But for speech to be valued enough by the people so
that they would not permit the usurper to stamp it out, it must be
reasoned, it must inform through cogent argument, it must deliver
evidence.
Let each of us select one issue of public importance, study it
thoroughly, and on that issue be the alternative to the ones who
today dominate and debase public discourse.
That way we would strengthen freedom. We would pay tribute,
true and proper, to the memory of that great and exemplary citizen,
Nani Palkhivala.

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