- kewal sethi
sab ko azadi chahiye
sab ko azadi chahiye
kewal krishan sethi
independence came to india with a vengeance. after having been colony of british for 190 years, we started with a passion for independence. this has led to certain unwanted consequences.
it is peculiarity of india that everyone wants to be independent. it started with the independence of judiciary which our constitution makers, in their immaturity, enshrined in the constitution. it is a lofty ideal but impractical. by all means, it should be ensured that the orders passed by the courts are carried out but it has to be ensured that the orders should not be arbitrary. democracy means, in essence, checks and balances. the executive should not take arbitrary decisions, therefore the judiciary should be there to check any misdeamnour. but the judiciary should have its checks and balances to ensure that it does not go against public morality and ethos. in a democracy the people, and by implication, their representatives are supreme. their check and balance is through the periodical elections. but this essential principle has not been followed in the case of judiciary. its consequences are known but not acknowledged except obliquely. the judiciary has used this freedom to be independent of all responsibility and any obligations to the society which has to pay taxes for the payments to them. they have sanctioned themselves allowances and perks which are not available to any other section of those serving the public. a simple provision about independence was used to expand their powers. The beginning was made by what is called public interest litigation. any body can bring any matter before the court in the name of public interest. if no one is coming, the court can take suo moto notice of anything. it must be admitted that judicial process is a un- exciting subject. to keep on listening to endless arguments of the lawyers is really monotonous. the human mind and the brain craves variety. i suspect that it is for this reason that the public interest litigation was thought of. it brings variety. it also means that you do not have to listen to the same set of lawyers day in and day out. you can call the officers and make them listen. they provide captive audience. it is well reported that of late the side (or snide) remarks of the judges are more news worthy than their judgments.
the next step in independence was selection of colleagues and successors. the recent attempt to curb this tendency was vetoed by those who were to be affected. this is a unique case of person deciding his own case why are we unable to curb this tendency to expand their powers. the reason is that. there is never any unity to call a spade a spade. it is like the proverbial monkey who was dividing the bread between the cats. why is this allowed to continue and can the politicians not combine to put the citizens in the driving seat. the reason is simple. each decision favours one side and disfavours other side. the person who is benefited does not want to see the long term effects of the decision. this is apart from the opposition for opposition sake. encouraged by this attitude, the judiciary has been transgressing the limits and legislating for the country. It even decides who commands majority in the legislature.
it has been argued many a time that judiciary is forced to step in because the executive is not doing its job properly. this situation was visualized in bhagvad gita where lord krishna says श्रेयान्स्वधर्मो विगुणः परधर्मात्स्वनुष्ठितात् । it is better to do one’s own duty even if it is not perfect than to do some one’s duty even if it is done in an excellent way. no one would say that they are satisfied with the way the judiciary has been discharging its functions to the satisfaction of the citizen. chief justices of supreme court have repeated acknowledged the deficiency. they are either unable to remedy the situation or not interested in it. as has been said, democracy provides for checks and balances and if the legislature or executive are not doing their job properly, they will be evaluated by the electorate. this is met with the argument that politicians are cunning enough to fool the electorate and if the situation is not remedied, it may even mean revolt by the people. judiciary is at least thwarting this tendency. is this the case? if it is granted that there is no hope from electorate, than what is the way out. it can only be dictatorship. whether judiciary will be able to provide this sort of administration is a moot point. it ultimately leads to the same situation as open dictatorship of the armed forces or by one party system or what is known as oligarchy. for this reason the role of judiciary to postpone the inevitable (as argued by some) is not the solution.
the next in line to claim independence were the universities and other educational institutions. the pursuit of knowledge should be without restrictions was the basis of the dictum. there can be no objection to this approach. the constitution envisaged that the standards of higher education should be the concern of the central government. university grants commission was set up to look after the standards of higher education. the experience shows that it has done everything except that. it is true that many experiments were made in tinkering with the system, three years course and four years course, semester system etc. but in reality, ugc became a pay commission for the teachers in the higher education institutes. an unfortunate fallout of this was that the lot of teachers of lower education was neglected. this resulted in the lower standards of secondary education which, in its turn, assured lower standards in the higher education. however no one was interested in that part in the university grants commission. the examinations were identified as the cause which led to deterioration of standards of education. it was sought to be diluted. the independence movement of higher education institute was further strengthened by creating so called autonomous colleges which conducted their own examinations. internal assessment, open to pressures, were introduced. . this did not solve the problem of standards since no one was interested in that aspect. the idea of independence was related to the research aspect of the universities. i.e. the academic matters but it was extended to mean non interference in administration also. thus the idea was not taken in the spirit in which it was envisaged. it was said that whatever is being done is not subject to interference. in the absence of controls the universities became training ground for budding politicians. with the connivance of the authorities, particular groups began dominating the student politics. what we see today in jawahar lal nehru university is the manifestation of the malady which had set in a long time ago.
the next in line for seeking independence is the police. unfortunately, with india becoming independent, police did not give up its role of suppressing the opponents of the regime of the day. this mode of operation suited the new rulers and they permitted its continuation. this misuse was in parts, due to the system wherein postings and transfers by the minister were allowed. this became the handy tools for bending the policemen to its will. up to a point, it suited the police also but the process, once started, could not be reversed. as the nation moved towards materialism, other interests, rather than suppression of opponents, took hold. this resulted in demand not only from the police officers but by the public also that police be made independent of the government.. the police commission recommends, and the supreme court reinforces the demand, that police should be independent. the police officers should have fixed tenure. their postings and transfers should be done by a panel of police officers. the minister and the politician should have nothing to do with it. the civilian officers should not be placed in charge of law and order work. the posting and transfers should be by state security commission. it is directed that politicians should be in minority in this commission, though, by courtesy chief minister (or home minister), and chief secretary have been mentioned as members. the five independent (sic) members are to be nominated by retired high/ supreme court judges though here also facade is maintained by including chairman union public commission as a member. this state security commission is answerable to no one except that a report about police activities will be put up before legislature. nowhere it is stated that legislature can then reject the report or consider the working of the commission.
one should not grudge the independence of election commission since the independence of election commission is a guarantee for honest elections. but the craze for independence has its own problems. the government is expected to lend its support to the commission in conduct of elections. but the commission wanted more than assistance. it demanded control over the officers who conducted the elections. the pitch reached its highest point with seshan. he denied the state governments the use of ballot boxes, which he claimed to be his property. he denied the use of its electoral rolls also. he even ordered that no returning officer should declare results without his approval., he claimed full control over the officers conducting the elections (fortunately restricted to election period – as otherwise we might have a parallel system of administrative set up) . his successors hit upon the idea of staggered elections to extend the period of their sway. elections in six phases in a state is only for that purpose. the argument given is the control of rogue elements by deployment of forces, which are perpetually in short supply. but if the forces can move from one area to another, the rogues can also do the same. so it does not really matter, rather it is worse situation. too many outsiders make the control more difficult since neither the local police not the special forces are acquainted with them. another innovation of election commission is the code of conduct which has no legal force but has been made the weapon to browbeat the political parties by according it undue publicity. knowing full worth of this toothless provision, the parties carry on on their own. one never hears about the follow up action except warnings being given and ignored.
a synonym for independence is autonomy. this is also heard very frequently. institutes set up by the government, either through statute or otherwise, and governed by nominated members of a committee, immediately seek autonomy. the phrase actually means “give us the money and forget about us“. medical council of india, indian institutes of managements, indian institute of technology all want autonomy. latest to join was amartya sen who wanted it for international university. there is no dearth of people who support this demand because of the past experience where governmental intervention was not for straight forward purposes. however as a matter of principle, there can be no institution without checks and balances. the sole criterion for delegated powers should be how this will help to further the interests of the society.
why this craze for independence? i think this is the result of our upbringing in the past few decades. the emphasis is on rights and not duties. the hindu scriptures talk of discharging the three debts – to the family, to the society and to the celestial being (or beings). these obligations ensured that each one do his duties. the emphasis on doing jobs assigned has been there in all the scriptures. then came the period of oppression which lasted for centuries. survival became vital. in this milieu the emphasis was on grabbing whatever powers you can, so that the life can be easy. doing one’s job was of lesser importance. now the entire society is in the grip of this malady. it was unfortunate that our leaders, in control immediately after independence chose to emphasize the rights in the constitution. article 51A, specifying the duties of the citizens, was added much later and forgotten almost immediately. even otherwise it was little better than grand verbose. in keeping with the materialistic view of life, cash subsidies were considered to be suitable means for success of programmes. be it family planning or the construction of toilets in the houses, the money incentive was considered to be the most potent argument. in due course of time, the subsidies and cash doles became the habit and a matter of right.
giving the safeguards and the reservation was another step in guaranteeing rights and not duties. the scheduled castes , the schedule tribes, the minorities were all given rights and there was no attention paid to the systems which could lead to their integration in the mainstream. in fact, it was to their disadvantage to get merged in the mainstream and their leaders ensured this. the entire milieu became charged with that approach. the logical result is demand for inclusion into these groups with privileges. it has seen violent agitations in haryana, gujarat, rajasthan and elsewhere.
the result has been there for all to see. the policeman is feared because he has rights, right to detain people, right to restrain people, never any duties towards people, (not withstanding slogans to the contrary). the administrator still considers it his right to lead the populace towards welfare. the british called it white man’s burden to enlighten the heathens. our administrators followed the same tradition. programmes and projects were formulated at the higher level for leading the citizens to prosperity. it was their right to do so, never ever their duty. the politician, whose duty it was to legislate sought the right to administer. transfers and postings were the weapons he used to takeover the administration. another method was to set up committees to oversee ( and de facto control) the implementation of schemes. the judiciary was there to resolve dispute. it took over the right to legislate. judicial process, left unattended, was taken over by the criminals who decided the matter on priority basis. it all arises from the fact of ignoring duty to emphasize on rights. this emphasis on rights is evident from recent legislation viz. right to information act. right to education act, right to life (in constitution and extended by supreme court to mean right to decent life, right to employment and so on), right of tribals in forest land. rights, rights, rights and more rights, nothing else. article 51A lies forgotten and in any case it did not take into account the realities of the ground being grandiose words and nothing more.
it would be considered reactionary to say that we should go back to our original norms – the emphasis on duty. but is there a way out other than this? so long we insist on rights, so long we have the tendency to show off our rights, so far as we consider it our privilege to overstep our jurisdiction, the present state of chaos will continue. if we have to get rid of it, we have to change. we have to perform duty towards ourselves, to our family, to our society, to our country and towards humanity. our tradition talk of the three debts- देव ऋण, ऋषि ऋण, पितृ ऋण dev rin and rishi rin and pitr rin, which means doing one’s duty towards the gods who gave us this life for a purpose. the purpose can easily be seen to be desire to leave a better world. it would take into account the environment, so much talked about now a days. the debt to the rishi is to pass on the principles by which we spend our lives. it also means learning which has to be passed on so that the coming generations benefit by it and can add to it. the third debt is towards the family, that is to carry on the traditions of the ancestors. it is conceded that sometimes the three debts are crudely defined but one must see the deeper meaning underlying these concepts. the basic idea of the three debts is that one has duties to perform and that rights are secondary. every human being has to perform his duties - we have to place less stress on rights. only in that lies our salvation.