Well done! The Sonia-Manmohan Congress takes a *third* Rajivist step!
October 15, 2010 — drsubrotoroyFrom Facebook October 15 2010
Subroto Roy thinks the Sonia-Manmohan Govt throwing auditors with their rule-books ex post facto at the Games’ organisers is a good if miniscule first step (though it is, in my estimation, the third Rajivist step in total, see infra…). May we please have the same done asap to military contracts (especially for Russian fighter jets, used aircraft carriers etc), Boeing & Airbus contracts, railway contracts, power sector contracts including nuclear business contracts, IIT and IIM building contracts, in fact *all* government sector building contracts, in fact *all* government sector contracts……
From Facebook March 28 2010
Subroto Roy is pleased that according to this morning’s news reports of a “national convention” on “Law, Justice & the Common Man”, the Sonia-Manmohan Congress took a small second step yesterday on the same road that Rajiv Gandhi and I had chalked out in 1990-1991. Better late than never!
Note to Posterity: 79 Ministers in office but no 15th Lok Sabha until June 1 2009!
May 29, 2009 — drsubrotoroyThe Government of India’s 79 Ministers have taken to their offices like bees to honey yet the 15th Lok Sabha that the people of India elected a fortnight ago is still three days from being convened.
In other words, people have been taking oaths and entering offices as Ministers even before they have taken their oaths or their seats in the 15th Lok Sabha which accords the Government its political legitimacy by its confidence!
Let posterity recall that the 15th Lok Sabha was made to needlessly wait from May 16 2009 until June 1 2009 and despite this the Government formed itself and entered office during that time. It cannot be something that helps the psychology or morale of our elected representatives nor be something conducive to the smooth working of the House.
It is all a terrible constitutional muddle which I doubt the PM or his party or Government, or even the Opposition, will admit to or want to clear up on their own but shall probably have to await a Constitutional Bench of the Supreme Court of India telling them what parliamentary law is in due course.
Subroto Roy
RAND’s study of the Mumbai attacks
January 25, 2009 — drsubrotoroyRAND’s study of the Mumbai attacks
by
Subroto Roy January 25 2009
The conspicuously good thing that can be said about the RAND Corporation’s study of the Mumbai massacres (“The Lessons of Mumbai”, RAND January 2009) is that there is no sign of it having been affected by the powerful Pakistan lobby. Far too many purported studies emerging from American or British “thinktanks” cannot say the same.
If anything, the ten American authors of the 25-pages of the RAND text have among them two prominent advocates of better US-India relations. This is helpful to truthfulness because of the simple fact India has been in this case a victim of aggression that originated in Pakistan. Whether elements of the Pakistan Government were involved is almost the wrong question – if some retired underemployed former soldier drawing a Pakistan Army pension helped the Lashkar-e-Taiba’s commando training of the Mumbai terrorists, the existence of Pakistani state involvement is proved. Commando training requires technical skills of a sort that can only originate with a military.
In Pakistan as in any other large populous country including India, the state tends to be a hydra-headed monster and it may be foolish to imagine instead a rational, unified, well-informed or even a benevolent political entity. State involvement in Pakistan, India, China or elsewhere is something hard to isolate when there is so much mixing of private and public property or misuse of resources arising from the public exchequer.
What Pakistan’s PR campaign has done after Mumbai is not so much raise the Kashmir dispute as to obfuscate things by shedding crocodile tears and pretending to share victimhood saying, oh we sympathise with you but please sympathise with us too as we have been victims of even bigger terrorist attacks by the same kind of people, we have lost Benazir, we have lost many more people than you have, therefore cooperate with us and we will try to do what we can to help you in this matter. English-speaking liberals educated at places like Karachi Grammar School have then appeared on Indian TV stations (owned by Delhi people from places like Doon School) purporting to represent Pakistan on “the Mumbai incident”; none of them can have much credibility because the real India-haters in Pakistan might cheerfully make them murder victims too given half a chance.
The RAND study deserves credit for avoiding all misleading Pakistani rhetoric about the Mumbai massacres and at least intending to try to get to the bottom of things in a systematic manner. Beyond that, unfortunately, it has made logical and factual and methodological errors which cause it to fail to do so.
The key logical error made by the RAND authors arises from combining a central front-page statement
“Evidence suggests Lashkar-e-Taiba, a terrorist group based in Pakistan, was responsible for the attack”
with assertive suggestions about Mumbai’s police being backward, incompetent, cowardly etc (“passive”). Yet how precisely did evidence about LeT culpability come to light? Only because Mumbai’s police and the Railway police engaged, injured and then captured Kasab using their antiquated equipment the best they could. There is no evidence of police cowardice at CST Station; to the contrary, it took courage to aim .303’s at adversaries firing back with assault rifles. Kasab received his first hand injury there. ATS Chief Karkare and his fellow-officers may seem foolhardy in hindsight to have been driving in the same vehicle but they did engage their unknown enemy immediately they could and died doing so, crippling Kasab badly enough that he could be captured in due course at Chowpatty. [Correction: it appears that though Kasab was fired upon by the police at CST Station he received both his hand injuries from the firing by the ATS squad.] And the Chowpatty police action showed obvious bravery in absorbing injury and death in order to kill Ishmail and capture Kasab. (Kasab, among the youngest, had been paired with Ishmail, the apparent leader of the group.)
Furthermore, Kasab upon capture was treated humanely and lawfully. His injuries were treated, he was produced before a magistrate within a week who asked him if he was being mistreated to which he said no. Slumdog millionaire may get undeserved Oscars portraying torture of a British actor by Mumbai police but it is ridiculous fiction – Kasab the captured Pakistani terrorist mass murderer was not tortured by Mumbai’s police.
Contrast such Indian police behaviour with the “enhanced interrogation techniques” the Bush Administration used with negative results in Guantanamo and Abu Ghraib – which President Obama has now started to end. Kasab, an ignorant misguided youth, was grateful enough for the humane and civilized treatment to start singing like the proverbial canary. The result of that has been precisely all the evidence the Government of India has now presented to the world and Pakistan about the LeT’s culpability.
As for the anti-terrorist actions of the Indian Army, Navy and NSG, the RAND study is right to point to multitudinous errors and it is useful to have these listed in orderly fashion. But many of these errors were obvious to millions of lay Indian citizens who watched events on TV. The central fault was the scarcity of trained NSG officers and men, and the failure to apply standard emergency management protocols.
The RAND study, by relying overly on government sources, has failed to point to what ordinary Indian citizens already know – the NSG is being utterly wasted protecting our politicians. India has no proper equivalent of the US “Secret Service”, and even if we did, we would probably waste that by spreading it too thinly among politicians. As it happens if almost any politician in India today did happen to be unfortunately assassinated, the main mourners would be family-members and not the general Indian public. Despite politicians constituting rather “low-value targets” for terrorists, India’s scarce anti-terrorist and police resources have been misallocated to protecting them.
Finally, the RAND study makes the lazy-man’s methodological error of supposing outfits like the LeT think and behave in a manner explicable by American political science textbooks, or ought to do so. What Western analysts may need to do instead is learn from the old Arabist and Orientalist traditions of how to think and see the world from Eastern points of view. But that may require greater self-knowledge than the modern world tends to permit.
Postscript:
My December 6 2008 analysis here titled “A Quick Comparison Between the September 11 2001 NYC-Washington attacks and the November 26-28 2008 Mumbai Massacres (An Application of the Case-by-Case Philosophical Technique of Wittgenstein, Wisdom and Bambrough)” is republished below. I have corrected “Rome Airport” with “Lod Airport” on the basis of reading the RAND report, though may not have received the courtesy of aknowledement for the reminder of the Japanese Red Army attack.
“In my book Philosophy of Economics (Routledge, 1989) and in my August 24 2004 public lecture in England “Science, Religion, Art and the Necessity of Freedom”, both available elsewhere here, I described the “case-by-case” philosophical technique recommended by Ludwig Wittgenstein, John Wisdom and Renford Bambrough. (Bambrough had also shown a common root in the work of the American philosopher Charles Sanders Peirce.) Herewith an application of the technique to a contemporary problem that shows the “family resemblance” between two modern terrorist attacks, the September 11 2001 attack on New York and Washington and the Mumbai massacres last week.
Similarity: In both, a gang of motivated youthful terrorists acted as a team against multiple targets; their willingness to accept suicide while indulging in mass-murder may have, bizarrely enough, brought a sense of adventure and meaning to otherwise empty lives.
Difference: In the 9/11 attacks, Mohammad Atta seemed to have been a single predominant leader while each of the others also had complex active roles requiring decisions, like piloting and navigating hijacked jumbo-jets. In the Mumbai massacres, the training and leadership apparently came from outside the team before and even during the operation – almost as if the team were acting like brainwashed robots under long-distance control.
Similarity: Both attacks required a long prior period of training and planning.
Difference: The 9/11 attacks did not require commando-training imparted by military-style trainers; the Mumbai massacres did.
Difference: In the 9/11 attacks, the actual weapons used initially were primitive, like box-cutters; in the Mumbai massacres, assault rifles and grenades were used along with sophisticated telecommunications equipment.
Difference: In 9/11, the initial targets, the hijacked aircraft, were themselves made into weapons against the ultimate targets, namely the buildings, in a way not seen before. In the Mumbai massacres, mass-shooting of terrorized civilians was hardly something original; besides theatres of war, the Baader-Meinhof gang and the Japanese Red Army used these in the 1970s as terrorist techniques (e.g. at Rome Airport Lod Airport; Postscript January 26 2009: I make this correction after reading and commenting on the RAND study which unfortunately did not have the courtesy of acknowledging my December 6 2008 analysis) plus there were, more recently, the Columbine and Virginia Tech massacres.
Similarity: In both cases, Hollywood and other movie scripts could have inspired the initial ideas of techniques to be used.
Similarity: In both cases, the weapons used were appropriate to the anticipated state of defence: nothing more than box-cutters could be expected to get by normal airport security; assault rifles etc could come in by the unguarded sea and attack soft targets in Mumbai. (Incidentally, even this elementary example of strategic thinking in a practical situation may be beyond the analytical capacity contained in the tons of waste paper produced at American and other modern university Economics departments under the rubric of “game theory”.)
Similarity: In both cases, a high-level of widespread fear was induced for several days or more within a targeted nation-state by a small number of people.
Similarity: No ransom-like demands were made by the terrorists in either case.
Similarity: Had the single terrorist not been captured alive in the Mumbai massacres, there would have been little trace left by the attackers.
Difference: The 9/11 attackers knew definitely they were on suicide-missions; the Mumbai attackers may not have done and may have imagined an escape route.”
SEE ALSO
https://independentindian.com/2009/11/26/did-civil-military-conflict-contribute-to-the-2611-destruction/
https://independentindian.com/2009/11/26/on-decision-making-in-terrorist-hostage-situations/
Congratulations to Mumbai’s Police: capturing a terrorist, affording him his Habeas Corpus rights, getting him to confess within the Rule of Law, sets a new world standard
December 10, 2008 — drsubrotoroyThe full statement to police of the single captured terrorist perpetrator of the Mumbai massacres is now available. It tells a grim story. But Mumbai’s Police, from ordinary beat constables and junior officers to the anti-terrorism top brass, come off very well both with their heroism and their commitment to the Rule of Law. In comparison to the disastrous failures of the Rule of Law in the United States and Britain since 9/11 in fighting terrorism, Mumbai’s Police may have set a new world standard.
The prisoner was several days ago afforded Habeas Corpus rights and produced before a magistrate who asked him if he was being mistreated to which he replied he was not – though there might not be any Indian equivalent of America’s “Miranda” law.
Habeas Corpus: a captured terrorist mass-murderer tells a magistrate he is not being mistreated by Indian police
December 3, 2008 — drsubrotoroyA youth who had been a petty thief in Multan, was induced by Pakistan’s terrorist masterminds to train to become a mass murderer with an assault rifle and grenades in the Mumbai massacres last week. He was shot and arrested by India’s police and is now in custody. He has already been produced before a magistrate who asked him if he was being mistreated, to which he said he was not. This redounds to India’s credit in view of the vast (and yes, probably racist) mistreatment over years of those held e.g. at Guantanamo Bay. (The argument that the US Constitution and the laws associated with habeas corpus did not apply to the US Government because Guantanamo Bay was not American territory, was always specious.)
Rai Bahadur Umbika Churn Rai (1827-1902)
November 7, 2008 — drsubrotoroy
Umbika Churn Rai (1827-1902) my great great grandfather, was the founder of the modern Roy family of Behala. He himself was the great grandson of Raja Daibaki Nandan Rai who is said to have brought the family to Behala from Anarpur at the time of the Mahratta invasions. Daibaki Nandan was probably gifted land at Behala as was customary towards Brahmins. The legend is that upon his arrival, a famed band of local dacoits/robbers gave him an ultimatum to surrender the family’s jewels or fight. Daibaki Nandan stood and fought, had his arm cut off by a scimitar, and died bleeding. The family then fell materially for two generations and were “toll pandits” or “tree-shade teachers” under Jagat Ram Rai and Durga Prasad Rai.
Umbika Churn was Durga Prasad’s third son. He was a brilliant ambitious man, well-built and over 6 ft tall, who taught himself English, attended the madrassa started by Warren Hastings to learn Persian, and was well-versed in Sanskrit. Being knowledgeable of Sanskrit, Persian and English at a time of conflict of laws between English, Muslim and Hindu systems, he started as a translator in the Alipore Court under Sir Barnes Peacock (1810-1890). When Peacock went to the new Supreme Court in Calcutta in 1859 as its first Chief Justice, Umbika Churn went with him and rose to become the first Chief Translator. He was made a Rai Bahadur at the time of Queen Victoria’s Jubilee. Rai Bahadur Road in Calcutta is named after him.
The Golden Book of India published at the time of the Victoria Jubilee said Umbika Churn was a descendant of one Raja Gajendra Narayan Rai, Rai-Raian, a finance official under the Great Mughal Jahangir.
There will be much more about him here in due course. Most interesting is the fact that Chief Justice Peacock who had been his mentor, when he returned to England in 1870, later wrote asking him and his eldest son Surendranath for help on behalf of his son, a lawyer, being sent to Calcutta from England. Suren, himself a lawyer at the time, wrote back and assured him he would help find the son work in Calcutta!
I shall upload that correspondence when I am able to.
From Facebook 18 June 2013:
How interesting to find an 1847 depiction of the famous Calcutta Madrassa originated by Warren Hastings (1732–1818) ! … My paternal great great grand-father breached Brahminical rules by insisting on learning Persian there — it was a time of much confusion of laws: Persian was still the, or at least an, official language of the courts, just giving way to English while Hindu law required Sanskrit… Umbik Churn Rai (1827-1902) had had Sanskrit lessons at home, acquired English, and now learnt Persian: he started as a young man as a Court translator in the Alipore Court, came to the attention of the newly arrived Judge, Sir Barnes Peacock (1810-1890), who took him with him in due course when he became the first Chief Justice of the new Calcutta High Court in 1859? 1862?, and made him Chief Translator … We have a fragmentary letter somewhere from Peacock, after retirement in England, written to Umbik’s son, my great grand father, saying his son was coming to Calcutta from England and could be please try to help him find work! A time of camraderie…
And along with Hastings’s Madrassa came Hindu College too, also depicted as of 1847, which became in due course Presidency… Associated to it was a Hindu School too, and our family legend went that Vidyasagar (1820-1891) himself, took his friend Umbik’s eldest son, SN Roy (1860-1929), my great grand father, by hand as a child to attend it.
Against Quackery (2007)
September 24, 2007 — drsubrotoroyAgainst Quackery
First published in two parts in The Sunday Statesman, September 23 2007, The Statesman September 24 2007
by
Subroto Roy
Manmohan and Sonia have violated Rajiv Gandhi’s intended reforms; the Communists have been appeased or bought; the BJP is incompetent
WASTE, fraud and abuse are inevitable in the use and allocation of public property and resources in India as elsewhere, but Government is supposed to fight and resist such tendencies. The Sonia-Manmohan Government have done the opposite, aiding and abetting a wasteful anti-economics ~ i.e., an economic quackery. Vajpayee-Advani and other Governments, including Narasimha-Manmohan in 1991-1996, were just as complicit in the perverse policy-making. So have been State Governments of all regional parties like the CPI-M in West Bengal, DMK/ AIADMK in Tamil Nadu, Congress/NCP/ BJP/Sena in Maharashtra, TDP /Congress in Andhra Pradesh, SP/BJP/BSP in Uttar Pradesh etc. Our dismal politics merely has the pot calling the kettle black while national self-delusion and superstition reign in the absence of reason.
The general pattern is one of well-informed, moneyed, mostly city-based special interest groups (especially including organised capital and organised labour) dominating government agendas at the cost of ill-informed, diffused anonymous individual citizens ~ peasants, small businessmen, non-unionized workers, old people, housewives, medical students etc. The extremely expensive “nuclear deal” with the USA is merely one example of such interest group politics.
Nuclear power is and shall always remain of tiny significance as a source of India’s electricity (compared to e.g. coal and hydro); hence the deal has practically nothing to do with the purported (and mendacious) aim of improving the country’s “energy security” in the long run. It has mostly to do with big business lobbies and senior bureaucrats and politicians making a grab, as they always have done, for India’s public purse, especially access to foreign currency assets. Some $300 million of India’s public money had to be paid to GE and Bechtel Corporation before any nuclear talks could begin in 2004-2005 ~ the reason was the Dabhol fiasco of the 1990s, a sheer waste for India’s ordinary people. Who was responsible for that loss? Pawar-Mahajan-Munde-Thackeray certainly but also India’s Finance Minister at the time, Manmohan Singh, and his top Finance Ministry bureaucrat, Montek Ahluwalia ~ who should never have let the fiasco get off the ground but instead actively promoted and approved it.
Cost-benefit analysis prior to any public project is textbook operating procedure for economists, and any half-competent economist would have accounted for the scenario of possible currency-depreciation which made Dabhol instantly unviable. Dr Singh and Mr Ahluwalia failed that test badly and it cost India dearly. The purchase of foreign nuclear reactors on a turnkey basis upon their recommendation now reflects similar financial dangers for the country on a vastly larger scale over decades.
Our Government seems to function most expeditiously in purchasing foreign arms, aircraft etc ~ not in improving the courts, prisons, police, public utilities, public debt. When the purchase of 43 Airbus aircraft surfaced, accusations of impropriety were made by Boeing ~ until the local Airbus representative said on TV that Boeing need not complain because they were going to be rewarded too and soon 68 aircraft were ordered from Boeing!
India imports all passenger and most military aircraft, besides spare parts and high-octane jet fuel. Domestic aviation generates near zero forex revenues and incurs large forex costs ~ a debit in India’s balance of payments. Domestic airline passengers act as importers subsidised by our meagre exporters of textiles, leather, handicrafts, tea, etc. What a managerially-minded PM and Aviation Minister needed to do before yielding to temptations of buying new aircraft was to get tough with the pampered managements and unions of the nationalized airlines and stand up on behalf of ordinary citizens and taxpayers, who, after all, are mostly rail or road-travellers not jet-setters.
The same pattern of negligent policy-behaviour led Finance Minister P. Chidambaram in an unprecedented step to mention in his 2007 Union Budget Speech the private American companies Blackstone and GE ~ endorsing the Ahluwalia/Deepak Parekh idea that India’s forex reserves may be made available to be lent out to favoured private businesses for purported “infrastructure” development. We may now see chunks of India’s foreign exchange reserves being “borrowed” and never returned ~ a monumental scam in front of the CBI’s noses.
The Reserve Bank’s highest echelons may have become complicit in all this, permitting and encouraging a large capital flight to take place among the few million Indians who read the English newspapers and have family-members abroad. Resident Indians have been officially permitted to open bank accounts of US $100,000 abroad, as well as transfer gifts of $50,000 per annum to their adult children already exported abroad ~ converting their largely untaxed paper rupees at an artificially favourable exchange-rate.
In particular, Mr Ratan Tata (under a misapprehension he may do whatever Lakshmi Mittal does) has been allowed to convert Indian rupees into some US$13,000,000,000 to make a cash purchase of a European steel company. The same has been allowed of the Birlas, Wipro, Dr Reddy’s and numerous other Indian corporations in the organised sector ~ three hundred million dollars here, five hundred million dollars there, etc. Western businessmen now know all they have to do is flatter the egos of Indian boxwallahs enough and they might have found a buyer for their otherwise bankrupt or sick local enterprise. Many newcomers to New York City have been sold the Brooklyn Bridge before. “There’s a sucker born every minute” is the classic saying of American capitalism.
The Sonia-Manmohan Government, instead of hobnobbing with business chambers, needed to get Indian corporations to improve their accounting, audit and governance, and reduce managerial pilfering and embezzlement, which is possible only if Government first set an example.
Why have Indian foreign currency reserves zoomed up in recent years? Not mainly because we are exporting more textiles, tea, software engineers, call centre services or new products to the world, but because Indian corporations have been allowed to borrow abroad, converting their hoards of paper rupees into foreign debt. Forex reserves are a residual in a country’s international balance of payments and are not like tax-resources available to be spent by Government; India’s reserves largely constitute foreign liabilities of Indian residents. This may bear endless repetition as the PM and his key acolytes seem impervious to normal postgraduate-level economics textbooks.
Other official fallacies include thinking India’s savings rate is near 32 per cent and that clever bureaucratic use of it can cause high growth. In fact, real growth arises not because of what politicians and bureaucrats do but because of spontaneous technological progress, improved productivity and learning-by-doing of the general population ~ mostly despite not because of an exploitative parasitic State. What has been mismeasured as high savings is actually expansion of bank-deposits in a fractional reserve banking system caused by runaway government deficit-spending.
Another fallacy has been that agriculture retards growth, leading to nationwide politically-backed attempts at land-grabbing by wily city industrialists and real estate developers. In a hyperinflation-prone economy with wild deficit-spending and runaway money-printing, cheating poor unorganised peasants of their land, when that land is an asset that is due to appreciate in value, has seemed like child’s play.
What of the Opposition? The BJP/RSS have no economists who are not quacks though opportunists were happy to say what pleased them to hear when they were in power; they also have much implicit support among organised business lobbies and the anti-Muslim senior bureaucracy. The official Communists have been appeased or bought, sometimes so cheaply as with a few airline tickets here and there. The nonsensical “Rural Employment Guarantee” is descending into the wasteland of corruption it was always going to be. The “Domestic Violence Act” as expected has started to destroy India’s families the way Western families have been destroyed. The Arjun-DMK OBC quota corrodes higher education further from its already dismal state. All these were schemes that Congress and Communist cabals created or wholeheartedly backed, and which the BJP were too scared or ignorant to resist.
And then came Singur and Nandigram ~ where the sheer greed driving the alliance between the Sonia-Manmohan-Pranab Congress and the CPI-M mask that is Buddhadeb, came to be exposed by a handful of brave women like Mamata and Medha.
A Fiscal U-Turn is Needed For India to Go in The Right Economic Direction
Rajiv Gandhi had a sense of noblesse oblige out of remembrance of his father and maternal grandfather. After his assassination, the comprador business press credited Narasimha Rao and Manmohan Singh with having originated the 1991 economic reform. In May 2002, however, the Congress Party itself passed a resolution proposed by Digvijay Singh explicitly stating Rajiv and not either of them was to be so credited. The resolution was intended to flatter Sonia Gandhi but there was truth in it too. Rajiv, a pilot who knew no political economy, was a quick learner with intelligence to know a good idea when he saw one and enough grace to acknowledge it.
Rule of Law
The first time Dr Manmohan Singh’s name arose in contemporary post-Indira politics was on 22 March 1991 when M K Rasgotra challenged the present author to answer how Dr Singh would respond to proposals being drafted for a planned economic liberalisation that had been authorised by Rajiv, as Congress President and Opposition Leader, since September 1990. It was replied that Dr Singh’s response was unknown and he had been heading the “South-South Commission” for Tanzania’s Julius Nyerere, while what needed to be done urgently was make a clear forceful statement to restore India’s credit-worthiness and the confidence of international markets, showing that the Congress at least knew its economics and was planning to take bold new steps in the direction of progress.
There is no evidence Dr Singh or his acolytes were committed to any economic liberalism prior to 1991 as that term is understood worldwide, and scant evidence they have originated liberal economic ideas for India afterwards. Precisely because they represented the decrepit old intellectual order of statist ”Ma-Bap Sarkari” policy-making, they were not asked in the mid-1980s to be part of a “perestroika-for-India” project done at a foreign university ~ the results of which were received, thanks to Siddhartha Shankar Ray, by Rajiv Gandhi in hand at 10 Janpath on 18 September 1990 and specifically sparked the change in the direction of his economic thinking.
India is a large, populous country with hundreds of millions of materially poor citizens, a weak tax-base, a vast internal and external public debt (i.e. debt owed by the Government to domestic and foreign creditors), massive annual fiscal deficits, an inconvertible currency, and runaway printing of paper-money. It is unsurprising Pakistan’s economy is similar, since it is born of the same land and people. Certainly there have been real political problems between India and Pakistan since the chaotic demobilisation and disintegration of the old British Indian Army caused the subcontinent to plunge into war-like or “cold peace” conditions for six decades beginning with a bloody Partition and civil war in J&K. High military expenditures have been necessitated due to mutual and foreign tensions, but this cannot be a permanent state if India and Pakistan wish for genuine mass economic well-being.
Even with the continuing mutual antagonism, there is vast scope for a critical review of Indian military expenditures towards greatly improving the “teeth-to-tail” ratio of its fighting forces. The abuse of public property and privilege by senior echelons of the armed forces (some of whom have been keen most of all to export their children preferably to America) is also no great secret.
On the domestic front, Rajiv was entirely convinced when the suggestion was made to him in September 1990 that an enormous infusion of public resources was needed into the judicial system for promotion and improvement of the Rule of Law in the country, a pre-requisite almost for a new market orientation. Capitalism without the Rule of Law can quickly degenerate into an illiberal hell of cronyism and anarchy which is what has tended to happen since 1991.
The Madhava Menon Committee on criminal justice policy in July proposed a Hong Kong model of “a single high-tech integrated Criminal Justice complex in every district headquarters which may be a multi-storied structure, devoting the ground floor for the police station including a video-installed interrogation room; the first floor for the police-lockups/sub-jail and the Magistrate’s Court; the second floor for the prosecutor’s office, witness rooms, crime laboratories and legal aid services; the third floor for the Sessions Court and the fourth for the administrative offices etc…. (Government of India) should take steps to evolve such an efficient model… and not only recommend it to the States but subsidize its construction…” The question arises: Why is this being proposed for the first time in 2007 after sixty years of Independence? Why was it not something designed and implemented starting in the 1950s?
The resources put since Independence to the proper working of our judiciary from the Supreme Court and High Courts downwards have been abysmal, while the state of prisons, borstals, mental asylums and other institutions of involuntary detention is nothing short of pathetic. Only police forces, like the military, paramilitary and bureaucracies, have bloated in size.
Neither Sonia-Manmohan nor the BJP or Communists have thought promotion of the Rule of Law in India to be worth much serious thought ~ certainly less important than attending bogus international conclaves and summits to sign expensive deals for arms, aircraft, reactors etc. Yet Rajiv Gandhi, at a 10 Janpath meeting on 23 March 1991 when he received the liberalisation proposals he had authorized, explicitly avowed the importance of greater resources towards the Judiciary. Dr Singh and his acolytes were not in that loop, indeed they precisely represented the bureaucratic ancien regime intended to be changed, and hence have seemed quite uncomprehending of the roots of the intended reforms ever since 1991.
Similarly, Rajiv comprehended when it was said to him that the primary fiscal problem faced by India is the vast and uncontrolled public debt, interest payments on which suck dry all public budgets leaving no room for provision of public goods.
Government accounts
Government has been routinely “rolling over” its domestic debt in the asset-portfolios of the nationalised banks while displaying and highlighting only its new additional borrowing in a year as the “Fiscal Deficit”. More than two dozen States have been doing the same and their liabilities ultimately accrue to the Union too. The stock of public debt in India is Rs 30 trillion (Rs 30 lakh crore) at least, and portends a hyperinflation in the future.
There has been no serious recognition of this since it is political and bureaucratic actions that have been causing the problem. Proper recognition would entail systematically cleaning up the budgets and accounts of every single governmental entity in the country: the Union, every State, every district and municipality, every publicly funded entity or organisation, and at the same time improving public decision-making capacity so that once budgets and accounts recover from grave sickness over decades, functioning institutions exist for their proper future management. All this would also stop corruption in its tracks, and release resources for valuable public goods and services like the Judiciary, School Education and Basic Health. Institutions for improved political and administrative decision-making are needed throughout the country if public preferences with respect to raising and allocating common resources are to be elicited and then translated into actual delivery of public goods and services. Our dysfunctional legislatures will have to do at least a little of what they are supposed to. When public budgets and accounts are healthy and we have functioning public goods and services, macroeconomic conditions would have been created for the paper-rupee to once more become a money as good as gold ~ a convertible world currency for all of India’s people, not merely the metropolitan special interest groups that have been controlling our governments and their agendas.
No Marxist MBAs? An amicus curiae brief for the Honourable High Court
August 29, 2007 — drsubrotoroyAren’t there any Marxist MBAs?
by
Subroto Roy
First published in The Statesman, August 29 2007, Frontpage comment,
The West Bengal Government and Tata Motors have come into what appears to be a most bizarre financial agreement regarding 645.67 acres of agricultural land in Singur. What we are told from court documents submitted on August 27 by Tata’s counsel Mr Samaraditya Pal to the Honourable Division Bench of the Chief Justice Mr SS Nijjar and Mr Justice Pinaki Chandra Ghose is that a complicated schedule of payments is being planned for 90 years.
First there is a plan for 30 years with changes occurring every five years, then there is a plan for another 30 years with changes occurring every ten years, and finally there is a plan for the last 30 years with no changes occurring at all. 90 years is a very long time. A child born today will likely not be alive when this agreement comes to end though his/her grandchildren could be.
Tata Motors itself is hardly today what it was ten years ago and is unlikely to be the same corporate body 50 or 90 years from now. The political entities known as West Bengal or for that matter the Republic of India itself may well be very different in 2047, one hundred years after Independence, let alone in 2097 when this purported agreement shall end. 90 years ago the Ford Motor Company was mass-producing its famous Model-T – any product that Tata Motors produces at Singur today is hardly going to be the same 90 years from now. Our great grand children may look back at all this when the agreement ends and say it all looks pretty ridiculous in retrospect.
Even so, the numbers that have been now released to the Honourable Court allow some simple calculations to take place. The first point is that a payment made in 2007 cannot be added directly to a payment made in 2008 or to one in 2009, etc. It is meaningless to do so. However, if, say, Rs 1000 is paid in each of these years, and the market interest-rate is, say, 10%, what we may do is add Rs. 1000 with Rs. 1000/(1.1) with Rs. 1000/(1.1) squared to obtain a summable stream of Rs. 1000+Rs.909+Rs826 = Rs. 2735.
That sum of Rs 2735 is the present-value of the stream of three payments of Rs 1000 in each of three years given a constant interest-rate of 10%. On such a basis, given the payment-structure stated to the Honourable Court by Tata Motors, and assuming a constant interest-rate of 8% per annum in each year for the next 90 years, the present-value of all the payments to be made by Tata to West Bengal for the 645.67 acres of Singur land comes to Rs. 274.13 million (Rs. 27.413 crore), or a price of about Rs. 0.4246 million (Rs. 4.246 lakh) per acre. That is the effective market price of the land as valued in the contract, assuming a constant interest-rate of, say, 8%. (If a variable market-determined interest-rate had been used e.g. some rate added to the London InterBank Offer Rate in a given year, we could not make such a calculation today.)
If we further assume that the value of paper-money relative to land and goods and services in general may itself deteriorate through inflation, this figure would change. If, for example, we assume a low rate of inflation of 4% per annum for each of 90 years, that would mean the relevant interest-rate to discount the stream of payments would have to be 8%+4% = 12%. On that assumption, the present value of the entire stream of payments proposed to be made by Tata to West Bengal comes to Rs. 140 million in current rupees, and the price per acre of land becomes Rs 0.217 million or Rs. 2.17 lakhs. If the rate of inflation was high, say 10% per annum, the present value becomes Rs. 81.7 million and the price per acre of land being paid by Tata Motors is Rs 0.126 million or Rs. 1.26 lakhs. In other words, the higher the rate of paper-money inflation that occurs in the future, the cheaper Tata has obtained the land (and, conversely, the worse off the original peasant owners of the land who have been left with paper money paid to them by the West Bengal Government).
The point is also clear that the higher the rate at which one discounts the future, the lower shall be the present-value of the land. And also the higher this discount-rate, the more irrelevant the future becomes to present decision-making.
It is astonishing that neither Tata Motors’ high-powered MBA embellished management cadre nor anyone entrenched in the Marxist academic or policy establishment of West Bengal seems to have made such obvious calculations for the Honourable Court to understand things easily. Instead they have “added” the total payments to be made “raw” and said that some Rs. 8.558 billion (Rs. 855.8 crores) is due to be paid over 90 years – a meaningless statement because no such addition over time makes any financial sense at all. Are there no Marxist MBAs, or are all MBAs being mistaught the basics in their finance-courses?
Land, Liberty & Value
December 31, 2006 — drsubrotoroyLAND, LIBERTY & VALUE
Government must act in good faith treating all citizens equally ~ not favouring organised business lobbies and organised labour over an unorganised peasantry
By SUBROTO ROY
First published in The Sunday Statesman Editorial Page Special Article, December 31 2006
EVERY farmer knows that two adjacent plots of land which look identical to the outsider may be very different in character, as different as two siblings of the same family. Adjacent plots may differ in access to groundwater and sunlight, in minerals and salts, in soil, fertilisers, parasites, weeds or a dozen other agronomic factors. Most of all, they will differ in the quality and ingenuity of thought and labour that has gone into their care and cultivation over the years, perhaps over generations.
John Locke said: “Whatsoever that (a man) removes out of the state that Nature hath provided and left it in, he hath mixed his labour with and joined to it something that is his own, and thereby makes it his property… For this labour being the unquestionable property of the labourer, no one but he can have a right to what that once joined to, at least where there is enough and as good left in common for others” (Second Treatise of Government). Plots of land are as specific as the families that have “mixed” their labour with them. Locke wrote of labour being something “unquestionably” the labourer’s own property; in the same libertarian vein, Robert Nozick opened Anarchy, State and Utopia saying “Individuals have rights, and there are things no person or group may do to them (without violating their rights)”.
But as we recognise the universal sanctity of the individual person and his/her private property, we have to start qualifying it. If you purchase a field, forest or estate through which runs a pathway traditionally used by the public to get from one side to the other then even as the new owner you may not have a right to forbid the public’s use of the pathway. By extension, it is clear the State, the community of which you are a citizen, may approach you and demand there should be and will be a public road or thoroughfare through your property in the common interest. Such is the sovereign’s right of “eminent domain” recognised throughout the world, not only in times of war or natural disaster but also in normal times where private property may be taken for public use. The individual’s right to free use of his/her property is circumscribed as a result.
What may be certainly expected though in all matters is that the State will act in good faith, i.e., that it has conducted proper technical surveys and cost-benefit analyses as well as transparent public hearings, and has honestly decided that the road must be constructed using this route and no other. The doctrine of eminent domain implies that while the right to private property may be basic, it is not absolute, as indeed no right is, not even the right to one’s own life. In India, one key difference between the landmark Golaknath (AIR 1967 SC 1643) and Kesavananda Bharati (AIR 1973 SC 1461) rulings had to do precisely with the former recognising the right to property being fundamental as in our original 1950 Constitution, while the latter consented to the Indira Parliament’s denial of this.
When private property is taken, fair compensation must be paid. For example, the American Constitution says “no private property may be taken for public use without just compensation”. What is just compensation? Typically it would be the “fair market value” — but that must be properly adjudged accounting for the best future use of the land, not merely the historical or traditional past use of the land.
Consider, in a mature urban real-estate market, a plot made vacant because a warehouse located on it has accidentally burned down. What is the value of the plot now? Another warehouse could be built, but other bids could come in too for construction of offices or residential flats or a multi-storey garage. The plot’s value would differ depending on which use it is ultimately put to. And this value would be ascertained by calculating the expected cash flows into the future from each of these possibilities, discounted appropriately to account for the fact the future is less valuable than the present, with the highest value alternative being chosen. That is how a mature private real-estate market works in theory, though in practice there would be zoning and environmental restrictions to account for the traditional nature of the neighbourhood as well as possible pollution by effluent waste etc.
In India, Government departments and ministries have inherited prime urban real estate from British times. Amidst the highest value real estate in Kolkata, Bangalore, Delhi etc. will be found a military camp or flats built for military personnel, having nothing whatsoever to do with furtherance of the nation’s defences today. The appalling state of government accounting and audit of our public property and institutions includes the fact that neither the Union nor State Governments and municipalities have the faintest idea of assets, including real estate, that they own. These public assets are frequently open to abuse by managerially uncontrolled government employees.
Fallacies even more curious seem to be currently at work in Indian policy-making, whether by this or that political party. The “eminent domain” doctrine requires a public purpose to exist for acquisition of private property by the State: e.g. construction of a road, bridge, dam, airport or some other traditional public good which is going to be used by the public. In India as elsewhere, “land reform” did involve taking an absentee landlord A’s land and distributing it to B, C, D and E who worked as peasants on it. But nowhere else outside formerly communist China has land been forcibly taken from peasants B, C, D and E and handed over to this or that private capitalist in name of economic development (in a reverse class war)!
Eminent domain doctrine requires good faith on part of the State with respect to its citizens and that implies treating all citizens’ interests equally – not e.g. favouring an organised business lobby or organised industrial labour over the unorganised peasantry uneducated in the wiles of city people.
Also, there is no reason why Government should be interested in a particular product-mix emerging out of a given private factory (such as the so-called inflation-unadjusted “Rs one lakh car” instead of telecom equipment or garments or textiles). Dr Manmohan Singh’s statement last week that he wishes to see “employment-intensive” industries merely added to Government confusion: from Henry Ford to Japanese “lean business” today, everyone knows the direction of change of technology in the automobile industry has been towards robotics, making modern manufacturing less and less manpower-intensive! The Tatas themselves underwent a major downsizing and restructuring in the last decade, hiving off industries not considered part of their “core competence”.
Traditional agriculture of Singur’s sort represents the most labour-intensive employment-generating kind of rural economy. While such rural life may appear unsatisfying to the urban outsider, there is, as Tolstoy, Rabindranath, Gandhi and others knew, subtle happiness, contentment and tranquility there absent in alienated industrial sprawls. “Surplus” labour occurs in agriculture because of technological improvements in quality and delivery of agricultural inputs as well as new education and awareness (Theodore W. Schultz,Transforming Traditional Agriculture). It is mostly seasonal and all hands are used during the harvest when even urban migrants flock back to help. Industry did not leave Bengal in the 1960s and 1970s because of Mamata Banerjee but because of urban unrest, the culture of gheraos and lockouts, and bad regulations of the labour and capital markets associated largely with Ms Banerjee’s Left Front adversaries.
The basic fiction the Union and State Governments have made themselves believe is that their idea of an industrialisation plan is necessary for economic development. It is not. Real economic problems in West Bengal and elsewhere are financial to do with State budgets. “Debt overhang is there” is how the RBI Governor apologetically put it last week. Interest payments on the West Bengal State public debt consume larger and larger fractions of the revenue: these payments were at Rs 13 Bn in 1995 but grew to Rs. 92 Bn by 2004, and may jump to Rs 200 Bn in the next decade. The communists have been in power thirty years and no one but they are responsible. Making the State’s budget healthy would require tackling the gargantuan bureaucracy, slashing ministerial extravagance (foreign trips, VIP security) etc. It is much easier to hobnob with the rich and powerful while tear-gassing the peasants.
Justice & Afzal
October 14, 2006 — drsubrotoroyJustice & Afzal
first published in The Sunday Statesman Editorial Page
October 14, 2006
There is a difference between law and equity (or natural justice). The power of pardon is an equitable power. Commuting a death-sentence is a partial pardon
By SUBROTO ROY
“Fiat justitia pereat mundus” ~let justice be done even if the world shall perish ~ is a maxim only Immanuel Kant among the great philosophers may have wished to maintain. Yet it serves to remind us that there exist wrong reasons for carrying out as well as wrong reasons for not carrying out the death-sentence on Afzal Guru. Wrong reasons for carrying out the death-sentence include saying that only by his death will families of the victims of the Parliament attack receive satisfaction (justice is hardly the same thing as revenge) or that only thereby can the Indian Republic show itself to be standing up to terrorism. Wrong reasons for not carrying out the death-sentence include saying Afzal’s death would be seen as unjust by many people in J&K and result in further civil or political turmoil there or elsewhere, or that more terrorism will result.
Justice should be done and be seen to be done to Afzal by the Indian Republic ~ here as elsewhere, justice is a matter between an individual and the State. The question remains open whether such justice involves his death or his imprisonment for life or even his being paroled in due course. Unlike Praveen Mahajan for example, Afzal has not committed premeditated first-degree murder or parricide. He is from an Indian State where there has existed some separatist sentiment for decades, and evidently he has been an accomplice to an act of war against India involving attempted kidnapping or mass murder. If he is an Indian national, he may have been treasonous and seditious; if he is a Pakistani national or wishes to be treated as such, he may have been some kind of spy, agent provocateur or saboteur, or an accomplice of such people. The moral question before India today has to do with what precisely is the nature and quality of justice to be dispensed in this particular case, in these particular factual circumstances as far as presently known, given all the principles, precedents, rules and laws available.
Someone may fairly wonder how or why it is possible the President of India has any discretion at all left to commute a sentence of death once the judiciary up until the Supreme Court of India has spoken. The answer has to do with the subtle distinction that is still made in common law countries like Britain, the USA and India between law and equity or “natural justice”. Britain ever since the 13th Century has had an institution known as “Lord Chancellor” in whose person came to be combined the highest judicial and executive roles (Tony Blair’s New Labour Government is due to abolish it). “Chancery” or courts of equity traditionally were parallel to courts of law, recognising that normal legal processes may cause justice to sometimes fail (especially in corrupt times) and hence require direct executive intervention. In the United States today, equity is embodied in Rule 60(b) of the Federal Rules, and federal courts are empowered to oversee all other courts including themselves for violations of natural justice.
By way of example having nothing necessarily to do with capital punishment, “solicitation of counsel, clerks or judges” is embracery curialis, recognized as extrinsic fraud and subversion of justice since Jepps 72 E R 924 (1611), “firmly established in English practice long before the foundation” of the USA, Hazel Atlas, 322 US 238 (1943). “Embracery is an offense striking at the very foundation of civil society” says Corpus Juris 20, 496. A court of equity has inherent power to investigate if a judgement has been obtained by fraud, and that is a power to unearth it effectively, since no fraud is more odious than one to subvert justice. Cases include when “by reason of something done by the successful party… there was in fact no adversary trial or decision of the issue in the case. Where the unsuccessful party has been prevented from exhibiting fully his case, by fraud or deception practised on him by his opponent, as … where an attorney fraudulently or without authority assumes to represent a party and connives at his defeat; or where the attorney regularly employed corruptly sells out his client’s interest to the other side ~ these, and similar cases which show that there has never been a real contest in the trial or hearing of the case, are reasons for which a new suit may be sustained to set aside and annul the former judgment or decree, and open the case for a new and a fair hearing….” Hazel Atlas. Fraud on the court includes that “perpetrated by officers of the court so that the judicial machinery cannot perform in the usual manner its impartial task of adjudging cases that are presented for adjudication” Moore’s Federal Practice 60-360.
Equitable action under Rule 60(b) can vacate judgment whenever such action is appropriate to accomplish justice. (In contemporary American federal judicial processes at least in the present author’s experience over two decades, this rather subtle branch of jurisprudence may have become known, however, more in its breach than fulfilment).
The power of pardon is one such supra-legal equitable power of the executive authority. For a state’s chief executive to pardon a crime is to release someone of guilt or to remit punishment. In Britain, the power is with the Government’s Home Office and in the old Commonwealth it was delegated to the Governor-General. In the USA it is a power of the President or State Governors to pardon crimes, and the most famous case was that of President Gerald Ford pardoning his predecessor Richard M. Nixon. Pervez Musharraf recently pardoned A Q Khan. Both highlight the fact the power of granting a full pardon is to be exercised rarely, and may be justifiable only on grounds of “Reasons of State” where someone has done something unlawful which the State is willing to condone for sake of some greater good in the national interest. But a pardon also can be partial, requiring the offender fulfil a condition such as serving a lesser substituted punishment. Commuting a death sentence by requiring the offender to serve life in prison is this sort of conditional pardon.
In India today, the President under Article 72 of the Constitution is empowered “to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute” a sentence of death and also intervene in other cases. Article 161 gives a lesser power to State Governors. These are singular examples of the acknowledged presence of equity in modern Indian jurisprudence, though our customary laws remain a vast untapped source of natural justice, (viz. Tagore Law Lectures 1905-1906 by SN Roy). Just last week, a Supreme Court bench of Justice Arijit Pasayat and Justice SH Kapadia ruled the power of reprieve, pardon or remission of sentence may not be exercised for “political considerations or on the basis of religion, caste or other extraneous factors”. There must be bona fide valid reasons. The bench set aside an Andhra Pradesh order passed by a Governor from the Congress Party remitting the sentence of imprisonment awarded to a Congress leader in a murder case involving a Telegu Desam Party victim. In an egregious violation of his discretion, the Governor had said the sentence already undergone was sufficient and directed release, but the Supreme Court in November 2005 admitted a petition challenging the order and stayed it. The Court has now held that exercise of the power is subject to judicial review and it may not be exercised for extraneous, political or mala fide reasons. The Court has thereby enlarged its role in equity (or natural justice) similar to that which American federal courts have had under Rule 60(b). There is also an argument for abolishing Article 161.
In cases of equitable treatment of capital punishment in India today like that of Afzal (or Dhananjay before him), the fact the Executive has notoriously starved our Judiciary of adequate resources ever since Independence (The Statesman, 26 February 2006) also may not be something irrelevant to evaluating the likelihood of a mistake having been made. All things considered, if justice is to be done and seen to be done in Afzal’s case, the Indian Republic should be in no hurry whatsoever in deciding to either execute him or to even release him.
From Facebook 31 March 2014
Why was Afzal hanged in such a hurry and almost in secret? Why did the BJP bay for his death so loudly every day, getting the Congress scared they would lose an election if they did not? Competitive foolishness just as over Telengana. Afzal had not pulled any trigger. That it was an avoidable injustice is made apparent by the Supreme Court commuting the death sentences of other political murderers, including Rajiv Gandhi’s killers and now Bhullar…
From Facebook 24 November 2012
I did not think Kasab should have been hanged principally as it was on the basis of his evidence that India cracked the case and he deserved some jurisprudential credit for that. He was the star witness for the prosecution against the terrorist masterminds who had sent him. Separately, I also do not believe, all things considered, that Afzal should be hanged, though there may be nothing defective in law against his conviction and sentence and he has had some legal bad luck. The law of pardon or commutation is of an equitable nature, beyond the normal law itself…His cooperation with the police would be the reason for his life to be spared — besides the fact that he pulled no trigger to kill anyone himself nor caused anyone else to do so.
From Facebook August 12 2011:
Subroto Roy has now for the first time been able to read the Supreme Court judgement affirming Afzal Guru’s death sentence, commuting Shaukat’s, and affirming the acquittal of Gillani. It does not seem defective in law. Afzal Guru was perhaps misrepresented by lawyers or misled himself into confessing his crimes very early on. But hand-in-glove with the murderous terrorists he certainly appears to have been. The fact he helped the police with his confession may be the only equitable reason for the President to commute the sentence.
Logic of Democracy (2006)
March 30, 2006 — drsubrotoroyLOGIC OF DEMOCRACY
by
SUBROTO ROY
First published in The Statesman,
Editorial Page Special Article, March 30 2006
Parliament may unanimously vote for a bill on the “Office of Profit” issue but this will have to be consistent with the spirit and letter of the Constitution and with natural law if it is not to be struck down by the Supreme Court. It is thus important to get the logic right.
India is a representative and not a direct democracy. We the people constitute the Electorate who send our representatives periodically to legislative institutions at national, state and local levels. These representatives, namely, Lok Sabha and Legislative Assembly Members and municipal councilors, have a paid job to do on behalf of all their constituents, not merely those who voted for them. They are supposed to represent everyone including those who voted against them or did not vote at all.
In view of this, if the question is asked: “Was India’s interest served by Sonia Gandhi peremptorily resigning as the Lok Sabha Member from Rae Bareli and then immediately declaring she will fight a fresh election from there?”, the answer must be of course that it was not. Mrs Gandhi had been elected after an expensive process of voting and she had a duty to continue to represent all of Rae Bareli’s people (not just her party-supporters) for the duration of the 14th Lok Sabha. Instead she has given the impression that Rae Bareili is her personal fiefdom from where she must prove again how popular she is as its Maharani.
What needed to be done instead was to abolish the so-called “National Advisory Council” which, like the “Planning Commission” is yet another expensive extra-constitutional body populated by delusional self-styled New Delhi worthies. The NAC has been functioning as Mrs Gandhi’s personal Planning Commission, and she lacked the courage to scrap it altogether — just as Manmohan Singh lacks the courage to tell Montek Ahluwalia to close down the Planning Commission (and make it a minor R&D wing of the Ministry of Finance).
Lok Sabha’s duties
What are Lok Sabha Members and State MLAs legitimately required to be doing in caring for their constituents? First of all, as a body as a whole, they need to elect the Government, i.e. the Executive Branch, and to hold it accountable in Parliament or Assembly. For example, the Comptroller and Auditor General submits his reports directly to the House, and it is the duty of individual legislators to put these to good use in controlling the Government’s waste, fraud or abuse of public resources.
Secondly, MPs and MLAs are obviously supposed to literally represent their individual constituencies in the House, i.e. to bring the Government and the House’s attention to specific problems or contingencies affecting their constituents as a whole, and call for the help, funds and sympathy of the whole community on their behalf.
Thirdly, MPs and MLAs are supposed to respond to pleas and petitions of individual constituents, who may need the influence associated with the dignity of their office to get things rightly done. For example, an impoverished orphan lad once needed surgery to remove a brain tumour; a family helping him was promised the free services of a top brain surgeon if a hospital bed and operating theatre could be arranged. It was only by turning to the local MLA that the family were able to get such arrangements made, and the lad had his tumour taken out at a public hospital. MPs and MLAs are supposed to vote for and create public goods and services, and to use their moral suasion to see that existing public services actually do get to reach the public.
Rajya Sabha different species
Rajya Sabha Members are a different species altogether. Most if not all State Legislative Councils have been abolished, and sadly the present nature of the Rajya Sabha causes similar doubts to arise about its utility. The very idea of a Rajya Sabha was first mooted in embryo form in an 1888 book A History of the Native States of India, Vol I. Gwalior, whose author also advocated popular constitutions for the “Indian India” of the “Native States” since “where there are no popular constitutions, the personal character of the ruler becomes a most important factor in the government… evils are inherent in every government where autocracy is not tempered by a free constitution”.
When Victoria was declared India’s “Empress” in 1877, a “Council of the Empire” was mooted but had remained a non-starter even until the 1887 Jubilee. An “Imperial Council” was now designed of the so-called “Native Princes”, which came to evolve into the “Chamber of Princes” which became the “Council of the States” and the Rajya Sabha.
It was patterned mostly on the British and not the American upper house except in being not liable to dissolution, and compelling periodic retirement of a third of members. The American upper house is an equal if not the senior partner of the lower house. Our Rajya Sabha follows the British upper house in being a chamber which is duty-bound to oversee any exuberance in the Lok Sabha but which must ultimately yield to it if there is any dispute.
Parliament in India’s democracy effectively means the Lok Sabha — where every member has contested and won a direct vote in his/her constituency. The British upper house used to have an aristocratic hereditary component which Tony Blair’s New Labour Government has now removed, so it has now been becoming more like what the Rajya Sabha was supposed to have been like.
The corruption of our body-politic originated with the politicisation of the bureaucracy thirty five years ago by Indira Gandhi and PN Haksar. The Rajya Sabha came to be ruined with the “courtier culture” and “durbar politics” that resulted. This bad model which the Congress Party created and followed was imitated by the Congress’s political opponents too. Our Rajya Sabha has now tended to become a place for party worthies who have lost normal elections, superannuated cinematic personalities, perpetual bureaucrats still seeking office, and similar others. The healthiest course of action for Indian democracy may be to close it down completely for a few years, then recreate it ab initio based on its original purposes and intent (but this may not be constitutionally possible to do).
Holding Executive accountable
It is a forgotten platitude that in a representative democracy what elected legislators are supposed to be doing is represent the interests of the Electorate. Along with the Judiciary, the Legislative Branch is supposed to control the Executive Government, which is the natural oppressor of the Electorate. That is why the Legislature must be independent of the Executive — which is the precise intent behind Article 102 (a) of the Constitution of India: “A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament… if he holds any office of profit under the Government of India or the Government of any State…”
In other words, if you are a Lok Sabha MP or State MLA who is supposed to be a part of the august House which has elected the Executive Government and by whom that Government is supposed to be held accountable, then it is a clear conflict of interest if you are yourself in the pay of that Government. As a legislator, you are either in the Executive or you are not. If you are in the Executive, you are liable to be held accountable by the House. If you are not in the Executive, you are duty-bound as an ordinary Member of the House to hold the Executive accountable. The logic is ultimately as clear and simple as that.
It is inevitable that the delineation of the appropriate boundaries between Legislature and Executive will have to be pronounced upon by the Judiciary. The “Office of Profit” issue has opened an opportunity for a Constitution Bench of the Supreme Court to speak on the rights and duties of the Legislative and Executive Branches of Government. And no Constitution Bench has ever spoken unwisely.
Unaccountable Delhi: India’s Separation of Powers’ Doctrine
January 13, 2006 — drsubrotoroyUNACCOUNTABLE DELHI
India’s Separation Of Powers’ Doctrine
First published in The Statesman Jan 13 2006 Editorial Page Special Article,
By Subroto Roy
The Speaker does not like the fact the High Court has issued notices questioning the procedure he followed in expelling MPs from Parliament. Sonia Gandhi’s self-styled “National Advisory Council” has demanded control over disbursement of 100,000,000,000 rupees of public money. The Manmohan Singh Government plans to quietly ignore the Supreme Court’s finding that it had breached India’s Constitution in imposing President’s Rule in Bihar. All three issues have to do with application of India’s Separation of Powers Doctrine, i.e. the appropriate delimitation of Constitutional powers between our Legislature, Executive and Judiciary.
A constitutional crime was attempted in India during the Indira-Sanjay Gandhi political “Emergency” declared on 26 June 1975. On 10 November 1975 (a time of press censorship) a 13-judge Bench of the Supreme Court met to hear the Government plead for overrule of Kesavananda Bharati (A.I.R. 1973 S.C. 1461), a landmark Nani Palkhivala once called “the greatest contribution of the Republic of India to constitutional jurisprudence”. Within two days, the Government had failed in the Court, and Kesavananda held. What was upheld? That while India’s Parliament was sovereign and could amend the Constitution, the amending power may not be used to alter or destroy “the basic structure or framework of the Constitution”. And the Supreme Court decides for itself whether Parliament has exceeded its legitimate power to amend.
Basic structure
Palkhivala’s description of what constitutes the “basic structure or framework” of India’s Constitution is excellent enough: “the rule of law, the right to personal liberty and freedom from arbitrary arrest and imprisonment, the right to dissent which implies the freedom of speech and expression and a free press are… a part of the basic structure of a free democracy, and it is these priceless human freedoms which cannot be destroyed by Parliament in exercise of its amending power. Thus Kesavananda’s case ensures that tyranny and despotism shall not masquerade as constitutionalism.”
Palkhivala argued that, if anything, the aspects of Kesavananda that needed to be set aside were those that had over-ruled Golaknath (A.I.R. 1967 S.C. 1643) which said Parliament should not be held to have the power to abridge any fundamental right, indeed any amended article which abrogates any fundamental right is invalid.
Dicey said “In the principle of the distribution of powers which determines its form, the constitution of the United States is the exact opposite of the English constitution.” Kesavananda Bharati showed the midway point between the two in constitutional jurisprudence anywhere in the world. We are like the Americans and unlike the British first in being a Republic, and secondly in having an explicit written Constitution. We are like the British and unlike the Americans in being a parliamentary democracy where the Executive Branch of Government, namely the Prime Minister and his/her Cabinet is elected from within the Legislative Branch of Government, namely, Parliament, and must at all times retain the confidence of the latter, specifically the Lok Sabha, the House of the People.
The American Executive Branch has a directly-elected President who chooses his administration, and it is commonplace for him to not have the confidence of the Upper or Lower House of the Legislature, to the point that one recent president had to undergo impeachment proceedings and barely survived. There is no constitutional crisis in America if the Legislature loathes the President and wishes him out. The American President and his Executive Branch stay in office until the last minute of his fixed term.
PM answers to Parliament
In our system, the Prime Minister answers at all times to Parliament. Parliament in India’s democracy has normally meant the House of the People — where every member has contested and won a direct vote in his/her constituency. India’s current Lok Sabha has set a constitutional precedent not seen in more than a hundred years anywhere in electing an Executive led by someone not a member. The British Upper House used to have an aristocratic hereditary component which Mr Blair’s New Labour Government has removed, making it more like what the Rajya Sabha was supposed to be — except that by now our Rajya Sabha has tended to become a place for party worthies who have lost normal elections, superannuated cinematic personalities, perpetual bureaucrats still seeking office, and others who really should be at home helping to raise the grandchildren. Parliament may not have fully recovered its health ever since that constitutional crime committed against the Republic known as the Indira-Sanjay “Emergency” (and at least one member of Sanjay’s coterie wields much power today).
Crimes and misdemeanours
The Supreme Court’s finding that the Government breached the Constitution by imposing President’s Rule in Bihar is a finding not of a constitutional crime but of a constitutional misdemeanour. (For reasons given already in these columns on 20 October 2005, it has nothing to do with the President, who merely embodies the sovereignty of our Republic.) For an Executive Order or Legislative Act to be found by a competent Court as being unconstitutional means merely that it does not have to be obeyed by citizens. In the Bihar case, the Supreme Court found this consequence irrelevant because new elections were already in process, the result of which would come from the most authentic democratic voice possible, namely, the same people who elect the House of the People in the first place. India’s Executive has been found to have committed a constitutional misdemeanour, for which it needed to apologise to the Court and Parliament (who are its constitutional co-equals) and then ask the latter to renew its confidence — in which event, life goes on. If confidence was not renewed, the Government would fall and a new Government would have to be formed. But we do not have yet the idea of a backbench revolt —mainly because all the front benches themselves have tended to be in such confusion and disarray with regard to parliamentary traditions, processes and functions.
The Supreme Court as the ultimate protector of the Constitution would be well within its prerogative to oversee whether a Parliamentary Speaker has acted appropriately. Consider a hypothetical case. Once elected, a Speaker is supposed to have no party-affiliation ever more for the rest of his/her life. Suppose, hypothetically, a controlled experiment found a Speaker systematically biased in favour of his/her own former party-members and against their opponents. Where but the Courts could such arbitrariness be effectively remonstrated against? Even if the incumbent Speaker impossibly imagines himself the personal embodiment of the Legislative Branch, he is not beyond the Constitution and therefore not beyond India’s Separation of Powers’ Doctrine.
The Opposition had alleged that the Speaker failed to follow procedure which required the culprits in the expulsion case be referred to the Privileges Committee. But beyond that the Opposition was too confused and guilt-ridden to pursue the matter during the dying moments of Parliament’s Winter Session. In the clear light of day, the issue has now ended up in the Courts. If the Supreme Court eventually rules the Speaker had in fact failed to follow Parliament’s own procedures (and hence breached Constitutional practices), the Speaker would need to apologise to the Courts and the House that elected him, and perhaps offer to fall on his sword.
Finally, for the “National Advisory Council”, a wholly unelected body, to demand a say for itself over spending Rs. 100 billion in State and Union Government budget-making, would be another constitutional misdemeanour — unless its members are merely on the personal staff of the Hon’ble Member representing Rae Bareili, who may of course introduce whatever legislation on money-bills that any other Lok Sabha Member may do.
After the Verdict: Why the Executive Needed a Vote of Confidence
October 20, 2005 — drsubrotoroyAFTER THE VERDICT
by
Subroto Roy
First published The Statesman, 20 October 2005, Editorial Page Special Article
The last and only time a Head of State of India “resigned” was when Edward VIII (uncle of the present Queen of England) abdicated in 1936 because he wished to marry Mrs Wallis Simpson, a twice-divorced American, and the British Government under Stanley Baldwin felt this was unacceptable to the public and told him so. To his eternal credit, Edward VIII chose true love over the vainglorious trappings of a constitutional monarchy, gave up the kingship, and went with his new wife into a quiet voluntary life-exile in France as the Duke and Duchess of Windsor. India’s Presidents cannot act in state except upon advice of the Cabinet. That means they cannot even resign from office except upon advice of the Cabinet. A President may tragically die in office in which case the Vice-President would become the acting Head of State but there is no provision or precedent in India for a President to be made to resign except for Edward VIII’s abdication.
Richard Nixon resigned the office of the President of the United States in 1974 and more recently William Jefferson Clinton was brought under a lot of pressure to do so by the legislative impeachment proceedings against him. Nixon resigned (which made Gerald Ford President) because it had become impossible for him to stay in office having been proved to have lied to the people, and Clinton managed to stay on by the skin of his teeth for similar misdeeds. But the American system is different because the Head of State and Head of Government are united in the person of the President.
In our system, the Head of State embodies the sovereignty of India and does nothing more. Mountbatten as the first Governor-General imagined himself much more than that and caused damage to the subcontinent’s polity which has still to be repaired. But the first four Indian Heads of State, C. Rajagopalachari, Dr Rajendra Prasad, Dr S. Radhakrishnan, and Dr Zakir Hussain, were exemplary role-models. Unfortunately since their time the office of the President has suffered some of the shocks too that have been suffered by almost all our institutions. For example, retired Presidents really should vanish most gracefully into quietude to write their memoirs and help raise their grandchildren, yet we have had a former President say that an award received after retirement as President has been his most prized. It is not logically possible for such a thing to happen, since to become President of India is the ultimate honour for any citizen of our country. We elect someone among us to be a constitutional monarch for a period of five years and call that person President. Even if a former Indian President should receive the Nobel Peace Prize afterwards it would not mean his/her having embodied the sovereignty of our Republic was not the ultimate honour.
In our constitutional law, our Head of State cannot choose to resign any more than the sovereignty of India can be made to momentarily come to an end. If, to construct a hypothetical case, a President of India while in office became, heavens forbid, physically or mentally incapable of carrying out the duties of the office, the Government of India as represented by the Union Cabinet may well look to the Vice-President to fulfil the role of the Head of State temporarily but there would be no provision for the President to be made to demit office. The only precedent is that of Edward VIII where his personal love for Mrs Simpson compelled his abdication upon the advice of the Prime Minister.
Bringing ourselves back to Bihar, the Honourable Supreme Court’s finding of unconstitutionality is of grave import. On the positive side, what it indicates yet again is that India’s political institutions, no matter how battered and bloody they become by our self-inflicted wounds, still do work.
Furthermore, for the Honourable Court to have allowed the elections to go forward indicates how fine is the quality of our justice, for the Court has allowed the people of Bihar to speak again, and of course Mr Nitish Kumar and friends have been free to use at the hustings the Court’s finding in their favour. Certainly heads should roll and be seen to roll for all this. The Governor should have gone immediately but has not only not done so, he has let it be known that he was acting under orders himself. If so, the least that should happen is that the party-functionary responsible for this should be sacked.
For some press-commentators to demand that Sonia Gandhi should replace Dr Manmohan Singh reveals an appalling ignorance of constitutional norms; this is not a matter of a “High Command” replacing one acolyte by another as chief minister somewhere – if a Prime Minister resigns, so does the entire Cabinet he has appointed, and a new Government has to be sought to be formed. At the same time it is less than candid for the Leader of the Opposition to demand via the television cameras that the Prime Minister should resign, since the Opposition knows fully well that there is an institution called Parliament which can express its lack of confidence in a Government. And of course it also remains open for the Prime Minister himself to go to Parliament and seek to renew its confidence in his Government when the public confidence has thus come to be shaken.
In fact, the right course of action for the President is to summon the Prime Minister and say something like: “It would appear the Judicial Branch of the Government of India has found the Executive Branch to have breached the Constitution. Reference must now be made to the Legislative Branch, namely, to Parliament, to see if it still has confidence in the Executive. Please ask for a Vote of Confidence in the Lok Sabha as soon as possible.” Of course, Dr Manmohan Singh has been the first Prime Minister in Commonwealth history since Salisbury who has not been himself a member of the Lower House. Curzon had wished to be British prime minister after returning from India but was passed over in 1922 in favour of Baldwin in a decisive demonstration that a prime minister must be a member of the Lower House. That is why Alec Douglas-Home stopped being a member of the House of Lords in order to become British PM in 1963-64. India in the last thirty years has seen parliamentary traditions at the Union and State levels being ruinously weakened (or not even allowed to develop) being replaced all too frequently either by street-fighting or by discretionary bureaucratic decision-making by committee. The present moment is an opportunity for the rot to be stemmed. It may be too optimistic though to believe that it will be taken.
Towards a Highly Transparent Fiscal & Monetary Framework for India’s Union & State Governments (29 April 2000)
April 29, 2000 — drsubrotoroyTowards a Highly Transparent Fiscal & Monetary Framework for India’s Union & State Governments
An address by Dr Subroto Roy to
the Conference of State Finance Secretaries, Reserve Bank of India, Mumbai, 29 April 2000.
It is a great privilege to speak to this distinguished gathering of Finance Secretaries and economic policy-makers here at the Reserve Bank today. I should like to begin by thanking the Hon’ble Governor Dr Bimal Jalan and the Hon’ble Deputy Governor Dr YV Reddy for their kind invitation for me to do so. I should also like to record here my gratitude to their eminent predecessor, the Hon’ble Governor of Andhra Pradesh, Dr C Rangarajan, for his encouragement of my thinking on these subjects over several years.
My aim will be to share with you and seek your help with my continuing and very incomplete efforts at trying to comprehend as clearly as possible the major public financial flows taking place between the Union of India and each of its constituent States. I plan to show you by the end of this discussion how all the information presently contained in the budgets of the Union and State Governments of India, may be usefully transformed one-to-one into a fresh modern format consistent with the best international practices of government accounting and public budgeting.
I do not use the term “Central Government”, because it is a somewhat sinister anachronism left over from British times. When we were not a free nation, there was indeed a Central Government in New Delhi which took its orders from London and gave orders to its peripheral Provinces as well as to the British “Residents” parked beside the thrones of those who were called “Indian Princes”.
Free India has been a Union of States. There is a Government of the whole Union and there is a Government of each State. The Union is the sovereign and the sole international power, while the States, as political subdivisions of the Union, also possess certain sub-sovereign powers; as indeed do their own subdivisions like zilla parishads, municipalities and other local bodies in smaller measure.
Our 15 large States, which account for 97% of the population of the country, have an average of something like 61 million citizens each, which is vastly more than most countries of the world. In size of population at least, we are like 15 Frances or 15 Britains put together. The Indian Republic is unique or sui generis in that there has never been in history any attempt at federalism or democracy with such sheer large numbers of people involved.
In such a framework the citizen is supposed to feel a voter and a taxpayer at different levels, owing loyalty and taxes to both the national unit and the subdivisions in which he or she resides. In exchange, government at different levels is expected to provide citizens with public goods and services in appropriate measure. The problem of optimal fiscal decentralisation in India as elsewhere is one of allocating to each level of government the power to tax and responsibility to provide, public goods and services most appropriate to that level of government given the availability of information of resources and citizens’ preferences.
In parallel, a problem of optimal monetary decentralisation may be identified as that of allocating between an autonomous Central Bank and its regional or even State-level affiliates or subsidiaries, the power to finance through money-creation the deficits, if any, of the Union and State Governments respectively. It is not impossible to imagine a world in which individual State deficits did not flow into the Union deficit as a matter of course, but instead were intended to be financed more or less independently of the Union budget from a single-window source. There would be a clear conceptual independence between the Union and State levels of public action in the country. In such a world, the Union Government might approach a constitutionally autonomous national-level Central Bank to finance its deficit, while individual State Governments did something analogous with respect to autonomous regional or even State-level Central Banks which would be affiliates or subsidiaries of the national Central Bank.
This is similar to the intended model of the United States Federal Reserve System when it started 90 years ago, though it has not worked like that, in part because of the rapid rise to domination by the New York Federal Reserve relative to the other 11 regional Federal Reserve Banks.
A more radical monetary step would be to contemplate a “Reverse Euro” model by which a national currency issued by the national-level Central Bank acts in parallel with a number of regional or State-level currencies with full convertibility and floating exchange-rates guaranteed between all of them in a world of unhindered mobility of goods and factors.
However, these are very incomplete and theoretical thoughts which perhaps deserve to be shelved for the time being.[1] What necessitates this kind of discussion is after all not something theoretical but rather the practical ground realities of our country’s fiscal and monetary position, something of which this audience will be far better aware than am I.
Economic and political analysis suggests that managing a process of public financial decision-making requires a coincidence of the people who have the best information with the people who have the authority to act. In other words, decision-makers need to have relevant, reliable and timely information made available to them, and then they need to be considered accountable for the decisions made on that basis.
In a democracy like ours, the locus of economic policy decision-making must be Parliament and the State legislatures. Academics, civil servants, journalists, special interest groups, this or that business or industrial lobbyist or foreign management consultant can all have their say — but consensus on the direction and nature of economic policy, if it is to be genuine, has to ultimately emerge out of the legislative process on the basis of reasonable, well-informed discussion and debate, given full relevant timely information. The proper source of all economic policy decisions and initiatives is Parliament, the State legislatures and local government bodies — not this or that lobby or interest-group which may be vocal or powerful enough to be heard at a given time in New Delhi or some State capital-city.
Our 1950 Constitution was a marvellous document in its time and it has worked tolerably well. It defined the functions of government in India in accordance with the main parameters of normative public finance.
Economics ascribed a quite extensive traditional role to Government, the most important functions being collective and individual security, followed by all activities which in the words of Adam Smith,
“though they may be in the highest degree advantageous to a great society, are, however, of such a nature that the profit could never repay the expence to any individual or small number of individuals, and which it, therefore, cannot be expected that any individual or small number of individuals should erect or maintain.” (Wealth of Nations, V.i.c., 1776)
Our 1950 Constitution defined the Union’s responsibilities to be
External Security;
Foreign Relations & Trade;
Supreme Court & Domestic Security;
Debt Service, Foreign & Domestic;
National Infrastructure;
Communications & Broadcasting;
Atomic Energy;
Public Sector Industries;
Banking; Currency & Finance;
Archives; Surveys & National Institutions;
National Universities;
National Civil Services & Administration.
Each State’s responsibilities were
High Courts & Lower Judiciary;
Police; Civil Order; Prisons;
Water; Sanitation; Health;
State Debt Service;
Intra-State Infrastructure & Communications;
Local Government;
Liquor & Other Public Sector Industries; Trade; Local Banking & Finance;
Land; Agriculture; Animal Husbandry;
Libraries, Museums, Monuments;
State Civil Service & Administration.
Some duties were supposed to be shared by the Union with each State, including
Criminal Law;
Civil & Family Law, Contracts & Torts;
Forests & Environmental Protection;
Unemployment & Refugee Relief;
Electricity;
Education.
But the authors of the 1950 Constitution could not have envisaged the nature of present problems, or foreseen in those early years what we would have become like today. Our fiscal system has become such that a few clauses may have led to an impossibly complex centralization of fiscal power and information. Not only did the 1950 Constitution identify agendas of the Union and State Governments, it also dictated the procedure of decision-making and it is this which may have become intractable over 50 years. Under Article 280, a Finance Commission is appointed every five years whose task is to try to efficiently and equitably allot tax revenues collected by the Union downwards to the States and laterally between the States. Members of Finance Commissions have been elder statesmen of high reputation and integrity, yet the practical impossibility of their task has made their actions seem to all observers to be clouded in mystery and perhaps muddle. As one recent member, Justice Qureshi, has candidly stated
“it is humanly impossible for a person to understand the problems of the Centre and the 25 States and take a decision thereon within such a short time” (Ninth Finance Commission, Issues and Recommendations, p.350).
No matter how competent or well-meaning a Finance Commission’s members may be, their purpose may be stymied by the overload of information and overcentralisation of authority that has come to take place. As a result, it may have been inevitable that Government has ended up doing what it need not have done at the expense concomitantly of failing to do what only Government could or must have done.
The present situation is such that, despite the best efforts of the Reserve Bank and other Government agencies, there may be a gross lack of timely, relevant and reliable information reaching all decision-makers including the ordinary citizen, who as voter and taxpayer is the cornerstone of the fiscal system. My own inquiry started when Mr. Hubert Neiss, then Central Asia Director at the IMF, hired me as a consultant in December 1992. He told me the IMF was naturally concerned about India’s national budget deficit, but no one seemed to quite know how this related precisely to the budgets of the different States whose deficits seemed to be flowing into it. By its terms of reference, the IMF could not inquire into India’s States’ budgets and I did not do so in my work with them, but the import of his question remained in my thinking. Later I found similar questions being asked at the World Bank. I do not think it a great secret to state that there may be a great deal of simple puzzlement about the workings of our fiscal and monetary system on the part of observers and decision-makers who may be concerned about India’s fiscal position.
Among both public decision-makers and ordinary citizens right across the length and breadth of our country, a severe and widespread lack of information about and comprehension of India’s basic fiscal and monetary facts seems to exist. This in itself may be a cause of fiscal problems as citizens may not be adequately aware of the link between making their demands for public goods and services on the one hand, and the necessity of finding the resources to fund these goods and services on the other.
In any ultimate analysis, resources for public goods and services in an economy can be found only by diverting the real resources of individual citizens towards public uses. Other than printing fiat money, a national Government can only either tax those citizens who are present today in the population, or, borrow from the capital stock on behalf of unborn generations of future citizens.
West Europe and America are heirs to a long history of political development; yet even there, as Professor James Buchanan has often observed, the idea until has not been grasped until recently that benefits from use of public goods and services are supposed to accrue to citizens from whom resources have been raised. Until the 19th Century,
“government outlay was frequently considered “unproductive”, and there was, by implicit assumption, no return of services to the citizens who were taxed. In a political regime that devotes the bulk of government outlay to the maintenance expenses of a single sovereign, or even of an elite, there is no demonstrable return flow of services to the taxpayers…. Tax principles were discussed as if, once collected, revenues were removed forever from the economy; taxpayers, both individually and in the aggregate, were held to suffer real income loss” (James M. Buchanan, The Demand and Supply of Public Goods, Rand 1968, p. 167).
According to Buchanan, such an undemocratic fiscal model was transformed in the work of the great Swedish economist Knut Wicksell and others by introducing the key assumption of fiscal democracy, namely, that
“those who bear the costs of public services are also the beneficiaries in democratic structures”
Conversely, we may say those who demand public goods and services in a fiscal democracy should also expect to pay for them in real resources. If citizens are aware of taxes only as a burden and come to feel they receive little or nothing from Governments in return, there is a loss of incentive to pay taxes or to stand up and be counted as proud citizens of the country. There is an incentive instead to evade taxes or to flee the country or to cynically believe everything to be corrupt. On the other hand, if citizens demand public goods and services without expecting to contribute resources for their production, this amounts to being no more than a demand to be a free-rider on the general budget.
In our country, we may have been seeing both phenomena. On one hand, there is, rightly or wrongly, a tremendous public cynicism present almost everywhere with respect to expecting effective provision of public goods and services. On the other hand, the idea that the beneficiaries of public goods and services must also, sooner or later, come to bear the costs in terms of taxed resources is far from established so our politics come to often be unreasonable and irresponsible.
Reliable and comprehensible information about the system as a whole and about the contents of public budgets is thus vital for a fiscal democracy to function. In ancient Athens it was said:
“Here each individual is interested not only in his own affairs but in the affairs of the State as well; even those who are mostly occupied with their own business are extremely well-informed on general politics — this is a peculiarity of ours: we do not say that a man who has no interest in politics is a man who minds his own business; we say that he has no business here at all.” Pericles (Funeral Oration, Thucydides, The Pelopennesian War)
That was the criterion that Pericles defined for ancient Athenian democracy, and I see no reason why in the 21st Century it cannot be met in modern India’s democracy.
This finally brings me to the positive contribution I have promised to make. The aim my attempt to redesign the Union and State’s budgets utilising precisely the same data as available has been to make the fiscal position of all public entities accessible to any interested citizen.
We do not have to say that every Indian citizen, or even every literate and numerate citizen of our country, has to be able to understand the intricacies of the public budgets of his or her State and the Union. But if information is available such that anyone who understands the finances of his own family or his own business enterprise is also reasonably able to understand the public budget then a standard of maximum feasible transparency would have been defined and met.
I have relied on the international normative model developed by our own countryman, Mr. A. Premchand, who retired from the IMF a few years ago, as described in his outstanding book Effective Government Accounting (IMF 1995), where he showed applications for e.g. the USA, New Zealand and Switzerland. What I have done – or rather did in 1997/1998, with the help of a research assistant and a student – is apply that to all of our States and the Union too.[2] What will be seen by way of differences with the present methodology is that there is essentially an Operating Statement, a Financial Statement and a Cash Flow Statement offered for each State and the Union. The financial position and gross fiscal deficit definition emerge rather neatly from this – while there the rather confusing “Development/Non-development” and “Planning/Non-Planning” distinctions have been done away with.
The exercise points to the foundations of a new and fresh federal framework for our Republic. A central new fact of modern India is that many, perhaps most, of our States have developed what is effectively a bipolar division in their legislatures. Voters have also increasingly started to judge Governments not by the personalities they contain but rather by their performance on the job, and, at election-time, have begun to frequently enough shown one side the door in the hope the other side may do better. In such circumstances, there seems no reason in principle why an entity as large as the average State of modern India today cannot be entrusted to legislate and administer a modern tax-system, based especially on the income-tax, and especially taxing income from all sources including agriculture. In a fresh and modern federalism, an elected State Government would have appropriate economic powers to run its own affairs, and be mainly accountable to the legislature whose confidence it requires, and ultimately to voters below.
From an efficiency standpoint, we should want a framework in which repercussions of political turmoil or bad financial management by a State Government to not spill into other States or flow into the Union Government’s own problems of deficit financing. With free mobility of goods and factors throughout the Union, citizens faced with a poorly performing State Government could seek to vote it out of office, or may of course “vote with their feet” by moving their capital or resources to another part of the country. In short, State Governments will be held responsible by their electorates for their expenditures on public goods and services, while having the main powers of domestic taxation in the economy, especially taxes on income from all sources including agriculture.
At the same time, diverse as India is, we are not 15 or 25 separate republics federated together but rather one country all of whose peoples are united by a common geography and a common experience of history. From an equity and indeed national standpoint, we may also want a system which also firmly established that the National Parliament would have to determine how much each citizen should be taxed for the Union to provide public goods and services for the country as a whole, as well as what transfers ought to be made between the States via the Union in the interests of equity given differences in initial resource-endowments between them.
Here again an American example may be useful. As is well-known, the 50 United States each have their own Constitutions governing most intra-State political matters, yet all being inferior in authority to the 1789 Constitution of the United States as duly amended. In India, an author as early as 1888 recommended popular Constitutions for India’s States on the grounds
“where there are no popular constitutions, the personal character of the ruler becomes a most important factor in the government… evils are inherent in every government where autocracy is not tempered by a free constitution.”[3]
We could ask if a better institutional arrangement may occur by each State of India electing its own Constitutional Convention subject naturally to the supervision of the National Parliament and the obvious provision that all State Constitutions be inferior in authority to the Constitution of the Union of India.[4] These documents would then furnish the major sets of rules to govern intra-State political and fiscal decision-making more efficiently. An additional modern reason can be given from the work of Professor James M. Buchanan, namely, that fiscal constitutionalism, and perhaps only fiscal constitutionalism, allows over-riding to take place of the interests of competing power-groups.[5]
State-level Constitutional Conventions in India would provide an opportunity for a realistic assessment to be made by State-level legislators and citizens of the fiscal positions of their own States. Greater recognition and understanding of the plain facts and the desired relationships between income and expenditures, public benefits and public costs, would likely improve the quality of public decision-making at State-levels, sending public resources from destinations which are socially worthless towards destinations which are socially worthwhile. It bears repeating the average size of a large State of India is 61 million people, and almost all existing political Constitutions around the globe furnish rules for far smaller populations than that.
Thank you for your patience. Jai Hind.
[1] Monetary Federalism at Work: F. A. Hayek more than anyone else taught us that relative prices are signals or guides to economic activity — summarizing in a single statistic information about the resources, constraints, expectations and ambitions of market participants. An exchange-rate between two currencies is also a relative price, conveying information about relative market opinions regarding the issuers of the two currencies. Suppose we had two States of India in the fresh kind of federal framework outlined above, which were identical in all respects except one had a larger deficit and so a larger nominal money supply growth. Would that mean the first currency must depreciate relative to the second? Not necessarily; it is not the size of indebtedness that matters but rather the quality of public investment decisions, to which borrowed money has been put. Thus we come to the crux: Suppose we have two States which are identical in all respects except one: State X is found to have an efficient Government, i.e. one which has made relatively good quality public investment decisions, and State Y is found to have one which has made relatively bad quality public investment decisions. In the present amalgamated model of Indian federal finance, no objective distinction can be made between the two, and efficient State Governments are surreptitiously compelled to end up subsidising inefficient ones. In a differentiated federal framework for India, as the different information about the two State Governments comes to be discovered, the X currency will tend to appreciate as resources move towards it while the Y will tend to depreciate as resources move away from it. In an amalgamated model, efficient State Governments lose incentives to remain efficient, while in a differentiated model, inefficient State Governments will gain an incentive not to be inefficient. The present amalgamated situation is such that inefficient States – and this may include not only the State Government but also the State Legislature and the State electorate itself – receive no fiscal incentive to improve themselves. In a differentiated framework, the same inefficient State would face a tangible, visible loss of reserves or depreciation of its currency relative to other States on account of its inefficiency, and thereby have some incentive to mend its ways. I call the proposal given here a “Reverse Euro” model because Europe appears to be moving from differentiated currencies and money supplies to an amalgamated currency and money supply, while the argument given here for India is in the opposite direction. Professor Milton Friedman of the Hoover Institution at Stanford, has had the kindness, at the age of 88, to send me a brilliant and forceful critique of my Reverse Euro idea for India when I requested his comment. Since he is the founder of the flexible exchange-rate system and he has found it too radical, I have shelved it for the time being.
[2] The assistance of Dola Dasgupta and K. Shanmugam is recorded with gratitude.
[3] Surendranath Roy, A History of the Native States of India, Vol I. Gwalior, Calcutta & London: Thacker 1888.
[4] Large amounts of legal and constitutional precedent have built up on issues of a regional or local nature: whether a State legislature should be unicameral or bicameral, what should be its procedures, what days should be State holidays but need not be national holidays, on tenancy, rent control, school standards, health standards and so on ad infinitum. All this body of explicit and implicit local rules and conventions may be duly collected and placed in State-level Constitutions.
[5] James M. Buchanan, Limits to Liberty, Texas, 1978.
A major expansion and reorganization of the judiciary would have to accompany the sort of basic constitutional reform outlined above. Union and State judiciaries would need to be more clearly demarcated, and rules established for review of State-level decisions by Union courts of law. It is common knowledge the judiciary in India is in a state of organizational overload at the point of collapse and dysfunction. An expansion and reorganization of the judiciary to match new Union-State constitutional relations will likely improve efficiency, and therefore welfare levels of citizens.
Constitution for a Second Indian Republic (April 1991)
April 20, 1991 — drsubrotoroyConstitution for a Second Indian Republic
Author’s Note April 2007: I wrote “A Second Constitution for India” on October 2 1990 while working in an advisory capacity for Rajiv Gandhi, then Leader of the Opposition. But he did not get to see it and I was not able to guide any coherent discussion towards this vital subject. I published it on April 20 1991 in The Statesman in its Saturday supplement. While I am not sure I agree with all of my 1991 “Constitution” today, it may be useful for discussion. One salient feature of this concise 60-article Constitution is having a directly elected PM and Deputy PM with a tough Senate somewhat on the US pattern (though the distinction between Head of Government and Head of State is maintained as in the present system) with a modified British pattern of parliamentary democracy continuing in the States.
I do, however, fully endorse what I wrote on December 30 2002 in a personal letter to the late C. R. Irani, in his capacity as a member of the “Constitutional Review Commission” (to which he responded with very warm agreement). That letter is placed below the text of the proposal and outlines some of what I think is most urgent today in India’s constitional progress.
“Nai Duniya”, Constitution of a Second Republic
by Subroto Roy
First published in The Statesman, April 20 1991
Preamble
We the People of India, in order to establish a more perfect Union of PERPETUAL PEACE; in which the ancient virtues of COURAGE,TRUTHFULNESS and JUSTICE may be better practiced; in which the FREEDOM and WELFARE of all our People may be more easily secured, do adopt, enact and give to ourselves this Constitution, on this the 26th day of January 1995.
FOUNDATION
1. India, that is Bharat or Hindustan, shall be a Union of States and Territories, and a sovereign member of the community of nations.
2. The Union of India shall be a democratic republic, and the Union shall guarantee a democratic and republican form of governance in each of its States and Territories.
3. The Union of India shall protect every State and Territory against foreign aggression and armed rebellion, and shall ensure its governance to be in accordance with provisions of the Union Constitution.
4. A State or Territory may elect to establish its own Constitution, but no provision of the Constitution of any State of Territory shall be valid if it violates any provision of the Union Constitution.
FUNDAMENTAL RIGHTS OF CITIZENS
5. Every person born in the territory of India, or either of whose parents or any of whose grandparents was born in the territory of India, or who is a citizen of India at the commencement of this Constitution shall be a citizen of India by birth. Any person who has been domiciled in India for five years may become a citizen of India by naturalization according to law.
6. Every citizen of India who is not less than 21 years of age shall have the right to vote, and the right to vote shall not be denied or abridged on account of religion, race, sex, descent, caste or place of birth, or by reason of failure to pay any poll tax or any other tax.
7. The Union of India or any of its States or Territories shall not deny to any person within the territory of India equality before the laws or the equal protection of the laws.
8. No person within the territory of India shall be deprived of life, liberty or property save by authority of law, nor shall private property be taken for public use without just compensation.
9. The rights of citizens to be secure in their persons, homes, communications, papers and effects, against unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation, and describing the place to be searched, and the person or things to be seized.
10. No person accused of a criminal offence shall be compelled to be a witness against himself or herself, nor shall any person be arrested without being informed of the grounds of such arrest, nor shall any person in custody be deprived of the right to legal
counsel, nor shall the privilege of the writ of habeas corpus be suspended unless in the case of war or armed rebellion the public safety requires it.
11. No person shall be prosecuted or punished for the same offence more than once, nor shall excessive bail be required or excessive fines imposed, nor shall punishments be cruel or unusual.
12. The Union of India or any of its States or Territories shall not deny to any citizen the right to move freely throughout the territory of India or to reside or settle in any part of the territory of India.
13. The Union of India or any of its States or Territories shall not deny to any citizen the right to freedom of conscience, or the right to freely profess or practice religion, or establish, maintain and manage religious institutions in accordance with law and subject to public safety, order and health.
14. No citizen shall be subject on account of religion, race, caste, sex, descent or place of birth to any disability, liability or restriction with regard to public institutions, public places or places of worship, or use of public facilities, maintained wholly or partly out of public funds or otherwise dedicated to the use of the public.
15. The Union of India or any of its States or Territories shall not deny any citizen equality of opportunity or discriminate on account of religion, race, caste, sex, descent or place of birth.
16. The Union of India or any of its States or Territories shall not deny or abridge the freedom of speech, inquiry or expression of citizens, or the freedom of the press or broadcasting, subject to public safety, order, health, laws of defamation and standards of common morality.
17. The Union of India or any of its States or Territories shall not deny the right of citizens to form associations and unions, to assemble peaceably without arms, or to petition for redress of grievances, subject to public safety, order and health.
18. The Union of India or any of its States or Territories shall not deny to any citizen the right to practice any profession, trade or business, or carry on any occupation or means of livelihood, subject to public safety, order, health and standards of common morality.
19. Trade, commerce and enterprise throughout the territory of India shall be free, and the Union of India or any of its States or Territories shall not make any law to restrict them except in the interests of public safety, order, health, standards of common morality or economic efficiency.
20. No tax shall be levied or collected except by authority of law.
DUTIES OF CITIZENS
21. It shall be the duty of every person within the territory of India to abide by the Constitution of India and show no disrespect to its institutions; to participate in democratic processes and to vote in elections according to law; to make timely payments of taxes, fees and dues according to law; to keep clean and hygienic streets, roads, highways, neighbourhoods, waterways, railways, parks, public buildings and institutions; to protect public property; to protect the natural environment and to treat living creatures without cruelty; to abjure violence and promote harmony among all people; to value and preserve the languages and cultural history of the Indian subcontinent; to renounce practices derogatory to women or children.
EXECUTIVE, LEGISLATIVE AND JUDICIAL POWERS
22. There shall be a President of India in whom shall be vested the executive power of the Union, and who shall be the Supreme Commander of the Armed Forces of the Union. The President shall be elected indirectly by the citizens of India in the manner prescribed in Article 40 of this Constitution.
23. There shall be a Vice-President of India, who shall exercise the duties and functions of the President in the event of the death, resignation, incapacitation, absence or impeachment of the President. The Vice-President shall be elected indirectly by the citizens of India in the manner prescribed in Article 41 of this Constitution.
24. The President of India shall appoint a Prime Minister upon the advice of the citizens of India in a direct election in the manner prescribed in Article 43 of this Constitution. The Prime Minister of India shall be the Chief Executive Officer of the Union, and the President shall, in exercising the executive power of the Union, act at all times upon the advice of the Prime Minister. The Prime Minister shall keep the President of India informed at all times, and shall reconsider advice rendered if the President so requests it.
25. There shall be a Union Parliament which shall consist of the President, the Vice-President, the Prime Minister and two elected Houses.
The Upper House, or Council of the Nation, shall consist of members elected directly by the citizens of India according to States in the manner prescribed in Article 37 of this Constitution. The Lower House, or House of the People, shall consist of members elected indirectly by the citizens of India according to States, in the manner prescribed in Article 35 of this Constitution. The legislative power of the Union of India shall be vested in the Union Parliament.
A Bill, except a Tax Bill, may originate in either House. A Tax Bill, that is to say any Bill for the raising of revenue, shall originate in the Lower House. After a Bill has been passed in one House, it shall be sent to the other House which shall pass, modify or reject it. A Bill passed by both Houses shall be sent to the Prime Minister, upon whose approval it shall be sent to the President for signature upon which it shall become law. A Bill passed by both Houses which does not receive the approval of the Prime Minister shall be returned to the House where it shall have originated. If, after reconsideration, both Houses pass the Bill, each House by two thirds of its members, then the Bill shall be sent to the Prime Minister who shall advise the President that it be signed and become law.
26. There shall be a Supreme Court of India, consisting of a Chief Justice and Associate Justices appointed by the President upon the nomination of the Prime Minister with the advice and consent of the Upper House of the Union Parliament. The judicial power of the Union of India shall be vested in the Supreme Court and such courts inferior to it that it may establish or authorize. The Supreme Court of India shall have its seat in the capital of the Union and also in every State of the Union.
27. Each State shall have a Governor appointed by the President of India upon the nomination of the Prime Minister with the advice and consent of the Upper House of the Union Parliament. The Governor shall be vested with the executive power of the State, and shall be the supreme commander of all police forces within the State.
28. Each State shall have a Parliament, which shall consist of the Governor of the State and one or two chambers, elected by the citizens of the State in accordance with the Constitution or laws of the State. All legislative power of the State shall be vested in the State Parliament or such duly elected bodies of local government which the State Parliament shall establish by law.
29. The Governor of a State shall appoint a Chief Minister who shall be a member of the State Parliament enjoying the confidence of that Parliament. The Governor shall act upon the advice of the Chief Minister in exercising the executive powers of the State except in conditions of Emergency as stated in Article 56 of this Constitution. In the event no member of the State Parliament shall have its confidence, or in conditions of Emergency as stated in Article 56, the Governor of the State shall exercise the executive powers of the State in consultation with the State Parliament, until such a time as either such confidence comes to obtain, or new elections to the State Parliament take place within a maximum time of one year, or conditions of Emergency come to an end.
30. Each State Parliament shall elect its representatives to the Lower House of the Union Parliament in accordance with the provisions of Articles 34 and 35 of this Constitution.
31. Each State shall have a Supreme Court consisting of a Chief Judge and Associate Judges appointed by the Governor as the Constitution or laws of the State may establish. The judicial power of the State shall be vested in the Supreme Court of the State and such courts inferior to it as the Constitution or laws of the State may establish.
ELECTIONS AND TERMS OF OFFICE
32. All elections in the Union of India and its States and Territories shall be held on the 2nd day of October in any year, and this day shall be known as Election Day or Gandhi Jayanti and shall be a bank holiday. There shall be no more than 14 other bank holidays in the year, and no more than 2 in any month of the year.
33. The power required for the conduct of all elections to the Union Parliament and all State Parliaments shall be vested in a Chief Election Commissioner, who shall be appointed by the President upon the nomination of the Chief Justice of India with the advice and consent of the Prime Minister and the Upper House of the Union Parliament. The Chief Election Commissioner shall be assisted by four Associate Commissioners, one each for Northern, Central, Southern and Eastern India, and State Election Commissioners, one for each State.
34. Election to any State Parliament shall be for a maximum term of 4 years. A State Parliament shall consist of no more than 1000 members, chosen by direct election from territorial constituencies of the State, each member representing no more than 100,000 citizens so far as is possible.
35. Elections to the Lower House of the Union Parliament shall be for a term of 2 years, and the House shall stand dissolved every 2 years. The Lower House shall be elected indirectly by the citizens of the States, the delegations from a State being elected by members of the State Parliament. Each member of the Lower House shall represent indirectly 1 million citizens of the State so far as is possible. The Lower House of the Union Parliament shall have no more than 1000 members, each member having one vote.
36. The Lower House shall choose its own Speaker; determine the rules of its own proceedings; punish its members including by expulsion with the approval of two thirds of its members; keep a record of its proceedings and publish the same regularly except such parts as may in the judgement of the House require secrecy in the national interest. During their attendance in Parliament or travel to and from Parliament, members shall be privileged from arrest except for treason, felony or breach of peace. Nor shall any speech made in the Lower House be questioned in any other place. No member of the Lower House shall hold any other office of profit or honour of the Union of India or any State or Territory of India.
37. The Upper House of the Union Parliament shall have no more than 100 members, of whom 90 shall be chosen by direct election from territorial constituencies of the Union and shall have one vote each. Elections to the Upper House shall be for a term of 6 years, with one third of the elected members retiring every 2 years. No person shall be elected to the Upper House for more than three terms successively. For purposes of elections to the Upper House, the Union of India shall be divided into territorial constituencies each of approximately 10 million citizens, so long as there are no more than 22 constituencies from the States of Southern India (presently consisting of Tamil Nadu, Kerala, Andhra Pradesh, Karnataka and Goa); 22 constituencies from the States of Eastern India (presently consisting of Arunachal Pradesh, Tripura, Mizoram, Manipur, Meghalaya, Nagaland, Assam, Sikkim, West Bengal and Bihar); 22 constituencies from the States of Northern India (presently consisting of Uttar Pradesh, Himachal Pradesh, Jammu and Kashmir,Rajasthan, Punjab and Haryana); and 22 constituencies from the States of Central India (presently consisting of Gujarat, Maharashtra, Madhya Pradesh and Orissa). There shall be one constituency in the Union Territory of Delhi and one constituency in all other UnionTerritories together.
38. The President of India may appoint up to 10 members of the Upper House each of whom shall have no vote and shall hold one term of office of 2 years. The President shall make such appointments in view of considerations such as the representation of the arts, sciences, sports, literature or social work, as also the representation of any community, caste, religion or other group which, in the opinion of the President, deserves a voice in the Upper House in the national interest.
39. The Vice President of India shall chair the Upper House but shall have no vote unless they are equally divided. The Upper House shall choose its own Chairman pro tempore in the absence of the Vice President; determine the rules of its own proceedings; punish its members including by expulsion with the concurrence of two thirds of its members; keep a record of its proceedings and publish the same except as may in the judgement of the House require secrecy in the national interest. During their attendance in Parliament or their travel to and from Parliament, members shall be privileged from arrest except for treason, felony or breach of peace. Nor shall any speech made in the Upper House be questioned in any other place. No member of the Upper House shall hold any other office of profit or honour of the Union of India or any State or Territory of India.
40. The President of India shall be elected for a term of 5 years by the Union Parliament, and shall be a citizen of India not less than 35 years of age. If there are more than two nominations, there shall be a primary election in the Upper House by secret vote, and the names of those receiving the highest and second highest number of votes shall be sent to the Lower House which shall elect between them by secret ballot. The President of India shall not hold any other office of profit or honour.
41. The Vice-President of India shall be elected for a term of 5 years by the Union Parliament, and shall be a citizen of India not less than 35 years of age. If there are more than two nominations, there shall be a primary election in the Lower House by secret vote, and the names of those receiving the highest and second highest number of votes shall be sent to the Upper House which shall elect between them by secret ballot. The Vice-President of India shall not hold any other office of profit or honour.
42. The terms of the President and Vice-President shall not be concurrent.
43. The Prime Minister of India shall be appointed by the President upon the advice of the citizens of India in a direct election, and shall hold office for four years. The Prime Minister shall be a citizen of India not less than 35 years of age, and no person shall hold the office of Prime Minister for two terms successively. Candidates shall register 12 months prior to the date of the election with the Chief Election Commissioner. The Chief Election Commissioner shall report to the President the results of the election to the office of the Prime Minister, and the President shall appoint the candidate receiving the highest number of votes.
44. Upon the nomination of the Prime Minister, the President shall appoint a Deputy Prime Minister and a Council of Ministers, who shall hold office at the pleasure of the President and who shall assist the Prime Minister in the discharge of the duties of the office. The Deputy Prime Minister shall exercise the duties and functions of the Prime Minister in the event of the death, resignation, incapacitation, absence or impeachment of the Prime Minister.
45. The Prime Minister, the Deputy Prime Minister and the Council of Ministers shall from time to time answer the questions of members of the Union Parliament as requested by the latter, and the Prime Minister shall no less than once every year address the Union Parliament on the State of the Republic.
46. Neither the Prime Minister nor the Deputy Prime Minister nor any member of the Council of Ministers shall hold any other office of profit or honour.
DUTIES OF THE UNION AND THE STATES
47. The duties of the Union of India shall include
— defence of the Republic from foreign aggression, armed rebellion and crime
— foreign relations and foreign trade
— management of currency and exchange-rate
— management of the public debt of the Union
— inter-State highways, waterways and dams
— regulation of inter-State railways
— regulation of harbours and airports
— regulation of civil aviation
— regulation of communications and broadcasting
— protection of national monuments and archives
— development of space and atomic research, research
universities and institutes of national importance
— planning of metropolitan areas
— environmental protection, national forests, parks and wildlife
— regulation of banking other than rural banking
— regulation of stock exchanges and futures markets
— census, voter registration, and social security
48. The Union of India shall in addition
— promote and encourage State and local democracy
— reduce disparities of income and wealth consistent with economic efficiency
— reduce inequitable transfers of debt to future generations by ensuring balance in the Union Budget over a quincennial period
— promote harmony among the nations of the world, abjure violencein the settlement of international conflicts, foster respect for international law, and maintain just and honourable relations with other nations.
49. The original jurisdiction of the Supreme Court of India shall extend to substantive questions of law and constitutional interpretation; fundamental rights of citizens, and relations between the citizen and the Union and its States and Territories; international law; inter-State relations and commerce; relations between the Union and any State.
50. There shall be a Reserve Bank of India. Upon the nomination of the Prime Minister and with the advice and consent of the Upper House of the Union Parliament, the President of India shall appoint a Governor and Deputy Governors of the Reserve Bank of India. It shall be the duty of the Reserve Bank of India to maintain a sound currency, that is, a stable value of the Rupee for transactions within the Union and outside it. The Reserve Bank of India shall be further responsible for the charter and regulation of banks, and the efficient working of financial and credit markets.
51. Upon the nomination of the Prime Minister and with the advice and consent of the Upper House of the Union Parliament, the President of India shall appoint a Comptroller and Auditor General of India, who shall be responsible for the issue of public moneys and the audit of the accounts of the Union of India.
52. There shall be a Public Services Commission of India. Upon the nomination of the Prime Minister and with the advice and consent of the Upper House of the Union Parliament, the President of India shall appoint a Secretary-General of the Public Services Commission, who shall be responsible for all matters relating to the civil services of India.
53. The duties of each State of India shall include
— civil order and police forces in the State
— State highways, waterways and dams
— regulation of State railways
— land registration and tenurial reform
— agricultural pricing, stocks and extension
— animal husbandry
— colleges and non-research universities
— finance of schools and setting of school standards
— regulation of electricity
— regulation of insurance
— regulation of rural banking
— management of the public debt of the State
— vital statistics
— public health
— environmental protection
— State parks and forests
A State of India shall in addition
— extend processes of democracy by promoting ad encouraging constitutional local government
— reduce disparities of income and wealth consistent with requirements of economic efficiency
— reduce inequitable transfers of debt to future generations by ensuring balance in the State Budget over a quincennial period
— endeavour to secure a common civil code for citizens of the State
— promote harmony among the peoples of India.
The duties of local governments established in a State by law shall include provision of primary and secondary education or regulation thereof; provision of and maintenance of streets, roads and lighting or regulation thereof; provision of fresh water and sewage disposal or regulation thereof.
54. The original jurisdiction of the Supreme Court of a State shall extend to substantive questions of law and interpretation of the State Constitution; civil and criminal law within the State; marriage, divorce, custody and guardianship of minors; fundamental rights of citizens and relations between citizens and the State.
WAR AND EMERGENCY
55. The President of India, upon the advice of the Prime Minister and with the consent of a majority of each of the Union Parliament, shall have authority to declare and make war on behalf of the Union of India and its State and Territories, and to raise armed forces and resources for this purpose. A declaration of war may include the suspension of fundamental rights so long as that no such suspension shall continue for longer than 30 days without the consent of a majority of each House of the Union Parliament.
56. The President of India, upon the advice of the Prime Minister and with the consent of a two thirds majority of the Upper House of the Union Parliament, shall have authority to declare the whole of India or any part of its territory to face an imminent danger from foreign aggression, armed rebellion, disturbance or natural calamity, and proclaim an Emergency accordingly. Proclamation of Emergency may include declaration of Governor’s Rule in a State according to Article 29 and suspension of fundamental rights, so long as that no such suspension shall continue for longer than 30 days without the consent of a two thirds majority of the Upper House, and no elections to any State shall be delayed for longer than one year.
AMENDMENTS AND MISCELLANY
57. Within the groupings of States given in Article 37, new States may be formed or State boundaries altered by authority of the President of India, upon the advice of the Prime Minister and with the consent of two thirds of the members of each House of the Union Parliament and the consent of a majority of each State Parliament affected thereby.
58. The provisions of this Constitution may be amended by the authority of the President of India with the consent of a four fifths majority of each House of the Union Parliament.
59. Impeachment from office of the President, Vice-President, Prime Minister or Deputy Prime Minister of India shall be initiated by a four fifths majority of each House of the Union Parliament. The Speaker of the Lower House shall inform the Chief Justice of India of such a majority in each House, whereupon the Chief Justice shall constitute a Special Bench of the Supreme Court of India which shall act as the Court of Impeachment.
60. Written and printed communications between the Union of India and foreign nations; between the Union of India and the States of India, and between the States of India and the Union of India; and between the Union of India and citizens of India shall be in the Hindustani (Hindi) and English languages. Any language or dialect of India may be spoken in the Union Parliament or any State Parliament with the prior permission of the Chairman or Speaker of the chamber.”
December 30 2002 letter to Mr C. R. Irani, Constitutional Review Commission:
“Dear Mr. Irani, Other than yourself and Mr. Sorabji, most other members of the Constitutional Review panel seem to be retired judges or bureaucrats. How many are under 50 years of age? Or have demonstrable knowledge of e.g. modern economics or constitutional political theory? Such a panel may be worse than nothing, since after its fossilized reports are in, it will take another 50 years before genuine constitutional reform can be addressed. Here are some examples:1. There is no such thing as a “Central” Government of India. There used to be one taking orders from London, giving orders to “Provinces” on the periphery. Free India has been a Union of States. Each Indian is supposed to be and to feel as being a citizen both of the Union and of his/her State, owing loyalty and taxes at both levels. Yet the colonial anachronism continues in all our thought with devastating results, so, e.g. the States remain mendicants before an all-powerful “Centre” which remains a mendicant before the new “London”. Ergo, your panel should be talking about Union-State relations, and the proper nature of federalism in modern India. But is any member a recognised expert on fiscal finance? For a start, all our State and Union Government accounting would need to be sorted out properly before anyone can comprehend what is going on between them. 2. The Governor of the RBI must be made a Constitutional post, on par with e.g. the Auditor-General. Reason: Monetary policy needs to be made independent of the fiscal compulsions of the Government of the day, which was the intended function of the RBI at its inception in 1935. Instead it has become a large Department of the Finance Ministry. The RBI’s sole job should be to establish and maintain the soundness of the currency, both domestically and internationally. I wonder if such an idea will arise from the panel appointed to look into it. 3. Our 16 large States have an average population of 61 million people. Each needs to be allowed to have its own Constitution if it so wishes on the American model, where the Union Constitution presides over a large number of State Constitutions. Indeed the resolution of the J&K problem and indeed our problems with Pakistan may rest in a broad, controlled devolution of fiscal and monetary powers to all States, with the Union’s mandate becoming clearer and more focussed and feasible and realistic as a result. Will your panel talk about this? (Delhi does not forsake its own power, as even Old Man Tughlak found many years ago.) I could go on. Eleven years ago, I wrote in Foundations of India’s Political Economy “The 1950 Constitution was a marvellous document at the time. Since then it has become too bulky, too full of exceptions and qualifications, and far from comprehensible to the ordinary Indian. A neater, cleaner and shorter document may be sought which keeps the best of the 1950 Constitution and integrates it with the experience of forty years as well as the best of foreign constitutions, with the aim of promoting a system with less uncertainty and more stability.” The Statesman on April 20 1991 published my proposed Constitution for a Second Indian Republic, now … I enclose a copy for your interest. In Keshavananda Bharati the Supreme Court meant that liberal, republican, representative democracy in a free society with separation of powers must not be subverted by any sort of constitutional gimmickry. My proposals enhance such political values. I hope your panel may do the same.”
Independent Indian: Work & Life of Professor Subroto Roy 