JUDICIARY HAS RIGHT TARGET BUT WRONG AIM

     [ This article was published, with some slight editing, in the New Indian Express on the Op-ed page on 27.02.2017 ]       

  The Supreme Court’s well intentioned but unimplementable order prohibiting the use of religion, caste or community in electioneering has come a cropper even before the ink had dried on it. This order belongs to the same genre as previous judicial pronouncements that confused idealism with stark reality- the Allahabad High Court ban on all public meetings based on caste or community, the Rajasthan High Court ban on “ Santhara” ( a Jain ritual designed to attain Samadhi), the recent attempt to ban Jallikattu, to name just a few. All of them came to nought under public pressure, primarily because they ignored the social realities of a fractured, deeply ritualistic( not necessarily religious) society suspicious of authority. The legal should not be confused with the legitimate, or the ideal with the attainable. And so it has been with the latest judicial dictat.

   It was like the idle wind which ALL political parties heeded not, especially in UP. The SP and Congress left no stone unturned to frighten the Muslims of a doomsday scenario if the BJP came to power. Ms. Mayawati of the BSP continued her genetic engineering by splicing Muslim and Dalit DNA strands into a potentially winning mutation. The BJP, sadly the ruling party at the center, was the worst of the lot: promising to impose curfew in all Muslim areas and shutting all slaughter houses on the day they formed the govt., raking up the Ram Mandir issue once again, likening the ( non-existent) exodus of Hindus from Kairana in UP to the forced exile of Kashmiri pandits from Jammu and Kashmir. Even the Prime Minister sought to whip up communal passions with his unfortunate comments about grave-yards versus cremation grounds. There is a feeling of inevitability and a deja- vu about all this. The Supreme Court order was a non-starter from day one: in a country where political parties are founded on caste, regional, community and religious beliefs and identities  ( the SAD, BSP, Shiv Sena, BJP,RLD, DMK, AIDMK, AIMIM) it is not realistic to expect them to eschew their identities during elections. I would even go so far as to say that it is just and proper for them to project these identities. Politics in a democracy is all about the competing claims of different interest groups, especially of those groups which are in a minority or are socially or economically depressed. If the majoritarian groupings, which generally control all the levers of power and of the economy, will not give them space then the former have no option but to organise themselves into voting blocs and project their own agenda during elections. The incitement of hatred or communal/ casteist contempt is different, and the normal laws of the country are adequate to take care of that, provided the machinery of the state functions efficiently and impartially. That it rarely does so, however, is no reason to stifle the electoral aspirations of the disadvantaged or the distinct which, with all due respect, is what I think the SC order unfortunately  seeks to do.

   The judiciary has taken aim at the wrong target in its commendable, and consistent, effort to nudge us towards a truly secular state. It should have targeted the government ( of both the states and the center) which are mandated by the Constitution to function in a completely secular manner, but never do so. It is a fact that the religious beliefs of the individuals( and parties) which comprise the govt. at any point of time colour the policies of those govts, and that public resources are spent on furthering those beliefs. Public lands are allotted to religious institutions, financial grants are given to such bodies, stipends are paid to preachers of whichever religion happens to suit the political purpose of the party or individual in power. Religious rituals are performed at inauguration of public projects. Presidents, Prime Ministers and other high govt. functionaries visit all kinds of temples, mosques and churches for darshans in pursuit of the salvation of their individual souls. AND ALL THIS IS DONE AT THE EXPENSE OF THE PUBLIC EXCHEQUER, in a country where the Constitution enjoins the government to be secular ! The latest instance of this deplorable and unconstitutional practice is the decision of the Telengana Chief Minister to donate Rupees 5 crores to the Tirumala temple. Remember, he had performed a “yagya” last year which had cost the  state Rupees 7.50 crores.

   The question I would like the Supreme Court to pose to our political leaders is this: why should the state spend humongous amounts of tax payers’ moneys on religious rituals and donations when the Constitution enjoins it to function in a secular manner ? Why should any government functionary visit religious places at the cost of the public exchequer to cater to his personal religiosity ? How can a state claim to be secular when it uses public funds to indulge in any kind of religious activity, public or personal ? The former should not be permitted at all while the latter should be done at the individual’s own cost and time.

   This is not to deny that a government official is  entitled to profess and practice his religion- he certainly is, but not at the cost of the state. We must make a distinction between the country and the state: India is a country steeped in religion, but the state is supposed to be secular. We seem to have lost sight of this subtle distinction: it is high time the Supreme Court reminded our governments of this constitutional imperative.

JALIKATTU AND SOCIAL REFORM: LESSONS FOR THE UNIFORM CIVIL CODE

[ This article was published in the New Indian Express on 24.1.2017 under the title: LESSONS FOR THE UNIFORM SOCIAL CODE]

    Leap-frogging is a good game for children but fraught with danger when applied to cultural or social reform. This is the primary lesson emerging from the Jallikattu protests playing out in Tamil Nadu. Social reforms- changing age old habits and beliefs- cannot be enforced by governmental or judicial dictats overnight: they have to be nurtured through patient persuasion, enlightened leadership and personal example. In a country where politicians prefer to be led by the nose rather than themselves leading by personal conduct and example, and where the judiciary is increasingly being viewed as residing in an ivory tower, there can be no quick fixes. In the age of marketing even progressive and enlightened ideas have to be sold to the people. Jallikattu is the latest example of this, but there is an even bigger precipice the executive and judiciary are rushing towards- the Uniform Civil Code.

   The Indian state appears to be in a similar unseemly haste in trying to push through a UCC. Granted, it is an ideal we should be working towards, but it would be a good idea to get the 200 million plus Muslims , Christians and other minorities to also share this view before we ram it down their “ regressive” throats. All social, religious and cultural beliefs are legal fictions- imagined truths- and what is held to be        “ correct” in one age may have been unacceptable at another time. Gender equality did not exist a hundred years ago, racial superiority of the “ whites” was a biological truism till the 19^th century, slavery was the economic bedrock of the imperial age. These are widely accepted as reprehensible beliefs today, but it should not be forgotten that it took hundreds of years and many social movements to change these mind sets.  Laws FOLLOWED these efforts to give them permanent legitimacy, they did not precede them. The mistake we appear to be making with UCC is precisely this-we are rushing through with coercive legislation without preparing the ground to receive these seeds of change. This is a recipe for disaster: Jallikattu is only a curtain-raiser.

   There is no constitutional compulsion for either the govt. or the judiciary to be in such a hurry: the Constitution does not mandate a UCC, it is a recommendation in the Directive Principles. The latter are not justiciable as per Article 37. Furthermore, there is a legal quandary here: whereas Articles 14 to 24 of the Constitution prescribe an individual’s rights to freedom and equality ( the purported justification for a UCC), Articles 25-30 protect the religious and cultural freedom of minorities. This apparent friction and clash between the two sets of Articles may or may not give a handle to those who oppose the reform, but it should at least give the govt enough reason to pause and try to build a consensus before proceeding further.

   The political context in India today is not conducive for such a radical reform: the ruling party, with its overt and aggressive Hindu ideology and agenda, is not perceived to be an honest broker. The Muslim community increasingly perceives itself to be under siege, and not only because of the intemperate remarks and threats from adherents of the BJP. The actions of the govt. itself have given enough reason for apprehending that this community is being targeted: the Enemy Property Act Amendment Bill 2016 will confiscate the properties of thousands of Muslims who chose to stay on in India post 1947 and 1968 ( retrospectively) and also deny them recourse to the courts, the govt. has announced that it will accept only non-Muslim immigrants from neighbouring countries, a virtual media and legal war has been launched against the practice of Triple Talaq, the Law Commission has circulated a questionnaire on Triple Talaq whose bias is self evident, the hard line approach to the Kashmiris even after months of privation and a hundred deaths engenders suspicions in the minds of the Muslims about the true objectives of the govt.

   The ideal of uniform civil rights can be achieved without confrontation if we exercise patience and an understanding of the minority mind set. This is a psyche which is constantly apprehensive about being dominated by the majority and thus asserts its identity as a defensive manoeuvre, and in this effort religious and cultural symbolism plays a large part. Delegitimising them by laws only strengthens their resistance to any change. Instead, if left to the normal legal and social processes the desired change will come about organically, slowly but surely, without any communal overtones. And this is already happening. Divorced muslim women have been quietly granted maintenance ( something their clerics had been opposing)-a Delhi High court judgement of 2011 and a Supreme Court order of 2015 have now made this the law. Similarly, triple talaq has also been struck down by the courts: the SC in the Shamim Ara case of 2002 has declared it illegal and invalid. As recently as on the 11^th of January 2017 the Madras High Court declared the issue of triple talaq certificates by a Kazi “ has no legal authority”. On the 19^th of this month itself the Supreme Court has ruled that the church does not have the jurisdiction to adjudicate matrimonial disputes between Christian couples and that the Indian Divorce Act 1989 overrides Christian personal law. The Parsis- one of our most insular and protective minority communities- are also changing, in the face of opposition from their own religious leaders. They are gradually giving up one of their most hallowed traditions- the practice of leaving the bodies of their dead in Dakhmas to be consumed by vultures. Parsis in Mumbai are now opting for cremation, and this January 8^th Zoroastrians in Navsari in Gujarat( the birthplace of Dadabhai Naoroji and the hometown of the Tatas) have voted to allow burials. The near extinction of vultures in India have forced this change, not some aggressive legislation. Even the Catholic church, under intense public pressure, has accepted homosexuality. There have been no agitations against these judgements. The point I’m making is that our political parties should stop grandstanding on such sensitive matters, and allow the changes to come about organically and gradually,and not inflict  another “ surgical strike.” Education, exposure, social mobility, improved incomes and public opinion will do a better job of bringing about these changes. If the Jallikattu furore teaches us this at least, it will have served the nation well .

   

POLITICAL FUNDING : SECOND THOUGHTS AND DOUBLE STANDARDS

[ This piece was published in the New Indian Express on 7.02.2017   under the title THE JOKE OVER POLITICAL FUNDING ]

   The chink in the BJP’s self-righteous armour widened into a loophole on the first of this month with Mr. Jaitley’s anaemic declaration about reduction in the cash donation cap to political parties to Rs. 2000.00. This is rubbing salt into the wounds of the tens of millions who have spent the better part of their lives in ATM and Bank queues since November. We had expected better from a Prime Minister who as recently as on 31^st December promised reforms in election funding.. Most columnists have commended this step, but when one is scraping the bottom of a barrel one is grateful for any morsel.

   The BJP’s double standards are self evident now: the destitute MNREGA labourer is expected to get his wages only through a banking channel but political parties can continue to amass their lucre in cash. Every Tom, Dick and Hari is expected to go digital but not our political parties.The reduction of the cap from 20000 to 2000 is a sick joke which only Chartered Accountants will appreciate- they just have to find ten times the names they had to earlier: with a population of 1300 millions that shouldn’t be too difficult.

   The magnitude of this continuing improbity cannot be overstated if the figures put out by the ADR ( Association of Democratic Rights) are anything to go by. The total income of the six national parties between 2004-5 and 2014-15 was Rs. 9278 crores; of this Rs. 6612 crores or 71% came from unknown sources ( contributions below 20000). The position is only marginally better for the 51 regional parties: of Rs. 2089 crores received by them in the same period, Rs. 1220 crores or 58 % was from such sources. ( And this is only the DECLARED income). This level of unaccounted wealth not only defiles the electoral process, it also corrupts the administrative systems, and provides a convenient route for money laundering( as the demonetisation “ stings” by some channels have exposed). Were these not the precise evils that Mr. Modi had promised to slay with his demonetisation move? Then why stop half way ? Why punish every section of society except the politician ?

   The most common and pathetic excuse held out is that the govt. needs to build a consensus and move gradually. Both are fake. There can never be a consensus among political parties on banning cash donations: no turkey will ever vote for Thanksgiving, after all. As for gradual steps: why this compassion  for their own tribe when no such consideration was shown for the common citizen on 8/11 ?

   The additional announcement of issue of Electoral Bonds and a National Election Fund are smokescreens intended to blind the public and ensure a quick getaway from any criticism. The Electoral bonds shall only be a conduit for clandestine corporate funding as the details of the donor shall be kept confidential by the banks: their names will not be made available to the Election Commission, nor will they be mentioned in the accounts submitted by the political party to the Income Tax Deptt. These moneys may be “ white” but will make the whole transaction totally opaque. The public will never know who contributed the money, hence there shall be no transparency. Genuine transparency demands that the public( and not just the govt.) should be able to access the information. The talk about a proposed National Election Fund and State funding of elections is just that: idle talk. The first is a non-starter and the second is neither affordable nor feasible, as I had pointed out in an earlier article( THE STATE SHOULD NOT FUND ELECTIONS, The New Indian Express,1.12.2016).

   In his budget speech Mr. Jaitley revealed shocking figures about just how narrow our direct tax base is and stressed on the need to widen it. But he, like all his predecessors, shied away from an obvious option available to him: tax on agricultural income. This has been a holy cow since independence and has now become the elephant in the room. There is no logical reason why the well off in the agriculture segment should not be asked to pay income tax: in fact the govt’s  Chief Economic Advisor had suggested in last year’s Economic Survey that this should be done. As many as 2746 individuals/assesees have declared agricultural income of more than Rs. One crore but are not required to pay any tax on it, whereas a non-agriculturist who earns Rs. 5 lakhs has to pay up! Mr. Jaitley even helpfully pointed out that as many as 1.25 cars have been sold in the last five years: surely he has seen the thousands of SUVs that dot the rural landscape? Out of a total 250 million households in the country, about 150 million are agricultural households: should the govt. not be bringing the richer among the latter group into the tax net, instead of squeezing only the remaining 100 million, year after year ? Furthermore, surely he is aware that “ agriculture income” is a convenient and safe medium for politicians, bureaucrats and others to park their illegal wealth? It is not a coincidence that practically ALL politicians possess some agricultural land or the other !

   The government’s double standards are on full display, and  Mr. Modi’s much touted boast of eradicating black money is under serious question. If he is unwilling, or unable, to tackle the political parties or the rich landowners, then he should descend from the moral high ground he has tried to make his own for the last three years. But wait! He may be smarter than any of us give him credit for; maybe appearances are more real than reality. I am reminded of this quote from George Burns about the formula for political success: “ YOU’VE GOT TO BE HONEST—IF YOU CAN FAKE THAT, YOU’VE GOT IT MADE !”