DELHI HIGH COURT DRAFTS A MAGNA CARTA FOR THE DISABLED.

    According to the 2011 census India has 26.80 million disabled people, which constitutes 2.21% of its population. This is a staggering number, but both society and the government have done little to take care of their special needs and to smoothen their integration into normal life. One of the areas from which they have been completely excluded is insurance for health cover; it may surprise most readers to learn that insurance companies FLATLY REFUSE to provide health cover to any disabled person, no matter how healthy or medically fit he or she may otherwise be. And this is in spite of the fact that there are laws and international Conventions which explicitly stipulate that they cannot do so, and that there should be no discrimination between the normally abled and disabled person. Not surprisingly, the insurers have been getting away with this malpractice because the Regulators appointed by govt. to protect the interests of the disabled- the Chief Commissioner for Disabilities in the Govt. of India, and the IRDAI ( Insurance Regulatory and Development Authority of India)- have failed to do their job and function more like facilitators for Big Capital than arbiters of social justice for one of the most vulnerable sections of society. They, like our society at large, just cannot be bothered.

   Which is why the media too has largely ignored a historic and path-breaking judgment just delivered by the Delhi High Court on the 13th December, 2022 that has the potential to exponentially enhance the quality of life of the disabled at one stroke. This order will be a game changer for these 26.80 million people living in the shadows of neglect. But first a little background to this case.

   The petitioner in this case (before Hon' Justice Pratibha Singh of the Delhi High Court) is Saurabh, an investment analyst and consultant. In 2011, at the young age of 26 years, he met with an accident, suffered severe spinal injuries, was diagnosed as a quadriplegic with 80% permanent locomotor and sensory damage, and is now confined to a wheelchair. Though permanently disabled, he has no medical conditions other than those associated with this type of disability, has never been hospitalised for any sickness, and works from home as a very successful financial analyst.

   After his recovery, which took almost three years, Saurabh and his father made the rounds of at least half a dozen insurance providers (both public and private) seeking a health cover: ALL of them flatly refused to even consider the case the moment they learnt that he was a disabled person- and they had the cheek to even give that in writing! No medical tests were conducted to determine his health status.  Refusing to accept these arbitrary rejections, Saurabh lodged a complaint with the Chief Commissioner of Disabilities who, despite the fact that he draws the salary of a Secretary to Govt., chose to behave like a postman- he simply forwarded the complaint to the IRDAI and notched up another "disposed of" case.

   The IRDAI was even more brazen about its insensitivity and crass cronyism. True to sarkari form, it just forwarded Saurabh's complaint to the insurers. The insurance companies wrote back stating that the refusal was in line with their policies, and the IRDAI simply forwarded back this "explanation" to Saurabh, adding for good measure that the insurers had to consider the commercial aspect when issuing policies, thus giving its stamp of approval to the illegal and unethical actions of the companies. This knock-off Regulator even ignored the fact that the insurance companies were running foul of its own regulations, notified in 2016 and 2020 about providing health cover to the disabled!

   It has taken the Delhi High Court to expose this nexus and to re-educate both these agencies. For Saurabh, who appears to have emerged stronger after his ordeal, refused to be another statistic in govt. files and filed a writ in the High Court in 2019 against the refusal of the companies and the unhelpful attitude of the government agencies. The case was argued by Mr. Siddharth Nath of NKR Law Offices, Nizamuddin, New Delhi. And, in a comprehensive order that leaves little scope for any appeal, the Hon' Judge has practically written out a Magna Carta for the rights of the disabled to obtain health care. She has, inter-alia, ruled that:

* The right to life includes the right to health, and healthcare is an integral part of the same. Persons with disabilities are entitled to health insurance coverage under the various laws such as the PWD (Rights of Persons with Disabilities Act) and the UN Convention on Disabilities to which India is a signatory.

* There can be no discrimination against PWDs in the matter of health insurance, regardless of their income and social status. The insurance providers are required to design products for them so as to enable them to obtain health coverage. In a categorical rejection of the stand taken by the insurance companies the Court has observed that  "Disability per se cannot be the basis of discrimination in the matter of insurance."

*  In laying down the law for the insurance providers the Court has reminded them of their social responsibility : " Insurance companies serve an important function and they cannot be permitted to take decisions based solely on their own whims or on the principles of profit maximisation. This reasoning becomes even more relevant when their grossly illegal actions are seen in the context of the Petitioner, a disabled person and one who may not meet their expectation of a highly profitable policy holder but one who in fact needs their services the most."

* The Court came down heavily on not only the two insurance companies who were parties to the suit ( Max Bupa and Oriental Insurance Co.), but also on the two government regulators, particularly the IRDAI. It noted that even though IRDAI's regulations of 2016 and 2020 required insurance companies to evolve health insurance policies for PWDs and those suffering from AIDS and mental illness, in practice it has taken no steps to ensure that they are implemented, as the case of Saurabh shows. The Hon' Judge even commented that the IRDAI should not need to be taught that its circular and other policies are duly given effect to by the insurance companies. In a damning indictment of the Regulator, she observed that " thus, the IRDAI turned a blind eye to the problem and defended the insurance companies."

* The Court also took umbrage at the IRDAI describing persons with disabilities as "sub-standard lives" in its regulations, said that this is not acceptable terminology, and directed the Authority to modify it. 

* In view of its findings, the Court has  asked the two respondent companies to reconsider Saurabh's application and submit a proposal by the next date of hearing. Even more significantly, it has directed the IRDAI to convene a meeting of all insurance providers and to design a suitable product for PWDs and the other disadvantaged categories, and to introduce them at the earliest.

* All the parties are required to submit a status report on these directions by the next date of hearing i.e. 17th March 2023.

  This order of the Delhi High Court is a game changer for 2% of India's population- it goes beyond the relief sought by Saurabh, beyond the two companies named as respondents, beyond the two govt. Regulators found wanting in this case. It will open the doors for tens of millions to now avail of health cover, it will compel ALL insurance companies to offer health cover to all PWDs, it puts other govt. agencies on notice that their casual and insensitive attitude to the vulnerable will not be tolerated by the courts. It is a refreshing change in an era of general judicial apathy to the rights of the people. Which is why I see this order as  a latter day Magna Carta for the disabled in India. 

 Embedded in this case is an irony which is both poignant and positive- though Saurabh himself cannot walk, he has taken a giant step towards betterment of the quality of life of persons like him. 

  And by the way, did I mention that Saurabh is my younger son ?

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THE GREAT UNDERWEAR EXODUS.

    So now it's official: in one of those rare moments when Parliament functions the govt. revealed that 1,83, 473 Indians have given up their citizenship so far this year and emigrated to countries which do not aspire to become Vishwagurus. The number since 2014 is 1200,000. These are all HNIs (High Networth Individuals) who have dished out about a million dollars each to obtain the citizenship of the countries they have gone to. They would obviously leave nothing behind for either the PM Cares Fund or the Electoral Bonds, so that's quite a few billion dollars of wealth that we have permanently lost.

   Any sane govt. would have raised red flags about this near Biblical exodus and sought to know the reasons for it. But not our double engine- single driver run-away locomotive. So, for lack of anything better to do (since I've submitted my IT return, Life Certificate and KYC papers and linked my Aadhar to my PAN, bank accounts, voter ID, the last will and testament and the toilet paper holder), I thought I'd do my own analysis, without any reference to the Freedom House, Dem Institute, Reporters sans Borders, Association for Democratic Reforms, Martina Navratilova, Malala Yousuzai  etc., all of whom, as we know, are part of the "tukre tukre" gang. Why are so many well heeled people leaving India in droves, a kind of reverse migration since the Neanderthal man (along with a few women to give them the correct directions) came here from Africa and Europe? I've done a limited survey of some of these people  (the emigrants or PIOs in current parlance, not the Neanderthal men, who have disproved Darwin's theory of evolution and are now all members of a certain political party) and have some of the answers.

   It appears that the constant invitation by our "bhakts" to send people to Pakistan with free passage had unnerved quite a few of them.  Now, Pakistan itself is not too bad, it's easier to make millions there, especially if one knows someone in the army or Nawaz Sharif's party, and the biryani there is even better. No, sir, the fear that haunted our HNIs is that tomorrow the proffered destinations might be expanded to include Somalia, Democratic Republic of Congo, Haiti or Tonga, all of which are going under fast, except Tonga which is simply going under water. The idea, therefore, is to skedaddle to fairer climes before the likes of Trump, Rishi Sunak and Giorgia Meloni stop immigration altogether, or before these countries return to the ice age as a consequence of Putin's degasification plan for them.

   There were/are other reasons too, as some of them have confessed privately to me. These include the prospect of Mrs. Nirmala Sitharaman becoming Finance Minister for another term after 2024, the likelihood of Mr. Yogi Adityanath being crowned as Prime Minister after Mr. Modi has done his fair share of "tapasya", the possibility of Kangana Ranaut  taking over the reins of power in Himachal after Mr. Shah has persuaded enough Congress MLAs there to see the fading light at the end of the Atal tunnel, the prospect of China occupying India even as the govt denies this from its government-in-exile headquarters in the Maldives , the possibility of the ECI ordering that henceforth all votes shall be cast by the EVMs themselves and the voters need not bother coming to the polling booths, or Vivek Agnihotri being conferred the Bharat Ratna. Now, these are all grim forebodings  at which even Atlas would not have shrugged, but they are not the main reason. The real reason for the lemming rush lies elsewhere, as some of these folks have confessed to me, sotto voce, in a Sulabh Shochalay where they cannot be bugged as these places have no wi-fi or 5G, only "Do rupya jee."

   My research reveals that our HNIs are leaving because of a major uncertainty- no, not the economy, but the permissible colour of the underwear they can don. This is demonstrated by the ongoing brouhaha about the saffron colour of Deepika Padukone's bikini in the movie Pathan. I've viewed the clip of the song (as have you, dear reader, perhaps a few dozen times ?) and have noted that though the bikini doesn't cover much of Deepika, it has got a lot of coverage itself! The majoritarian fury over the bikini is just the latest instance of an all consuming fetish our friends on the right seem to wallow in. It is called "clothing fetish", it may or may not have a sexual angle but it clearly stems from a feeling of inadequacy in the presence of women, if you get my drift, which no amount of chanting " Joote maro salon ko !" or bashing up minorities or razing mosques can dispel. Quite clearly, bikinis don't make their hearts or anything else leap up in joy as daffodils did for the poet. Or do their protests hide something deeper- could a bikini be a Freudian slip, if you'll excuse the pun?

   These guys are obsessed with women's clothes and their entire weltanschauung seems to revolve around them. First it was jeans and tops in colleges, then salwar-kameez, then the hijab and burqua, and now its the bikini. They just can't seem to make up their weakened minds about what women should wear. And it's not just the garment, it's also its colour. Deepika's saffron bikini has caused them huge offence (though I personally felt that the sight of her in that thong on the beach resembled a golden Aphrodite rising from the waves, but then I'm aware that not many of these bikini watchers have a flair for Greek mythology). Which too would have been fine and not occasioned a mass migration: my PIO respondents said they could live without saffron underwear, but  the question that arose was- which colour underwear could they then wear without raising any, well, hackles (to put it politely)?

   There are no easy answers to this vexed question in Naya Bharat. Saffron makes the BJP acolytes see red, red would be objected to by the Communists, green would be denounced by Mr. Owaisi, blue would make Mamata Banerjee turn purple in the face, yellow would hurt the feelings of Akhilesh Yadav, and a combination of these colours would be an offence under the national Flag Code.

   So you see the problem and dilemma which makes these HNIs leave in droves, don't you- any colour underwear they don is likely to be objected to by some party or the other, and yet they desperately need underwear to hide their booty, as it were. I can sympathise with them; underwears are essential even if you don't have any booty, they lift up your spirits if nothing else, they are like basic intelligence- you may not show it but you have to have it. Me, I always keep a second underwear in my golf bag when I go golfing, I never know when I might get a hole in one.

ELECTIONS AND THE BRIGHTER SIDE OF BLACK

 

   Sometime back it was reported by an NGO tracking election expenditures that roughly Rs. 50000 crores of black money was spent on one round of Parliamentary elections. To put the amount in perspective, this is equivalent to the  annual expenditure on the  flagship scheme of the govt.-viz. MNREGA ; to put it another way, it is equal to the annual budget of the Delhi govt., or two and a half times the Plan budget of  Himachal. Its a fair estimate, what with more than  five hundred seats being contested, a minimum of ten candidates per seat, and each candidate spending between five to fifteen crores. If one were to factor in the state elections, the amount would be staggering. Most of this is, of course, unaccounted or "black" money. This appears to reinforce the conventional wisdom that this scourge must be wiped out, that this is bad for the integrity of the democratic process and disastrous for the economy, that state funding of elections should be introduced to displace the black money currently utilised for the purpose. Now, the question as to why you and I should subsidise a bunch of crooks to grab power and make even more black money is a separate one, to which I hope to revert in the future. Right now, however, I propose to challenge the conventional wisdom and argue that black money in elections IS GOOD FOR THE COUNTRY AND THE ECONOMY and that we should stop beating our breasts and wailing about it. Of course, no economist will admit to this but then economists as a tribe admit nothing unless it is first approved by the World Bank or the IMF.

    We must begin with the premise that Black Money, like Giriraj Singh or Mani Shankar Aiyar, exists-whether we like it (or them) or not, and will continue to exist even if it is eradicated from elections. Where does this money currently go? It is invested in real estate( where it drives up prices to unaffordable levels and has led to a housing shortage of more than 20 million units, most of it in the EWS category); in gold( leading to increased smuggling or/and imbalance in the Current Account Deficit) ; in money laundering ponzi type schemes like the staggering SAHARA ones ( where even the Supreme Court and SEBI have been unable to make them cough up the moneys); in Hawala operations or in Swiss bank accounts; or simply dumped in a locker or under a mattress where, I am told ( by erstwhile colleagues), it also induces a kind of Viagra-like effect. In other words black money either distorts the economy or simply lies around as an " unproductive asset", neither of which benefits anyone or the nation, though it may pump up the testosterone levels of some.

   Come the elections, however, and this same black money (or at least 50000 crores of it) is unlocked and productively injected into the economy. Its use in elections is as diverse and ingenious as only an election in India can be. It is spent to employ " party workers" and hire crowds for rallies, to hire all manner of vehicles ranging from bullock carts to helicopters, to acquire publicity materials-banners, stickers, posters, caps, T-shirts, to fund arrangements for public meetings, to distribute liquor, to hand out cash as bribes to voters. True, some of these uses are illegal but that is not the point of my discussion. True, some of this expenditure is in white money and reported to the Election Commission, but every Indian knows that not even 10% of the expenditure is reported or accounted for. A  report in the Hindustan Times some years back stated that candidates generally reported such low expenditures that one CEC( now retired) had even proposed reducing the permissible expenditure cap! No sir, the life-blood of elections is black money and its not a bad thing at all.

    Here is just a short list of its undeniable benefits. It creates ( albeit for just a few months) millions of jobs. If even half of this Rs. 50000 crores is used for hiring people then ( assuming a daily wage of Rs.300/) the elections lead to creation of 833 MILLION man-days! That's almost the same as MNREGA, with the difference that this money is paid out immediately, not months later. The demand for various products and service lead to the indirect creation of even more jobs and other downstream benefits for artisans, factory workers, drivers, caterers, band wallahs, goons and so on. To cite just two examples: thanks to the trend set by the Aam Aadmi topi (cap) every major political party has now come out with its own version( and shade) of the Gandhi cap and a whole new industry has sprung up in the bylanes of Delhi, Kanpur and Bhopal churning out millions of these caps. This industry will only grow as AAP expands its pawprint. Ditto the demand for (and prices of) brooms both of which have gone up since Kejriwal elevated them to WMD status, benefiting ultimately the poor village women who collect the material for them. Even the five hundred rupee notes given to the slum family in exchange for its votes is a productive use of black money. There is a general fillip to the manufacturing sector- liquor, bottles, lathis, Rampuri knives, guns, vehicles- which is proved by the fact that this sector has actually shown a growth in the second quarter this year after many negative quarters ( remember, the Gujarat, Himachal and Delhi MCD elections have been held only recently).

   Elections, through the instrument of black money, achieve what most govt. policies have failed to do for the last fifty years- the redistribution of wealth from the rich to the not so well off. The benefit of this in an acutely unequal country like India should not be under estimated. As long as the lucre is kept locked up it belongs to a fat cat, untaxed and unutilised. Its use in an election immediately transfers it to the working classes, without any protests from any one, or litigation: its a win-win situation because it is also the Holy Grail of all economic planning. Forget the legality of the matter, forget the Code of Conduct which is our own version of the Ten Commandments (and just as effective), and look at just the economics and you might just begin to agree with me. As Jyotiraditya Scindia explained to his followers: " If you can't beat 'em- join 'em!"

  Indian elections are rightly lauded all over the world as a  "celebration of democracy": they are an unending carnival, what with Bollywood like roadshows, rallies, band, baja and even the occasional barat, much joie de vivre in resorts where MLAs and MPs are remanded to political custody, stalls outside polling booths selling everything from tea to fake IDs, people in all kinds of costumes and masks, posters adorning every tree and lamp-post. The EVMs may be rigged, the candidate you voted for may defect to another party on the morrow, the votes counted may be twice the number of votes polled, but it's all great fun and a good time is had by all! But- and this is my point- none of this excitement would be possible without black money, the life blood of this raucous exercise of our franchise, of which we can be justly proud.

   Which is why I oppose the Prime Minister's proposal to have One India One Election: it's not good for the economy and it takes the fun out of life. The more elections we have, the more the redistribution of wealth and generation of jobs. Let us admit it- what armies of economists, ED and Income Tax sleuths, planners, RBI Governors and Chief Economic Advisors could not achieve in 75 years has been done by the Indian politician. He deserves a statue all to himself outside the NITI Ayog building- why, we could even give it an appropriate name- THE STATUE OF IMPUNITY.

  Frankly, if you ask me it's time to request the Election Commission to ban the use of White Money in elections.

HIMACHAL CAN BE THE LAUNCHING PAD THE CONGRESS BADLY NEEDS.

    I am sure most people can't remember the last time the Congress won a state election, even a by-poll. In this context, the 8th of December, 2022, is a red letter day for the party, with its emphatic win in Himachal and in the two by-polls in Rajasthan and Chattisgarh. It won 40 of the 68 seats in Himachal, with a margin over the BJP safe enough to ensure that no rats jump the ship and that the lotus remains in Mr. Shah's pleasant garden.

  As expected, the BJP rebels queered the BJP's pitch- of 21 only 2 won, the losing ones sealed the BJP candidates' fates by taking away precious votes from the mother party. Mr. Dhumal doesn't drink, but I have no doubt he is enjoying a satisfying cup of tea even as I write this. Mr. Nadda also doesn't drink, but if ever someone needed a peg or two at this time, it is him. He has lost in his own state where he had complete say in the distribution of tickets, and has been found wanting. But I don't want to do a post mortem of the results ( that is best left to the pundits), just a little forensic audit of the post result scenario.

   The Congress must realise that it didn't win because of any towering personality, or any great work at the grass roots, or a better image, orPriyanka Gandh or the Bharat Jodo Yatra. It won because of dissatisfaction of the electorate on an enormous and diverse scale, and because the trade mark arrogance of the BJP had made it tone deaf to the people's demands. These demands include: stoppage of work on destructive hydel projects, toning down the indiscriminate and unnecessary four laning projects that have displaced large numbers of people, abandoning work on the controversial "international" airport in Balh valley (on which the ex-CM Jai Ram Thakur is willing to spend Rs. 5000 crores even as he says he has no money for the Old Pension Scheme), regulating the corporates who are slowly taking over the apple trade at the cost of the orchardists, streamlining the hospitality sector with a mix of incentives and regulations, creating more employment opportunities in the govt. sector. Going back to the Old Pension Scheme will be a major financial challenge, especially as the Centre is not likely to cooperate in the matter: funds will somehow have to be found for this, for the powerful lobby of govt. employees will be impatient for its implementation, having played perhaps the decisive role in the Congress victory. ( I am not dwelling on other issues like Agniveer or price rise because these have origins in national policy making and are not susceptible to state level solutions).

   These are vexed issues for a state which is already groaning under an over extended debt burden, and the Congress will soon discover that, notwithstanding its umbrella promises, there are no easy answers to them. It will have to prioritise and be selective in its choice of schemes and programmes, but in doing so it should keep its focus on the common man's welfare, and not that of the contractor, bureaucrat, party coffers or cronies, as the BJP did. Nor should any project be made an ego or prestige issue ( like the Mandi airport or the Kinnaur and Lahaul-Spiti hydel projects): a politician's prestige is a gift from the voter, and can be withdrawn by him too. Do what is good for the people in any given area, they know best- this, I think, is the central message of these elections, and the Congress would do well to heed it.

   One of the critical failings of Jai Ram Thakur was his lack- lustre administration, of which he never appeared to be in command. It's never a good idea for a Chief Minister to delegate everything to the bureaucracy; the civil service is like a thorough bred horse- it can perform supremely well, provided there is a firm hand on the reins. Someone like the iconic Virbhadra Singh understood this very well, which is why he was Chief Minister for six terms, and why the state has made the progress it has. He may have played favourites (which CM doesn't?) but he never lost sight of competence and ability, and ensured his picks performed. In contrast, Jai Ram Thakur picked seven Chief Secretaries (CS) in five years, exposing his indecisiveness and poor choice making. He has paid the price, and the Congress must learn from this- choose the next CS wisely and don't go by seniority alone ( the present incumbent is due to retire this month), give all your senior officers stable tenures, don't launch a witch hunt for officers with a differing ideology- most bureaucrats are faithful only to their perks and subsequent pensions and would not like to endanger either. Listen to your bureaucracy, but listen to the people too.

   My biggest apprehension as I write this is the internecine warfare which is now likely to break out over the post of Chief Minister. This is the Congress's Achilles heel and can provide the BJP the opening it needs to initiate its guerrilla attacks on the Congress MLAs. In the past Madhya Pradesh, Rajasthan and Punjab have exposed this fatal flaw. The party has its problems in this area: the High Command is not strong enough to impose its will, like Mr. Modi or Shah can do; unlike in the bureaucracy political parties do not have a sacrosanct civil list to determine seniority; performance cannot be the only criteria- there are extraneous factors like the ability to raise funds or inter-party contacts or jerrymandering skills that are also important. There is no one formula or nostrum which can be acceptable to all. Therefore, in Himachal the Congress must choose the least divisive and most sustainable route- let its MLAs choose the Chief Minister by secret vote. This will not only show complete transparency but will also be the final test for the claims and counter claims of various individuals. Any one who emerges the victor after this process will command a legitimacy that will be difficult to dismiss or criticize. 

   The Congress has tasted victory after a long time, and should be suffused with the confidence that the BJP and Mr. Modi are not invincible. If one looks at the larger picture that has emerged on the 8th December, it shows that the BJP has been defeated in two of the three states that went for elections, and in five of the seven bypolls ( the polling in Rampur is being contested in the Supreme Court). Himachal provides a timely launching pad for 2024, for building on the momentum provided by the Bharat Jodo Yatra. It can be the start of a new beginning in the state in the post Virbhadra Singh era, provided the number of dedicated workers exceeds the number of Chief Ministerial contenders. The gods of this Dev Bhoomi have blessed the party, now its karma will have to justify their munificence. There will be no second darshan.

  

EXPECTING A TN SESHAN IN NAYA BHARAT IS A PIPE DREAM

   I guess, in these Orwellian times, we should be grateful for small mercies. Which is why we should be relieved that the five judge Constitution bench has finally taken up the issue of the independence of the Election Commission, seven years after various PILs were filed on the subject. One is also happy with the stern and questioning posture adopted by the bench, which too is a bit of a rarity these days. And one is not surprised at the govt's usual evasive, defiant, and talking-down stance, reiterating its old chestnut about separation of powers of the executive/ legislature and the judiciary. Separation of powers is a valid tenet only if these powers are exercised legitimately, as they were intended to be- if they are not, then the Courts are justified, nay required, to cross the Laxman Rekha and restore some semblance of constitutional rule.

  That the Election Commission is living on its past glory cannot be denied by any right thinking person; the only point to be debated is whether it is a vestigial appendage of the PMO or the Home Ministry. The strange scheduling of the Himachal and Gujarat elections, the silence on the questionable opening of an unscheduled window for Electoral bonds, the rushed appointment of an Election Commissioner- these are only the latest examples of its completely compromised status. It no longer enjoys the trust of the Opposition parties or vast swathes of the public, it maintains a silence like a Trappist monk on all criticism, it does not respond to the public or other stakeholders, it does not deign to explain any of its actions. 

  In the last couple of days at least two former Chief Election Commissioners have spoken out and have supported the Supreme Court's forensic investigation into the ECI's functioning. Mr. M. S. Gill and SY Quereshi have revealed that they had, in their time, taken up with the govt. of the day the issue of reforms in the procedure for appointment of Election Commissioners to ensure their independence. This issue was important then too, but right now it has become a make or break concern for the very survival of democracy for India. A few more years of this and we would be living the Stalin quote: the person who counts the vote is more important than the person who casts the vote. And the Supreme Court was perhaps also alluding to this danger when it invoked the tenure of the now legendary T.N.Seshan, CEC from 1990 to 1996, as a model and a benchmark. 

  T.N.Seshan was the stuff legends are made of. By his own confession at a press meet he "ate politicians for breakfast"; he made himself completely independent from the government, even asking the Law Ministry not to address letters to his office as " Election Commission of India, Govt. of India" as he was not part of the govt. but a separate entity; in August 1993 he issued a 17 page order deferring all elections till such time as the govt. gave him funds to implement the scheme of Voter ID cards ( he had his way); after the death of Rajiv Gandhi he postponed elections without consulting the central govt.; he put the fear of God into politicians, civil servants and polling staff. He gave full protection to his Observers and ensured they had the final word over the state satraps, and their reports were implemented immediately, without any long drawn inquiries ( which is the norm these days). I did three separate stints as Observer under him: on one occasion, having personally witnessed "booth capturing" at a couple of booths in Bihar, I recommended repolling: within two hours the orders arrived from Delhi. He introduced Voter ID cards, the Model Code of Conduct, the system of Election Observers, among other reforms. Seshan, in short, cleaned up much of the rot that had set in in the preceding forty years.

  But carbon dating the history of the Election Commision, or singing paeans to his memory is not the solution to the terminal decline in our electoral processes. The rot which has metastasized again in the 25 years after him cannot be cured by harking back to his days. Because the context has changed and the reality of today is vastly different from Seshan's days. The govts then were not brazenly contemptuous of the law, they were sensitive to public opinion and criticism by the press, the media still retained more than a modicum of courage and independence, the judiciary could still confront the state, constitutional bodies still had the respect and trust of the people, the bureaucracy had not yet been bludgeoned into compliance (notwithstanding Mrs. Gandhi's theory of a "committed" bureaucracy), the populace had not been turned into fawning zealots of an intolerant ideology. These were the strengths on which Seshan could draw on when standing up to the govt., not just his famous Palghat Brahmin obduracy. The vision, courage and initiative were his, but the eco-system supported him, giving him the confidence to persist. All that has changed now, especially in the last eight years. 

  That vital eco-system of checks and balances has all but collapsed, dismantled piece by piece in classic Gestapo fashion: compartmentalise the stakeholders into separate ghettos, and then demolish the ghettos one by one till all that is left is one huge wasteland. The ruling party appears almost unchallengeable, bolstered by a brute legislative majority, unlimited funds and a brutish cadre. It has no respect for, or fear of, any of the agencies or institutions mentioned in the previous para. This govt. has demonstrated time and again that it can make short work of any functionary- even judges- it finds inconvenient, or not compliant or submissive.

  Consider the manner of the midnight removal of the CBI (Central Bureau of Investigation) Director Alok Verma in 2019 when news emerged that he could file an FIR in the Rafael matter. Or how Election Commissioner Ashok Lavasa was hounded and forced to quit ( and allow himself to be kicked upstairs to the Asian Development Bank) when he started giving dissenting notes and recommending action against some BJP leaders for violation of the Model Code of Conduct. Or the punishment meted out to Sanjiv Bhatt, the Gujarat cadre IPS officer who had deposed against Mr. Modi and Shah in the 2002 riots case- he is now serving a life  sentence in a three decade old case for daring to speak out. Or R.B.Sreekumar, former Director General of Police, arrested ( along with Teesta Setalvad) for demanding accountability for the 2002 killings. These examples can be multiplied manifold, but they should suffice to prove that there are no Laxman Rekhas for this regime when it comes to throttling dissent or wreaking vengeance when exposed or thwarted in its designs. It does not fear any judicial intervention or check, as has been proved time and again.

  Could even somebody like T N Seshan have stood up to the unlimited powers of such an authoritarian state, in the kind of defenestrated eco-system that exists today? Would his integrity, commitment and courage have been enough to counter the CBI, ED (Enforcement Directorate), Income Tax, lap dog media and other agencies that would surely have been deployed against him in order to reign him in or to get rid of him? I doubt it.

  Which is why, though I welcome the inquisition of the five judge bench on the process of appointment of Election Commissioners, I don't expect much from it. The facade of having the CJI (Chief Justice of India) on the Selection Committee will be just that- a facade, a cosmetic job to hide the deficiencies underneath. Many CJIs of late have not covered themselves in glory, and the process of THEIR appointments is not much better than that of the Election Commissioners, either.

  The manner of appointment itself is meaningless if the executive can continue to bribe, coerce or intimidate a Chief Executive to either do its bidding or face the consequences. The CJI is on the panel for selection of the CBI Director but that did not prevent the organisation from turning thoroughly partisan and compliant; it also did not protect a Director from being evicted in a midnight coup when he tried to do his job. The Supreme Court has also not been able (or willing) to enforce its own orders in the matter of another Director of another agency getting a third extension of service in spite of the court putting a bar on it.

  It's high time (because time is running out) that we stopped fooling ourselves and grasped the nettle. The real problem is not the selection process ( which can certainly be improved upon) or the appointees. The problem is one of protecting the appointees from the tyranny of a government which will stop at nothing to have its way. Our failure lies here, and the fault lies with the higher judiciary, which is more concerned with protecting its own turf than the nation. Our courts have not been able to protect even one of the officers in the preceding paragraphs; in fact, they have usually ruled on the side of the executive, more concerned with technicalities than the larger picture. Further, the Supreme Court's reluctance to take up cases challenging some of the govt's controversial policies and decisions has only emboldened the executive to keep on pushing the envelope. In such a degraded system even T.N.Seshan would have been rendered ineffective and summarily evicted from the Commission to a rueful retirement, if not worse. In a democracy the judiciary is the final frontier, and if that too crumbles, then democracy cannot survive.

  This is not to say that we do not need a Seshan today: how can we not, in a country where the Home Minister can openly boast with total impunity at an election rally that the Gujarat pogrom of 2002 which saw the massacre of almost 2000 people was a "lesson" for a community, and where the Chief Justice of India shockingly admits that judges are "afraid" to grant bail? We desperately need a Seshan - but not just in the Election Commission: the country needs a TN Seshan in the Supreme Court.