Haryana and beyond: Right to Contest in Elections

An election meeting in India
Photo: WSJ

By Nebil Nizar

An amendment to the Haryana Panchayati Raj Institutions Act resulted to unwarranted controversy and is now challenged before the Supreme Court of India. The impugned amendment prescribes qualifications for contesting in elections to the local self governments and also holding positions.

The Constitution of India directs the Government to take steps to organise village panchayats and also endow them with such powers and authority as may be necessary to enable them to function as units of self-government. It is this direction that government heeded to by enacting the 73^rd and 74^th Constitutional Amendment.

Art.326 of the Indian Constitution guarantees Universal adult suffrage to all Indian Citizens. The same has been re-iterated in Section 62 of Representation of People Act, 1951. Principle of equality and non discrimination were in the minds of the makers. The earlier administrators imposed qualifications for casting vote in this country. Later, a few were impregnated with the thought that those educated should only form part of electorate of this country. Our constitution makers were of the firm belief in the ability and worth of all adult citizens as ‘equals’ in the matter of deciding what is good for the society and for the country.

A speech by Stanford University professor Larry Diamond gives an overview of what is democracy

1.     A political system for choosing and replacing the government through free and fair elections.

2.     The active participation of the people, as citizens, in politics and civic life.

3.     Protection of the human rights of all citizens.

4.     A rule of law, in which the laws and procedures apply equally to all citizens.

Participation of people means participatory democracy. Participatory democracy does not limit itself to mere voting, it includes greater political representation.  A broader interpretation is the need. The new Haryana law requires that general candidates must have passed class X examinations while women and Dalit candidates need to have cleared class VIII and V respectively. State like Haryana standing with only 74% literacy and out of which, 2001 census says that only 14.1 %  are Matriculates, it would be ‘injustice’ to prescribe a minimum educational qualification for becoming the representatives of people. This can be substantiated with a news story published in September this year with The Tribune narrating ground level reality in Begpur village of Kaithal District of Haryana, where the post of Sarpanch is reserved for a Scheduled caste candidate, is unable to find an SC candidate with the mandatory educational qualifications prescribed in the new amendment. This is not a problem with one Panchayat alone. The new law will stand as a stumbling block over women and people from under privileged sections of society from contesting.

Moreover, strong common sense does not say that education certificates certify wisdom, intelligence or Leader like qualities. The so called certificated educated persons can use pen with confidence and nothing beyond that. A Panchayat President is expected to be the Leader of the local society there. He/she should understand their problems, must empathise with people. It is the wise bureaucracy that is selected from the best in the state runs the day to day administration.  As the head of the village administration, he/ she are expected to be a decision maker and a visionary.  As a representative and more to that, a leader, a Panchayat president should have ‘wisdom’. Wisdom comes from experience alone. A great visionary like K. Kamaraj Nadar popularised free schooling and introduced mid day meal scheme in Tamil Nadu. He never studied beyond high school. Today mid day meal scheme is implemented all over the country. The dream of a Chief Minister coupled with his will power to implement a scheme overlooking the usual financial burden theory of bureaucracy, is today behind the progress of the small south Indian state. 

Government of India’s NCERT asks in a book- What makes an election democratic. It says the answer as well
1- Everyone should be able to choose. This means everyone should have one vote and every vote should have equal value.
2- There should be something to choose from. Parties and candidates should be free to contest elections and should offer some real choice to the voters.
3- The choice should be offered at regular intervals.
4- The candidates preferred by the people should get elected.
5- Election should be conducted in a free and fair manner where people can choose as they really wish.

The observance of all this made our country one of the most vibrant democracies in the world.

The Supreme Court of India in an assortment of cases has held that Right to contest in election is neither a fundamental right nor a constitutional right. This once again re-iterated decision of the apex court in Javed v. State of Haryana gave confidence to the State of Haryana to take away the right to choice of the electoral public, who comes to take part in the festival of democracy. Right to vote is a part of basic structure of the Constitution, but right to select candidates is not. This seems to this author like an illogical corollary. The same logic applied to Art. 21- Right to Life in some Judgements in the 1950s and 60s makes us to divide constitutional history as before Maneka Gandhi and after Maneka Gandhi. May the apex court not fail us. Indian Parliament, as the legitimate voice of the people of this country, should amend the supreme law of this land and incorporate Right to Contest in an Election a Constitutional Right.


(Originally published at http://www.livelaw.in/haryana-and-beyond-right-to-contest-in-elections/) 

'It makes me hungry for more victories and drives me forward for more races with confidence'

Rakesh Ramkumar

Rakesh Ramkumar revved up his racing career with the Toyota Open Karting Challenge in Saudi Arabia. His first Indian race was the Volkswagen PoloR cup, 2013. In October this year, Rakesh also did a podium finish in the third round of the Volkswagen Polo Support race held at Buddh International Circuit, New Delhi after a successful show in September this year at Coimbatore Support race. Given below is the transcript of his interview with Nebil Nizar.

Q1- Congratulations, Rakesh. How does it feel to be a winner? What is the winning formula in the race?

Rakesh: Being a winner is most cherishable. It makes me hungry for more victories and drives me forward for more races with confidence. The key to success in a race is to be calm and stay focused during the entire race weekend.

Q2- What is the biggest hurdle that you have faced in races till now? What are the positives that you took away from the last race?

Rakesh:I always have a good result in the qualifiers, but I struggle when it comes to race pace. I’m working hard on it with the help of data analysing, which helps drivers improvise their pace by setting up a reference.  In my last race I had a few technical issues but I could still finish third. Every sport has its own ups and downs but it doesn’t mean that you have to succumb to them; you should rise up at all means and never give up.

Q3- This is the second time you raced at Buddh International Circuit. How do you rate you experience?

Rakesh: BIC is a world class circuit; it has its own standards. As a driver, it is fun to race at BIC – its flat out corners and long stretches makes for more challenging races and the encouraging crowd that swells over 25k makes you happy.


Q4- Rakesh, what pushes you ahead during the run up to the races?

Rakesh: I believe passion is most essential for achievement. My passion is racing and it is what drives me forward.

Q5- What got you into the world of racing?

Rakesh: I was never inspired by anybody, nor do I come from a racing background. I had it in me right from the time I was training as a professional jockey. That’s when I realised I wanted something more exciting than horse riding.

Q6- Do you feel that recognition of motor sports in India is still at an early stage?

Rakesh: Yes, it is definitely in its early stage. People still think of it as entertainment. On the other hand, it is gradually gaining recognition as a sport with the Indian government recognizing the Federation of Motor Sport Club of India (FMSCI) as its official governing body.

Q7- How important is physical fitness for a racer?

Rakesh: It is important for a race driver to be healthy – mentally and physically in order to endure the grinding that one undergoes during a race. It may look simple, but there are a lot of issues like dehydration at an average cabin temperature of 50 degree Celsius. A professional racer must also have skill sets like quick decision-making, reflex, agility, etc. When it comes to exercise, I mostly focus on cardio.

Q8- What other sport attracts you?

Rakesh: Football and table tennis.

Q9- A word to youngsters who wish to take the wheel.

Rakesh: The ideal time for a person to start racing is at the age of 8-9 by participating in karting championships for a couple of years, until he/she gains confidence for higher races, because karting is like a stepping stone to the next level, in which the individual has to choose from different forms of racing such as single seaters, touring cars, endurance racing, rallying and so on.


(This interview originally appeared here at http://pixorange.com/interview-with-indian-car-racer-rakesh-ramkumar/ )

The Great Indian Power Struggle

Supreme Court of India.
Photo: NDTV

By Nebil Nizar

Supreme Court of India will resume the hearing in the much celebrated National Judicial Appointments Commission Act tomorrow.  The Executive branch of the largest democracy in the world is in a power struggle with one of the most independent Judiciary in the world. As both sides weigh heavy, we have to cross our fingers and watch the closing round, even though one side is now in an advantageous position.

The Government’s first salvo with Institutions was with the Reserve Bank of India headed by the former I.M.F. Chief Economist, Reghuram Rajan. The move to strip the powers of the central bank to control interest rates was seen as a threat to the ‘Independent monetary policy’ of India. The Government ‘beat a retreat’ when economists and bankers attacked the controversial move with tooth and nail.

The ‘modus operandi’ of the Government plan to hijack the decision making power of the RBI was by appointing a rate fixing committee comprising of seven members- four from the Government of India and three from the RBI. When this move failed, the same modus was applied on the Indian Judiciary. A committee was proposed to appoint Judges to the Supreme Court and High Court comprising of nominees of the Executive and Judiciary. The committee was also to have two independent members, whose qualifications were not prescribed, but who could veto any decisions. After the Central Bank and economists, now the Indian Judiciary and lovers of Independent Judiciary were shocked.

Despite being advised by eminent jurist, Upendra Baxi, to take the much safer Advisory Jurisdiction route, Government of India went ahead with the Constitutional amendment route. The controversial decision was portrayed by the Executive as ‘Judiciary versus Legislature’. Finally, the decision in the Fourth Judges case was pronounced last month- Judiciary asserted its Independence. The constitutional amendment was scrapped by the Supreme Court.

The apex court now asked the litigant, Government of India, to suggest steps to improve the existing Collegium system. The irony is that the decision for making the now scrapped 99^thConstitutional Amendment was Government’s opposition for the same Collegium system. The next move of the heavyweight, Executive, in the Temple of Justice is closely being watched by most in intellectual circles.

The Executive has four options which may be exercised in unison or multiple-

1.       Refrain from giving its ‘wise’ counsel to the Supreme Court

2.       Share its slice of wisdom with the highest seat of Justice

3.        File a Review petition against the Judgement.

4.       Bring in another Constitutional Amendment plugging the loop.

When noted political thinker Montesquieu urged in ‘The Spirit of Laws’ for a constitutional government with three separate branches, he might have legitimately expected each branch to respect the other. India should not go back to the infamous power tussle of the 1970s between then Prime Minister Indira Gandhi and the Judiciary. Let History not repeat itself.


*myidnebil@gmail.com

A diplomatic evasion

Indian Prime Minister Dr. Manmohan Singh with
Saudi Monarch King Abdullah bin Abdul Aziz Al Saud
Photo: The New Indian Express.

By Nebil Nizar

Putting an end to the diplomatic row between India and Saudi Arabia, the diplomat accused of raping two Nepalese women in Gurgaon, was called back. Activists have criticized India’s move of allowing the man, accused of a heinous crime, to safely fly back to his country of origin. Indian diplomatic circles feel otherwise.

India’s past hostility with Saudi Arabia was the result of its stance on Pakistan. There have been ups and downs in the past. Since the visit of King Abdullah to India in 2006, however, political equations have undergone a sea change. Dr. Manmohan Singh’s visit to the Kingdom in 2010 was first by an Indian Prime Minister in 28 years. Setting aside protocol, the Prime Minister was received at the airport by the entire Saudi cabinet. Saudi is now one of India’s greatest strategic partners in the Middle East, 4^th largest overall in terms of trade. Recently, a Saudi-led military coalition halted the bombardment of Yemen following India's request to carry out an emergency evacuation. What’s more, for the first time in history, the Indian Air Force touched down in the Kingdom in August this year.

The gang rape and subsequent death of a 23 year-old- girl in Delhi back in 2012 led to widespread protests across the country and in the digital space. Public outcry was such that a committee was roped in to recommend changes to the criminal law in the world’s largest democracy. The Criminal Law Amendment Act was drafted, read, discussed and passed in record time. However, data reveals that nothing much has changed since. Widespread anger simmers in civil society regarding the instances of crime against women.

Activists protesting outside Saudi Embassy in New Delhi.
Photo: telegraph.co.uk/ Getty Images

It is at the zenith of this feeling that news broke out regarding the alleged brutal rape of two Nepalese women by Saudi’s First Secretary to India. The informant to Gurgaon Police, along with an NGO, was another sovereign country, Nepal. If media reports are to be believed, the tip off did not mention the identity of the accused. Police rushed to rescue the victims from an upmarket high-rise, only to learn that the accused was a diplomat.

India then proceeded legally, being a signatory to the Vienna Convention, it cannot arrest a foreign diplomat. Instead, the Saudi Embassy was asked to waive his immunity. As is expected of every sovereign country, they refused.

The government of India has since been on the receiving end for going soft on the issue. The activists continue to demand justice for the Nepalese victims. One of them went to the extent of saying that the Indian Prime Minister had lost the moral right to speak on women’s safety. At the same time agreeing with the views of Indian Supreme Court, i.e. while a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female; we should not forget that national interests take precedence over resident’s interest. Meanwhile, Nepal has made it clear that they have good relations with Saudi Arabia and the victims would get justice.

U.S. President Barack Obama with
King Salman bin Abdul Aziz of Saudi Arabia.
Photo: dw.com 

In the light of the US-Iran nuclear deal and the subsequent change in regional equations in the Middle East, it remains to be seen how international relations will play out. Iran and Saudi now emerge as the two regional powers. The Wall Street Journal reports that India has one of the world’s fastest growing energy markets and is expected to be the second-largest contributor to the increase in global energy demand by 2035. India, as a major ‘energy partner’ of both countries, cannot at present afford to displease either. India’s long time aspiration for permanent UN Security Council membership hangs like a sword of Damocles as well. In effect, India perhaps made the right move by playing safe in present diplomatic row with Saudi Arabia. 


*myidnebil@gmail.com

High Voltage Drama In Middle East

Photo: CNN

By Nebil Nizar

Middle East brings to our mind, endless deserts, and camels and not to forget- high temperature. Now mercury is soaring in the politics around the region as well. Iraqi city of Ramadi fell into the hands of Da’esh or ISIL. So did the historic Syrian city, Palmyra. Yesterday’s news says that security agencies foiled yet another suicide attack in the eastern province of the largest Middle Eastern country, Saudi Arabia.  Without a second thought, we may conclude that self ascribed Islamic State is tightening its grip over the whole Arabian Peninsula.

The Arabian monarchs who recently heaved a sigh of relief after arresting the developments following Arab Spring are again feeling the heat. They face two main issues. First, clinging on to their throne. After the Iraq invasion of 2003, America is seen as the prime villain in the Islamic world. This writer is of the opinion that heads of state of GCC countries refrained from attending Camp David summit not exclusively to deal with American appeasement towards Iran, but also to assert their independence and ‘external sovereignty’ and hoping to hold back millions of their citizens from sympathising with Islamic State militants.

Second and the most important issue, Middle East is soon going to see one of the largest refugee crises in the recent times. Under-Secretary General for Humanitarian Affairs at the United Nations, in a recent statement to the Security Council, included a grim list of circumstances faced by civilians in areas controlled by Islamic State, including sexual slavery and the forcible recruitment of children to become militants. His report says that 8.2 million people are seeking UN assistance. Shocking fact is that, almost half of the internally displaced in Iraq are children. Humanitarian situation in the Middle East is catastrophic.

As Da’esh extends its strong hold all over the Gulf, reports are coming in that expatriates population are living in extreme fear. Countries living on foreign remittances cannot afford a mass return of their citizens. The Gulf War of 1991 and the resultant evacuation saw social insecurity and economic deprivation in Third World countries including India. Let alone after evacuation, evacuation itself will be a task as foreign population will be in direct line of fire if ISIS gains ground. A Yemen like evacuation will be a distant dream.

Political stability in the oil rich Middle East is an urgent need for Economic stability, in a globalised economy, along with much discussed International security. Power vacuum led to the creation of Da’esh. Power may be both Political as well as religious. In political arena, breeding grounds of such groups are lawless areas where anarchy is prevalent. Pak-Afghan border stands an example in front of us. Religious front, International community should consider projecting The Grand Mufti of the Holy Mosque of Makkah, a highly respected figure known for his strict views against terrorism, as the religious leader of Muslims all over the world. Cause must be dealt and not the disease alone.

Tailpiece: In the Iraqi war theatre, land forces in most of the areas laid down arms and ran away. The Government gave contract to Shia militia, which the Economistdescribed as Shia mirror image of ISIS, to fight on their behalf. What a strategy! One terror group to deal with another. No comments.


(Originally published at http://www.tehelka.com/2015/05/high-voltage-drama-in-middle-east/)

Who really failed them?

Cartoon: The Hindu.

By Nebil Nizar

The recent Baltimore uprising in the American state of Maryland following the death of a black teenager -- Freddie Grey -- allegedly at the hands of police shook the conscience of not only the Americans but also of the world. Indians condemned the happenings and pledged solidarity with the victims of racism. But, we conveniently ignored the pivotal issue of reforms in police force, with which the menace of racism is intricately linked. 

This writer was born in India but brought up in Saudi Arabia and still remembers that for any trivial issue, including someone parking a car in front of your gate, the first port of call was ‘999’. Every resident believes that a response party shall reach out in five minutes. And their belief is always correct. Is this the situation in India? Why is it not so?

It is important to understand the history of policing in India in order to understand where things went wrong. The colonial British wanted a system to assert its authority over the less fortunate Indians and found the Royal Irish Constabulary model, first introduced in Sindh Province, now in Pakistan, successful. It was adopted in other parts of India. In the aftermath of the first war of Indian independence in 1857, which they brutally crushed, the Police Act of 1861 was brought into force.

The colonial era Police Act still continues in almost all states of India. Constitutional policing understanding the concept of right to life and personal liberty is urgently needed. The Supreme Court in 2006 delivered the landmark Judgement, popularly known as the Prakash Singh case, requiring the union and state governments to urgently kick-start police reforms.
Here the Supreme Court directive starts with the establishment of a State Security Commission to evaluate the performance of the state Police and also to ensure that the state government does not exercise unwarranted influence or pressure on the Police.

Sir Robert Peel, former British Home Secretary, who is often referred to as the Father of Modern Police, wanted to give legitimacy to his pet initiative- London Metropolitan Police. One of the principles that he adopted for the same was that Police must be under government control. This principle was adopted in independent India also. Over the years, it has led to a political-police nexus that it became a common practice with every change in political leadership, police leadership will also change. The Director General of Police is selected on the basis of his political loyalty to the leader of the parliamentary party and not based on merits.

The high post of State Police Chief comes with a price; he gives up his power of decision making. Hiring, firing, managing and assigning personnel must be part of the work of senior police leadership as Police being a uniformed force follows a centralised, quasi military organisational structure with a unified chain of command. 

All these form one side of the coin. The other side of the coin is what directly affects the society- law enforcement. The quality of the criminal justice system to a great extend is dependent on the working of the men in uniform as India, like many common law countries, adopted Accusatorial system of Trial which is distinct from the Inquisitorial system where the Judge or group of Judges investigates the case.

The Malimath Committee on Judicial Reforms says, 'The State discharges the obligation to protect life, liberty and property of the citizens by taking suitable preventive and punitive measures which also serve the object of preventing private retribution so essential for maintenance of peace.'

In order to make sure that the criminal justice system does not fail and subsequently lead to private retribution, we have to fix the flaws. The main flaw in the working of the police is due to the clubbing of Law and Order with Investigations.

The officer in charge of a police station in India with his limited man power is expected to undertake- crime prevention, night patrol, crime investigation, VIP Security, traffic control, collection of Intelligence, riot control, bandobast duties during demonstrations, processions, strikes, protests, presenting the accused to court, aiding other departments in discharging their duties- Court, Revenue, Civil Supplies; Verification for Passport, Public Service Commission, etc. Now can you expect the station-in charge to perform any better? At present, it is often seen that Investigation is stalled when there is a pressing law and order situation or on the rise of a new crime. End result is failing in both and people losing hope.

The Supreme Court says, ‘The investigating police shall be separated from the law and order police to ensure speedier investigation, better expertise and improved rapport with the people. It must, however, be ensured that there is full coordination between the two wings’.

The implementation of this is stalled mainly by top brass who fear a loss of power and glamour for the post of District Superintendent of Police, Range Inspector General of Police etc. Instead of creating a special Crime Bureau at the state level with District and station level men, many states did and Eye wash in the form of creation of a crime desk and post of Crime Inspectors at police station level. My enquiries led to the conclusion that the system is ineffective due to the non separation of investigation desk into water tight compartment.

Punjab recently created history by implementing the segregation of Law and Order (L&O) from Investigations and created a separate Bureau of Investigations (BOI) which will be responsible for investigation work from police station level to district level to state headquarters. Though good news is coming in from some quarters, majority of the states are still reluctant. History should not hold those officers who err while discharging duties in good faith, as culprits. Our system failed them. 

Domain of policing has expanded. Crime patterns are changing. New challenges are emerging every day. Are we capable enough to face these new challenges with the existing policing system?

Tailpiece:  The Royal Irish Constabulary from which India derived its policing system was disbanded when Irish Free State was created in 1922!

(Originally published at http://www.tehelka.com/who-really-failed-them/ )