Republic day is a good day to take a dispassionate look at the Indian Constitution and how it has been worked so far. That reminds me of an interesting story. The UPA 1 government constituted the Justice Punchi Commission on Centre State relations to recommend reforms to the constitutional arrangements for Centre-State relations. While kick-starting its deliberations in early 2008, the Commission held a meeting at Delhi of intellectuals and luminaries from a wide range of fields. I was a second row occupant, representing the central Ministry of Panchayati Raj. One of India’s most respected legal minds, Mr. F.S. Nariman was also present. Justice Punchi requested Mr. Nariman to advise the Commission on the broad direction that it ought to take. For all his modesty, Mr. Nariman is a commanding presence at any gathering. He made probably one of his shortest speeches ever. ‘Just follow the Constitution’, he said. ‘It is a very detailed and well deliberated document and all one needs to do to run the country well is to follow it, in letter and spirit’. That was all. The more I thought about what Mr. Nariman said, the more it made sense to me. He was bluntly warning us against India’s greatest governance failure, that in designing and running our government, we were often breaching our Constitution and those breaches had gone unrecognized and unchallenged. Let me give one example of how we have subverted the Constitution. There are several more, but one will suffice. Robust institutions are an essential ingredient of a well-functioning democracy. Three preconditions are essential for institutions to be strong and responsive. First, they must have a precise and exclusive role. Second, there must be a way by which people can hold them accountable for the performance of that role. More precisely, there should be a way in which they can be punished if they do not perform their responsibilities. Third, there must be a clear network of relationships that mesh different institutions together. These might be relationships of command and subordination – these are not always dirty words – or relationships of partnership, collaboration and complementarity. In the Government context, role clarity would mean that the Centre, States and Local Governments (the Panchayats and Municipalities) ought to have precise and exclusive functions, regardless of the larger order issue of how much power and authority should be ideally handled at each level. Another fundamental principle to be followed to ensure good and accountable governance is that constitutional institutions ought to stand on a higher footing that institutions created through statute. Similarly, statutory institutions have a stronger basis than those that are created through executive order. However, India’s governance architecture is replete with instances where these fundamental principles of design for a good multi order system of governance have been ignored or overtly violated. This is the fundamental reason why our institutions do not function well. Look at how we have completely subverted the whole idea of empowering local governments. In 1992-93, India’s constitution was amended through the 73rd and 74th amendments. These, the most detailed ever in our constitutional history, mandated the creation of Panchayats and Municipalities, with separate elections to them. These local governments were to be devolved responsibilities for the delivery of several local services, and were mandated to be given sufficient tax handles, so that they can raise enough revenues to perform these devolved tasks. What do we have after twenty three years? We have large elected bodies; that’s for sure. Nearly 3.2 million hopeful people are elected to the Panchayats and Municipalities, every five years. That’s more than the population of several countries. Yet, they have very little to do. Only 2.5 percent of India’s taxes are collected at this level. Only 7.5 percent of India’s government expenditure is undertaken locally. Nearly half of the States have not constituted District Planning Committees, which are supposed to buckle rural and urban plans and budgets together. Similarly in Metropolitan areas, we do not have Metropolitan Planning Committees, again an institution that has to be mandatorily constituted, under Article 243ZE of the Constitution. In those states where these have been constituted, they exist only on paper; real power is wielded by the District Collector and the District Minister. Departments that are supposed to be transferred and accountable to the Panchayats, owe their allegiance to the district administration. Funds that are supposed to go to the Panchayats so that they can perform their responsibilities effectively, are placed with parallel structures such as District Rural Development Agencies, and various societies such as the Sarva Shiksha Abhiyan Society. More funds that are supposed to go to the Panchayats and Municipalities so that they can execute their plans, are retained as slush funds with MLAs and MPs, to be used through hare brained, centralised schemes such as the Sansad Adarsh Gram Yojana. So we end up with MPs and MLAs who hardly attend the Parliament or Assembly, because they are busy engaged in so called local development, which is not their domain at all. In any case, why attend Parliament, when all that is to be done is to ratify ordinances? If you challenge higher level bureaucrats and politicians with these grim realities, and they will say that the Municipalities and Panchayats do not have the ‘capacity’ to deliver services to people. They rarely ask that question to themselves, though. The field reality is that government staff that really matter; the frontline workers such as teachers, doctors, linemen, policing staff, revenue staff, often do not turn up for work, or if they do, they do not work. Most of the time, they are filling up data sheets, or attending meetings of their supervisors. Besides, in several States, there are gaping vacancies of staff positions at these levels, sometimes even thirty percent. The results are there for all to see. We have more poor people than there were people in India in 1947. Many places in India have human development indicators worse than sub-Saharan Africa. Yet the higher level bureaucracy and politicians have always sidestepped the blame for this deplorable state of affairs. Our Constitution has a fatal flaw. It does not provide constitutional remedies when institutional frameworks mandated by the Constitution, are subverted. A Panchayat does not have a constitutional remedy against the State government if its rights are denied. In contrast, we have a system of protection of fundamental rights of every citizen, enshrined in the Constitution. In fact, under Article 32 of the Constitution, the scope to file a writ petition in the Supreme Court to enforce your fundamendal rights, is itself a fundamental right! The only way to overcome this is through political action. In all parties, there are champions of devolution. In the Congress, we have Mani Shankar Aiyar. In the BJP we have Venkaiah Naidu and Kalyan Singh, both of whom have a proven track record. The AAP is committed to these ideals and I have no doubt in my mind, that when they are in power, they will implement the constitutional vision. It is not only necessary for such champions to work to mainstream these ideas in their respective parties, but to also work across parties, to achieve the constitutional dream. Where that has happened, as in Kerala, there is a some modicum of consensus on decentralisation, and something meaningful has been achieved. Yet, the constitutional Achilles heel will still exist. Can we have some fundamental rights of governance levels, inserted into the Constitution? Along with that, can governance institutions have access to powerful judicial remedies, in the same manner as Article 32 provides remedies to citizens for infringement of their fundamental rights?
Posted on: Mon, 26 Jan 2015 03:37:03 +0000
Trending Topics
Recently Viewed Topics
© 2015