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A Tribune Special
The legality of HJC-Congress merger in Haryana |
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Vicissitudes of gotra row Profile
People of Telangana feel neglected, says Kesava Rao
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A Tribune Special
Secularism
is a basic feature of the Constitution. In M.R. Balaji vs. State of
Mysore, the question arose whether caste was a relevant factor for
identification of backward classes. There were two possible views open
to the court: (i) that identification of backward classes ought to be
done without reference to caste as reliance on caste would perpetuate
the caste system and militate against secularism and thereby defeat
the objective of promoting fraternity among the people of India
assuring the unity and integrity of the nation; or (ii) that ‘caste’
is a relevant factor in judging backwardness of certain sections as
the occupations traditionally engaged in by members thereof are
considered as inferior to others.
Missed opportunity
The court missed the great opportunity of preferring the first interpretation and rejecting the other. It could have put an end to caste-based reservations which have come to stay. The
issue came up again for consideration before a larger Bench of nine
Judges in Indra Sawhney vs. Union of India. Justice Kuldip Singh
summed up the rival arguments on the issue as follows: “Mr Ram
Jethmalani appearing for the State of Bihar has advanced an extreme
argument that the `class’ under Article 16(4) means ‘caste’. Mr
P.P. Rao on the other hand vehemently argued that the Constitution of
India, with secularism and equality of opportunity as its basic
features, does not brook an argument of the type advanced by Mr
Jethmalani. According to him caste is a closed door. It is not a path
— even if it is — it is prohibited path under the Constitution.” Justices
Kuldip Singh and R.M. Sahai wrote inspiring dissenting judgements,
emphatically rejecting the contention that caste is a relevant factor
for identification of backward classes under our secular Constitution.
However, the majority of judges reiterated the view taken in M.R.
Balaji and held that caste could be a route through which backward
classes would be identified taking into consideration other relevant
factors. They held that identification of backward classes either
through castes or on the basis of occupation-cum-income without
reference to caste is permissible and observed by way of illustration
that “agricultural labourers, rickshaw-pullers/drivers,
street-hawkers etc. may well qualify for being designated as backward
classes.” In Ashok Kumar Thakur v. Union of India, this writer
once again tried his best to persuade the court to declare that
identification of backward classes on the basis of
occupation-cum-income without reference to caste would be consistent
with the basic feature of secularism while identification through
caste would be anti-secular. It was an attempt in vain. The court
missed yet another opportunity of correcting itself.
Parliament’s
inaction
Dr Rajendra Prasad mentioned in the Constituent Assembly that the
Constitution has placed Public Service Commissions on an independent
footing so that they may discharge their duties without being
influenced by the executive. Five decades later, dealing with the
Chairman of Bihar Public Service Commission, the Supreme Court pointed
out that the chairman and members of the Public Service Commission are
required to be selected on the basis of their merit, ability and
suitability and they in turn are expected to be models themselves in
their functioning”. It is a matter of grave concern, that selections made by some State Public Service Commissions, Staff Selection Boards and other recruitment agencies have become suspicious in many states. Courts have set aside many a tainted selection. Corruption, nepotism, favouritism and political interference in the selection of candidates for public employment are on the increase. They have to be checked. The Constitution is silent about the level of office to be held and the qualifications needed for the members. This silence is being exploited by unscrupulous politicians in power to pack the Commissions with pliable persons. Several
selections made by the Punjab Public Service Commission during the
tenure of Ravinderpal Singh Sidhu as chairman were cancelled by the
appointing authorities after criminal cases were registered against
him for corruption following the recovery of Rs 16 crore from his and
his relatives’ custody. Referring to him, Justice Dalveer Bhandari
observed: “His clandestine activities and misdeeds reached the
pinnacle of disgrace, ignominy, dishonour, degradation and
humiliation. Perhaps, no one could have polluted the entire system in
a greater measurei”. Parliament should fill the lacuna by
appropriate legislation.
Corruption
Delivering the 13th Desraj Chaudhury
Memorial Lecture on November 11, 1996, Atal Behari Vajpayee said:
“…the electoral system has been almost totally subverted by money
power, and vote bank considerations of castes and communities.” The
Supreme Court took note of this speech in J. Jayalalitha’s case. In
Vineet Narain’s case, it took judicial note of the N.N. Vohra
Committee’s Report showing a powerful nexus between bureaucracy and
politicians with the mafia gangs, smugglers and the underworld. The 170th Report of the Law Commission of India (1999) highlights the steady deterioration in the standards, practices and pronouncements of the political class, its adoption of unfair means to win elections and increasing criminalisation of politics and of the electoral process. In 2002, the National Commission to Review the Working of the Constitution noted crisis of confidence and crisis of leadership and said that political leaders, owing to narrow partisan and sectarian interests and desire for short time political gains are unable even to agree upon broad common national purposes. The Election Commission needs to be strengthened by investing more powers including regulation of political parties, disqualification of defectors, and power to withdraw or cancel the registration granted to a political party if the party violates any of the conditions of its registration which it does not have at present. The Commission could then tackle parties like the Shiv Sena and Maharashtra Navnirman Sena.
Police reforms
Police reforms are overdue. The National Police Commission chaired by Dharam Vira, submitted its report almost three decades ago. In Prakash Singh vs. Union of India, a Constitution Bench of the Supreme Court gave positive directions to set up State Security Commissions, Police Establishment Boards, Police Complaints Authorities and National Security Commission besides indicating the provisions to be made for selection and minimum tenure of DGP or IG Police and other officers and for separation of investigation from law and order. Action is awaited. Frequency
of organised terrorist attacks on the security forces and the innocent
citizens is on the increase resulting in a number of casualties.
Incidence of crime is growing and rate of conviction is poor. It is
imperative to reform the police urgently. Coalition governments cannot
reform the system. The entire structure of governance needs to be
toned up — be it the legislature, executive or judiciary. The people
are crying for a clean and efficient governance including speedy
justice.
Education
The founding fathers took the bold
step of providing for adult franchise in India at a time when most of
the population was illiterate and poor as they felt democracy would be
meaningless if the right to vote is restricted to a small fraction of
the adult population. To make up for the deficiency, they incorporated
two important provisions — Articles 45 (the state to provide within
10 years from the commencement of the Constitution, for free and
compulsory education for all children until they complete the age of
14 years) and Art. 46 (the state to promote the educational and
economic interests of the weaker sections). If only Parliament and State legislatures and the Centre and the states have sincerely implemented these two directive principles, there would have been no uneducated citizen in the country today and the socio-economic conditions of weaker sections would have improved considerably. If Kerala could achieve cent per cent literacy within a relatively short period, why not others? But for the missed opportunities on the part of the judiciary, inaction on the part of Parliament and state legislatures and indifference of the executive all over the country during the last few decades to the basic rights and needs of the people, the country would have made vast strides of progress by now. There is no need to despair. India is a country with tremendous potential. We have a clean and competent Prime Minister. By improving the system of governance, phenomenal progress can be achieved within the shortest time. We should elect men of ability and integrity to the legislatures, appoint qualified and competent ministers, recruit men and women of exceptional merit to services and posts at all levels, plug the loopholes in the Constitution and the laws and march ahead.n The
writer is Senior Advocate, Supreme Court of India. This article is
excerpted from his special lecture on‘Constitutional developments:
Action, reaction and inaction’ at the National Academy of Legal
Studies and Research (NALSAR), Hyderabad, on March 6, 2010 |
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The legality of HJC-Congress merger in Haryana
Haryana
Assembly Speaker Harmohinder Singh Chatha has issued notices to five
erstwhile MLAs of the Haryana Janhit Congress on a petition by its
president Kuldeep Bishnoi questioning the alleged “merger” of his
ex-partymen into the Congress in November 2009. Mr Bishnoi has sought
their disqualification under the Anti-Defection Law. The INLD has also
moved a similar petition. As for the legality of the merger, there is
no judicial pronouncement till date. Every instance of merger
hitherto has been adjudicated by the Speaker or Presiding Officer of
the House on facts and circumstances of each case. Some cases also
went to the higher judiciary for a review of the Presiding Officer’s
decision. Though Paragraph Three of the Tenth Schedule of the Constitution, also referred to as the one-third split rule, exploited many a time by political parties in many states has been done away with following the enactment of Constitution (Ninety-first Amendment) Act, 2004, the merger provision remains on the statute book contrary to the recommendations of the Law Commission (1999) and the Constitution Review Commission (2002). Both commissions wanted provisions relating to splits and mergers deleted. The Rajasthan High Court is seized of the issue regarding the merger of six BSP MLAs into the Congress in April, 2009. The Supreme Court in Ravi S. Naik case (1994), while dealing with the concept of split, held that three conditions ought to be satisfied for purposes of a split: split in the original political party, the faction is represented by a group of MLAs in the House and finally such a group constituted 1/3rd of the members of the legislature party. Thus, even if there is cent per cent merger of the legislature party without a split in the original political party, there can be no valid split. Applying
the same principle and analogy for the “merger” under the
Anti-Defection law, there ought to be merger of the original political
party even if the entire legislature party agrees to the merger. The
merger of original political party can’t be admitted by a mere claim
of two-third members of its legislative party. The language employed in Paragraph Four of the Tenth Schedule is itself ambiguous as initially it talks of merger of the original political party with another party, but later it assumes the will of two-thirds members of the legislative party sufficient for deciding the merger of the whole political party. Such ambiguity needs to be resurrected. In
2004, the then Haryana Assembly Speaker, Satbir Singh Kadian refused
to approve merger of two single party legislative groups into the
Congress on the ground that as there was no split in their original
parties (the NCP and the RPI) at the national level, the split at the
state level can’t be accepted though they were the sole
representatives of their original parties in the House and as such
they constitute cent per cent of the strength of their original
political party. The Supreme Court upheld this decision in December
2006. In the HJC case, the five MLAs, out of the six elected, chose
to follow a path akin to “en bloc defection” by migrating to the
Congress in phases of four and one within a couple of days without the
consent of their legislative group leader, Kuldip Bishnoi. If the
Speaker upheld this floor crossing, every legislative party leader and
the future of a political party as a distinct entity in the House
would remain at the mercy of its two-third legislators. Worse, though the remaining members of a legislative group, who have opted against any merger by their two-thirds colleagues, function as a separate group, they would no longer be considered as belonging to the very party on which they were elected as that party is presumed to have been merged with another party by their ex-fellow mates. Consequently, the former party can no longer exist at least under its previous original name. This view was given by former Attorney General K. Parasaran in K.P. Unnikrishnan case (1987). Though the HJC is a recognised state party after the May 2009 general election on the basis of its vote percentage, following the alleged merger by two-third members of the original legislative group, it will lose its original name at least in the Assembly as per the Tenth Schedule. It is a wake up call for all parties to call for the deletion of the provision in the Anti-Defection Law which facilitates unhealthy mergers. Clearly, any recognised party, national or state, can become a victim of such tactics by political
adversaries.
The writer is Advocate, Punjab and Haryana High Court
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Vicissitudes of gotra row
The
gotra row, as stirred up by the bizarre decisions of the khap
panchyats, refuses to die down. It all began with the controversy on
sagotra marriage – a marriage between a boy and a girl belonging to
the same gotra. Recently, such a controversy came into focus when
following the diktat of Kadyan Barha Khap Panchayat, the members of
the Dharana village community resorted to social boycott with the
Gelhout family residing in the same village. The reason for this social sanction was that the Gelhouts married their son Ravinder to the daughter Shilpa of the Kadyans of the same gotra. Such a social sanction could be lifted only if the former agreed to annul the marriage of their son. If this was not done, they must leave the village within a stipulated period of time. Since the couple did not resile, they were ordered not to enter the village. This
controversy appeared in a precipitated form when Ved Pal Mor (23), was
lynched by an irate mob in Singhawala village of Narwana in Haryana on
July 22, 2009. Worse, this appalling act was done in the very presence
of the police that accompanied the warrant officer of the Punjab and
Haryana High Court along with Mor (the petitioner), who was deputed to
‘recover’ his wife from the house of in-laws in a writ of habeas
corpus. What was the provocation for this ghastly act? Mor’s only
fault was that he dared to marry the girl of adjoining village Matour
of the same gotra by violating the so-called well-entrenched social
norms of the community to which he belonged. On this gory incident,
the government maintained studied silence. So was the response of
almost all political bigwigs who aspire to gain power by garnishing
votes at the election. Is it legal and constitutional for the khap panchayats either to pronounce nullity of marriage or to enforce expulsion against the members of the community who are not willing to abide by their dictum? A peep into the social and legal history of India reveals that sagotra marriage invariably falls within the ambit of prohibited relationship. We find resonance of this rule in the Hindu Dharmashatras. The Mitakshara Hindu law (a commentary on Hindu Dharmashatras, which still constitutes the basis of the modern codified Hindu law to a large extent), for instance, expressly states that a girl who is a sapinda, sagotra or samanaparavara does not acquire the status of a wife on marriage. However, the redeeming feature of this shastric rule was that it was not rigid or inexorable. It kept on changing with the flux of time, but only through the adoption of silent, non-violent, customary practices. The Judicial Committee of the Privy Council summed up this social phenomenon perceptively long-long ago in Ramnad case (1868) by observing that under the Hindu system of law, clear proof of usage will outweigh the written text of law. The
deviation from the prohibition of sagotra marriage is not only fairly
old but also widespread. This is evident from the judicial decisions
emanating from the wide spread jurisdictions of Bombay, Madras and
Lahore. See, for instance, Minakshi vs. Ramanadha (1888) from Madras;
Santappayya vs. Rangappayya (1895) from Madras; Ramachanra vs. Gopal
(1908) from Bombay; and Sri Krishen vs. Sham Sunder (1933) from Lahore
– in all these cases sagotra marriages amongst the members of
different communities were legally recognised because in each case a
custom permitting such marriage had been clearly made out. The rational of deviation is that the rules of prohibition are directory in nature and not mandatory. Such an approach instantly opens wide vistas for the play of human rights jurisprudence. Keeping in view the changing disposition of society, the legislature intervened way back in 1946. Through the enactment of Hindu Marriage Disabilities Removal Act (XXVIII of 1946), a reform was sought to be introduced by sanctioning sagotra marriages. It proclaimed that notwithstanding any text, rule or interpretation of the Hindu law or any custom or usage to the contrary, a marriage between Hindus, which is otherwise valid, shall not be invalid by reason only of the fact that the parties thereto belong to the same gotra or pravara. After Independence, this reformative measure was made more comprehensive with retrospective effect under the provisions of the Hindu Marriage Act of 1955. Despite
these legislative reforms, proclaimed and adopted as a matter of
public policy, Haryana’s khap panchayats do not seem to recognise
and accept the reformative direction. Instead they impose their
bigoted will with force on others, which is brazenly unsocial,
undemocratic, illegal and un-constitutional. In a civil society, use of force is the exclusive preserve of the state and none else. Jurisprudentially, it is its most distinguishing feature. Thus, the state is duty bound to act and intervene, more so when it comes to the protection and preservation of human rights so eloquently guaranteed under the Constitution. Even otherwise, all the institutional arrangements in a civil society operate within and not outside the basic framework of the Constitution. Under the pressure of public opinion, however, the state machinery has been prompted to take note of violation of human rights. An encouraging role of the state has come to light when a determined couple, whose marriage had come under a cloud when the panchayat of Boora gotra had opposed their marriage on the ground that Saharans and Booras shared brotherly relations, got married under the cover of police protection, albeit outside village (The Tribune, Feb 7, 2010). For keeping up this crusade, the pressure of public opinion so systematically built up by the national press requires sustenance through continual debate and discussion by involving the representatives of various social organisations, voluntary bodies and social activists. It should be done preferably at the village level through the medium of language and culture of the villagers themselves. Indeed, it is the bounden duty of every citizen to develop scientific temper, humanism and the spirit of inquiry and
reform. The writer is Director (Academics), Chandigarh Judicial Academy, Chandigarh
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Profile His son Manu Seen, an accomplished sitar player, also feels that his father should have got the award much earlier. Ustadji is, however, not complaining. “One cannot get anything before the right time. It’s all fate”, he says. Ustad Seen was encouraged to take up music by his father Thakur Mangat Singh and mother Ishwari Devi. He learnt the nuances of tabla from Mian Kadir Buksh and that of sitar from Pandit Jia Lal Basant at Lahore. Music was not considered respectable at that time. So much so Mangat Singh’s family received warning that they would be ex-communicated if they persisted with music. Mangat Singh ignored the threat. After allowing his son to initially spend time in the company of folk singers, he sent him to the Durga Music Academy in Jammu to begin his music education. It was here that Seen received his training in tabla from Pandit Jagdish Dutt. After his course was over in Jammu, Seen was sent to Lahore where he received further training from great Mian Kadir Buksh, the torchbearer of the famous Punjab Gharana. Main Kadir Buksh was a legend among tabla players of India and produced several disciples of great repute including Ustad Alla Rakha, Ustad Shaukat Hussain and Ustad Lachhman Singh Seen. It was Main Kadir Baksh’s forefathers who founded the Punjab Gharana of table playing. While in Lahore, Lachhman Singh also started learning sitar from Jiya Lal Basant. Before India’s Partition, Ustad Seen returned to Jammu and was appointed tabla teacher at the Maharani College. Later, he joined All India Radio as a staff artist, first in Delhi and then moved to Jalandhar. During this time his guru, Mian Kadir Baksh, came to India and honoured him with the title of “Ustad”. He also formalised his training by studying for and obtaining several degrees and certificates in tabla, sitar and vocal music. In 1962, he was appointed lecturer in music at HMV college – a prominent music institution of Jalandhar – where he served for 25 years, eventually rising to the position of the Head of Music Department. Ustad Seen taught MA and M.Phil classes and during this time, he prepared several teams for various music competitions, composed many orchestras and imparted the knowledge of music to thousands of students. He is a member of the Faculty Board of Study of Music and Fine Arts at Guru Nanak Dev University in Amritsar. Apart from teaching, Ustadji has also played in many concerts all over India and accompanied many famous musicians including Ustad Bade Ghulam Ali Khan, Ustad Amir Khan, Pandit D.V. Paluskar, Pandit Onkar Nath Thakur, Mastar Rattan, Begum Akhtar and Ravi Shankar. His Gurubhai Alla Rakha tried to persuade him to leave Punjab and go to Bombay, but being a proud Punjabi, he refused, saying that he wanted to serve Punjab where he was born and that he is indebted to this great land of sufi, saints and gurus. As a result, he became a music legend in Punjab and everyone takes his name with utmost respect. In a prestigious concert in Calcutta, Ustad Seen’s performance was so impressive that the audience gave him a standing ovation and also chanted “Long live Punjab, Long live Punjab”. Many of his disciples have achieved distinction in the world of music like Pawan Kumar Varma, Tavlin Singh, Avirbhav Verma and his distinguished sons – Manu and Kinnar. His tabla solos have been recorded and preserved in the National Music
Archives.
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People of Telangana feel neglected, says Kesava Rao Four times, he has been PCC general secretary, its vice-president as many times and once the president, thanks to his proximity to the Nehru-Gandhi family from the days Indira Gandhi was battling the powerful Reddy lobby in Andhra Pradesh. He gives all the credit for his and nation’s achievements to Indira Gandhi. “This country’s stability and progress is thanks to two elements – the crystal clean Prime Minister Manmohan Singh and Sonia Gandhi who is a living image of sacrifice”, he tells The Tribune in New Delhi. He is currently the AICC general secretary in charge of West Bengal and Jharkhand. A vociferous supporter of Telangana, he is also the interlocutor between the Government and the Maoists to broker peace. Excerpts: Q: How would you rate the Congress’ alliance with Mamata Banerjee? A: We are chips of the same block. At heart she is a Congressperson, except for her impulsiveness. She is the best I could find to ensure my success in the West Bengal Assembly elections. She feels for the poor. Some Congress workers in Bengal do feel uneasy with her functioning. She has to treat the Congress as equals and not rivals. Our alliance functioned well in the Lok Sabha elections when both of us unitedly took on the CPM misrule. People are fed up with the CPM. That is our trump card. There are minor irritants which we will sort out without any hitch. We realise her charisma and she gives due respect to our senior leader Pranab Mukherjee’s sagacious advice. Q: As for Telangana, will any purpose be served by appointing the Srikirshna Commission? A: Telangana is a five-decade-old issue. It was an independent region for centuries under feudal lords with a socio-cultural background entirely different from the Andhra region, which was under the liberal British regime. Naturally, Telangana was left backward. These two unequals with very different cultural moorings were forcibly brought together against the advice of the experts of States’ Reorganisation Commission (SRC), ignoring the resistance of the Telangana people. Even Pandit Nehru described it as imperialist expansionism. To allay Telangana people’s fears, a novel idea of safeguards was introduced and a gentleman’s agreement signed. However, even the SRC felt that with all good intentions, the safeguards won’t work. Eventually, Andhra ruled the roost on the strength of its majority. In competitive rivalry for development, the majority always gets more, be it river waters, government land for projects or investments. The people of Telangana feel discriminated against even in arts, films and culture. The first Telugu-speaking person who received Dadasaheb Phalke award was noted actor Jairaj. But no one bothered to honour him in Andhra. After this, Akkineni Nageshwar Rao got the Phalke award and he was widely and repeatedly honoured, even with honorary degrees by two universities. Q: The Telangana demand may help the Maoists. Also Mamata is courting the Maoists. Then how do you claim to fight them? A: It is absurd to say that Maoists are backing the Telangana agitation. Women with local deities of Batkamma and Bonnala are participating in the agitation. How can Communists be encouraging religion? This is just the state’s alibi to suppress people’s agitation. Paradoxically, while people shout from the rooftop that Naxalism has its roots in socio-economic injustice, we only blame the Naxalites for their violence. I am a Gandhian and am very clear in my mind that violence has no place in any society, least of all in a democracy. But we need to look at the root cause and first address the exploitation of our tribals and their backwardness without which Naxalism cannot be just be put down as a law and order
problem.
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Successful
It
K Kesava Rao, MP (Rajya Sabha), is a rare breed of politician with an intellectual bent of mind. A product of the Telangana movement of late 1960s and early 70s, Rao started as a journalist from 1964 to 1975, switched to politics, returned to academics to do his Ph D in Philosophy and then returned to politics.