The Tribune, Chandigarh, India

Party discipline
Internal democracy the only fix

THE Congress is trying to put down the smoke rising from many quarters in its Haryana state unit. In Punjab, one can even see the ambers. Unable to enforce discipline on rebellious elements, Congress general secretary Shakeel Ahmed on Sunday said party leaders should refrain from going to the media with their grievances, and instead raise them through the party protocol.

The problem in the Haryana Congress is the multiple aspirants for the post of Chief Minister, which they expect will be up for grabs after the Assembly elections next year. In Punjab, it is the position of state party president, as not all senior leaders have reconciled to Partap Singh Bajwa.

When does a leader rebel in a party? Obviously, when he feels he deserves more than he has, and no one is listening to him. Going to the media is never the first choice. When it comes to eyeing the top few positions, minor sops don’t work, which is why ‘talks’ often don’t help. A determined aspirant will settle for nothing less than his pound of flesh. Depending on a leader’s vote worth, making noise in the media works too — his choice of a few candidates, a position at the Centre, or a few ministerial berths for ‘his people’. Action, as threatened by Ahmed, usually comes only when it is clear a leader won’t come around or if his worth is assessed low.

And how is the worth assessed? Through ‘hearings’ the high command holds with state leaders and workers. This is where coteries come into play, as they can influence who gets a hearing. Many are left with the feeling they got a raw deal. The only sure method of assessing a person’s worth is through votes — internal party democracy. It may not be a coincidence that the Youth Congress has been quite disciplined ever since Rahul Gandhi introduced secret ballot to elect the leadership. The Congress — just as other parties — has not had the courage to go for this advanced experiment with democracy.

Another terrorist caught
US continues its war against Al-Qaida

US Army Delta Force commandos have apprehended a terrorist who had a bounty on his head. The ineffectual protest by the Libyan government notwithstanding, the arrest of Abu Anas al-Liby, who had a $5 million reward on his head, by the US special forces hardly caused any ripples.

It is another notch in the aggressive US policy of hunting down terrorists, especially of the Al-Qaida variety, no matter where they are to be found. Nazih Abdul-Hamed al-Ruqai, or al-Liby, is said to have been involved in the simultaneous bombings of the US embassies in Kenya and Tanzania in 1998. He had a longstanding involvement with Al-Qaida operations and was seen as a high-value target by the Americans.

The US special forces did not get similar success in a simultaneous attack in Somalia, where they had to withdraw following stiff resistance from the local Al-Shabab terrorists. They also found that their target was present where they expected him. The mixed success of the two operations serves to highlight the triumphs as well as limitations that such options have. On the one hand, the US has shown its willingness and ability to strike at will against high-value terrorists. On the other, there is only so much that special operations can achieve. It has to engage with terrorists through various other means too, even as it has to tread gingerly into locations where it has no sovereign rights.

The US will have to address the issue of violating international laws during such raids. It has seen its policy thwarted in Syria, after a strong Russian intervention. Now the UN is doing the job that it should have been doing in the first place. Indeed, even as terrorists spread their tentacles far and wide, international cooperation, not unilateralism, is the key to defeating them. However, till various nations facing terrorism work together to build a common mechanism to deal with it, such raids will take place and will be widely welcomed.

Thought for the Day

You must not lose faith in humanity. Humanity is an ocean; if a few drops of the ocean are dirty, the ocean doesn’t become dirty. —Mahatma Gandhi

ARTICLE

Much talk, some substance
Sharif tries to downplay existence of extremist elements in Pak
by T.V. Rajeshwar

PRIME Minister Dr. Manmohan Singh met Pakistan Prime Minister Nawaz Sharif a day after addressing the United Nations General Assembly in New York on September 28 and the two discussed all important issues, including Kashmir, sharing of river waters, Siachen, Sir Creek and Baluchistan. Earlier, Prime Minister Manmohan Singh also had a meeting with US President Obama.

During his meeting with President Obama, Prime Minister Manmohan Singh explained to him how Pakistan had become the epicenter of international terrorism. The recent attack by Pakistan-trained militants on a police station and an Army post in Kathua district of J&K was also mentioned. President Obama is also fully aware of the deadly extent of the activities of jihadi outfits like Lashkar-e-Taiba in India. USA had even announced a reward of $10 million on the head Hafiz Saeed, the chief of LeT and its parallel outfit Jamat-ud-Dawa and had described him as an international terrorist. In his address at the UN General Assembly also the Prime Minister referred to the terrorist organisations backed by Al-Qaida from Pakistan.

On his part Prime Minister Nawaz Sharif spoke of issues such as Kashmir, the need to ascertain the opinion of the people of Kashmir in deciding on its future and status. He also referred to issues like Siachen and Baluchistan, where, Pakistan had alleged that Indian agencies were instigating a revolt.

During their interaction in New York, Sharif asserted that there was no evidence against LeT regarding its role in the November, 2008 attacks in Mumbai. He also insisted that Jamat-ud-Dawa, the parallel organisation founded by Hafiz Saeed was only interested in extending various forms of help to the rural people of Pakistan and was not known to have indulged in any terrorist activities. It was obvious that Sharif was only trying to play to the gallery, particularly the militant and religious fundamentalists in Pakistan.

The internal situation in Pakistan is in chaos and the state of affairs is known to India as well as USA and other western countries.

An analyst has commented in the News Week of Pakistan that Karachi, Peshawar and Quetta are known to be the bases of terrorist groups and even Lahore has joined the ranks as a terrorist base. This analyst also pointed out that the well-known universities in Pakistan had also become bases of terrorist elements.

However, Pakistan’s newly elected Prime Minister seems to be overlooking the fact that he is, in fact, playing with fire by trying to downplay the existence of extremist elements in his country. The bombing of an ancient Church in Quetta on September 22, in which 85 persons were killed and over 100 injured was a gruesome reminder to the Nawaz Sharif government thatreligious fundamentalist elements like Taliban should not be ignored.

On October 2, 2013 afternoon Lt. Gen. Gurmeet Singh of Srinagar- based 15 Corps briefed the media about the ongoing encounter in the Keran sector of Kupwara district of the LoC. The Corps Commander disclosed that the encounter was on for the past 10 days and as many as 35-40 militants had infiltrated into the forest of Keran sector of Kupwara district. In the flushing out operation carried out by the Army, 15 intruders had been killed and the operation continued for apprehending the remaining militants. Apart from the fact that it was a brazen attempt on the part of the Pakistani Army to initiate the encounter apparently for the purpose of infiltrating militants into Kashmir it exposed the charade which Pakistan Prime Minister tried to maintain during his meeting with Dr. Manmohan Singh.

However, the fact that this encounter has been going on for the past nine days involving 35-40 militants who are suspected to be from Pakistan special troops exposed the design and undependability of Pakistan Army.

It also proves once again that Sharif has not been able to exercise complete control over General Kayani and ISI so far. It is, therefore, futile to hope for peace along the LoC and good conduct on the part of Pakistan Army and the ISI.

With Sharif sticking to inanities like his assertion that Pakistan itself was a victim of terrorism and that it was not helping any jihadi groups, the meeting produced no worthwhile results. In making such assertions, Sharif was only deluding himself even more than he tried to explain Pakistan’s position.

When asked by a media person that since this was his first interaction with Nawaz Sharif and whether he got the impression of him being master of his own destiny or he was being held back by the ISI and the Pakistan Army, Manmohan Singh could only reply that he sincerely hoped that Nawaz Sharif would succeed in carrying out his mission. There can’t be any further comment on the possible outcome of the meeting between the two Prime Ministers.

At the meeting between Manmohan Singh and Nawaz Sharif, it was agreed that the incidents across the LoC would, henceforth, be taken up by the DGMOs of both the countries who would try to resolve these. This seems to be the only worthwhile outcome of the meeting of the two prime ministers, though it remains to be seen how effective his arrangement would be. Sharif also assured the Indian Prime Minister that the most favoured nation protocol would be extended to India in order to facilitate trade between the two countries.

As for the crucial question of progress to bring to justice those involved in Mumbai attacks in 2008, Pakistan Foreign Secretary Jalil Abbas Jilani said a Judicial Commission had recently visited India, with the authorisation to cross-examine and its report was awaited.

Keeping in view, the state of affairs, nothing more could have been expected from the meeting of the two prime ministers.

On the other hand, the interaction between Dr. Manmohan Singh and President Obama was quite productive. India has been a strategic partner of USA in defence matters. India has now agreed to participate in joint exercises with the US fleet in the Asia Pacific Region.

It is also reported that the purchase of a nuclear reactor for generating power from one of the private companies in the US has been agreed upon, though the details are still not available.

In the defence sector USA has handed over a list of 10 defence technologies for transfer to India, thereby bringing it into the small group of close allies with whom America shares such sensitive details. This marks a definite step forward in the Indo-US defence ties and strategic partnership.

The writer is a former Intelligence Bureau chief and Governor of Sikkim, West Bengal and Uttar Pradesh. He was awarded the Padma Vibhushan in 2012

MIDDLE

One fine day, when the lights went out
by Rashmi Oberoi

WHEN you reside in one of those prestigious gated communities that are “oh-so” famous in the real-estate hub of Gurgaon, facilities like security, recreational centres, 24x7 power back-up and other amenities are taken for granted.

This mundane evening around 4pm, there was a power outage. Over time, it is so ingrained in us that subconsciously by the time one slowly counts to 10, the back-up generator is usually on and the lights are back before you know it. Well, that day. The generator malfunctioned as well and the Facilities Manager announced with aplomb that it was a major breakdown. I stood in my favourite balcony that houses all my plants and soaked in my surroundings.

Half an hour later, I suddenly noticed the building across showed signs of life. I always wondered if there were any inhabitants dwelling there. Balcony doors were being opened, “life-forms” were actually leaning against the railings. I noticed a few old ladies fanning themselves with hand-fans. I could see movement at last.

Voila! My neighbour upstairs was dragging chairs out into the balcony as well. A lot of commotion above. I glanced down and saw my neighbours out in their garden and we chit-chatted for a bit, with me leaning over rather precariously. That was quite nice as most often than nought I end up chatting with their Labrador puppy who is a great fan of mine. Obviously, I mean who has time to chat with dogs. Tsk...Tsk! There were definitely many more kids in the park than most usual evenings. More people strolling around too. The zombies had risen. I overheard little kids grumbling and mumbling about the nuances of a tragic evening befalling over them.

No TV, no video games, no computer. By Jove, it was a disaster. I couldn’t help and snigger at how much tougher we were as kids. Power outages were a part of life. The kerosene lamps/lanterns, candles and diyas were all part of our childhood till we got the LED lights that were in vogue. I fondly remember the holidays I used to spend with my grandparents on their farm. Electricity would be available on alternate days. One never quite figured that system out but it was so thrilling to get ice-cubes in our phalsa squash on the ‘light’ days. But we lived like that happily, without a care in the world.

Past 6 pm, I could see myself getting restless too and started pacing my flat like a caged tigress. It was way past my ‘gym’ time you see. The machines in the gym were dead as door nails but I could cycle, right, so I did. I could see people getting more and more impatient as it grew dark and there were no signs of electricity returning. Back at my flat, I got a brainwave. This article was forming in my mind. So I did what anyone in such a situation would do, put pen to paper. This was not an easy task, I daresay, in the backdrop of a flickering candle. Hey presto, here it is. I did realise something very important while writing this piece. I need to start wearing glasses. Like they say, à votre santé!

OPED LAW

Government by Ordinance subversive
The sending of draft Ordinance to the President may be an executive act, but not when the President is obliged to consider it. The President exercises legislative powers. He can also call for a joint sitting of the Houses to take up a Bill.
Ravi S. Dhavan

Any un-thought-through step of creating an Ordinance without urgent need is subversive to democracy as embodied in the Constitution. The attempt to create a law as an Ordinance when no foundations worth the name exist for picking up the wand of emergency, simply to make a judgment of the Supreme Court vanish, shreds the philosophy of the Constitution.

President Pranab Mukherjee pays respects to Mahatma Gandhi at Rajghat on October 2. The President is not a rubberstamp Head of the State; the Constitution provides for him to look into what is presented to him rationally and objectively. AFP

The issue is not so much, at present, whether the Members of Parliament may have an image or character that is sans criminality. Should they be there or not is a matter which Parliament itself has to discuss. Irrespective of the reason for the delay in dialogue in Parliament, it cannot be made an excuse to pick up the emergency legislative provisions as given in the Constitution to require the President to sign an Ordinance.

Long practice, obviously borrowed from British constitutional provisions, has brought the idea into the Constitution of India that the executive may have powers to enact an emergency legislation as an Ordinance when the Houses of legislature are not sitting, and present it to the President for approval, which shall continue as an enactment in all its intent, unless otherwise repealed or modified by Parliament. If this is not done within a certain duration, the Ordinance shall lapse. But the very premise of utilising this extraordinary power by the executive is surrounded by checks and balances, that there must be conditions of extreme and dire emergency to create an Ordinance, and send it to the President, in effect, for ratification. The content of the power is contained in the Constitution, about this there is no doubt. The use of it is writ large with caution. If this power is utilised lightly, during the off periods when Parliament may not be in session, then the world will accuse the executive of conducting a government by decree.

The unchaste haste in requiring the President to promulgate an Ordinance can lead to the conclusion that the executive may face lack of support, present and future, of those who ought not to be members of legislature, who want to reserve their seats, so to speak, now, looking toward an approaching election. In Hindustani, such an effort would be termed as “apne hiton ki vakalat”.

BJP leaders Sushma Swaraj, LK Advani and Arun Jaitley after meeting the President against the draft Ordinance that was subsequently withdrawn. Tribune file photo: Mukesh Aggarwal

Perhaps the confidence to frame an Ordinance when Parliament is not in session may be resting on Article 74 of the Constitution. This Article enjoins that the Council of Ministers with the Prime Minister at the head will aid and advise the President, who will in the exercise of his functions act in accordance with such advice. Simply put, those who want the Ordinance to go through are resting in the confidence that the President is obliged and bound by the advice of the Council of Ministers, but this is not so. This very Article 74 permits the President to require the Council to reconsider such advice, either generally or otherwise. But then, when the ball is sent back to the President there is an obligation that he shall act in accordance with the advice tendered after such reconsideration by the Prime Minister and his Council of Ministers. For an objective, rational and thinking President, may it be said that the rigidity, if there be so, closes the door on the President?

No rubberstamp

The soul of the Constitution has left one door ajar for the President to look into what is presented rationally and objectively. The President is not a rubberstamp Head of the State, lest anybody might locate him in the world of lost ‘riyasats’, to call him ‘Nawab-be-Mulk’. After all, it is the President who has been conferred with the powers or discretion in matters relating to Bills that are under consideration of Parliament to call for joint sitting of both Houses by his message if Parliament is sitting, or by public notification if Parliament is not sitting. The intention of the President, read and written in the Constitution, is to summon both Houses in Parliament for a joint session for the purpose of deliberating and voting on a Bill under consideration. The reference is to Article 108.

The purpose is to demonstrate that the President has discretion in what is being forwarded to him to complete the process of legislation to become an enactment. This is, of course, when MPs have an inclination and desire to aid the Bill to become an enactment. The President helps in this, MPs with this help deliberate on the Bill if it is their desire to carry the motion through and put the Legislation on the Statute Book.

But catching the President to pay heed to a Constitutional provision, and seeking his abetment behind the backs of a Parliament not in session is an exercise that puts a very heavy weight on the shoulders of the executive. Why? Because the Constitution has qualified the circumstances in which the President should use the power.

Not just executive act

The legislative powers of the President to promulgate ordinances during the recess of Parliament bind the President with innumerable cautions, which are spelled out in the Constitution, Article 123, under the head: “Legislative Powers of the President”. If a draft ordinance has been forwarded to the President, the promulgation of which is required during a recess of Parliament, then how much and with what objectivity, due care and caution the President has to look into the Ordinance is spelled out by this provision of the Constitution.

The Constitution puts an obligation on the President that if he is satisfied that circumstances exist that render it necessary for him to take immediate action, then he may promulgate as the circumstances appear to him to require that action may be considered under his legislative powers. Each phrase in this Article is pregnant with meaning. Ordinance is a legislative act, not an executive act. The sending of the draft Ordinance to the President may be an executive act, but not when the President is obliged to consider it. The President exercises legislative powers within the contemplation of the Constitution. No one can question the President if he takes each factor mentioned in Article 123 to assess for himself whether he will pick up his pen to sign on the draft forwarded so that it becomes an Ordinance. This Article on two occasions uses the phrase “for him” — he must consider the constraints under which he permits his seal to be put as his legislative power. The objectivity of the President to abide by the Constitution, his conscience to weigh each factor in the Article, is not less than that of a Judge when he renders a decision under the oath he has taken under the Constitution.

Ordinance Raj

In India, history shows how destructive government by Ordinance can be. More than 40 years ago, governments in various states resorted to the exercise of legislative powers of the Governors to promulgate Ordinances during the recesses of state legislatures. By Ordinance, municipal corporations, municipalities, zila parishads, town area committees, panchayats and mandi parishads were all superseded en masse. On each of these institutions, a bureaucrat sat.

When the experience of democracy at the local level is lost, the citizen of the republic is in the hands of the marauders of power, unbridled and unquestioned. In states where such ordinances were issued the citizen forgot his civil rights.

When the Emergency was proclaimed in 1975, he was virtually told he had no civil rights. Whom could he complain to? Lackeys sat on the chair of institutions of local self-government, exercising the powers of the people who were meant to participate in a fully functional democracy. The freedoms guaranteed by the Constitution were taken away by one stroke of the sword.

When matters related to the loss of local government went to the Supreme Court, the court was exasperated and termed such state-run governments as “Ordinance Raj”. Finally the matters caused enough concern to be debated in Parliament, and amendments were made to the Constitution. But shamefully, though the Constitution was amended more than two decades ago, grassroots democratic bodies, whether panchayats or municipalities, are not functional in their true content and meaning, except in a few states. The fabric of the Constitution is experienced in the running of the country. The experience of local self-government has been lost. A generation grew up without this experience. This is the end result of government by decree, called by the Supreme Court as “Ordinance Raj”.

The purpose of reflecting on these mistakes of utilisation of Ordinance powers is to show how harmful these can be. It puts fissures and cracks in the Constitution and the form of government it envisions.

Embarrassment to President

If an exercise was undertaken to introduce a Bill in Parliament, to eclipse the decision of the Supreme Court, then clearly the Bill was pending consideration. In the normal course of Parliamentary procedure there would be recourse to a Standing Committee and further discussion before Parliament. To take recourse to the path of Ordinance and seek the legislative power of the President is not being fair to the President or the citizens of the Republic of India. Abandoning a Bill pending consideration in Parliament and taking recourse to a backdoor method to have it legislated by Ordinance may be an adventure on the fringe of Breach of Privilege of the Houses of Parliament and a coup de grace to the trust in Parliament.

It was a shabby exercise in mediocrity, of a badly timed use of misplaced power. It has left the parliamentarians not in government in a quandary to reconcile with recourse to two powers on the same subject matter, a double-barrelled approach. A Bill is pending in Parliament and simultaneously resort has been taken to invoke the legislative powers of the President. This must be embarrassing to the President.

There is a lesson to be learnt in the history of parliamentary democracy. On things that can wait and in the ordinary procedures of Parliament be introduced as Bills, the opportunity cannot be denied to the Opposition to express their views. After all, it will only be a debate in Parliament which will carry the motion on the introduced Bill if it is to become law. If the majority fails, then so be it. But a sneaky attempt to resort to promulgation of Ordinance when a Bill may be pending on the same subject, awaiting Parliament to convene, disgraces the Constitution.

The writer is a former high court chief justice.