Sanjay Negi's thoughts on Current Affairs and Information Technology Directions.


Saturday, December 02, 2006

The Farcical Fight Between The Judiciary And The Legislature

The founding fathers of the Indian Republic created a Constitution according to which the functions of the State were to be carried out by the three pillars of Legislature, Judiciary and the Executive. Since the founding fathers freely copied the constitution from the hated English who had built it over 800 years starting with Magna Carte, they probably understood little of the underlying ideology and even less of the implications of transplanting this set of laws to an alien demography.

The results of this artificial grafting are all there to see today. When in doubt, people try to seek guidance in what is written in the law books rather than vigorously debating the rights and wrongs of the issues at hand. The foreign inspired constitution has merely replaced the “Shastras” that Indian society has used for millennia to perpetuate the yoke of the status quo. The Shastras were written by the gods and the constitution was written by the British.

When Indira Gandhi used her brute majority in the Parliament to modify the constitution any number of times, trampling over nearly all kinds of so called fundamental rights, the Judiciary tactfully rubber stamped everything leading people to believe that the Legislature was after all supreme and the Judiciary could only adjudicate on the laws manufactured by ill meaning, quasi-criminal elected representatives of the hapless people. Whenever the Judiciary betrayed a difference of opinion, it was quickly trumped by suitable ordinances or changed laws.

So what has changed suddenly that a sheepish Judiciary has started roaring. For one, the days of steamroller legislative majorities seem to lie well in the past. Secondly, the Judiciary has skillfully wangled some degree of autonomy over the career movements of its members by restricting the role played by the executive in selection and appointment of Judges. Thirdly, it seems to be just human nature, the Judiciary must have been feeling left out and thought it was about time they made their presence felt especially now that the risks of retribution were low.

However there is enough diffidence in the Judiciary even today. They leave sufficient room for a respectable withdrawal just in case things get ugly. Look at the issue of sealing of unauthorized commercial establishments in Delhi. Everyone knows that in India public property is for encroachment. Only the infirm and the stupid do not practice encroachment. This is done with the encouragement of the local government mafia who extract their rents from these trespasses.

To expect people used to freely occupying common property to follow some quaint building use rules for their own property is stretching beyond the incredulous. In any case the rules are not made with a view to running well ordered centers of civilizations called cities and towns. The rules are meant to maximize the rent seeking potential of the municipal and law and order machinery.

It is true that the vast majority of buildings flout bye laws. It is true that vast majority of commercial establishments in Delhi operate out of premises the law permits only for residential purposes. Alas it is also true that Delhi’s legally permissible commercial built up space is a fraction of what any sensible benchmarks would allow. It is true that the violations of the building use rules have been happening for half a century and the local government machinery has been feeding itself on the rents collected through graft.

The rules are not changed as that would restrict the avenues for graft for the local and even federal government machinery including politicians at the highest levels of this wayward society.

It is not that the whole sequence of events is pre-planned. If the intentions are male fide, it does not require any genius to create hell on earth. An ordinary city like Delhi which has no ports, had no industry, has a thin natural and human resource base is artificially injected with funds from the central exchequer and a gleaming island of infrastructure and prosperity is created in the midst of an ocean of wallowing poverty in the surrounding hinterland. The purpose surely is to provide for the grandeur comforts of the parasitical bureaucracy and political class. Even the judicial class benefits from this appropriation of resources which could have been easily better used to serve the semi starving, ill clad, illiterate millions.

Naturally this oasis attracts migrants like bees to a honey comb and soon the infrastructure including the building bye laws and use rules start running short. The public infrastructure is beefed up by pumping in more money to build flyovers, water treatment plants, wider roads, new power stations and so on. The private infrastructure like housing and commercial spaces however are restricted as the politicians and officials quickly realize that the rules provide an unending source of graft rent for ensuring prosperity to their ilk for ever.

The judiciary is not part of this gravy train party, at least not directly and therefore has nothing to lose by adjudicating in favor of strictly enforcing the existing laws. The RWA’s are happy that at least someone is upholding the rule of the law. These same RWA’s did not protest when the prices of their properties appreciated a hundred times on the back of public infrastructure created by funds from the central exchequer.

Forget the quaint laws for a moment and just try to follow the path of natural justice. Are the RWA’s of Delhi entitled to the astronomical unearned gains in their property prices and also a hassle free living in sylvan surroundings? These same RWA’s agitate against fair user charges for utilities like water, electricity and sanitation. They seem to staunchly believe that the steeply usurious taxes extorted from the public by the government through strong arm methods are meant for their welfare.

It is true that the prime role of the judiciary is to adjudicate upon the laws as they exist. However when the legislative and executive wings of the state become predatory and start feeding on the public they are supposed to serve, it is good to have some counter ballast. Only in this case, on a deeper examination, the judiciary is not on the side of the public but on the side of the RWA’s and therefore on the side of the exploitative machinery of the State. Therefore the whole debate is farcical.

I am tempted to prescribe a series of actions to unravel this logjam. Start with user charges for all utilities and municipal services. Gradually increase these user charges to cover all capital costs from the beginning. I am sure that given the vastly inefficient use of capital by any government department, costs will increase to fifty rupees per kiloliter for water or a unit of electricity. Increase house taxes to recover costs of sanitation, roads, flyovers and street lighting. Insist on user charges for public transport and the much hyped metro. Extend this to College education and Health Care eventually and then convert all these services and institutions into independent corporate entities shares of which can be traded on the exchanges for inculcating accountability.

With these sensible changes, people will start to flee Delhi, and the artificially swollen metropolis would return to a more natural size. The debate about inadequate commercial spaces would become redundant. The RWA’s can then live in a relatively quiet though expensive city in houses which no longer cost thousands of times the wages of an average Indian.

The other debate raging today is the one over reservations. The judiciary insists that more than fifty percent is unconstitutional. It would not like the legislature to trivialize the subject by putting this beyond judicial review. This can snowball into a full fledged confrontation especially as the founding fathers had not anticipated such an eventuality. It may be a good idea to go back to the British and seek their opinion on who is right.

But before we take the extreme step of consulting the hated Englishmen, it may be better to examine the specific issue of reservation. Obviously, if market forces worked fairly, governments would not have to intercede in favor of the disadvantaged. The bedrock of affirmative action by the state is equality of opportunity. It is not to throttle true competition or a fair fight to the finish. But then how do we decide whether a fight is intrinsically loaded in favor of the advantaged.

Indian society through the ages has developed masterly mechanisms to perpetuate the status quo. The institution of caste is just one of the more visible pillars of this machinery. The family is a strong institution and it helps in establishing the new generations in positions of advantage. It happens all over the world, but much more so in India. This is not perceived to be unfair by society. When the family grows to include in its fold caste and creed to similarly extend advantages of birth, the constitution cries foul and indeed asks the state to reverse the tide.

At stake are parasitical government jobs and seats in professional institutions. So far the state has hesitated in extending reservations to the full economy. The government sector including the Public Sector practices reservations at intake and reservations during promotions with life time employment. Extending reservations to the hire and fire Private Sector would be meaningless and therefore the reluctance. So the attention has shifted to the more vulnerable professional education sector. Armed with a Supreme Court ruling that Professional Education should not be run on commercial lines for maximizing profits, the HRD ministry is trying to force the Private institutions to share the burden of providing quality education to the reserved categories.

On the one hand, the HRD ministry pours gigantic sums of money into IITs, IIMs, and other professional colleges where the costs per student graduated is several dozen times what it costs a much more efficient Private institution to do and on the other Private institutes are banned from raising resources to build world class infrastructure. If the goal is indeed to spread higher education rapidly, it is elementary math to conclude that the money must be spent in the private sector. The argument given is that the IITs and other government institutions have much higher standards of education compared to Private colleges. This is absolutely baseless and is indeed a blatant lie. The truth is that IITs provide vastly subsidized education and other campus centric amenities which attracts vast number of applicants and therefore the fierce competition ensures that the brightest students go to the IITs. This has nothing to do with the quality of education being imparted.

An objective way of assessing the quality of the curriculum would be to measure the value add to the intake and it is quite evident that the mediocre intake to private colleges is turned into valuable professional material readily useable by industry and these students give good competition to the super bright intake by the IITs who are dulled during their graduation stint in those hallowed portals.

Therefore several independent issues are getting mixed up in the debate about reservations. Reservations with lifetime employment is impossible to practice for commercial organizations who have to compete globally directly or indirectly. This brand of reservations can only work in the Government and Public Sector who feed off the exchequer representing the booty looted from the tax paying public. If reservations were de-linked from life time employment, it would be possible to extend the promise of “equality of opportunity” to the full economy.

The exact percentage then gets rendered meaningless. In a truly equal opportunity society, employment proportions would reflect demographics and if employability is a concern, it is for all the players who are competing in the markets. It can be argued that organizations outside India would gain an unfair advantage, but there are much bigger factors of competitiveness that handicap Indian Industry viz. our bureaucracy, corruption and red tape and this would be an insignificant accretion to that burden.

Issues like creamy layer are distractions of a scarcity mentality. If the whole economy is involved, the creamy layer would be just that, a thin surface layer. The bulk of the required numbers would have to come from elsewhere.

As far as reservation in Private professional education is concerned, the real issue is subsidized education. Scarce resources are being run down the IIT, NIT and IIM drain. The money can be easily used to provide education support to the disadvantaged in private colleges. After all the idea is to help large sections of the social under classes get higher professional education. There can be no better cost effective solution than this. At the same time, we cannot hide behind the Supreme Court ruling saying that education must not be commercialized. If surpluses are being used for building more capacity and infrastructure, why are people objecting. If the thought is that expensive higher education fouls up the “equal opportunity” ideal, then the solution is providing means based scholarships, not choking resource flow to efficient providers of quality education.