Gandhian fast once again proves to be a farce.Constitution of India again comes out Victorious & Supreme. 'Reservations' in Constitutional Bodies as a Principle of Distributive Justice is Absolutely Just & Moral and Constitutional. Parliament Empowered To Legislate.The great Indian drama on the issue of Lokpal Bill (The Lokpal And Lokayuktas Bill, 2011, Bill No. 134 of 2011) as introduced in the 'House of People (Loksabha) on 27th Dec.2011 and deferred on vote in the 'Council of States'(Rajyasabha) on 29th Dec. 2011 has raised many a fundamental issues.
PCDHR an institution of AIMBSCS was the foremost to take lead in August 2011 to educate, agitate, organize the people over the various Constitutional, legal and socio-political consequences of this anti-corruption law. It also represented before the standing committee of Parliament (for details see Bahujan Vision Bulletin Issue - 21, Year 6th, Oct. to Dec. 2011CE).
Since the beginning we held the view that the Janlokpal as tried to un-democratically force upon by the un-civil society [because a civil society can be a reality only if their is a Democratic society with public conscience as propounded by Dr.Babasaheb Ambedkar] of Anna Hazare &Co. is an attack on the Constitution of India and a conspiracy to instal a 'nominated' Lokpal over the 'elected' body of Parliament,Government and Judiciary. The corruption can be eliminated by establishment of 'socio-economic justice', 'fraternity &morality' in Indian Society and by bringing a law which is consistent with the Constitution and just with measures to deal with corruption not only of Govt. sector but also private sector,media, religious denominations and institutional corruptions like diversion of SC/ST funds etc.
Reservations in Constitutional Bodies as a Principle of SocialJustice is Absolutely Just &Moral and Constitutional :
Though the various provisions of the JanlokpalBill were not accepted by the standing committee the UPA Government brought a bill with over reaching powers and effect (the details of which can be referred to at length later after going through the necessary amendments as passed by the Loksabha). The 116th Constitutional Amendment Bill brought to give the institution of Lokpal a Constitutional status like the CAG or EC had a very significant provision of 'not less than' 50% reservation for SC, STs, OBCs, Minorities & Women in the 9 member body of Lokpal.This bill along with the Lokpal Bill been passed by Parliament would have settled the issue of reservation in Judiciary (Supreme Courts & High Courts), other Constitutional Bodies like EC, CAG, SC, ST Commissions, defence and higher scientific & technical posts in which reservation is not extended to till date, inspite of the fact that Art. 16(4) provides for 'reservation'of 'appointments or posts' in the services under the 'state'. Similarly Art. 335 provides that the claims of the members of the SCs & STs shall be taken into consideration, consistently with the maintenance of efficiency of administration,in the making of 'appointments to services and posts' in connection with the affairs of the 'Union' or of a 'State'.The Supreme Court had ruled in various cases that reservation is only an 'enabling provision' and not a Fundamental Right. Though it is incorporated in Chapter III to give effect to Right to Equality Art. 14; and Equality of Opportunity Art. 15. Similarly there have been ruling that the Institution of Judiciary is not a 'State'. Art 12 defines "the state" which 'includes the Government and Parliament of India and theGovernment and the Legislature of each of the State and all local or other authorities within the territory of India or under the control of the Government of India'. Art. 1 define India, as a 'Union of States'. The Union Judiciary (Chapter IV) is included "in" The Union, Part V (Chapter I The Executive; II Parliament, III Legislative Powers of the President, IV The Union Judiciary; V Comptroller And Auditor General of India).Similarly The High Courts In The states (Chapter V) is included in Part VI - The States.Apart from this the Constitution does not defines specially the "State" or "Union". It is therefore a matter of interpretation of the Constitution and Legislative competence of the Parliament Under List I - Union List Under VII Schedule U/A 246.The entries 77-79 (Supreme Court & High Courts), 70 (Union Public Services, All India Services, UPSC) and Art 248 (residuary power of legislation) empower the Parliament to enact upon the reservation in Constitutional bodies is a view which holds consistent with the 'ideals' & 'objectives' of Justice - social, economic & political; Equality - of the Status and of Opportunity enshrined in the preamble, and Art.14, 15, 16(4) & 335. This has to be advocated in times to come. Any how judiciary, legislature & executive are the 3 organs of the state recognised by all political theories.Independence of Judiciary does not mean that it is not an organ of state. Rather it is an organ of state or state, assigned the role & responsibility as the Guardian of Constitution.As far as 'distributive justice', 'social justice' is concerned where 'historical discrimination' arises, the provisions are to be framed in such a way which shall lead to the abolition of 'historical discrimination'. Art. 15 of the Constitution of India prohibits discrimination on grounds of religion, race, caste, sex or place of birth with [an] exception; of making any "special provision" for the advancement of any socially and educationally backward classes or for the SCs and the STs. This exception of "Special Provision" has to be read in light of historical discrimination of caste - which has led to the indignity, inequality, exploitation,exclusion and deprivation of SCs, STs and backward classes. There are enough legal &Constitutional principle & provisions on the aspects of 'distributive justice' as 'social justice',The South African Constitution in 'Bill of Rights'(Chapter 2), Sec. 7, 8, 9, 25, 39 etc. Specifically states this as Fundamental Right. Sec. 174-Appointment of judicial officers in; sub. cl. (2)clearly states : The need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed. (Pylee, M. V., Constitutions of the World,3rd ed. 2006, Vol. 2, Universal Law Pub. Co. Pvt. Ltd.,New Delhi) Even the Art. 1(4), 5(c) and Art. 6 of International Convention on the Elimination of All Forms of Racial Discrimination, 1966 and Art. 4 & 20 of Convention Concerning Indigenous And Tribal Peoples In Independent Countries, 1989 evoke theory of 'social justice' as 'distributive justice'.(Brownlie, Ian & Goodwin Gill, Guy S., Basic Document on Human Rights, 5th ed. 2006, OUP, New Delhi) The Theory of Justice and Human Rights also discusses a lot on this issue. (refer Besson,Samantha & Tasioulas, John, The Philosophy of International Law, 2010, OUP : Clarendom Press, London, UK).Thus there in everything right in providing 'reservations' [as a matter of 'social justice' & 'distributive justice'] in Constitutional Bodies including judiciary. It is only the people affected by 'historical discrimination' of caste who can stop this discrimination. Others cannot be expected do so till the discriminatory order itself is destroyed.We will have to initiate a struggle for this based on Ambedkarism in the days to come.
Federalism Must be Maintained as a Constitutional Scheme and to Fulfil the Aspirations of People.Further, the Lokpal Bill by trying to impose the Lokayuktas on the States as mandatory U/A 253 is clearly violative on the federal principles,which is a 'basic doctrine' of our Constitution. It should have been legislated U/252. The UN Convention Against Corruption, 2003 no where compels state parties to frame laws outside the scope & meaning of their Constitutional & LegalProvisions [see Art. 6(2), 11(1), 20, 30(2), 44(8), 10(12),46(4) 55, 65 (1) of this Convention].The issue of 'independence' for CBI or Lokpal per se from the Government or Parliament itself is nothing but a dangerous preposition which will subvert our Constitution and Parliamentary Democracy. No police organisation should be independent of the Elected Govt., and shall always be accountable to the Parliament. There cannot be autonomy at the cost of accountability.Maintaining accountability, due autonomy from undue executive interferences can be understood but not total independence. Can the Armed forces be granted independence from the Executive.How then a Police Organization be, when law & order is a responsibility of the state.We must acknowledge the fact that the Govt.is accountable to the Parliament so is Judiciary because the Parliament can impeach the judges and frame laws under List 1, entry 77-79, U/A 246. In return all the three organs of the State -legislature, executive and judiciary cannot violate the Constitution which is supreme.
Law Must Be Just. Not Draconian & Persecutive in Democratic Societies :The Lokpal must theirfore be within the ambit of Constitutional principles & provisions and not be supreme than the 3 organs of state is a fundamental premise of ConstitutionalDemocracy that we all have to understand.Secondly anti-corruption law must equally apply to eliminate corruption of corporates,private entitles, media, NGO's, religious denominations along with the Govt. Sector or else it shall be violative of Right to Equality U/A 14 and be mearly an attack upon the 'State' by 'market' and 'un civil society' [of caste]undermining our 'Constitutional Democracy.'Third the powers & punishments of any anticorruption law should not be violative of the FRs and HRs of the People and lead to the formation of a 'suffering society' instead of 'humanitarian society'. This will happen if it disproportionately inflicts 'multiple level punishments' (of suspension,confiscation of property, imprisonment of 2 yrs. to 10 yrs, indefinite trials for decades and debarring persons accused of corruption from discharging duties of citzenry). A law must be a 'just law', not unjust,draconian and persecutive is a fact that we all have to understand in a 'Democratic Society'and 'era of Human Rights'. We have to comprehend a Legal Philosophy which is just,moral, humanitarian; also simultaneously being deterrent enough to prevent, pre-empt & punish criminal misconducts.Gandhian Morality is a 'Group Morality' not 'Universal Morality'of Dhamma as Propounded by Dr. Babasaheb Ambedkar.Lastly, it is once again established that 'mentally & (im) morally coercive' Gandhian fasts do not work for the achievement of social & economic objective.Its very easy to give metaphoric statements of valour & blood as Mr. Hazare did but it has been proven once again that the Gandhians cannot dare to sacrifice their life for a greater cause. What to speak of Hazare; even during the 'epic fast' of Gandhi during Poona-Pact he mentally stumbled and his health deteriorated when He came to know that the Person [Dr. Babasaheb Ambedkar] whom he is facing is a 'moral & upright' person for the greater cause of humanity. Neither Gandhi's nor Hazare's cause is universalistic in the sense to remove the human sufferings arisen due to 9 dukkhas of casteism, racism, ethnicism gender discrimination, economic exploitation,environmental exploitation, irreligiousness in religions, cultural & religious conflict, demurgic powers of technoscience. Corruption in India is only a by product of casteism which denies equality, liberty, fraternity & justice and maintains a 'social order' bereft of 'fraternity & morality' resulting in absence of fellow feeling which is so necessary for the formation of society based on humanism i.e. Dhamma.(refer my book on Poona-Pact, 2010, Blue World Series, Nagpur, India; Ambedkarism in the era of globalisation and beyond.., 2011, ibid ).Thus Gandhian morality is a 'group morality'of a few and not the 'Universal morality & humanism' as propounded by Dr. Babasaheb Ambedkar in Greatest Book of the World on the Life Principles, Values & Orders - 'Buddha And His Dhamma'. (BAWS, Vol. 11) Required 'Constitutional Morality' and 'Democracy' as Envisioned & Propounded by Dr. Babasaheb Ambedkar :
On 28th Nov. 1949 delivering the concluding speech Hon'ble Dr. B. R. Ambedkar - the Father of Constitutional India pawed a very important 'vision & way' when He specifically advised to eschew the Gandhian methods (of satyagrah,civil disobedience, non-cooperation) and Marxist - Maoist methods (of bloody revolution) as they lead to "Grammar of Anarchy' when "Constitutional Methods" are open to us. He advised to hold fast to "Constitutional Methods" for achieving our "social and economic objectives", if we want to maintain democracy not merely in form, but also in fact.Quoting J. S. Mill. He advised not "to lay their liberties at the feet of even a great man, or to trust him with powers which enable him to subvert their institutions". The Third thing we must do is to make our political democracy a Social Democracy as well - which means a way of life which recognized liberty, equality and fraternity as the principles of life.Dr. Ambedkar also opined on the working of a Constitution. He felt that the factors on which the working of the Constitution (organs of the state) depend upon are the 'People and the political parties' that they will set up as their instruments to carry out their wishes and their politics. (pp. 1206-18, BAWS, Vol. 13). W e will require to do 'Ambedkarite Politics' for the working of Constitution by our own 'Ambedkarite Party'in the day to comes. In the Constituent Assembly speaking on 4th Nov. 1948, He also emphasised the need of 'Constitutional Morality', which to Dr.Ambedkar was not a natural sentiment. It has to be cultivated. (pp. 60-2, BAWS, Vol. 13)
He also emphasised upon 'Economic Democracy' as our 'ideal'. For this every Government who soever in power, shall strive to bring about economic democracy by implementing the Directive Principles of State Policy (Part IV).While conceiving upon the formation of 'Peoples Education Society' Dr. Babasaheb Ambedkar also envisaged about 'Moral & Intellectual Democracy' on 20th June 1946.(pp. 182, Gaikwad Pradeep, Dalitanche Sikshan, (ed.),2004, Sitij Pub. Nagpur)To summarise we can say that Dr. Babasaheb Ambedkar - the Father ofConstitutional India emphasised upon '5 Democracies' to resolve the problems of Indian caste system and polity. They are Political (truly representative & participatory Parliamentary Democracy), Social (1 man 1 value in all walks of life (G.N.), Economic (equality, with equity & dignity, welfare state),Moral (universal morality & wellbeing of humanity) and Intellectual (science, i.e.reason, truth, rationality) Democracy. No political thinker before Him has done so. Neither in Western World nor in Eastern World.Only by establishing these 5 Democracies as envisaged by Dr. Ambedkar we an resolve the 'life of contradictions' arisen due to social & economic inequalities of our caste system sanctioned by (a)dharma. The law & institution of Lokpal ombudsman against anit-corruption though necessary can not and must not be allowed to transgress the durable solutions as discussed above. Neither it be allowed to subvert Our Constitution and Parliamentary Democracy.Let us prepare ourselves to do so by succeeding in Ambedkarism to create an 'Enlightened India'., Sangh [AIMBSCS] is committed to do so under the 'National Plan To Succeed In Ambedkarism".
JaiBhim ! Jai Phooley ! Jai PraBuddha Bharat !!!
Vijay Mankar,
National Organiser,
AIMBSCS
( Article from Bahujan Vision Bulletin quarterly published publication of AIMBSCS )
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