Home arrow Archives arrow Open Forum arrow Open Forum 2008 arrow Politicians And Rule of Law:A CONSTITUTIONAL OUTRAGE,Ashok Kapur, IAS (Retd), 17 March 2008
 
Home
News and Features
INFA Digest
Parliament Spotlight
Dossiers
Publications
Journalism Awards
Archives
RSS
 
 
 
 
 
 
Politicians And Rule of Law:A CONSTITUTIONAL OUTRAGE,Ashok Kapur, IAS (Retd), 17 March 2008 Print E-mail

Open Forum

New Delhi, 17 March 2008

Politicians And Rule of Law

A CONSTITUTIONAL OUTRAGE

By Ashok Kapur, IAS (Retd)

The Chief Minister of U.P. has reportedly issued an order requiring mandatory reservation of jobs in all private entities if they are to continue doing business with the State Government.

Even by the declining standards of Indian politicians and their scant regard for constitutionalism and the rule of law, this is an unprecedented assault on the Constitution since it was introduced in 1950.  According to reports, no work or supply order would be issued by the U.P. Government nor any contract awarded to a private party unless it reserves a certain percentage of jobs in favour of a particular caste or community. Translated into plain English, it means the U.P. Government has enforced a quota regime in the private domain. Needless to mention, persons appointed to reserved jobs shall belong to the Chief Minister’s own caste.

In the scheme of the Constitution --- a holy covenant in any civilized society --- there is a provision for a certain percentage of job reservations. But this is so only in public employment. The founding fathers made it a time-bound measure at the dawn of independence. That time is long past but the beneficiaries of the quota regime have grown into a vested interest, solely to perpetuate themselves and their progeny in power.

The initial quotas were aimed at benefiting the marginalized sections of the society, identified as belonging to certain castes or tribes so as to bring them into the mainstream. These were duly notified as Scheduled Castes and Tribes. Two generations have passed and the beneficiaries of the quota regime, by and large, are now an elite in their respective castes or communities. Instead of gradually doing away with such artificial props, the politicians have expanded the quotas to include the so-called OBCs.

The Constitution does not authorize the executive to enforce reservations in the private domain. It guarantees equality of opportunity in matters of employment to all citizens. Another fundamental right prohibits discrimination on grounds of caste or community or religion. The U.P. Government, by enforcing quotas in private employment has curtailed the fundamental rights of citizens to equality. In other words, the State Government has, through an executive order, in effect bypassed the Constitution and curtailed the citizens’ fundamental right against discrimination.

Some very serious issues arise in this context. The Chief Minister has been badly advised as to the ramifications of her government’s action. When questioned as to the authority for such an unconstitutional move, she is reported to have stated that it had been authorized by the State Cabinet! The reply is not even risible. Were it not for the fact that it is being carried out by a Chief Minister with some administrative experience, it could have been explained away as plain ignorance or misplaced sympathy.

In context, such a measure can only be attributed to a brazen defiance of constitutionalism and the rule of law. In any other democracy that claims to be civilized, such a move would have immediately attracted a motion for impeachment. But some Indian politicians deem that success at the elections confers on them an immunity from law and Constitutional obligations.

It needs to be recalled that the same Chief Minister had earlier appointed a Cabinet Secretary, who is a political appointee and a local recruit.  In the bargain, she had enshrined the principle of ‘spoils system’, described as an evil ‘system’ in the world’s first constitutional state, the USA. It was likewise an unconstitutional step. As it was not opposed by the Government of India, an unhealthy precedent was allowed to be set. Of a piece with the earlier action, her latest move is tantamount to amending the Constitution by a State Government.

It is indeed disconcerting that none of her advisers pointed out that executive instructions, which impinge on the fundamental rights of citizens, are an initio null & void. Let alone a State Government, even if these were to be issued by the Union Government. Apparently, the elected state cabinet is not aware of the basic scheme of the Constitution, whereby fundamental rights cannot be whittled down or curtailed, being immutable. This is the position after the landmark judgment of the Supreme Court in the celebrated case of Keshvananda Bharti in 1973.

The further reported announcement by the Chief Minister that such reservation was to be limited to 10 per cent of the private employment, will fool no one. It only reminds one of the proverbial tale of the camel’s entry into the Arab’s tent. The Constitutional Review Commission, headed by the respected Justice M.N. Venkatchalliah, former Chief Justice of India, has cautioned the Union Government against what it termed as the “law of unintended results in the public domain”.

Once such executive instructions are accepted unopposed and observed as sovereign fiats, there is absolutely no guarantee that the initial percentage will be gradually increased to cover a majority of the Chief Minister’s own caste or community. Increasingly, castes or classes are becoming conveniently elastic, thanks to the machinations of wily politicians. It would be a safe wager that eventually the ten per cent formula may quite literally be turned on its head, and may eventually come to represent the unreserved percentage. Incidentally, members of the Chief Minister’s community claim to be a majority of more than 70 per cent.

This is already happening. In a southern State, such reservations have exceeded 50 per cent thereby openly if not brazenly flouting the reservation limit laid down by the Supreme Court. Once again, needless to mention that the reservations are in favour of the ruling Chief Minister’s own caste. In theory, the orders of the Supreme Court have the force and effect of the law of the land. Apparently, some ruling politicians have little or no patience with such technicalities as constitutionalism or the rule of law.

In sum, the reported move by the U.P. State Chief Minister needs to be immediately reserved if India is to survive as a democracy under the rule of law, now a basic feature of the Constitution. --- INFA

 (Copyright, India News and Feature Alliance)

 

< Previous   Next >
 
   
     
 
 
  Mambo powered by Best-IT