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)
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