Category: Politics

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General Politics

Article 142 of the Indian Constitution

Recently, the Supreme Court in the so called “Bulldozer Justice” interim order, referred to the use of Article 142 of the Constitution thus piquing my interest.

The Supreme Court was hearing petitions, about certain State  Governments, who were demolishing the homes of individuals accused of crimes, using bulldozers as a punitive measure. The Court passed an interim order pausing till the next hearing, any demolition activities across the country without prior court permission. They excluded demolitions that pertained to public encroachments like illegal constructions on roads or public spaces.

When the Solicitor General, Tushar Mehta, representing one of the State Governments, objected to the order, arguing that it unduly restricts the powers of statutory authorities, the Bench said that the directive was being issued under the special powers granted by Article 142 of the Constitution.

This Article is a unique tool that lets the Supreme Court deliver justice in cases where existing laws might not cut it. But what exactly is Article 142, and how does it impact the justice system in India?

What is Article 142?

Please find below the excerpt of the Article from the Constitution:

“142. Enforcement of decrees and orders of Supreme Court and orders as to discovery, etc

(1)The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or order so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe.

(2)Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself. “

Article 142 gives the Supreme Court the power to pass any order or decree needed for “doing complete justice” in any case before it. In simple terms, this provision allows the Court to go beyond the existing laws and technicalities to make sure justice is served.

It’s important to note that while laws govern the land, there are often situations where strictly applying these laws might not fully address the complexities of a particular case. Article 142 lets the Court step in and fill those gaps, ensuring that justice is delivered.

For example, in cases where laws may be outdated or don’t cover certain modern issues, or when the legal process is too slow or burdensome, Article 142 gives the Supreme Court the flexibility to issue judgments that directly address the problem at hand.

Key Features of Article 142

  • Discretionary Power: Article 142 gives the Supreme Court wide-ranging powers. The Court can issue orders related to attendance, document discovery, and even deal with contempt of court issues. This flexibility allows the Court to act in ways that ensure justice is not delayed or denied.
  • Going Beyond Ordinary Law: The Court can use Article 142 to bypass legal restrictions if they stand in the way of delivering justice. This doesn’t mean the Court acts arbitrarily, but it does give it room to maneuver when standard laws are inadequate.
  • Ensuring “Complete Justice: The essence of Article 142 is that it seeks to provide full justice, even in situations where laws may be unclear, insufficient, or outdated.

Some Real-Life Examples of Article 142 in Action

  • One of the instances where the Supreme Court invoked Article 142 is in the Bhopal Gas Tragedy case. The Court used this article to ensure that victims of the tragedy received compensation, even though existing laws at the time weren’t equipped to handle such large-scale disaster relief.
  • In another instance, the Court used Article 142 to allow divorces based on the “irretrievable breakdown of marriage”, even though this specific ground wasn’t mentioned in the Hindu Marriage Act. This allowed the Court to address situations where couples were stuck in irreparable marriages but couldn’t get a divorce because the law didn’t recognize such cases.
  • More recently, Article 142 came into the spotlight during the “Chandigarh Mayoral Poll” case, where the Supreme Court overturned the results of a mayoral election due to misconduct by the returning officer. By invoking Article 142, the Court ensured that electoral integrity was maintained, even though the legal process might not have offered a straightforward remedy.

Guidelines for the use of Article 142

In a recent Landmark Judgement – “High Court Bar Association Allahabad v. The State of Uttar Pradesh 2024 INSC 150 (29 February 2024)”, the Supreme Court laid down the following guidelines for the exercise of its powers under Article 142 of the Constitution:

  • It cannot be exercised to nullify the benefits derived by a large number of litigants based on judicial orders validly passed in their favour;
  • The Court cannot ignore the substantive rights of the litigants;
  • The Court can issue directions to the Courts for streamlining procedural issues, however, the Court cannot affect the substantive rights of those litigants who are not parties to the case before it. The right to be heard before an adverse order is passed is a substantive right; and
  • It must not defeat the principles of natural justice

Conclusion

Article 142 is important because it gives the Supreme Court a tool to ensure that justice is not limited by the technicalities of outdated laws or procedural delays. It allows the judiciary to act swiftly and effectively when necessary, ensuring that the spirit of justice prevails over the letter of the law.  However, this power is not without its limitations. The Court has to be careful not to overstep its bounds and ensure that the use of Article 142 does not infringe on the fundamental rights of individuals or the principles of natural justice.

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General Politics Uncategorized

A Missed Opportunity: The Cancellation of Lateral Entry in Government Recruitment

A few days back, the UPSC had issued an advertisement seeking lateral entry of talent into government service for several posts of Joint Secretary, Director, and Deputy Secretary levels. This created a buzz amongst many of us in the Corporate Sector. I thought it was a very good move to add talent and bring in fresh perspectives, new ideas, and specialized skills into the government.

However, there was criticism from the opposition parties because the advertisement did not mention reservations for Scheduled Castes (SCs) and Scheduled Tribes (STs) in the recruitment process.  One of the political parties which is part of the NDA government also criticized the move.  This move by the government was painted as an attack on the Constitution for ignoring reservations.

Yesterday, the Indian government decided to cancel the planned lateral entry. I believe this move is disappointing and undermines the potential for improving the efficiency and effectiveness of government. While it is true that ensuring reservations of SCs & STs in government jobs is crucial, it is important to note that the cancelled recruitment process was meant for specialized positions requiring specific skills and expertise, not for generalist roles.

Moreover, as Karthik Muralidharan, author of “Accelerating India’s Development: A State-Led Roadmap for Effective Governance,” argues, the lack of state capacity is one of the biggest hurdles to India’s development. He highlights the need for a more effective state, emphasizing state-level reforms as critical for India’s advancement. Lateral entry of talent with specialized skills and expertise could have been a crucial step towards building that capacity.

While I strongly believe in social justice and agree that reservations are required, such a policy need not be applied blindly in all situations. It is already well accepted that reservations are not applicable for Single Post cadres in the Government.  If reservations have to be incorporated even for lateral recruitment, the government may not be able to fill the positions or will need to create additional positions just to fill the quota.

The cancellation is a step backwards that will ultimately harm the country’s development prospects. Instead of cancelling the lateral entry process, the government should have explored ways to ensure that it is implemented in a fair and equitable manner.  

Categories
General Politics

Reflecting on one’s ideology!!

There was a recent debate amongst my friends about definitions of Liberal, Right-Wing, Woke etc. Many of us held similar views on some areas but differed in other areas – so I wondered if it is right to put a neat label on someone – isn’t one’s ideology more complicated than that?

This is my attempt to define my own ideology based on what I believe in. This is work in progress, and I am sure my thoughts and words may undergo change.

My ideology is rooted in the belief that the government should respect and protect individual freedoms while simultaneously fostering an environment that encourages economic growth and social progress. This dual focus on personal liberty and public welfare forms the cornerstone of my worldview.

Personal Liberty

At the heart of my ideology is a respect for personal liberty. I firmly believe that the government should not dictate how individuals lead their private lives. This includes areas such as religious beliefs, eating options, personal reading choices & media consumption. Each person should have the freedom to explore, learn, and believe without fear of government interference.

The ability to worship, or not, in accordance with one’s beliefs is a deeply personal decision that should be free from state intervention. The government’s role should be limited to ensuring that everyone can practice their religion without persecution or discrimination.

Similarly, the freedom to read and watch what we choose is essential for a vibrant and open society. Literature and media are vital avenues for the exchange of ideas, cultural expression, and personal growth. Government censorship in these areas not only stifles creativity but also undermines the foundational principles of democracy.

Public Policy: Lifting All People

While personal liberty is paramount, the government does have a crucial role in the public sphere. Effective public policy should aim to lift all people, particularly the most disadvantaged. Pro-poor policies are essential to bridge the gap between the rich and the poor, ensuring that everyone has access to basic needs and opportunities for advancement.

However, these policies must not cater to majoritarian whims. Instead, they should be designed to benefit society as a whole, protecting women, minorities and marginalized groups from discrimination and inequality. This inclusive approach ensures that no one is left behind and that the benefits of economic and social progress are shared broadly.

Economic Growth: Encouraging Private Capital

Economic growth is vital for the prosperity of any nation. However, the path to growth should not be paved with failed communist policies or cronyism. Instead, policies should encourage private capital and entrepreneurship, creating a dynamic and competitive market. This approach fosters innovation, increases productivity, and generates employment opportunities.

Private capital, when harnessed effectively, can be a powerful engine for economic development. Government policies should therefore create an environment that supports business growth, reduces bureaucratic red tape, and combats corruption. Transparent and fair regulations are essential to ensure that all businesses, regardless of size, have the opportunity to thrive.

Rights

Fundamental rights are the bedrock of a just society. Public policies should not only protect these rights but also actively work to reform regressive social practices that infringe upon them. An example of such a reform was the abolition of triple talaq in India, a practice that was inherently discriminatory towards Muslim women.

Reforming regressive practices requires a delicate balance. On one hand, it involves enacting laws that protect individuals from discrimination and violence. On the other hand, it requires respecting cultural and religious traditions. The goal should be to promote social progress while maintaining respect for diversity and individual freedoms.

Conclusion

In essence, my ideology envisions a society where individuals are free to lead their private lives without government interference, yet are supported by public policies that promote economic and social progress. It is a vision of a world where freedom and progress go hand in hand, creating a brighter and more equitable future for all.

This balance is not always easy to achieve, but it is essential for a harmonious and prosperous society. By respecting personal liberties and promoting inclusive growth, we can build a world where everyone has the opportunity to thrive, regardless of their background or beliefs. This is the essence of my ideology – a commitment to freedom, justice, and progress for all.

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General Politics

Asset Monetization in India

The Indian central government has recently announced an ambitious Asset Monetization Plan. The objective of this plan is to offer existing government owned infrastructure assets(“Brownfield” assets) to private investors, thereby generating fresh capital. The newly generated capital can then be used for further infrastructure investments, without adding to public debt. The infrastructure assets will be offered in various sectors – Roads, Railways, Warehousing, Ports, Airports, Telecom, Power Generation, Power Transmission, Natural Gas pipelines, Real Estate as well as other assets like Sports Stadia. Over 6 Trillion INR(81 Bill USD) will be offered over the next 4 years under this Plan.

Unlike privatization, the government will not be giving up ownership control of the assets. Instead, the assets will be returned to full control of the government after a pre-determined number of years. 

Let us examine the impact on the stakeholders involved – Government, Private Investors and Indian Citizens.

  • Government : This allows the government to raise money from existing assets without increasing debt. This also side-steps the politically unpopular discourse around privatization. For this to work, the amount that can be generated upfront has to be more than the NPV of the current predicted earning streams of that asset. For example, if the asset is a road, the upfront money has to be more than the discounted cash flows of profits(from toll charges) that are currently being generated/projected over the next few years. The key assumption is that the asset is underutilized from an earnings perspective. It is assumed that a private operator can either generate more revenues or reduce cost of operations or do both. However, the government will need to handle any blowback that may occur if the private operators provide inadequate service to the citizens.
  • Private Investors : Strategic investors(companies like Reliance, Adanis etc) would be interested if they believe a) they can operate these assets better than the government and/or b) the asset will provide synergetic value to their other businesses. Institutional investors who are typically long term investors like pension funds & sovereign funds, would be interested if they believe that the risk adjusted returns are higher than government bonds. India’s experience in BOTs & PPPs for greenfield projects has been mixed and investor interest will be based on past experiences, legal issues & contractual obligations that the government will lay out for that asset.
  • Indian Citizens : Private operators are very likely to offer better customer experience to Citizens than what the government is currently offering. However, citizens who do not pay full prices for the services(either through avoidance or special political considerations) will get impacted. Citizens also benefit indirectly as the government will be able to raise vast sums of money without increasing debt or taxes.  Citizens could also benefit from the innovative uses of the asset by the private players – for example new retail stores & office space in assets like railway stations.

I believe that this is a good move by the central government and opens up interesting opportunities for infrastructure players in India. The government could also look at other sectors in the next phase – for example in healthcare, there are medical diagnostic assets (CTS/MRIs) that can be potentially monetized by offering it to diagnostic chains.

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General Healthcare Politics

Covid Surge in India

I had written 4 months back about the India’s Covid Vaccine rollout plans. Even to someone who is not in public health, the enormity of the challenge was obvious. At 3 million vaccines a day and assuming children would need to be vaccinated too, I had said it would take over 2 years to get the country vaccinated. It was critical to have plans for managing the pandemic during those 2 years. The surge of cases that has now hit India has shown the inadequacy of the preparation. Indian healthcare system is struggling to cope with the increases in the hospitalizations – lack of Covid beds, ICU beds & Oxygen. In my view, India needs to do the following:

  • Continue to work on the Vaccination roll-out. While India has hit a milestone of 100 million doses, it is still far behind the over 2 billion doses required. India needs to clear any bottlenecks on the supply side. In parallel, India needs to educate the citizens on the need to get vaccinated.
  • As the vaccine roll-out will take more than a year, India needs to plan assuming the worst – that there would be other Covid surges.
    • Increase the medical supply to handle any surges – beds, ventilators, pharmaceuticals for treating patients
    • Continue mask requirements, social distancing and ensure small public gatherings
  • Support the economy – the surges & lockdowns will impact the economy over the next 2 years – the government will need to provide stimulus as required.
  • Support people impacted negatively by the economy – social welfare schemes need to be bolstered.
  • The Central & State governments need to be transparent with the public. This is not the time for politicking and scoring brownie points at the cost of transparency. That will damage the trust of the citizens with the system

As the April 2021 surge has shown, we cannot be complacent with this pandemic – while we should hope for the best, lets prepare for the worst!

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General Politics

Mohandas Karamchand Gandhi

Gandhi was assassinated on Jan 30th, 1948, just one year after he led India to its independence from British rule. On this 73rd death anniversary, some of his messages that I have found most inspiring are listed below:

  • Very transparent life – he has extensively written about his views including his well- known book – ‘My experiments with Truth’. The ‘Collected works of Gandhi’ is close to 100 volumes. He strongly believed in leading by example – he is quoted to have said – “My life is my message”. If one were to imagine Gandhi living today, I am sure he would be extremely active on Facebook, Insta & Twitter.
  • Inter-faith harmony – Gandhi was an absolute believer, that people of all religions need to live together in peace. Gandhi himself was a devout Hindu. However, he was completely opposed to religion becoming a wedge in society. He was extremely disappointed that he couldn’t prevent the partition of the Indian sub-continent into India and Pakistan. During the Hindu-Muslim communal riots, Gandhi was on the front-lines, giving speeches, using all his moral authority & fasting, to stop the riots – his letter to  Vallabhai Patel, had this statement “My going on living depends entirely on complete peace being established in India.”  Unfortunately, the world hasn’t changed too much – there continues to be several conflict zones in the world based on religion & ethnicity –for example, the large scale persecution of Rohingya in Myanmar! The world needs more leaders like Gandhi to put an end to such conflicts.
  • Satyagraha – Gandhi perfected the art of non-violent resistance calling it Satyagraha(Truth force). Several leaders including Martin Luther King were influenced by this philosophy in their social change movements.  Some people mistake Satyagraha as being weak – however this form of resistance needed people to be extremely brave. Gandhi and other freedom fighters in India faced several hardships including spending years as prisoners.
  • Simple Living – One of his famous quotes is “”The world has enough for everyone’s needs, but not everyone’s greed”. Today, as we debate Climate Change, the widening gap between the rich & the poor and the short-comings of capitalism, Gandhi’s message of simple living is extremely topical. Gandhi experimented extensively about living a monastic life. While this kind of lifestyle is not for everyone, we should all reflect about the lifestyles we lead!
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General Politics

Republic Day Reflections

26th January, 2021 is India’s 71st Republic Day. In 1950, this was the day on which the Constitution of India came into effect. The Constitution was written by the Constituent Assembly of India, which had its first meeting on 9th December, 1946. While many of us may be familiar with the Preamble, fundamental rights, directive principles and some of the popular Articles like Article 14(equality before law); it is fascinating that the Indian Constitution has enabled India to become the largest democracy in the world, while several countries who got Independence around the same time, in the 1940s & 1950s have struggled with democracy.

Madhav Khosla’s book – India’s Founding Moment, lays out, that ‘democracy was being instituted in a difficult setting: poor and illiterate; divided by caste, religion, and language; and burdened by centuries of tradition’. It is in these circumstances, that the Constitution was framed. Madhav describes what he calls the ‘founding schema’ of the Constitution in terms of three key aspects:

  • Detailed Codification:  The Indian Constitution, is often referred to as the world’s longest written constitution.  According to Madhav, the Constitution had to play the role of a political teacher to the citizens, because of the circumstances. A striking example of codification is the Directive Principles, that is binding on the government but judicially unenforceable.  Also unlike other constitutions, the Constitution guaranteed certain rights like the right to freedom of speech, but also limited such rights.
  • Choice of a strong centralized state and rejection of localism:  There were a lot of discussion on the nature of the republic – regional autonomy, self-governance at the village level etc. The final decision was for a strong center. It was felt by the framers that localism would prevent individuals to assert their choices as they would be bound by their communities. Though India is technically federal, the power of the center is significantly higher compared to other federal countries.
  • Representation centered on individuals: Universal suffrage was adopted in spite of the magnitude of the task of conducting the world’s largest elections. In the US, women got to vote in 1920 almost 140 years after the establishment of the nation. While there was debate in India, about restricting voting based on literacy and wealth, such discussions were rejected. Communal based representation which was prevalent in British ruled India, was also rejected. Today every individual has a vote irrespective of their identity.

As someone who was not born during the framing of the Constitution, I am deeply grateful to the framers, who gave us a Constitution, that has enabled India to make great strides as democracy. Happy Republic Day!

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General Politics

Biden Inaugural

Twenty years back, I had followed with fascination the Bush vs Gore election – I had moved to the US in 1999 and was thoroughly impressed with the way, the campaigning was carried out. I keenly watched the town-hall style campaigning that Gore & Bush were conducting. I distinctly remember a town-hall in Microsoft that Gore had with the employees – it was very engaging. Town-halls & presidential debates were new to me – these were uncommon in elections in India. During that election, the issues that got debated included abortion; immigration, size of the government & tax breaks – however the discourse was civil & the personal attacks were minimal. The election was extremely close and finally the Supreme Court had to step in before Bush was declared the winner. However, though very disappointed, Gore gracefully conceded and being the Vice President at that time, oversaw the formal certification of the electoral college in the   Capitol.

I still find it hard to believe how things have changed in 20 years. I went back to India in 2006 and only in 2019 came back to the US. Several factors including the phenomenal rise of social media, the financial meltdown in 2009 & the loss of manufacturing jobs have exacerbated the political divisions in the US.  The issues debated were similar to the ones 20 years back – role of government, tax breaks, immigration etc – but the debates were shriller. Though the election was not even as close as the 2000 election, millions of people did not believe in the fairness of this election. The incumbent President, Donald Trump, did not concede to the winner Biden and on Jan 6, 2021, there were violent protests at the Capitol during the certification of the electoral college. There was talk of more violence during the Presidential inauguration.

However, by the end of the inauguration day of Joe Biden & Kamala Harris on 20th Jan 2021, I was quite optimistic:

  • The inauguration went off very smoothly – while Trump wasn’t present, there were political leaders across the political spectrum demonstrating a firm belief in the Constitution
  • Biden’s speech was unifying – it was positive and talked about possibilities for all Americans
  • It was gratifying to see Kamala Harris taking oath – the first woman, first black and first Indian origin Vice President
  • Great performances by Lady Gaga, JLo, Bruce Springsteen, John Legend and others

The last 10 months have been very difficult because of the Covid pandemic which resulted in so many deaths and economic hardships. However, the inauguration, seems to be first ray of sunshine after a long night. Only time will tell, how the rest of the Biden term goes. But, quoting Amanda Gorman, who at the inauguration, gave a stupendous rendition of her poem “The Hill we climb” – “But while democracy can be periodically delayed, it can never be permanently defeated.”