It might as well be.

I explain further in my post for blogbharti’s Spotlight Series.

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I enjoy following politics and, even more so, observing politicians. Watching the frontrunners through the debates for the primaries and general mud slinging in the US Presidential Elections or the Cypriots pick a leader from the Communist Party is interesting at the very least, if not entertaining. Far less entertaining is watching the Thackeray tactics of building a following through regionalism. And witnessing Modi win for the third time is, of course, an absolutely distasteful experience.

In India I have heard too many speeches, fewer debates and virtually no distinction in the politics between parties and candidates. The promises are almost always the same, usually focusing on a particular region, caste or community or invoking the names of the same dead people.

Another worrying trend is that demands for good governance are rarely on the forefront of these elections. Governance, among security, law and order, college admission, promises to farmers, and other things is in the long list, but rarely the moot issue. Which brings me to the question - if not governance, which should be the main function of candidates, what is the moot issue during Indian elections? Here I will take liberty to generalize, but often elections are won by (a) appealing to a particular religion, caste, community, region by making specific promises; (b) identity politics through the illustrious family name, (c) by identifying with a small group (large enough to make one win) and, if one is lucky, a combination of the above married with an anti-incumbency wave.

Now I don’t mean to berate our politics and say it is less developed than US or Cyprus, quite the contrary. But it makes me wonder, that despite being the vibrant democracy that we are, why do we not demand good governance?

Since I am a lawyer, I look at the constitution to find answers to these questions. So, is bad governance in our Constitution? It might as well be. There are constitutional provisions which are the reason for the regional and caste based politics in our country. What is worse is they are clubbed under the equality clause!

The story, like most stories with bad endings, begins with a constitutional amendment. Article 14 guarantees equal protection and Article 15 specifically prohibits discrimination based on grounds of religion, race, caste, sex or place of birth. Nehru, who wanted to uplift the backward classes in his first term, was prevented from making “socially beneficial legislation” because of such a ‘narrow’ equality clause. So Nehru did what he usually did when the judiciary got in the way. He amended the constitution. In the First Amendment Act, 1951 he added a fourth clause to Article 15 that permitted the State to make special provisions for the advancement of any socially and educationally backward classes and Schedule Castes and Tribes. While this sounds wonderful on paper, much like most of Nehru’s development agenda, it has a huge consequence on how elections are fought in this country.

To begin with, God did not declare who are “scheduled” to be in the SC/ST list or determine the cut off for “socially, economically, culturally or educationally” backward. It is a creation of man. Usually a man who is sitting in the legislature or is hoping to get there soon.

Imagine a class in primary school where the rule is that the students sit according to their height. The short ones in front and the tall ones behind. This implies the short ones never get to have much fun in class, since they are sitting right under the teachers’ nose. Students elect the class leader among students, usually a popularity vote, and one of the duties of the class leader is seating arrangement. The other duties such as keeping the board clean and ensuring supply of chalk are fairly irrelevant to the current situation. If there are 2 candidates; short and tall (since this is as good a random sample as any) standing for the post of class leader, what might happen?

If the short candidate is also a smart kid (and why shouldn’t he be?) he will promise the short people who like to have fun that he will seat them at the back. There is some immediate support for his cause, though he doesn’t have the numbers to back it. The tall students have no such agenda because they already sit at the back in the current regime. And the short student manages the numbers to win. If there had been more than 2 candidates in this class leader election, he would have the numbers to back him, since the percentage required to win gets smaller. Of course, if there is no election and the teacher picks the candidate, then the one who is picked is usually the geekiest, insufferable know-it-all student who sucks up to the teacher and couldn’t be bothered with class seating. This would be the primary school equivalent of a totalitarian regime.

This is precisely what happens in elections in India. The community is divided into narrow groups that are as easily distinguishable as tall and short people. The constitution encourages such divisions for the purpose of “targeted” beneficial legislation. It becomes easy to round up people from one caste or region, find a leader who supports that caste and promises them seats. Not seats in the front or the back of the class. But in engineering and medical colleges and job appointments in the government. The groups, that feel they have been persecuted historically, engage in this dialogue. This is the political equivalent of economic rent seeking.

How do the numbers work? Let me give you a real example not involving primary schools, since real elections never do involve primary schools. In the 2004 Parliamentary Elections, Uttar Pradesh had voter turnout of only 48% - one of the lowest in the country. Of the 80 seats in UP, 65 seats had over 10 candidates per constituency with some constituencies having up to 32 candidates. In the Mohanlalganj constituency where there were 10 contestants, the winner won by a margin of 0.004%. The winner won only 25.8% of the votes implying three quarters of the electorate was not in favor of the winning candidate. His policies will reflect the choices of only a fourth of the electorate. All you need to unseat the incumbent is 25% in this case and even lesser in other cases where fractionism is even greater in the constituency. This is also known as the First-Past-the-Post system of elections.

This is precisely what we see in Indian politics. The candidates do their homework on the demographics of their constituency. They round up the backward communities and minorities (and minorities can be the majority vote bank in the First-Past-the-Post system) and make their particular cause the election agenda.

Bijli-sadak-paani is reduced to rhetoric, behind which the important agenda of social advancement and seats in engineering colleges and job appointments is cleverly hidden. Of late, they are not even cleverly hidden. It is all out in the open. Clear appeals are made to voters on the basis of religion, caste, race, and as in the Thackeray case, place of birth and residence.

So, am I seriously suggesting that the constitutional provision for social advancement of the backward communities is a bad idea and must be done away with? Absolutely not! That is the subject of another piece, perhaps even a book.

Am I saying that such populist and caste based politics is an unintended consequence of this constitutional provision? Again the answer is no; it is not an unintended consequence. The legislators intended precisely this when they supported the constitutional amendment and passed such beneficial legislations. The ‘educationally backward’ figured this out and the rest of us are just deluding ourselves with the equality and development agenda.

All I am saying is that we must stop expecting good governance. There is no point. The numbers will not allow it, nor will the people. The special interest groups are way ahead in this game. Unless we prohibit legislation which violates equality and benefits a certain class of people (which would have to be done constitutionally since legislators are going to show no such restraint); policies and governance will never be at the forefront of political debate. But the unintended consequence downside will be that political news on television will be far less entertaining!

My piece on the Indian Constitution endorsing socialism in the Wall Street Journal Asia appears today. You can read it here. The full text is also reproduced below.
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India is a democracy, but according to the Supreme Court it’s less democratic than you might think. The justices recently shot down a challenge to Indira Gandhi’s 1970s-era ploy to stamp her economic policies on the country in perpetuity. At issue: Does the word “socialism” belong in the Indian Constitution? And is every political party required to be socialist even if such a requirement is antithetical to free speech?

The Good Governance India Foundation, a small think tank, had petitioned to remove “socialism” from the Constitution’s preamble. The text currently opens with: “We, the people of India, having solemnly resolved to constitute India into a Sovereign Socialist Secular Democratic Republic. . . .” The foundation argued that this wording conflicts with the original intent and the “basic structure” of the Constitution. The court disagreed, choosing to believe that “socialism” has many meanings and its inclusion in the preamble is not antithetical to open debate.

It’s more than a question of semantics. Following the preamble’s lead, the election law, the Representation of the People Act, requires every political party to aver its commitment to socialism. And they do mean “require.” SV Raju’s application to form a free-market party called the Swatantrata Party was rejected by the Election Commission when he refused to include “socialism” as one of the principles of his party. He’s been petitioning to overturn that decision since 1996. The Supreme Court has at least asked the government and Election Commission to reconcile this outcome with the principle of free speech.

India’s Constitution as originally ratified in 1950 didn’t include any mention of socialism, although the idea was proposed. The man who would become the country’s first prime minister, Jawaharlal Nehru, was as socialist as they come in his economic policies. But he was also a political liberal, and he felt that forcing his personal ideology on all Indians through the preamble would be contrary to the broader spirit of the Constitution. Other founding fathers, notably B.R. Ambedkar, agreed.

Sentiments changed in the 1970s. The declaration of a State of Emergency in 1975 gave Nehru’s daughter, Indira Gandhi, a convenient opportunity continue her agenda of nationalization, repaying support from the socialist parties, while expanding her own power. Amid a raft of Constitutional amendments she pushed through parliament to enhance her authority, she included one adding “socialism” to the preamble. She did this despite the Supreme Court’s finding barely three years earlier that the preamble was part of the “basic structure” of the Constitution and thus not subject to amendment. The succession of socialist-leaning governments in subsequent years meant few people were interested in challenging this provision.

Instead, Indira Gandhi’s successors made it worse. Her son, former Prime Minister Rajiv Gandhi, amended the Representation of the People Act in 1989 to require all political parties to include socialism in their party platforms to align with the values espoused in the Constitution’s preamble. Mr. Raju’s new party has run afoul of this provision.

Since the early 1990s, India has been gradually liberalizing its economy. The results are palpable — an average 8% annual growth rate the past few years is just one. But the country’s political underpinnings haven’t kept pace. The Supreme Court has passed up a good opportunity to right a wrong inflicted on Indian politics 30 years ago. Parliament can still fix this mess, but no party is likely to take up the cause because in political circles capitalism and profit are, like Nehru said, “bad words.” India could use the same kind of competition in the ideological sphere that’s starting to work for the economy.

Ms. Rajagopalan is an Erasmus Mundus Scholar pursuing her masters in law and economics at the University of Ghent.

This appeared in today’s edition of Mint in their Views Section.

Milton Friedman said, “….He may be a fool to drive that motorcycle without a helmet, but part of freedom…is the freedom to be a fool.”

So I wonder, Are we free to be foolish?

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The original purpose of laws was to prevent humans from infringing on another individual’s rights and liberty while exercising their own. So, any infringement on another person’s life, liberty and property in the broad sense became punishable by law so that men can coexist. The examples are obvious; theft, assault, murder, rape, fraud etc. These laws are absolutely essential for a free society.

The second set of laws, far more controversial, is those criminalizing acts which have no victims. Human acts which offend society in general or tarnish the moral fabric that a community seeks to preserve are also punishable. These laws detail what are also known as victimless crimes as there is no specific infringement on another individual’s life, liberty or property. These laws outlaw prostitution, suicide, drugs etc. In an ideal world, these laws shouldn’t exist and an individual’s rights must be supreme, but then that is in an ideal world.

While there is clear reason and purpose for the first set of laws to preserve order and uphold individual rights, and one could find religious or moral justification for the second set, there is a third set of laws which exist just to satisfy the whim of a nanny state, or in our case a mai-baap state, to protect an individual from himself.

The paternalistic state believes that people are fundamentally stupid and must be protected from behaving rashly, even if such behaviour affects no one else. The most obvious example of this is the helmet law, or the requirement to wear seat belts, which seems innocuous. But what happens when the paternalism is taken to a new level? By outlawing street food because it is presumed to be unhygienic? Or, in an outrageous example, the nanny state excluding the individual from litigation to protect one from one’s lawyers?

So, the real question is: Do we really need the state to protect us from ourselves or our foolishness? Or are we capable of evaluating the little risks we take to make our lives more pleasurable?

The helmet law or the requirement to wear a seat belt is an excellent example. But it doesn’t stop there. The Indian government likes to believes in the English notion of parens patriae , where the Crown is the protector of his subjects as a parent.

For instance, the West Bengal government attempted to outlaw hand-pulled rickshaws, to preserve the dignity of the rickshaw-puller and to give the presumption of a less disparate society. The rickshaw-pullers obviously oppose the law as they are happy pulling rickshaws and value their source of livelihood. But do they know better? Can they be trusted with preserving their own dignity? Was it not the actual father of the nation who said that all work is worship?

It’s not just rickshaw-pullers. Virtually all labour laws in India attempting to protect labour from the exploitative capitalist actually assume that every individual labourer is incapable of entering into a contract, being aware of the risks and rewards, and making a living. It takes away the right of two adults to enter into a mutually agreeable contract. Similarly, the government outlawed bar girls from dancing in bars to preserve the dignity of these women. What they did has put many thousands of women out of work and taken away their only source of livelihood. Did the bar girls weigh their loss of dignity against their livelihood? Or perhaps they felt no indignity in dancing to entertain at bars in the first place!

The Supreme Court, as always, has taken paternalism to a new level when it banned cooking on the streets by street vendors because street food, by default, is always unhygienic and citizens are too stupid to choose what to eat. We are all aware of the potential risk of falling sick eating pani puris on the street and yet we value the pleasure of a good, and slightly unhygienic, pani puri over the expected risks. But can we really be trusted with such an important decision?

Most of these instances may seem trivial to those who are not part of informal labour force, or who don’t enjoy that occasional pani puri. But sometimes paternalism in India takes on Orwellian forms.

The Indian government took it to a whole new level during the Bhopal gas tragedy case more than 20 years ago. It passed the Bhopal Gas Tragedy Act, 1985, which allowed only the state to sue Union Carbide.

The victims and citizens of Bhopal were not allowed to sue the company who took away the lives and health of their families and the prosperity of their city because the state felt that “ambulance chasers” would take away most of their compensation in legal fees. While the ambulance chasers might have taken away most of it, the government did an even more efficient job by taking away the entire compensation of most victims.

While each instance seems trivial, especially since it affects particular classes of people, there is a larger question at hand. Do we have the right to take risks that only affect us? Do we have the freedom to live our lives as we choose after weighing the risks, even if we are being foolish according to the government? And if part of freedom is the freedom to be a fool, are we free?

Shruti Rajagopalan is a lawyer and a writer.

…or this month actually.

Indira Gandhi also imposed emergency when Justice Sinha declared her election “null and void”. And we all know what followed.

Mush is doing EXACTLY the same thing.

Has he learnt nothing from the past?

This post was written with a different purpose, but it’s up here for now. It’s Trane’s birth aniversary and inkeeping with last year, here is the tribute. It’s similar to what I wrote previously.

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“I would like to bring people something like happiness. I would want to discover a method so that if I want it to rain, it will start right away to rain. If one of my friends is ill, I’d like to play a certain song and he will be cured…”
-John William Coltrane

Coltrane did all that and much more.

Not many think of Coltrane as a freedom fighter, like one does of Martin Luther King or Gandhi, though he was perhaps the most melodious proponent of the freedom movement. As the civil rights movement reached its peak in the sixties, Coltrane expressed it through his music which critics often called “angry”. His solos were long, relentless and at tempos at which often the musicians and the audience failed to keep up. It was as if he was playing for a different purpose all together. Like if he broke free from the traditional chord changes and scales of modal jazz, his improvisations would simultaneously make the world free. And perhaps he did.

Coltrane’s upbringing was typically southern and religious, as he was born to a family of ministers in Hamlet, North Carolina. Not surprisingly, he grew up a victim of racial segregation. In 1943 he moved to Philadelphia and played blues and jazz standards for the Navy Band. One of the main influences on Coltrane was Charlie Parker and he later went on to play with Monk, Gillespie and Ellington.

While Coltrane played with many “cats” as a side man, his first big break came when Sonny Rollins, a tenor player and close friend, refused to join Miles Davis’ Quintet perhaps just to give Coltrane the break. During this period both Davis and Coltrane experimented with free jazz, and jazz critic Gitler called Coltrane’s style “sheets of sound”; to describe the short, fast-paced solos which felt more like cascades. In 1959 Coltrane recorded Kind of Blue with Davis , perhaps the most lyrical jazz album ever written, and Coltrane came to be recognized as a leader in free jazz. Soon he left Davis and led his own extraordinary quartet with McCoy Tyner, Elvin Jones and Jimmy Garrison in 1961.

Ellington, with whom Coltrane recorded in 1962, often dismissed the concept of modern jazz. He felt there were two kinds of players; the individualists and the hundreds who follow the music shaped by one man. Coltrane was perhaps one of the most influential individualists jazz has seen. Giant Steps and Mr. PC have so many chord changes and progressions played at unimaginable tempos that it forever changed the way jazz was written.

No one worked as hard as Coltrane to find a new and fresh sound. So hard, that his playing was often dubbed loquacious and redundant by many. It is now folklore that Trane, as he was affectionately called, would be so impatient to play that he would leave the bandstand after completing a solo and continue to play in the men’s room allowing other members to complete their solos and return to play without a break. However, a favourite with Davis , who once said “I didn’t understand this talk of Coltrane being difficult to understand. What he does is to play five notes of a chord and then keep changing it around, trying to see how many different ways it can sound. It’s like explaining something five different ways”.

Coltrane’s adaptation of the famous Sound of Music track, My Favourite Things in 1961 is far superior to the original slow waltz sound. In Afro Blues Impression Live version of My Favourite Things one can hear joy, anger, impatience, rain, freedom, calm and melancholy, achieving exactly what he set out to do. But his most insurmountable work came in 1964 with A Love Supreme which was an expression of his discovery of spirituality and his devotion to God. With its four parts, Acknowledgement, Resolution, Pursuance and Psalm, music and religion became one. With this one expression, Coltrane wanted to “speak to their souls”.

September 23rd is like any other autumn day except; he Sun is at one of the two points on the celestial sphere where the celestial equator and the ecliptic intersect and astronomically the autumnal equinox makes the day and night equal; and one of the greatest jazz musicians was born eighty one years ago.

While the equinox is about equilibrium, everything about Coltrane was excessive. He had to play every chord and note known. He overdosed on sugar, alcohol, heroin and eventually LSD. Even spirituality was excessively experimented as he tried to embrace all religions like Islam, Hinduism, Buddhism, and the Kabbalah and even took up yoga, vegetarianism, astrology and philosophy.

Yet through his composition Equinox he leaves his listeners with joy, calm and a sense of freedom; and all that he sought in his own torrid musical journey.

Events such as the UP Elections present an immense opportunity for a wannabe public choice theorist. So I am hoping I’ll have something to say once the real numbers (and all the drama that follows) come in.

For now about the election process itself. These seven phases of polling in UP have been considered the most successful in UP history. Vandalism, violence and vote buying/snatching have been kept at a minimum and almost all regulations were followed thanks to “Gopal Babu”. There are some free speech issues I have here, but that’s for another post.

There is one thing that struck me in particular about these elections. The Dalit voting. The fact that some actually voted. Perhaps for the first time since independence.

“I have voted for the first time in my life with my wife and son,” said Dwarika Lal of Shishupur in Sarsaul. “Previously we were not allowed to move out of our house and the upper cast people used to cast out votes. This time too our voter identity cards and ration cards were submitted by the pradhan and his brother but due to the intervention of Election Commission officials, we got them back and exercised our right to vote,” said Dwarika.

Now the reason this was made possible. Heavy deployment of central paramilitary forces in the area by the Chief Election Commission. Full story here.

While the entire debate about Dalit rights and opportunities took forefront in the UP election and will invariably play a huge role in the caste politics that is yet to follow; I wonder-is enforcement of law and order all they need?

Dalits have rights, constitutionally protected rights as citizens, as minorities and as backward and underprivileged classes. However the reason why we still have Dalit oppression is simply because of the abysmal law and order situation.

So do we need reservations for Dalits? Or do we just need an independent police which will ensure that Dalit children get to attend school without getting stoned by upper caste children? I have a suspicion it may be the latter. Their opportunities in every sphere, including their participation in the informal economy, is being thwarted by state supported violence and oppression. Once we give them what we always promised, a safe and secure community, I see no reason why Dalits would ever need reservations. They may need school vouchers, perhaps even free primary health care and the like, but little support beyond that.

Instead we do not what is right, but what is easiest. Oppress them with state machinery, and then buy them out (if we allow them to vote) in return for IIM seats.

There is nothing radical being said here. I am just advocating equality. The politicians and the armchair economists and political theorists on the other hand are always lobbying for equalisation. Next they will want unicorns.

Yesterday Somnath Chatterjee delivered the the Dr Kailash Nath Katju Memorial Lecture on Separation of Powers under the Constitution and Judicial Activism.

I quote a part of his lecture since he has so succinctly compiled all the instances of mindless activism.

“The Honourable High Court of Delhi in recent times dealt with subjects ranging from age and other criteria for nursery admissions, unauthorised schools, criteria for free seats in schools, supply of drinking water in schools, number of free beds in hospitals on public land, use and misuse of ambulances, requirements for establishing a world class burns ward in a hospital, the kind of air Delhiites breathe, begging in public, use of sub-ways, the nature of buses we board, the legality of constructions in Delhi, identifying the buildings to be demolished, the size of speed breakers on Delhi roads, auto rickshaw overcharging, growing frequency of Delhi road accidents and enhancing road fines.”

The common argument in favour of such activist courts is that the executive has been inefficient, thus forcing the judiciary to enter the executive domain and create a command and control system, for the sake of the common man.

One question though. Does the executive ever say that the judiciary has been inefficient and there are cases pending over twenty years and hence government departments must take over the disposal of these pending cases? And if they did, what would happen?

PS. My favourite one is the size of speedbreakers on Delhi roads.

Excellent article by Clint Bolick on an activist judiciary in the WSJ.

Will Wilkinson’s latest paper on “happiness research” called In Pursuit of Happiness Research: Is It Reliable? What Does It Imply for Policy?

Randy E. Barnett’s piece in WSJ on the importance of lawyers, especially defense lawyers. Barnett’s book “Restoring the Lost Constitution: The Presumption of Liberty” offers some of the best arguments for upholding the originalist interpretation of perhaps the only liberal constitution left.