Constitutional Theft of the Powers of Panchayats

The Constitution of India, ladies and gentlemen, has been stolen. It was stolen perhaps right from the very moment it was adopted, but being the all-encompassing document that it is, it has been stolen again. It was stolen on the 13^th of May 2008 by the Cabinet of the Government of Goa, speaking through the Chief Minister and the Minister for Panchayats when they indicated that “If the rules and procedures are followed, the panchayats have no right to revoke the license” of mega-housing and other development projects.

Ever since the embarrassing statement by these members of the Cabinet displayed their commitment to themselves rather than to the people, much has been written about the response of the Government. I would however, like to suggest that while the position that the Cabinet has taken is appalling, it is certainly not out of character for the elected governments of the Union of India. A primary characteristic that has marked these governments has been that of Constitutional theft.

The term Constitutional theft was introduced to us by the eminent jurist Upendra Baxi at a conference held on the positions taken by the Supreme Court in the course of the 1990s. Briefly put, Constitutional theft is the taking away of the promise of the Constitution by dominant groups and arms of the State. Now envision this situation, we have a Constitution that in its Preamble quite clearly indicates that it is “WE, THE PEOPLE OF INDIA” who “ENACT AND GIVE TO OURSELVES THIS CONSTITUTION”. The sovereignty of the State of India flows therefore from this grand collective of single individuals who constituted a document of hope. The Constitution also contained a vision for the realization of this sovereignty through the establishment of what that old man who we have all forgotten called ‘Gram Swaraj’. This vision was however aborted in the first act of constitutional theft when it was replaced with something called the Westminster model of democracy. Some attempt was made to remedy this situation through the insertion of the 73^rd and 74^th amendments. The wrangling between political elites in the Centre and at the States however, resulted in a further degradation of the vision for a grass-roots realization of democracy. Rather that recognize the Gram Panchayats as constitutional bodies, equal in stature to the Centre or the State, the political compromise reached to allow these two amendments saw the creation of bodies that are effectively puppets of the State. Any powers that the Panchayats may have are in fact powers that the State has deigned to give away to the Panchayats (Art. 243 G). The Panchayats effectively become therefore, creations of the State beholden unto the State for their very existence. True the Constitution has also provided for the Constitution of a Finance Commission that will ensure that Panchayats have adequate funds to meet the costs of fulfilling their governmental role, true that there is Constitutional provision for a District Planning Committee that will integrate the planning development plans for entire districts. Yet this grand framework still struggles to find root in Indian soil because of the fundamental fact that I would call an act of Constitutional theft. That fact is the failure for the Panchayat to find an independent (though not autonomous) position within the 73^rd and 74^th amendments.

It is because of this history of Constitutional theft that our Cabinet can be so brazen. They can be so brazen because they know they have a point. And yet, as I have sought to point out in an earlier column, the revolution that is on in Goa is not one that is based on legality, for legality has clearly failed us, it is one based on legitimacy. What we are witnessing in Goa through the drama unfolding in one Gram Sabha after another, is the only action that will right the Constitutional wrong that has been done to the people of India. The actions of local people demanding that they must necessarily have a say in the manner in which their local environment is altered. These actions are not mere legal actions, these are sovereign actions, that demand that the law be re-altered to recognize the centrality of the citizen to the process of both planning and development.

Mr. Azgaokar is concerned that “If projects are closed down forcefully, there would be no development in Goa.” Azgaokar is using an old and much abused argument, but it doesn’t hold anymore. The argument was wielded effectively in the 80’s and the 90’s when the voices against central and state development for elites was being opposed by a smaller groups. Today, it is entire villages that are standing up to this resumption of their lands for the creation of private paradises for rootless speculators. The people seem to be articulating their vision of development Mr. Azgaokar, it is one where the Quality of Life takes precedence over the generation of resources for a few. The problem is that the powers that be don’t seem to be heeding the growing signs of trouble, preferring to keep sustaining the status quo rather than realizing that the time has come for the status quo to bow out, and herald a new era of governance.

If the rest of India cares to take a leaf from out of our book, these are the actions that will see the need to recognize the Panchayat not as deriving powers from the State, but as holding powers in its own right, because the people that constitute it are sovereign. These are actions that at the end demand that the Constitution itself be brought back to the promise that it was removed from.

(Published in the Gomantak Times 28 May 2008)

Parking Fees, the Status-quo and the Goan Revolution

On the 3^rd of May 2008 Pramod Khadeparker opined in the Gomantak Times about the decision by the Corporation of the City of Panjim to charge parking fees within the City. The column was a perfect example of the short-sighted selfishness of India’s middle class that is resulting in the rapid deterioration of urban India and the frustration of our developmental goals. The protection of privilege; and the conversion of privilege into right is a marked feature of this peculiarly sanctimonious class. And so rather than welcoming the decision of the Corporation to make possession of a private vehicle costly, we oppose it tooth and nail. What is appalling is that this opposition is based not on a progressive vision of democratic urban development, but a commonsense that emerges from privilege. It is a matter of concern that the positive assertions by Gram Sabhas all over Goa, voicing a need to have development that benefits the local resident, rather than some distant speculator, are being highjacked by the privileged classes, to effectively secure privileges that in fact go against the general interest of the local and marginal individual in Goa.

The parking fees in Panjim are a good idea. It will now force individuals to internalize an economic cost that was earlier being externalized. Thus once we pay the fee, we will all come to realize the costs involved in having ever more vehicles on the street, and force us to look for more eco-friendly and democratic solutions to the increase of private vehicle on the road. The Corporation should have ideally already thought this out. The question that we should be asking the Corporation is, where will all the revenues generated from the parking fees go? Will it be used to create a network of reliable public transport system within the city, or will it be diverted elsewhere? It is when the revenues generated from parking fees are diverted elsewhere that we should raise a hue and cry. Or rather we should make sure that the fee system does not come into force, until and unless the Corporation puts in place a system that will take into consideration the plight of the persons unable to pay the parking fee, and left with no convenient transportation alternative.

Many of us would like to see the Corporation and the State invest in broader roads, and four and six-lane highways, as a way out of the traffic crises we currently face. There could be no surer way for urban disaster in Goa. Broader roads mean faster-vehicles and consequently more deaths on the roads. Broader roads means space for more vehicles to fill, and consequently even larger roads. The logic could go on endlessly, until all we are left with environments that are composed only of roads for vehicles. Many of us see the rise in the number of automobiles on Goan roads as unstoppable. We do not contemplate a situation where all of us rely primarily on public transport. A public transport system that is quick, reliable and comfortable. Our imagination I would argue is limited because we fail to look beyond our middle class horizons, where private vehicles are the result of years of hard work, and once we have got the power to lord it over others, we are loathe to give it up. Public transport would also force us into situations of intimacy with other, possibly lower order human beings. And we all know how averse we Indians are to the touch of these lower order human species.

Mr. Khandeparker articulates some genuine concerns that we should ensure before the fee system is put in place. What is the role of the traffic police? Is it, as current instances have shown, only to fine persons and generate finances for a greedy State? Once more I would like to point out that the process of fining, as opposed to managing, is a manifestation of a desire for power and control. Management is the process where one is encouraged into dialogue with others, fining and punishment when used without prior attempts at management is merely the naked display of power. Eventually, the question that we must ask ourselves, is by giving in to these displays of power, are we creating a democratic state or an authoritarian state. An authoritarian state that believes that it is only the ‘educated” (code word for elite) who can understand logic, the rest are mere dumb animals that have to be punished into discipline. If we do not recognize the need for the traffic police to primarily manage and only secondarily fine, then as Mr. Khandeparker rightly points out we will realize a scenario where “the municipal employees and the traffic police go berserk in the name of parking fees”.

This disciplining of the State is currently in process in Goa, but it keeps getting caught in the anti-outsider rhetoric that allows for the populism that a revolution runs on. In the end however, it fails to address the real problem. Mr. Khandeparker, while genuinely concerned about the gross mismanagement of the developmental agenda, is not innocent to the power of this rhetoric. Don’t charge me he argues, charge the tourist, let them pay for the mess they are creating in my Goa. Only someone who does not draw her bread and butter from the ‘outsider’ would make this argument. The tragedy is that the ‘outsider’ argument works for the privileged classes and Goan business houses, and is often swallowed whole by the rest. The ‘outsider’ argument works only to secure the privileges of the very class that to a large extent is responsible for the miserable state that Gram Sabhas have to fight today.

The real blind spot in the parking fees proposal is that the fee currently contemplated may be steep to a person who wishes to park for just a few hours in the day. For the business person, father, son and allied cousins, each of who roll into the establishment in a separate behemoth, the cost would really not amount to much. If the Corporation is serious about reducing the traffic crisis in Panjim, of which lack of parking space is only a manifestation, then it needs to evolve a separate and appropriate strategy for the owners of commercial establishments within the City. They too must have to bear their share of the burden; after all they block a good amount of the parking space through the day!

The move by the Panjim Corporation is a welcome move, one that should be imitated by the other cities in Goa. Clearly though, there is a need for much more thinking to be done if it is to really result in addressing the traffic and parking crises in the city. For starters, the Corporation must seriously contemplate providing infrastructure such as trams and quick bus lines within the city. Having created the option, it can legitimately charge congestion fees using the revenues to upgrade the system. Before concluding a word of caution. Much is happening in Goa that is exciting, what we have to make sure is that reactionary positions of those that support the status-quo are not paraded as the solutions to Goa’s problems. It is the status-quo that is the problem!

(Published in the Gomantak Times 7th May 2008)