Wednesday, May 28, 2008

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 13th 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 73rd and 74th 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 73rd and 74th 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)

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