Author: Shekhar Gupta
Publication: The Indian Express
Date: December 31, 2005
URL: http://www.indianexpress.com/full_story.php?content_id=84969
Introduction: Grab something. Then make law
to legitimise the grab. It used to happen in the Emergency. It could happen
now
I must begin this week's National Interest
with a note of apology. Who, but the most incorrigible party-pooper would
begin an article to be published on new year's eve with a reference to the
Emergency? But it is unavoidable precisely because it is the holiday season
and the well-known nexus of politicians, builders and corrupt civic officials
are trying to take advantage of that to twist the law and where they cannot,
write fresh laws to legitimise their own crimes of the past.
The page from The Indian Express Emergency
scrapbook is a cartoon by the venerable Abu Abraham. This was the time when
Indira Gandhi was issuing a flurry of ordinances to overturn existing laws,
to give herself sweeping powers, fight off her insecurities and to short-circuit
the entire system of democratic checks and balances. The then president, Fakhruddin
Ali Ahmed, was, of course, more than willing to sign, with the greatest alacrity,
any ordinance she sent to him, at any time of the day or night. So this Abu
cartoon showed Ahmed in his bath-tub, handing out a pen, and a piece of paper
which he had ostensibly signed to somebody through a half-ajar door and saying,
"If there are any more ordinances can they wait a bit?" Or words
to that effect.
We have now come a long way since the Emergency. This is the coalition age
and the ruling party does not even hold one-third of the strength of Parliament.
But the ordinance-mania is back in fashion in the same dangerous way. Or there
are at least early signs of it, and unless we raise the alarm now we are going
to see one of these Emergency phenomena repeated. There will, however, be
one crucial difference. The Emergency ordinance-mania was one party's exercise
of brute power through a sweeping majority. Others were opposing it, even
from jail. What happens now could be an outcome of total connivance among
our entire political class.
THE immediate provocation for this is the
truly shocking decision by the Congress high command to set up a party panel
to look into the prospects of issuing an ordinance amending the law whereby
all - or at least most of the building violations and land-grab cases in the
capital will be "legalised." This is inspired by the party's success
in getting away (so far, unless the judiciary strikes it down) with a similarly
self-serving ordinance in Mumbai. That piece of legislation "regularises"
800-odd buildings earmarked for demolition under Bombay High Court orders
in the suburb of Ulhasnagar, on the incredible argument that the locality
was a "refugee" colony, inhabited by Sindhis who came in from Pakistan
in the wake of Partition and, therefore, deserved special treatment. Nearly
six decades after Partition, we laugh each time Musharraf says Kashmir is
an unfinished agenda of Partition. We now find politicians in Maharashtra
also discovering their own unfinished agendas of Partition. This totally cynical,
immoral and self-destructive precedent is obviously being studied closely
by crooked politician-builder-bureaucratic mafias around the country. Even
in Delhi, for example, where large parts of the new city have been built by
former refugees (Punjabis, in this case) the same argument could be used to
justify the loot and grab of recent years.
The only problem in Delhi is, properties identified
for violations and land grab are scattered all over. Further, an ordinance
has to be issued by the Central government and an act so cynically self-serving
will test both the conscience as well as the nerve of Manmohan Singh. And
even if the PM were to be arm-twisted into producing it by his own party men,
many of whom, as the ongoing investigation in this paper shows, are themselves
involved in the most wanton building violations, it will test President Abdul
Kalam. Will he, then, just follow in the entirely forgettable footsteps of
Fakhruddin Ali Ahmed and sign on the dotted line, on the excuse of being a
mere "titular" president, or will he bring to bear his unique moral
authority to send it back? It is by now quite obvious that he is different
and the last thing the UPA government would want is a presidential rebuff.
Besides, any such legislative arm-twisting will have to survive severe judicial
scrutiny. Politicians should remember that the country's highest court had
judged voluntary disclosure of income schemes (VDIS) as condoning wrongdoing.
VDIS is history now. What will happen if an ordinance legitimising land grab
is subjected to similar judicial assessment?
THE recourse to amending the law or writing
fresh legislation is a tempting escape for politicians from constitutional
checks and balances. It becomes even more tempting when there is political
consensus, howsoever cynical, to do so. The recent constitutional amendment
to provide for caste-based reservations in unaided private institutions is
a case in point. It was drafted with the singular purpose of overturning a
Supreme Court judgment and was passed in record time by a Parliament which
delays other perfectly reasonable legislation endlessly by either putting
it in the committee orbit or simply because it conducts so little business
because of boycotts and adjournments. On reservations for private institutions,
the consensus came from the desperation not to be seen to be doing anything
to annoy caste vote banks. At least in this case the motive was entirely political
and you might just allow the political class that much leeway. But the proposed
Delhi ordinance is in a different category altogether, as is the one passed
by Maharashtra government on Ulhasnagar.
Here, the motivation is entirely to use the
power of the legislature to legitimise your own dark deeds, to legalise your
own, deliberate, pre-meditated crimes committed on the presumption that since
you have clout, the law will never catch up with you. And now that the law
has done so, through the intervention of the higher judiciary, use brute legislative
muscle to tell the courts where to get off. So no surprise that on a law like
this, meant to benefit no more than 18,000 property-owners in a city of 1.4
crore, the Congress and the BJP will join hands. This, when the two will not
even agree to seek each other's cooperation to pass perfectly sensible legislation
on banking and pension reform that both entirely agree on in principle. When
it comes to the larger public good, ideology comes in the way. When it comes
to legitimising personal gain, land-grab and law-breaking, ideology is so
easily junked.
What is truly amazing is the way the high
commands of both the Congress and BJP have allowed this nonsense to go on.
This was an opportunity for at least one party to do a mea culpa. Say you
regret that some of your local leaders have been indulging in these practices
and direct them to demolish these forthwith. The popular mood in Delhi is
not in favour of law-breakers and this would have been a sure-shot way to
get a head start for future elections. Delhi is a small state and most politicians
involved are very insignificant in the overall scheme of things for these
national parties. But today both are losing this golden opportunity to demonstrate
politics with a difference. The same verdict holds if the parties are hoping
that making loud noises about the prospective legitimisation of illegal construction
will create enough confusion to further slow down the pace of demolition.
Threatening an ordinance has the same perceptional impact as passing one -
it shows the Congress and the BJP can join hands to legitimise their own leaders'
land-grabs and law-breaking. The two parties can be sure that the silent majority
of Delhi's voters is taking a firm note of it.
