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INDIA INDEPENDENTEconomics, Politics, Culture 22-24 February 2007

Social Scientist / SAHMATNehru Memorial Museum and LibraryTeen Murti, New Delhi

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INDIA INDEPENDENTECONOMICS, POLITICS, CULTURE

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Social Scientist / SAHMAT

INDIA INDEPENDENTEconomics, Politics, Culture

Nehru Memorial Museum and LibraryTeen Murti, New Delhi

22-24 February 2007

SESSION PLANDay 1:22 February Session 1:9.30 to 11.00 amThe Current Conjuncture1. Aijaz Ahmad2. Sitaram Yechury

Session 2:11.30 am to 1.00 pmColonisation of the Indian Economy1. Amiya Bagchi2. Sabyasachi Bhattacharya

Session 3:2.00 to 3.30 pmAnti-Colonial Struggle: An Overview1. Irfan Habib2. Mushirul Hasan Session 4:4.00 to 5.30 pmState and Development1. Jayati Ghosh2. Zoya Hasan Day 2: 23 FebruarySession 1:9.30 to 11.00 amAspects of the Current Indian Situation1. Utsa Patnaik2. Teesta Setalvad Session 2:11.30 am to 1.00 pmIndia and the World Economy1. Prabhat Patnaik2. Atulan Guha, Surajit Das, P. V. Aniyan

Session 3:2.00 to 3.30 pmSix Decades of Development1. Prakash Karat2. C. P. Chandrasekhar Session 4: 4.00 to 5.30 pmTravails of the Post-Independence State1. Kumkum Sangari2. Rajeev Dhavan Day 3: 24 FebruarySession 1: 9.30 am to 1.00 pmNational Culture versus Cultural NationalismModerator: -- Sadanand MenonPanelists: -- Geeta Kapur, Prasanna, Kumar Shahni, Ram RahmanRespondent: -- M.K. Raina

Session 2:2.00 to 5.30 pmMedia of the Public Sphere versus Media of the MarketplaceModerator: -- Sashi KumarPanelists: -- Siddharth Varadarajan, Rammanohar Reddy, Manini Chattterji, Shohini GhoshRespondent: -- Sukumar Muralidharan

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AN ABSTRACT

Colonializing the Indian Economy

Expropriation, appropriation and exclusion

Amiya Kumar Bagchi

Colonial and neocolonial 'optimists' have continued to strive to show, despite all the evidence to the contrary, that Indians did not suffer horribly from loss of incomes, employment opportunities, famines and illiteracy during the period of British rule. The process of colonialization was a long-drawn out affair, and there were transformations in colonial ideology and policies during that period. But the basic objectives and imperatives of those policies remained unchanged from the time Clive defeated the army of Sirajuddaula by utilizing the treachery of his commander-in-chief and his financial backers to the last days of the British Raj. What began as the necessity of paying the dividends of a royally chartered company that could not pay them by any semblance of free trade ended up as the imperial imperative of remitting an ever-growing tribute to London for maintaining a huge apparatus of coercion and further conquest or defence of the British empire east of the Cape of Good Hope. During the days of the Company Raj, the alien rulers had to realize them by exacting a tribute in the form of land tax and erecting what has been called a coercive monopoly of trade either for the Company or, after the abolition of the Parliament-sanctioned monopoly of trade through the intermediary of the so-called agency houses controlled by a clique of British businessmen. When the business of governing India was taken over by the British Parliament, the tributary tax was still the major avenue of extracting the surplus, but to that was added a debt process that included not only the interest and dividends on the construction and operation of railways, ports and irrigation works but also on the expenditure for re-conquering Northern India when the anti-imperialist war of 1857 broke out.

The conquest and 'pacification' of India Between 1757 and 1818 involved a long-drawn out depression, effective de-monetization of large parts of the economy in the interior, demographic disasters, beginning in 1769 and breaking out repeatedly in other parts of India, and erection of localized coercive monopoly with distinct characteristics of new types of bondage around the production of indigo, sugar, and from the 1840s tea and coffee plantations.

Such phrases as colonial capitalism or a colonial mode of production or 'imperialism as the harbinger of capitalism' are thoroughly inappropriate for understanding the largest and most profitable formal colony for the pioneering industrialized and capitalist economy of the world. For the British did not try to construct a social structure that worked by the rule that all markets are free and non-market coercion is exercised only by the state in the interest of managing ineluctable externalities or investing in privately unprofitable but socially necessary public goods. India had a thriving exchange economy moving along the path of what R. Bin Wong has styled as Smithian growth. That does not mean that it did not have many varieties of non-market coercion exercised by the ruling classes. But the British did not free markets. Apart from the dependence that is often induced by endemic unemployment and insecurity of subsistence, the British rulers specifically curbed the freedom of workers by specific legislation. In place of a free market of land, they made land-holding conditional on the prompt payment of an often exorbitant land tax. At most, they created

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a market in revenue farming rights. Avenues of advance of emerging capitalist strata were blocked by explicit and implicit racial discrimination.

The resurgence of a neocolonial view that somehow India thrived under British rule is based on wilful illiteracy and total insensitivity to the deaths of tens of millions of Indians in famines and indirectly of several hundred millions in avoidable malnutrition and epidemic diseases and a structural retrogression of the economy that squeezed both the base of and incentives for domestic investment in industry and even more, in agriculture. It is not an accident that this illiterate economic history finds a welcome home in bastions of neo-liberalism in India and abroad.

The neocolonial, largely phantasmagoric, perspective utilizes the lack of systematization of the data on the Indian subcontinent for most of the period and picks out some features that seem to favour their view. This ploy works well for most of Northern and Eastern India down to the beginning of the 1890s, but not for most of the raiyatwari areas of the South and the West even for the earlier part of British rule. For the whole of India from the 1890s, this ploy fails utterly. Then, of course, the continually acting structural depressant of the remittance of a large fraction of the GDP as tribute is totally ignored by them.

The complex of causes and effects of this colonial mechanism, working through the economy and society can be summarized in the following sketch: From the 1820s there was a massive decline in the exports and domestic demand for Indian textiles, both spun and woven; conquest led to decline in demand for services and domestically produced commodities; rigorous collection of a land tax only in high-powered and remittable money led to further depression of demand and investment in agriculture and non-agricultural sectors and in neoclassical language a continual pushing of the production frontier inward; demonetization of all earlier media of exchange, including those circulating in local exchanges and often accepted earlier for public payments turned the terms of exchange savagely against poorer people. Apart from the bondage that was induced by this complex of insecurity of life and employment, various non-market restraints were imposed both by the state and the superior power-holders of Indian society and led to the fixation of the production basket further away from the shrinking production frontier, and choice of unproductive assets by the Indian wealth-holders. Colonialism started with the market failure that has been the birthmark of capitalism emanating from Europe, namely, the use of arms to grab what could not be earned in peaceful trade. The colonial order seethed with market failures that are necessarily attendant on chronic underemployment, unemployment and economic insecurity and resulting dependence on landowners and moneylenders for employment, loans at exorbitant rates of interest and sale of produce in locally monopsonistic markets. In addition, the colonial authorities often legalized indenture of labour, power of private distraint by planters and other employers and criminalized civil failures, especially when it came to the question of collecting land revenue. They effectively condoned agrestic bondage by only legislating that slavery would not be legally recognized rather than taking active steps to abolish it.

The new ploy of the neocolonial historians sheltered by neoliberal economists is simply to ignore all historical evidence and assert that India was brought into the libertarian empire of free trade and individual liberty under British rule. Many knights of the 1990s are proud upholders of the Union Jack, and now, Stars and Stripes. Writing a history of the colonialization of the Indian society is necessary in order to rescue students from this psychotropically induced amnesia.

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AN ABSTRACT

The Concept of Poverty in Colonial IndiaSabyasachi Bhattacharya

How was 'poverty' coneceptualised in colonial India? It is argued in this paper that there are three distinct discursive traditions in this regard. A concept of 'poverty' was brought from Europe by British colonial administrators. The ideas of Jeremy Bentham and the Poor Law in England contain a tradition of thinking on poverty. Under the influence of capitalist ethic poverty was regarded in nineteenth century England as a mark of economic inefficiency, and the poor were regarded as a burden on the national economy insofar as they, being inefficient in a competitive world (and in the case of the unemployed poor and vagabonds, totally unproductive), they caused the consumption of a part of the national wealth which they did not create. Bentham's Pauper Management Improvement (1798) provided the blue print for a new Poor Law which was given its final shape by his former secretary Chadwick in the Act of 1834; this trend of managing poverty and its discontents and problems deeply influenced Indian colonial thinking, as evidenced in the Famine Laws from 1888 onwards (a point ignored by Eric Stokes in his otherwise perceptive history of utilitarianism in India).

The idea of poverty appears in a different form in the nationalist discourse, most typically in the writings of Dadabhai Naoroji, author of Poverty and Un-British Rule in India (1901). Naoroji made a departure from the colonial bureaucratic approach to poverty in rejecting the palliative approach to poverty and in addressing himself to the causative aspect of poverty; another significant departure was Naoroji's macro approach towards national income estimation, in contrast to the bureaucratic tendency to generalize from isolated instantiation. Moreover, Naoroji brought into the discourse of poverty in India the international comparative approach, constantly comparing metropolitan Europe with colonial India. Above all, unlike the colonial tradition, nationalist thinking on poverty was historical and thus probed the link between colonialisation and impoverishment. Thus there developed a critique of the colonial approach to poverty and eventually an agenda of political action.

Finally a question: What was the notion of poverty among the labouring poor in India? While we do not have adequate studies of the cognitive map of the peasantry, there is no doubt that the peasant notions of poverty were different from those of colonial administrators and the nationalist intelligentsia, Unfortunately historians have neglected this crucial question. This issue needs to be explored in the oral traditions and folk literature.Arguably, the survival and resuscitation of the colonial bureaucratic approach to poverty in our times since the 1990s, to the detriment of the early nationalists' understanding of poverty, imparts to the historical issues discussed above a contemporary relevance.

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Sixty Years of Independence: A Historical SurveyIrfan Habib

In 1921, an Indian was fortunate if he or she crossed the age of twenty, for this was the average expectation of life at birth during the census-decade 1911-21. The expectation of life had been declining steadily since the decade 1881-91, when it had been above twenty-five years.1 These data are sufficient to make superfluous any further descriptions of the absolute poverty and starvation of the bulk of the Indian population. With such misery within, India had been still forced to part annually with a significant portion of her GNP in the Tribute to England throughout the 19th century, which, if it had remained with her, would have given a fairly respectable rate of national savings in those years: it was certainly not less than 4.14% in the early 1880s, and in reality much higher.2 "Free Trade" at the same time destroyed India's traditional industries and obstructed any substantive growth of modern industry. In 1922 the average daily number of workers employed in factories was less than 1.4 million in a country that then contained a population of 305 million. The material backwardness had its reflection in the country's cultural level. In 1931 the general literary rate was only 9.2 per cent, female literacy being below 3 percent.

Such were the conditions of India after more than 150 years of British rule, counting from Plassey (1757). We have to remind ourselves of these conditions in order to understand the framework in which the visions of a future India were formed in the National Movement. The courteous but pitiless analyses of Dadabhoy Naoroji and R.C. Dutt,3 showed that the two major British engines of exploitation of India were the Tribute and Free Trade; and this critique, earning universal nationalist approval, gave birth to 'Swadeshi', the battle-cry of the 1905 and subsequent nationalist upsurges. But if everyone in the national camp was agreed on these essentials of contemporary reality, on the future the disagreements were profound.

The founding fathers of the Indian National Congress (est. 1885), the "Moderates", saw the country's future as one of "constitutional development" under the stewardship of England, the development paralleling a reform of the traditional society with its inequitous customs; and they aspired to economic progress on the lines of modern countries with Japan as the model. Yet, for the reason that the moderates desired India's industrial development, they rejected Free Trade, the great shibboleth of modern political economy, and demanded Protection. Swadeshi, therefore, came more easily to their lips than Swaraj. They wished Britain to loosen the tentacles of Tribute which strangled the domestic market; and one way to do so was to reduce the salary and pension drain to Britain by "Indianising" the civil services and the army. One can see now that they looked forward to a future for India as a classical bourgeois country; but there was one mitigating feature: they had a genuine sympathy for the poor, and wished, like Naoroji and Dutt, to protect the small peasant and the factory worker. It was here that the theoretical foundation was laid for the later mobilisation of the ordinary people under Gandhi and the Left.

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The 'Orthodox Nationalists' led by Tilak had little sympathy for the slow constitutional development or the urge for social reform articulated by moderate leaders like Gokhale. Not only was Swaraj the Indian's 'birth-right', but there was little wrong with the old Indian culture and society. Rather, if the British rulers wished to impose their western ways in the guise of reform, opposition to this could be used by the nationalists for the mobilization of people against alien rule. In the idealization of the old society, the Hindu aspects were naturally predominant; and this provided a fertile ground for the development of 'Hindu nationalism' of Aurobindo Ghosh and others, with all its divisive consequences.

Gandhi's instinctive sympathies were with the Moderates, when they envisioned an Indian nation comprising all religious communities, and pleaded for a patient# winning of rights by peaceful agitation and persuasion. But, as he put it in Hind Swaraj (1909), he did not want to have a westernized India (to 'make India English' though 'without the Englishman'). From western critics themselves he had imbibed a heavy suspicion of the inequities of modern industrial society; he wished to go back to the traditional India of the villages, to fulfil the objects of sarvodaya (charity to all). The class differences could be tided over by the fulfilment of the responsibility of 'custodianship' by the upper classes. Gandhi's views subsequently underwent substantial changes as he freely admitted later. Untouchability and oppression of women in traditional society had been paid scant attention in Hind Swaraj; now after Gandhi's return to India (1915), they became increasingly central to his cause of full-scale nationalist mobilization. Realities of life began to rule out any prospect of peasant dependence on zamindars. And could India remain for ever an unindustrialized society to keep the village predominant?

Gandhi was compelled on these and other points, to make concessions. These concessions could be read in both a capitalist (or pro-zamindar) and a socialist spirit. From the 1920s the Left in the National Movement began to emerge, consisting within the Congress of Jawaharlal Nehru and the Socialists, and, outside, mainly of the Communists. Their aspirations were sought to be met by the vision of Free India contained in the Fundamental Rights Resolution adopted at Karachi by the Congress in 1931 — a draft made by Nehru and carefully revised by Gandhi. The Karachi Resolution is important because it contained not only all the basic principles of India's secular democracy (adult suffrage, state's neutrality in matters of religion, equality of men and women, abolition of untouchability), but also those policy objectives (industrialization, state's ownership and control of basic industries, protection, agrarian reform), which are now supposed in some quarters to be the great evils inherited from "the Nehru era" (1947-64). There is no doubt that if there was a single document that contained the National Movement's blue-print for free India, it was the Karachi resolution, and it exercised much influence on later pronouncements of the Congress.

Both the Gandhian and Left visions of India were crucial to mass mobilization for the National Movement. It was the presence of peasants and women that gave particular tenacity to the Civil Disobedience Movement of 1930-34; sweeping peasant unrest gave the Congress its very large vote in 1937; and it was the popular post-war upsurge, typified by the RIN Mutiny (1946), that quickened the pace for Freedom.

Since the "nation" (the country as a political community) is a product of modern history, it can be argued that national consciousness developed in India only as a consequence of the development of modern means of communication especially railways, and the creation thereby of a unified market, the growth of the press and the spread of modern education. But these very factors heightened the consciousness of other identities as well such as religious, caste, and regional. While nationalist historians like Tara Chand and Mohammad Habib laboured to prove that compositeness was the bedrock on which the Indian civilization had been built, a point stressed too in Jawaharlal Nehru's Discovery of India,4 others, like R.C. Majumdar and I.H. Qureshi, saw two mutually exclusive streams running in Indian history ever since the appearance of Islam. If Muslim separatism openly espoused the Two-Nation theory after the Lahore resolution of the Muslim League (1940), Hindu 'nationalism' also implicitly accepted the same theory by virtually excluding Muslims from India's cultural past and from her political future ("Hindi, Hindu, Hindusthan"). The inability of the National Movement to prevent the Partition in 1947 was undoubtedly a severe setback, though it is

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disputable how far it could have been prevented by making further concessions to British imperialism or the Muslim League — and whether, if so prevented, the resulting political structure could have been viable. The real reverse lay in the failure in the battle for minds, which, as we face similar divisive tendencies today, should be a great lesson for us.

IIFrom 15 August 1947 to 26 January 1950 — from the creation of the Dominion of India to the proclamation of the Indian Republic — spanned a very harsh period of two and a half years. The jubilation at Independence was tempered, even silenced, by the largest forced migration of this century, involving some 12 million people and by the brutal massacres that accompanied them, massacres ultimately stayed only by Gandhiji's two fasts at Calcutta and Delhi and his martyrdom (January 1948). The partitioned land, already ravaged by two centuries of colonial exploitation, now had its industrial structure thoroughly disrupted. Raw jute and cotton fields were placed on one side of the border, and jute and cotton mills on the other; an extensive market for Indian coal was also lost. The adverse effects on textile manufactures, the biggest sector in India's modern industry at the time, tended to pull back the general level of India's industrial production. The inherited British-built administrative machinery and the tendency to compromise with the established land-controlling interests led to much peasant dissatisfaction, of which the Telengana rebellion (1947-51) was the most powerful expression. The British officers' dominance over the Indian armed forces, and the dependence on foreign capital, set limits to India's freedom in the international arena during the onset of the Cold War. Yet, despite criticism from the Left, which was not entirely unjustified,5 much was still achieved. That long-standing obstruction to political progress, represented by the princely states, was removed by the states' absorption into the Indian Union. The Constitution of 1950, supplemented by the Representation of People Act, provided for a parliamentary democracy with universal adult suffrage and for a separation of state from religion. The Industrial Policy Resolution (1948), despite its eschewing of interference with existing private capital, announced a large future role for the Public Sector.

The steps prepared the ground for the '50s, which may now be seen as constituting Free India's most heroic phase. The agrarian reform, undoubtedly uneven in its depth from state to state, was now carried out, restricting if not supplanting rent-based landlordism, and opening the doors to larger farming and rural capitalism. With the Second Five Year Plan (1956-61), the strengthening of Protection and exchange controls, and the revision of the Industrial Policy Resolution (1956), an industrial expansion began, its core being the Public Sector, creating for the first time in India a respectable heavy industry. The share of the public sector in total capital stock grew over the '50s (between 1950-51 and 1960-61) from 18% to 33%. At the same time power generation increased 2.5 times, and production of finished steel 2.4 times. Per-capita availability of clothing doubled, whereas foodgrains availability rose by nearly a half. Public investment in education also showed some results. School enrolment climbed from 23.5 to 44.7 million, and university enrolment from 0.4 million to 1.05 million, thus adding substantial numbers to the educated classes. The number of literates increased from about a sixth to nearly a quarter of the population, and average life-expectation from 32.5 years to 41.2. These were not insignificant achievements, and need to be recalled especially today, when it has become fashionable to decry the 'socialist' policies of those days.

It is true that in the 50's the main attempt of the political parties was to occupy a Leftward space. Essentially, and despite its absorption, into its camp, of princes and big landlords, the Congress began to call for a "socialist pattern" and then "socialism", though, as Nehru made it fairly clear in his "Basic Approach" (1958), his "socialism" was very close to "the welfare state" of western thinkers ("...many of the ideas of socialism are gradually incorporated even in the capitalist structure"). 6 The Communist Party remained the largest opposition group in Parliament and formed the State Government in Kerala (1957-59). A major step to protect women was assured by the enactment of Hindu code (1953) despite vociferous RSS-sponsored opposition by the Jan Sangh and Ram Rajya Parishad.

India's internal advance, notwithstanding its continuing poverty, was paralleled by its rising

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prestige in the world. As the Cold War began in right earnest, with the US's nuclear might challenged by that of the USSR, and with the Chinese Revolution (1949) followed by the out-break of the Korean War (1950), India began to diverge from its pro-US policy (it had voted in the UN Assembly against North Korea). Beginning with "abstentions" at the U.N., India began to pursue a policy of "non-alignment", which enabled it to act as one of the peace-makers in Korea (1952-53), and spearhead an Asian-African movement, marked by the Bandung Conference (1955). Close friendship developed with the USSR and China, which counterbalanced the aid-fuelled relationship with the US and its allies.

By the early 'sixties the internal economic developments began to show signs of strain. The growth of heavy industry under the aegis of the State, greatly accelerated the expansion of Big Business and monopoly in the secondary goods sector and promoted the intensification of social inequalities, to reduce which had been the avowed purpose of establishing the public sector. The agrarian reforms left the poorer strata largely untouched.7 And open corruption8 tended to undermine every effort at economic development or promotion of welfare. A right-wing shift developed, marked by the dismissal of the Kerala government in 1959 and the rather listless pursuance of land ceilings programme announced in 1962. An appeal to national jingoism leading to the fiasco of the India-China war of 1962, further entrenched the Right in the seats of power. The then journalistic pastime, "After Nehru, who?" soon turned into "After Nehru, what?" Nehru's death in 1964 could aptly (and sadly) be deemed to have closed an era.9

IIIFrom 1962 to 1977 constitutes a phase in which there occurred a number of shifts in the policies of the regime at the centre, until, with the General elections at the end of the Emergency, the Congress for the first time lost power at the centre. A right-wing shift in the sixties marked by recurring arrests of 'Left Communists' (in 1962 and after the communist split of 1964, whereafter the CPI(M) was organised) was followed by a 'Left-ward' shift in Congress policies. The principal measures of this phase were the abolition of privy purses (1971), and the nationalisation of banks (1969), general insurance (1971) and coal mines (1972-73), during Indira Gandhi's first term as Prime Minister, 1966-77. The economic growth continued but with some unevenness: over the 1960s power generation increased more than 3 times and production of finished steel nearly doubled; during the '70s power generation double and finished steel production increased by nearly 50%. But during the '60s and '70s the availability per capita of foodgrains and clothing remained practically stationary, though the so-called Green Revolution was expected to raise foodgrains production. 10 The problem of absolute poverty lent point to Mrs Gandhi's winning slogan at the 1972 elections: Gbaribi Hatao ('Remove Poverty’). Despite a drawn war with Pakistan in 1965 and a successful one in 1971, resulting in the creation of the independent state of Bangladesh, followed by the nuclear explosion (1974), the internal difficulties accumulated, as public disenchantment with the corrupt establishment and failure of efforts at poverty-alleviation mounted. To this discontent Jai Prakash Narain gave particular articulation, Indira Gandhi replied with the Emergency in the summer of 1975, which lasted nearly two years with imprisonments, censorship and suppression of civil liberties — the greatest blow to parliamentary democracy since Independence.

The Emergency raised many questions about the strength of Indian democracy. Even the Left was divided on the issue, with CPI supporting and CPI(M) opposing the Emergency. The intelligentsia's reaction in the beginning was muted; and there was no general working-class action against it to speak of. Yet, much to their honour, the opposition parties had few deserters, and an underground resentment began to develop, erupting ultimately to bring about the defeat of Indira Gandhi at the polls in 1977.

It is possible that one of the reasons why the Emergency did not lead to immediate resistance was the popular base gained by the Congress regime by the radical measuresof early 1970s, which were described as steps towards Socialism. Despite the Communists' perception of the Public Sector as a feeder of Big Business, both by its supply of cheap materials to private industry and by investment support from nationalised banks and financial institutions,11 the Left too endolsed the expansion

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of the Public Sector for its future potential in a 'People's Democracy' preceding the stage of Socialism. The popular response to the slogan of Socialism was strong enough to persuade Indira Gandhi to insert the objective of Socialism in the Preamble to the Constitution during the Emergency, and for the Jan Sangh in its post-1979 incarnation as Bharatiya Janata Party to pay fleeting lip-service to 'Gandhian Socialism'. Clearly, the ideological momentum created in Nehru's days was still at work in popular consciousness, so that it was an important factor to consider in electoral politics. Since the late 1970s, however, the picture has changed.

IVThere is no doubt that the collapse of the Emergency (1977), despite Indira Gandhi's return to power in 1980, marked a great break in Indian political tradition. The earlier slogans appeared to be more and more illusory, and throughout the 1980s, neither Indira Gandhi, tragically assassinated in 1984, nor her son and successor, Rajiv Gandhi, Prime Minister until 1989, brought forth any measures of a radical nature, comparable to those of the earlier two phases. This was despite the fact that the economy, running with the structure already created, showed considerable strength: the general index of industrial production climbed steadily from 100 to 212.6 between 1980-81 and 1990-91, though again per-capita foodgrains availability increased only marginally and textile production, determining the availability of clothing, stagnated, being on 1990-91 at about the same level as in 1980-81.12 The industrial growth was thus did not still affect the basic standards of life of the poorer strata, while the upper classes were certainly getting richer.

Such a situation was bound to create a climate for political change, even if strong allegations of corruption had not queered the pitch for the Congress. After a Janata Dal interlude (1989-90), there was again a five-year rule by the Congress under Narasimha Rao (1991-96), when "reforms" were set afoot to dismantle much of the older order in the interest of a free-market economy, which would hopefully be spurred by foreign competition and fed by foreign capital. This could be taken to be a right-ward turn for which the ideological preparation was already afoot since the early '80s; or it could be seen as a policy adopted not out conviction, but out of compulsion, forced by the collapse of the Socialist camp, and the achievement of total ascendancy in global economy by the US and its allies. The scam of 1992 and the vulnerability of the Indian stock market thereafter still leaves questionable the actual degree of the success of the "reforms" policy. It has certainly been accompanied by a degree of corruption which has left even most cynics sincerely astonished.

The departure since the 1980s from the traditional post-Independence principles of state policy created a vacuum in the political space for the bourgeois parties. Since radical social engineering of any sort was out of the question, the Congress regime in the 1980's developed the policy of throwing money at the poor through costly inefficient poverty alleviation programmes. With corruption and embezzlement draining away the tax-payer's resources actually assigned to the programmes, their cost-effectiveness has been miserably low. V.P. Singh in 1990 came forward with his goal of "Social Justice", designed to be attained through an affirmative-action programme in favour of the Backward Castes. As so far presented, this amounts mainly to reservation for such castes in public employment and public educational institutions, and leaves untouched the private sector, the main area of employment. The policy assumes that caste-identities constitute a key element of Indian social reality; and here, undoubtedly, there is a major shift away from the concept of class, a shift with which the Left has had increasingly to reconcile itself.

It is important to remember that, however necessary in the short run such perception of "social justice" may be, it cannot serve as the basis for any long-term vision of an equitable India, which must involve the larger issue of the distribution of wealth in Indian society. Despite the fall of the Socialist system in Russia and Eastern Europe, and with all the imperfections that possibly hastened its demise, Socialism still remains, in human experience, the most practical and logical form of the welfare state. It is, therefore a valid position for the CPI(M), CPI and other parties of the Left to take, when, unlike some of their counterparts in other parts of the world, they affirm their continuing loyalty to the goal of Socialism. But it is clear at the same time that in the short run, they are obliged to accept the continuance of the capitalist order, hopefully to be increasingly restricted,

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while building or participating in a united front formed to defend India's secular democracy from the threat of the communal forces.The spectacular electoral successes of the BJP in the last ten years have made it obvious that communal revivalism now occupies a large part of the ideological space in India. Assistance to various communal outfits of all hues has been provided from time to time by the ruling Congress since the inclusion of Hindu Mahasabha and Akali representative in the first cabinet of Free India to Rajiv Gandhi's action in 1986 in simultaneously opening the Babri Masjid for a Hindu occupation and passing an act to circumvent the Supreme Court's judgement in the Shah Bano caseto appease Muslim fundamentalists. Yet such concessions-and, once communal ideology becomes widespread, these become acts of populism — are not sufficient by themselves, to explain the swelling communal upsurge that led to the demolition of Babri Masjid in December 1992 and to the BJP enjoying power at Delhi for seventeen days in May 1996, and later for almost five years. The stock market's reaction to the BJP regime was ominously friendly, showing that the BJP has few problems with the Indian capitalist class, which is, perhaps, right in taking its "Swadeshi" protestations as a mere populist posture.

There is no particular reason to believe that what is good for Business is good for India, nor any reason why one should worry over much about how the stock-exchanges behave. Unexpected wisdom, on the other hand, has come from the secular political parties. Their combinations — or, at any rate, refusal to jump on to an apparently winning bandwagon — thwarted the imminent danger from a communalist take-over. But if India's future as a modern state, caring for all its citizens, is to be preserved, there is surely need for a much more active and broader effort in the ideological sphere, in the humanities, literature, culture, and arts — and, not the least in science as well. Communal prejudice and chauvinistic claims are often close allies; and one finds a chain leading one from preniciously written history textbooks to fantastic claims made on the pretended basis of science. One may also mention that minority separatism (such as Muslim fundamentalism) is a very welcome ally of the Hindutva campaigners, and, therefore, only such effort for the promotion of secular ideas will succeed as undertakes to address all sections of our population.

Other forces that have now emerged with much strength are those of regional separatism, sometimes allied with religious appeals. The '80s saw violent 'militancy' in the Panjab, Kashmir and parts of the North-east, which has continued, though with welcome abatement, into the '90s. While there is every reason for firmness against parochial demands such as the one for an unending division into states, 'self-government' is still a basic democratic principle for dealing with regional grievances. The cause of national unity is not at all helped by those who have a very one-sided view of the nation. National unity can hardly be built through the exaltation of the Aryan origins (with India as the Aryan 'homeland') and the demand for the imposition of the Hindi language on non-Hindi states. Equally, however, one must urge restraint on those who quite unhistorically glorify regional contributions and unduly stress ethnic identities. There is the larger cause of the poor, the dalits, the women and the oppressed of our society, which must override all divisive considerations. One hopes that this would also be appreciated by those who strongly advocate regional or ethnic demands.

I believe that as we complete sixty years of our Independence, there is much to look back to with pride. I do not respectfully share the assessment of our "Subaltern" historians, that freedom has meant benefits only for the elite. It seems to me true, however, that it is the ordinary citizen who has gained the least; yet it is his loyalty to the original objectives of the Republic, that has sustained it through all the complex turns and twists of the last so many years. It is to him ultimately that our case for the nation's future has to be put.

NOTES1. Kingsley Davis, The Population of India and Pakistan, Princeton, 1951, p.62.2. This is because the GNP figure given by A Heston, on which the percentage (4.14%) is calculated, is likely to be a heavy overestimate (cf. I. Habib, Essays in Indian History, New Delhi, 1995, pp.351-60).

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3. Dadabhoy Naoroji, Poverty and Un-British Rule in India, London, 1901; R.C. Dutt, Economic History of India under Early British Rule, London, 1901, and Economic History of India in the Victorian Age, London, 1903.

4. London, 1946.

5. E.g., B.T. Ranadive, The Crisis of Indian Economy, Bombay, 1953.

6. AICC Economic Review, X (8-9) (August 1958). Characteristically, Nehru ended by an appeal to "keep in view the old Vedantic ideal of the life force which is the inner base of everything that exists"!

7. See the moving report by Kusum Nair, Blossoms in the Dust, London, 1961.

8. See R. Segal, The Crisis of India, Penguin Books, 1965 pp.277-310. Regan visited India in 1962.

9. For a reliable and insightful survey of the 1947-62 phase, see Charles Bettelheim, India Independent, London, 1968.

10. Official data, drawn from the Ministry of Finance, Economic Survey, 1993-94, Statistical Appendix, S.pp. 24,36-38.

11. E.M. Namboodiripad, Economics and Politics of India's Socialist Pattern, New Delhi, 1996, pp.192-210; Nikhil chakravartty in Ayub Syed (ed.), The Swaraj Paul Factor, Bombay, [1983], pp.100-08, to cite two pieces from a large body of literature.

12. Figures derived from Economic Survey, 1993-94.

13

AN ABSTRACT

Incorporation and exclusion:

The state and economic development in India Jayati Ghosh

It is evident that despite six decades of independence, the development project is nowhere near completion in India. It is also clear that over time, some elements of that project seem even less likely to be achieved than in the past, despite fairly rapid economic growth. This necessarily raises questions about the relationship between the state and economic development, and requires some assessment of the class character of the state as well as the kinds of changes this has undergone over this period.

Taking a long view, there are some clear achievements of the Indian economy since Independence - most crucially the emergence of a reasonably diversified economy with an industrial base. The past twenty five years have also witnessed rates of aggregate GDP growth that are high compared to the past and also compared with several other parts of the developing world. This higher aggregate growth has thus far been accompanied by some degree of macroeconomic stability, with the absence of extreme volatility in the form of financial crises such as have been evident in several other emerging markets.

However, there are also some clear failures of this growth process even from a long run perspective. An important failure is the worrying absence of structural change, in terms of the ability to shift the labour force out of low productivity activities, especially in agriculture, to higher productivity and better remunerated activities. Agriculture continues to account for around 60 per cent of the work force even though its share of GDP is now less than 20 per cent. In the past decade, agrarian crisis across many parts of the country has impacted adversely on the livelihood of both cultivators and rural workers, yet the generation of more productive employment outside this sector remains woefully inadequate.

Other major failures are in many ways related to this fundamental failure: the persistence of widespread poverty; the absence of basic food security for a significant proportion of the population; the inability to ensure basic needs of housing, sanitation, adequate health care to the population as a whole; the continuing inability to ensure universal education; the sluggish enlargement of access to education and employment across different social groups and for women in particular. In addition there are problems caused by the very pattern of growth: aggravated regional imbalances; greater inequalities in the control over assets and in access to incomes; dispossession and displacement without adequate compensation and rehabilitation.

Seen in this light, it becomes apparent that a basic feature of the process of economic development thus far has been exclusion: exclusion from control over assets; exclusion from the benefits of growth; exclusion from the impact of physical and social infrastructure expansion; exclusion from education and from income-generating opportunities. However, exclusion from these has not meant exclusion from the system as such - rather, those who are supposedly marginalised or excluded have been affected precisely because they have been incorporated into market systems. Thus, peasants facing a crisis of viability of cultivation have been integrated into a market system that has

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made them more reliant on purchased inputs in deregulated markets while becoming more dependent upon volatile output markets in which state protection is completely inadequate. The growing army of "self-employed" workers, who now account for more than half of our work force, have been excluded from paid employment because of the sheer difficulty of finding jobs, but are nevertheless heavily involved in commercial activity and exposed to market uncertainties in the search for livelihood. Those who have been displaced by developmental projects or other processes and subsequently have not found adequate livelihood in other activities, are victims of the process of economic integration, though excluded from the benefits.

This then leads to the question: how is it that an apparently democratic polity, where there is no question that electoral participation and even other forms of political voice are entrenched and growing, can continue to tolerate and even encourage such processes of exclusion? The issue of the class character of the Indian state is one that has been widely debated for decades, although in recent times the debate has become more muddy. One reason for the greater muddiness may be that the simple categorisations such as "bourgeois-landlord alliance" which were earlier used with great abandon, are no longer adequate to capture the complexity and change that characterise these relations. The past two decades have been particularly dramatic in changing both economic and political landscapes in ways that reflect dynamic class configurations and social changes.

Therefore, a consideration of the nature of the Indian state must now incorporate a number of new elements: the entry of finance capital and its complex relationship with productive capital; the emergence of regional bourgeoisies with national and even international aspirations; the greater impact of a new category of capitalists - middlemen in not just finance but also in trade, arms deals, government procurement and sale of public assets; the significant role of the middle classes, both urban and rural; the political and economic impact of the diaspora; the more vocal demands of social groups that still remain excluded from various economic spoils of the system; and of course, the essential requirement of legitimisation which is even more incumbent upon a state subject to electoral democracy.

The sheer complexity of the task of analysing the nature of the current Indian state does not make it any less urgent. Indeed, such an understanding is especially important in the current conjuncture when the economy is entering into a phase which may be characterised as "rampant capitalism". This phase of rampant capitalism is necessarily dynamic, that is to say it involves more confident private capitalist activity and creates more rapid and pervasive effects upon workers and citizens in general. It is also a phase in which various new forms of primitive accumulation emerge, as well as the creation of new markets through various means ranging from the privatisation of public services to the legal enforcement of intellectual property rights.

To manage such dramatic changes, domestic and international capital may well desire a more centralised and authoritarian polity which can control dissent and prevent messy obstructions to this process of rapid accumulation. Yet socio-economic changes in India are typically too complex to allow for such straightforward imposition of control. Responses to this can range from the less desirable forms such as divisive communally inspired tendencies, caste-based identity politics and regional strife, to the more progressive democratic movements that force the state to shift the direction of economic policies and processes to a genuinely more inclusive pattern of economic development.

15

New Data on the Arrested Development of Capitalism in Indian AgricultureUtsa Patnaik

1. IntroductionThe agrarian sector of this country has been dragged down into deep depression directly as a result of the government's expenditure deflating fiscal policy combined with trade liberalization at a time when, from a decade ago, global primary product prices have gone into decline. The situation in many other third world countries is similar to that in India in that there is a deep crisis of not only employment and livelihoods but of material production itself. The irrational policies which have led the country to this pass, have been internalized by the ruling elite of this country who mindlessly echo the deflationary dogmas of global financial interests as expressed through the policy packages which continue to be advised by the Bretton Woods Institutions despite the mountain of evidence which has accumulated on the extremely adverse effects of these policies on the already poor mass of the population of these countries. The ruling elites and a mainly urban middle class has been made complicit in attacking the livelihoods of their own poor fellow citizens, by the inducement of la dolce vita, of attaining a consumption goods-glutted global life-style on par with advanced country populations.

The overall growth rate of GDP has been high in recent years, averaging 6 to 7 percent, second only to that of China. India is widely projected abroad as a success story of economic reforms, an important 'emerging market' for Northern goods and services, and an attractive destination for investment. The portrayal of India as a dynamic economy - one of the so-called BRICS - in much of the western financial media is a picture which shows only a small part of the reality of India today. This picture is misleading as regards the welfare implications for the population, for overall growth rates do not tell us about the sectoral composition of growth or its distributional effects. Both the major material productive sectors supporting together over four-fifths of the population, namely agriculture and industry, have gone into decline, with a severe depression in agriculture which has seen falling per head real incomes. Unemployment in both rural and urban India has been rising, and average food grains absorption within the country has declined to a historic low comparable to the colonial period, even as grain exports rise, with the brunt of the increased hunger being borne by rural India. There is unprecedented agrarian distress manifesting itself in rising farm indebtedness, asset loss including rising landlessness, and many thousands of farmer suicides. Official claims of decline in rural poverty, figures which are reproduced in the World Bank's World Development Report 2006, are misleading as they are based on a logically incorrect method of poverty estimation: correct estimates show poverty to be very high and increase in the depth of poverty during the period of economic reforms.

The only sector of the economy which has registered rapid expansion is the services sector, of

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which a small segment is high-income generating IT- enabled services and financial services, both of which have been growing fast. The bulk of services remain low-income provision of personal and catering services to the small minority of rich Indians, one sixth or so of the total population, who have enjoyed a rapid rise in their real incomes under economic reforms. National Income was already highly unequally distributed in the 1990s, but there has been further rise in income inequality of a very specific and disturbing kind, namely an absolute decline of real income for the vast majority of the population, combined with a very rapid rise in real incomes for a small minority. This has meant, on the one hand, a very visible real estate and building boom in urban areas, a fast growing market for high-end consumer durables and electronic goods on account of the vieux riches plus the nouveaux riches minority which is seeking to emulate Northern life styles. On the other hand, for the majority of the population it has meant higher unemployment, indebtedness, asset loss and hunger, in short growing immiserization. The agenda of economic reforms and privatization is being pushed by the state with continual pressure from the international financial institutions, and it is reflected in a new round of attacks in recent years, both on the small-scale property of the peasantry and on the common property resources of tribal populations. At the same time, the agenda of globalization is meeting increasing resistance: the polarization of Indian society is setting up new and complex patterns of class re-alignments, in which a complex but increasingly clear picture is emerging

2. Shifts in the sectoral contribution to GDP and Work-forceThere have been more marked changes during the fifteen years of reforms, in the composition of GDP and of employment by the major economic sectors, than during the preceding thirty years. During the decade of the 1980s, the contribution of the secondary sector to the nation's income had risen, but under economic reforms it has stagnated at just under a quarter during the period 1990-1 to 2002-3. The share of agriculture and allied activities in GDP which was declining slowly in the 1980s, has fallen steeply from about 35 percent at the beginning of the 1990s to about 25 percent by the triennium ending 2003-04, while the share of services has risen correspondingly from around two-fifths to over one-half of GDP, the largest rise being in trade, hotels, transport and communications followed by finance, real estate and business services (Table 1).

It is a cause for concern that there is tertiarization of the Indian economy even before it has undergone substantial industrial development. A similar shift towards services accompanied by decline in agriculture and stagnation in manufacturing, had been last seen in the colonial period during 1891 to 1931.

The occupational distribution of the workforce shows that the share of agriculture in the male rural workforce has declined very little, from 74.5 percent to 71.4 percent comparing 1999-00 with 1987-88 even though the share of agriculture in GDP has declined by 11 percentage points over that period, while for the rural female workforce dependence on agriculture has slightly risen over this period from 84.5 to 85.4 percent.. Real output per head in agriculture has been falling under economic reforms and trade liberalization. The share of male urban workforce dependent on mining, manufacturing and utilities which was 29.5 percent in 1977-8 and had fallen slightly by one point in 1987-8, shows a steeper decline from that date to only 24.1 percent by 1999-00 while urban female workers similarly register a declining share in these activities, from 28 to 24.6 percent. The share of employment in all services taken together register a large rise in urban areas for both males and females but more so for the latter. These data relate to number of workers and do not reflect the reduction in days worked per worker which is an important dimension of unemployment. On the employment criterion one can definitely say that there has been significant de-industrialization over the reform period combined with tertiarization of the economy.

The disturbing feature underlying these relative shifts is that from the mid-1990s, is that there has been is absolute decline in numbers of workers employed as well as days of employment in agriculture, mining and quarrying, and public utilities. The share of organized industry (where work conditions are better) in total manufacturing employment, has declined. Employment growth in rural India at 2.4 percent, was robust in the 1980s, while it has collapsed in the reform period to

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only 0.7 percent. This collapse of rural employment is particularly significant as seven-tenths of the total population is dependent on rural livelihoods.

What is the reason for rising unemployment and the depression in agriculture in particular? The basic reason lies in the expenditure-deflating policies of the neo-liberal agenda, combined with trade liberalization during a period of falling global prices for primary products. Neo-liberal economic policies guided by the Bretton Woods Institutions (BWI), comprise a set of macroeconomic policies which are more than merely conservative in financial terms. When examined carefully the policy package is seen to comprise a systematically expenditure deflating, contractionary set of policies which reduces the level of activity in the material productive sectors of the concerned economy, even as the tertiary including the financial sectors may show rapid growth. (Table 1)

A well known set of studies sponsored by UNICEF of structural adjustment policies followed under BWI guidance in a number of developing countries in the 1980s, found that the majority of countries experienced reduced investment and growth rates, higher infant mortality rates, reduced rates of improvement in literacy, fall in real wages and rise in poverty (Cornia, Jolly and Stewart, 1987). The policies followed by countries in the 1980s under IMF guidance included reduction in public expenditure, tight money, fiscal contraction, caps on wages and devaluation. These clearly add up to a policy package which is strongly expenditure-deflating. Since neo-liberal policies in India have also been expenditure deflating as regards the material productive sectors, and strongly so with respect to agriculture, it is not surprising that we see an agrarian crisis unfolding, while every indication is that absolute poverty is rising.

Agriculture is always a 'soft' target for the misguided deflationary policies which continue to be urged by the Bretton Woods Institutions, no matter how high unemployment and hunger might be. The impact of deflationary policies has been especially severe in rural India, which saw reduction in public capital formation, as well as sharp reduction in public planned current development expenditures. In 'rural development expenditures' I include the five Plan heads of a) agriculture b) rural development, c) irrigation and flood control d) special areas programmes and e) village and small scale industry. All these expenditures are vital for maintaining rural productivity and employment.

During the 7th Plan period marking the pre-reforms phase, from 1985 to 1990, on average 3.8 percent of Net National Product was spent annually as rural development expenditures (RDE) as

Table 1 Percentage Contribution of the Economic sectors to GDP at factor cost, 1980-81 to 2003-04(Constant values at 1993-94 prices)Three year average centred on the year: -- Agriculture forestry, fishing, mining & quarrying -- Manufacturing, construction, utilities -- Trade, hotels, transport & communication -- Finance, real estate & business services -- All Services1981-2 -- 41.34 -- 21.77 -- 18.52 -- 6.78 -- 36.891984-5 -- 39.84 -- 22.33 -- 18.53 -- 7.62 -- 37.831987-8 -- 36.44 -- 23.24 -- 19.18 -- 8.81 -- 40.321989-0 -- 27.49 -- 24.59 -- 22.28 -- 12.49 -- 47.921993-4 -- 33.55 -- 23.93 -- 19.37 -- 11.22 -- 42.521996-7 -- 30.16 -- 25.37 -- 21.12 -- 11.62 -- 44.471999-0 -- 27.49 -- 24.59 -- 22.28 -- 12.49 -- 47.922002-3 -- 24.72 -- 24.64 -- 24.61 -- 12.76 -- 50.63

Source: Govt, of India, Ministry o f Finance, Economic Survey 2005-06

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Table 2Reduction in Rural Development Expenditures under Economic ReformsSelected Years 1985-90 to 2004-05 -- 1985-90 average-- 1993-94 -- 1995-96 -- 1997-98 -- 2000-01 -- 2004-051. Rural Development Expenditures as Percent of NNP -- 3.8 -- 2.8 -- 2.6 -- 2.3 -- 1.9 -- 2.32. Above plus Infrastructure -- 11.1 -- 8.4 -- 6.9 -- 6.4 -- 5.8 -- 6.2

(Source: Government of India, Ministry of Finance, annual Economic Survey, for years 2001-02 to 2003-04, Appendix Table S-44. 'Rural development expenditures' here are the plan outlays of Centre and states under the five heads of agriculture, rural development, irrigation and flood control, special areas programmes, and village and small scale industry. Infrastructure includes all energy and transport including urban. Calculated from current values of expenditure and of NNP at factor cost . RE is Revised Estimate)

defined above, with well-documented positive effects in raising non-farm employment and raising rural wages, even though this was a paltry sum considering that three-quarters of the population depended on rural livelihoods then. From 1991 as contractionary Fund-guided policies started, as Table 2 shows, the share of RDE was cut sharply to below 2.6 percent of NNP by 1995-6 and fell further to 1.9 percent by year 2000-01. (Table 2)

Even though it was the agrarian crisis which had led to the fall of the NDA coalition at the May 2004 general elections, the assumption of power by the UPA government saw the deflationary hammer being applied once more by the new Finance Minister on agriculture with budget estimates of RDE for fiscal 2004-05 being much lower than the already low levels of the preceding years, and with cut by one-third in funding for the employment generation schemes. The revised estimates for 2004-05 show a slight rise in RDE to 2.3 percent of NNP, far short of the required doubling necessary to make an impact on rural depression. Immediately on coming to power the UPA government notified the Fiscal Responsibility and Budgetary Management Act, 2004 underscored its continuing strongly deflationist stance even in the face of rising unemployment. The gross fiscal deficit as percent of GDP has been brought down from 6.1 in 2000-01 to 4.1 by 2005-6 and is slated to be further lowered to 3.8 percent in 2006-07. More unemployment, more agrarian depression is to be expected.

The net results of the irrational cut-back of public investment and in RDE has been two-fold -a halving of the rate of crop output growth and a collapse of employment growth. Both foodgrains and non-foodgrains growth rates almost halved in the nineties compared to the pre-reform eighties, and both fell below the population growth rate even though this too is slowing down (see Table 3). This led to falling per capita output during the nineties, for the first time since the mid-sixties agricultural crisis which however had been short- lived, whereas per head agricultural output continues to fall today even after a decade. Food grains output has become completely stagnant in India during the last six years at around 205-6 million tonnes and it is stagnant also in Punjab at around 25-6 million tones. Per capita output is falling faster than ever before. (Chart la)

To sum up, macroeconomic policies of expenditure deflation is the key to understanding the agrarian crisis, and the resulting loss of purchasing power or, in Keynesian terms, a severe squeeze on aggregate effective demand of the majority of the population, the key to understanding why such abnormal levels of public foodgrains stocks of 64 million tonnes, 40 million tonnes in excess of buffer norms, had built up by July 2002. These stocks were coming out of more and more empty stomachs. (Chart lb)

The government and the majority of economists have put forward a totally incorrect analysis of the rising stocks and falling availability. They closed their eyes to the falling purchasing power deliberately brought about by public deflationary policies and instead they put the blame on allegedly

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Chart laFoodgrains Output and Availability per Capita in Kilograms per Annum,Triennial average, 1990- 1992 to 2001-2003(Here is given a figure)

Note : Availability is identical with Absorption and is calculated as follows: Net Output = 0.875 Gross Output, Availability = Net Output + Net Imports - Net Addition to (Public) Stocks

Chart lb Foodgrains Stocks and Exports(Here is given a figure)Note: Foodgrains Stocks are public stocks, Exports are total exports of foodgrains including out of Stocks. Both Output and Stocks are in Million tonnes.

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'too high ' minimum support price (MSP) which they claimed gave the 'wrong signals' to the farmers who therefore produced more than the market required, and they advocated reduction of MSP. This fallacious argument ignored the fact that food grains growth rates had halved, so that output per capita has been declining and this should have led to the need for imports had demand been maintained at normal levels. The freeze on procurement price which followed this wrong analysis, when input prices have been rising, has generalized deflation further to include more farmers and added to the problem of deficient demand. Rather than restoring lost purchasing power and boosting aggregate demand by using food stocks for food-for-work programmes, the government exported 22 million tonnes of grains out of public stocks at a subsidized price during 2002 and 2003, which apparently was mainly used to feed European cattle and Japanese pigs.

There is a dialectic between demand and supply which is operating before our eyes: having brought about a contraction of aggregate demand faster than output, leading initially to a build up of unsold stocks, the government then proceeded to give strong signals to farmers that they should cut back on production of foodgrains. State governments especially those which had taken World Bank or ADB loans went in for hiking power tariff and market pricing of water, meagre fertilizer subsidy was cut, and peasants were driven into the arms of moneylenders as priority sector lending was redefined to include large institutional borrows who starved farmers and small scale industry of funds. All this raised production costs and credit costs for farmers even as output prices were allowed to fall without state intervention.

Luminaries like Prof. Amartya Sen, who has not seriously studied the Indian economy for over three decades and reportedly denies the need to study macroeconomics at all, had already weighed in with ex cathedra pronouncements in his speeches that administered prices had given the wrong signals to farmers leading them to over-produce. Government froze the procurement price for foodgrains and procurement operations were deliberately run down so that the MSP could not be implemented, and private companies like Cargill were permitted to purchase directly from the depression hit farmers at below declared MSP. The Food Corporation of India's functioning has been severely undermined. In the case of the non-food export crops too the state commodity boards which used to purchase cotton, coffee, tea, and pepper have been deliberately run down from the mid-1990s onwards until now they are functionless, and farmers of these crops have been exposed to the fury of global price declines. Many thousands of suicides across Kerala, Vidatbha, Andhra Pradesh, Karnataka and Kerala have been the result.

Our farmers have responded to the negative signals repeatedly sent out by.the by government by cutting back on output and the result today is stagnant foodgrains output, declining output of many cash crops, combined with falling growth rates of animal products. How well will Prof. Amartya Sens's recommended 10 percent of GDP spending on health and education work when over 400 million people are being pushed down into deepening undernutrition?

3. Depression of Farmer Incomes, Rising Landlessness.With its obtuse and obdurate attack on the viability of farmers, as we have seen the government has succeeded in taking India back to stagnant food grains output, and the output growth rates of animal products in country (milk, eggs, meat) is also dropping since these are dependent on the byproducts of grain production to provide cheap feed, and feed roughages have become very expensive with stagnant food grains production. There is a sharp decline in the absolute numbers of milch cattle between 1992 and 2003 in almost all states and at the All-India level because the poor and small farmers, who used to maintain a substantial proportion of these cattle even if they had no or little cultivated land, find it too expensive to do so any longer, and they show not only loss of livestock but also loss of land.

The current inflation is only partially cost-push owing to high fuel prices. Underlying inflation are the output shortages which are emerging fast relative to the burgeoning demand of the Indian rich for grain-intensive animal products. The long-term 'solution' the government proposes, the corporatization of Indian agriculture oriented to exports, which is already under way, will simply make things much worse and exacerbate the foodgrains and animal products crisis, forcing more

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imports. That indeed is precisely the objective of the advanced countries operating through BWI doctrines, to bring about the undermining of our own production and self -sufficiency in food grains to such an extent that even with severe demand deflation, imports of grain from them becomes necessary. This objective is being realized before our eyes : sub-standard Australian grain is being imported even as grain production within the country is run down owing to the government's sustained attack on the viability of our farmers.

The only way the present government, conceptually chained to deflationary dogma, can think of managing the current discontent unleashed by stagflation is firstly to import just enough to keep the urban middle classes quiet and second, to apply the deflationary hammer once more on the masses of the rural and urban poor to keep aggregate demand in check. Pointers are the under-funding of the Rural Employment Guarantee and the withdrawal by the Reserve Bank of India of the facility of General Line of Credit to NABARD. The country has a mountain of forex reserves but the RBI is starving Indian rural development banks of funds. The policy makers, it seems will be satisfied with nothing less than a full-scale colonial style famine in their desire to turn India once more into a mere supply source for advanced county supermarkets and local elites at the expense of increasing hunger for millions of its own citizens.

The process of growth of capitalist production in Indian agriculture which was well on its way during the three decades 1960-1990, has ground to a halt under the burden of depression and what w see today once more is the pauperization of the peasantry, and the re-emergence of usury and small tenancy. The knowledge of Marxist discussions of 'the development of capitalism in agriculture' hardly exists today among our progressive students and intellectuals who are neither taught Marxist theory nor in the main are they scholarly enough to read Marx and Lenin on their own and try to understand that theory. They are therefore surprised by the idea that the capitalist development of agriculture has come to a halt, because they identify capitalist development not with changes in the internal relations of production and in the class structure in the agrarian sector, but simply with new technology and investment which they think the domestic and foreign corporates are or will be bringing in. However in Marxist discourse this process of corporatization represents a completely different phenomenon, namely the process of subordination of the peasantry under external capital ( both TNCs and domestic corporations are external to the agricultural sector) and not the development of capitalism from within agriculture.

What does the capitalist development of agriculture in Marxist discourse mean? It refers to a process of peasant differentiation under which the rich peasants increasingly invest in profit oriented cultivation based on increasing use of hired labour. In the Indian case the element of landlord capitalism was also strong, which refers to the erstwhile large scale rentiers dividing up their joint estates, resuming land from tenants, and investing in profit oriented production on the basis of hired labour. This author had summarized the trends in The Agrarian Question and the Development of Capitalism in India (1986), locating the success of Green Revolution in the expansionary fiscal stance of government up to that time, which had created a fast expanding internal market for necessities especially foodgrains and raised the profitability of foodgrains production. This also fed into the subsequent rapid growth of animal products under 'Operation Flood' and other schemes. The nationalization of banks in 1969 was followed by a fast expansion of relatively low cost credit to the agrarian sector, and the expanded operations of the FCI and the commodity boards in the course of the 1970s and 1980s had underpinned the relative security of markets and prices, which was conducive to private investment on the part of the ex-landlords and the peasantry, especially the well-to-do rich peasants and the viable middle and small peasants.

All these trends were completely reversed during the 15 years of deflationary economic reforms and trade liberalization. There has been a sustained attack on the viability of farmers by the government through raising input prices, withdrawing cheap credit and withdrawing price support in a scenario of falling prices faced in a trade-liberalized economy. Nine-tenths of India's farmers have been plunged into distress and are unable to cover their meager consumption requirements out incomes from all sources, as is indicated by NSS Report 497 whose main result is summarized in Table 3. Clearly the balance of deficit must be met through borrowing and asset depletion. While

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Table 3All -India Rural: Monthly Expenditure from all Sources, Consumption Expenditureand Investment in Productive Assets, (Rs), 2003

NET INCOME RECEIPTSArea Possessed Ha. – Wages -- Cultivation Income – Animal Farming – NFB – Total – Consumption – Balance -- Inv. in Prod Assets -- % of HH -- Cum. % of HH<0.01 – 1075 – 11 – 64 – 230 – 1380 – 2297 -- -917 – 40 -- 11.6 -- 11.60.01-0.4 -- 973 – 296 – 94 – 270 – 1633 – 2390 -- -757 – 37 -- 34.0 -- 45.60.04-1.0 -- 720 – 784 – 112 – 193 – 1809 – 2672 -- - 863 – 96 -- 27.6 -- 73.21.0-2.0 – 635 – 1578 – 102 – 178 -- 2493 – 3148 -- -655 -- 151 -- 15.1 -- 88.32.0-4.0 – 637 – 2685 – 57 – 210 – 3589 – 3685 -- -96 – 387 -- 7.9 -- 96.24.0-10.0 -- 486 – 4676 – 12 – 507 – 5681 – 4626 – 1055 – 685 -- 3.3 -- 99.5> 10.0 – 557 – 8321 – 113 – 676 – 9667 – 6418 – 3249 – 737 -- 0.5 -- 100.0ALL – 819 – 969 – 91—236 – 2115 – 2770 -- -655 – 124 -- 100 -- ---

(Source: NSS Report No. 497, Income, Expenditure and Productive Assets of Farmer Households, Table A-192. The column enough to meet consumption ; (nearly 5) to give monthly per) headed 'balance' has been calculated by the author. Note that only 4% of households earned expenditure. The consumption expenditures given above have to be divided through by family size capita expenditure, which is below the realistic poverty line for 80 percent of households.)

for All-India the net investment in productive assets, though very meagre, is positive, in a large number of states the figures are negative for a substantial fraction of farmers. (Thus Kerala shows negative net investment for the smallest 72 percent of all farmers as well as large negative investment in the largest size-class of farms).

No doubt 2002-03 was a bad drought year, but the percentage of non-viable farmers would reduce perhaps by at most one-tenth in a more normal year. At least four-fifths of all farmers cannot meet their minimum consumption requirements from their incomes. (Table 3 & 4)

The distribution of owned area by size of ownership holdings, in India shows that the landless and near-landless made up 40.3 percent of all households accounting for 0.48 percent of total owned area, and this includes the land on which their huts stand (Table 4). At the other pole, 56.6 percent of owned area was with only 9.5 percent of households. The extent of inequality shows an increase if we compare it to the pre-reform period, after adjusting for increased landlessness.

Agrarian distress has been manifesting itself in thousands of farmer suicides, underlying which is a steep fall in the profitability of production entirely engineered through neo-liberal policies and partly reflected in Table 3.

The distribution of Operated Holdings - the actual units in which land is cultivated.- shows very striking changes over the period 1992 to 2002-03. In all states the proportion of nil holdings have gone up, and at the All-India level it has risen from just below 20 percent of all holdings, to 32 percent. The absolute numbers of households operating no land or land below 0.002 ha. (officially termed the landless, here with respect to operated area) has doubled from 23 million to 46 million.

The state wise data show a sharper than average rise in all states specially affected by acute farmer distress, including Andhra Pradesh, Kerala and Punjab. In Kerala the change is very striking - rural households with nil operational holdings have risen from only 5.8 per cent to a record 38.6 percent, while in West Bengal nil holdings have doubled from 14 percent to over 30 percent. (Table 4- 2nd).

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Table 4 Distribution of Owned Area by Household Ownership Holdings All-India Rural, 2003 Columns 2 to 7 show the percentage distribution of owned area under various uses. Size-class Ha(1) – Home stead (2) – Orch ard(3) – Seasonal crops(4) – water bodies (5) – other non-ag(6) – Other (7) – All(8) -- No. of HH,00(12) -- %HH -- %Owned AreaNil less than – 0 – 0 – 0 – 0 – 0 – 0 – 0 – 97433 -- 6.59 -- 0.0000.002 -- 98.84 – 0 -- 0.15 – 0 -- 0.63 -- 0.39 – 100 – 50929 -- 3.44 -- 0.0080.002 - 0.005 -- 99.45 -- 0.02 -- 0.12 – 0 -- 0.17 -- 0.24 – 100 – 142610 -- 9.65 -- 0.049

Sub-Total – --- -- --- -- --- -- --- -- --- -- --- -- --- -- --- --290972 -- 19.68 -- 0.0570.005 - 0.04 -- 93.33 -- 0.12 -- 4.05 -- 0.10 0.76 -- 1.65 – 100 – 304701 -- 20.61 -- 0.426

Combined nil to 0.04 – --- -- --- -- --- -- --- -- --- -- --- -- --- -- --- --595673 -- 40.29 -- 0.4830.04 - 0.5 -- 11.59 -- 2.67 -- 76.68 -- 0.55 -- 0.34 -- 8.17 – 100 – 383955 -- 25.97 -- 8.990.5-1.00 -- 4.14 -- 2.51 -- 83.2 -- 0.62 -- 0.42 -- 9.11 – 100 – 198137 -- 13.40 -- 13.56

Sub-total 0.04 to 1.00 -- --- -- --- -- --- -- --- -- --- -- --- -- --- -- --- -- 39.37 -- 22.551.0-2.0 -- 2.50 -- 2.33 -- 84.68 -- 0.45 -- 0.46 -- 9.59 – 100 – 159916 -- 10.82 -- 20.37

Subtotal 0.04 to 2.0 – --- -- --- -- --- -- --- -- --- -- --- -- --- -- --- --742008 -- 50.19 -- 42.922.0 - 3.0 -- 1.67 -- 2.13 -- 84.63 -- 0.3 -- 0.48 -- 10.79 – 100 – 63189 -- 4.27 -- 13.813.0-4.0 -- 1.17 -- 3.32 -- 80.03 -- 0.36 -- 0.32 -- 14.8 – 100 – 25841 -- 1.75 -- 8.164.0-5.0 -- 0.82 -- 2.17 -- 84.91 -- 0.25 -- 0.37 -- 11.49 – 100 – 20009 -- 1.35 -- 8.205.0-7.5 -- 0.93 -- 2.91 -- 82.22 -- 0.38 -- 0.49 -- 13.09 – 100 – 17506 -- 1.18 -- 9.86

Sub-total 2.0 to 7.5 – --- -- --- -- --- -- --- -- --- -- --- -- --- -- --- --126545 -- 8.56 -- 40.037.5 - 10.0 -- 0.53 -- 4.56 -- 73.39 -- 0.05 -- 0.53 -- 20.94 – 100 – 6324 -- 0.43 -- 5.0110.0-20.0 -- 0.60 -- 1.91 -- 79.27 -- 0.24 -- 0.11 -- 17.87 – 100 – 6781 -- 0.46 -- 8.5320.0 & above -- 0.38 -- 3.29 -- 70.15 -- 0.02 -- 0.03 -- 26.12 – 100 – 1044 -- 0.07 -- 3.02

Sub –total – --- -- --- -- --- -- --- -- --- -- --- -- --- -- --- --14149 -- 0.96 -- 16.56ALL SIZES -- 3.14 -- 2.58 -- 81.27 -- 0.38 -- 0.39 -- 12.24 – 100 – 1478376 -- 100 Estd. no. of HHS (00) – 1363698 – 49869 – 747379 – 15419 – 20518 – 152327 -- 1377215

Source: NSS Report 491, Household Ownership Holdings 2003 A-129

WHO ARE THE LANDLESS?The officially 'landless ' are those with nil and <0.002 ha. ownership holdings, i.e. those who do not own even their hut-sites or just about own their hut standing on less than 20 sq metres. However from the point of view of agricultural production, those who might own their hut-sites (homestead) but produce nothing or very negligible output, are also landless. Economists analyzing ownership data do not count homestead land as 'owned area' proper. Those with over 90% of their owned area in the form of homestead, are rural labourers and artisans, not cultivators. So although at the All-India level the officially landless are only 10% (the first two groups above, nil and < 0.002 ha) the next two groups also are landless if we consider agricultural production. The largest of these groups, the fourth one, 0.005 to 0.04 ha., has an average owned area of 0.015 ha. Only (100 - 93.33) = 6.67 % is not homestead. This comes to 0.0667 times 0.15 ha , equal to 100 sq metres. This means a 10m. by 10m area hardly capable of growing a few vegetables. Even this group is so land-poor as to be effectively landless. Adding up all four we get 40.3 % of all rural households with no or negligible cultivated land owned, and the total land they own inclusive of hut-sites or homestead is only 0.49 percent of total owned area. The top 9.5 % of households however own as much as 56.6 % of total area

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Table 4 (2nd) Comparative distribution of Rural Households by Land holdings Operated, 1992 and 2002-03 All-India 1992, 48th Round -- 2002-03, 59th Round Size class -- PERCENT OF -- Size-class HH PERCENT OF Operated Area HH – Total Area – Area HH – HH – Area Operated HaNil -- 19.8 -- 0.0 -- 31.2 -- 0.00< 0.002 -- 2.1 -- 0.0 -- 0.8 -- 0.00Sub-total Landless -- 21.9 -- 0.0 -- 32.0 -- 0.000.002 - 0.2 -- 20.3 -- 1.2 -- combined group 0.002 to 0.4:0.2 - 0.4 7.9 -- 2.1 -- 9.8 -- 0.20.4-1.0 -- 20.0 -- 12.2 -- 37.3 -- 22.01.0-5.0 -- 26.0 -- 51.4 -- 18.8 -- 50.95.0+ -- 3.9 -- 33.0 -- 2.1 -- 26.9All – 100 – 100 – 100 -- 100Total No. of Households Lakhs -- 1164.173 -- 1478.376 No. of Landless HH, lakhs -- 230.506 -- 461.253 (Source: NSS 48th Round, NSS Report 408, Land and Livestock Survey 1992; and 59th Round, Report 493, Livestock Ownershipacross Operational Landholding classes in India, 2002-03.ln the latter the figures against the group 0.2 to 0.4, refers to the d NSS 59th Round combined figure for 0.002 to 0.4. The distribution of area operated in 2002-03 in Report 493 is not given and Report No. 492, Some-Aspects of Operational Land Holdings in India, 2002-03, been used to obtain it by summing kharif and rabi area.) Mass purchasing power which has been greatly eroded over the last fifteen years, needs to be restored through expansionary fiscal policies and the implementation of a properly funded National Rural Employment Guarantee Act. The Act has been passed and implementation has started from Feb l. 2006. But the scheme cannot be said to be properly funded at all. A number of economists had pointed out that between Rs. 25,000 crores to Rs.30,000 crores was the order of additional annual expenditure required to give a genuine boost to employment and incomes after taking all multiplier effects into account. This could have been easily undertaken since tax receipts have been buoyant, owing to the rich getting very considerably richer in recent years. But those controlling the government's finances have already shown their lack of seriousness in dealing actively with the agrarian depression and crisis of livelihoods. All pre-existing employment creating programmes such as SGRY, JRY and all food -for -work programmes which together had accounted for Rs 11.7 thousand crores of the central government's expenditure in 2005-06, have been subsumed under and merged with the National Rural Employment Guarantee programme in the February 2006 budget proposals for fiscal 2006-07, and the total allocation to this is a mere Rsl2.9 thousand crores, exactly a paltry one-tenth higher than in the previous year.

This is in accordance with the prevailing irrational deflationist dogmas and agenda of those controlling the government's finances and servilely implementing the BWI directives to reduce the fiscal deficit. But this continuing strongly deflationist stance is detrimental to the effective implementation of the Act. Further, deflationist sentiment and belief in spurious official claims of declining poverty has percolated down to the administrators at all levels, contributing to lethargy. Even the paltry sums which are allocated are not being spent: active administration in the states has virtually ground to a halt while frenetic activity is seen by central government bureaucrats only in signing regional free trade agreements further undermining farmer incomes. The prognosis therefore remains far from encouraging: the agrarian depression and incomes crisis is not being addressed

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actively. Indebtedness continues to drive large segments of the poorer peasantry into landlessness. The food security situation is becoming even more alarming, with complete stagnation in food grains output and continuing fall in availability. It is very likely that the present stagflation will call forth imports combined with further expenditure deflating measures to reduce mass demand, and so exacerbate the spiral of mutually reinforcing demand deflation and supply cuts which seems to have set in the agrarian sphere.

Reports that can be consulted :

National Sample Survey OrganisationReport No. 408 Livestock and Implements in Household Operational Holdingsl991-92;Report No. 493 Livestock ownership across Operational landholding classes in India 2002-03;Report No. 401 Key Results on Household Consumer Expenditure, 1993-94;Report No. 402 Level and Pattern of Consumer Expenditurel993-94Report No. 405 Nutritional Intake in I?idial993-94Report No. 457 Level and Pattern of Consumer Expenditure in India 1999-2000Report No. 471 Nutritional Intake in India, 1999-2000Report No. 497 Income, Expenditure and Productive Assets of Farmer Households, 2003Report No. 504 Household Capital Expenditure in India during 1.7.2002 to 30.6.2003Report No. 508 Level and Pattern of Consumer Expenditure 2004-05

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AN ABSTRACT

Sixty Years

A Rights Record of the Indian State and Nation Teesta Setalvad

For decades after Indian Independence the writ of the Indian Constitution held with the Indian state's commitment to and broad adherence of a secular democratic politics, ensuring the country's religious, regional and linguistic minorities of physical security if not just economic and social rights. Ironically it is after the mid seventies that saw India's first brush with dictatorship with the Emergency being declared on June 26, 1975 that the politics of the Hindu right wing gained steady legitimacy. In the mass mobilisation against former Prime Minister Indira Gandhi's Congress, the broad coalition of political forces included the Jan Sangb (the political wing of the Rashtriya Swayamsevak Sangh) and the party that came to power after elections were declared on March 21, 1977 included re-incarnates of the Jan Sangh. Specifically Lai Krishna Advani of the Bharatiya Janata Party (BJP) who held key portfolios of Information and Broadcasting in the Janata government.

If one man could claim credit not simply for taking the BJP from a strength of two members in Indian Parliament in 1984 to 89 in 1989 just five years later, but of legitimising hatred in Indian public discourse, it is Advani who could, however never have achieved this goal without the steely discipline and organisation of the many-tentacle sangh parivar (saffron brotherhood) that includes not simply the political fountainhead, the RSS but the more rabid Bajrang Dal and Vishwa Hindu Parishad along with at least five dozen educational, cultural, women and youth organisations in their fold.1

Advani not only reached the pinnacle of his political success when he became India's Minister for Home (Internal Security) with the National Democratic Alliance being voted in with the BJP as the dominant partner in 1998 and then again in 1999. One of the brains and architects of the violent growth of the BJP in Indian political life, Narendra Modi was the man who flagged off Advani's rath yatra (chariot procession) in 1990 from the temple town of Somnath in Gujarat in August 1990. Modi was brought in by the BJP as chief minister of Gujarat to arrest the party's flagging political fortunes in that western Indian State in September 2001. After winning a by-election in February 2002, he has been found guilty of planning and executing a state sponsored genocide from February 28-April 2002.2 He remains in power and faces another state election in 2007. Over 2,500 persons lost their lives and brute sexual violence and destruction of property, business and religious places led this pre-planned pogrom to be termed as genocide.3

The chariot procession that drove through Indian towns and villages from 1989 to 1992 was ostensibly to construct a temple to the memory of Lord Ram, a revered Hindu God, if only for the Hindu upper castes. The conception and masterly execution of the Ayodhya movement right unto that Sunday afternoon of December 6, 1992 when a 400 year old historical Mosque was pulled down in full public view, reflected the stern discipline, clever execution of the Hindu right. What it exposed was the tenuous hold of the rule of law in Indian democracy. The past decades have seen visible strains on the democratic institutions of the country, accountability, transparency and governance. The faith of Indians, especially marginalised sections of the population, tribals, dalits,

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minorities, the poor of the poor stands visibly shaken. On the guise of building a glorious temple in Ayodhya, the language and propaganda of the movement did not merely legitimise the destruction of another's place of worship, the lead up to the mosque demolition allowed large-scale attack on Muslim (and thereafter) Christian lives and property.

In the arena of education, a narrow, manipulated version of history that denies the many splen-doured and variegated history of the Indian sub-continent is their target.4 In cultural terms a denial of the tapestry of Indian and sub-continental song, music food. In religious belief an assault on religious monuments of the minorities (Mosques and Churches) and those that are symbols of the sub-continent's unique syncretic (Sufi-Bhakti) culture5. In terms of political space a brazen use of violence and hate speech to attack minority life and property.6

Much time and unnecessarily wasteful energy has been spent on discussions of whether or not the Hindutva agenda can be termed fascist. The blatant harking to a superiority of race for one section of the population over others, the artificial "demonising" of the "enemy other" to explain current day problems, wrongs or conflict, the blatant disregard for the rule of law and flaunting violations of it, all through an embracing of violence.

The crucial difference between today and the situation in India 25 years ago is this. It is the difference between say, a historical denial of access to resources, employment and self improvement to large sections of our Dalit population (in over 75% of our village even today Dalits cannot draw water from our village wells) and the current day humiliations through acts of targeted violence being perpetuated against Indian Muslims and Christians, and justified by lies, that through mass hysteria become weapons of venom and murder.

The resilience of Indian democracy and the maturity of the Indian voter was first tested in 1977 when Indira Gandhi's Congress was thrown out in a thumping people's rejection of the authoritarian declaration of emergency. In 2004, yet again, after a gruelling time with the NDA in power - a period that had led to institutionalised bias against the minorities being legitimised within India's armed forces, Intelligence and Educational Apparatus -the Indian people voted the NDA and the BJP out and brought the United Progressive Alliance (UPA) led by the Congress (I) in. High drama marked this period. The BJP revealed it's rank communal and gender bias with its top brass leadership abusing Sonia Gandhi during the campaign. They targeted the nationality of her birth, her faith and gender. The Indian people replied with quiet dignity as they gave her party the thumbs up signal. Today, two and a half years into the new regime, serious questions of governance remain.

India is faced with huge economic crises that affect 30 per cent of its population acutely and at least 50 per cent seriously. Central India, that is the dominant tribal belt has rejected mainstream politics after being denied basic dignity of life and development for decades. Maoist movements dominate districts where state agencies cannot even enter.

India still faces the huge challenge of communalism and institutionalised prejudice. Democratic institutions have been infiltrated, consciously, with persons who bear on allegiance to the Indian Constitution, that is, to a doctrine of parity and non-discrimination. Recent analysis of both the census of 2001 and the Sachar Committee report raise the issue of the economic and social rights of Indian girls, women and religious minorities, especially Muslim.7

The UPA was elected to power at a critical point of modern Indian history. The Congress party which is the major opposition appears uncertain however to deal with the politics of communalism and hatred. It shows no reluctance to deal with the issue of deep-rooted institutionalised discrimination. Nor of the steady, continued and insidious infiltration within the government, intelligence, law and machinery and it's own ranks by the politics of anti-Constitutionalism. It is reluctant to show sustained support to the victim survivors and rights groups fighting for justice against impunity to the perpetrators of mass crimes. Sloganeering at the time of election, it appears entrenched in its set, even corrupt ways, reluctant to dig it's heals in and fight the scourge of Hindu fascism. The real resistance today is being provided through the left, mass movements, individuals and the lived, centuries' old history and culture of the Indian subcontinent. The Indian people breathe and live secularism.

It is a moment of profound test for all our institutions. The paradigms of fair play, equal rights

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to life and ownership of private property, make both the shock of farmers being shot dead protesting land acquisition and the shame of the mass victim survivors of the Gujarat carnage of 2002 a living reality. In Maharashtra, protests following the brutalization and murder of a Dalit family in Khairlanji allowed the Nagpur police to pull out 55 year old women and other protestors from their homes and thrash them into silence. In Amravati a rickshaw driver protesting was shot point blank in the head by the police.Does the Indian state need to answer, any more, to the largest number?

Does the executive initiate and take decisions of economic and social policy after due consultation, through the vote, in a democratic manner?

Have our Courts shown due and democratic concern to issues of economic and social access, equity and non-discrimination?Does our media, television and print reflect news at all, leave aside news and views of the majority of Indians?Do institutions of Indian democracy adhere to the word and spirit of the Indian Constitution?Is India a living and breathing democracy?

Be it north, east or west, lands belonging to voiceless Indians are being seized, without adequate debate, transparency or Constitutional accountability. (Quote) "Globalisation" (unquote) has come here in partnership with vengeful and vindictive state terror and repression. State force at its most brutal is being used to stifle democratic protest and dissent. This month is also the fifth anniversary of the Godhra mass arson and the post Godhra genocidal killing. Justices VR Krishna Iyer and PB Sawant—both retired judges of the Supreme Court— who headed a citizens tribunal into the Gujarat carnage, have observed that (quote) "the post Godhra carnage was an organized crime perpetuated by the state's chief minister and his government" (unquote) and held Gujarat's CM Modi to be (quote) "the chief Author and Architect of all that happened in Gujarat after the arson of February 27, 2002." (unquote). The National Human Rights Commission and the Supreme Court of India have drawn similar conclusions about the head of the state of Gujarat.

Today some captains of industry who see the vision of a glittering India exemplified in the "strong political leadership of Mr Narendra Modi" -I refer to the recent investments promises to the state— I would like to place this reminder on record. All and each of us, especially those who hail from Gujarat would like to see Gujarat vibrant, and prosper. When the Parsis migrated to India, from Persia, they settled in this vibrant land. The poetry of Narmad and the Arab Nooruddin Phiroj given space within the preceincts of the Somanatha temple are the history of the land that gave the world Gandhi.. Strength, cohesion and prosperity can be built through an enlightened administration and polity that respects the rights of all, harbours dissent and respects the struggle for rights and justice, a state of affairs that supports the natural order of things.However, when (quote) "normalization" and strength" (unquote) are equated with a vindictive administration and political repression, when brute compromise is thrust, when acknowledgement of the horrors of mass crime are denied hundreds of thousands of victims, when villages, cities and mohallas are divided' by borders, when the victim survivors and human rights defenders who stand up for justice are threatened arrest and torture, it is repressive strength and state power that we are talking about. Civil liberties, are severely trampled upon. Even what actually happened at Godhra railway station on February 27, 2002 is hotly contested today. There is absolutely no proof of the theory perpetuated shrilly by Mr Modi to justify state sponsored mass rape, killings and murder. As we approach the fifth anniversary of a truly bleak period in Indian post-Independence history, and sixty years of our survival as a nation, we need to squarely look and tackle our rights' record.

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Notes1. Khakhi Shorts and Saffron Flags, Orient Longman, 19932. Concerned Citizens Tribunal, Crimes Against Humanity-Gujarat 2002, November 20023. Gujarat Genocide 2002, Communalism Combat, March-April 2002, www.sabrang.com4. Interpreting Early India, Romila Thapar, OUP, 1999, The Argumentative Indian, Amartya Sen, 20055. Sacred Spaces, Yoginder Sikand, Penguin, 20036. Welcome to Hindu Rashtra, Communal Combat, October 1998, Blinding Reality, Communalism Combat, July 2000, Conversions, Communalism Combat, January 19997. The UPA government appointed Justice Rajinder Sachar (a retired judge) and a team to analyse the socio-economic plight of Indian Muslims. Their report was tabled recently and contains shocking findings.

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Contemporary Imperialism and the World's Labour ReservesPrabhat Patnaik

One of Marx's most profound insights into the functioning of capitalism was that the system could not do without a reserve army of labour. Moreover, it spontaneously reproduced such a reserve. Any tendency for the reserve to get used up affected the accumulation process adversely, so that its rate of absorption of labour slowed down; and this had the effect of recreating the reserve army1.

Marx's discussion has been subsequently carried forward in at least two ways. First, Marx had seen the necessity of the reserve army for capitalism as arising for two reasons: for sustaining a positive rate of surplus value within a production process obeying the discipline imposed by the capitalist2, and for providing a flexibility to investment decisions which could be directed anywhere without apprehensions of labour scarcity. To these two reasons a third has been added, namely that the reserve army contributes to the stability of the wage unit, and, by implication, of the value of money, in a fiat money world 3. Secondly, Marx had confined his discussion of labour reserves largely to what was directly located within the capitalist core itself. But the enormous labour reserves located within the third world, at a great distance from the capitalist core, are also integral to capitalism, and play the same kind of role as the reserves located within the core itself (Patnaik 1997).

Once we recognize this latter point, then it would follow from Marx's argument that the using up of the world's labour reserves, located primarily in third world countries like India and China, will have a damaging effect on the capitalist world. And, for that very reason, it will be thwarted by the spontaneous functioning of the system, buttressed by deliberate measures of imperialist coercion. In short, if India and China remain linked to the world capitalist system, they will not be able to achieve any significant using up of their labour reserves.

Now, as long as India and China experienced sluggish growth of output and employment, together with high rates of population, and hence work-force, growth, the question of their vast labour reserves getting used up never arose. But now that both countries, having succeeded in bringing down their population, and hence work-force, growth rates, are also experiencing extraordinarily high rates of output growth, which, it is claimed, will eventually translate themselves into high rates of employment growth (though they have not done so till date), is it the case that their labour reserves are on the threshold of getting used up? If so, then how will this affect the functioning of the world capitalist system, and what form of imperialist coercion will it invite? In short, what is on the agenda as far as labour reserves are concerned under contemporary imperialism? The purpose of this paper is discuss this issue.

IThe existence of labour reserves, that is, of a large number of persons willing to put in regular work at the going wage rate offered for regular work, but unable to find such work, is excluded of course from Neo-classical economics, which assumes the prevalence full employment of all "factors

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of production" including labour. Classical economics does not assume full employment in this sense4. It excludes the possibility of a demand-constraint, but recognizes unemployment arising from the inadequacy of the existing capital stock to employ the available work force at the prevailing "subsistence" wage. Even Classical economics however does not recognize the existence of a perennial labour reserve; on the contrary it postulates the periodic emergence of a labour shortage, which pushes up the real wage above subsistence level, resulting in an increase in population, and work force, over time, to overcome the excess demand for labour. Its postulate of a horizontal long-run supply curve of labour through population adjustment precludes any perennial labour reserves. Such reserves make their conceptual appearance only in Marx. And in Marx they clearly have two distinct components: one consisting of the excess supply of labour even when there is full utilization of the capital stock (which is similar to the Ricardian concept), and the other consisting of the involuntary unemployment of the Kaleckian sort that arises owing to the deficiency of aggregate demand5.

If we are looking at the world economy, then two separate questions have to be distinguished. First, why do perennial labour reserves exist? And secondly, why do they exist particularly in certain countries or regions (like the third world), rather than in other regions, i.e what explains the distribution of the world labour reserves? The first question can be answered, to start with, in a simple, formal, proximate way: taking the world economy as a whole, such perennial reserves exist because the rate of growth of world output minus the rate of growth of world labour productivity does not exceed the rate of growth of the world work-force6. As regards the second question, historical experience points to the following answer: the concentration of labour reserves in particular regions has been sustained and ensured by restrictions on the freedom of capital and labour movements.

As Arthur Lewis ((1954), (1978a), (1978b)), who was among the first to highlight the issue of the world labour reserves, pointed out long ago, the nineteenth century saw two distinct streams of labour movement across the world: a movement within the temperate region, from Europe to the U.S., Canada, Australia and other temperate regions of white settlement; and a movement within the tropical region, from India and China to other colonies and semi-colonies, as coolie or indentured labour, to work on the plantations and mines. The former was "high wage" migration because the systematic taking over of land from the "natives" in the new world kept up the "reservation wage" all around, in the "new world" as well as in the "old" home country. (Lewis ascribes the high wage nature of the migration to the agricultural and industrial revolutions in Europe but this argument is theoretically and empirically unsustainable7). The latter movement was low wage migration, since the migrants had no access to means of production in their new habitat. These two streams were kept strictly separate, to prevent any possible equalization of wages: there were (and still are) strict curbs on the immigration of tropical labour into Europe and into other temperate regions of white settlement.

But a tendency towards equalization of wages can arise, even in the absence of free movement of labour, through the free movement of capital, or through capitalists using low-wage labour out-competing those who use high-wage labour. There was, most intriguingly however, an absence of flow of capital from high wage Europe (and its off-shoots), to the low wage tropics, for setting up production units using the same technology to produce the same goods as in the home base. Even the emergence of local entrepreneurs in the low wage tropical colonies who might have out-competed the products of metropolitan capital was systematically discouraged. Within the colonies themselves this was done through a variety of directly discriminatory measures (Bagchi 1972). More generally, such discouragement was exercised through the imposition of much higher tariffs in the metropolitan economies on the imports of manufactured goods from the tropics than on the imports of primary commodities (Lewis 1978b). In the event, while capital came in to the colonies to buttress the emerging pattern of international division of labour, i.e. for the plantation sector, for primary commodity production (and some processing), and for sectors servicing primary commodity exports, e.g. finance, trade, railways, ports etc., such flows had little impact by way of wage equalization.

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Different authors have invoked different factors, ranging from climate (Baran 1957) to racial prejudice (Bagchi 1986), to explain this intriguing phenomenon of lack of flow of capital, which lies at the heart of the old imperialism. What the phenomenon itself meant however was this: the inevitable unemployment generated everywhere by the onslaught of capitalist production on the pre-capitalist sector, was overcome in the metropolis inter alia through labour migration to the temperate regions (where the taking over of land from the local inhabitants gave the migrants a reasonably high income); but it was not overcome in the tropics. The displaced pre-capitalist producers who were thrown into the ranks of the reserve army, did not in any significant numbers get absorbed into primary commodity production, since the latter occurred largely through a re-orientation of the existing agricultural sector towards export purposes. Though some found employment in newly-opened up mines, and plantations, including as migrant labour in far off places, the numbers were still not significant enough relative to the size of the original displacement. (To this was added, much later, in the 1920s or thereabouts, an increase in the rate of population growth, which must have got translated even later into an increase in the rate of growth of the work-force). The concentration of the world's labour reserves in the tropical and subtropical colonies and semi-colonies was thus the result of a sustained discrimination practiced by metropolitan capitalism.

To be sure, if labour scarcity had arisen at the metropolitan core, then some migration from the tropics to the core would have been allowed even then, as it was to be allowed in the post-war period. But given the high rates of labour productivity growth, stimulated partly no doubt by the absence of any significant labour reserves in the vicinity of the innovating centre, i.e. within the core itself, the rate of growth of output was never high enough historically to demand the inflow of tropical or third world labour into the metropolis.

IIHow different are things today? One obvious difference of course is the greater tendency of capital to move out of the metropolis to locate plants in low-wage countries for meeting global demand. True, the degree of mobility of capital-in-production is far less than the degree of mobility of capital-as-finance. True, also, that only a few countries represent favoured destinations within the third world for the capital-in-production moving out of the metropolis, and not the third world as a whole. True, also, that much of the actual movement of capital-in-production has been for meeting the local market within the fast-developing third world countries of Asia, rather than for meeting the global market by using the host countries as base. Even so, a greater degree of mobility of capital-in-production, compared to any time in the past, for meeting global demand, by locating plants in low-wage countries, is clearly discernible in the current period.

A second obvious difference relates to the greater freedom enjoyed by the exports of manufactured goods and services from the third world countries today in entering the metropolitan market. This tendency, according to Lewis (1978b), started with the Kennedy round of tariff negotiations, long before the WTO agreement itself. No doubt, one can cite the case of the multi-fibre agreement as a counter-example to what has just been said; no doubt, a host of non-tariff barriers exist, in the name of preventing employment of child labour, or of work under socially unacceptable conditions; and no doubt, again, that market access is heavily influenced by political considerations, a far cry from the laissez faire doctrine invoked to justify the new trade regime. Notwithstanding all these caveats however there can be little doubt that the degree of market access in the metropolis for third world products and services, especially from India and China where the bulk of the labour reserves is concentrated, is higher today than at any other time during the history of capitalism.

What both these points suggest is that, even though curbs on labour movement across the world from the low wage tropics to the high wage temperate region still exist, surrogate labour movement has become easier, both because of the ease of movement of commodities (in which labour is embodied) and of services (which represent the direct use of labour power), and because of the ease of movement of capital-in-production. The historical condition, it may be argued therefore, for the concentration of labour reserves in the third world tropical and sub-tropical regions, may well be

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breaking down in the current era of imperialism. If so, then can one suppose that this process of a more even distribution of labour reserves across the world would enable countries like India and China, even while remaining linked with world capitalism (obviously in very different ways, given their differing internal social relations of production), to overcome substantially their problems of unemployment and underemployment?

The basic argument of this paper is that the answer to this question is an emphatic "no". On the contrary, the very opposite is likely to happen, namely a worsening of the problem of unemployment and underemployment in countries like India and China as the long term outcome of the current phase of imperialism.

Of course, one can give such an answer by invoking the likelihood of imperialist coercion. The metropolitan States are unlikely to sit quietly and watch an increase in their domestic unemployment rates arising from an import of unemployment from countries like India and China. Electoral compulsions will force the emergence of voices like Senator Kerry's, demanding an end to "outsourcing", or an end to cheap Chinese goods stealing "our jobs". Even though the arguments put forward by such spokesmen may not be right either in their totality, as will be shown below, or in their specific contexts, they will nonetheless become more strident, and compel greater attention, if the process of evening out of the distribution of the labour reserves across the world does acquire momentum. Protectionism in the metropolis then will acquire the same degree of across-the-board support within it that immigration curbs have acquired, and this will certainly affect the employment prospects of India and China. But the argument below does not invoke imperialist coercion; it does not assume the re-emergence of protectionism. It suggests that even under the current dispensation, even assuming that the current level of free flow of capital and commodities across borders continues, and even gets freer, the employment prospects of India and China are as gloomy as they have always been under conditions of being "linked" to world capitalism.

IIIThe reason for this has to do with two other aspects of the same process of "globalization" which is supposed to be reducing unemployment and underemployment in India and China through an evening out of the world's labour reserves. The first is the slowing down of the rate of output growth in the world in the epoch of "globalization". This, as is well-known, has to do with the process of "globalization" of finance, i.e. of the phenomenon of the world being opened up for the free flow of finance capital. Such flows have the effect of impairing the capacity of nation-States to pursue policies that financial interests generally dislike. And since State activism in matters of spending, or, more generally, intervening through demand management in keeping up the employment rate, has always been anathema for financial interests (which had prompted Keynes' (1936) call for a "euthanasia of the rentier"), and continues to be so, this is eschewed, giving rise to demand deflation and a reduction in growth rates compared to the period of Keynesian demand management which has been called the "Golden Age of Capitalism". Thus the period of globalization necessarily entails a lowering of growth rates, to pre-"Golden Age" levels, which, even during long booms were never too high. The world GDP growth trend in the period between 1973 and 2002 for instance has been just over 2 percent, compared to around 5 percent during the period between l952 and 1973.

The second aspect of globalization is the tendency for the life-styles and commodities prevalent in the metropolitan centres to be emulated everywhere. The desire for such emulation to be sure was always present among the third world elites, but the pre-"liberalization" dirigiste regimes in the third world had erected systems of controls to prevent its realization. With "liberalization" these disappear. Now, since commodities usually have specific technologies associated with their production (the idea of a "production function" which postulates multiple technologies to produce the same commodity being a myth), this emulation of life-styles and commodities, necessarily, entails the emulation of technologies.

Now, there are two different aspects of this emulation which have to be distinguished between. As technological progress takes place in the metropolitan countries, i.e. as technology changes at

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the "frontier", this change is replicated in the open third world economies as well. In addition, since such economies usually begin from a level of technology that is much too "backward" compared to the "frontier" technologies, emulation entails the overcoming this backlog as well. Since the nature of technological progress, as Marx had emphasized long ago, is to raise labour productivity, through the substitution of "dead" for "living" labour, the process of emulation of metropolitan technologies in the third world entails a rate of labour productivity growth in the latter that is even higher than in the metropolis, since the third world is not only emulating the changes at the "frontier" but also overcoming the backlog.

It follows that the ex ante rate of growth of labour productivity in the world economy, i.e. the rate of growth that would be observed in the absence of any disguised unemployment, would be much higher than the rate of growth of labour productivity in the advanced capitalist countries. Of course the actually observed rate of growth of labour productivity need not be, since unemployment usually exists in the third world in the form of "disguised unemployment" which has a lowering effect on the observed level and rate of growth of labour productivity. But since our concern is with the movement of labour reserves, of which "disguised" unemployment is a very significant part, it is the ex ante rate of growth of labour productivity in the third world, and hence in the world economy as a whole, rather than the observed rate, that is of relevance to us. And this rate, by the above argument, must be higher than the observed rate of growth of labour productivity in the advanced capitalist countries (in whose context the distinction between ex ante and observed rates is of less significance, since "disguised" unemployment as a phenomenon is generally, i.e. barring periods like the Great Depression, of less significance).

Now, throughout he period since 1973 (the precise initial year makes little difference), the rate of growth of world output has been less than the rate of growth of labour productivity in the advanced capitalist countries. And since the rate of growth of ex ante world labour productivity, as just mentioned, is necessarily higher than the rate of growth of observed labour productivity in the advanced capitalist countries, it follows that taking the world as a whole the tendency in the "liberalization" period, i.e. the post-"Golden Age" period, has been towards an increase in the magnitude of labour reserves, even in the absence of any population, and hence work-force, growth. The fact of a positive rate of world population growth has only worsened matters, though, unlike what is usually presumed, it cannot be held responsible for the fact that labour reserves are not getting exhausted at the world level.But then can it be said that even though the magnitude of labour reserves, both in absolute and relative terms (relative that is to the magnitude of the work-force), has been increasing at the world level and will continue to do so, India and China nonetheless can succeed in reducing their labour reserves, given especially their very high rates of output growth? Let us turn to this question now.

IVOne can distinguish here between two different effects: one involving an increase in world labour reserves, and the other involving a more even distribution of the world labour reserves, a distribution entailing in effect a reduction in India and China and an increase in the metropolis (a shift in labour reserves from India and China to the rest of the third world cannot have much impact on the former). Whether India and China can succeed in reducing their labour reserves depends upon the relative strengths of these two effects, which, from their point of view, work in opposite directions. It is clear however that the shift of labour reserves can only be a transitional phenomenon even in the absence of any imperialist coercion in the form of protectionism in the metropolis or a revaluation of the Asian currencies. This is because the very shift in labour reserves, which is expressed as an increase in the unemployment rate in the metropolis, will lower product wages relative to labour productivity in the metropolis compared to the initial situation. This will improve the relative competitiveness of the metropolitan goods and services visavis those from India and China, compared to the initial situation, thus putting an end to the process of shift of labour reserves from India and China to the metropolis. In short, the process of India and China out-competing metropolitan commodities can only be a transitional phenomenon until the product

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wage-labour productivity ratio in the metropolis has fallen sufficiently relative to the initial situation and relative to this ratio in the Asian giants (since in the case of the latter there is no cause for this ratio fall ceteris paribus relative to the initial situation).

For identical technologies being used everywhere (for which, we noticed earlier, there is a tendency under the "liberal regime"), the product wage-productivity ratio is nothing else but v/(s+v) in Marxian notation which is just the reciprocal of (1+ "the rate of surplus value"). (We are ignoring here, for the sake of simplicity of presentation of the current argument, the distinction between the real wage and the product wage). We can then re-state our proposition as follows: the process of shift of labour reserves, or the export of unemployment, from India and China to the metropolis, will only be a transitional one, a traverse from one (pre-liberalization) equilibrium to another (post-liberalization) equilibrium, because such shift will bring about an increase in the rate of surplus value in the metropolis relative to India and China, which will negate the prospects of any further shift.

For the sake of clarity of understanding the argument can be formally presented in the following illustrative manner. Let us ignore disguised unemployment and assume, for simplicity, that employment and unemployment are the only two relevant categories. Let us visualize the universe as consisting of only two entities, the metropolis and Asia, where, with "liberal trade", identical technologies prevail. Let us denote the ratio of the unemployment rate of the metropolis to that of Asia by v, and the ratio of the rate of surplus value of the metropolis to that of Asia by u. The statement that in a "liberal trade" regime, Asia out-competes the metropolis amounts to saying (assuming a linear function):v = a -b. u

Likewise, the relative rates of surplus value, with identical technologies, can simply be said to depend on the relative rates of unemployment, so that we have (again assuming linearity):u = c + d.v,

which yields equilibrium values of v* = (a-bc) / bd; and u*= a / b. In the initial pre-liberalization situation, if identical technologies prevail, u < u* and v < v*. (The observed phenomenon, made use of by Bettelheim (1973) against Emmanuel's (1973) theory of unequal exchange, that the rate of surplus value in the metropolis is higher than in the third world, does not negate our argument, since Bettelheim is referring to a case of non-identical technologies). Trade liberalization and the mobility of capital-in-production, raise both variables to their equilibrium values, and in the process, shift some labour reserves from Asia to the metropolis. But this shift will come to an end when the equilibrium values are reached, which also implies incidentally that the high rates of growth of output of Asia, which are observed in the transition to equilibrium, will not be sustained in equilibrium.

Once these liberal trade equilibrium values have been reached, and no further shift of labour reserves occurs from Asia to the metropolis, the magnitude of labour reserves everywhere increases thereafter in equal measure, this increase being due to the fact, noted earlier, that the rate of growth of world output falls short of the sum of the rate of growth of the world work-force and the rate of growth of world labour productivity. In India and China therefore, even though the shift of labour reserves to the metropolis may reduce the magnitude of such reserves for a while, eventually this magnitude must rise, and keep rising. Eventually therefore the magnitude of labour reserves in India and China must exceed what prevailed in the pre-liberalization period, even though in the interim some reduction may occur. Putting it differently, starting from the date of liberalization, the shape of the curve showing the movement of relative labour reserves over time in India and China, will look as follows (Figure 1).

The diagram illustrates the argument of the text: the decline in the magnitude of reserves relative to the work-force is only temporary; eventually it keeps increasing beyond the original level. This eventual rise, to recapitulate, is because the rate of growth of labour productivity in the world economy is higher than the rate of growth of output, which entails a growing world unemployment rate for any non-negative rate of work-force growth. If the world output growth rate was high

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enough to exceed the sum of the rate of growth of the world work-force and the rate of growth of world labour productivity, then the movement of the relative magnitude of labour reserves in Asia would look like in Figure 2, where the reserves keep dwindling (until the negative feedback effects of their exhaustion begins to affect a la Marx the rate of growth of world output growth adversely).

We are now in a position to see what is right and what is wrong with the Kerry-type argument against "outsourcing". Let us turn to this aspect now.

VThe argument that says that the rise in unemployment in the metropolis is because of outsourcing, i.e. because of the migration of jobs from the metropolis to third world countries like India and China, presumes that there is only a given number of jobs in the world economy, that if these are filled by Asians then ipso facto there is corresponding unemployment in the US and elsewhere. This is a wrong argument, since there is no fixed stock of jobs during any particular period and no fixed time-profile of jobs across periods. If there is a larger level of aggregate demand in the economy in any period, and a larger time-profile of aggregate demand, then the demand for labour will be correspondingly higher, in which case a higher employment rate in India and China does not have to be accompanied by a lower employment rate in the US. The so-called shift in labour reserves from Asia to the metropolis that we talked about earlier, if it occurred in the context of an overall reduction in world labour reserves, i.e. in the context of an increase in the world employment rate as a whole, need not entail any actual increase in the unemployment rate in the metropolis. The fact that the shift in labour reserves from Asia to the metropolis entails an actual increase in the unemployment rate in the latter is because the level and time-profile of aggregate world demand is depressed. And that is the contribution of the deflationary policies imposed by international finance capital upon State expenditures.

The outsourcing argument is wrong because it does not see the role of international finance capital in generating and sustaining unemployment at the world level. It pits the interests of one

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nation against another, makes the working classes of different countries fight against each other, instead of fighting the deflationary policies of international finance capital.

On the other hand, it is certainly true, indeed a truism, that given a particular level and time-profile of world aggregate demand, outsourcing does reduce domestic employment in the metropolis. What the anti-outsourcing argument does is to take this arithmetical truism, and use its obviously compelling and undeniable logic to pit the workers of different nations against one another, while remaining silent on the role of international finance capital.

It may of course be asked: how can the level of aggregate demand in the world economy be raised? With the exception of the US, no other State is in a position to undertake an increase in expenditure to boost demand, since that would result in capital flight from its country, a depreciation of its currency, and a rise in its inflation rate that will further compound matters. The US is an exception because its currency is still considered "as good as gold" by wealth-holders all over the world (which is how President Bush could enlarge the US fiscal deficit to finance the Iraq war). This state of affairs of course may not last long, especially in view of the persistent and large current account deficit of the US. What is more, even if the US could enlarge world demand with impunity through enlarging its own internal absorption (through higher State expenditure for instance), its own national interests, narrowly conceived, would rather make it insist on a revaluation of Asian currencies as a means of solving its unemployment problem, than pile up higher debt to others through an even larger current account deficit.

Basically, in a world where finance capital is globalized, there is no global State. The US, whose currency is strong enough (because inter alia of its military might) to make it capable of acting as a global State, has little reason to do so, since it is, like any other State, only a nation-State after all. This is why, in a world of globalized finance, the level of aggregate demand remains depressed. One possible way out is a concerted expansion by several of the advanced countries' nation-States, a scenario similar to what had been advocated during the years of the Great Depression by a whole lot of writers including Keynes himself8. Such a concerted action will of course be resisted by globalized finance, just as the plans for a coordinated reflation had been resisted during the years of the Great Depression by the finance capitals of the several different countries whose States were to engage in this coordinated expansion. But even the demand for such a coordinated expansion is absent today. The anti-outsourcing argument entirely fills this particular intellectual space.

VIWe have so far argued that in the absence of a sufficiently high rate of growth of world aggregate demand, and hence world output, countries like India and China, under their current policy dispensations, can experience only a temporary decline in the magnitude of their labour reserves relative to the work-force. Even this however is an optimistic scenario; and what is more, their relative labour reserves are actually increasing today even in the midst of their extraordinarily high rates of growth.

The reason for this lies in the fact that labour reserves expand during the transition to frontier technologies, not just in the export sectors but in all sectors including those catering to elite consumption (the demand for MNC entry into retail trade in India is illustrative).

Our figure 1, and the discussion about the transition to a post-liberalization equilibrium which preceded it in section IV, did not discuss the transition to frontier technologies. It assumed that technologies were the same everywhere already, and looked at liberalization only in terms of its impact on the wage rate and competitiveness. It argued that given the same technologies everywhere the advantages which low wage countries, which have a higher rate of surplus value, have by way of competitiveness in the world market, soon get nullified as the high wage countries also start experiencing an increase in their rate of surplus value. In short, our entire discussion till now has not touched upon the implications of technological transition in the third world countries.But once we recognize that the pre-liberalization situation is not one where identical technologies are being used everywhere, and that it is liberalization which gives rise to identical technologies,

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it follows that liberalization may not even be followed by any initial reduction in the relative magnitude of labour reserves. This is because the entry of a whole array of technologies, which are necessarily labour-displacing (since they are imported from the metropolis), implies that the shift of labour reserves to the metropolis is counterbalanced by the increase in labour reserves on account of the large-scale adoption of labour-displacing technology. The movement of relative labour reserves in Asia over time, following liberalization would then follow the curve shown in Figure 3. This is precisely what is happening in India and China. Despite extraordinarily high rates of output growth, the relative labour reserves show no sign of decreasing; on the contrary, they tend to increase. The reason is that the high growth rates, which are an expression of a shift of labour reserves to the metropolis, are simultaneously accompanied by technological transformation of a labour-displacing kind, which keeps up the overall rate of growth of labour productivity to such an extent that labour reserves do not diminish despite high output growth.

VIIIt follows from the foregoing that the pursuit of neo-liberal policies, instead of making a dent on third world labour reserves as is commonly supposed, has the effect of increasing the rate of surplus value in the metropolis. It may reduce labour reserves as a temporary phenomenon at best, in a traverse to even higher reserves than the economy started with and progressively increasing ones at that; but even such a temporary reduction is usually thwarted by the wide-ranging technological change that occurs in the third world economy with the introduction of liberalization, which has the characteristic of being labour displacing. Over a period time of course, the employment situation in the third world becomes progressively worse, since at the international level the rate of growth of output is even less than the rate of growth of labour productivity.

How do third world economies then move to a state of full employment? Within the context of capitalism, we discussed earlier, a certain level of the reserve army of labour, in the form of an unemployed or underemployed mass of destitute persons available for work but unable to get any work, will always exist. This is not the case under socialism, though a socialist economy may deliberately maintain a certain number of "free workers" available for work at short notice, for strategic reasons like imparting a degree of flexibility to the economy (the second role that Marx saw the reserve army as playing under capitalism); but in all such cases, the socialist economy can pay a full wage to these workers who therefore constitute "reservists" rather than unemployed workers. But the question can still be asked: even within the framework of capitalism, what can third world economies do to rid themselves of their excessively high levels of labour reserves?

From our discussion so far two possibilities emerge: one is where a surrogate world State, whether constituted out of the nation-State of the leading capitalist country or of a number of nation-States acting in a coordinated manner, pursues Keynesian demand management policies on the world scale to boost the world growth rate to such an extent that world labour reserves, and hence the labour reserves in the third world, come down to as low a level as is possible. The second

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is where the nation-State of a particular third world country does the same by closing its doors to the free flow of global finance, and, more generally, by opting out of the pursuit of neo-liberal policies. In either case, inflationary possibilities and therewith the de-stabilization of the wage unit, arising out of the dwindling of the reserve army, will have to be contended with; these may not surface immediately but may make their appearance over time. And in either case, fierce opposition from international finance capital will have to be contended with. Since the fashioning of a surrogate world State of this sort appears far more unrealistic than the re-invigoration of the third world nation-State (a process that is already observable in a number of Latin American countries), the conclusion seems inescapable that, for large labour reserve economies, the reversal of neo-liberal policies (and in general a process of suitable de-linking from world capitalism) is a necessary condition for reducing their vast and growing labour reserves.

REFERENCES- Bagchi A.K. (1972)-Private Investment in India 1900-1939, CUP, Cambridge, UK.- Bagchi A.K. (1986) "Towards A Correct Reading of Lenin's Theory of Imperialism" in P.Patnaik ed. Lenin and Imperialism, Orient Longmans, Delhi.- Baran P.A. (1957) The Political Economy of Growth, MR Press, New York.- Bettelheim C. (1972) "Introduction" to Emmanuel (1972), NLB, London.- Dobb M.H. (1973) Theories of Value and Distribution Since Adam Smith, CUP, Cambridge.- Emmanuel A. (1972) Unequal Exchange, NLB, London.- Goodwin R.M. (1967) "The Growth Cycle" in C.H.Feinstein ed. Socialism, Capitalism, and Economic Growth: Essays Presented to Maurice Dobb, CUP, Cambridge.- Kalecki M. (1954) The Theory of Economic Dynamics, Allen and Unwin, London.- Keynes J.M. (1936) The General Theory of Employment, Interest and Money, Macmillan, London.- Kindlegerger C.P. (1987) The World in Depression, Penguin, Harmondsworth.- Lewis W.A. (1954) "Economic Development with Unlimited Supplies of Labour", Manchester School, Vol.22.- Lewis W.A. (1978a) The Evolution of the International Economic Order, Princeton University Press, Princeton.- Lewis W.A. (1978b) Growth and Fluctuations 1870-1913, London.- Patnaik P. (1997) Accumulation and Stability Under Capitalism, Clarendon Press, Oxford.- Patnaik U. (1991) "The Peasantry and Industrialization" (mimeo).- Robinson J. (1939) Introduction to the Theory of Employment, London.- Schumpeter J.A. (1966) "Karl Marx" in Ten Great Economists, London and New York.

NOTES1. One particular way in which this can happen is captured in Goodwin (1967).2. Joseph Schumpeter (1966) had criticized Marx's theory of surplus value on the grounds that rising wages owing toaccumulation will push the economy to a stationary state with zero profit, Schumpeter's argument however wasbased on the assumption of full employment of all "factors of production". The existence of surplus value as aperennial category presumes that any tendency towards the exhaustion of the reserve army is spontaneously negated.3. This argument was first put forward by Joan Robinson (1939) through her concept of the "inflationary barrier", which was later taken up by the NAIRU theorists. An elaborate discussion of these ideas and the development of a theory of imperialism along these lines is provided in Patnaik (1997).4. By Classical economics here we essentially mean Ricardian economics 'since the Classical tradition reached theapogee of its analytical rigour in the Ricardain system. For a discussion of the Ricardian system, especially his ideasrelating to work-force growth, see Dobb (1973).5. The term "Kaleckian" is used here in preference to "Keynesian" since the concept of "full capacity" has a clearmeaning in Kalecki (1954) who postulated an L-shaped average prime cost curve.6. This answer presumes the absence of disguised unemployment. In the presence of such disguised unemployment ithas to be modified in a manner that is discussed below.7. The theoretical unsustainability arises from the fact wage differentials can be overcome through capital movements,i.e. there is no intrinsic reason why the industrial revolution should remain confined to one particular region (seebelow). The empirical evidence against the Lewis claim is discussed in U.Patnaik (1991).8. For an account of these suggestions, see Kindleberger (1987).

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The Progress of "Reform" and the Retrogression of AgricultureC. P. Chandrasekhar

The evidence of an acceleration in GDP growth in India increases, aided on occasion by periodic revisions in the base year used for constructing the estimates. According to official figures, GDP growth has accelerated from its "Hindu rate" origins of around 3.5 per cent in the 1970s and earlier to 5.4 per cent in the 1980s, 6.3 per cent during the decade starting 1992-93 and an annual average rate of more than 8 per cent during the three years ending 2005-06. Since this acceleration has occurred in a context of limited inflation, the government is now targeting a further rise to 9 and even 10 per cent over the Eleventh Plan.

While the factors accounting for this acceleration are still being debated, another unusual feature of this growth since the 1980s has received less attention: the growing disproportionality between agricultural and non agricultural growth. As Chart 1 shows the disparity in the rate of growth of agricultural and non-agricultural GDP increased significantly after the 1970s, with the process being particularly market after the mid-1990s.

(Source: Computed from figures reported in RBI, Handbook of Indian Economy. Figures for 2000-01, 2004-05 are with base 1999-00 and the rest with 1993-94)

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What is particularly remarkable is that the acceleration of non-agricultural growth during the 1990s was accompanied by a decline in the rate of agricultural growth. During the period 1999-00 to 2004-05, while agricultural GDP had grown at 1.7 per cent, the trend rate of growth of non-agricultural GDP exceeded 7 per cent. The disproporationality is visible even when the comparison is restricted to industrial and agricultural growth (Table 1). Yet, intertemporally speaking, inflation is low, pointing to a new potential for non-inflationary growth of the system. (Table 1)

Table 1 Annual Trend Rates of Growth -- Total -- Manf -- Min. & Qu. -- Elect. -- Food-grain -- Non-Food -- All Agricul.1950-51 to 64-657.2 -- 7.1 -- 5.9 -- 13.6 -- 3.0 -- 3.9 -- 3.3 1965-66 to 79-80 -- 4.7 -- 3.8 -- 6.9 -- 6.2 -- 3.0 -- 2.6 -- 2.91965-66 to 74-75 -- 4.3 -- 2.7 -- 9.4 -- 3.8 -- 3.4 -- 3.0 -- 3.21975-76 to 84-85 -- 4.9 -- 4.3 -- 6.6 -- 7.3 -- 2.5 -- 2.9 -- 2.61985-86 to 94-95 -- 6.2 -- 6.2 -- 4.2 -- 8.3 -- 3.1 -- 5.7 -- 4.11994-95 to 04-05 -- 5.0 -- 6.4 -- 2.9 -- 5.1 -- 0.7 -- -0.5 -- 0.6Source: Computed from data collated from RBI, Handbook of Statistics on Indian Economy

These trends suggest that domestic agricultural growth is now not a constraint on the growth of the non-agricultural sector. This does mark a structural shift in the pattern of growth when compared with the first three decades of post-Independence development, when the agricultural bottleneck was seen as an important factor responsible for the failure of the strategy of development based on the Mahalanobis model. The argument was that the Mahalanobis strategy underestimated the agricultural constraint by treating agriculture as a bargain sector in which output growth could be accelerated without much investment, by making suitable institutional adjustments (Chakravarty 1992, Patnaik 1995).

The argument that, given limits on the possibilities of transformation through trade, the institutionally-determined maximal rate of growth of production of agricultural necessities sets a ceiling on the non-inflationary rate of growth of the system was explicated, among others, by Kalecki (1972). This was one of the ways in which the availability of surplus real resources was seen to constrain the pace of development in predominantly agrarian economies.

There were, of course a number of extensions which could be made to this argument. First, the proximate determinant of the maximal rate of agricultural growth could be seen as given by production conditions rather than institutional factors, as Vaidyanathan (1977) suggested. Second, even if there existed a maximal rate of growth of production of agricultural necessities, it need not be the case that the system has attained that rate. Growth could be short of the maximal because of other inadequacies. For example, the "slack" in the system could possibly be exploited by increasing investments in irrigation, drainage and flood control, allowing the rate of growth to be raised without resorting to major institutional change. Failure to exploit that opportunity may have set the maximal rate of non-inflationary growth at a lower level, as a result of supply side constraints in the agricultural sector. Third, even though there may be such a maximum to the non-inflationary growth rate, actual growth may be even higher because of the willingness of the government to allow excess demand for agricultural necessities to spill over in the form of inflation, resulting in a redistribution of the available surpluses of agricultural goods among a larger number of non-agricultural workers, by squeezing the real incomes of the already employed. Finally, governments may be able to ensure increased access to foreign exchange over the short-, medium- or long-run, facilitating imports of agricultural commodities and a higher rate of non-inflationary growth.Needless to say, there were limits to which growth could be raised by allowing for a rising rate

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of inflation—the third of the options noted above. In fact, many of the explanations of the secular deceleration in industrial growth in the decade-and-a-half after the crisis of the mid-1960s, emphasised the role of the terms of trade shift that resulted from agricultural price increases in that period in causing the downturn (Chakravarty 2001, Mitra 1973). Chakravarty focused on the adverse implications of the terms of trade shift for the savings rate, realised inter alia, by two mechanisms: (i) a rise in the product wage in the non-agricultural sector leading to a squeeze in profitability in the private and public sectors; and (ii) a shift in the distribution of income away from sectors with a higher to one with a lower observed marginal rate of saving and subject to a lower marginal rate of taxation. By limiting savings in the private and public sectors, these factors were seen as responsible for limiting investment and growth, Mitra, on the other hand, drew attention to the non-homogeneity of the different sectors and the role of multiple terms of trades among classes in determining distribution. Shifts in the terms of trade reflecting the conflict over income shares results through supply and demand side mechanisms in a deceleration in growth.

What emerged from the debate, to which many others contributed, was that there were three forms of intersectoral linkages between the agricultural and non-agricultural sectors that were important (Raj 1976, Vaidyanathan 1977). First, with the agricultural sector accounting for 61 per cent of non-residential GDP in 1950/51 (at constant 1993-94 prices) and 76.2 per cent of employment, demand from the agricultural sector was seen as crucial to sustaining the demand for non-agricultural products and services, especially manufactured products. Second, since agricultural commodities constituted a significant share of input costs in some industries and of the wage basket in most, increases in agricultural prices were variously analysed as affecting industrial production. In particular, if an industry was agro-based or was characterised by a tendency for money wages to rise with increases in the prices of wage goods, it would experience an increase in costs that may not be neutralised by an increase in final product prices. In the event, profits could be squeezed and manufacturing investment affected adversely. Thirdly, increases in agricultural prices would constrain the growth of demand in the manufacturing sector, since consumers would allocate a larger share of their incomes to food consumption and a smaller share to manufactures demand and the government may reduce public expenditure to reduce absorption and dampen price increases. This constraint on demand growth would also adversely affect the ability of firms in industries producing mass consumption goods to raise prices in order to cover higher costs.

These different ways in which agricultural performance was expected to affect non-agricultural growth were predicated on the operation of two transmission mechanisms: first, increases in non-agricultural growth were expected to result in increases in the direct (inputs) and indirect (wage goods) demand for agricultural products. Second, since, agricultural growth was seen as constrained from the supply side, any disproportionality in industrial and agricultural growth was expected to result in an abnormal increase in the prices of agricultural goods, since those prices were largely determined by the relative levels of supply and demand.There were, however, three problems with these arguments. To start with, the supply-side element in them required assuming that the level of savings determined the level of investment. Second, on the demand side, while a shift in the terms of trade may explain a change in the structure of non-agricultural demand, it would not necessarily yield a deceleration in the aggregate demand for manufactures. Finally, so long as agricultural prices were seen as being determined by demand and supply, the process may provide an explanation of cycles (Patnaik 1994), but not necessarily of a secular deceleration.

A complete explanation of secular deceleration had, therefore, to take account of two other stylised facts. One was the impact of the remunerative prices policy adopted by the government as part of the new agricultural strategy of the late 1960s, which set a cost-plus floor to the prices of at least some agricultural products. The other was the oft-noted impact that rising food prices can have on public expenditure and investment, inasmuch as curtailment of such expenditure was a readily available device to dampen inflation that in the government's view was resulting in an unacceptable erosion of real incomes.

In the aftermath of the agricultural crisis of the mid-1960s, the problem was compounded by

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the fact that the provision of support to agricultural production in the form of cost-plus remunerative prices, offered a floor price that encouraged speculation. This was because, if speculative hoarding was not followed by the expected increase in prices, stocks could be disposed off at the cost-plus support price, which reduces the risk of large losses. As a result, increases in demand relative to supply inevitably raised prices, whereas increases in supply in years of a good harvest did not result in any significant decline in market prices. In the event, a secular deceleration of growth ensued.

While the agrarian constraint on non-agricultural growth was a problem that needed to be addressed, its existence was also a partial guarantee of some balance in the pattern of growth. An aspect of the above discussion which is of relevance is the understanding that this disproportionality was self-correcting. This was not just because price movements triggered changes in private investment allocation, as some have suggested. Rather, governments that initially responded to inflationary crises and/or balance of payments problems by curtailing expenditure, soon sought to improve agricultural performance in order to revive non-agricultural and overall growth. That is faced with inflationary crises governments in developing countries were forced to address the factors responsible for slow growth in agricultural output and productivity, which had agrarian distress as its concomitant. In fact, the adoption of Green Revolution strategies in many developing countries, including India, was a response to the overall impasse in development resulting from poor agricultural growth. Some combined this with programmes of land reform, while others did. not. However, in most cases the problem was at least partially addressed, unless factors like political strife prevented such action.

It needs to be noted that these mechanisms are operative only if there are limits on altering domestic supply with imports. If foreign exchange can be accessed easily to finance such imports, the structure of domestic supply need not be largely determined by the structure of domestic production. Commodities in whose case domestic demand exceeds supply based on domestic production could be imported to hold down the price level. During the 1950s and early 1960s, India faced a binding balance of payments constraint, since access to foreign exchange was limited to export revenues, limited FDI inflows and flows of capital through the bilateral and multilateral aid network. Yet, the economy witnessed rapid non-inflationary growth in manufacturing even when agricultural growth was moderate because of access to food imports through the RL. 480 route, which enhanced supplies and helped dampen price increases. It was when access to such imports was close for political reasons that the agricultural constraint proved binding, leading to the deceleration of manufacturing growth during the late 1960s and 1970s.

It is in this background that we need to assess the changed circumstances of the 1980s and 1990s, especially the latter decade, when the disproportionality in non-agricultural and agricultural growth widened considerably, without triggering inflation and limiting non-agricultural growth on account of an inflationary barrier.1 In fact, changes in the environment and pattern of growth triggered tendencies that prevented the realisation of the denouement expected based on the late-1960s and 1970s experience.

One element of change in the environment of obvious relevance was the transformation of the world of international finance that, for the first time, provided "emerging markets" like India access to private international finance. It is now widely held that the Indian government exploited that opportunity during the 1980s, to overcome the development impasse of the 1970s. Deficit-financed expenditure was used to accelerate non-agricultural growth, and the resulting disproportionality between non-agricultural and agricultural growth was managed by using imports financed largely with external debt to change the structure of domestic supplies and dampen inflation. And as Chart 2 indicates this was truer in the 1990s than in the 1980s.

However, this alone does not constitute the full explanation. Rather the change in economic regime instituted since the mid-1980s, and especially since 1991, has changed the pattern of growth in a way that has resulted in structural shifts in the nature of intersectoral linkages. An obvious change in the pattern of growth, which allows for growing disproportionality between agricultural and industrial growth, is a change in the pattern of demand and production, involving a reduction in the direct agricultural-input dependence of the non agricultural sector. As Sastry el. al. (2003:

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2392) have shown, the available input-output tables for the Indian economy indicate that: "In 1968-69 one unit of rise in industrial output was likely to enhance demand from agriculture by 0.247 units, which was reduced to 0.087 by 1993-94. On the other hand, in 1968-69, one unit rise in industry was to cause 0.237 units demand from the services sector, which increased to 0.457 units in 1993-94." (Table 2).

This reduction in agricultural input dependence of the non-agricultural sector would be greater once we take account of the growing share of services in non-agricultural GDP. While services accounted for 43 and 48 per cent respectively of the increment of GDP at current prices in the 1970s and 1980s, the figure rose to 58 per cent and 62 per cent respectively during the 1990s and the years 2000-01 to 2004-05. Given the much lower agricultural input dependence of services, this would have strengthened the tendency noted above. (Table 2)

Secondly, there are reasons to believe that the pattern of manufacturing growth under an open economic regime is such that the responsiveness of employment growth to the growth in output tends to decline. As Patnaik (2006) notes, the combination of high output growth and low employment growth, is a feature characterising both India and China during the years when they opened their economies to trade and investment. This makes sense since (i) with tastes and preferences of the elite in developing countries being influenced by the "demonstration effect" of lifestyles in the developed countries, new products and processes introduced in the latter very quickly find their way to the developing countries when their economies are open: and (ii) technological progress in the form of new products and processes in the developed countries is inevitably associated with an increase in labour productivity. Hence after trade liberalisation, labour productivity growth in developing countries is exogenously given and tends to be higher than prior to trade liberalisation, leading to a growing divergence between output and employment growth.

This argument is, however, not a complete explanation of this divergence in the case of India because of the dominance of services in total growth noted earlier. Of the cumulative increase in GDP between 1990 and 2004, while 55 per cent was accounted for by manufacturing in the case of China, as much as 60 per cent was accounted for by services in the Indian case. Given the techno-

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Table 2: Sectoral Demand Matrices Reflecting Demand Linkages -- Agriculture – Industry -- Services1968-69 Agriculture -- 1.23 -- 0.247 -- 0.059Industry -- 0.087 -- 1.562 – 0.230Services -- 0.035 -- 0.237 -- 1.1411979-80 Agriculture -- 1.214 -- 0.260 -- 0.083Industry -- 0.135 -- 1.601 -- 0.191Services -- 0.049 -- 0.269 -- 1.1391989-90 Agriculture -- 1.22 -- 0.104 -- 0.074Industry -- 0.319 -- 1.729 -- 0.378Services -- 0.144 -- 0.404 -- 1.3181993-94 Agriculture -- 1.187 -- 0.087 -- 0.066Industry -- 0.297 -- 1.704 -- 0.330Services -- 0.149 -- 0.457 -- 1.334Source: Sastry et. al (2003).

logical trajectory, it should be expected that the potential for increases in productivity is far greater in industry than in services.

The reasons why this is not so emerges from an analysis of the Software and IT-enabled services sector, which is one of the leading segments in the post-liberalisation growth of modern services in the country. In absolute and relative terms the size of the IT sector in India is now impressive. NASSCOM estimates2 the size of the industry in 2005-06 at $36.3 billion, of which $29.5 billion consisted of revenues from software and services. As much as $23.4 billion of these were export revenues: comprising of $17.1 billion of software and services export revenues and $6.3 billion of revenues from exports of IT-enabled services and business process outsourcing (BPO). The ratio of gross IT sector output to GDP rose from 0.38 per cent in 1991-92 to 1.88 per cent in 1999-00 and 4.5 per cent 2004-05

By way of comparison, the gross revenues from IT services was in 2004-05 about 20 per cent higher than the GDP generated in India's construction sector and almost three times as much as the GDP in mining and in electricity, gas and water supply. What is more, gross revenues from IT services exceeded 12 per cent of GDP generated in India's services sector as a whole, which accounts for more than 50 per cent of the nation's GDP. Thus, even though the software and IT-enabled services sector started from a small or negligible base a decade back, its rapid expansion at an annual compound rate of more than 30 per cent per annum between 1998-99 and 2004-05 has ensured that it is today an important presence in the economy.3

The fact that the rise to maturity of this sector has been driven predominantly by external demand is also well recognised now. Exports of software and IT-enabled services have risen at a compound annual rate of 48 per cent a year since 1990-91, and overwhelmingly explain the rapid rise of the sector. In 2005-06 exports of software and services as estimated by the Reserve Bank of India was, at $23 billion, more than a fifth: of India's merchandise exports and higher than one of India's principal commodity exports, viz. textile and textile products (including carpets).

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This has made IT services exports an important component of India's total (merchandise and non-merchandise) exports. The ratio of IT services to merchandise exports has risen from 13.9 per cent in 2000-01 to an estimated 22.5 per cent in 2005-06. Further, the ratio of net IT services export earnings to total net invisible earnings far exceeds 50 per cent in both those two years.4

However, the sector's contribution to employment does not compare with its role in the generation of income and foreign exchange. According to the surveys of employment and unemployment conducted by the NSSO (2001 and 2006), employment in computer related services rose from 2,70,150 in 1999-00 to 8,84,080 in 2004-05.5 As the figures in Table 3 indicate, in 2004-05, relative to the current weekly status estimates of employment yielded by the NSS (2006) Survey on employment and unemployment, employment in India's IT sector amounted to just 0.7 per cent of the non-agricultural workforce in the country, 10 per cent of employment in the production of textile products and 0.21 per cent of the aggregate workforce. The fact that a sector with revenues amounting to 4.5 per cent of GDP contributes only 0.21 per cent of aggregate employment is indicative of the lack of responsiveness of employment growth to growth in revenues. (Table 3)

Table 3: Employment Indicators 2004-05 (millions) Estimated principal usual status workers in textile industry -- 8.84Estimated principal usual status workers -- 416.92Estimated non-agricultural workforce (principal usual status) -- 189.13IT and enabled services sector employment (principal usual status) -- 0.88Source: NSSO 2001 and 2006.

To explain this we need to turn to the fact that the domestic industry has turned out to be a multi-layered, heterogeneous formation, with firms operating in different hardware, software and services segments, characterised by extremely wide margins. At the top are the successful firms focusing on the export market for software and IT-enabled services, especially the former. At the bottom are the large numbers of independent assemblers who find their margins depressed by falling duties on imported systems and components.

Distribution of Software Firms by Revenue per Employee in Rs. Million

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According to NASSCOM figures, in 2003-04 the top 20 software and IT services exporters accounted for as much as 61 per cent of total export revenues. But even within the services segment the industry is highly differentiated. Revenues per employee are distributed extremely unequally, with the few top players obtaining high margins and a large share of the market, and the industry being overcrowded with a number of small firms with low turnovers and extremely low margins (Chart 3).

A study of 65 small and medium enterprises in the IT sector (Shirsat 2006), with revenues ranging from Rs.10 crore to Rs.200 crore, found that their revenues in 2005-06 amounted to Rs.3,400 crore, which was just 8.9 per cent of the Rs.38,169 crore revenue garnered by the top four IT firms (TCS, Wipro, Infosys Technologies and Satyam Computer). Their profits aggregated Rs 575 crore or 6.9 per cent of the Rs.8,386 crore earned by the top four.

This skewed distribution explains the "winner-takes-all" scenario in the industry, showcased by a few highly successful firms with skyrocketing stock values and billionaire owners, while the fact that the experience of a majority of firms in the sector does not match this scenario goes unnoticed. Extreme concentration with attendant implications for income inequality is a core feature of the industry. And underlying that inequality is a sharp divergence in employment and "output" growth rates.

The net result has been that despite the rapid growth of services in the Indian economy, employment growth has failed to respond significantly to output growth. The late 1990s was a period of quite dramatic deceleration of aggregate employment generation, which fell to the lowest rate recorded since such data began being collected in the 1950s. However, the most recent period indicates a recovery, as shown in Chart 4 6 While aggregate employment growth (calculated at compound annual rates) in both rural and urban India was still slightly below the rates recorded in the period 1987-88 to 1993-94, it clearly recovered sharply from the deceleration of the earlier period. The recovery was most marked in rural areas, where the earlier slowdown had been sharper (Chan-drasekhar and Ghosh 2006a and 2006b).

Chart 3: Annual Rates of Employment Growth for usual status workers

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For rural males, labour force participation rates have recovered to the levels of the earlier decade, and conform to broader historical norms. Similarly, rural females show labour force participation rates only slightly higher than in 1993-94. However, for both males and females in urban areas, the latest period indicates significant increases in labour force participation according to both usual status and current daily status definitions.

However, a closer look at the data reveals the nature of this increase. First, there has been a significant decline in wage employment in general. In the past, while regular employment had been declining as a share of total usual status employment for some time now (except for urban women workers), wage employment had continued to grow in share because employment on casual contracts had been on the increase. But the 61st round survey suggests that in 2004-05 even casual employment has fallen in proportion to total employment.

Second, the fallout of this is a very significant increase in self-employment among all categories of workers in India. The increase has been sharpest among rural women, where self-employment now accounts for nearly two-thirds of all jobs. But it is also remarkable for urban workers, both men and women, among whom the self-employed constitute 45 and 48 per cent respectively of all usual status workers. All told, therefore, around half of the work force in India currently does not work for a direct employer. This is true not only in agriculture, but increasingly in a wide range of non-agricultural activities.

Third, examined in terms of principal occupational categories, while there has been a slight recovery in the rate of growth of agricultural employment, this is essentially because of a significant increase in self-employment on farms (dominantly by women workers) as wage employment in agriculture has actually fallen quite sharply. However, non-agricultural employment certainly appears to have accelerated in the latest period. In rural areas, this is the case for both self and wage employment, although the rate of increase has been more rapid for self employment. In urban areas, the increase has been dominantly in self employment.

Fourth, for most categories of regular workers, the recent period has not been one of rising real wages. While real wages have increased slightly for rural male regular employees, the rate of increase has certainly decelerated compared to the previous period. For all other categories of regular workers, real wages in 2004-05 were actually lower than in 1999-2000. The economy has therefore experienced a peculiar tendency of falling real wages along with relatively less regular employment for most workers. Further, while self employment has been rising, just under half of all self-employed workers do not find their work to be remunerative. This is despite very low expectations of reasonable returns - more than 40 per cent of rural workers declared they would have been satisfied with earning less than Rs. 1500 per month, while one-third of urban workers would have found up to Rs. 2000 per month to be remunerative. This suggests that a large part of the increase in self-employment - and therefore in employment as a whole - is a distress-driven phenomenon, led by the inability to find adequately gainful paid employment. So the apparent increase in aggregate employment growth may be more an outcome of the search for survival strategies than a demand-led expansion of productive income opportunities.

Further, all this occurs in a context where employment growth has been increasingly short of economic growth and output per worker has risen significantly in the non-agricultural sector where output growth has been particularly high. Overall, GDP per worker, which rose by 2.30 and 1.87 per cent respectively during the 1950s and 1960s, fell to a low of 0.69 per cent in the 1970s. Since then the rate of increase has been remarkable, standing at 3.53 and 4,32 per cent respectively during the 1980s and 1990s (Sivasubramonian 2004: 4, Table 1.1). While a part of this rise in output per worker may have meant an increase in the wages of sections of the already employed, it would principally mean an increase in income inequality because of an increase in managerial salaries and profits. Both these tendencies imply that the demand for agricultural wage-goods would grow at a much lower rate than output partly because of the slower growth in employment and partly because increases in per capita incomes accrue to those whose demand for food is satiated. This explains in part the ability to sustain disproportional growth with limited inflation.Finally, an ongoing study by Abhijit Sen based on recent NSS data suggests that even among the

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relatively poor the share of income allotted to food consumption is being squeezed by the growing requirements set by expenditures on health, fuel, transportation and education. The collapse of public provision in some of these areas, requiring purchases from private suppliers, and the increase in prices in others, is responsible for the enforced shift away from food consumption in the household budget.

(Chart 4: Terms of Trade Index: Parity in Input Prices Paid and Output Prices Received by Agriculture) The net result of all this is that agriculture is increasingly faced with a growing demand constraint at a time when input costs are rising. This is a reversal of the situation prevalent till the 1980s when the agricultural supply constraint constituted a barrier to rapid non-agricultural growth. As a result, as Chart 4 indicates, the input-output price parity in agriculture, which moved in favour of agricultural producers during the 1980s, has stagnated and moved against agricultural production during the liberalisation years since the early 1990s.

The consequence of these recent trends is that the Indian economy can record the observed creditable rates of non-inflationary growth of aggregate GDP even when the agricultural sector languishes. It appears that a feature of the growth process in a more open and liberalised environment is that the peasantry has a much smaller a role in sustaining economic growth and can thus be partially excluded from development. This is partly reflected in the fact that agriculture accounted for just 21 per cent of GDP in 2004-05. But neither the numbers constituting the peasantry nor those engaged as landless labourers dependent on agriculture shrink as fast, given the pattern of growth. It bears emphasising that these outcomes of the patterns of growth underlie the agricultural crisis and agrarian distress being reported from different parts of the country, at a time when the non-agricultural economy is on a roll and GDP is rising rapidly. What is diconcerting is that the self-correcting mechanism that existed in the earlier period to restore a semblance of balance between agricultural and non-agricultural growth are no more operative. This leaves the adjustment to political developments that are neither guaranteed nor the least disruptive.

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REFERENCES- Bathla, S. (2003), "Intersectoral Growth Linkages in India: Implications for Policy and Liberalised Reforms:, Working Paper, Delhi: Institute of Economic Growth.- Bhattacharya, B.B. and C.H. Hanumantha Rao, 1986, 'Agriculture-Industry Interrelations: Issues of Relative Prices and Growth in the Context of Public Investment', Theme 18, Eighth World Economic Congress of the International Economic Association, New Delhi.- Chakravarty, S. (1992), Development Planning: The Indian Experience, New Delhi: Oxford University Press.- Chakravarty, S. (2001), "Reflections on the Growth Process in the Indian Economy", Selected Writings, New Delhi: Oxford University Press.- Chandrasekhar, C. P. and J. Ghosh. (2005) The Market That Failed: Neoliberal Economic Reforms in India, Second edition, New Delhi: Leftword Books.- Chandrasekhar, C. P. and J. Ghosh. (2006a), "Employment Growth: The Latest Trends", Business Line, 14 November 2006.- Chandrasekhar, C. P. and J. Ghosh. (2006b), "Employment Conditions: Working More for Less", Business Line, 28 November 2006.- Kalecki, M. (1972) "Problems of Financing Economic Development in a Mixed Economy", Selected Essays on the Economic Growth of the Socialist and the Mixed Economy, Cambridge: Cambridge University Press, pp. 145-161.- Mitra, A (1973), Terms of Trade and Class Relations, National Sample Survey Organisation, Ministry of Statistics &C Programme Implementation, Government of India (2001), Employment and Unemployment Situation in India 1999-00, Parts I and 2, NSS 56st Round, New Delhi: Government of India.- National Sample Survey Organisation, Ministry of Statistics &C Programme Implementation, Government of India (2006), Employment and Unemployment Situation in India 2004-05, Parts I and 2, NSS 61st Round, New Delhi: Government of India.- Patnaik, P. (1994), "Disproportinality Crisis and Cyclical Growth: A Theoretical Note" in Nayyar, D. (ed) Industrial growth and Stagnation: The Debate in India Sameeksha Trust and Oxford University Press- Patnaik, P. (1995), "P. C. Mahalanobis and Development Planning in India", in Whatever Happened to Imperialism and Other Essays, New Delhi: Tulika.- Patnaik, P. (2006), "Technology and Employment in an Open Underdeveloped Economy", First Sumitra Chishti Memorial Lecture, New Delhi, March 3, 2006, mimeo.- Raj, K.N. (1976), "Growth and stagnation in Indian industrial development", Economic & Political Weekly, Annual Number, February.- Rangarajan, C. (1982), Agricultural Growth and Industrial Performance in India, Research Report No. 33, International Food Policy Research Institute, Washington D.C.- Shirsat, B.G. (2006), "Still a long way to go", Business Standard, July 14.- Sastry, D.V.S., Balwant Singh, Kaushik Bhattacharya and N.K. Unnikrishnan (2003), "Sectoral Linkages and Growth Prospects: Reflections on the Indian Economy", Economic and Political Weekly, June 14.- Sivasubramonian, S (2004), The Sources of Economic Growth in India, 1950-51 to 1999-2000, New Delhi: Oxford University Press.- Vaidyanathan, A. (1977), "Constraints on growth and policy options", Economic & Political Weekly, September 17 and December 17.

NOTES1. For detailed discussions of the nature and implications of intersectoral linkages see (among others) Rangarajan,1982; Bhattacharya and Rao, 1986 and Bathla 2003.2. Figures from "Indian IT Industry Factsheet", available at http://www.nasscom.in/upload/5216/Indian_IT_Industry_Factsheet_2006.doc accessed November 28, 2006.3. Based on CSO's national accounts statistics and NASSCOM's figures on revenued from IT services.4. See figures on India's Overall Balance of Payments available at www.rbi.org.in.5. NASSCOM on the other hand placed employment in the Indian IT-ITES sector at 2,84,000 in financial year 1999-00 and 10,45,000 in 2004-05.6. Aggregate employment is calculated here by using NSS workforce participation rates and population estimates ofthe Registrar General of India based on Census data.

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India's Constitution and its DiscontentsRajeev Dhavan

A Post Colonial Constitution for a Civilization

India - A CivilizationIndia is a civilization — not just a nation state. It has grown over the centuries, as people have been drawn to the fertile valleys of an otherwise relatively small sub-continent. Even though its human history has freely plundered what nature intended to be replenished, each use and abuse has gifted more and more to its enduringly complex fabric. Unlike many other civilizations, which sport the badge of antiquity, India has survived — not just in books and museums, but as a living entity. The vast intricacies of its past have been imbricated in the daily lives of its people. India's present speaks of its past in all its fullness in many languages, voices, colours, ideas, emotions, moods, traditions, practices, events and subterfuges. To sculpt a Constitution for India is to create a system of governance which will house a civilization1.

Today, India's population has swelled in size. Demography speaks for itself — to amaze, alarm, caution and remind. India's peoples have grown from 238.4 million (m) in 1900 to 251.3 m in 1921, to 318. m in 1941, to 361.1 m in 1951, to 439.2 m in 1961 to 548.2 m in 1971, to 683.3 m in 1981, to 844.3 m in 1991 to an anticipated 1 billion in 2000 — an exponential growth of staggering and daunting proportions. Poverty stalks these figures to reveal some 240 m in 1987-88 below the poverty line who earn and spend less than Rs. 131.8 and 150.1 per capita per month for rural and urban areas respectively. This represents absolute levels of non-nutritional poverty. The situation has only grown worse in the troubled decade that followed 2. The Census Papers on Religion published in 1995 reveals a presence of 75.6 m Muslims (11.4%), 16.2 m Christians (2.4%), 13.1 m Sikhs (2%), 4.7 m Buddhists (0.7%), 3.2 m Jains and many others. The 549.7 m Hindus (82.6%) sub-divide into various sects. Each sect of Hinduism could virtually form a faith of its own, - each individual belief or practice articulates a distinctness 3. Some of these so-called sects have even gone to Court to declare that they are not Hindus4. India has more Muslims then most of the Muslim countries of the World. In terms of the demographic largeness, it is amongst the top three Muslim Countries in the World - following Indonesia and Bangladesh. The Hindi language which claims 42.9% of speakers in 1981 too is subdivided into many dialects which constitute languages of their own . Hindi competes for style, recognition, content and vibrancy with a number of Indian languages which are too complete in themselves to be described as regional languages. They have a vast following . Based on 1981 figures 8.3%(51.3 million) Indians articulate their lives through the Bengali language. The figures for some of the other major languages are Telugu: 8.2% (50.6m); Marathi: 8% (49.m); Tamil: (35.8m); Urdu: 5.7% (34.9m); Gujarati: 5.4% (33.1m); Malayalam: 4.2% (25.7m); Kannada: 4.2% (25.7m); Oriya: 3.7% (23m); Punjabi: 3.2% (19.6m); Assamese: 1.01% (10.1m); Sindhi: 0.3% (2m); Kashmiri: 0.5% (3.2m). This excludes minor Ian-

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guages and dialects which are distinct languages5. The Constitution of India recognises 18 distinct languages in which people are educated as a medium of instruction and which can, and are used for other purposes amidst their many variations6. Virtually each language has its own script wholly distinguishable from the other. Each has a rich cultural and literary tradition, which rose to protest Rushide's mal-understanding of this richness in the anthological Vintage Book of Indian writing7. Many races form India's untidy conglomerate which stretch from Kashmir across the North East to Assam and Bengal, past the five rivers of the Punjab, down through the desert state of Rajasthan through Gujarat into the Arabian Sea, And yet there is more. We have still to move southward to Orissa, Maharasthra, Karnataka, Tamil Nadu, Andhra and Kerala. Difference and distinctness smile through the culturally democratic fabric in the thousands of different ways in which people differ in the clothes they wear, the food they eat, the songs they sing, the rhythms they dance to, the gods they pray to and the festivals they celebrate. Borrowings from each other does not blunt this distinctness. The incomparable plurality of the sub-continent is a global heritage, cumulated over centuries. It is of a kind not to be found anywhere else.

The seige of differences which India celebrates with unsubdued - even extreme - vigour helps rather than deters India from coming together as a shared entity. Just as Europe has come together as a civilization, so does India. Europe, too, celebrates a plethora of languages, cultures and traditions which have drawn inspiration, ideas and significance from each other even though capitalism has re-refined European civilization in a strongly and increasingly assimilative way. To define Europe purely in terms of its Christianity, or its Greco - Roman origins, or its more recent empirical 'age of reason' is to define facets without comprehending the intricacy of details that go to make up of the whole. The fact that Europe has witnessed continuing barbaric enmities which have plunged the world in two long drawn world-wars in our times does not describe its entire being. To describe Europe in terms of its Christianity and devise a constitutional system on this basis is as foolhardy as it would be provocatively mischievious. This is not to deny that Christianity played an important role in re-constituting post-Roman Europe but to recognize the plural variety of its heritage even if Europe has been more assimalative and compulsive about its Christianity. Europe and its diversity cannot be explained purely in Christian terms8. Imagine the complexity of the task of devising a constitution for Europe. No less unimaginable would be a Christian fundamentalist Constitution acceptable to all peoples, groups and nations. India, too, is not just a Hindu civilization. Hinduism shared in the development of Indian civilization but cannot claim to subsume the latter. In our times, the rightist Hindu parties - as they have come to be called - have appropriated India for the Hindus to characterize Indian civilization as a 'Hindu' civilization into which others have also been drawn in. Animated by political mischief to seek electoral dividends from the Hindu majority, these appropriations open up a domain more virulent than it is contentious — to ignite controversies which have led to the destruction of the mosque at Ayodhya, brutal riots and murder. What is this distinctively Hindu civilization which claims an ideligible purity over thousands of years? Who and what contributed to this process? Who were the original 'Indians"? The 'dravids' or did they displace others'? Do the excavations of Mohenjadaro and Harappa speak to us in a voice distinctly their own? Who were the Aryans? Invaders or nomads? Or, were they indigenes who had learnt to harness nature into agriculture and passed on their secrets to the peoples of the fertile valleys of the Middle East and Europe'? In their present form and contemporary climate, these questions are far from innocent. They are politically motivated. History is distorted; and, re-written as politics. In this incarnation, Hindu fundamentalism combines with 'Aryan' pride to project a Hegelian image of a 'real' India which is both 'Aryan' and Hindu - reducing the millenia that followed into mere subterfuge. 'India'- as an idea - has, thus been commoditized for political purposes. This commodity is bought and sold in elections; and its coinage continues to circumvent and undermine day to day governance. But, if we are to probe further into the legitimacy of the commodity, it is surely not impertinent to ask: what, then, is a Hindu? Is it merely a description of various peoples of various faiths that share characteristics ? Or, something less eclectic? What is the common characteristic ? The authority of the Vedas? The intriguing subtleties of the Upanishads? The materialism of Car-vakya? The legends drawn from the great epics (in their many variations) explicating the mysteries

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of truth, loyalty, duty and the brahman? Do not the teachings of Lord Buddha and Mahavira constitute major faiths of their own? What is the status of Indian variants of Islam and Christianity within the escathology of those faiths? We can abstract the philosophy of faith to reified universal levels of acceptances, but can we do the same for the millions of practices that defy assimilation to a point that people will lay down their lives to stress the difference. A Supreme Court decision on the Swaminarayan sect has been much criticised for modernizing the meaning of 'Hindu' into an over-assimalationist and eclectic definition, which can only make 'Hinduism' meaningless and perceptions of India dangerously trite9. Little is gained by describing Indian civilization which houses so many intricacies as 'Hindu' unless the latter is taken to include a myriad of contested and uncontested beliefs, practices, habits, ideas and inspirations of all the innumerable faiths which grace India's past, present and future'10. A great deal is lost by re-writing the lives of a people with political ink to encourage intolerance for electoral gain. The various communities - no less the castes and other groups - have often lived in strife amidst a sense that they are all a part of India. That is precisely what has made India possible. Hinduism is a part of India's history but not all of it. The commonalties that coalesced India together were drawn from the way people lived, danced sang, ate, dressed and pursued their livelihood. Acquiring the faith and courage to survive in a subcontinent which was, and is, often hostile to human endeavours, the people of this sub-continent developed an exciting cultural diversity which exploded into a myriad of expressions. Since we are not directly concerned with delving into the intriguing processes that brought India together, no more of all this. Suffice it is to say, fundamental issues of governance about Indian civilization cannot be founded on the idea that India is essentially a 'Hindu' civilization. Such a design fault can only distort and divide India.

While various epochs of Indian history witnessed strong centralised authorities which expanded and shrunk in the extent and intensity of their geographic domain from time to time, the togetherness of India's civilization was firmly rooted in civil society which housed a diversity of ideologies, institutions and practices which were causally and casually inter-connected. Over the years, more and more was added to this mosaic. The highest mountains stepped aside to let in conquerors, traders, caravan sarais and mendicants. The oceanic coastline did nothing to stop India's cultural vicissitudes from self-expression in South East Asia and beyond; nor did it prevent the onslaught of Europe into India. Before the advent of the British, the dominant rulers of India (for, at any given point in time there were many) had made India their home other than those like Mohammed of Ghaznavi or Nadir Shah who came only to pillage India for its fabled riches. The British re-drew the political map of the sub-continent into an administratively more rigorous whole, concentrating on establishing a system of governance which would service their many complex imperial needs. The British had good reasons not to over-provoke Indian sentiment, But, at the same time, they were unequivocal in their resolve to establish the intrinsic superiority of their post-enlightenment European civilization, with Christianity thrown in to add moral triumph to physical conquest. In this clash of civilizations, India's psyche was mortally wounded11. Indians began to think of themselves and their thoughts, beliefs and practices as being intrinsically inferior. They began to think of themselves as a people who were several generations behind in the great advance towards 'progress'; and unlikely to catch up unless they shed their past and imbibed the ways of the 'West'12. Politically, the sub-continent was brought together under the aegis of the Raj, but eventually left in a colossal mess. India was divided many times over. Decisive action by Nehru, Patel and his colleagues minimized the possibility of the balkanization of India into a jigsaw of pieces13. But, a number of intractable problems in the sub-continent will continue to defy solutions for generations to come.

How does one legislate a system of governance for a civilization: That, too, one bruised by a sense of inferiority, differences, enmities, greed, poverty hunger and despair? This was the real challenge before the Constitution makers of India when they set up about their unenviable task of creating a Constitution for India in 1946. That, too amidst the trauma of the dismemberment of the sub-continent by an unconsciously ill conceived partition of India into many units.

It would have been irresponsibly easy for independent Indian simply to create electoral system as the basis for democratic governance and leave the rest to the politics of the future. Such a pre-

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scription seemed singularly out of place for a nation, which had just won its 'freedom' and was called upon to fulfil its 'tryst with destiny'. But, what was the 'destiny' of a sprawling civilization about to be confined within the narrow confines of a greatly troubled and much besieged 'nation' state? Emerging from its colonial and feudal past, which it looked on with a convoluted anger, India had to cope with a lot more than its anti-imperial discomfiture. Faced with riots and mayhem on an unparalled scale, (which is painfully but poignantly documented in art, literature, film, printing and cinema.'14), an untidy political map of 'Partitioned' and 'Princely' States and a«demographic profile of a diverse, divided and oppressed poor people, the new rulers of India had to take decisive action to re-draw boundaries, pledge India's diversity to peace and devise a system of governance which would honour the past, cleanse it of its inequities and create an enduring egalitarian Society on the basis of which India would claim its place in a rapidly transforming world.

Many of these problems could have been avoided. The British could have avoided partition, but they chose not to do so. The Princely States could have been restricted in their options within a tighter framework; but this was not done. The Princes were left free to join one or the other federation on their terms or remain aloof if they so wished. This untidy map of political possibilities defied geography, history and culture. Theoretically, it was possible for a state in the middle of Pakistan to accede to India. It was no less possible for a state to accede to Pakistan, even though it was in the middle of India far away from the newly drawn international borders of East or West Pakistan. Left to itself, India's civilization could have housed many nations and many communities. Left to the British, the sub-continent was left in a half baked state; with each little unit up for grabs. History will surely paint it in gray many times over — in bewilderment and anguish over how this sorry state of affairs arose. Today, years later, contention and conflagration continue. The debris is yet to settle.

Which way should India have gone? Should it have permitted the sub-continent to break into hundreds of princely pieces? Should it have waited for Pakistan to pick up the pieces? Was it possible to envisage a sub-continent in which India and Pakistan were littered all over across the sub-continent? If the Princely States were to exercise a free plenary choice to join the one or the other state or go-it-alone, would this not complicate the situation further? Could, and should, this have been done only at the instance of the Ruler? If a free-for-all was permissible, would it not hasten chaos in an already fragile region, fraught with unabated grief and bitterness? Pakistan began to wage an undeclared war in Kashmir, whilst Punjab and Bengal lay in partitioned ruin accompanied by a shameless genocide which did no community credit. Since the partition of the sub-continent had been along religious lines, India had to decide whether it was to be profiled as a Hindu state, whether tolerant or intolerant of other faiths or a secular state incapable of being appropriated by any one faith. If peace was to be maintained, could it have been achieved by democratic means, with a strong bill of rights, under-written by the rule of law? Or, would the nascent democracy have to reserve extensive and emergency powers to the executive so that 'freedom' was put at peril to 'save' it from itself? And, if 'freedom' was what it was all about, what did this 'freedom' mean? Freedom from the Raj? But, for whom and for what? The tiller who did not own land ? The landlord who lived off the tiller ? Business and industry ? Labour ? The untouchables ? The tribals, primitive tribals, the so-called criminal tribes ? And, if the socio-economic status e quo was to be disbalanced to achieve distributive justice for, the poor and disadvantaged, how was this to be achieved? Would public revenues compensate those whose rights and privileges were being taken away and redistributed to others or patriated to the State'? How would the compensation be valued'? At full market value or for a lesser sum? If this was done, would the courts cooperate with government? If not, with what result'? What would happen if the various schemes to build infrastructure and effect distributive justice misfired or fell into greedy undeserving hands ? Would India have the resources to build a strong infrastructure for the future? If not, would it have to sell itself in economic bondage to purchase investment, support and technology? The burden of 'freedom' and defining what it meant did not end, but began, in 1947.These questions draw together many of the problems perceived to be important at the time of the partition, (i) To begin with, was the immediate question of boundaries. The political map of the

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sub-continent was a mess. The territorial limits and their new constituent units had to be established and defended. No less, a system had to be devised to absorb the various constituent units of India, into a common and integrated scheme of governance, (ii) Connected to the political issue of boundaries was recognizing the daunting pluralism of India and devising secular principles through which a multi-faceted civilization could find expression which were consistent with the promises of the past and expectations for the future, (iii) The issue of equal opportunities and distributive justice implied social, economic and political freedom for all. This acquired even greater practical and ideological significance in a country which housed the most shocking differentials between the advantaged and disadvantaged, with many of the latter living below the poverty line amidst intense discrimination and persecution, (iv) Finally, there was the issue of democratic governance, State and peoples' empowerment, civil liberties and the rule of law. If the object was to effect a transformative social and economic change which would lead to a genuinely egalitarian social order, India had to decide on the implications of creating a strong powerful state which would enable such change and defend the realm within a liberal democratic framework, respectful of human rights and bounded together by the rule of law. A strong 'State' run by politicians and bureaucrats could result in disempowering people with the consequential effect that governance itself would be placed at risk if such absolute power were to corrupt itself absolutely.

Constitution making in its context1. These four clusters of questions - pertaining to boundaries, secularism in a plural society, equality and distributive justice and State empowerment within a liberal democratic framework - demanded immediate attention. The 'government' of Independent India had to take hard decisions, especially on the question of boundaries and secularism. At the same time, the Constituent Assembly had to devise a Constitution for the future whilst not ignoring the problems of the present. Theoretically, there was always the incipient possibility that the view of

2. Nehru's Government would be different from that of the Constituent Assembly. A fundamentalist majority in the Assembly could have torn apart Nehru's plans for a 'neo-secular' majority 'State socialist' India. The possibility that the Assembly could have decided something different from the Government was minimized by the fact that, in a different incarnation, the Assembly was also the parliamentary legislature, to enact legislation and approve policy. However, tension between the Government and the Constituent Assembly could not have been wholly discounted. When Nehru moved his famous Objectives Resolution, the Assembly forestalled approval for several weeks, so that it could wait for the outcome on Pakistan amidst misgivings about the Resolution itself15. The debates on the broad framework of the Constitution were appreciative of the effort put in, but exactingly critical of the form and content of the Constitution16. The Drafting Committee — churlishly referred to by one member as the 'Drifting Committee'17 — was greatly criticized for slavish imitation, using the framework of the British Government of India Act 1935, not paying enough attention to other examples of constitution making (including that of the Soviet Union 18) and producing an un-Indian Constitution which ignored the teachings Mahatma Gandhi and the genius of the Indian people19. Until euphoria took over, an uneasy — even if amicable - tension continued. This is self evident from the number of amendments and demands that kept pouring in on the floor of the Assembly and its Committees; and the many controversies over innumerable issues. During the penultimate 'additional' debate on the Constitution in 1949, this unrest was reflected in demands that the Preamble should declare that the Constitution was instituted 'in the name of Almighty God' or made possible by the 'Grace of Parameshwar' 20. No less, others in slavish imitation of the, then, Soviet Union, declared that India should be called the USIR : Union of Indian Socialist Republics'21

The Constituent Assembly had been elected on a limited 'property' based franchise. Drawn from various constituencies it housed virtually many of those in India who wanted and deserved to be part of the constitution making process. Although each member nursed a constituency — and,

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perforce, a cause — each member was also able to rise above the narrow constraints of their putative representative status to reflect on the Constitution making exercise as a whole. Imbued with almost a Rawlsian 'reflective equilibrium' under a partial 'veil of ignorance', the members of the Constituent Assembly were acutely aware of the issues and the consequences which could befall them but able to reflect on them without over-personalizing their objectivity. The Christian, Muslim or Hindu point of view was represented by members of those and other communities and others in ways that accommodated just claims with moderation 22. This did not mean that particular points of view were not expressed strongly; or — for that matter — even uncompromisingly. When Hansa Mehta and Raj Kumari Amrit Kaur placed the egalitarian case for women on matters dealing with religious freedom and the uniform civil code, they held their ground without permitting the issues to be reified or losing their practical edge 23. But, at the same time, each member of the Assembly was able to place himself or herself in the predicament of another before taking a final view. Had this ability, of canvassing one point of view strongly whilst not mal-appreciating the alternative, not existed in almost every member of the Assembly, India's Constitution would never have been drafted. If, fifty years later, a Constituent Assembly was brought together to draft a new Constitution, it was highly un-likely that it would be able to draw a sufficient consensus to bring a new Constitution into being. Such a reflective equilibrium does not just grow from people accepting the lowest common denominator because they are under a veil of ignorance about their own status in the future, but because there are times when people are genuinely imbued with a sense of fairness to do unto others as they would others do unto them.

Not enough has been written about independent India's advent into Constitution making. Such accounts as exist — and, they are- few and far between — tend to be routine or over-written in their enthusiasm that the Indian Constitution is the 'cornerstone of the nation'24. At first, most of the criticism directed against the Constitution — both, within and without the Assembly — seems well made. The basic framework of governance was taken from the British Government of India Act 1935 which instituted parliamentary democracy at both the Center and in the Provinces and 'federal' court at the apes of a unified judiciary. To this, the Indian Constitution added a Bill of Rights, without too effective a due process clause, and with preventive (administrative) detention and martial law-exceptions written into the fundamental rights chapter itself. If the ghost of Sidney and Beatrice Webb stalked through parts of the Constitution to echo the, then, contemporary British Fabian and Labour Party socialism of the day, it tread on the Constitution unobtrusively25.

Some attempt was made to ensure that the bourgeois right to property did not stand in the way of forcing erstwhile landowners to re-distribute their land to the peasantry26. The usual socialist invocation that the State should own the nation's resources in preference to their being concentrated in the hands of the few was made in the unenforceable Directive Principles which, in addition to many other things, also made the welfare of the disadvantaged "... fundamental to the governance of the country"27.

What was one to say of a Constitution of this nature? Was it simply an eclectic ragbag, deriving inspiration from the fashion of the day? Or was it an amalgam of the three great revolutions which influenced liberal thinking, namely the French, the American and the Russian revolutions? And, if indeed, it was such an amalgam, was it just a collage almost indifferently selected bric-a-brac from essentially Anglo - Saxon sources? Whether the Constitution makers showed finesse in their borrowings does not survive contention. There is little dispute that— apart from reference to many Indian concerns — the basic framework of governance reflected in the Constitution was distinctly western. The time when the Constitution came to be drafted was one when most people believed that the only way to achieve progress was to pursue paths and objectives similar to those of the countries of the 'West', which was taken to encompass not just the liberal democracies of Britain, Europe and America but also the impressively powerful Soviet Union which - even if in part Asiatic — grew into what it became out of the compulsions of European history. Amidst some grumbling, India's Constitution makers were convinced that the only way forward was to transit through the vicissitudes of Western history by learning from the Soviet example. There were competing alternatives to choose from. The Soviet Union stood out as a country, which had transformed itself in a

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single generation, helped win the 'great' War, catapulted itself into becoming a super-power, appeared to have effected a social and economic transformation through planning and, perforce, leaped from one stage of economic development to another well beyond predictive possibilities. At tile same time, it appeared that the Labour Government in England and Roosevelt's 'Democrat' triumph in America were no less passionate about welfare - programs for the poor and the disadvantaged as well as the need for a strong regulatory State to control the ownership, distribution and use of resources. Stylized as choices between socialism and communism and liberal democracy or an authoritarian State, these alternatives presented themselves as alternatives before the constituent Assembly. , There were few takers for an authoritarian communism. Liberal democracy seemed safer; and, in its latest incarnations assumed to be capable of achieving egalitarian socialist objectives. The halfway house of declaring socialism in the unenforceable Directive Principles and leaving these objectives to the mercy of all the irrationalities of democracy suggested an uncanny sense of declaring that India had achieved all it needed to — even though everything remained to be done28.

Despite the heavy borrowings and the intrinsic Anglophile instincts embedded in the mindset of many of the leaders who dominated the work of the Assembly and notwithstanding the fact that the 'khadi kurta' and 'Gandhi cap' had replaced the pin stripe as political costume, many of the issues that precipitated differences on the floor of the Assembly were distinctly Indian. This is self evident from the many idiosyncratic texts, which have found their way into the Constitution. These include recognition of the rights of Sikhs to wear and carry daggers (kirpans) as part of their faith, the abolition of untouchability, the abolition of titles on the one hand and forced and beggar labour on the other, the protection of certain zamindari abolition legislation, the specifically stated objective of reducing if not doing away with cow slaughter, the avowal that there was a need for a uniform code of personal laws for various religious and other minorities and — amongst others — the special provisions for Scheduled Castes and Tribes and for Tribal Areas, the North East and Kashmir29.

On all these 'native' issues, the Assembly could have followed one of two choices. One broad approach was to offer general assurances and leave everything to the good sense of future parliaments. This eschewed strong constitutional solutions; and, was consistent with the general common law approach followed by the English establishment in relation to problems that arose within the British Isles. That is why, the English Constitution flexible and unentrenched even by procedural constraints, It was not until the legal advent of Europe into the British constitutional system that this broad approach of political solutions without legal entrenchment was partly modified. The alternative approach was both more definitive and divisive; and, especially reserved by the British Empire for its colonies, including - in particular - India. The modus operandi of this colonial approach was to convert any insistent demands into a constitutional claim, without specifically conceding a full fledged Bill of Rights. If the French and the English in Canada contended for independent attention, the colonial solution was to effect a constitutional separation. But, even if the Canadian example and the Maori solution in New Zealand grew out of circumstances peculiar to themselves 30, India became the laboratory for testing colonial solutions for a plural society. The essence of the colonial solution was to give overt recognition to social differences, permit or encourage their politicization in relation to each other and entrench the dispute in the form of legal guarantees in respect of which the people or community acquired a future political stake. A plural society, already imbued with strong inclusions and exclusions, and friendships and animosities, found itself further legally and politically fragmented. The case for the special representations of Muslims was a divisive solution, which protracted and politicized relations between the various communities and eventually led to the creation of India and Pakistan. Legal solutions concerning the "depressed classes" (including the untouchables) went far beyond dealing with issues of discrimination, disadvantage and equal opportunity to accommodate the claims of many other 'backward classes' and transform them into, political being. The contemporary onslaught on the Indian Constitution by the 'other backward classes' can be traced to the colonial legal strategies which converted social grievances into political claims31. No sooner had the British Raj given separate political representation to the Sikhs, the tribals, the Christians and the Anglo Indians, a Pandora's box was not just

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opened but was rent asunder. No one was more aware of this than the British themselves. Consider the reaction of the Indian Statutory Commission of 1930:

"The Montague-Chelmsford Report fully discussed the question of communal electorates. It declared that they were opposed to the teaching of history; that they perpetuated class division; that they stereotyped existing relations; and, that they constituted a serious hindrance to the development of the self governance felt constrained that as far as the Muhammedans were concerned, to admit this system into the Constitution they were framing and to concede a similar arrangement to the Sikhs of the Punjab32. Once the lid was open, there was no limit to the extent to which it would go. By the time the Government of India Act came into being, separate electorates were accorded to Muslims, Sikhs, Europeans, Indian Christians and Anglo Indian with special reservations for Maharathas in certain general constituencies in Bombay. We are not here concerned with making anti-imperial indictments over the mismanagement of communities or the fact that communal electorates were decisively rejected by the Constituent Assembly which retained special representation on the basis of disadvantage only for the Scheduled Castes ('untouchables'), Scheduled Tribes ('tribals') and Anglo-Indians. What concerns us is the constitutional approach of the Raj through whose legal lenses plural societies were not just fragmented but fractured into political divisive segments. This approach has profoundly mal-affected future prescriptions in the 'independent' sub-continent. Rather than develop a communitarian basis to bring, people together, what was espoused was a communal basis to divide them, and to make such diviseness a point of political esteem, which carried a premium on political dividends. Partitioning States and according special recognition and political representation remains part of the continuing armoury of the contemporary constitutional law and policy of the sub-continent. Any approach, which deepens the cultural richness of a plural society, is unexceptional. But solutions, which entrench and politicise a status quo, are necessarily uneasy and dangerous. Yet, such solutions are in vogue to re-draw the political map of the world33.

The Constituent Assembly also inherited all the conservative Anglo-American fears of a Bill of Rights. The British had consistently denied any form of Bill of Rights to the Indians despite early demands from Indians from 1895 onwards in pursuit for its inclusion as part of British governance. Clearly, a divisive constitutional policy was more conducive to imperial ends than a constructive libertarian order enforced by a strong judiciary. On their part the British had also taken care not to empower the imperial judiciary with the prerogative powers to monitor the validity and reasonableness of governmental actions and legislation. Thus, apart from the limited powers given to the High Courts of the Presidency Towns of Bombay, Madras and Calcutta to issue the well known controlling prerogative writs to question the governments actions and the limited jurisdiction of the Federal Courts from 1937 to 1950 to examine the validity of legislation in the light of the federal division of powers, the British gave no special powers to its Indian judiciary34. This was done for the first time by the Constitution makers. If the Raj was reticent over granting a limited judicial review, the question of enacting even a partial Bill of Rights did not arise. British unease about trusting the judiciary was reflected in the concerns of many law and lay members of the judiciary. B.N. Rau, the constitutional advisor, wrote many missives from America repeating the warnings of American judges that Bills of Rights stood in the way of social reform 35. As Partition erupted into terror, the prominent "law" members of the Assembly — such as A.K. Ayyar --closed their minds on too strong a Bill of Rights36. With legislation on zamindari abolition pending in many of the major Provinces, Munshi was keen that the right to property should not empower the landowners with the capacity for a rear-guard legal action37. The restrictions which could have been written into the various fundamental rights were elaborately written into the text which permitted preventive detention and replaced the original 'due process' clause with an 'any process' clause so that fundamental liberties could be restricted by tile mere ipse dixit of the legislature-38', Although the final version of the chapter on Fundamental Rights in the Constitution was distinct, unique and different, it made the rights less fundamental than the restrictions. Independent India witnessed an amazing struggle over these provisions for many years to follow.

The fact that many facets of the Indian Constitution dealt with distinctly Indian problems does

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not dilute the indictment that there was little that was Indian about the Indian Constitution. The Constitution makers had copied the broad frame of governance of the Act of 1935, emulated the British policy of dealing with a pluralist society, read down the Bill of Rights, consigned many Indian controversies to the Directive Principles of State Policy and paid only lip service to lofty ideals. Before evaluating the indictment, it is necessary to ask whether there was, in fact, some Indian alternative, which could have been adopted by the Assembly?

Perhaps, there was a halflhearted alternative, which commended itself to the Assembly. This came to be described as the Gandhian alternative although its link with Gandhi was somewhat dubious; and, it was not really set up as an alternative 39. Gandhi was self professedly uncomfortable with an over-arching State socialism of the kind that had its seeds in the Karachi Resolution of 1931 and which had worked its way through into the Objectives Resolution and some of the Directive Principles of the Constitution. There was no denying that Gandhi's advent into the struggle against the Raj transformed it. 'People' became part of the independence movement in ways that they had not been before. By the force of Gandhi's logic, 'independence' was for them — not a change of masters. And, if it was for 'them' who would be in charge? Under a State sponsored socialism, the 'State' was incharge. But, why was that wrong? The constitutional doctrines associated with 'liberal democracy boasted that they could keep the State in place by separating the exercise of powers and putting the legislature, executive and judiciary in institutional polarity to each other, introducing constitutional limitations by way of judicial review (especially through a Bill of Rights) and necessitating periodic elections to contain the arrogance of politicians by confronting it with the peoples' discontent.

A Gandhian critique of the, then, contemporary approaches to governance —traceable to Gandhi's thought and political modus operandi even if not to the chapter and verse of his writing — would suggest that both the liberal state as well as its socialist reincarnations missed the whole point of the purpose of governance. Accordingly, 'western' approaches posited a sharp differentiation between political and civil society' and therefore between governance and 'people" 40. Whether it was the contract theorists who justified the creation of political society on the basis that civil society was necessarily cumbersome or the utilitarians (from which so many intimations of socialism, and development were born) who pleaded for a strong 'interventionist' State, politics triumphed over people who, even if involved at various carefully constructed levels of electoral and non-electoral representation, were essentially seen as beneficiaries of the products of the political process. Governance was not by them, but in their name, and not necessarily for their benefit. They would prosper if 'society' prospered; and 'society' would prosper if its 'leaders' were firmly incharge of its 'polities'. A new breed of rulers were born: politicians. This new breed of 'professionals' would take over governance and the world — conditioned only by each other and public opinion, which they would manipulate to their advantage. This view of politics and politicians is captured with cynical, even if over-stated ease, by an observer of political theory and practice.

"Politics, we know, is a second rate form of human activity. Neither a science nor an art, at once corrupting to the soul and fatiguing to the mind, the activity either of those who cannot live without the illusion of affairs or those so fearful of being ruled by others that they will pay away their lives to prevent it"41

Politicians rule us with an assiduity that of, reinforces their interest and an ardour that subsumes them. In a Gandhian critique of state the surrender of governance to politicians is the problem not the solution. The Gandhian goal points towards self governance — a direction wholly different from that envisaged by the constitution. It contemplated a fundamentally different kind of peoples' self rule. The Gandhian approach was not without supportive echoes within western political theory which spoke of the need for smaller manageable units and the needs of an alienated society distanced from political governance.

When these matters came to be discussed on the floor of the Constituent Assembly, the deeper implications of Gandhi's discontent with 'western' theories of governance were lost and forgotten. Instead, the Gandhian proposal was reduced to being one about villages, local government and panchayats42. On this, Ambedkar who piloted the Constitution had views. His own experience as

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an 'untouchable' militated against having faith in village communities which, according to him, had not only allowed conquerors to passively pass through India but which were "...a sink of localism, a den of ignorance"; and places which harbored "narrow mindedness and communalism". That is why he claimed that the "Draft Constitution has discarded the village and adopted the individual as its unit"43. Whilst the desirability of village panchayat was recognised as an object deserving place in the unenforceable, but necessarily fundamental, Directive Principles of State Policy, Ambedkar's personal experiences and Nehru's developmental vision saw the village as something that had to be pulled out of its past to be developed and reformed for the future44. There is some truth in both the allegation and the fear that if power structures in the village were allowed to reproduce and further reinforce themselves under the aegis of a Constitution that made them primary units of governance, they would congeal and unleash a reign of social and economic terror. This is becoming all the more painfully apparent from ghastly post independence reports of atrocities by the village 'advantaged' against the 'disadvantaged' of the area45. No doubt, the existing power structures had to be cleansed of their wickedness and dismantled. Almost five decades later, the Constitution was amended to make panchayats the base of a three tier constitutional federalism with special representation being given to women and the backward classes 46. In the late forties, when the Constitution was being drafted, the entire panchayat principle seemed to obviate excitement, if not acceptability. But, what was at issue was not panchayats but self governance. Taken to its conclusion, it had dramatic implications which would have (i) undermined the daunting distinction between civil and political society (ii) challenged the monopoly of politicians to wholly control governmental processes, by eschewing control by the people other than through periodic elections and (iii) make contemporary constitutionalism, re-think the basis of governance- by moving away from dominant western approaches towards more creative exploratory pastures.

The basic design of India's Constitution reflected the wisdom — or lack of it — of the day. India opted for a not too typical liberal democratic State, with a strong but not authoritarian State. The emphasis was on 'modernity' and development47.

It was as if India was miles behind and had to catch up with the advanced nations of the world; and, the only way to do so was to go through what the west had gone through. Ataturk's Turkey served as an example of induced westernization. Soviet planning, at least once blessed by Keynesian and welfare economics, presented a proto-type for rapid economic transformation. That this vision was flawed and came to grief is beside the point. India, and - perforce — its Constitution makers devised a purpose based system which was, in line, with the, then, acceptable ideas of the day. Imitative in form, style and content, India's new system of constitutional governance had drifted in a particular direction. The framework of the Government of India Act 1935 provided the basics. The Bill of Rights was modified in favour of a strong State. The judiciary was perceived in terms of British rather than American counterparts. The thrust of change was to come from Parliament; and, the non-specialists bureaucracy was to work within a conspectus of planned development. India's choices stood out as an example precisely because they were not necessarily an untidy mix, but one, which seemed to suit India's requirements. If the State had been sculpted in a more authoritarian way, the nascent India would have had to confront a discontent far more immense than it was capable of handling. Externally, Indian socialism stood half way between the two dominant 'western' and 'communist' blocs that contended for recognition and domination in a sharply divided post-Second World War world. The Indian approach served as a model to many waves of decolonization that followed. In all this, India had not neglected to pay attention to its plural identities and social differentiations. In that sense, the Constitution was western in its approach, Indian in its outlook.

Constitutions cannot be made to measure. Whatever the 'original intent' of a Constitution, it has to yield to the 'felt necessities' of the day. Many of these 'felt necessities' are more felt than necessary. At every level, the greedy and dedicated alike seek to take over institutions of governance and transform them to their own use. Where such appropriations are brazen, the system of governance ceases to exist as a public system and decays by virtue of its converting the exercise of public power into a private fiefdom. Such phenomenon exists in virtually every system of governance -

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whether it be in the form or racist takeovers in local administrations in America or elsewhere or through the lesser forms of corruption which plague all polities. In sophisticated version of such appropriations, the Constitution itself does not collapse but is 'interpreted' or 'amended' to suit the purposes of those who appropriate it. In less resilient circumstances, Constitutions are abandoned as the successor regimes strive to devise new systems of legality and legitimacy48. Inevitably, both good and bad governance transform constitutional systems. But, it must not be thought that a constitutional system is- a 'free-for-all', ready to yield to the demands of every unscrupulous usurper. Constitutional systems can collapse or fail in a variety of ways. As long as the basic integrity of a particular constitutional system continues to command operational viability, it will command legal effect even if it falls into grotesque moral, error and is' not accorded social, legitimacy. But, when critiquing a constitutional system, we are not just concerned with whether it is viable (the 'will-it' and 'does-it' work questions), but also with whether the governance it perpetrates creates a just order for all. Each constitution houses two great struggles: the struggle for power and the struggle for justice. A constitution becomes endangered when the divergence between these two struggles reaches a point when they cannot be reconciled or redeemed.

The story of the Indian Constitution houses the stories of many struggles.

Indian Transformations: The Constitution as the Situs of Struggle

Nehru the Original Constitutional design and planning

The daunting figure of India's first Prime Minister - Jawahar Lai Nehru — watched over India's advent into becoming a sovereign, democratic republic49. Busy with so many other things after the break-up of the sub-continent, Nehru had very little to do with the process of Constitution making. Member of many committees, he was unable to attend most of them. Although a lawyer, he was not amongst the cabal of lawyers who drafted and guided the Constitution to fruition. After proposing the Objectives Resolution (which was later incorporated as the Preamble to the Constitution), he took little interest in the proceedings of the Assembly 50. Called upon to reply to the debate on the right to property and the abolition of zamindari, he requested a trusted friend to marshall the reply51. No doubt, Nehru kept in touch with what was going on — not least to ensure that the Constitution would fulfil Nehru's visionary plans for India. For, Nehru 'Independence' was a time to claim India's 'tryst with destiny' 52; and, the Constitution would ensure that this destiny would be fulfilled. The rest was 'petty detail' at a time when India 'dare(d) not be little53. Years after Nehru's passing away in 1964, criticism greets Nehru's nascent vision of India. There was much in Nehru's vision that took the future for granted. In this, there was, perhaps, a naivety on Nehru's part, perhaps, not. I have likened Nehru to a 'metaphor' in Indian political life which meanders into legend effortlessly (to) ... persuade endear, allure, captivate and imprison ... (and) join the never-ending discourse whose history is yet to be written"54. If Nehru's failings obscure our faith, his vision of an egalitarian and secular India has never been entirely irrelevant, even if his 'Statist' approach to fulfil this vision may have become impractical without being irrelevant. It is not really possible to understand the design and working of the Indian Constitution without comprehending how it was appropriated to give expression to Nehru plans for the future.

The original design of Constitution was tailor made for Nehru's transformative plans for India. Central to the original design was the supremacy of parliament, activated by a "Prime Minister-dominated" cabinet system of government. All plans, changes, laws and empowerments were to come from the Prime Minister and his cabinet and routed through parliament where Nehru's Congress had a majority. In those halcyon days nobody seriously considered how the Constitution would work if Nehru was not there to reign and rule: That he would not have a majority in parliament seemed unthinkable. To secure and enhance the pivotal role of the Union parliament to instrument change, the Constitution also crafted an overtly centralized federal system in which the Union's power to raise and control resources were maximized - as, indeed, its regulatory power over virtually every important aspect of social and, especially, economic development. In this original

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design, the judiciary was not really expected to play too important a role. Given limited powers over the administration similar to the English judiciary and oversight over a legally weak Bill of Rights, the Constitution created a restricted system of judicial review to enable legal oversight and to prevent violations of the rule of law without seriously undermining the sovereignty and supremacy of parliament. Finally, the Constitution was teleological in its purposes — its avowed aim being to ensure that the State would take charge (if not own) the nation's resources; and not only effect a distributive justice but also change the social and economic fabric of society into a more egalitarian order — opening up equal opportunities for all. If there were any doubts, the Constitution makers thought they had done the needful to plug various legal holes — both generally; and, more specifically in relation to agrarian reform proposals which were pending in various legislatures at the time of Constitution making. In more ways than one, the Constitution had been carefully over-written to fulfil Nehru's plans and ambitions for India and himself. This is not to suggest that the Constitution abjured either democracy or the rule of law. But, both the spirit of the Constitution as well as the temper of the times suggested that India was a nation on the move, determined not to lose time or momentum to stream past 'modernity' into the next century. There was a feeling that given the enormity of the task, a few short cuts were permissible.

Constitutional frameworks enable, can inhibit, but do not, by themselves, produce social and economic change. Soon after the Constitution came into being, the government conceived a course of action, which could loosely be, called the planning commission model of development. A mixture of Soviet planning, the American regulatory system, the British Welfare State, and colonial administration, the planning commission model of development used many legal and other techniques to seek to catalyze, induce and ensure change. The essential features of this model were:

(a) A systematic appraisal of present and future resources available to the nation, including human resources and their future potential; and possible borrowings from others. This appraisal was to be followed by decisions on allocations of resources to meet present and future needs, including the building of an infrastructure to sustain future developmental aims.

(b) The induction of plans and programs to allocate resources and opportunities and effect equitable transfers from the advantaged to the disadvantaged; but also to change the populace so that they were mentally, emotionally, educationally and technically equipped to participate in the future and simultaneously prepared to abandon past prejudices, biases and practices that would inhibit change;

(c) The creation of an elaborate administrative system which would continue to devise plans, allocate resources, regulate administrative and social behavior and induce, or where necessary enforce, change according to the programs and plans. Concomitantly, such a system would create many mechanisms, including criminal and penal punishments to ensure compliance and close the gap between normative expectations and social reality.

(d) The declaration and sustenance of an elaborate egalitarian and welfare (and, perforce, socialist) ideology; and to proliferate such an ideology in various ways to obtain consensus and support from both the general populace and administration, including the judiciary to generate 'commitment' for the cause.

(e) The sustenance of a commitment to a libertarian democracy founded on the rule of law so that all decisions taken had democratic approval and were enforced according to legal norms; and, to build a jurisprudence and democratic theory which comprehends the importance of transformative change through planned development and ensures that the political administrative, legal and judicial system is geared towards achieving designated goals55.

Even if this system seems naive in retrospect, it encapsulated the hopes and expectations of Nehru's India soon after the Constitution came into being and represented the 'wisdom' of the day,

As long as people were solidly behind this enterprise to transform India it was capable of developing the synergies that would sustain its future. But what if the people were resistant and uncomfortable with what was happening? Or if powerful forces opposed, appropriated or corrupted the processes by which planned purposes were sought to be achieved? In these circumstances, the

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plan itself would flounder for style and content, be mal-abused and diverted from its purposes or suffer etropic decay. Despite its many vulnerabilities, this 'law and development' model found general acceptance with many countries. No less significantly, it found acceptance with various American and other funding agencies who felt it their bounden duty to 'develop' the world and deliver it from the absurdities of its past into a 'modern' future. There could be little quarrel with the idea of a planned use of resources to develop an infrastructure for the future. But, could magic wands simply be waved to transform societies from what they were into what planners wanted them to be. It was highly doubtful if the comprehensive change that was projected was, at all, necessary; or even desirable. Why was 'tradition' necessarily bad? Were only those 'traditions' good which adapted themselves to 'modernity'? Did the good life consist of simply those things which 'modernity' offered? Was the scientific spirit in the name of which 'modernity' espoused itself suspect in its aims? The 'modern' script for planned development was necessarily over-written. If the globe, and all which it inherits, was to be preserved, it seemed illogical to re-construct the world in only a modern image. Both the lapses of planned development as well as its purpose came up for scrutiny and revaluation 56. No one could dictate what the good life was to over a billion people. Pundits and planners reviewed resistance and rebellion to various aspects of planned change. Scholars found themselves in 'self estrangement' over their own views. The middle class of various nations — no less India — were irritated and furious at being tied down by the babu raj of the regulatory system as well as what they considered a needless 'cap' on a full fledged consumerism which they associated with cosmopolitan notions of opulence and well being. Sacrifices were acceptable for wars and emergencies, but if the 'emergency' was to stretch into the next millennia, it was unacceptable. Predator nations, which wanted the markets of the world and happy to go to war to obtain them, found 'closed' economies a nuisance which simply had to be opened up. Aid, loans, support, investment and trade were essential to force this opening. In this global economic map of the world, there was a 'centre' which comprised of the powerful predominantly, white nations and the 'periphery' consisting of the rest which was to be 'developed'. The 'centre' had no doubts that the world was theirs for the asking— especially if the hopes of the 'periphery' became parasitically dependent on the 'centre'. Thus, the reason for modifying and abandoning the planned development model was not due to its intrinsic over-ambitious foolhardiness over which its progenitors found themselves in self-estrangement. Powerful forces arranged themselves against the planned development model for selfish reasons of their own because they felt that the continued use of that model blocked 'free market' access to multi-nationals seeking to conquer the world. In my view to modify the planned development model was one thing; to abandon it altogether is both a conspiracy and heresy. This conspiratorial heresy is now enshrined in the treaties created by the Uruguay Round of Negotiations of the General Agreement of Trade and Tariffs (GATT) which have resulted in the creation of a World Trade Organization (WTO) to cover all aspects of trade, investment (alluringly called TRIMS trade related investment measures), services (the so-called GATS (General Agreement on Trade in Services)) and even intellectual property (once again fancifully described as TRIPS or Trade related aspects of Intellectual Property). An insidious meticulously planned initiative to create 'free market' access for multi-nationals seemed to have replaced the planned development model to give social and economic viability to the poorer nations of the world. The emphasis on direct development for all has been replaced by a 'trickle down' philosophy that benefiting, the rich shall eventually benefit the poor.

There is good reason to distinguish the theology of 'planned development' from its more practical allocative application to (a) create present and future infrastructures, (b) enable economic and social rights and capacities especially in the matter of food, clothing, shelter, basic amenities, health and education which require immediate attention, and (c) allocate resources within the economy on the basis of their prioritization. In its latter pragmatic sense, planned development has brought many dividends to India, which would not otherwise have accrued. In the final stages of Constitution making, Ambedkar had made an incisive prophecy,

"We must begin by acknowledging the fact that there is a complete absence of two things in Indian Society. One of these is equality. On the social plane, we have in India a society based

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on the principle of graded inequality, which means elevation for some, and degradation for others. On the economic plane, we have a society, in which there are some who have immense wealth as against many who live in abject poverty. On the 26th of January, we are going to enter into a life of contradictions. In politics, we will have equality and in social and economic life we will have inequality. In politics we will be recognizing the principle of one man, one vote, one value. In our social and economic life we shall, by reason of our social and economic structure, continue to defy the principle of one man one vote one value. How long shall we continue to live this life of contradictions? How long shall we continue to deny equality in our social and economic life? If we continue to deny it for long, we shall do so by putting our political democracy in peril. We must remove this contradiction at the earliest possible moment or else those who suffer from inequality will blow up the structure of the political democracy which this Assembly has so laboriously built up.

The second thing we are wanting in is recognition of the principle of fraternity. What does fraternity mean? Fraternity means a sense of common brotherhood of all Indians - If Indians (think of themselves as) being one people, It is the principle, which gives unity and solidarity to social life The sooner we realise that we are not as yet a nation and seriously think of ways and meansof realizing this goal, the better for us.... For fraternity can be a fact, only where there is a nation. Without fraternity, equality and liberty will be no deeper than coats of paint."57

It is unfortunate that the lexical priority given to civil and political rights (CPR) has subordinated and eclipsed the importance of economic and social rights (ESR).

It is largely due to planning that India was able to provide economic and social equities in a society in which vast differentials existed between the rich and the poor which were increasing both qualitatively (as the well to do became well off) and quantitatively (as demographic increases led to serious shortcomings in basic needs which were already reaching dangerous proportions). Since 1950, when India's population was 361.1m there is an anticipated demographic increase to around a billion in the year 2000 - almost a three fold increase, with around two-thirds or more living in rural locations. In the first instance, planning was directed towards a re-distribution of land and a nationalization of resources including future opportunities. Like the French and Russian revolutions before them — but, unlike the British and Americans who allowed their landed aristocracies and others to retain their advantages —, agrarian reform in the form of liquidating the rights of erstwhile zamindars and landlords and effecting a redistribution to the tillers of the soil was already on the agenda of the Constituent Assembly which had taken special care to immunize some of the implementing legislation from constitutional attack. A retrospective study of these agrarian reform initiatives suggests a partial success. The old landlords managed to retain some of their land resources and social and political power. A new class of rich peasants mushroomed using caste and other links to fortify their power and influence. Be that as it may, land was re-distributed to change the agrarian landscape to increase landholdings over a much wider social and demographic spectrum - even if this did not mean land for all. Likewise, a large number of national resources and opportunities were nationalised or regulated within the aegis of the Avadhi Resolution of 1954 and the new Economic Policy Resolution of 1956. For many years, this semi-nationalised and regulated economy worked reasonably well, kept a random consumerism at bay, dampened the ardour of those who saw Independent India as a 'free-for-all' (in which the advantaged would corner resources and opportunities for themselves) and helped build a semblance of a facilitative and technological infrastructures for the future. Yet, it cannot be denied that plans for both rural upliftment and industrialization went awry and suffered mis-direction in more ways than one. If a principal reason can be assigned for this failure, it was because the reforms were over-bureaucratised and dominated by political influence instead of being people based and responsive to the latter's scrutiny and involvement. At best, bureaucracies can only advise and enable change for people to achieve. At worst, bureaucracies become malleable, supine and corrupt. Planned development had destroyed many benevolent old social structures in whose place had grown a vile and rampant corruption.

Yet, with all its' shortcomings, a quick overview suggests an enhancement of many social and

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economic rights, even if they remain in serious jeopardy. Food production has gone up; and, even if India has not achieved adequate levels of self sufficiency, it has been more equitably distributed. Amidst shanty towns and broken village homes, there is an improvement in the shelter afforded to the poor. Health facilities are far from perfect, but there has been an increasingly more efficient drive against epidemics and diseases as well as to provide a better medical services to those to whom it was inaccessible. Educational facilities continue to be mal-divided between elite opportunities and an indifferent basic education; but, there is an increase in literacy as well as a general and technical education to a wider catchment of people. In all these areas, the overall position is still grim. About a quarter billion people live below the poverty line with insufficient calorie intake to keep alive. The difference between the rich and poor has increased; and, will continue to do so. Planning enabled a foothold towards securing economic and social rights; and, it is through such planning that the future of such securement can be assured. But Ambedkar's prophecy will taunt, haunt and daunt India for many years to come.

Eventually, the middle classes and the market forces caught up with the planning commission model. Planned development was both an ideology as well as a process. By the 1980, its ideology suffered attack. The middle classes had had enough. The Soviet Union was the second most powerful nation in the world, yet its citizens queued for bread and food in its capital city. Supported by technological innovations, the new consumerism allured middle classes throughout the world. The Soviet Union and its satellite communist nations broke up to embrace new market possibilities, embittered by decades of deprivation of goods and services available to their counterparts in the 'free' world. Utopian dreams, which made promises of an egalitarian 'justice between generations', had lost their shine. But, even in planned development as an ideology was passe, planning retained its uses to determine prioritized use of resources; and to ensure that the poor and disadvantaged secured basic economic and social rights. This was all the more important for India where wide social and economic differentials could ignite discontent. Although greed rather than deprivation provoke revolutions, there were enough greedy people in India to feed on peoples' discontent to provoke chaos.

The Original design reworked: Lateral Pressures on a vertical frameworkAlthough there were murmurs that the Constitution would have to be reviewed and revised from time to time, it was conceived as a permanent testament that was intended to serve India for many decades, if not longer. The Constitution makers had taken the simple expedient of writing in several provisions to amend the Constitution. At one level, the Constitution could be changed or extended by Parliament using its ordinary legislative process. The normal procedure for effecting amendments to the Constitution required a two-thirds majority through each house of the Union Parliament. An extraordinary procedure was devised for various changes affecting the federal polity and related matters whereby the legislatures of one half of the States would have to ratify such amendments58. For the moment we are not concerned with how the amending provisions were used and abused to make innumerable changes in the Constitution to a point that the Supreme Court warned successive regimes that they could not use their brute majorities to amend the "basic structure" of the constitution out of existence59. To that we shall return. For the moment, we are concerned with the less visible and more insidious changes, which altered the meaning, purpose and institutional working of the Constitution. Constitutions are as tensile in their working as they can be fragile or volatile. As more and more people are attracted to their use, they seek to make the Constitution the situs of their struggle. More often, than not, most Constitutions house struggle between competing elites. But, overtime, the disadvantaged have also learnt that the poor and disadvantaged can also house their grievances within constitutional structures to, at least, partial advantage.

The original Constitution of 1950 was development oriented — geared towards maximizing the power of the Prime Minister and his parliament to put their plans into effect. All major battles were to be fought in parliament where the government had an impressive majority and not in the courts which were constitutionally confined to play a relatively limited oversight role. No sooner was the

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constitution proclaimed, this institutional configuration came under attack. Placed under administrative detention, the Communist leader, A.K. Gopalan, approached the Supreme Court for redress60. Faced with pre-censorship, activist journalists moved the High Court and Supreme Court to intervene in favour of free speech61. Erstwhile landlords, including the much publicised case of the Raja of Darbanga in Bihar, obtained impressive victories to get a better deal in the Agrarian Reform cases filed in the High Courts; and, to a lesser extent, in the Supreme Court. The nationalization of road transport also faced judicial hurdles; as, indeed, the restructuring of agrarian and other markets62. Nehru's government had not anticipated this and was astonished at this constitutional volte face. Extensive amendments were carried to protect the agrarian reform and other programs to render them immune from judicial scrutiny on grounds of violation of human rights63. While the Court — over, at least, dissent — accepted that it could not exact a full due process from government64, it struck down special procedures, which did not give a fair trial65. In all this, the Court was strongly divided and showed enviable restraint. It is difficult to characterise these early awkward years of Constitution making as a time when the courts were trigger happy in striking down legislation, plans, programs or administrative action. Nothing could be farther than the truth66. This was ruefully pointed out by a distinguished retired Chief Justice of India at a Conference of the Madras Bar in 195467. But, the die was cast68. A much shaken Nehru accused courts of standing in the way of progress; and, to go on to make his oft quoted remark that lawyers had 'purloined the Constitution'69. Unprepared to allow the Courts the right to review the situation, Nehru proceeded to amend the Constitution further in 1950 and 1954. At least in the area of planning and agrarian reform, Nehru's modus operandi to deal with difficult or obstructive court decisions was to amend the Constitution to immunize earmarked programs and legislation from judicial scrutiny. Congress majorities under-wrote a virtual blank cheque to pursue this course of action, which was continued by his successor, Mrs. Indira Gandhi. The Supreme Court was not pleased. A minority of judges in 196570 threatened to strike down these amendments in 196671. A year later, the Supreme Court made it clear that all such amendments would be tested against the fundamental rights they sought to restrict72. Anxious not to take the battle further, the Supreme Court made this ruling prospective. But, Indira Gandhi's government was not content and took the matter further to try and reverse the Supreme Court's 1967 ruling by constitutional amendment73. Matters came to a head in 1973 when - after many days of much publicised hearing — the Court declared in the famous Fundamental Rights case (1973) that even the otherwise plenary processes of amendment could not mal-effect the 'basis structure' of the Constitution which, amongst other things, included judicial review74. As much a warning for the future as a review of the past, there was no massive striking down of the constitutional amendments themselves except where there was a total exclusion of judicial review. But, the warning itself was clear: the Constitution was not a 'plaything' in the hands of a parliamentary majority.

Before we go on to consider the wider implications of the courts being opened up as arenas of dispute over governance, we need to dwell a little longer on the interplay between the courts and government. In the fifties, the Supreme Court had played its hand, but was generally forbearing in developing too confrontationist a stance or jurisprudence against the government. Indian courts were not used to wield the weapon of judicial review. The British Raj had empowered only its Presidency Courts of Bombay, Calcutta and Madras with limited powers of judicial review. In the early fifties, the Supreme Court was inundated with references to foreign precedent to evolve a jurisprudence which has been frankly described as 'imitative'. To a very great extent, the wishes of the Constituent Assembly and the exigencies of the planning process were respected. The Court refrained from developing a full fledged judicial review. Its interpretation of the chapter on fundamental rights was eclectic; and, could not be described as either incisive or threatening — much to the chagrin of strong judges like Justice Mahajan in the fifties and Justice Subba Rao in the sixties. Under the guidance of Chief Justice S.R. Das in the fifties (1956-9) and - more strongly — Chief Justice Gajendragadkar in the sixties (1964-66), the Supreme Court generally produced an 'establishment' jurisprudence which sought to strike a balance between the demands of State and the citizenry — more often than not favouring the establishment. The high point of such a jurisprudence

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lay in the writings and judgments of Chief Justice Gajendragadkar who saw judges as engaged in the task of 'social engineering'". Alongside, a subsidiary jurisprudence was also developing which strengthened the doctrines of equality, non-arbitrariness, reasonableness and due process — in particular in the hands of Justice Subba Rao through various dissents' 76; and, more strongly in the Bank Nationalization (1970)77, Privy Purses (1971)78 and Press Cases (of 1962 and 1973)79. But, these subsidiary developments did not acquire the complete texture of full fledged doctrine till after the Emergency (1975-1977).

As we review the first dominant phase of the development of India's Constitution — that is, from the beginning of the Republic in 1950 to the declaration of the Emergency in June 1975 —, it seems that the government had over-reacted to judicial decisions in more ways than one. By using the instrument of constitutional amendment, both Nehru and Mrs. Gandhi governments had sat in appeal over the judiciary with the arrogant grin of a majoritarian government looking condescendingly at the rule of law. But, while Nehru used parliament to fight the judiciary, Mrs. Gandhi's stance was overtly coercive. After the Fundamental Rights case (1973), her government immediately superceded three senior Supreme Court judges to appoint Justice Ray the Chief Justice of India in a manner contrary to the settled traditions governing judicial appointment. This was repeated in 1977 when the lone dissenter (Justice Khanna) in the Preventive Detention case (1976)80 was passed over and Justice Beg, the next incumbent, was made Chief Justice of India. It is said Nehru had threatened a similar supercession in the early fifties, but better sense prevailed 81. These tactics of confrontation and coercion pushed lawyers, litigants and justices to rise to the defense of the judiciary as an institution. The more the judiciary was pressurised, the more creative it became. The more lawyers were reminded of the limited nature of judicial review, the more subtle their arguments. Barred from inquiring into the adequacy of compensation for compulsory acquisition by the Fourth Amendment of 1954, Justice Subba Rao declared -that an inquiry into wholly illusory compensation was not barred 82. When the Press was interfered with by Nehru and Mrs. Gandhi, the judges responded by making it clear that 'price and page' or newsprint control subvert the freedom of the press83. If the government wanted to control religious endowments, the judges developed doctrines to protect the 'essential practices' of each faith84. As English administrative law changed to caution the administration to review its work with more rigour, Indian courts did not hesitate to adapt and develop new doctrines. The doctrine of natural justice was used as a vehicle to make the administration more participatory; and common law concepts of 'reasonableness' were used to scrutinise administrative waywardness85. As times passed, the Indian judiciary became more confident of its use of its indigenous intuition capacity to match its adeptness to use cosmopolitan doctrine to advantage.

The cumulative effect of all these skirmishes was to fundamentally alter the nature and purpose of the Constitution and the institutional machinery housed within it. The Constitution of 1950 was predicated on a developmental vision which gave primacy to a Prime Minister led and dominated system of governance. Slowly powerful-litigants and ingenious lawyers combined to fundamentally alter this uni-polar view of the Constitution. By using the judiciary and the press against the government, a scheme of institutional polarity between the various organs was pressed into service. The Constitution was no longer seen as a monolith to achieve developmental aims. It became more and more a living document, inviting people to place their grievances and their mischiefs to be ventilated through its processes. The vertical control of the Prime Minister over constitutional processes had given way to a lateral spread. For the first twenty five years, this extended use of the Constitution had created opportunities for the advantaged rather than the disadvantaged. Landlords, businessmen, and press magnates, politicians filed most of the important cases which encouraged this change, while similarly using and abusing other constitutional institutions of governance. It would be a little-while before less privileged lay persons also began to use constitutional processes to advance their cause. But, a fissure had been made. Nehru's development oriented Constitution had been revised in, and by, its own use.

The Emergency (1975-77) - Dictatorial variations

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It is at this stage, Mrs. Gandhi's began to panic. Having won a military victory in the Bangladesh war and returning to power with a massive majority in 1972, Mrs. Gandhi felt that she had enough popular wind in her sails to attack the judiciary, silence her critics and proclaim her preeminence. As resistance increased, she became a little cautious. But, even this caution disappeared when the Allahabad High Court unseated her as a Member of Parliament and she was unsure whether the Supreme Court would support her86. In the 1973 supercession controversy, she had asked for a 'committed' judiciary — but what she meant was that the judiciary should be committed to her in the name of socialism. Recalling all the constitutional astras used by Nehru and herself, she decided to declare an Emergency and pass constitutional amendmentsno protect her candidature and status as a member of parliament from judicial attack. Pressed for a justification, she did not have to look too far. Imitating Nehru she proclaimed that she needed a more personalised public and constitutional empowerment to eradicate poverty and advance the developmental goals of the nation. Unlike Nehru, she was prepared to abjure democracy and the rule of law if they stood in her way.

When Nehru had spoken of 'petty details' not standing in the way of the larger tasks pending before the nation, he did not think of democracy and the rule of law as petty details. In an effort to save her own status as a Member of Parliament (MP), Mrs. Gandhi made statutory and constitutional amendments, which rendered the Allahabad High Court judgment nugatory. She could have stepped down as Prime Minister until the Supreme Court had heard her appeal. But, Justice Krishna Iyer's injunctive order in the Supreme Court — following the Allahabad High Court — left her uncomfortable, More significantly, if she resigned from the post of Prime Minister while awaiting the verdict on her status as an MP, she would have been ousted from office and party position by her own supporters, with little possibility of return. Her elaborate amendments to deal with the Allahabad judgment used a variety of techniques, including retroactive validation, discretion in the President, revision of the law and ouster of judicial review. While a total ouster of judicial review was the basic structure' of the Constitution, her gambit paid off. She remained an MP and Prime Minister during the Emergency for almost two years.

The Constitution makers had enacted 'emergency' clauses which empowered the Union Government to declare a national Emergency if India was faced with threat or external aggression, President's Rule on any particular State if there was a failure of constitutional machinery in the State and a financial emergency if the circumstances warranted it87. The national emergency provisions had been involved at the time of the Chinese invasion in 1962 and had, willy nilly, continued till 1968. There has been no occasion to invoke the financial emergency provisions, but the President's Rule provisions were abused many times over — no less by Nehru when he imposed President's Rule in Kerala in 1959 when Mrs. Gandhi was President of the Congress. In 1975, Mrs. Gandhi declared a national emergency on the grounds of internal disturbances. All of a sudden, the frail JP Narayan had become a threat, and India became ungovernable. The automatic effect of an Emergency is to suspend the fundamental freedoms article of the Constitution, giving the government the option to suspend the operation of other fundamental rights. In the Emergency of 1975-77, Mrs. Gandhi's government also suspended the right to life and liberty article - thereby denuding the citizenry of the right to move the Courts to enforce this valuable right and enable judicial scrutiny over interference with the liberties if a person or their preventive detention. The constitution had interposed certain safeguards, but these (which principally required ratification of the Emergency at periodic intervals) did not prove to be a hurdle for a government which had a majority in Parliament. The Emergency lasted till April 1977, when Mrs. Gandhi called for elections, but lost even her own seat.

During the Emergency, the government overhauled the Constitution with what came to be enacted as the Constitution (Forty Second Amendment) Act 1976. Having already dealt with the Allahabad judgment in the Thirty Eighth and Thirty Ninth amendments in 1975, Mrs. Gandhi had elaborate plans to re-write the Constitution. Sometime in 1976, an unsigned document appeared on the scene, which made out a case for a Presidential system. No one has ever claimed parentage of this document. In 1978, one of her close advisors, Rajni Patel in a personal interview, denied having

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written it. Likewise, B.K.Nehru, Mrs. Gandhi's ambassador in Britain in a personal conversation with me, intimated that while he approved of a Presidential system, he did not pen down this badly written eclectic document which sought justification for constitutional change from non-descript states, dictatorships and banana republics88'. Law Minister Gokhale may have written it. But it was probably the work of some hack (in the Congress or Law Ministry) which had approval from the highest quarters. The case for a Presidential system collapsed like a pack of cards when the leading provincial Congress party units refused to support it — for fear that it would affect their own provincial importance and pre-eminence. Taken aback, Mrs. Gandhi appointed the Swaran Singh Committee to consider changes, in the face of some rebellion even from lawyers sympathetic to Congress. The ultimate outcome was the Forty Second Amendment, which extended the life of parliament, consolidated the Emergency including permitting declarations for part of India and further circumscribed fundamental rights whilst restricting and ousting judicial review89. The debate on these far reaching amendments was stage managed — this being rendered easier by a boycott of parliament by the Opposition parties. When the Janata returned to power, it immediately restored the fundamental freedoms denied during the Emergency as well as and judicial review90. But, faced with a Congress majority, it had to negotiate for a full fledged repeal of the Forty Second Amendment. Thus, even after the Emergency, some provisions (including the power to impose an Emergency on a part of India) were retained. The changes to preventive detention provisions was enacted but not brought into immediate effect by the later amendment to the Forty Second amendment. Ironically, these new and better provisions on preventive detention are still not operable. The government was given a discretion to notify their coming into effect when the government thought fit. Successive governments since 1978 have still not notified these amendments, aware that in a significant and questionable decision of 1982, the Supreme Court expressed its helplessness and refused to order their notification if the government in power was not willing to do so91. The Constitution was amended, but it remains the same.

In no time, the Emergency moved from arrogance to arbitrariness; and, from arbitrariness to viciousness. Propaganda claimed that India now had a 'tough' government, and was no longer the 'soft state' capable of 'post office socialism' that it had been perjoratively described to be. But, the reality was more alarming. Thousands of persons were preventively detained without trial. A comprehensive censorship was imposed on the press, writing and the media92. Police torture and custodial crimes increased. Mrs. Gandhi's son Sanjay Gandhi took charge of many operations to impose forced sterlizations in the name of population control. The Congress party became the fiefdom of the Youth Congress led by Sanjay. Over night, the equations between party and State altered. San-jay's cohorts took over government at many levels, terrorizing local and other administrators into submission and dissolving the difference between 'private and personal influence' and the exercise of public power. This new form of politics continues to have a significant effect on Indian politics. What the Congress had done is to engage all the 'lumpen' elements of towns and villages and placed them in party positions. Consisting of toughs who depended on muscle and money power, the new party functionaries completely took over the administration which they terrorised and corrupted. This created the new basis for political parties to remain in power and creating vote banks for the future. After the Emergency, the Congress 'lumpen' form of politics was widely imitated. Today this 'lumpen' model is the order of the day. Every political party contains vast 'lumpen' elements who oversee and manage government and elections in ways that have perverted governance. The 'lumpen' domination of politics has had the twin effect of corrupting government as well as destroying the possibilities of viable democracy within and without political parties. The effect of this comprehensive lumpenisation on governance can be seen in the awesome verdict of the Vohra Committee Report of 1995 which pronounced that Indian governance at virtually all levels in some areas and sectors is being dominated, and has been taken over, by thugs and gangsters93. This, amidst everything else, is also the insidious effect of the Emergency. By detaining activists, politicians, lawyers and pressman, the Congress had made some permanent enemies. But, in their place, and after digging into the very dregs of Indian society, it has also made new friends who continued to 'dominate' Indian politics and administration.

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With politics in retreat and the press-muzzled, the people turned to the judiciary. The real claims made on the judiciary were very modest. Given the jurisprudence of the day, a serious attempt was not made to question the basis on which the Emergency was declared. These were essentially 'political questions' which most judiciaries are normally loathe to go into except on very limited jurisdictional grounds. Such issues are regarded as non -justiciable. Today, following the judgment in the President's Rule case (1993)94, the judges may be a little less forbearing and might consider whether some reasons do exist for declaring some kind of Emergency. But, given the various judgments in even that case, it is doubtful if the judiciary would enter into too extended an investigation of the need to impose 'emergency rule'. Under the Constitution, it is for Parliament to approve or disapprove the justification and continuance of an Emergency. And, if Parliament approves, it was not for the judiciary to become a back-stop parliament. But the judges can examine the declaration of 'emergency' to test its constitutionality. In the Emergencies of 1962-8 and 1975-77, the judiciary was not called upon to enter into such a basic exercise.

During the Emergency, the only demands made on the judiciary were to examine excessive and perverse uses of administrative power. In the way of the judiciary stood two inter-connected restraints: the first was the suspension of the right to life and liberty and the fundamental freedoms for the duration of the Emergency; and, the second was the ouster of judicial review. These are formidable but not insurmountable restraints. When these matters were pending in the High Courts, three of the Southern courts accepted these restraints. But, nine of the Northern High Courts demurred to retain the power to consider whether the orders of administrative preventive detention were validly made and, perforce, whether they were tainted with malafide. When the matter reached the Supreme Court, the judges split 4 against one. Chief Justice Ray and his successor Justice Beg (as he then was) followed the classic path of saying their hands were tied95. Unfortunately Beg J. went further to declare that no serious injustice was perpetuated because the "detenus are well housed, well fed and well treated (in a manner that) is almost maternal — (e)ven parents have to take appropriate action against those children who may threaten to burn down the house that they live in" 96. Clearly, India was -one big happy family! Justices Chandrachud and Bhagwati were more troubled — with Justice Chandrachud declaring after the Emergency that he had made a mistake97 and apologizing to the nation for his mistake; and Justice Bhagwati taking the view that his judgment was technically correct98. Justice Khanna dissented, to be rewarded by history as well as a portrait in Court No. 2 of the Supreme Court (where he normally sat) for his defense of democracy and the rule of law 99. The reaction of Indira Gandhi's Emergency regime was more severe. Justice Khanna would have been Chief Justice if normal conventions of appointment were followed. His claims were superceded. Justice Beg was prematurely appointed Chief Justice of India in his place. As far the Preventive Detention case is concerned, the controversy over whether the majority or the minority was right is not as complex as it might appear. Within the conspectus of the limited arguments that had been advanced, the Courts were not being asked to pass a verdict on either the Emergency or even the reasonableness of each detention. As long as they were in situ and functioning, it was considered to be their duty to examine whether the right authority had in fact made the specific order of detention in question without taking into account patently malafide considerations. An example will illustrate the narrowness of the inquiry which the judiciary was invited to undertake. Suppose the statute authorised that a detention order could only be made by a Magistrate in respect of a person who had committed arson and the text of the impugned order showed that it had been made by a private individual because he wanted to covet the detenu's wife. Such an order — of the kind described above — would have been patently illegal. If no one — not even the judiciary — interfered in such a case, the result would be a total breakdown of the rule of law. Anyone could make any order they wished and get away with it. In abandoning even a narrow judicial review in the Preventive Detention judgment of the Supreme Court of 1976, the majority judges abandoned the rule of law; and, inevitably, the very basis of constitutional governance. The only possible salutary effect of the judgment may have been to increase discontent, hasten the end of the Emergency and effect Mrs. Gandhi's defeat at the post-Emergency polls of 1977 when her Congress was routed and she lost her own seat in Parliament.

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Even though Mrs. Gandhi represented the Emergency (1975-77) as the culmination of Nehru's developmental triumph, it proved to be a hopeless disaster. Indira Gandhi raised the slogan "People say 'remove Indira', I say 'remove poverty'. She sought to legitimize the emergency by claiming a higher benign and benevolent purpose for it. There was no doubt that the Indian state had failed to deliver development goals because its politics had corrupted the administration; and the administration had absorbed all the misleading qualities of ineptitude, corruption, lack of constancy of purpose and entropy. The Administrative Reforms Commission (1966-68) had written many reports to rewrite administrative goals and realign the administration to its designated goals. But Mrs. Gandhi's reasons for declaring the Emergency were not to tone up the administration. There had been a rising discontent against the manner in which the Congress had subsumed governance. A call to this effect was given by J.P. Narayan and others. Mrs. Gandhi felt threatened that Congress misrule would be exposed. Events moved faster than she anticipated when she was unseated by the Allahabad High Court judgment of 1975. Personal fears and public justifications were fused in ways that took all the honesty and elegance out of Nehru's plans for the nation. After the Emergency (1975-77), no one believed what the government told them. If Nehru and his image had enthused a nation with optimism, this enthusiasm wizened into hard boiled cynicism The State could no longer be trusted. The golden age was over. It came to an abrupt halt. People would have to fight for their own rights, locating their struggle in whatever was available -whether within or without the State.

India's million mutinies confront the ConstitutionIt was inevitable that India's million mutinies would — sooner or later — confront the Constitution. The term 'mutiny' invokes concern, even alarm. Reference to a 'million mutinies' suggests chaos100 But, I use the word 'mutiny' in a benign way. It all depends on how we view people and society. Those who organise society like to project particular kinds of activity and behaviour as normal while allowing for standard deviations from the norm. In this high consensus view, those who do not conform to the norm are off-beat, deviants or criminals — often to be dealt with severely. A more indulgent view of human behaviour, which sees societies bubbling with excitement, contention and even violently expressed differences, accepts cultural and social plurality as part of the incidents of society which is portrayed as being characterised by individual and social diversity. What, then, is a mutiny; and, who is a mutineer? In an intolerant society which allows its human bio-diversity to breathe, even strongly violently expressed difference may be taken as part of the free expression of the volatility of difference. When I borrow the metaphor of 'India's million mutinies', I am mindful of what these 'million mutinies' might do to a fragile society. Indian society houses an enormous amount of free expression and discontent despite pressures for conformity from traditional norms and the day to day requirements of contemporary society. At one level, there is fear that the rising discontent has reached difficult and violent proportions. At another level, it is felt that the years of planned development culminating in the Emergency (1975-77) were too obsessed with engineering change to pay attention to the many voices that emanate from this unique sub-continent. The planning commission model of governance was top-down and devised to produce electoral dictatorships. The voices and demands of ordinary people were silenced by reified appeals to India's ‘tryst with destiny'. By 1977, the people of India seemed to have lost faith in this top down model of governance. Politicians had usurped the State and personalised its power. Activists were sought to be suppressed. The press was silenced. The judiciary, which had housed many demands from many dissident quarters, had failed to reach ordinary people; and, in any case, was accused of pusillanimity during the Emergency. Where were ordinary people to turn'? The Constitution had guaranteed human rights to individuals and groups, But, these rights were to be exercised within the top-down approach to governance which saw people as the beneficiaries rather than active participants in democratic discourses. Elitist versions of democratic governance had little room for involving people in governance - even if their human and other rights were protected. The Indian Constitution reflected these elitist approaches and — by the end of tile Emergency — was found seriously wanting. This is precisely what the Gandhian challenge to the Indian Constitution

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seemed to be, and one which has troubled judges and jurists.

If governance was not the exclusive privilege of politicians, to whom were ordinary citizens to turn to ? Could the Constitution of 1950 house their concerns? If so, how? And in what forum101?

Till the end of the Emergency, India had seen its governance hijacked by the powerful elements of society. If the democracy of ordinary people found expression, it was in the activism of everyday life. Some of this activism was institutionalized by various groups, which had been given the omnibus title of NGO (non-governmental organization). We are not here concerned with how the State, international funding organization and activists themselves seek to institutionalize and control activism. This is an area that needs scrutiny. Peoples' struggle is expressed in may forms and is to be found in many locations. As these struggles continue, they are noticed. Some are ruthlessly suppressed — no less by the State as the powerful forces against whom such struggles are directed. Some struggles find sympathy and support from the media and a large and watchful liberal middle class. For reasons of its own, it is the judiciary in India that opened its doors to provide a constitutional foothold for peoples' activism through the public interest law movement which created new possibilities. India's million mutinies were all but ready to confront the Constitution, which was called upon to recognise that many of these mutinies were not subversive, but righteous claims to democratic justice102.

India's public interest law movement was — and remains — a judge led movement supported by middle class liberals and left wing activists103. In the past, the 'left' had been resistant to the possibilities of the use of law and law courts. The 'left' was committed to the view that law was a bourgeoisie concept and an expression of class interests. A Marxist Chief Minister of a State was punished for contempt of court because he said that the Supreme Court was class biased 104. The Supreme Court took this opportunity to give him a long lecture on Marxism and reduced his fine because he had misunderstood Marxism. Misunderstanding Marxism was clearly a ground for mitigating criminal sentences. Even though classic Marxism had suggested that many forms of government (such as 'law') get locked within their formal structure and are not always immediately amenable to direct class manipulation, the experience of various Marxist regimes left the 'left' embarrassed. The famous expose of the Stalin regime at the Twentieth Congress in 1956 and the rolling in of Soviet tanks in Hungary and Czechoslovakia in 1956 and 1963 made the 'liberal' left pause. When EP Thompsan wrote his famous analysis of the working of the Black Act of England in his Whigs and Hunters, he espoused the view that the 'law' was a double edged weapon which could be used by the poor and the disadvantaged for at least commutative purposes to mitigate injustice — even if it could not effect a radical re-distribution of wealth, resources and opportunities in society105.

Slowly, in Europe and elsewhere, the 'left' began to view 'human rights', law and policy as an important armoury for struggle. By its own logic, human rights imposed a plimsoll line below which state and society could not go; and, in its wider implications imposed positive welfare and other egalitarian achieving obligations on the State and society. In India, it was the judges of the 'left' (whom I affectionately refer to as the gang of four) who invited their colleagues and activists to use 'law' and 'human rights' as a vehicle for fighting oppression; and, to locate their struggles within law courts — and, especially, the higher judiciary led by the Supreme Court. The gang of four -consisting of the Justices Krishna Iyer, Bhagwati, Chinappa Reddy and Desai —re-wrote the jurisprudence of the Supreme Court. They had realised that Nehru's genuine promise of egalitarian liberation through the State was spent out. Committed to giving an expansive interpretation to developmental goals, programs and plans, the judges felt that it was very much the business of the law courts to mediate accountability and fulfil the egalitarian purposes of the Constitution within the framework of human rights and the rule of law.

The juristic techniques of the public interest law movement106 were fourfold. To begin with, the Supreme Court relaxed the rules of standing so that every bonafide person or group could approach the higher judiciary for redress for violation of fundamental rights and subversions of the rule of law. This meant that ordinary people could approach the Supreme Court and High Courts for transgressions of fundamental rights and the mal-use of power. The requirement that the person coming to the Court must be bonafide was crucial. In various cases, the Supreme Court affirmed the

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importance of this requirement to prevent private, litigants from abusing this exclusive public interest mechanism. Indeed, the Court refused to countenance even those petitions where the petitioner chose anonymity. The second aspect of Indian public interest law was a relaxation of the rules so that even a letter by any lay person would be enough to attract the jurisdiction of the court. That is why the new procedures have been characterised as the epistolary jurisdiction of the Court. The Supreme Court has a special cell to deal with letter petitions, and invites the Supreme Court Legal Committee or specially appointed lawyers to assist the Court in conducting public interest cases. Of late, the Court has also appointed a single amicus curaie to assist the Court in special matters, and shut out other voices, including those of other petitioners. This is an unfortunate development. Other voices should be heard; and, may have more to offer the Court. The third aspect of public interest law has been an expansion of the various provisions of the fundamental rights chapter so that the right to life and liberty and other provisions of the Constitution have been widely interpreted to include the right to livelihood, health, environment, good governance according to law and many other social, economic and political rights. The fourth aspect of Indian public interest law is the appointment of investigative commissions to find out the correct facts and examine the implications and impact related to tile issues before, the Court. Such commissions or committees have inquired into aspects of bonded labour, land, rights, environment and health hazards and many other issues. The fifth mechanism evolved by the Court is to make and monitor schematic orders. Thus, in environment cases - by way of example — the Court has given detailed directions on what should be done. If the simple report back on compliance is not deemed to be enough, the Court has appointed oversight commissions and committees. In these ways the Courts have not only opened up their use; but also devised ways and means to make their intervention effective.

Indian public interest law became immensely successful in terms of the scale and extent of its intervention. Beginning with issues of prison and jail conditions107, it extended to social issues like child and bonded labour'108, the right to health and the rights of the mentally ill109, mining in the Himalayas and in national parks110, preventing pollution in Delhi111 or around the Taj Mahal112 or the protection of India's forest wealth and the coastal zone113. Recently, the Court has also ruled on the corruption of the administration; and, more significantly, on ensuring that powerful politicians, bureaucrats and others are duly prosecuted and answer to criminal charges and the law114. It is not surprising that public interest law cases have not just excited controversy, but also resistance from the powerful interests who have been adversely affected by its investigations and decision making. The criticism has taken many forms115. At a social level, the public interest law movement is seen as reposing power in a small elite group of lawyers, activists and judges who have been accused of "refurbishing bankrupt images of themselves116. Arguendo, good activism is not a substitute for bad governance. There is no doubt that, like any other process, public interest law has attracted use by a large number of persons. It is pejoratively referred to as "publicity interest litigation'. India's NGO movement is possessed of great rivalries and ridden with people who have exaggerated opinions of themselves. It is also true that there are many instances were the Courts have been careless — even peremptory — in their handling of public interest cases. But, by and large, the process has not been abused, produced beneficial results, reinforced democracy and the rule of law and placed the State, its working and the public interest under a credible peoples' vigilance.

But, if public interest law has created a new forum of accountability, it has also altered the balance of power between government and the judiciary. In more dramatic indictments, the judges are accused of taking over governance under conditions where they are not accountable. Confusion finds supportive evidence in cases where the judges have gone over the top, creating parallel monitoring mechanisms, altering settled interpretations, crafting new legal rights and duties and enacting laws in the multitudinous ways in which judicial creativity drifts into law making. There are several justifications made on behalf of the judiciary. By and large, the judiciary has been restrained, recognizing that it must not usurp the determination of political questions and confine themselves to issues of legality, legal irrationality and procedural impropriety. They have interpreted the Constitution expansively but not without justification or help from the text. In situations where the rule of law and the legitimacy of the constitutional enterprise were themselves in jeopardy, the judges have

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been more insistent and creative in their intervention. Difficult cases have called for wider and more effective action. These instances have situational justifications, It is also not entirely correct to say that judges are not accountable for their decisions. It is true that judges are not accountable in the same way as elected representatives. But, it is the manner in which they work and justify decisions that makes them answerable to the law and the principles that the law is based on. Hearing and arguments are in open Court: In fact, public interest law has made judicial processes more open, democratic and participatory. When judges decide matters, they do so with reference to law and. legal principles. Judicial decisions are supported by detailed reasons and reasoning. No institution of governance is subject to such stringent requirements of accountability'117. There is a justifiable concern that standards in the judiciary are falling: and errant judges cannot be disciplined for their misdemeanours or removed for corruption. India needs to devise new mechanisms to deal with unworthy and untrustworthy judges118'.

It would be wrong to view the public interest law movement as doing no more than making the judicial processes before the higher judiciary more flexible. Inherent in Indian public interest law and the jurisprudence that it has generated is a reassessment of the Constitution. If the original design of the Constitution sought to over-empower the State to achieve developmental purposes, its failure raised questions which the public interest law movement seeks to answer. We get back to our primary intuition that Constitutions are not made for politicians and administrators but for people. As India's 'post Emergency' jurisprudence has meandered to the end of our millennia, it has redefined the Bill of Rights to make it accord with the needs and aspirations of the people. But, it has gone one step further in reassuring ordinary people that there is no dearth of the mechanisms that can be created in order to make government accountable to them. Governance will not fall in the hands of ordinary people without a struggle. Faced with a more responsive constitutional dispensation, the people may be more inclined to locate their struggles within the processes and institutions of the Courts. No doubt, all of India's million mutinies cannot, and will refuse to be, housed in the Constitution. But, the constitution is now in a better position to make a more meaningful democratic invitation to people to use its processes.

THE CONSTITUTION AND ITS INSTITUTIONS OF GOVERNANCE

Government by InstitutionConstitutional governance creates a maze of institutions and processes, which congeal power and enable as well as discipline and check its exercise. If each institution keeps another in check, it is also quite capable of becoming a voice unto itself. Government by institution was invented not just to maintain a check and balance over each other, but also to constitute conurbations in which power could be captured for the benefit of some to the exclusion of others. Once captured in this way, the institutions and processes within which it is concealed acquire their own relative autonomy. Each institution plays by the rules, but, the rules are crafted carefully to ensure that the institution works more favourably for those in power. These processes are necessarily subtle. They ensure that power is exercised by some in favour of themselves and others according to a system which appears to be fair. This is the domain of 'government by institution'. According to Shaw's Napoleon, such a method of governance is peculiarly an ingenious invention of the British:

"Not, because the English are a race part. No Englishman is too low to have scruples: no Englishman is high enough to be free from their tyranny. But every Englishman is born with a certain miraculous power that makes him master of the world. When he wants a thing, he never tells himself that he wants it. He waits patiently until there comes into his mind, no one knows how, a burning conviction that it is his moral and religious duty to conquer those who possess the thing he wants. Then he becomes irresistible. Like the aristocrat, he does what pleases him and grabs what he covets: like the shopkeeper, he pursues his purpose with the industry and steadfastness that come from strong religious conviction and deep sense of moral responsibility. He is never at a loss for an effective moral attitude. As the great champion of

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freedom and national independence, he conquers and annexes half the world, and calls it Colonization. When he wants a new market for his adulterated Manchester goods, he sends a missionary to teach the natives the Gospel of Peace. The native kills the missionary: he flies to arms in defense of Christianity; fights for it; conquers for it; and takes the market as a reward from heaven. In defense of his island shores, he puts a chaplain on board his ship; nails a flag with a cross on it to his top-gallant mast; and sails to the ends of the earth, sinking, burning, and destroying all who dispute the empire of the seas with him. He boasts that a slave is free the moment his foot touches British soil; and he sells the children of his poor at six years of age to work under the lash in his factories for sixteen hours a day. He makes two revolutions, and then declares war on our own in the name of law and order. There is nothing so bad or so good that you will not find Englishmen doing it; but you will never find an Englishman in the wrong. He does everything on principle. He fights you on patriotic principles, he robs you on business principles; he enslaves you on imperial principles; he bullies you on manly principles; he supports his king on loyal principles and cuts off his king's head on republican principles. His watchword is always Duty; and he never forgets that the nation which lets its duty get on the opposite side to its interest is lost."119

We need not concern ourselves too deeply with an Irishman's conceited attack on the English, using a Frenchman as his mouthpiece. But, what is said is a good reminder to the highest of constitutional pundits of the most elementary insights into how power structures are created and maintained.

India's Constitution is the longest and most intricate in the world. Apart from making standard form provisions in relation to the legislature, executive and judiciary, many other institutions are created including Finance Commissions, Public Service Commissions, the Election Commissions. Panchayats and many more. Intricate processes are woven into the working of each part of the Constitution whether it concerns the relationship between the President and his Cabinet or any other. The President has the right to ask for information; and, can even return a matter for reconsideration to his cabinet at least once120. The Union and States have all kinds of complicated revenue raising powers, the proceeds of which may or may not be shared equitably. The fact that the Constitution requires the Union Parliament to affirm the exercise of Emergency powers did not prevent the Emergency of 1975-77 or the imposition of President's Rule which suspended the working of parliamentary democracy in various States and Union Territories on around 110 occasions121. India inserted an anti-defection law to prevent political instability induced by people crossing the floor for the price of office or a suitcase of monetary favours. However, this has not checked the tide of defections in any appreciable measur122. It is not really possible to describe the working of the Indian Constitution without going into intricate details of how the Constitution has actually worked. Even when faced with a decline of some pivotal institutions, various other institutions have managed to hold their own.

The Parliamentary system of democracyAt the core of India's parliamentary democracy is the electoral process and the working of the legislatures 123. To mobilize an election in India, involving a population of almost a billion with less than half entitled to vote, almost defies imagination. India has an elaborate election law with very detailed provisions to prevent criminals, anti-secularists and others from contesting elections; and to ensure that elections are conducted in a fair manner with a judicialised procedure to decide disputes arising out of elections. Yet, over the years, the Indian electoral process has become tainted in more ways than one. The selection of candidates by political parties has included people accused of various crimes, including criminal intimidation, murders and corruption. Until they are convicted they cannot be prevented from standing for election as long as they are supported by powerful interests and politicians. Muscle, and money power and appeals to communalism are beginning to dominate elections. Amidst all this, the Election Commission has been in turmoil because of the

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vanity of one former Chief Election Commissioner who had to be told how to run a collegiate Commission by the Supreme Court. By and large, the Supreme Court has laid down many norms to ensure that elections continue unhindered even though it has been justly criticised for taking the view that an appeal to Hindutva is an appeal to Indianess and not Hinduism 124. Even though parliament needs to take a fresh look at the law relating to disqualifications to ensure that Indian legislatures are not tilled with thugs and criminal types, neither the legislature nor the courts can cleanse this aspect of the electoral process as long as political parties enter such candidates into the fray and the people elect them for want of a meaningful choice. Whether the proposal to mandate that one-third of the seats in all legislatures should be reserved exclusively for women will pass muster remains to be seen. Women should be certainly brought into mainstream politics125. But such allocative formulas guaranteeing seats for .particular groups cannot cure the fundamental mal-use of corruption and violence that is creeping into the electoral process and its legislatures.

It is not surprising that the quality of legislators has declined. This can perhaps, be illustrated by looking at the profile of those elected to the lower house of the Union Parliament, the Lok Sabha. Even if some legislators now claim better educational qualifications, this may be because there has been a decline in educational standards. Bad legislators make bad legislatures. Democracy will fail if it cannot invite representatives from society who can represent the people in an informed and constructive way to participate in its processes. This does not mean that Indian legislatures should be dominated by educated middle class professionals. India has produced a rich crop of politicians who have been able to create India's Constitution, discuss policy and enact legislation in a responsible way. What has declined is the quality of the discourse and the manner in which it is conducted. In one sample of 300 odd statutes debated in parliament in the early nineties, it was found that the average time spend by Parliament on bills which became statues was 0.65th of a parliamentary day in the Lok Sabha and 0.72nd of a parliamentary day in the Rajya Sabha126. It has to be borne in mind that a parliament in India is full of many excitements; and is not exclusively devoted to legislation. The text of Indian legislation is becoming more and more mechanical. If parliament is unable to devote time to legislation, it was even less able to monitor the work of executive ministries. From 1992, the Union Parliament has introduced a system of Select Committees, which both monitor the work of the Ministries as well as scrutinise legislation. A democracy works because people keep their representatives responsive and informed. These traditions have still to be developed in, and amongst, Indian legislators. It is the decline of parliament as a forum of legislation and accountability that has made people turn to the judiciary.

Instability haunts Indian legislatures. Between 1950-1967, Indian legislatures produced reasonably decisive results. In 1957, the electorate of Kerala returned a Communist led - government into power. By 1959, the Nehru government — with Mrs. Indira Gandhi as President of the Congress — dismissed the 'left' government on the basis that it was not able to cope with problems of public order, which had been created, inter alia, by the Congress which was ruling at the Centre in Delhi. If Nehru — prompted by Mrs. Gandhi — could be unfair, there was much to fear when Mrs. Gandhi was returned to power. The 1967 elections gave Mrs. Gandhi considerable opportunities to induce instability even where none existed. In 1967, the elections did not return Congress ministries into power in various States. If the electorate had been indecisive, the Congress compounded this indecisiveness by inducing defections, using centrally appointed Governors of States to place difficult conditions on Opposition ministries, appoint Congress candidates as Chief Ministers or impose President's Rule wherever the Centre thought fit. This last ploy was particularly useful when Congress Ministries were unstable, but the Congress were not quite ready to grab power in that State. Blaming the situation rather than itself, Mrs. Gandhi's government appointed the Bhagwan Sahay Committee of Governors (1970-72)127, which affirmed the rottenness of what was going on and hoped for the best. The tide of defections has continued. The imposition of President's Rule also continued alongside. In 1985, India enacted an anti-defection law, which tried to impose party discipline on irresponsible voting by legislators, but permitting defections of more than a third of the party. The Anti-Defection law narrowly escaped being struck down as unconstitutional by the Supreme Court, which excised those portions which ousted judicial review. But, the reported cases

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themselves show that while being something of a restraint, the anti-defection laws have not worked too well. Chief Ministers with absolute majorities fell due to rebellions in their own parties. The one-third rule was interpreted by Speakers to permit the one-third majority to be gathered over time so that bad mathematics rather than good morality ruled the roost 128. Adding grist to the mill, the Supreme Court has interpreted the privileges of parliament so that bribes given to defecting legislators do not constitute an offence under the Prevention of Corruption Act in so far as the recipient of the bribe (namely, the legislator) is concerned is immune from criminal prosecution. Bribe givers are criminals; bribe takers are not. Worse bribing legislators, even though a crime, is a legitimate democratic practice!129 Instead of trying to resolve the problem from within, certain political parties — like the Hindu BJP — who feel that their share of the popular vote is higher than their representation in parliament-argue that stability will come if some system of proportional representation is introduced. Unfortunately, such proposals are conceived as political ploys rather than serious reforms130. They will not solve the problem of stability, but only increase communal divisions and polarise the electorate. The real problem is that India's political parties are not democratically run, encourage unbridled and unscruplous opportunism and collect within their fold and governance the worst lumpen elements of society. No law can outlaw this lumpenization of Indian politics if politicians encourage it and the people cannot prevent it.

The geographic distribution of powerIndian federalism is top-heavy in its design. The distribution of power between the Union and the States is heavily weighted in favour of the Union, which is also reposed with the residual power to legislate on subjects not enumerated for division and has priority over matters on the concurrent list. Unfortunately, there are many matters (such as industry and mining amongst others) where the State has ostensibly exclusive powers but subject to an overriding regulation by the Union. The Union, which has a stranglehold on even' those subjects where the State should have autonomy, has not used its powers lightly. It has virtually taken over the political economy of the States. With the advent of the World Trade Organization, set up as a consequence of the Uruguay Round under the General Agreement of Trade and Tariffs (GATT), this control will intensify because the Indian Constitution collapses federalism altogether to effect the implementation of international treaty and such obligations.

This stranglehold is pinned down in distinct ways. Politically, the Union has ruthlessly used the President's Rule provisions to remove elected governments of the States at will. A perusal of the use of the provisions shows that just about any pretext has been used to topple State Governments, including allegations of corruption, alleged breakdown of law and order, lack of absolute majorities or the indirect loss of mandate of the people. In 1977, and again in 1980, President's Rule was imposed on nine major States because the General Election brought a party in power different from those in these States. The decision of 1977 was blessed by an undivided Supreme Court and paved the way for judicial restraint when this awesome power was used in 1980131. Over the years, various High Courts were indecisive on the extent to which judicial review of such decisions would lie. In the President's Rule case (1993),32 Supreme Court affirmed that judicial review would lie, but was divided on the extent of the review, with a strong minority taking the view that — except in cases of malafide exercise of power - it was not for judges to substitute their political judgment for that of the executive. The majority countenanced a wider ranging review and — taking the cue from Pakistani courts — threatened to restore governments and assemblies where President's Rule was unconstitutionally declared even if it had been ratified by the Union Parliament. The present position is far from satisfactory. Union governments continue to wield the power to impose President's Rule as a political threat. It seems strange that if parliamentary democracy in the Union can be continued without reference to Emergency Rule, the very same system of government in the States is not permitted to do so. If there is any real threat to security or public order, the Constitution contains many provisions to enable co-operation between the Union and the States to deal with such problems. If worse comes to worse, after the Forty Fourth Amendment of 1979, a partial emergency can be imposed in a part of a State without suspending parliamentary democracy in that

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State. In my view, the President's Rule provisions should be abolished altogether. Borrowed from the imperial Government of India Act of 1935, they were retained as a safety valve, to be used in emergent circumstances. Unfortunately, they have been used again and again to subvert both democracy and federalism.

The Union's domination of Indian federalism is reinforced by the administrative and financial arrangements of the Constitution. Administratively, India is run by an All India service, selected centrally and placed in State cadres. The States are free to create their own services, but it is the centralised services, which dominate the administration. Not surprisingly, the officers themselves look to the Union rather than the State governments for direction and leadership. Financially, the Constitution has created a complex system of revenue raising powers. The more lucrative revenue raising lies with the Union which also controls the levy of the direct income and corporate tax and the more important indirect taxes, leaving the States to face the brunt of facing peoples' wrath in respect of those indirect taxes which immediately affect prices. Once collected, the States get a share of the taxes on the basis of formulae evolved by the Finance Commission, which favour the richer and more populous States. A perusal of the allocation of public finances between the Union and the States finds the States unable to protect their financial autonomy - with insufficient revenue raising powers, subject to an inadequate distribution of finances and in a position of financial indebtedness to the Union. This situation is unsatisfactory. Some of India's States (such as the State of Uttar Pradesh with its 140 million populace) are demographically larger than some of the largest States in the world. The lack of financial viability results in irresponsible governance. This is manifest in many scams where States political leaders have helped themselves to programme funds: The pleas for a more equitable financial federalism was made by Tamil Nadu in 1971, West Bengal in 1978, the Sarkaria Commission in 1985 and has been repeated by State politicians since133. Nothing has happened.

Within the Indian federal system, people had no control over the governments, which affect their lives. One of the main reasons for this is the relative collapse of local government in India. This was sought to be rectified in 1992 by making sustained local government a mandatory requirement of the Constitution itself. In one sense, the 1992 amendments seem to inaugurate a three-tier federalism134 This is a new concept which needs to be developed further so that constitutional theory and practice does not view democratic local government as a statutory extra, but a mandatory part of democratic good governance. In another sense, the panchayat system of local government is less a third tier in a federal set-up, and more a devolution of power necessitating consultation of pan-chayats in evolving and implementing programmes. Yet despite the many limitations, panchayats are slowly filling a democratic gap, acculturating peoples' power around them and taking stock of governance at their level. Within these panchayats, the Constitution has given special representation to untouchables, tribals, other backward classess and to a significant extent to women, who are designated to challenge the existing status quo. Reports on the panchayat experiments are mixed. But, it has, and will, make a difference.

In the light of all this, it is often asked whether India is a truly federal system 135. There is no doubt that the Indian federal system weighs heavily in favour of the Union, which has draconian powers to even suspend democratic governance in the constituent States, No less, Indian States are not assured territorial integrity in that boundaries of a State can be altered by Parliament after obtaining a supporting resolution from the legislature of the State. It has been argued that it is the denial of the territorial integrity of the States that cautions the description that the Indian Constitution is 'quasi federal' rather than federal in nature. Although the constitutional provisions are extremely wide and allow for the theoretical possibility of India being a Union of just two States, this is not the way things have worked out. The geographical boundaries of the States were left flexible because the geography of Indian federalism had not quite been worked out when the Constitution came into effect. After taking into account the accession of erstwhile Princely States to independent India, the Constitution had made provision for three kinds of States. It was only in 1956, that the new federal structure of dividing India into the Union, Union Territories and the States was devised. There is little justification for creating the intermediate category of a Union

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territory, which has democratic components but is run by the Union. It is time, this category is eliminated and the Union Territories converted into full-fledged States — as some have been. In practice, the Union parliament's power to re-organize the territorial extent of States has been creatively and democratically used. Over Nehru's opposition, the State of Andhra Pradesh was created for the Telugu speaking people. In time, language and culture became the basis for breaking up States into smaller units. Bombay was divided into Maharashtra and Gujarat on a linguistic basis, as was Punjab into Haryana, Punjab and Himachal. Cultural factors were borne in mind whilst restructuring the States of the North East; and, to give recognition to the Konkani speaking State of Goa. The re-organisation of States, which will continue, has given the units a social identity which goes a long way to seeing India not just as a Union of States, but a veritable civilization consisting of many peoples and many cultures.

If Indian federalism has worked well, it is because the Indian States have been divided along linguistic and cultural lines and have acquired strong identities. This is not a weakness, but a strength. Threats of secession plague the polity. A veritable war had to be, and continues to be, fought to keep Punjab and the North Eastern States within the Union. Pakistan supported insurgency has dismembered Kashmir and enveloped it in a low intensity war. Permitting secession would question the very basis on which the Indian constitution is founded. The working of Indian governance package is enough proof to demonstrate that minorities and minority cultures flower within India, which has ensured minority protection and enabled the vast diversities of plural Indian social, cultural and religious life into creative self-expression. To that extent, India continues as an example to most, if not of all, the nations of the world. India does not consign people to a melting pot in which they fuse their identities, but allows them to retain the unparalleled diversity for which India is justly proud and famous. At the same time, Indian federalism is elliptical, over-centered and not rooted in peoples' power. This stems largely from the design faults that was written into the original constitution. Time will not cure these defects which have to be examined. But, the panchayats have brought some element of direct democracy, which will alter the top-down Indian model of governance to allow local democracy to build India's future by directly involving people in governance and allowing them to take charge of their own affairs.

Judges, the Kali-yuga and Human RightsA famous shaloka taken from the Dharmasastra - variously attributed to Parashara, and, sometimes even Manu, States

"Anye krita yuge dharma, treta yam dvapare, pare Anye kali yuge, nrinam uga rupa nusaritha"136

In a cyclical view of the epochs of life, it is stated that the dharma of the krita yuga are different from the dharma of the dvapara yuga or the treta and kali yugas — each yuga has to devise its own dharma. We live in days of chaos, violence, corruption and greed. This is the kali yuga. Our Constitution was designed to bye-pass the kali yuga as it transited from the yuga (where our colonial masters left us) to the egalitarian krita yuga of the future. Unfortunately, India sinks deeper and deeper into the kali yuga. While the laws of the kali,yuga were created by politicians and legislature, it was for judges to devise the dharma that prevents the further regression of values. I am deliberately making a distinction between 'law' as a system of rules and dharma which are rules of righteousness. This, distinction is fundamental to constitutional governance. Without dharma, no constitution can survive. A constitution consists of those norms and practices by which the constitution and governance has to be administered in a fair, equitable and just manner. Some of these practices take the form of identifiable conventions; some do not. Some may be declared and enforced by law courts; others may not be justiciable. Constitutions will surely lose their soul if they are seen as a maze of rules. The tragedy of the Indian Constitution is that constitutional power has often been plundered at will. At the end of a study of the use of the President's Rule provisions, I expressed concern at the damage caused by greed and unbridled ambition when exercised without reference to the institutional morality that makes good constitutionalism possible:

"In the end, however, the continued use of President's rule reflects on the Indian people as a

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whole. Inevitably, this must include India's politicians. The form of parliamentary government adopted by the Indian Constitution can only work if certain political ground rules allow for certain predictable patterns of behaviour. The ground rules of Indian political system, as they are constituted today, work on the theoretical assumption that every sectional interest in India can be politically effective if it uses the political and constitutional structure expediently, ruthlessly and without obeisance to the operational morality that the parliamentary system envisages. This theoretical assumption rests on the premise that various interests seek a quick translation of their ambitions and frustrations into political reality even if this means breaking existing conventional norms of political behaviour. This idea of a "quick translation" of aspirations into reality induces a certain speed into system. The political system begins to reflect every twist and turn of political behaviour instead of stabilizing itself. In time, the system itself, having compromised all its ground rules, begins to weaken unless some alternative rules are found to replace the previous ground rules. In India today, we have compromised all our existing ground rules without providing an alternative."137 No doubt, irrespective of what they are called, even informal codes or conventions which prescribe how power is to be exercised, do not just discipline but also encode power. They cannot be taken as gospel. They, too, are the situs of struggle. But, a society without limit and without reserve invites violence, corruption, injustice and chaos. It cannot do without a dharma.

Despite claims to the contrary, judges and the judiciary were not the designated custodians of the dharma of the Constitution. Indeed, the fear that they might become just that, provoked the Constitution makers to restrict the scope of fundamental rights and organise their jurisdiction along the more modest lines of the English rather than the American judiciary. Judges were the custodians of the 'law' -including the law of the Constitution — and not the dharma through and under, which the changing aegis of the Indian governance would be run. The dharma of the Constitution was to be imbibed by all — citizens, non-citizens, statutory functionaries and constitutional authorities and enforced through self will and the will of the others. To borrow and adapt the words of a distinguished anthropologist

"There must be in all societies, a class of rules too practical to be backed up by religious sanction, too burdensome to be left to mere good will, too personally vital to individuals (and the system of governance) to be enforced by any abstract agency. This is the domain of (dharma)... (r)eciprocity, systematic incidence, publicity and ambition will be found to be the main factors in the binding machinery of (such a dharma)"138 It would be too severe an indictment to say that the dharma of the Indian Constitution is nonexistent. Over the past fifty years, many traditions have developed which are neither devoid of application or starved of application. As times past mediate times present and times future, these traditions alter — finding new substance and adapting to demands for change. But, if their very existence is put at risk, the Constitution will cease to exist — except in the Pickwickian sense of formally existing on paper. In our times, the Constitution has been put directly and indirectly at great risk.

What threatens the Indian Constitution is not just a failure of institutional morality, but the persistence of violence, state lawlessness and corruption. Long before Hobbes talked of a dissolute civil society in which life in civil society is 'nasty, brutish and short', lndia\Mahabharata warns us against societies which become a free-for-all which is subject only to matsya nyaya (the law of the fishes)139. We do not look too far beyond judicial decisions to indicate the level of State lawlessness and the increase of an endemic violence that has seized Indian society. We just have to recall the Bihar Windings 140 where the police remorselessly removed the eyesight of prisoners within their care, the Gajraula Nuns Rape case 141 coupled with the self confessed need for a new change in the law of custodial rape142, the manner in which prisoners are shackled to a point that the Supreme Court has issued instructions of handcuffing prisoners, the conditions in prisons and mental health institutions and the provision of health care 143. If the docket of the Supreme Court leaves us unconvinced, the tip of an awful iceberg is visible in the reports of the National Human Rights Commission and Reports on the Scheduled Castes and Tribes144. This is only a sample of State lawlessness. To

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this may be added what happens in civil society. Terrorism - local and political place - a large number of citizens in a position, where they known and recognize only a life of fear. This is quite apart from the fact that there is a war going on in one state, insurrection in several others and a breakdown of civil administration in various parts of the country. I do not want to convey the impression of an India in which a normal, peaceful life is an exception. I am simply trying to highlight problems, which exist in some measure everywhere including India's capital cities. The concern deepens when we read an official report tabled in 1995 which says that mafia elements have taken over the working of various levels of the administration. There could not be a more serious threat to the rule of law. When Nehru was confronted with the corruption of a Cabinet Minister of the Union and a Chief Minister of a State he established a Committee which led to the creation of a Central Vigilance Commission to check corruption. Today we are faced with a much more serious problem,. Even though Prime Minister Rajiv Gandhi was absolved by a joint committee of possible frauds in the Bofors case145, the emerging record suggests otherwise. There are scams such as the Fodder scam of Bihar - where the Chief Minister is said to have cleaned out the treasury of funds allocated for schemes for farmers. The Hawala transactions involved payment made to the most distinguished Indian politicians. This is alarming in itself. What is even more alarming is the refusal of investigative and prosecuting agencies to deal with these cases diligently. It is this kind of situation of State lawlessness, atrocity, corruption and ineptitude that makes ordinary people turn to the judiciary to intervene before they take 'law' into their own hands. As with public interest law generally, the judiciary has broadly taken the view that it will not take over the administration but monitor cases to ensure that the administration fulfils its functions and promises. In order to do this, the judges have sometimes gone over the top in order to deal with the exigent situation, but wisely devised solutions which are not usurpatory of executive governance or democracy. At times, it has over-stated its constitutional function and dharma. In the Hawala case, Chief Justice Verma declared,

"It is the duty of the executive to till the vacuum by executive orders because its field is coterminous with that of theJegislature and, where there is inaction even by the executive, for whatever reason, the judiciary must step in, in exercise of its constitutional obligations to find solution till such time as the legislature acts to perform its role by enacting proper legislation to cover the field."146

The judiciary is not the stop-gap repository of dictatorial power. Fortuitously, despite its strong and, usually, carefully worked through activism, it has also not tried or pretended to a greater role than it has been asked to perform, mindful of its limitations. That politicians and vested interests who have been at the receiving end of judicial decision making find judicial activism usurpatory is another matter.

It is not enough to recognise India's impressive human rights jurisprudence. The challenges of human rights are as complex as the society that produces them. India's human rights predicament canvass a wide field and deal with problems of poverty, health, education, endemic inequality, free speech and the other liberal rights that make democracy possible, the rights of vested interests, the enormous plural diversity that houses a richness unparalleled by any society and the arbitrariness, callousness and ineptitude of government which visit both the advantaged and disadvantaged alike. Transcending the textual and other limitations imposed on them by the Constituent Assembly, the contours of India's human rights jurisprudence have been widely cast. In the first place, the Courts have defined the rights and liberties sought to be granted fairly widely, to cover a range of socioeconomic rights and concerns which have been read into the fundamental rights chapter. It has, therefore, been possible for courts to intervene in matters, which concern the right to food, health, environment and good governance, in addition to the more traditional rights relating to equality, life, liberty, property and religious freedom. Thus, — and this is important for a country like India, -India's Constitution has slowly began to give co-equal importance to economic and social rights as well as civil and political rights without diluting the importance of the latter147. Secondly, the Court has evolved a rich theory of due process to examine whether the State has acted arbitrarily or reasonably. At first, the Supreme Court was faced with and accepted (over a lone dissent) the

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textual interpretation that the 'life and liberty' of a person could be taken away by 'any' procedure established by law'. This meant that any provision or procedure' duly enacted by the legislatures could infringe or take away the life and liberty of a person 148. No less, the 'equality' doctrine (once again amidst dissent) was interpreted mechanically so that once there was a broad classification of persons, things or purposes, the state could be arbitrary in its dealings with people within those classifications 149. Protest by a distinguished dissenting judge refused to accept that the doctrine of classification could not exhaust the principle of equality 150, which called for more rigorous inquiry and application. In time, the Supreme Court refused to read each provision of the fundamental rights chapter disjunctively and invented new principles of due process whereby all legislative provisions had to be shown to be procedurally and substantively 'reasonable' and tested for their arbitrary effect. Alongside, the Supreme Court developed a more aggressive administrative law which held the State down to its promises, examined the form, intent and effect of legislative and administrative action151 and fefused to shirk from assessing the legality of the exercise of any power hitherto thought of as a 'political' empowerment (such as the power to impose emergency President's Rule on a State or to 'pardon' a convict) 152. But, the Court have still some way to go to develop a consistent and comprehensive approach. Influenced too greatly by English approaches, it has often been persuaded to be less exacting than it should be. But, it has invented a large number of tests to deal with arbitrariness and to hold the State to its promises. It needs to break away to devise a wider due process to examine the correctness of the decisions of the legislature and executive more substantively153. In the third place, it has tried to build a theory of cultural rights and religious freedoms to protect the diversity of Indian life154. In this latter area, it has only been partly successful in protecting only the essential practices of faiths and permitted excessive governmental regulation and control. At the same time, a large number of temples have been placed under statutory control, taken over by the State under various statutes; and religious doctrine has been mis-interpreted by the courts155. Minority educational institutions were protected rigorously as long as the English speaking elite needed them. With the passage of time, these institutions have 'been subjected to increasing control and regulation. Judicial doctrine has supported this increasing control. These trends are unfortunate156. A civilization as plural and complex as India needs to be careful. To make the Supreme Court the chief arbiter and ideologue of what a faith means or to permit extended State management of religious and cultural institutions not only undermines secularism, but threatens to dry the fountain sources and the foundations of India's incomparable diversity. Finally, despite the lack of a programme to enable legal services, the system as a whole has developed viable remedies even though they are not wholly and equitably extended to all157. There is a great deal more that needs to be done in a society which explodes with greed and communalism. Despite its shortcomings, Indian jurisprudence has created enough of a critical discourse to sustain an on-going dialectic of rights, governance and justice.

Even though the judges have played an important role in sustaining constitutional discourse in India, all is not well with the judiciary. Good talent is not being attracted to the judiciary whose caliber and ethical standards are falling. While disciplinary proceedings can be taken against the lower judiciary the High Court and Supreme Court judges are only disciplined by their own consciences, informal peer pressure and an unworkable law of impeachment. India's judiciary needs to put its house in order. Judicial selection to high judicial office cannot be left to either the executive or the judiciary or a confused combination of both 158. A more objective and democratic system needs to be devised. Once appointed, judges should be subjected to disciplinary control by a system which would protect their independence but over-see corruption and indiscipline within the judiciary. As India's population has grown, so has the work of the judiciary. That, too, to proverbial proportions. Many government reports have eluded consideration or implementation. It is for the judiciary to examine what is happening to itself so that faith in its work is not undermined.

The dharma of the Constitution is intended to permeate all those on - whom the mantle of the Constitution falls. The judges are not the sole custodians of the Constitution, but, they can help to articulate its dharma. It is ordinary people who must ensure constitutional norms are observed in letter and spirit, bearing in mind that the Constitution is both a normative document expressing the

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hopes and fears of a civilization as well as a practical declaration constituting the means by which social, political and economic justice can be achieved by India's secular society in a democratic manner. Cheated by politicians and let down by administrators and judges from time to time, it is the people in whose name the Constitution has been declared who must protect and enforce the dharma of the Constitution in the many ways in which such enforcement is socially, politically and legally possible.

At the end of the millenniaThere is very little more that I can add. The year 2007 A.D. will see us mark the fifty seventh year of the republic and the constitution159. If constitutions are able to survive the ravages of time, it is because they are constantly revised, re-interpreted and re-considered. In the fifties, it was said that the Constitution had been stolen by lawyers, privileged and their lawyers and stood in the way of development. In the sixties, it was thought that the Constitution was susceptible to social engineering. In the seventies, it was hijacked from, and returned to, democracy. In the eighties, it was projected as a basis for social justice. In the nineties, it faced the challenge of atrocity, corruption and despair. It has taken each challenge as it comes constantly inviting ordinary men and women to participate in its working and animate its spirit. Given that India is not just a country or a nation but a veritable civilization, a great deal has been achieved; but a great more needs to be done. A Supreme Court judge was surely right when he said that a Constitution was never in a state of 'being' but always one of 'becoming' 160. For the moment, the Constitution can look around, assess what it has done and, then, pause. But, not for long.

NOTES1. After I had written the text and delivered this lecture I came across Ravinder Kumar's : "India A nation State or a Civilization State" " in the Nehru Museum Library (New Delhi Teen Murti House 1984), ibid -Secularism in a multi religious society" in S.C. Dube and V.N. Basilov: Secularism in multi religious societies (New Delhi, 1983) 21-36. India's unique secularism is a part of its constitution's civilization concerns - see R. Dhavan : "The Road to Xanadu: India's Quest for Secularism" in K.M. Pannikar (ed.) The Concerned Indian's Guide to Communalism (Delhi, Viking 1999) 34-72.

2. See S.K. Misra and V.K. Puri: Economics of Development and Planning (Delhi, Himalaya, 1999) 701-71 3 and the material cited there.

3. See Govt, of India : Census of India 1991 : Series 1 - Paper 1 of 199 S & Religion (New Delhi, Govt, of India 1995) journals.

4. Yagnapurushdasji v. Muldas (AIR 1966 SC 1119) and the comments of M. Galanter : "Hinduism, Secularism and Indian Judiciary" (1971) 21 Philosophy East and West 467; J.D.M. Derrett: "The definition of a Hindu" (1968) 70 Zeitchrift Verglerischende Recht Wissenschaft 110.

5. Taken from the Observer Statistical Outline (Delhi, 1997).

6. Article 344(1) and 351 read with the Eighth Schedule to the Constitution of India: and see S.K. Agarwala; "Jawaharlal Nehru and the Language problem in R. Dhavan (ed) Nehru and the Constitution (Bombay. N.M. Tripathi 1992) 134-160 and the material contained there.

7. See Salman Rushdie and Elizabeth West: The Vintage Book of Indian Writing 1947-1997 (London, Penguin 1998). The comment that there was lack of quality writing in the vernacular languages aroused angry responses from Indian Litterateurs.

8. It is only now the governance of Europe is being drawn together through the European Convention of Human Rights (since 1950) and the European Economic Community (developing since 1957) to provide supranational European institutions. Europe has also drawn together to face global economic competition.

9. supra n. 4; and more generally R. Dhavan and Fali Nariman infra n. 155).

10. For a over-generalized account of the broad historical development of difference in Hindustan see G.J. Larson : India's Agony Over Religion (Albany. State University of New York Press) 44-177; see further the politicization of the faith Christopher Jeffrelot The Hindu Nationalist Movement and Indian Politics : 1925 to the 1990s ; Strategies of Identity, Building and Mobilization (London, Christopher Hurst, 1996).

11. see Winin Pereira : Inhuman Rights : The Western System and Global Human Rights Abuse (Goa. The Other India Press 1997) for a moving account.

12. The classic statement on this is Edwand W. Said : Orientalism (New York, Vintage Books, 1979). For recent contravention of Euro-centric theories of human See J.R. Bauer and D. Bell (ed) The East Asian Challenge for Asian Rights (Cambridge. Cambridge University Press, 1999).

13. In the early forties Nehru asked my late father S.S. Dhavan to collect data on the 572 odd Princely States (see S.S.

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Dhavan: What are the Princely States? (Allahabad, Congress Research Office, 1946)). The data shows the extent of fragmentation and potential balkanization.14. The golden jubilee of Independence occasioned many books - no less of memories of partition. For one anthologysee Mushirul Hassan : India Partitioned : The Other Face of Freedom (Delhi. Roli Books, 1997),15. infra n. 5016. Apart from G. Austin's account (infra) and the five volumes of essays (Study Volume) and Select Documents edited by B. Shiva Rao: The Framing of India's Constitution (Bombay. N.M. Tripathi, 1968). I re-visited the process of constitution making in my R. Dhavan : "Tidy Institutions Untidy Discourse : Conversations on Human rights discourse in India's Constituent Assembly" (Delhi, PILSARC, Public Interest Legal Support and Research Centre Working Paper No.20) - a long memoir on the inter play between principles and pragmatic compromises.

17. N. Ahmad : Speech in the Constituent Assembly (1949) XI Constituent Assembly Debates (CAD) 97-9 (25th Nov.)18. Note the Speech of Maulana Hasrat Mohani (1948) VII Constituent Assembly Debates 45 (4th Nov) & Pt. Balkrishna Sharma at (1948) VII CAD 212 (4th Nov). These aspects were explored by S. S. Dhavan and R. Dhavan : The New Soviet Constitution (Delhi 1977, mimeo) 1-15.19. We do not know what a Gandhian Constitution would have looked like. One other contemporary, account is to be found in S.N. Agarval: Gandhian Constitution for Free India (Allahabad. Kitabistan, 1946). There were innumerable protests on the absence of Gandhi's ideas on the Constitution in the Constituent Assembly (e.g. D.D. Seth (1948) VII CAD_212).

20. H.D. Malviya: Speech in the Constituent Assembly (1949) Constituent Assembly Debates (10th Sept. 1949). Note the interjection of R.K. Chaudhuri in his speech on the Constituent Assembly (1949) X Constituent Assembly Debates 439 (17th October) asking why the proposed invocation (in any event rejected by the Assembly had to be a God and not a Goddess).

21. Maulana Hasrat Mohani's speech in Constituent Assembly (1949) \ Constituent Assembly Debates 435 (17th October 1949).22. One of the main areas for the pluralist counter attack to an assimalatist constitution was the existence of a Minorities Sub-committee of the Advisory Committee on Fundamental rights which virtually reworked part of -the fundamental rights chapter in its meetings on 17th-19th April 1947. see Shiva Rao (supra n. 16) II Select Documents 199-209: and more fully 307-432.

23. Note the dissenting, minutes of Amrit Kaur on religious freedom of 27th July 1947 (Shiva Rao (supra ._16) II, Select Documents 401-2) and 20th April 1947 (Shiva Rao ibid II, 212-2) Note Hansa Mehta's dissent on language (Shiva Rao ibid) II, 176-7 her joint letter on the Directive Principles of 31 st March, 1947 (Shiva Rao ibid. II, 147) and the dissent on personal laws with Kaur and M.R. Masani (Shiva Rao, ibid II, 177) An account of the women members of the Constituent Assembly and their contribution deserves to be written.

24. The phrase is taken from G. Austin's : The Indian Constitution : Conerstone of a Nation infra n. 101).25. e.g. Ivor Jennings: Some Characteristics of the Indian Constitution (Madras. Oxford University Press, 1953)26. This was contained in Article 31(4) to (6) of the Original Constitution; and added to by the insertion -of Article 31A and B of the Constitution by various amendments in 1951, 1954 and 1962, 1971 and 1976. In 1979 the Constitution (44th Amendment) Act - abolished the right to property as an enforceable fundamental right (now see Article 300 A of the Constitution).

27. For an account of the earlier interpretation of the Directive Principles see R. Dhavan : The Supreme Court of India : A Socio-legal Analysis of its Juristic Techniques (Bombay N.M. Tripathi 1977) 87-94. Juristically, the importance of the Directive Principles was acknowledged in Kesavananda (infra n. 73) and elaborated after the emergency by the public interest law movement (infra n. 103).

28. Note U. Baxi's celebrated protest in U. Baxi : "The Little done, the vast undone: Reflections on reading Granville Austin's The Indian Constitution"' (1967) 9 JILI 323.29. Note the family of Articles 370 to 371(1) of the Constitution, as well as the Vth and Vlth Schedules of the Constitution, in addition to taking care of Special regional needs and the various institutional mechanisms for the upliftment of the untouchables, tribes and others, including the programmes of affirmative action (see M. Galanter Competing Equalities : Law and the Backward Classes in India (Delhi. Oxford University Press, 1984)) and for a later review R. Dhavan : "The Supreme Court as problem solver The Mandal Controversy "V. Pai Pandiker : (ed) The Politics of Backwardness (Delhi. Konark Publishers, 1994) 262-332.

30. For a spirited anti-colonial view see W. Pereira (infra n. 1 1)31. see generally V. Pai Pandiker : The Politics of Backwardness (Delhi. Konarak Publications, 1997),32. Indian Statutory Commission (1930) cmnd. 3568 VSI l.pr. 147 p. 137.

33. Note Samuel Huntingdon's thesis that religions and social fault lines will precipitate conflicts to force a reexamination of the map of the world (S. Huntindon: The Clash of Civilizations and the Remaking of the World Order (Delhi. Viking 1997) cf R. Dhavan (infra 158) querrying the mischievous prescriptions that flow from this over reductionist analysis and taking the view that the politics of the so-called ethnic and social fault lines in the political map of the world create and perpetuate tension and conflict to attempt to re-write the map of the world along politically motivated lines.34. Aspects of this are discussed in R. Dhavan : "On the Future of Western Law in India : Reflection on the predicaments of the post emergency Supreme Court" (1981 Journal of the Bar Council of India 61-86).

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35. see The Shiva Rao volumes (supra n. 16)say little about B.N. Rao's meeting with the American Supreme Court but reflect his conversations, Felix Frankfurter (ibid II, Select Documents 22-5 (Rao's 'Preliminary Notes on fundamental rights' of Sept.-Dec. 1946). For some account of the discussion with Frankfurter see B.N. Rao's India's Constitution in the making (Calcutta. Opicuthonginous ,1960) 303.36. Note, for example, Alladi Krishnaswami Ayyar's letter to B.N. Rau of 4th April 1947 in Shiva Rao (supra n. 16) II Select Documents 143-6 where he makes a pointed reference to "recent happenings in different parts of India". An account of the role of Sir Alladi in the Constituent Assembly needs to be written; and has been ignored.37. For a summary of the discussions in the Constituent Assembly on the right to property see Shiva Rao (supra n. 16) Study Volume: 281-301. Munshi replied on Nehru's behalf (see Speech in Constituent Assembly (1949) IX Constituent Assembly Debates 1297-13021.38. This was one of the dramatic shifts in the debate see Shiva Rao (Dr, n. 16) Study Volume 231-241.39. supra n. 19.40. It became necessary for those who wanted to capture political power to use mechanisms like the social contract theory to isolate, validate and appropriate a new exclusive commodity of governance which wrested power from people and located it with politicians. This impacted greatly on 'law' which became the exclusive institutionalized expression of the political community. I have essayed this in an unpublished collection of essays entitled Government by Default: Essays on Law and Democracy (Delhi, mimeo 1978) which reflects discussions with my later father.

41. Michael Oakshott : "Introduction" to T. Hobbes: The Leviathan (Oxford Blackwell, 1960) xiv.42. Article 40 in the Directive Principles of State Policy of the Constitution of India.43. B.R. Ambedkar: Speech in the Constituent Assembly (1949) VII CAD 39 (4th Nov.)

44. see R. Dhavan : Fighting for Rights : A Study for B.R Ambedkar (London. 1980 mimeo) and more generally D. Keer : Dr. Ambedkar Life and Mission (Bombay Popular Prakashan, 1990 (ed.) cf. Arun Shourie : Worshipping False Gods (Delhi. Harper Collins, 1997).45. A string of random events illustrate the viciousness of social life in India. In 1994, a woman sought action against a panchayat which had sent a woman sent back to her in-laws even when they knew she would be tortured (Indian Express, 5th August, 1994); In 1994, again, a panchayat in Rajasthan hung a man because he had impregnated a girl (Hindu 15th December, 1994); note the Editorial "Law of the Jungle in The Times of India . 19th December 1994; In 1995, a caste conscious panchayat was all but ready to hack a groom to death (Pioneer. 12th May 1995). In 1995, a dalit (untouchable) woman was raped by her own kind because she fell in love with a Muslim boy (Times of India ,25th July 1995).In 1997, a couple was stripped and paraded before the village as a gesture of caste remonstrance by a panchayat (Indian Express. 13th August 1997). In the new millennium, a couple was killed because the village elders disapproved an inter-caste marriage (Times of India. 31st Jan. 2000). On 18th February 2000, a woman was sacrificed in the North East at "God's bidding" (Hindustan Times, 18th February 2000), These are just examples -and grotesque ones at that.46. infra n. 13347. For the classic assimilation of material on these dilemnas see L. Randolph and S. Rudolph : The Modernity of Tradition- (Chicago, University of Chicago Press. 19G7).48. Pakistan had suffered a turnover of Constitutions. For an interesting account see Paula Newverg : Judging the State : Courts and Constitutional Politics in Pakistan (New Delhi, Cambridge University Press, 1955).

49. On Nehru and the Constitution see the elaborate essay of R. Dhavan : "Introduction": in R. Dhavan (ed.) Nehru and the Constitution (supra n. 6)50. ibid : xix-xxvi (which discusses Objectives Resolution Debate ) Nehru's speech in the Constituent Assembly onthe Objectives Resolution is in (1947) II Constituent Assembly Debates 57-65 (18th Dec. 1946).51. Thus K.M. Munshi, replied to the debate on agrarian reform see (1949) IX Constituent Assembly Debates 12.97 (12th Sept. 1949).52. A now much publicized phrase in Nehru's famous midnight speech on 14th August 1947 on the eve of Indian Independence.53. see U. Baxi: "Dare not be Little: Jawahar Lai Nehru's constitutional vision and its relevance in the eighties and beyond" in R. Dhavan (ed.) Nehru and the Constitution (supra n. 6) 1-1054. see R. Dhavan : "Introduction" in R. Dhavan (ed.) Nehru and the Constitution (supra n. 6) pp. (i) to (xcii).

55. Adapted from R. Dhavan : "If I contradict myself, well then I contradict myself.... Nehru, Law and Social Change" in R. Dhavan : Nehru and the Constitution (surpa n. 6, 45-62). On the juristic development of the Planning Commission model of law and social change in India see R. Dhavan: "Means, Motives and Opportunities : Reflecting on legal research in India" (1927) 50 Modern Law Review 725-49: and R. Dhavan : "Law as Concern...." (infra n. 56) on the prevalence of this model in the mid-twentieth century.56. For a summary and response to the international debate on 'Law and development' as a western export model see R. Dhavan "Law as Concern : Reflecting on Law and Development in the Third World" (Nairobi. Faculty of Law, University of Nairobi, 1994) 25-50. For a review of India's development as it proceeded till the Emergency see Francine Frankel : India's Political Economy 1947-1977.The Gradual Revolution (Princeton. University of Princeton Press, 1978). 57. B.R. Ambedkar : Speech in the Constituent Assembly (1949) XI CAD 979-80: and see further R. Dhavan : Ambedkar's Prophecy : Poverty of Human Rights in India (1994) 36 JILI 8-36; R. Dhavan : "Promises, promises .... Human Rights in India" (1997) 39 JILI 149-185.

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58. Article 368 of the Constitution of India.59. On this see the Fundamental Rights case (Kesavananda v. State of Kerala (1973) infra n. 73).60. A.K. Gopalan v. State of Madras AIR 1950 SC 27.61. Romesh Thappar v. State of Madras AIR 1950 SC 124; Brij Bhushan v. State of Delhi AIR 1950 SC 129.62. The critical agrarian reform cases are State of Bihar v. Kameshwar Singh AIR 1952 SC 252; The local business cases are Rashid Ahmad v. Municipal Board AIR 1950 SC 163; Chintaman Rao v. State of MP AIR 1951 SC 118; Mohd. Yasin v. Town Area' Committee AIR 1952 SC 115; Dwarakadas v. State of UP AIR 1954 SC 224. Note also the Allahabad High Court decision in Motilal v. State of UP AIR 1987 All 257 on the question of the nationalization of motor transport.63. Especially the Constitution (1st Amendment) Act 1951: Constitution (4th Amendment) Act 1954 and Constitution (17th Amendment) Act 1952.64. Gopalan v. State of Madras (supra n. 60 and infra n. 107)65. see State of West Bengal v. Anwar Ali Sarkar AIR 1952 SC 75; Lachmandass v. State AIR 1952 SC 235, Dhirendra Kumar v. Superintendant and Rememberancer of Legal Affairs AIR 1954 SC 424 cf. Kathi Ranning v. State of Saurashtra AIR 1952 SC 123; Kedar Nath v. State AIR 1953 SC 404.66. see R. Dhavan : The Supreme Court of India : A Socio-Legal Analysis of its Justice Techniques (Bombay N.M. Tripathi 1977) 129-130; and H.C.L. Menllat: "A historical footnote to Bella Banerjee's case" (1959) 1 JJLL1983 at 184.67. Chief Justice Patanjali Shastri : Speech to Madras Bar AIR 1955 SC (Journal) 25.68. see generally H.C.L. Merillat: Land and the Constitution (Bombay. N.M. Tripathi 1970) on legal and constitutional aspect of the confrontation between the government and the judiciary.69. Nehru's Speech in Parliament (1951) XII-XIII Parliamentary Debates (PD) Col. 883270. see Sajjan Singh v. State of Rajasthan AIR 1965 SC 845.71. 1 Nath v. State of Punjab AIR 1967 SC 1643.72. The Constitution (24th Amendment) Act 1971.73. Kesavananda Bharati v. Union of India (1973) 4 SCC 225.74. My own earlier view (in R. Dhavan : The Supreme Court and Parliamentary Sovereignty (Delhi. Sterling, 1976) in favour of parliamentary sovereignty was later revised in favour of the 'basic structure doctrine' (see R. Dhavan: "The Basic structure doctrine - a footnote comment" in R. Dhavan and A. Jacob : Indian Constitution: Trends and Issues (Bombay. N.M. Tripathi 1978) 160-178.75. On Justice Gajendragadkar, see his autobiography : To the Best of My Memory (Bombay, Bhartiya Vidya Bhawan, 1983); V.D. Mahajan : Chief Justice Gajendragadkar : His Life, Ideas Papers and Addresses (Delhi S. Chand, 1966); P.K. Tripathi :"Mr. Justice Gajendragadkar and constitutional interpretation" (1966) 8 JILI 419: S.N. Dhayani : "Justice Gajendragadkar and Labour Law" (1969) 7 Jaipur Law Journal 69.

76. Strangely no comprehensive account of the contribution of Justice K. Subba Rao has been written but see S.N. T.S. Rama Rao" K. Subba Rama Rao and property Rights" (1967) 9 JILI 568 for a glimpse of his contribution.77. R.C. Cooper v. Union of India AIR 1970 SC 564.78. Madhav Rao Scindia v. UOI. AIR 1971 SC 530.79. Bennett Coleman v. Union of India AIR 1973 SC 106; Sakal Newspapers v. Union of India AIR 1962 SC 305; see generally R. Dhavan : Only the Good News: On the Law of the Press in India (Delhi. Manohar, 1987).80. A.D.M. Jabalpur v. Shiv Kant Shukla AIR 1976 SC 1207.81. On the first supercession major debates took place see (1973) Lok Sabha Debates (LSD) Vth series (Part XXVII no. 46 Col. 311-402 (2nd May 1973), its no. 45 Col. 136-187 (26th June 1973), Note M. Kumaramanglam Judicial Appointment (New Delhi, Oxford 1973)) cf. N. Palkivala (ed): A Judiciary Made to Measure (Bombay. M.R. Pai 1973); K. Nayyar (ed) Supercession of Judges (New Delhi, Indian Book Co. 1980). Little was written on Justice Khanna's Supercession of 1976. Fall Nariman (in his) "Judicial Independence in India" in V. Iyer (ed) Democracy. Human Rights and Rule of Law (New Delhi, Butterworths 2000) 13 at 24 suggests that the judges themselves withstood Nehru's attempt to promote a junior judge to the post of Chief Justice of India by way of supercession in the fifties.

82. Vajravelu Mudaliar v. Special Deputy Collector AIR 1965 SC 1017.83. supra n. 7984. see Commr. HRE v. Lakshmindra (1954) SCR 1005; and more generally R. Dhavan : "The Supreme Court and Religious Endowments 1950-75" (1978) 20 JJLL50-102 and R. Dhavan : "Religious Freedom in India" (1987) 25_ American Journal of Comparative Law 209-254.85. see generally M.P. Jain : Principles of Administrative Law (Bombay P.K. Tripathi 1988 generally) cf T.R. Andhyarjuna's discomforture (infra n. 149),86. Indira Gandhi Nehru v. Raj Narain (AIR 1975 SC 2299); and an excellent blow by blow) account in Prashant Bhushan's : The Case that Shook India (Delhi, Vikas 1978).87. Article 352-360 of the Constitution of India.88. Both Rajni Patel and B.K. Nehru told me that they had nothing to do with this document which they thought was prepared in Law Minister Gokhale's Ministry.89. A detailed account of the Constitution (42nd Amendment ) Act 1976 and the debates and discussions is to be found in R. Dhavan "The Amendment: Conspiracy or Revolution (Delhi. A.H. Wheeler, 1978) esp. Chapter 4.

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90. A brief account of the Constitution (44th Amendment) Act 1979 is to be found in a small supplementary monograph in R. Dhavan : Amending the Amendment (Delhi, A.H. Wheeler, 1979).91. A.K. Roy v. Union of India AIR 1982 SC 710.92. see Government of India : White Paper on Misuse of Mass Media During the internal Emergency (Delhi. Government of India 1977) (August).93. Government of India : Vohra Committee Report (Delhi, Ministry of Home Affairs, Government of India 1995) and the ensuing case see Dinesh Trivedi v. Union of India (1997) 4 SCC 306.94. S.R. Bommai v. Union of India AIR 1994 SC 1918.95. Justice Ray had been the beneficiary of the 'supercession' in 1973 (supra n. 81) and Justice Beg was the beneficiary of 'supercession' in 1976. In the latter case, Justice Khanna has written a dissent in the Preventive Detention case supra n. 82 which according to Mrs. Gandhi, disqualified him for the post of Chief Justice of India.96. the Preventive Detention case (supra n. 80) ,97. Justice Chandrachud made a public statement regretting his decision in the Preventive Detention case (supra n. 80) in May 1977.98. Justice Bhagwati in a personal interview.99. This photograph is reproduced in the Supreme Court Golden Jubilee Volume : The Supreme Court of India : Sentinel of Freedom (Delhi, Supreme Court of India, 2000) 3'\ Note also the text to this volume by R. Dhavan.

100. The phrase 'a million mutinies' is taken from V.S. Naipaul : India : A Million Mutinies Now (London, William, Heinemann, 1990).101. For an optimistic reading of the Constitution, its purposes and teleological ends see G. Austin : The Indian Constitution Conerstone of a Nation (Delhi. Oxford University Press 1966) - a view that now has to be. read along with his account of how the Constitution' has actually worked (see G. Austin's : Working a Democratic Constitution : The Indian Experience) (Delhi, Oxford University Press, 2000).102. For an earlier review of the working of the Constitution see R. Dhavan : "Republic of India : the Constitution as the situs of Struggle", India's Constitution fifty years on in L. Beer (ed.) Constitutional systems in the Late Twentieth Century'Asia (Seattle. University of Washington Press ,1992) 373-461.103. For early accounts of the "Public Interest Law" movement see U. Baxi : "Taking suffering seriously - Social Action integration in the Supreme Court of India" in R. Dhavan (ed): Judges and the Judging Power in India (London, Sweet and Maxwell (1985) 289-315; R. Dhavan : "Managing legal activism: Reflections on India's legal aid programme" (1986) 15 Anglo American Law Review 281-309; R. Dhavan : "Law as struggle" Public Interest Law in India" (1994) 36 JILI 302-28 An anthology of the cases may be found in S. Ahuja (ed) People, Law and Justice (Delhi. Orient Longman, 1997) in two volumes. A comprehensive account of Indian public interest law is yet to be written.104. see E.M.S. Namboodripad v. T.N. Nambiar AIR 1970 SC 2015 and more generally R. Dhavan : Contempt of Court and the Press (Bombay N.M. Tripathi, 1982) generally.105. E.P. Thompson: The Origin of the Black Act (New York, Pantheon 1975) T. Campbell: The Left and Rights : A Conceptual Analysis of the idea of Socialist Rights (London Routledge and Kegan Paul 1983).106. supra n. 103

107. On prisons note the early decision of DBM Patnaik v. State of A.P. (1975) 3 SCC 185, and then, more fully Sunil Batra v, Delhi Administration (1978) 4 SCC 494; Charles Sobhraj v. Union of India (1978) 4 SCC 104; and again Sunil Batra v. Delhi Administration (1980) 3 SCC 488. From this landmark decision have emanated a stream of decisions constituting India's new prison jurisprudence. The latest decision on wages for prisoners for the work they do whilst in prison (State of Gujarat v. Hon'ble High Court or Gujarat (1988) 7 SCC 392 seems to reverse the humanity of the earlier trend of decisions by insisting on deductions for upkeep and compensation for victims. For a wider perspective generally see Ravi Dhavan Shankardas (ed) Punishment and the Prison : India and International Perspectives (Delhi. Sage, 2000).108. see Bandhua Mukti Morcha v. Union of India (1984) 3 SCC 161 - the foundation case on bonded labour followed by Neeraja Chaudhary v. State of MP (1984) 3 SCC 243. For a recent case on child labour see People's Union of Civil Liberties v. Union of India (1998) 8 SCC 485.109. See Parmanand Katara v. Union of India (1989) 4 SCC 286 Vincent v. Union of India (1987) 2 SCC 165; Paschim Banga Khet Mazdoor Samity v. State of WB (1996) 4 SCC 37 and less convincingly State of Punjab v. Ram LubhvaBagga (1998) 4 SCC 117. On the mentally ill or retarded see Veena Sethi v. State of Bihar (1982) 2 SCC 583; Sheela Barse II Union of India (1986) 3 SCC 632; Chandan Kumar v. State of WB (1995) Supp. 4 SCC 505; S. Lai v. State of Bihar (1994) SCC (Cr.) 506' Sheela Barse v. Union of India (1995) 5 SCC 654; Supreme Court Legal Aid Committee v. State of MP (1994) 5 SCC 27. For an analysis see Amita Dhanda : Legal Order and Mental Disorder (Delhi. Sage, 2000).110. see for example Rural Litigation and Entitlement Kendra v. State of UP (1989) Supp. 1 SCC 504 (mining in the -Mussorie Hills); Tarun Bharat Sangh v. Union of India (1992) Supp. 2 SCC 448 and 750; (1993) Supp. 1 SCC 4; (1993) Supp. 3 SCC 115; (1994) Supp. 2 SCC 342 (mining in a national park).

111. M.C. Mehta v. Union of India (1997) 8 SCC 770; (1998) 1 SCC 363; (1998) 1 SCC 676; (1998) 6 SCC 60; (1998) 6 SCC 63; (1999) 1 SCC 413 in an attempt to clear up vehicular pollution in Delhi.112. see M. C. Mehta v. Union of India (1997) 2 SCC 353; (1997) 8 SCC 770; (1998) 1 SCC 363; (1998) 6 SCC 60; (1998) 6 SCC 63; (1999) 1 SCC 413; (1998) 6 SCC 63.

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113. On the recent forest cases see T.N. Godavarman v. Union of India (1997) 2 SCC 267; (1997) 3 SCC 312; (1997) 5 SCC 760; (1997) 7 SCC 440; (1997) 10 SCC 775; (1998) 2 SCC 59; (1998) SCC 341; (1999) 5 SCC 736; (1999) 9 SCC 121; (1999) 151; (1999) 9 SCC 216; on the Coastal Zone see S. Jagannatha v. Union of India (1997) 2 SCC 87.

114. see Vineet Narain v. Union of India (1995) 1 SCC 226,115. see Ashok Desai and S. Murlidhar ; Public Interest Law in B.N. Kripal (et. al) ed. Supreme But Not Infallible (infra n. 155) forthcoming and also the literature on public interest law (supra n. 103).116. A comment by C. Alvarez : 'Marginal Men' (1993) VIII Book Review (No.3) 143-6.

117. Many of these issues are explored in R. Dhavan : "Judges and Indian Democracy : Thetesser Evil " in F. Frankel (ed) Transforming India : Social and Political Dynamics of Democracy (Oxford University Press, 2000) 314-351.118. see R. Dhavan : "Removing Judges : The Quest for Fair Solutions" (1991) 17 Indian Bar Review , 42-57. There is now a move to create a disciplinary framework in the form of National Justice Commission.

119. Spoken through Napoleon in G.B. Shaw's Play : "A Man of Destiny" in G.B. Shaw: The Collected Plays of Bernard Shaw (London, Oohams Press, 1934) 171,120. This was formally introduced after the emergency (1975-77) by the Constitution (Forty Fourth-Amendment Act 1979 as a proviso to Article 74 (1) of the Constitution and used for the first time by President Narayanan in 1998 by referring back the BJP coalition's decision to impose President's Rule in Bihar. But it is arguable that such a referral back is part of the duties of a constitutional head of government in a parliamentary system as part of his responsibility to advise, encourage and warn (see Shamsher Singh v. State of Punjab AIR 1974 SC 2192).

121. See generally R. Dhavan : President's Rule in the States (Bombay, N. M.Tripathi, 1979). The list of most of the impositions is contained in the Lok Sabha publication : President's Rule in the States (New Delhi. Lok Sabha Secretariat. 1997). A useful discussion is available in the Sarkaria Commission Report (infra n. 132 ) 161-82.

122. The Anti-Defection law is now to be found in the Tenth schedule of the Constitution (52nd Amendment ) Act 1985. It was declared to be Constitutionally valid in Kihoto Hollohan v. Zachillhu (1992) Supp. 2 SCC 651. The later cases show the fragility of the initiative (See Ravi S. Naik v. Union of India (1994) Supp. 2 SCC 641; Luis Proto Barbosa v. Union of India (1992) Supp. 2 SCC 644; Kasinath Jalmi v. Speaker (1993) 2 SCC 703; Laxman v. Union of India (1992) Supp. 2 SCC 744.123. see generally the Representation of People's Act 1950 and the Representation People's Act 1951.124. see Manohar Joshi v. Nitin (1996) 1 SCC 169; Dr. Ramesh Prabhu v. Prabhakar (1996) 1 SCC 130; Ramkant v. Celine D'Silva (1996) 1 SCC 399 Mohd. Aslam v. Union of India (1996) 2 SCC 749.

125. On the travails of providing a reservation of seats for. women, note the Constitution (81st Amendment) Bill 1996 which was referred to a Joint Committee of Parliament, and the subsequent Constitution (84th Amendment) Bill 1998 and the Constitution (88th Amendment) Bill 1999: and more generally R. Dhavan : "To Reserve or Not to Reserve : Representing women in the legislature" (1997) PILSARC (Public Interest Legal Support and Research Centre, Delhi) Working Paper No. 148 - an updated version is available.

126. Based on analysis by R. Dhavan of all the statutes of the Eighth to Tenth Lok Sabhas.127. Report of the Committee of Governors (Delhi. Government of India, 1972) reproduced in R. Dhavan (supra n. 12) pp. 190-237.

128. Note the later cases cited supra n. 121129. P.V. Narsimha Rao v. State (1998) 4 SCC 626.

130. Even more unfortunate is the Law Commission's 170th Report of The Electoral Laws (New Delhi, Government of India, 1997) which lends credence to such mischief.131. State of Ra,jasthan v. Union of India (1977) 3 SCC 592; see further R. Dhavan and A. Jacob : "The Dissolution Case Politics at the Bar of the Supreme Court" (1977) 19 JILI 487-97.132. supra n. 94

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by the well known work of Thomas Hobbes (supra n: 41) to facilitate and over empower the state. For the view that the argument of fear was used in Indian Constitution making see P. Brass "The strong state and the fear of disorder" in Francine Frankel et. al. (ed) Transforming India : Social and Political Dynamics of Democracy (Delhi, Oxford University Press 2000) 60-88.140. Anil Yadav v. State of Bihar (1981) 1 SCC 622 ; Khatri &c Ors. HI v. State of Bihar (1981) 1 SCC 635.

141. Gudalure M.J. Cherian v. Union of India (1995) Supp 3 SCC 387.142. See Section 378 B to D of the Indian Penal Code 1860 introduced in 1982.143. Supra n. 107 (on prisons and prisoners) n. 110 on (mental health). On handcuffing see Citizens for Democracy v. State of Assam (1995) 3 SCC 743 and the earlier cases cited there; Khedat Mazdoor Chetna Sang than v. State of M.P. (1994) 6 SCC 260; State of Maharashtra v. Ravikant S. Patil (1991) 2 SCC 373.

144. Virtually every report of the Commission of Scheduled Caste and Tribes from the 1st to the 29th Report (1961-1990) and the four reports of the National Human Rights Commission (1995-1999) reflect a high level of atrocities by the State on its victims and by Indians on each other.

145. see Report of the Joint Committee on Bofors (Delhi. Lok Sabha 1987).146. Chief Justice Verma in Vineet Narain v. Union of India (supra n. 114) at pr. S? p. ?66147. This early "any process" view in Gopalan v. State of Madras AIR 1950 SC 27; which has now to be reconsidered in the light of Maneka Gandhi v. Union of India AIR 1975 SC 597 which takes a broader due process approach.148. The classic statement of this is to be found in Ram Krishna Dalmia v. Justice S.R. Tendolkar AIR 1958 SC 535.

149. Subha Rao J. in Lachmandas v. State of Punjab AIR 1963 SCC 22 cited with approval in A.S. Iyer v. Bala Subramaniam AIR 1950 SC 452 at pr. 57 p. 46? by the Constitution Bench. The new and rigorous approach to equality and can be found in Justice Bhagwati's judgments in R.D. Shetty v. International Airport Authority AIR 1979 SC 1628; E.P. Royappa v. State of Tamil Nadu AIR 1974 SC 555 Motilal Papampat Sugar Mills v. State of U_P_AIR 1979 SC 621. However, the underlying logic of this new approach has been questioned (see T.R. Andhyarjuna : Judicial Activism and Constitutional Democracy (Bombay N.M. Tripathi 1992).

150. Subba Rao J, in Lachhman Pass v. State of Punjab 1963 2 SCR 353 at p.395. This dissenting view was quoted with approval by Krishna Iyer. J in Col. A. S.Iyer and Ors: v. V. Balasubramanayam 1980 SCR 1036 at p. 1067.151. The need to examine the form and intent of executive and legislative action was stressed in the Bank Nationalization case(R.C.Cooper v. Union of India (1970) (supra n. 77) and elaborated in Maneka Gandhi's case (supra n. 147). In Indian Administrative Law, See generally S.N. Jain and M.P. Jain : Principles of Administrative Law (Bombay. N.M. Tripathi 1986).152. On judicial Review of President's Rule - see S.R. Bommai's case (supra n. 94). For a recent judgment on the judicial review of the pardoning power - see Swaran Singh v. State of UP (1998) 4 SCC 75. .153. Despite the newly evolved doctrines of due process in the Indian Constitution, Indian judges have a tendency to fall back on conservative doctrines of English administrative law rather than explore the basis for a more substantive judicial review. For a example of this kind of vacillating attitude see Justice Jagannatha Rao's decision in Union of India v. G. Ganayutham (1997) 7 SCC 463.154. Note the cases discussed in R. Dhavan and F.S. Nariman (infra n. 155) namely Sri Adi Vishewvaran of Kashi Nath v. State of UP (1997) 4 SCC 606. Sri Sri Lakshmanna v. State of AP (1996) 8 SCC 705; A.S. Narayana v. State of APJ1996) 9 SCC 548; (1997) 5 SCC 376; Pannalal v. State of AP (1996) 2 SCC 498; Shri Jagannath Puri Management Committee v. Chintamani (1997) 8 SCC 422.155. This is based on the successful experiment whereby the temple at Vaishno Devi was run by a statutory trust. But does this not amount to nationalizing religious institutions if not the faith?156. See R. Dhavan and F. Nariman "The Supreme Court and Group Life Religions Freedom, Minority Group and Disadvantaged communities" in B.N. Kirpal, Ashok Desai, Gopal Subramaniam, Rajeev Dhavan and Raju Ramachandran (ed). Supreme But Not Infallible (Delhi. Oxford University Press, 2000) forthcoming.157. Despite the Legal Service and Authority Act 1987 there are too many design faults in the legislation and a lack of political and administrative will make the legal aid programme effective (see R. Dhavan : "The Unbearable Lightness of India's Legal aid programme" in Sara Hussain (et.al) Public Interest Litigation in South Asia (Dacca. The University Press , 1997) 153-168, despite several judicial decisions on legal aid in civil and criminal cases (including M.H. Hoskot v. State of Maharashtra AIR 1978 SC 1548; See Hussainara Khatoon v. Home Secretary AIR 1979 SC 1369; Sheela Sarse v. State of Maharashtra AIR 1983 SC 378; Ranjan Dwivedi v. Union of India AIR 1983 SC 624 Note further R. Dhavan : To be or Not to be Implementing the Legal Services and Authority Act 1987 (1992) PILSARC Working Paper No. 12 and subsequent papers.

158. This is the unfortunate consequence of the three cases on judicial appointments to the higher judiciary namely S.P. Gupta v. Union of India (1982) Supp. SCC 87 Supreme Court Advocates-on-Record Association v. Union of India (1993) 4 SCC 441: Special Reference No. 1 of 1998 (1998) 7 SCC 739) which have virtually gazumped the power to make judicial appointments and reposed it in a collegium of super judges.159. For a playful exploration of the much hyped millennium see R. Dhavan : "The Millennium: Metaphor or Reality" (1999) Communalism Combat (December Issue) 8-11.160. Justice Dwivedi in the Fundamental Rights case (supra n. 73)atpr. 1860 p.921 : "At bottom, (sic!) the controversy in these cases is as to whether the meaning of the constitution consists in its being or in its becoming".

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