Thursday, January 26, 2012

26th Jan, 1950 : What exactly happened?

A lot of people actually asked me the extra significance of 26 Jan 1950, when we had already gotten independence from the British in 15 Aug 1947. What was the big deal that happened on 26th Jan 1950 after all?

Here's my attempt to clear the significance of the two dates and show how life changed after the first republic day.

One should know that on 15 Aug 1947 India did not become legally independent from British. Technically, it was partitioned into India and Pakistan on that day with both halves continuing to be British Dominions( like Canada till today, and Australia and New Zealand till 1986).

But 15 Aug 1947 did actually give to the two halves a right to decide their future and current affairs completely freely and also gave them the right to legally cut away from British whenever they felt like.

So , basically India exercised that right on 26th Jan 1950 while Pakistan exercised that right on 29th Feb 1956. Till these dates both these halves continued to be British Dominions.

Also there is a misconception that from 15 Aug 1947 every Indian , rich and poor earned a right to vote and choose their leaders. Actually,this right to vote did not come even on 26 Jan 1950. It came much later in 1952 after passing of a law in Parliament.

So the basic question still remains that how did life change for the common man after 26 Jan 1950?

The change of India becoming a republic from a British Dominion was a change in top only with this change having no effect on common people.

Though our Constitution, the blueprint of the current system, came into force on 26 Jan 1950, it was still a copy of the British laws. The system continued to be governed exactly as British left it because the Constitution was very very largely same as Government of India Act which the British had made to govern us.

It was a conscious decision of the freedom fighters to retain the British blueprint.

Therefore even the coming into force of the constitution on 26 Jan 1950 did not change the basic British character of the system for the common man. He continued to see the same institutions and courts and bureaucrats as he saw them before the gora log left.

In that case, what's the big deal that happened on 26th Jan 1950?

There was one big change for the common man on 26th Jan 1950 which he did not experience even on 15 Aug 1947.

There came the fundamental rights!

Suddenly from 26 Jan 1950 people earned the rights which neither the British had given and which even the independence did not provide and which the new India's laws could not violate.

There came the right to life and liberty. After 26 Jan 1950 the courts were flooded with petitions from common citizens praying that even the free India's police was arresting people without trial and evidence, a clear violation of right to liberty.

There came the right to express freely. After 26 Jan 1950 courts began to forgive angry utterances of the youth of the times against the then Indian government citing that the youth is exercising their new found right to express freely.

There came the right to equality. So suddenly from 26 Jan 1950 all the official titles of Choudharys and Rai Bahadurs and Nawabzadas disappeared.( Though officially, Rajpramukhs continued. In fact, till 1971 the Indian laws continued to recognize some Kings or Rajpramukhs as equivalent to Governors)

There came the right to property. Government could no longer just take your land and not give you the market price for it.

It is interesting to note that even the then Indian government did not realise that after 26 Jan 1950 the people would start using their rights so well. They thought that since the British have gone most of the violations of basic rights must have disappeared with them.

When the people, after 26 Jan 1950, started to use the fundamental rights the government of free India was caught on the wrong foot. They could not contain the people nor the courts which suddenly let people enjoy the liberties which even 15 Aug 1947 had not given to them.

The government could not control the people without violating or at least curtailing their liberties.

So finally, within one year of coming into force of the new system of liberties which the people were enjoying after 26 Jan 1950, the government amended the constitution and curtailed all the fundamental rights.

With that first amendment disappeared the right to property. The government could take your property and pay you peanuts in return.

The freedom of expression was curtailed. So a heavy criticism of the government came to be defined as sedition or rajdroh.

The right to life and liberty was curtailed. You could then be sent off to prison without evidence for 3 months.

All in all, 26th Jan 1950 marked the beginning of a very short period of a year when the common people of India did actually enjoy true freedom and liberty.

What a shame that it was such a shortlived true republic and that it was our own government which took away from us the rights that even the independence day did not give.

26th Jan 1950 was a date when we got our uncurtailed rights for a short period. 15 Aug 1947 did not give us those rights.

Saturday, August 13, 2011

Press coverage: I hope it catches

Some journos from Dainik Jagran contacted me from my hometown. They had heard and were impressed with the work that I am doing on these senior level appointments linking with Constitution and firing the volley of RTIs at the government( My blog is almost full of that. For those who don't know, my RTI applications are never related to corruption and are highly non-direct. I am trying to make the system work as per the Constitution at the top level in the government with almost no change. The rest of correction to the bottom, my assumption is, will follow in due time.)

Apparently, the newspaper was doing a coverage on a new freedom struggle. I felt honoured to be associated with this phrase. I have always maintained that just everyday minor vigilance is enough. Not too big a fan of a one time struggle and a happily everafter theory. The journalist got my contact through a friend he knew ,who is himself a nutty chap, and requested a telephonic session since I was at Delhi.

I gladly obliged.

The scan copy of the article is shown on this page for your check. There are some minor errors made in this report. I'll be filing a petition in Delhi High Court, not in Supreme Court. He made me younger by a year too though I don't mind that. :)

Friday, June 17, 2011

Stunning what?

I received two responses from the government in last 15 days. And both were absolutely stunning.

Their first response to my question on Cabinet Secretary's appointment read as follows( and I quote it verbatim here):

"The file for the appointment to the post of the Cabinet Secretary is not sent to the President of India, who is the appointing authority of the Cabinet Secretary."

How does the above mentioned sentence in English-language speaking world make sense? And they give to me in writing an admission of illegality which I was always suspecting and pursuing since last one and a half years now.

I am stunned.

Their second response to my email send to grievances' cell( this is different from RTI) pointing out that the law be followed by having the appointing authority to appoint the Cabinet Secretary was given the response that( I quote verbatim again) :

"This is a suggestion and not a grievance."

An email saying that the law be followed is treated as a suggestion. Goodness !!

I am stunned to the point of numbness. I have been trying to avoid a PIL at all cost. But this is pushing me to a corner. I'll be forced to file a PIL.

God help!

Thursday, May 26, 2011

New Cabinet Secretary is being appointed

Ajit Kumar Seth has been approved to be the next Cabinet Secretary. The government's communication is here .

I had already sent reminders to the government that they themselves agree that the President should appoint the Cabinet Secretary. Now after the above mentioned Prime Minister's approval to the appointment the President must appoint Sh Ajit Kumar Seth.

I have sent another reminder today which is pasted below. I am keeping what I am doing in public because you must know whats going on in real time now.

Dear Sir,

This is with reference to my grievance registration number DOPAT/E/2011/00131 and in reference to approval of appointment of Mr Ajit Kumar Seth to the post of Cabinet secretary vide Secretariat of Appointments Committee of the Cabinet(ACC) communication No 15/10/2011-EO(SM.I) dated 24th May 2011.

Kindly note that the President is the appointing authority of Cabinet Secretary per information provided under RTI Act. The above mentioned communication number of ACC is also sent to the President’s Secretariat. Shri Ajit Kumar Seth is approved to take charge from 13th June, 2011. Kindly ensure that the law of the land is followed by having the appointing authority to appoint Mr Ajit Kumar Seth as the next Cabinet Secretary as approved by the ACC. The President can hold no discretion in this matter of his/her own as the President is bound by advice of his/her ministers.

This is my second reminder to you on the subject for providing a redressal of my grievance.

With regards,
Milan Gupta.

Wednesday, March 23, 2011

Judgment of CIC

Here's the link to the 7th March judgment of CIC dimissing my appeal.

Deepak Sandhu was the Information Commissioner hearing the appeal. The Deputy Secretary, Rajiv Mittal, had also been summoned.

The appeal was not be heard by Deepak Sandhu because she is not assigned the constitutional subjects. Yet, she passed an order.

The order is also not a speaking order, which means she should have explained her own reasons (in the sections of "Decision") and countering my reasons to justify her judgment.

I am more irritated by absence of an explanatory order than by the dismissal itself.

Wednesday, March 02, 2011

My date with history

7th March 2011

The date is set. In five days from today I'll attack at the weakest point in the system.

The weakness that has gone unnoticed for decades, hidden deep beneath clauses on which rules formed by articles of the constitution are run;
the assumptions which were never verified, and taken for granted.

It was a fatal weakness introduced on 20th Aug 1947, just 5 days after independence.

The results will have gargantuan effect. Suddenly, surreptiously, slowly this will have its effect. It contains truth. It will not be stoppable.

At the very top in the brain centre of this system, an almost insignificant small wire was hooked to a wrong end. Wrong it was, because the hooking done on 20th Aug , 1947 did not have any precedent nor any legal basis.

It just went unnoticed. Because it directly affected none. Because it was marked "confidential." And it set in. It let a culture develop. And we mistook that culture as culture of corruption inherent in our genes. Uncorrectable corruption problem, for decades, so it must be our genes, so we thought.

We, the people, are not corrupt in culture or genes. Its not in my genes and its not in yours. It never was, never will be.

The Indian corruption phenomenon is a symptom of that easily correctable error which does not require any law to be brought in, not a notification is needed.

I'll be telling this story for a long time to come.
If I win, we win. If I lose, I lose. Hope will still prevail.

My date with history is set.

Thursday, February 24, 2011

Some success...

Finally the morons sent me a proper reply.

Last, I had asked them " Who is the competent authority to appoint the Cabinet Secretary?".

They had replied : "The Appointments Committee of the Cabinet(ACC)."

So I reminded the bozos that the ACC consists of ministers and the ministers can appoint no one.

Finally, I got a convulated reply in which they said that they re-evaluated the matter in the Cabinet Secretariat and replied that the President of India is the competent authority to appoint the Cabinet Secretary.

I was elated with joy! They rescinded on their earlier answer and gave the right answer this time!

However, they are still sticking to the logic that the authority to appoint does not have to sign the appointment because President is just a figurehead or a rubber stamp. After all, the bureaucrats have to justify their illegal action of bypassing the President, even though they have now admitted in writing that he is the authority to appoint the Cabinet Secretary.

God save us from this stupidity. Are they so dumb to be claiming this logic?

Even then, this reply was first taste of a success. At least I got the highest government department in the country to correct their assumptions regarding the appointment of and by the highest authorities.

Friday, December 31, 2010

I think I made an impact

I had been hounding the sarkari departments on the basic question that "Who orders appointments of the senior most sarkari officer?". This had been going on for a good last six-seven months of April 2010 onwards. You know I had been updating all that in this blogsite also.

There's this chap called as Rajiv Kumar Mittal in the Department of Personnel and Training(DoPT) who replied to the question and was kind of getting pissed off by my repeated queries. He had in fact transferred the application to another department but got it returned by them.

Finally he had replied that there are two things I am basically asking for and not one.
He said that same person who orders is not the same as the one who appoints as I was assuming. I think he took me for a shareef fellow.

So next, in that case I modified the question slightly, and asked him to tell me "Who appoints the senior most sarkari officer?" This was somewhere in early August 2010.

I think Mittal-ji realised that I had hit the nail with the right question this time.

And he , I believe, pissed off again by these questions on Secretary level appointments issued a guideline to all an sundry. Nobody had ever asked such a basic question. The guidelines were issued on 13 Aug 2010 and is on the same topic that I have raised in my RTI queries, by the same person whom I asked, after the same date when I posted them with the second query.

The link to his published guidelines is here.

You might also notice that the Mittal fellow has even highlighted in bold the specific areas which were asked in the RTI application as mentioned in my earlier blogs.

Such a guideline was last issued in '96. I think a simple RTI query forced this department to mend the matters right after 14 years. They have to. In '96 they had made the rules as classified information. Now they cannot keep such rules as secret.

And in '96 I wasn't interested in this area and there was no internet either to do all this research.

I am coming for them in 2010 and I have my armory with me.

This was just the first impact. I promise more.

Thursday, September 30, 2010

CWG headache

Sarkar needs all sort of excuses to intimidate you and me who do not care to know their rights.
These babus will pass anti-privacy laws just to tell you that terrorists need to be caught. They'll allow policemen to arrest without warrant for six months because real evidence can't be produced against terrorist and then use this same law to arrest a man who has written support from nobel prize winners.

Latest trick these babus have played is the 2000 bucks fine or jail if you drive in the CWG blue lane.

Let me tell you the police can't do it and they can get lost.

To impose penalty or restrain liberty(by putting in jail) of an individual the police needs to have a law debated and passed in the assembly. They just can't pass an order saying that because my mother was ill and I forgot to manage the CWG games therefore in this emergency situation citizen's will be jailed or fined heavily if they drive in the blue lane.

Secondly, they are passing orders under section 144 CrPc which is different from Motor Vehicles Act. So these white clothed bribesmen can't impound your vehicle or cut you the white slip for violating traffic laws. They just can't do it.

So if they do catch you doing it insist on a lawful receipt.

Thirdly, even their uncles can't arrest you or fine more than Rs 200 because they can arrest only by the power by IPC 188 for violating an order. But that power to arrest can only come once they get a permission from a court which has to first check that you did violate an order.

Technically, police can't arrest you or fine you directly because they saw you doing it. They have to ask the court before doing that.

Don't let these guys make a fool out of you.

Because they made a mess out of CWG so they decided not to debate in the assembly and just go ahead with these restrictions is unacceptable.

They can get lost!

Saturday, August 21, 2010

Entering the unknown

I had asked that question to sarkar who issues orders appointing Cabinet Secretary? And they had given a vague non-specific reply.

I followed it up with a so called appeal on 19th of last month and I have now even got a reply from the department on my appeal filed.

They are saying basically now that you are making a fuss around here, and that there's a difference between who orders and who issues orders. And I looked into the mirror and thought that do I look that stupid as these guys think I am.

The recent reply goes on to say that Prime Minister approves the appointment and then some Under Secy issues the orders.

I am going to ask them then why didn't they tell specifically exactly which Under Secy issues the order in that case. They still know they can't tell because there really is no difference between the person authorized to order and person authorized to issue order. And if there really is a difference, then why don't they tell us who orders the appointment in that case?

Actually, so far these responses from the departments were predictable because you can't really expect machine-heads sloths to think at level of constitution and Westminster Parliamentary system and all.

Now, the appeal is supposed to go to Wajahat Habibullah, the CIC himself , in person and not to any other Information Commissioner. A google showd that he has been a student of history and constitution in J&K before joining the IAS in the 60s.

I am preparing the appeal nowadays and gathering evidence to convince him. So far I have found that I am on the right track because the official websites of UK and Canadian government , which follow the same Parliamentary system and which Supreme court usually refers to in constitutional cases, show appointments of Cabinet Secretary is made by the Queen and Governor-General respectively and not the Prime Minister.

Evidence is pointing in the direction that junior really does not even issue order of appointing his own senior anywhere.

The next mile is unchartered territory. I don't know what is ahead.

Wish me luck.

Monday, August 02, 2010

Sarkari brains!

I got a reply from those sarkari ppl. And boy, did I get them all confused officially? I was loving it.

A simpleton like me got the highest departments of Govt of India confused and shifting responsibilities on each other.

And that too on a question which those sarkari bumheads thought as GK question which even a kid could have answered.

Following is the string of events that happened which brought the Cabinet Secretary department and DoPT(Department of Personnel and Training) shifting responsibilities on each other

1) 18th May - I file an RTI with DoPT asking which chap appoints Cabinet Secretary?

2) 7th June - Similar RTI query is sent to Cabinet Secretary office as well( I got to
roam around Rashtrapati Bhavan. That was a real good bonus on this urban adventure. Usually you can only get to peek through those iron gates at the west end of the Rajpath.)

3) 9th June - DoPT decides to send my letter to Cabinet Secretary office as they can't
figure out for themselves the GK question which any kid should have answered.

4) 17th June - Cabinet Secretary department sends that letter back to DoPT saying they really don't know who appoints their boss and they tell DoPT that DoPT has to really answer this GK question which any kid should have answered. They send even my letter of 9th June to DoPT as well.

Sarkari bumheads playing football with my RTI application with time running out to score a goal.


On another RTI query regarding election commission, its leading to some other little adventure. Delhi is best place to do all this stuff. I am figuring out that few sarkari fellows of Delhi are little bit more helpful than anywhere. Some of them led me right up to the cabinet of files where original election records are kept. And they love to yakkity-yak in their bureaucratic free time. Some cards have been exchanged but I am secretly hoping that they don't call up my office. :)

Hope to see Wajahat Habibullah, the man who makes these fellows answer, soon.

Thursday, July 29, 2010

The ball is rolling now..

I had all these discussions on things not working and what not and then they got lost in nothingness. That’s no way. Action must follow reasoning. Reasoning’s useless otherwise.

The broad question of system not working had to be boiled down to simple queries that can be answered in writing and in black and white. The analysis can get too vague and therefore what is subjective had to be ruled out immediately.

This approach led to 3 specific questions at the end of a long and deep research and shared in some form in the video added to this site.

The first being, “How can the court itself violate the constitution?”. This question is still too vague. But I am not boiling it down further to a specific question simply because the court has already answered in few judgments that in “interest of justice” it has the power to overlook the provisions of the constitution. So there’s a full stop here on this first question for now.

I have always known that roads to disasters are paved with good intentions. In our case, roads to disaster of India could be paved by good intentions of the courts.

The second question being, “How can the election commission of India toss a coin as a judge to resolve dispute between two small or new parties?” This question also needs simplifying. I know for a lot of people this question is simple enough to be understood by even the dumbest and that the bias against hopeful starts by election commission is clear.

But election commission, who is answerable to no one, can easily brush it off that they are judges only for big parties while being only administrators for those hopeful starts. I might need a little help here in making the question 2 simpler therefore.

The third question being, “Who is the competent authority to appoint the Cabinet Secretary?” This question is the summation and culmination where all this analysis converges. I could give up following up on question number 1 and question number 2 just for the sake of this question. This is most specific I can get and hits right at the heart of the reason of all the nonsense happening in this country. Its cold logic meeting the practically invincible jugaad and chalta hai mentality of India.

When I’ll fight on the side of this question the politician or their mandarins will come up with all the jugaad to avoid giving a specific answer. When, and its not if, I do escalate it to the relevant persons or the court maybe, they will give me the chalta hai, ismein dikkat kya hai dialogue.

I have already acted anyway.

An RTI was filed at Cabinet Secretary office asking this 3rd question specifically on 7th June. I had also filed a similar RTI with Department of Personnel and Training(DoPT), earlier on 18th May as well.

Those sarkari people over there while accepting the RTI said that why are you filing an application for asking a GK question because everyone knows that Prime Minister appoints the Cabinet Secretary. I had to tell the bumheads that no minister, including the Prime Minister has the power to appoint any sarkari officer. So they then asked each other, who does it? I said I know but I would want your department to tell me who is it.

These questions may look innocuous but have the greatest potential. Even the officials in the highest government office are a little lost about it.

Watch this space.

Friday, June 11, 2010

Bhopal Gas Tragedy & the dumbing down thats happening in the media

Shit is flying around! Bloody asses, those media-wallahs!

What do they think? I am some dumb duck to be taken wherever they want me to be shown around?

Bhopal Gas tragedy judgment came about 4-5 days ago. It was just 2 years of punishment that was given by the judge to the accused. The media reported this nonsensical judgment, and even printed in the papers that what an injustice it was.

And then, like some bloody thick headed bunch of elites, they shift the focus away from the stupidity in the judgment to how the hell did that Anderson chap get away in the first place?

Abbey ye aur inke baap log so rahe the 24 saalon se? That Anderson had escaped in 1984 and its now they bring up this issue? Do they think I am dumb enough to accept that they didn't know that Anderson had really been out and having fun in the US till this judgment came 4-5 days ago?

Worse, the people are crying because of the poor punishment awarded and these media wallahs are crying about Anderson escaping now?

All these politicians and media are bloody mixed up. No damn channel in this country is talking about why weren't the company and directors charged under the toughest laws available in the first place?

The company and directors were charged for culpable homicide not amounting to murder, negligence and such accusations for which silly car drivers get charged when they hit people unknowingly.

Obviously, the punishment had to be mild because the charges were! Doesn't anybody see through this??

I am not surprised by the court's judgment. I am surprised by the media's dumbness!!

And instead now they have shifted focus from that basic thing to talking of how come Anderson made that exit and giving all the newsbytes to politicians and oppositions exchanging blame!

Ok. They want me to shift focus away from the poor charges filed in the first place and instead talk about politicians blame game. Lets do that then as well.

That Anderson chap was arrested and released on bail( promise to attend courts in lieu of a surety, of about some x rupees) in 1984.

Why was his passport not impounded then? Bloody this Sania Mirza's fiance came to Hyderabad last year to marry his chic, and his passport was impounded by his ex-girlfriend's false allegations never proven, whereas Mr Anderson was charged with responsibility of thousands of death, and yet his passport was not impounded?

What kind of shit is that in avoiding these questions?

Media asses, can you see through this? NRIs passports get impounded by their wives over false accusations and yet you donkeys don't see any reason why Anderson's passport shouldn't have been impounded too!!!

You want me to talk more about that Anderson escape episode of 26 years ago!

All you media chaps want to do is give politicians and politics mileage on TV. Thats all you really want to do. Digvijay Singh said this, Rajeev Gandhi said that, Arjun Singh said this, and BJP is doing that about it. ALL ROYAL NONSENSE !!!!

If a Digvijay Singh or Arjun Singh is saying that they were acting on the instructions of Rajeev Gandhi to let Anderson get out of the country, then why don't you ask these two politicians that

" Even if we assume what you say is true( that Rajeev Gandhi did ask you to let Anderson get out of India), even then under which law of the country were you bound to act on Rajeev Gandhi ,the then Prime Minister?

Law and Order is a state subject as per Constitution of India. Which means that Rajeev Gandhi couldn't have ordered the Madhya Pradesh chief minister at all on this matter. And you politician's know that very well for your own good."

Who the hell are these media guys fooling? They are not asking these questions because they want to further deviate the issue into Rajeev Gandhi. And since he is dead. So will this matter be eventually. And media houses will be paid trucks-load of money to avoid these questions!
Already they are raising coverage about FIFA cup happening and the gold price staying put over 19,000.

I do not get deviated.

Here are my questions:

1) Why weren't the charges stringent enough in the first place? I don't expect 20 years jail for somebody accused for rash driving or killing someone while doing that. So I don't expect the court to award tough punishments to anyone on similar charges.

2) Why wasn't Anderson's passport impounded? Every Tom, Dick and Harry's wives/girlfriends can get their husbands/boyfriends passport impounded but the Madhya Pradesh government could not!

3) Why don't you shut up talking about dead man Rajeev Gandhi before telling me that which law in the country made the then CM bound by the PM's opinion?

Media. You suck!!

It's your job to ask these questions. And you are abysmally horrible in your job.
MORONS !!!!!

Thursday, June 10, 2010

Your constitution and your traffic havaldar

The opposite of civil liberty is executive tyranny. The freedom of this nation after 1947 and adoption of Constitution of India after 1950 brought the people at par with the machinery called as the Sarkar, the executive. After that date, you and I got rights written explicitly in the constitution which even the sarkar could not flout anymore.

This executive tyranny should have been history after independence. But unfortunately, even now I still get into useless arguments with these sarkari traffic havaldars who don't seem to realise that we've won freedom.

They don't realise that after independence, the power to judge offences and ordering of impounding documents/property rested only with the courts, and not anymore with these fat bellied bribe sucking policemen.

You must know that most of the current system , including the Constitution of India, is very similar to what British had brought here before Independence. The Constitution of India is very similar to the Government of India Act(GOI) 1935 which the gori sarkar had brought in. This Act till then was the most voluminous Act written in the world. That is also partly the reason why our constitution is the largest in the world because its very similar to the GOI Act 1935.

The major difference that did arise after adopting the free constitution was the introduction of fundamental rights. Those rights were our gift of independence, the result of hardships of freedom fighters. The freedom fighters wanted to ensure that no sarkar in future, either of a "gori sarkar" or a homemade tyrannical sarkar, would be able to flout these fundamental rights of the people of India.

These rights come at a price ,though, to you and me. Eternal vigilance is that price of liberty.

If you and I do not use these rights against a useless in the executive, the sarkar, then just forget about that date 15 Aug 1947 ever happening in history. We may not deserve these rights in the first place then. The older readers would know how one particular right has already been lost since independence. Vigilance is the price that I have to pay, I know.

Let me bring the point a little closer home.

You and I regularly get harassed by these traffic havaldars on frivolous or cooked up grounds so that they can take a share of dough from you and me.

How many of you realise it then and there that this traffic havaldar is the "sarkar" very similar to the gori sarkar before Independence which used its arbitrary and discretionary power to keep the citizenry in control?

If that realisation does dawn on you, you'll also realise that there was something called as Independence of India which happened on the way, wherein you got a lot of rights against exactly such arbitrary and discretionary executive acts. In fact, because of those rights being constitutional, there couldn't have been a rule or a law in the first place over-reaching those rights.

Taking that example further.And ever try the following steps:

(1) Don't agree with the traffic havaldar that you did jump the signal, and would rather have it settled it in the court.

The traffic havaldar would then demand your car registration papers to be impounded(the RC papers) and tell you that you can get it from the courts only thereupon(which,obviously, you would really want to avoid).

(2) Tell that havaldar he has no authority to impound your car or its ownership papers. There is nothing as such provided in the Motor Vehicles Act 1988 or the rules. Tell him that car being a property (or its ownership papers) can only be impounded on the orders of a judge.

Even the traffic havaldar knows, and you should as well, that he has the authority to impound your vehicle only when it is unattended or wrongly parked, or when he writes that the offence as drunken driving or a hit-and-run type.

(3) Next, the havaldar may instead ask you to submit the driving license to him and he may tell you to take the license from the court only thereupon. Its his favourite trick to harass you.

Show him all the disrespect you can for exceeding his authority, and tell him to produce in writing the reasons for impounding your license. He will most likely write the alleged offence(such as jumping the light, driving with mobile switched on etc) as the reason for impounding your license.

Once you have his written reason on your hand, and before you hand over the license to him physically tell him the following :

The only reason you can record for impounding my license are the reasons which cause you to believe that I will avoid the court summons. As per the Motor Vehicle Act 1988, if the havaldar has

"...reason to believe that the driver of a motor vehicle who is charged with any offence under this Act may abscond or otherwise avoid the service of a summons, seize any licence held by such driver... ".

Stating that the person jumped a red light cannot be the reason for believing that he will not attend the court.

(5) Even then if this doesn't work then he is supposed to give you an acknowledgement slip signed by him.
Under no circumstances should you counter- sign the slip paper if you are not paying up the cash. Signing a paper as receipt for license, not the fine, would be admission of guilt as per the contents of that paper. Check up the text for yourself when, God forbid, if you get fined.

Here is an interesting judgement in Kolkata High Court( Dipankar Dutta Vs State of Bengal) and it appears a similar one was passed in Orissa High Court, where the judges upheld that these traffic havaldars cannot impound license of those individuals who are co-operating with them in giving all the information.

(At least it seems there is more freedom from these traffic havaldars tyranny in Kolkata than in Delhi due to the judgement being from Kolkata High Court. Common law system makes this judges' observation as the law in West Bengal till the time in future it is overruled either by a legislation in West Bengal Vidhan Sabha or the Supreme Court. Lucky Bongs! They can carry this judgement's certified copy in the car for showing to West Bengal cops. But I think us Delhi guys can also take respite in the judge's logic.)

The link of the judgement is on

Let the traffic havaldar know that he becomes liable for your claim for damages if he is insisting you to submit your license due to the reasons beyond those written in the law.

(6) And if you finally really think that you must sign on that form (to save any more heat), before your signature do write in the box that "the traffic policeman Mr XXX, on duty, has refused to provide the reasons mentioned in section 206 of MVA, 1988."

Face the court for once then, dude! From my personal experience, you can hope that the reason and rights will be upheld in the court in the first hearing itself. And besides, that cop will also have to make an appearance which even he would want to avoid because he loses a day full of bribes being away from the road.

Where does Constitution and citizen's right come in all this?

The article 20(3) in the constitution gives you the right against self-incrimination. It basically means the burden of proof in an allegation by the sarkar is on the sarkar. Sarkar can't insist you to sign up a document and produce it as record in their favour.

The traffic havaldar can't ask you to sign up, along with his signature on the receipt of your license.

We didn't have this right before independence. Now we do. Little things go a long way.

Thursday, May 27, 2010

More to come..

I have been collecting views and counterviews on my writeups. First piece on constitution designed well but ignored as well was published on at this link.

There have been a lots of exchanges on this topic with readers, some of whom wanted to know few real hard facts as well.

The second writeup an open and outright flouting of the constitution is also now out on the , as the cover story "The Blind side". It has got some verifiable information with the facts which you can google up as well.

There's more research content which show more stupidity in the government.

But our approach to solving these logical problems has to be through comprehensible questions.

With that approach, the other day I asked Nishant, a bright but lazy colleague, that how come only the media is speaking for the plight of the naxal tribals forced to take up violence while nobody cares to ask their smaller MPs and MLAs for not even speaking for the tribals in the parliament.

Why are only Chidambaram and Jyoti Basu speaking on naxalism? Where are their smaller politicians hiding?

Nishant didn't care much. And that, for me, is a bigger problem to solve.

Monday, May 10, 2010

Why the hell has nobody ever asked these questions...

There are simple things which need to be followed. Man on the street will hardly ever understand the constitution. Most lawyers hardly do. Though the one who do are mostly lawyers.

Here are a few questions which I hope somebody is going to ask an MP or an election commissioner or in the Parliament.

Q1) Why the hell does a new party have to choose from a list of symbols released by the Election Commission and thus have its own symbol out of the "free symbols" list maintained by the EC?

Q2) If two or more independent candidates want to share an election symbol without forming a party, and are willing to give that in writing why does the election commission have to still give them different symbols by drawing random lots?

I know you chaps are surprised by the first question. I thought a new party is free to choose symbols closely resembling whatever it believes in. But then look at this link here(and jump to page 78 of the page that opens) of the election commission official website. Your new party's choice of symbols is restricted to the EC's choices listed here. I didn't know that at all. And it is kind of dumb of us to accept that restriction.

The second question makes me think of divide and rule. If two or three chaps want to have a common symbol without forming a party (and therefore have a party president who controls the rest) then forcing them to choose separate symbols is like Lord Curzon or Aurangzeb forcing animosity on people who are willing to sort out their differences their own way.

If we don't have a problem, then whats your damn problem, EC man ?

Why can't me and my friends, if we ever choose to contest elections, have our own common symbol which nobody else wants?

Monday, May 03, 2010

Here's the clue to the solving the corruption problem, mathematically

A few blogs ago, I had posted an open treat for hungry folks who could answer my 3 specific and defined questions on the system being followed.

People tried but no one gave a verifiable answer. Answers were given in the comments. My erudite dost Abhishek Singhal came close I think though.

I had a clear suspicion of poor mathematical(almost) logic lurking somewhere. Since constitution is logically ok. That is, it does not give an individual minister any power at all. It gives power to Cabinet only.

Even the cabinet is not capable of using its power without formal approval of sarkari officers or the President. So there was no way by which an individual minister can get any power without support, and not submission, from the sarkari officer or the President.

Since power breeds corruption, therefore logically, individual minister could not have gotten so much power to be so much corrupt in India.

That is why I had posted those questions in that blog.

Having spent days in the Central Secretariat Library at Shastri Bhavan , hunting in the Gazettes of India, I fished out what I was looking for i.e. the method, by which ministers get to tower over the sarkari officers, and get their submission without the need of getting their support.

Obviously, as expected from above mentioned inferences and assumptions, it was illogical.

Here is the excerpt of one such order from the Gazette of India
Gazette of Indian Govt
Saturday: Oct 4 - Oct 10, 2008 ( Asvina 12, 1930)
Part 1- Sec II
Ministry of Personnel, Public Grievances and Pensions
Department of Personnel and Training
New Delhi, 19th September 2008
No A-32013/7/2008 - Ad.(I)(G) The President is pleased to appoint Shri Rahul Sarin, IAS(JH:74), as Secretary, Department of Personnel and Training (Ministry of Personnel, Public Grievances and Pensions) with effect from the afternoon of 13 September 2008 until further orders.
Signed by
Harish Chander
(Under Secretary)
Now, you won't probably see anything wrong with such an order to start with. In fact, even government officials do not see anything wrong with such an order when they see it, since it based on clear and open rules which anybody can inspect.
But the question is : Do you see it? You are the free mind. You are not bound by the rules and definitely not your mind. Can you fly? Higher than the government officials and see a larger picture here?
Not holding anything against Rahul Sarin or Harish Chander. I am sure they are great chaps.They have just followed the rules. There are other orders similar to this I am sure in other persons' names.
The process is in question here. Not the persons.
A mathematical eye should definetely notice , in the first place, that this order for appointment of a Secretary has been signed by an Under Secretary of the same department, who is actually lower in rank and reports into the same senior whom he is appointing.
The mathematican with constitution in his hand, should further be able to predict similar illogical process emnating from this one.
For example, that this poor application of logic, likely happens in only this department of all the babudom in India. You know why? Because it is this department which does transfers and appointments of all the sarkari officers.
Multiply this illogical process into State levels as well, and you begin to know why corruption is pervasive across India.
Eliminate other countries following similar Parliamentary Westminister system but not following this poor logical process and you'll know why corruption is occuring in our country whereas other countries having similar constitution as ours do not have it.
You have a reason to speak now. And I have a responsibility to show you how you not speaking keeps too much burden on the courts to correct the system.
There are more examples ahead.

Wednesday, April 28, 2010


My company is into auditing. Nowadays there's a recession.Therefore my colleagues are very vella.

Some vella person asked this question making me undoubt his stupidity (there's a spark of genius in every dhakkan, i guess)"Why can't government print more money to remove all this gareebi?"
People have become so vella nowadays to suggest Indian government should do the ISI's job of printing the money now, I thought. (I'll come to the genius spark later.)

Another colleague, whose mouth moves faster than his mind suggested that we should declare 1 Rupee = 1 Dollar , and that will make our economy at par with the world economy.

And now I have taken up a policy of giving short answers to such short questions. The damn deal is to make that short answer.

So answer1 to query 1 of removing gareebi by printing money is
A1) Printed money when handed over to the finite gareeb people will remove their gareebi is a sure thing. When the gareeb people will use the new money, major mehngai will set in and will be maintained because of higher circulation of money. This will make the next generation of the current gareeb people even more gareeb because by then the current gareeb people would have used up much of their printed money but higher mehngai would have left their saved stockpile of cash as lesser useful.

So, printing money will cause more despair to gareeb folks after some time. Thats why printing money is never a solution. And which ever dumb minister ever orders printing it, should be asked to sing his songs outside the parliament, near the chandni chowk gurudwara or something.

Query 2) Wouldn't declaring 1 Rupee = 1 dollar make us come to terms with world economy?
A2) Sundar ladkiyon waali akal paayi hai iss bande ne! Mere baap, if you declare 1 Rupee = 1 dollar then you'll have to give 1 dollar for every 1 rupee that any angrez tourist presents to the government. Now swear on your appraisal if you think that the government has so many dollars to pay for every rupee that we have.
Basically, other countries judge us by amount of dollars we have, not Rupees.
Declaring without thinking enough is for motormouths. Simple demand, supply and commerce will make you see stars in daytime if you declare so.

There are more questions which my intellectual team members keep asking. Will keep posted on them as well.

Answers were long. Pur I am trying, yaar! :)

Wednesday, April 14, 2010

Royally dumb

Once upon a time in a beautiful country where sparkling rivers ran across green mountains, there ruled a sense of reason. As the winds of change blew across the reign, that rule was taken over by dark forces of passion. The dark forces never really usurped the rule because the people of the kingdom loved a sense of reason as their ruler. So the forces always did everything in the name of a sense of reason.

Then came a day when a chief secretary extended his own tenure without agreeing with sense of reason. Sense of reason expressed clearly that tenure would not be extended , yet the chief secretary, influenced by dark forces of passion, issued orders and boldly, on behalf of sense of reason.

When sense of reason approached the courts then the court of the kingdom upheld that order as valid even if he issued it for himself.

The people did not bother because it was still the rule of sense of reason after all. They never saw that dark forces of passion had overtaken sense of reason, and rule was in the name of sense of reason only in name.

The kingdom is Tamil Nadu. The judgment is on .
A chief secretary extended his own tenure, and the court did not have a problem with that.

Dark forces of politics had overtaken the reason of the constitution.

Treat for you..

You guys know that I am too much into constitution and its damn logic. These two things together should be able to solve a lot of our own queries about cause of corruption.

So , logically I kind of thought, that there is some major illogical lafda lurking at the way top ministers and bureaucrats work. I mean, c'mon, the constitution does not give powers to individual ministers at all. It gives power to Cabinet only; and that power to the Cabinet is also not formal at all. The formal power still has to vest with President and sarkari officers.

After a lot of fact finding, and crazy research through Transaction of business rules, appointment committee of cabinet process, , views from top civil servants I think I got close to this illogical working somewhere.

Basically, whoever amongst you answers these questions of mine and maintains logic(which is basically no round robin should be happening in the answers) gets a treat.

Q1) Which sarkari officer appoints the Secretary(Personnel, Ministry of Personnel) ?

Q2) Which sarkari officer appoints the Special Secretary & Establishment Officer (DoPT, Secretary to ACC) ?

Q3) Which sarkari officer appoints the Cabinet Secretary ?

In case, you think its the President then thats also acceptable as an answer. But ministers or a committee of ministers is not acceptable because they do not have the authority to do so due to article 77 clause 2 of the constitution.

I love this constitution. That combined with pure mathematical logic should be our cure.

And this illogical lafda , if proven such, is discovered right now at center level. I am sure such anomalies are even more prevalent at State level.

Answer this and you have delivered your first medicine for corruption.

(Btw, I have already filed an RTI for the above queries. And those guys were as lost to the logical answer as any outsider.)

Be Free

You speak of system being rotten. So do I. And I am going to take up this beaten up topic once again.

For analysis sake, I’ll assume the system to be same as The Constitution of India. The constitution is above all. It is supreme that I firmly believe. You can call me a constitutional extremist but that’s what I am. Today that’s what I need to be. That is my only hope today of the system, from the system. It is my holy book. No system or institution stands above it. Even the Supreme Court. As a citizen of India, you and I have a written fundamental duty to abide by that written document. You should know that per Article 51A clause (a) you will be duty bound to respectfully disagree even with the Supreme Court if it’s interpretations are not abiding with the constitution.

Makers of the constitution were not dumb. They made the checks and balances in the system to avoid getting power concentrated in the ministers. Refer to the recorded debates of the constituent assembly which was making the constitution before 26th Jan 1950. Their concerns raised then look almost prophetic today.

Only assumption that the makers of the constitution made and did not write in the constitution is that the written constitution will be followed and made to be followed by the institutions it is creating.

Obviously you and I do not expect the wily politicians and their cohorts to follow the constitution out of their own sweet will. Those guys are not that great.

Besides following the constitution to the dot makes them loose their powers big time.

Do you know that government claims that all the day to day powers of the President are actually that of ministers because of article 74(1) which binds the President to accept ministers’ advice?

But why hasn’t the government ever highlighted the clause right next to the above clause in the constitution which says that no court can assume existence, let alone the nature, of such an advice? Effectively, highlighting the second clause means giving a lot of leeway to the Prez.

Do you know that constitution allows all orders only in the name of the President? Then why has the Supreme Court declared this clause as non-mandatory. Orders made by ministers have thus been taken as orders of government. Hence this laxity by court has invited even more corruption.

Do you know that constitution says that all transfers have to be consulted through UPSC? And if the suggestion of UPSC is not followed then the government has to explain that with a memorandum in the Parliament. It does not happen though you may like to think it does.

I can go on and on. But that’s not the point I want to make today. Since it’s the Supreme Court itself which is not taking the constitution seriously enough for the sake of “not only delivering justice, but also appearing to deliver justice”, there’s little you can expect from them, though the court is still our best institution. The point is that the written constitution has to be followed.

Do not underestimate your power of expression. You earned the right to express after 26th Jan 1950 even though the right to vote had already come in before that date(Provincial elections existed even before independence). Freedom gave us the everyday right to express. Freely and fearlessly. Use that power and scare the hell out of the institutions that are taking your silence for granted.

Eternal vigilance is the price of liberty. Better pay that price now. Or else you will be forced to pay against your will. The least you could do is make them follow the constitution. Everything else will fall in place.

Thursday, April 01, 2010

One level deeper after constitution...

This writeup is targeted to senior civil servants whose work follows the "Rules of Business" made by the President or the constitutional lawyers who interpret the provisions of constitution.

Under article 77(3) of constitution, the President is empowered to create rules for convenient transaction of business and allocation of said business amongst ministers.

The President has thus made 2 rules called as

(i) "Allocation of Business rules, 1961" for allocating department and subjects to ministers, and

(ii) "Transaction of Business rules, 1961" for more convenient transaction of business of government.

The official government of India website of the rules are linked above.

I do not see anything in "Allocation of Business rules, 1961" which is against any constitutional provisions. That is not being challenged. ( I would reserve the following challenge for later, that allocation of business rules should be the ones referring the transaction of business rules due to word "said business" in the article 77(3) and not the other way round. )

It is the "Transaction of Business rules, 1961" that is being challenged.

Specifically the following 4 rules in it are challenged on grounds being constituionally invalid and requested that they do not have any place in President's rules. It is admitted that these rules are very valid in toto and are helpful but only for functioning of Council of Ministers internally. However these rules must be excluded out of President's rules.

The 4 rules are:

1) Rule number 3 which gives individual minister powers to dispose business alloted to them.

2) Rule number 4's clause 1 which gives Cabinet to decide on inter-departmental consultations on special cases.

3) Rule number 6 defining committees of the cabinet and their executive powers.

4) Rule number 12 providing power to PM to directly permit or condone a departure from these rules.

Note: The President is bound to act on aid and advice of Council of Ministers(CoM) under article 74(1). That aid and advice is not to be enquired by any court under article 74(2).

Following are the challenges offered against each of the above four rules:

1) Rule 3 which gives individual minister powers to dispose business alloted to them.

Power to dispose of business is executive action. Article 53(1) states that President exercises his authority either directly or through officers sub-ordinate to him. Therefore the person to dispose of business must be an officer, and sub-ordinate to the President as well.

If minister is treated as an officer exercising executive authority of President, then the decision of minister becomes the decision of President and therefore binding on the State. That is not the current view. Decision of minister's do not become decisions of the State as per Supreme court decisions. Therefore, power to dispose of business assuming minister is officer cannot be valid.

Also, the view of the courts' is minister is no more than an advisor to the State, constitutionally(refer Shanti Sports case and many others). Also, advises are kept away from the purview of courts because of article 74(2) as per note above. Therefore if the minister is disposing of the business as advisor then his advises to the executive will be beyond the purview of law. But then this is also not the correct current position since all of ministers advises, file noting, decisions are open to RTI. If ministers are to dispose of business as advisors then their advises must be kept secret.

Not only that. The advise, its existence , and inquiry into the nature of advise would be beyond any court. Yet courts are full of cases under Prevention of Corruption etc where minister's binding advises have been inquired into and brought into open.

Therefore, rule 1 is invalid to be included under President's rules if open-ness of minister's decision are to be allowed.

Rule 1 can be held as valid and consistent with courts only when it is interpreted that individual minister's instructions in this rule are not advises, therefore non-binding on civil servants. In case of difference of opinion between a minister and a civil servant final decision rests with President who may either choose to accept that minister's decision or choose to exercise his right under article 78(c) to let the minister's decision be considered by CoM.

2) Rule 4 clause 1 which gives Cabinet to decide on inter-departmental consultations on special cases.

(This rule 4 clause 1 is being challenged as invalid on the assumption that by Cabinet is meant "Cabinet of Ministers or CoM". If it is interpreted as Cabinet Secretariat, then it is not being challenged. )

For inter-departmental consultations, President cannot make decision of the cabinet binding on the civil servants without compromising open-ness. Decision of cabinet will also,constitutionally speaking be treated as advise only , and hence will have to kept out of purview of the courts.

However the decision of Council of minister, to President can be considered as binding on civil servants and not compromise open-ness. It will be made open to court as well because it will be the instruction from the President to the civil servant that will be brought into open even though that instruction may be same as CoM's advice.

This rule 4 is assuming that decisions of CoM are same as decisions of President, and assuming further that President is denying himself the right to encourage, right to warn and right to be consulted by the CoM. Decisions of CoM are not the decisions of President and therefore not the decisions of the State , this has been established by courts. President cannot not only give up his rights, but also cannot appear to give up his rights. There is a case of an act of self-abnegation.

Therefore rule 4 clause 1 is invalid to be included if Cabinet is interpreted as not being Cabinet Secretariat, and open-ness of decisions to civil servants in inter-departmental matters ,from CoM is to be allowed.

The executive business of inter-departmental decisions should be with Cabinet Secretariat or the head of all departments i.e. the President, to make the system open and consistent with courts' view.

3) Rule 6 defining committees of the cabinet and their executive powers

This rule 6 is being challenged as invalid because

a) As shown above, it will require the communication of standing committee's decisions to civil servants as not eligible for coming into open. Standing committees consisting of ministers can communicate only their advise.

b) The President under article 74(1) is to take advice from a Council of ministers as a whole. President cannot break CoM into smaller parts (of committee's) for decision making for his convenience. Breaking up itself is CoM's internal matter. In fact President is supposed to enforce collective responsibility inherent to article 74(1) . President is even further expected to return decisions as specified under article 78(c) for consideration by entire council if he feels that such a decision has not been considered by the CoM.

This rule is valid if it was a rule made by Council of Ministers for their internal working. However it is invalid to be included in President's rules.

Also, the Standing committee minister's have been given direct charge to issue orders without allocating the said business to a ministery/department/mantralaya in allocation of business rules. The orders of Standing committees will become binding once they have been accepted by a department head/ministry/mantralaya. Article 77(3) makes it binding on President to include the said business in allocation rules. Since such is not the case, rule is invalid till then.

4) Rule 12 providing power to PM to directly permit or condone a departure from these rules.

As per rule 12, PM gets direct powers to permit or condone departure from these rules to the extent he deems neccessary.

It is fact that these rules are made by the President and therefore only the President can permit or condone departure from these rules. Permitting or condoning departure from these rules of business is executive decision. PM is not the head of executive and does not have executive authority. PM can definetely advise the President to permit or condone departure from the rules, and the President is bound to act on that advise as PM is the head of CoM.

However, until that advice is accepted it does not become effective in executive functioning of the government. President can exercise his right to warn, consult and encourage. This rule is valid if it is interpreted as condonation or departure pemitted by the President, on the advice of the Prime Minister.

Corrections to these 4 rules above should get us quite ahead in sorting out this corruption.

At the constitution level there does not appear to be any systemic problem. We have chosen the Parliamentary style of working which is working very well in developed countries like UK, Canada, Australia etc. The systemic problem is therefore not as deep as being at constitutional level.

Getting one level above constitution throws up inconsistencies as shown above. The corruption appears to be spreading from inconsistencies of these business rules with provisions of constitution.

These 4 medicine prescriptions after diagnosis should be able to sort out the corruption. In case, they think clearing these rules is too tough a medicine then they can at least take the medicines with easiest first as follows:

a) In rule 12, add "President, on the advise of the Prime Minister" instead of "Prime Minister". President is anyway bound to act on the advise of the Prime Minister.

b) Mention the business of Standing Committees of rule 6, in "Allocation of business rules, 1961" such that the business of the Standing Committees fall under one department/mantralaya or vibhag. In any case, the departments/mantralaya/vibhag will be instructed by corresponding Standing Committees due to Rule 3.

c) The word "Cabinet" in rule 4 should be replaced with "Cabinet Secretariat". Cabinet Secretariat is already bound under Rule 3 to be instructed by Cabinet. Its decisions will be decisions of the Cabinet.

d) Modifying Rule 3 is going to be the toughest medicine to take. The rule in reality is useful, but not relevant under President's rules. Perhaps, they should be followed internally as Council of Minister's rules, signed by PM. Perhaps, these rules should be retained as it is, with a provision of difference of opinion between the department and minister(s) to be referred to Council of Ministers and the President.

Lets try getting these medicines across one by one.

Tuesday, February 23, 2010

Wake up

Here are a few myths about what all of you think to be true?

1) Politicians are responsible for maintaining law and order -----

You've got to be kidding me if you believe that to be true.Read the constitution. Law and order is part of your state's Governor's job.
Check out the State List in Seventh schedule of the constitution. Item 1 and 2 relate to law and order being state subject. Article 162 empowers executive powers to extend on state subjects.Article 153 gives executive power to Governors.

Therefore, law and order comes under Governor of the state.

The idea is separation of powers here. Makers of constitution knew power corrupts therefore they gave such powers not to the ministers who can anyway make country-changing laws, but to governors and his team.

2) If a politician gives a corrupt order to a bureaucrat in writing, then the politician can be booked for corruption -----

Kid me even more if you like, but this is far from true. I am sorry to break your hopes of jailing a corrupt politician solely on the basis of a clear corrupt order in writing being produced in court, but this is simply not possible.

Here's the logic. As per the constitution article 163(3), a politician's aid and advice which are orders for the bureaucrats, cannot be enquired into any court of law. So the bureaucrat gets the boot and politician saves his neck.

The idea here is trust. The assumption is that the bureaucrat trusted the ministers advice, if at all it was there, was constitutional and as per the law that is why he gave the go ahead.

3) India is completely free from the British Crown since 1947 ---
You thought we've gained complete independence. Here's the dough on this one.

India was a member of Commonwealth before independence, because of colonisation. IN 1947 Mountbatten was given the mandate by Atlee, the PM in UK, to make India free condition to continuing allegiance to Crown through Commonwealth. So he did.
Later after a year of independence Nehru requested that India should continue to get full benefits of Commonwealth in return of which India will accept the Crown as the symbol of Commonwealth.
And so it stands now. Countries of commonwealth even now cannot choose the head of the Commonwealth. The next head will be a wife ditcher whose child wears Nazi symbols and not somebody else that the countries may want to appoint.

India is very free of the British Queen. But India still recognises her authority related to Commonwealth activities. Mountbatten succeeded in granting India a conditional independence. It is not yet a complete independence. We still take some orders from a person sitting thousands of miles away in Britain , in whose appointment we have no say at all.
Don't believe me. Check out this official Commonwealth link ( ).

4) If not the politicians, at least the Supreme Court follows the constitution

The Supreme court is our best hope but it also makes mistakes. And these mistakes go a long way in giving power to politicians.

For example, constitutionally per Article 166 all government orders have to be in name of Governor or signed by persons authorised by him to do so. Courts have held that this part of constitution is really not mandatory because it'll be very inconvenient to follow it every now and then. So because of this laxity by Supreme court sometimes even politicians get to issue direct instructions bypassing the bureaucrat authorised to issue orders. And sometimes, personal opinions of bureaucrats are fished out as government decisions and thus implemented.

For another example, constitution's article 163(3) says courts are not supposed to analyse if anything and what went on between a politician and a bureaucrat. It is a matter of trust between them. Yet the courts assume that bureaucrats must be getting orders from the politicians. Such judgements make the bureaucrats who are more technically capable of taking good decisions put the onus on politicians , this inviting even more interference.

For another example, Constitution's article154(1) says bureaucrats are responsible for all the real work. Yet the court, in many a judgements make the politicians responsible for all the real work. So because of this consideration by the courts the bureaucrats do not do any real work till a politician or his henchmen asks him to do it.

These are just a few examples of costly mistakes by Supreme court in interpreting non-subjective portions of constitution. Courts basically want the system to run like the British system which it cannot because we are different. Somebody wake up the courts!!!!

5) Politicians should be judged by the amount of work done -----

Make no mistake again. Everyday real work of roads, law and order, water is not a politicians responsibility. In fact powers of politicians are much more limited in the constitution than is perceived. (As a yardstick if you'd like the word "minister" is mentioned 67 times only in the constitution compared to "Governor" which is mentioned about 350 times.) Politicians' job is to make laws applicable even after he is dead. So if your community would like a law passed with the help of your local politician that says government has to have a guarantee clause in all road builder's contracts about maintainence of roads upto 3 years; getting such a law passed would be the politician's job. If the politician is engaging himself in ensuring that the said clause is there in all contracts instead of building up consensus to pass that law then such a politician should be kicked out.
We already have a machinery that will follow the rules if politicians make them. We are not paying crores for elections in this country to make the politicians do jobs for which we already have excess people. Politicians are elected to make rules that will last longer than their term in office. Thats what constitution expects them to do.

Politicians should be judged by the amount of laws passed by them. If bureaucrats are making rules, and politicians are getting into everyday activities of the government machinery then they have got their roles reversed against the constitution.

6) The system does not work and needs a revolt ----

C'mon! Really???? Well lets say you have the revolt and you get a system in writing that you want. What will you do if even that system in writing is not being followed? Another revolt, eh?

Thats what is happening with our constitution. It was put into writing by the freedom fighters. But the very words of constitution are not being followed as written ,sometimes by good courts as well at heavy costs later on.

So you cannot say that the system does not work simple because it has not yet been put to use as it is written till now. Lets cut the bull of revolt and all therefore.

Express your opinion on youtube. Express your anger on twitter. Fwd sms. Ring up the radio fm channels. Speak up on the internet. Its the least you can do. You are educated. You've got freedom. Use it or you don't deserve it!

Monday, September 07, 2009

This is my country and nobody tells me its British in anyway..

I can't just wait and see all this dysfunctioning of the system before my eyes and do nothing about it. Thus I went into one academic research exercise some time ago, to figure out what's going wrong. All this criminal-politician-bureaucrat nexus talk has got to be a symptom of a malfunction at a higher level, and not a cause of the malfunction I thought.Basics and the original document, is what I have gone into. And I like to keep things simple for understanding, based on what I have been taught and understood.

So well, basic point number (1) My education has taught me that the constitution is supreme since it is the creator of all the powers , rights, functions of this republic. I take that at face value. Let me put it as thus that I firmly believe that the constitution is even above the Supreme court. If the Supreme court attempts to interpret the provisions of the constitutions then it has to first make a case before me that the said provision is ambiguous and needs interpretation. If the Supreme court fails to convince me about what is written in the constitution is ambiguous, then I will have to make a choice between the clear unambiguous letter of the constitution and the interpretation of the court. It is needless to say, that I will follow the written and unambiguous letter of the constitution and not the Supreme court. Simply because, the constitution is even above the supreme court. The constitution is that supreme. Its that simple.

This simple point of constitution being supreme goes further. The constitution that has been handed over to and adopted by me on the 26th Jan of 1950 has since then been supreme.Since that day, the constitution has risen even above its creator, Baba Saheb Ambedkar's opinions, or the discussions that preceded 26th Jan, 1950. The constitution presented to me after that date was even above the constituent assembly's discussions. It has become supreme. And it remains so. After that day, only Supreme court had the power to interpret the ambiguous provisions of the constitution. And the court has to use its own judgment while interpreting it. Not the opinion of constituent assembly, not the opinion of Ambedkar, not Rajendra Prasad's but its own. Not even the role model, Mahatma Gandhi's.Nothing else. If the court does that then the court is implicitly placing the assembly's debates, and the opinions of great men above that of constitution. The constitution is even above great men.Above history. Above the debate of parliamentary or presidential system. Above what inspired it.Above whether it is good or bad for me. It is what it is. And I have sworn by it as it was presented to me on 26th Jan, 1950.

The supremacy of the constitution cannot be underemphasized by me. It is the only thing after God. Supreme court needs to be very very careful while interpreting it. This was a simple point. But needed much emphasis. Supreme court should realize this that it is subservient to the constitution, and not above it by virtue of powers of interpretation. It should not force me to make a choice between its interpretations and what is clearly not ambiguous as I would hate to dutifully go against the supreme court because I respect it a lot. I may be silent but I am not to be taken for granted.

(2) The second basic point that I have been taught is about separation of powers indemocracy. Ideally, a democracy should have an independent judiciary,executive and legislative branch for keeping checks on each other. Sharing of powers would cause nexus. However, I have also been taught in my history that not all democracies may follow this in ideal sense. Now I don't care what other countries follow or not. I needed to know whether my country follows it or not. So I downloaded the latest constitution of India from the government's website( and checked it out.

It was with great and pleasant surprise that I discovered that there are three different chapters to legislature, executive and judiciary. They are not presented together anywhere.President seems to have been given far more weight in the constitution than the prime minister. A ctrl+F on the soft copy of the constitution gave me only 8 instances of Prime Minister as against 454 for the president. Somebody please tell me how the hell can the president be just a figure head. Prime minister looks more like a figure head than the President. I am definitely not paying my taxes to keep a figurehead because she is not a figurehead. The constitution , by which I have sworn, would have given all the executive power to the prime minister otherwise but it does not do so.

So how do the politicians start bullying the bureaucrats and the police in the name of the constitution? How does this nexus develop? These politicians say that it is because of article 74(1) and article 163(1) by way of which president/governor are bound to take the aid/advice of the ministers. I checked that in the constitution and found that it is true.And that puts the whole executive under the legislative, these politicians say. And even the Supreme court in various judgments says that the Indian constitution is based on Britian's Westminster model of Parliamentary system and not Presidential system. So like the Westminster model the executive powers reside with the legislative.

Well, my one problem is with this tendency of the Supreme court to assert itself above the constitution. Does it anywhere say that India would have a parliamentary system or define it?Is there any ambiguity at any part of the constitution about British model of Parliamentary system? There is no ambiguity because it is not mentioned. Why does Supreme court interpret when it is not supposed to? The court goes into Government of India Act before Independence to help in interpreting the model of constitution when it is not supposed to. The constitution is what it is. Give it a new system name if you can't find a precedent in democracy for such a model. Somebody remind the supreme court that we got rid of British on 15th Aug 1947. And that independence was not theoretical but mental as well. To assume that constitution is like the British model and therefore the assumptions of the British model apply is a grave insult to my independence of thought. I am free. The young are born free. My mind is free. So it was when I adopted the constitution AFTER independence. And to convey that the model of constitution is dependent on assumptions and workings of British model not only smacks of a mind still not independent, but also puts the constitution below or at par with the British parliamentary system whatever its assumption are. I hold that against the Supreme court.

The constitution is supreme.It is what it is. There is no ambiguity about what kind of system it is and no need to apply the system's assumptions to it. The constitution is independent. Independent of definition of any system in the world. It was adopted in freedom. It shall always be. The name of the system practiced anywhere else in the world is not relevant and the constitution is therefore not subject to ambiguity and consequential interpretation following of that system's name. It is free. A beautiful gift to the people of India on independence. And that gift was given not by British. I , the free people of this country, reject the judgments of Supreme court likening my constitution to British parliamentary system and therefore applying the assumptions of parliamentary system. My constitution is not Presidential system either if it has been declared so in any judgment. It is what it is.

The court judges ,perhaps bred in colonial institutions, never realized the independence of the mind. I need to remind the judges that they hold the seat of Supreme court of the largest democracy in the world. The Supreme court of this country is above the supreme court of England . Or United States. You are the largest and most important judiciary body in the history of civilization. You set examples. You do not fit other court or systems to your systems. You guide other systems. You are superior to all systems, only below the constitution and God. The English parliamentary system should mention that it sees Indian system of whatever name as an example for itself. The US presidential system should mention that it looks up to Indian system of whatever name as example. It is upto the Supreme court of India to lead, by example, the world. Set up a new name for the Indian system when it is clearly unambiguous from the constitution's preamble that word parliamentary or presidential system have not been mentioned in describing my democratic republic.

This over interpretation by court that of parliamentary system being the one in India , and therefore the executive being not independent of legislature is my biggest problem. Article 74(2) keeps the advice of the ministers out of purview of court. It even keeps inquiring whether any advice was tendered at all from purview of the court. Somebody tell me how doesn't this article 74(2) keep the question whether executive is acting on the minister's advice out of the courts' purview? By virtue of article 74(2), it is not for the court to decide whether a certain executive action is independent of legislature. The independence of executive action from legislature is beyond judicial purview due to article 74(2). Then why does the court keep equating the President to a King of some island country whereKing is the ceremonial head and who always needs to take advice from the ministers. Some other organ of the state can make that comment but not the court because it is expressly barred from inquiring if an advice was given at all. This article 74(2) also clearly mentions the word "if at all any advice was given" , which means that court cannot even hold the president for not following article 74(1) . It is a matter between legislature and the executive only.

But then who must the court hold responsible for executive action if it is barred from inquiring even the existence of the advice. Again, the constitution answers this as it holds all executive actions are taken in the name of president(or the governor). That is unambiguous. There is no room for interpretation. The president must be held responsible , by court, for all executive actions. It is clear.

Even if the the president submits the evidence of advice tendered by the legislature, the court should refuse to inquire into it, let alone its nature of what it is, as it is expressly prohibited in article 74(2).

It is my firm belief that this article 74(2) is the savior of the independence of executive from legislature, from courts' point of view. And the courts' must begin to hold the executive responsible for executive actions.

These are simple things clearly mentioned in my constitution. Why do judges complicate it by getting in Westminster model and what not? My constitution is based on principles that people of my country are expected to understand. All this debate of Westminster model is beyond even the educated men of my country. It stinks of an elite opinion and is not representative of opinion of the free people of this country that ours is a Westminster model.

I want to appeal to Supreme court judges as it is the only organ of the state that I have hopes from. I still respect it and bow to it. The fact that the courts have assumed dependence of executive on legislature on the basis of article 74(1) , inspite of the courts expressly barred to even inquire into existence of the advice, in article 74(2), has created the problems of bureaucrat-politician nexus. Article 74(2) words "if at all" would bar court from even assuming dependence based on advice. The supreme court needs to be shown by the people of this country, not by the legislature, not by the executive that as far as the court is concerned the constitution has kept the executive independent from the legislature. The court needs to discourage governors/presidents from presenting the minister's advice to the court as article 74(2) bars the court from even inquiring into its existence. The courts must stop the buck at the governor/president and hold them responsible for executive action. Most of the time executive actions are made answerable to the ministers under 74(1) by way of their advice. This must be stopped by the courts. The media, the people or the legislature can hold the executive for not following article 74(1) but not the court. Because the substance of article 74(1) , the advice, is kept beyond courts purview by article 74(2). But not beyond the purview of the legislature itself.

Such activist actions by Supreme court( I know I am hoping a lot from the court as it has already helped us, the free people , a lot) will help in checking legislature from undermining executive. It will help the executive in asserting its relative independence from the legislature. It will at the minimum stop this senseless transfers of IAS officers and police officers at the whim of politicians. Politicians will stop taking the bureaucrats for granted. I sincerely believe that the rise in corruption and its extense in every sphere of our lives is because of Supreme court's judgments on acknowledging even the existence of minister's advices when the governors/presidents presented them. The court should have maintained distance from even acknowledging it in spirit of article 74(2).

I would go further, and appeal to the Supreme court, to make the executive assert itsindependence from the legislature, as far as the court is concerned. Even if the executive does not want to assert the independence in court because like everybody the executive would tend to pass on the buck to the ministers. I appeal to the Supreme court to make the buck stop at the executive as far as court proceedings are concerned. Beyond that lies the advice,whose even the existence is beyond the inquiry of the court.

I believe that my constitution is most well balanced and beautiful. It keeps the executive actions under legislature by article 74(1) but out of purview of court by article 74(2). It keeps the judiciary appointment under executive but out of legislature purview. It keeps the legislature under the judiciary (who can declare laws made by legislature as constitutional or not) but keeps it out of purview of executive. One organ checks the next. In my knowledge,there is no other constitution in the world to have achieved this fine balance in three of itsorgans of judiciary, legislative and executive. I am happy and must be blessed to have got this constitution as my independence gift.

What I am unhappy about is the Supreme court judgments have not acknowledged the balance and beauty of this country's constitution. Of not making the executive realize that it is judicially independent of legislature. Of letting the executive voluntarily give up its independence to executive even in court when the buck should have stopped at the executive in the court. Outside the court, the legislature and media could have taken the buck to minister though.

Had the Supreme court asserted the independence of executive from legislature in courts then at least we would have had less corrupt society, less distrust of police and the bureaucrats.Perhaps we would have had politicians who would focus on making the laws better and tighter,instead of giving bureaucrats "advice" and get their transfers here and there. We might have had news which said that the chief minister was sternly warned by local police for smoking in public. News of how the tightened law passed by ministers made IAS officers declare every penny of their assets would have occurred. News of how the new rules passed made all the police officers declare their reasons for not keeping crime rate in check. We would have been in a much better position had the courts not unwittingly encouraged this politician-bureaucrat nexus. Legislature would have been involved in law making and passing only. Executive would have been involved in maintaining the law and plans passed by legislature only. Both would have been acting independent of each other.

Problems in my country are simpler to solve than it looks. Courts need to understand the simple concept of independence first of all. They need to realize that we have aconstitution made by free people and free minds. It is not a Westminster British model. It has its very very independent identity. They should refrain from that opinion of elite few who understand Westminster and then apply its assumptions here. I am a farmer, a cobbler, a businessman, a tribesman, a worker, an accused, a defendant but I do not understand Westminster in this country and much less will take any likening of my constitution to Westminster after independence.

Secondly, the courts must acknowledge the beauty and fine balance between the three organs in our constitution. The courts must do everything within its powers to preserve this balance,even by discouraging the executive to acknowledge even the existence of advice in a court.

Its simple and basics that are required to be understood.