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In conversation with Shri. Kaki Madhav Rao, Former Chief Secretary, AP and Former State Election Commissioner, AP

Kaki Madhav RaoResearch team at Foundation for Democratic Reforms, had a freewheeling conversation with Shri. Kaki Madhav Rao on a wide range of contemporary governance issues such as simultaneous elections, conduct of legislative businesses, defections in political parties, judicial appointments, e-governance, administration in smaller districts and SC/ST subplan. Shri. Madhav Rao garu provided his interesting observations on all these issues.

  1. NJAC – Is the Supreme Court method of appointment of judges a correct way? What is the best way of appointing judges?

Madhav Rao: Law-making is the prerogative of the Legislature. Unanimously, all political parties said judicial appointments should be done by a Judicial Commission. Second Judges, Third Judges cases pointed out that independence of judiciary is the basic feature of the constitution. Evolution of this basic feature is rooted in the Constituent Assembly debates. Founding fathers explored the possibility of entrusting the responsibility of appointing judges only to the judiciary and alternatively, only to the executive or only to the President of India. But, they felt that giving responsibility exclusively to any one of them is not safe. So, they involved all 3 bodies – judiciary makes recommendations, executive-examines it and sends it to the President for approval. This was the original basic feature with respect to appointment of judges. However, now, judges appointing judges has become the basic feature. The famous legal principle “No man shall be a judge in his own cause” has been buried and Constituent Assembly’s spirit violated.

What is the public perception of their behavior? According to Outlook Magazine report, judges’ relatives constitute 40% of the judiciary. If the legislators do it, it can be challenged. If the judiciary is doing this, the whole country is helpless. Therefore, the issue is which is supreme?  Is it the Collegium or the Constitution or the People? Today, the Supreme Court has equated “We the people of India…” to “We the collegium…give the power of appointing judges to ourselves.” They have rewritten the Preamble with regard to the appointment of judges.

Lot of debate took place regarding the procedure of appointment of judges and NJAC seems to be the only sensible way of doing it. As asserted by JP at the round table, Collegium cannot be allowed to continue and Constitution and democracy should assert itself.

  1. As Speakers have been partisan in disqualifying the defecting legislators, should Election Commission be given the responsibility of disqualifying the defectors? What are the other ways to protect the sanctity of the House?

Madhav Rao: In a party system, a Speaker cannot be independent of the party which elects him/her.  So it has to be the Election Commission which can look into disqualification of the defectors. Since, we are going to give seminal powers to the Election Commission, we must ensure that the selection of members of Election Commission is vastly improved. Today, effectively, it is the Prime Minister who decides the appointment of the Election Commissioner. Instead of that, we must have a collegium, not of judges, but of civil society or the executive or whatever, on similar lines to the Central Vigilance Commission. So, having a selection committee to recommend a panel of members would empower the Election Commission to look into the matters of disqualification. In that panel, obviously, it is the President of India who sees the approvals. This way, the Election Commission would be freed from the exclusive control of the Prime Minister.

  1. After the implementation of SC/ST sub-plan in the state budgets, there is demand from other sections such as BCs, minorities for having their sub-plans. Do you think, it is good to have separate Sub-Plans for different classes in the society? How do we handle if there is demand from each section of the society for this?

Madhav Rao: Sub-plan is an offshoot of the reservations for SCs/STs originally, which was later extended to OBCs in pursuance of the Mandal Commission recommendations. This came up at a particular point of time due to political development in India when Mrs. Gandhi formed her own party.With the Garibi Hatao slogan she started saying that these people need special treatment. Nowhere have the inequalities divinely ordained as in the cursed three centuries old caste system of Hindu religion of India. Four groups of people are presumed to have emerged from different parts of God’s body– head, shoulders, thighs and feet. Elsewhere, inequalities were man-made like class and colour; and over a period of time, they were nearly unmade. At the time of independence, it was Dr. B.R. Ambedkar, who demanded special facilities and used the word ‘reservation’ which was called ‘Affirmative Action’ in America. This principle of reservation was introduced under Communal Award by the British government in the year 1932.

Sub-plan is, therefore, nothing but affirmative action or a welfare state for compensating the cumulative suffering and deprivation of three centuries. Article 38(2) talks of removing inequalities “not only among individuals but also among groups of people residing in different areas and engaged in different vocations”.  Yes there are poor people in Brahmin and Kshatriyas. But which should get greater priority? Group or individuals? The answer is self evident — Group.  Which group is more deprived for a longer period? Brahmin group, Kshatriya group, Mahar, Jat, Patel group or SC/ST group? We talk of priority because the non-plan expenditure requirements like salaries, pensions, repayment of loans, law and order and maintenance of assets and plan expenditure requirements like building public infrastructure take away a major chunk of government revenues and there is not enough left for taking every single poor person from the privileged castes into consideration.

It is generally alleged that Reservation for SC /ST /OBCs will adversely affect efficiency. There needs to be a study on the impact of reservation on efficiency. The champions of efficiency never ordered a study on this contentious issue. The one and only such study in Railways revealed that reservations do not hurt efficiency.

.Articles 38(a) and 39(b) talk of removal of inequalities or special dispensation. In the private sector too, there have been glaring inequalities in the corporate boards. Representation of backward castes has been very low.  A study of major corporates in year 2010 shows that out of 9052 Directors, 44.4 % belong to the Brahmin caste and 46.0% belong to the Baniya group!

  1. Simultaneous Elections – states such as Bihar and Tamil Nadu have conducted the elections in 5 phases in over 2 months. How mammoth do you think it would be to conduct simultaneous elections for Lok Sabha and 29 state legislative assemblies? Is it feasible? Do you think conducting simultaneous elections is sufficient to bring stability in electoral process? What more needs to be done?

Madhav Rao: The reason why we are talking about simultaneous election is expenditure.  Second, the administration is suffering, the developmental schemes are suffering. Though these are valid reasons, we should look at the practicality of things. Now, India is a federal country.  The state legislature and the union parliament are two different entities. To start with, we had simultaneous elections, but at some stage, the assemblies were dismissed under Article 356 or dissolved.  According to the Constitution of India, elections have to be conducted within 6 months. It does not make sense to say the state legislature doesn’t have the right to dissolve the house until the period of the Parliament expires. This is opposed to the very idea of federal system. Hence, the Lok Sabha elections and the State elections cannot always be held simultaneously. After the anti-defection law, frequency of elections has certainly come down. But some MPs /MLAs have resigned in the context of separate state or is demanding special category status etc., causing bye-elections.  For this, when there is a bye election for a single seat or a few seats, the constitution should be amended allowing bye-elections only twice a year. Further, steps could be visualised for penalising the resigning candidate to bear at least 20 -50% of the bye election expenditure. Once this is done, the objections to development will not be there.  General Elections for Parliament and Assembly can in no way be simultaneous.  It is against the federal feature of the country.

People’s will is not clearly captured in the present First Past the Post system. Proportional Representation will avoid frequent bye-election. Proportional Representation with constructive no-confidence can ensure stability.

  1. Andhra Pradesh and Telangana, connote e-governance to paperless government or governance through APPS (applications).What more do you think needs to be done for better delivery of services for the citizen?

Madhav Rao: Services like Mee – Seva has reduced corruption to some extent. Digital world is giving a lot of dividends in terms of delivery of services. We should deepen and widen the digital system.

Earlier, the Constitution of India contemplated 3 organs of the state. Then 4th organ came in, that is, the media. As of now, the 5th organ is the civil society. If civil society wouldn’t have been there, democracy wouldn’t have been what it is today. Civil society should agitate for legislation and the implementation.

  1. Do you think having smaller districts is better in terms of decentralization? What else needs to be done to bring administration closer to people?

Madhav Rao: Digital services discount physical access. When the government is going digital, splitting the districts three or four fold is not entirely necessary. What we need is fine-tuning of decentralization and digitisation. Delimitation of constituencies, it is done by Delimitation Commission. For the districts also, an expert body would make it less arbitrary or less personalized and adds to the public confidence. Digital delivery of services and proper communication facilities would address the need for many districts.  Delimitation commission would perform a better job in a given period of time, devoid of political agenda.