Sunday, May 25, 2008

A State Unimagined in Law: A Wrong Without a Remedy

Arun Shourie

Throughout last week one thing seemed completely uncertain: whether the Government at the Centre would survive. Throughout last week one thing seemed just as certain: that in Bihar, Laloo Yadav's Government would return. I think it inadvisable to peg the dismissal of a Government on a single massacre: when things have reached the condition they have in Bihar, in many other parts of the country, a few score can be killed at any time, anywhere. The test ought to be the general condition.

Recall the situation. The general condition in the State has fallen through the floor. A corrupt and intimidatory gang controls the majority of persons in the State legislature. The Central Government requests the President to take the State under President's Rule. He declines. Things continue to hurtle down. Five months pass. The Central Government again requests the President to take the State under President's Rule. This time even he is convinced that there really is no alternative. The State Government is removed. The Constitution requires that the removal be ratified by Parliament. In one House, the motion turns on how parties see their immediate political interest. In the other House, the Government does not have the numbers in any case to have the removal ratified.

That in brief has been the sequence in Bihar. And everyone is reconciled to the State being handed back to that very gang looters, extortionists and rowdies.

We are in the era of coalitions, everyone keeps saying, no party is going to get the sort of majorities in the coming years which will enable it to get such steps ratified in each of the two Houses. Could it then have been the intention of the Constitution that, even though such a large proportion of the area of the country as Bihar, that even though ninety million -- the population of Bihar -- vanish into a black-hole, that even though anarchy in the State becomes a threat to the security of the country, there shall be no remedy under the Constitution?

Because of the numerous occasions on which Article 356 has been misused, the focus of all proposals for instance, of the Sarkaria Commission -- and of judgements -- for instance, those of the Supreme Court in the Nagaland and Karnataka cases -- has been on preventing misuse. The case of Bihar shows that the opposite circumstance -- that of enabling the Centre to use Article 356 when it is imperative to do so in the face of a fractured Parliament -- requires attention just a urgently.

Pursuits keep drawing attention to remarks during debates in the Constituent Assembly to the effect that "mal-administration" shall not be a ground for removing a State Government, that the remedy for that shall lie with the electorate. The word -- "mal-administration" -- is so inappropriate in a context such as present-day Bihar as to be preposterous. If all that is happening in a State is "mal-administration" one can recline back, secure in the knowledge that the consequences of what is going on shall be some minor "mal-effects", but nothing which cannot be corrected in due course. In a word, one can wait for the natural correctives to take effect -- mal-administration causes people to turn away from the Government, elections are held, the Government is replaced, administration is put back on the rails. But when the situation has reached the condition which it has in Bihar, the consequences of waiting are going to be catastrophic -- not just for the State and its hapless people, but for the country. The correction is going to be even longer in coming because of what would have become -- because of what has become -- of elections in areas deteriorate the way Bihar has : at election time, caste will over-ride quality of governance, the rulers will manage "votes"...

The damage shall be irretrievable. The framers of the Constitution had just not envisaged that such a large chunk of the country will be allowed to deteriorate to this extent. The condition stares us in the face. Not to see it -- as the Congress suddenly chose to do -- or to continue to be in a position in which, though everyone sees it, no one can act on it because "mal- administration is not a ground" is murder -- plain and simple -- of the constitutional order.

This has been the classic, textbook affliction of liberals, and liberal societies: to keep debating legalisms, to let constitutionalism paralyze the State even as the rogues use the tools of democracy to destroy democracy, the articles of constitution to destroy the constitution. The massacres are terrible of course. But even they are just a symptom: they show that large parts of the province have literally gone out of the reach of the State structure, that in large parts it is the writ of the local gang -- some "Maoist" gang here, some landlords' Sena there -- which runs, not that of the State of India. Could any enemy prepare the ground better for inducting terrorists etc. into the area?

Every single statistic about Bihar speaks to the same effect. By nature's endowments, it is the richest state in the country: yet the proportion of people below the poverty line in Bihar is a quarter higher than in the rest of the country. It has the lowest literacy rate in the country. In each Plan, a target is set for every State for the extent to which it has to mobilise its own resources for development programmes: during the Eighth Plan Bihar was able to raise only five per cent of the targeted resources. Rs 13,000 crores had been approved as the outlay for the State; it was able to spend -- just spend not "spend productively" -- just Rs. 5,405 crores. When the fodder loot was in the news, we learnt how for years on end accounts of the relevant departments had not been submitted in spite of reminders and the like from statutory authorities like the Auditor General. In those cases, non-finalization and non-submission were at least functional: they were devices for facilitating the loot. In fact, dispensing with such elitist artifacts as audited accounts has become the norm!

To enforce some discipline, it was decided some years ago that central assistance would be cut by 1 per cent if a State did not furnish audited figures of actual expenditure within four years of the close of a particular financial year. Not much of a requirement, not much of a penalty, you will say. But the Bihar Government has not been able to live up to even this little bit: between 1990 / 91 and 1997 / 98 Bihar lost central assistance worth Rs 360 crores because it could not spend amounts which had been provided for plan projects and schemes, and it lost Rs 30 crores because it could not furnish audited figures of what it said had in fact been spent!

That itself is a surprise: as the fodder-scam shows, it is by spending that Bihar leaders have been earning! Things have broken down to such an extent that they cannot ensure even that the amounts they receive from the Centre are spent! The standard charges of the State's politicians is that the Centre is treating the State in a step-motherly way, they are forever clamouring for more schemes. The reality?

Department of Rural Development: scheme, followed by actual expenditure till 1st January, 1999 as a per cent of amount allocated for the current year:

RVS: 18%;
VNP: 50;
RSP: 0.07;
CRSP: 0;
NSAP: 39;
NFBS: 36;
NMBS: 43 ....
All schemes: 31 per cent.

ARWSP, CRSP and NSAP are one hundred per cent centrally financed schemes -- the State Government does not have to put in any thing from its side: in these too the rates utilization are zero, zero and 39! Given the appalling State of Public Health and the recrudescence of diseases such as malaria, an intensive programme was drawn up for rural sanitation. No work, just no work has been done under it for the last three years.

Bihar has 67,000 villages. On paper 46,000 of these have been electrified. To say nothing of the number of hours for which electricity is available in these electrified villages, a Central team which visited the State in February found that, even on the telling of officials of State Electricity Board, 12,000 of those "electrified villages" have reverted to absolute darkness. Cause? The conductors etc. have been stolen!

Everyone keeps saying that the way land reforms have been sabotaged in Bihar has been one of the main causes of unrest and tensions in the State. Generations of politicians of the State have been fooling the poor saying they will deliver "land to the tiller". Facts? About twenty one lakh acres were donated under the Bhoodan movement. Vinoba is dead. The movement is long forgotten. It isn't as if the State had to part with any land of its own. It isn't if it had acquire land from the big landlords. The land had already been gifted. Nor is it that the Government had to do something that would be unpopular. And yet, all these years later, only a third of this land has been distributed!

Everyone has been saying that one of the impediments has been the woeful State of land records in the State. For this purpose the Centre formulated a scheme for the computerization of land records. It pledged to meet the entire expense of the task. About Rs 5 crores have been given to the State for this purpose; it has been able to utilise only Rs 22 lakhs! The target is that by December next year there shall be one hundred per cent coverage of "Jot Bahi/Khatta": actual coverage till now? Ten per cent. But Laloo is the mascot of social revolution, he is messiah of the poor!

The education system has broken down. Governmental hospitals are cess-pools of disease and dishonesty. Teachers have to go for months without their salaries, when at last they get the salary it is a fraction of what is due to them. The Secretariat remained paralysed for long a while ago...

It is well known of course that the State has sunk into a morass of crime. The even more ominous fact is that the nature of crime has changed. Indeed, the word "crime" is as much a misnomer as "mal-administration". Kidnapping for ransom, murders on failure to pay ransom -- these have become an industry, indeed, they are the only growth industry in Bihar. There is a second feature.

Reports available with the Centre list leader after leader, minister after minister as being the one behind this gang or that kidnappers and killers, of their being implicated in this instance of kidnapping and that, of murder, of gun-running, of smuggling.

"... Minister of State for Revenue and Land Reforms,... Minister of State for Relief and Rehabilitation,... Minister of States for Food, Civil Supply and Commerce,... Minister of State for Welfare are involved in various criminal cases," a Central report reads. Furnishing details of the cases, it remarks, "The charges against Shri..., Shri..., and Shri..., include, inter alia, kidnapping." It says that there are in addition reports that Shri..., another minister, "is patronising the gang of Bulaki Sah which is involved in kidnapping for ransom in Muzzafarpur area." "Another minister, Shri... is reportedly patronising the gang of Jamadar Singh which is involved in kidnapping for ransom... It lists two other ministers and notes that they too are suspected of being in the same industry.

"There are reports," it is proceeds, "that Shri..., MP (RJD) had connived in the kidnapping (July 15, 1997) of Shri N. K. Jaipuria, a leading businessman of Bangalore. Interrogation of one of the accused in the case revealed that the gang was in close contact with Shri... [The MP], Shri... (MLA, RJD) and Shri... of UP. The accused also revealed that he had collected three pistols from Shri... [the MP] to accomplish the task."

Next para: "S... M.... S..., an RJD MP from..., is a Mafia don having an estimated strength of 100 armed followers. He virtually runs a parallel administration in the district. His gang, it is reported, attacked those police officers who were inconvenient to him. It is learnt that he was responsible for the attack on SP, Siwan. Killing of Chandrashekhar, CPI-ML leader and ex-JNU student at Siwan, is also attributed to him. Equipped with automatic and semi-automatic weapons like AK series rifles (15), carbines (20), pistols/revolvers (160), Mausers (5), and hand grenades (80), the gang of.... operates in Siwan and its adjoining districts. The gang is responsible for political killings, collecting ransom from kidnapping rich traders/industrialists, extorting money from general traders/contractors, smuggling of arms, synthetic drugs, etc. The gang is reported to have relations with Daud Ibrahim gang presently based at Dubai..."

Next: "The gang headed by Parmanand Prasad, younger brother of Shri..., is active in East Champaran, Muzzafarpur and Siwan. The gang is reported to have in possession AK-47 / 56 rifles (10 approximately), carbines, regular and country-made revolvers / pistols / rifles / guns. The major activity of the gang is presently trans-border smuggling in association with Nepalese Mafia dons. The gang is also involved in illegal arms traffic. Besides, the gang is involved in kidnapping for ransom, political murder, extortion etc. The gang has a good hold in the State Government and the police machinery of the area..."

Next: "Apart from keeping their own criminal gangs, RJD leaders are also actively patronising criminal groups. Such patronization is learnt to have been extended by Shri..... through his close relatives, mainly his brother-in-law,..." The report goes on to detail the criminal activities --- smuggling across the Nepal border, it mentions the "close links" which the brother-in- law maintains with "the most dreaded criminal of West Champaran," Bhagar Yadav, it mentions that "huge money" is reportedly received from this dreaded criminal, involvement of the gangs is kidnapping for ransom. The report says that the officers have learnt that the leader, whom it names, "personally intervened and transferred the then SP of Bettiah district when the latter engaged the Bhagar Yadav gang in encounters (1997)..."

The activities of the rulers are listed -- elimination of criminals of other caste groups..., apart from links with criminal gangs, the links that are assiduously maintained with the Maoist Coordination Committee...

Each time a carnage attracts notice outside the State, the State Government has two standard responses. It sets up a commission of inquiry, it asks for more resources from the Centre -- more paramilitary forces of the Centre, more funds to modernize its own police. And what happens to these commissions and resources?

December, 1997: Massacres by the Ranvir Sena become an issue, allegations fly -- each party says the Sena is an affiliate of the other. Justice Amir Das Commission is set up to excavate the facts, and nail the affiliations.

Thirteen months have gone by. Last month the Chief Secretary told the Central team that accommodation for the Commission was in the process of being arranged!

June, 1998: Yet another leader is killed. A judicial commission of inquiry is set up. Seven months have gone by, the judge is yet to be named...

Resources: In December, 1997 Bihar had one company of central para-military forces, today it has twenty four... Funds have been given for modernization of the State police force: the Central team inquired about Palamu district which is severely affected by "Maoist" violence, only to find that not one bit of the funds made a vailable has reached; in other districts that are badly affected --- Dhanbad, Bokaro, Gumla and Ranchi -- the story turns out to be the same...

The terror in which the people live... The terror to which even the enforces of law have been reduced... the increasing incidents of violence against their own officers and defiance of their orders by policemen: 18 November, 1997: 50 - 60 policemen armed with lathis enter the court of the Additional District Judge, Bhagalpur, assault him for not granting armed bail to a sub- inspector...; 2 February, 1998: An assistant sub-inspector is killed by CPIML cadres, the D M comes to the funeral, the policemen manhandle and abuse him ..: 1 March, 1998: protesting the killing of a policeman by the MCC, policemen ransack the house of the SP, the SP and his family barely manage to escape from the rear gate, the D M rushes to pacify them, his car is set upon...; 14 April, 1998: Criminals kill a policeman, his colleagues block traffic near the Police Lines in Biharsharif, they refuse to lift the blockade even after the SP and D M appeal to them...

One of the senior-most officials visited Bihar in December, 1997. His note reveals what affairs have sunk to: "... Several Block Development Officers and Circle Officers do not stay at their headquarters and are seen mostly at district headquarters and/or loitering at Patna as they go only for a few days in a month to disburse the salaries and to honour the bills of the contractors. The routine functions of the revenue administration like inspection of sarkari land, preparation of land records are not taking place. The police station, the Circle Offices and blocks are not inspected by their Senior Officers. In some districts, even SPs and D Ms do not stir out of their houses after sun-set. Instances of police vehicles and police pickets being attacked and arms snatched are not infrequent. Development activities have been seriously undermined by all-pervasive corruption and extortions in the form of 'cuts', to the extent of 30% of the funds earmarked for various schemes, to the left-wing extremist groups. There are areas where the only symbol of administration is the isolated police picket set up to deal with the left wing extremist lawlessness and the Police Station...."

Team after team documents the collapse. Far from acting on the information, the Central Government cannot even make the information public. How did the secret report become public?, the criminals will orchestrate the shout. How has this journalist got what has not been made available even to Parliament?... Esoteric analyses will commence about the Official Secrets Act, about the privileges of Parliament... And the culprits will be back in the saddle...

Is that what the Constitution-makers intended? Is this condition just "mal- administration"? Is there no remedy for it under the Constitution? If there isn't, what can be a stronger ground for amending Article 356?

Daily Excelsior
March 05, 1999

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