[ This is Essay # 25 in our Spotlight Series. Click here for the archives.]

Is bad governance in our Constitution?

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Shruti Rajagopalan

I enjoy following politics and, even more so, observing politicians. Watching the frontrunners through the debates for the primaries and general mud slinging in the US Presidential Elections or the Cypriots pick a leader from the Communist Party is interesting at the very least, if not entertaining. Far less entertaining is watching the Thackeray tactics of building a following through regionalism. And witnessing Modi win for the third time is, of course, an absolutely distasteful experience.

In India I have heard too many speeches, fewer debates and virtually no distinction in the politics between parties and candidates. The promises are almost always the same, usually focusing on a particular region, caste or community or invoking the names of the same dead people.

Another worrying trend is that demands for good governance are rarely on the forefront of these elections. Governance, among security, law and order, college admission, promises to farmers, and other things is in the long list, but rarely the moot issue. Which brings me to the question - if not governance, which should be the main function of candidates, what is the moot issue during Indian elections? Here I will take liberty to generalize, but often elections are won by (a) appealing to a particular religion, caste, community, region by making specific promises; (b) identity politics through the illustrious family name, (c) by identifying with a small group (large enough to make one win) and, if one is lucky, a combination of the above married with an anti-incumbency wave.

Now I don’t mean to berate our politics and say it is less developed than US or Cyprus, quite the contrary. But it makes me wonder, that despite being the vibrant democracy that we are, why do we not demand good governance?

Since I am a lawyer, I look at the constitution to find answers to these questions. So, is bad governance in our Constitution? It might as well be. There are constitutional provisions which are the reason for the regional and caste based politics in our country. What is worse is they are clubbed under the equality clause!

The story, like most stories with bad endings, begins with a constitutional amendment. Article 14 guarantees equal protection and Article 15 specifically prohibits discrimination based on grounds of religion, race, caste, sex or place of birth. Nehru, who wanted to uplift the backward classes in his first term, was prevented from making “socially beneficial legislation” because of such a ‘narrow’ equality clause. So Nehru did what he usually did when the judiciary got in the way. He amended the constitution. In the First Amendment Act, 1951 he added a fourth clause to Article 15 that permitted the State to make special provisions for the advancement of any socially and educationally backward classes and Schedule Castes and Tribes. While this sounds wonderful on paper, much like most of Nehru’s development agenda, it has a huge consequence on how elections are fought in this country.

To begin with, God did not declare who are “scheduled” to be in the SC/ST list or determine the cut off for “socially, economically, culturally or educationally” backward. It is a creation of man. Usually a man who is sitting in the legislature or is hoping to get there soon.

Imagine a class in primary school where the rule is that the students sit according to their height. The short ones in front and the tall ones behind. This implies the short ones never get to have much fun in class, since they are sitting right under the teachers’ nose. Students elect the class leader among students, usually a popularity vote, and one of the duties of the class leader is seating arrangement. The other duties such as keeping the board clean and ensuring supply of chalk are fairly irrelevant to the current situation. If there are 2 candidates; short and tall (since this is as good a random sample as any) standing for the post of class leader, what might happen?

If the short candidate is also a smart kid (and why shouldn’t he be?) he will promise the short people who like to have fun that he will seat them at the back. There is some immediate support for his cause, though he doesn’t have the numbers to back it. The tall students have no such agenda because they already sit at the back in the current regime. And the short student manages the numbers to win. If there had been more than 2 candidates in this class leader election, he would have the numbers to back him, since the percentage required to win gets smaller. Of course, if there is no election and the teacher picks the candidate, then the one who is picked is usually the geekiest, insufferable know-it-all student who sucks up to the teacher and couldn’t be bothered with class seating. This would be the primary school equivalent of a totalitarian regime.

This is precisely what happens in elections in India. The community is divided into narrow groups that are as easily distinguishable as tall and short people. The constitution encourages such divisions for the purpose of “targeted” beneficial legislation. It becomes easy to round up people from one caste or region, find a leader who supports that caste and promises them seats. Not seats in the front or the back of the class. But in engineering and medical colleges and job appointments in the government. The groups, that feel they have been persecuted historically, engage in this dialogue. This is the political equivalent of economic rent seeking.

How do the numbers work? Let me give you a real example not involving primary schools, since real elections never do involve primary schools. In the 2004 Parliamentary Elections, Uttar Pradesh had voter turnout of only 48% - one of the lowest in the country. Of the 80 seats in UP, 65 seats had over 10 candidates per constituency with some constituencies having up to 32 candidates. In the Mohanlalganj constituency where there were 10 contestants, the winner won by a margin of 0.004%. The winner won only 25.8% of the votes implying three quarters of the electorate was not in favor of the winning candidate. His policies will reflect the choices of only a fourth of the electorate. All you need to unseat the incumbent is 25% in this case and even lesser in other cases where fractionism is even greater in the constituency. This is also known as the First-Past-the-Post system of elections.

This is precisely what we see in Indian politics. The candidates do their homework on the demographics of their constituency. They round up the backward communities and minorities (and minorities can be the majority vote bank in the First-Past-the-Post system) and make their particular cause the election agenda.

Bijli-sadak-paani is reduced to rhetoric, behind which the important agenda of social advancement and seats in engineering colleges and job appointments is cleverly hidden. Of late, they are not even cleverly hidden. It is all out in the open. Clear appeals are made to voters on the basis of religion, caste, race, and as in the Thackeray case, place of birth and residence.

So, am I seriously suggesting that the constitutional provision for social advancement of the backward communities is a bad idea and must be done away with? Absolutely not! That is the subject of another piece, perhaps even a book.

Am I saying that such populist and caste based politics is an unintended consequence of this constitutional provision? Again the answer is no; it is not an unintended consequence. The legislators intended precisely this when they supported the constitutional amendment and passed such beneficial legislations. The ‘educationally backward’ figured this out and the rest of us are just deluding ourselves with the equality and development agenda.

All I am saying is that we must stop expecting good governance. There is no point. The numbers will not allow it, nor will the people. The special interest groups are way ahead in this game. Unless we prohibit legislation which violates equality and benefits a certain class of people (which would have to be done constitutionally since legislators are going to show no such restraint); policies and governance will never be at the forefront of political debate. But the unintended consequence downside will be that political news on television will be far less entertaining!

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Shruti Rajagopalan is an Erasmus Mundus Scholar currently pursuing her Masters in Law and Economics in Europe.