India's apolitical judiciary - a national pride

by Afreeha Jawad

No longer can Sri Lanka afford to have the APRC's proposals dangling like a carrot. Contemporary times believably are the most conducive to have these proposals concreted in making those dream words 'lasting solution' a reality. But what have we done at grass roots to educate people out there on the whole idea of power sharing particularly those in the urbanized middle class.

Though India is widely believed to have a federalistic model it was not so when the Indian constitution was drafted way back in 1951 - the idea being to uphold a strong central government. India then was not very different from Sri Lanka. Yet, the difference lay here in that while India, over the years adjusted into evolving and meeting constitutional reform that necessitated respective times, we in Sri Lanka have remained stagnant within our rigid narrow and parochial enclaves most unwilling to shift one inch from the strong centre that was despite the changes that have come up over the years compelling us to make structural transformation to meet ever changing needs. However, the irony lies in the fact that a whole majority accept change as an inevitable fact - well in unison with their chosen long standing religious ideology - the cart's wheel being symbolic of that ideology.

India was luckier in not having a perverted mindset that hurdled changes which in itself comprises a unique Indian psyche. Is it because India was Buddhism's birth land while Sri Lanka, its adopted state? - a poser in lighter vein.

Talking of evolution as part of the empirical state and the need to meet its demands renouncing political pig headedness is part of prudent governance. Apart from India, we also see how French Quebee and Swiss cantons came to be as the central governments there adjusted well into meeting minority aspirations. Fighting a war is no solution to political bungling which over the years led to ethnic polarization.

When the Indian model with its unreservedly overpowering centre thought of excessive control of state governments as the best way out to govern India, it was the Indian Supreme Court that turned tables on this political excess and disallowed such control on the states. The begotten executive and legislature was cut down to sire by the Indian judiciary when it came down heavily in controlling such political arrogance which it could afford to do arising out of its apolitical state. India could stand atop roof and crow over its judiciary's independence. Enjoying judicial vibrancy has been to India's gain viewed against the backdrops of its firmness in keeping the idea of checks and balances in place. Let alone the guilt of moral dislodge, the Indian political leaders may have feared the consequences of a 'tampered with' judiciary which was why its independence was much sought after.

One of the features of power sharing in India according to Colombo university's Political Scientist Professor Jayadeva Uyangoda is that state governments are into greater autonomy. The judiciary is committed to protect these states' autonomy.

Significantly, he views Indian federalism to be asymmetrical where some states have greater or lesser power than others. For instance Jammu, Kashmir and Punjab have got more powers than other states due to separatist tendencies.

Thirdly the non-contiguous units in the Indian model reveal the effective functioning of power sharing. For example the union territory of Pondicherry has one part of its existence in Andra and another in Kerala. These territories were under French colonial rule. Pondicherry thus is not a unified territory.

In power sharing, one important principle is of majority trust in minorities. "In India this trust is there and the majority are not afraid to give minority units and more units as and when occasion demands", he informed and hastened to add that in Sri Lanka some politicians, bureaucrats and intellectuals do not trust minorities - the end result being a perennial unwillingness to share power as evidenced in the concurrent list. The Indian notion of democracy considers minority rights protection as central to the progress of the nation state. In contrast in Sri Lanka, the protection of minority rights is seen as a barrier to the unity of the nation state", he said.

Professor Uyangoda also recalled the attempts in the 1990s to remove the concurrent list - one of its chief architects being Professor G. L. Peiris. He even considered the concurrent list to be instrumental in withdrawing from the left hand what the right hand giveth. As a result the 1995 devolution proposals saw no provision for it.

However, the current political debate has gone back from 1995 and even 1987. He views the present efforts into power sharing within a smaller unit at district level as merely an administrative decentralization because it will have only a lesser framework of power.

Accordingly, the realization of the need to share power is a must. Secondly, entertaining the fear of cessation following province based power sharing holds no good in national interest. Thirdly, it would be knaive to believe national development to be led by the central government.

In arriving at these objectives, most important is the judiciary's independence for on such a judiciary rests the vibrant functioning of a country's democracy.

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