Wednesday, February 29, 2012

Congress allergic to Constitution

(First published in The Pioneer dated February 28, 2012)


Thirty-nine years ago, the Supreme Court delivered a landmark judgement that stands as a definitive guide to this day on the limitations of Parliament to tamper with the Constitution. But why is it relevant now to recall the issue? It is because the case offers an elaborate lesson on how shabbily the Congress has treated constitutional institutions and the shocking extent to which it can go in its pursuit to manipulate them. Given that, the recent move by the Congress to give the Model Code of Conduct statutory status and the Lokpal institution constitutional status, ostensibly to “strengthen” them, provides cause for apprehension. After all, a party that has in the past fiddled with even the basic structure of the Constitution cannot be trusted with the task of strengthening institutions that have been giving it sleepless nights even before they are constituted, as in the case of Lokpal or taking strong positions inconvenient to the Congress , as in the case of the Election Commission of India insisting on enforcing the Model Code of Conduct.

On April 24, 1973, a 13-member bench of the Supreme Court gave its ruling on what is popularly referred to as the Kesavananda Bharati case. It said that Parliament had no power to bring amendments that would alter the basic structure of the Constitution. The verdict had come in the backdrop of an ongoing conflict between the judiciary and the Parliament, then controlled by the Mrs Indira Gandhi-led Congress. That conflict had found a reflection in an earlier case too: Golak Nath versus State of Punjab where the apex court had in 1967 categorically ruled that Parliament had no right to amend the fundamental rights as enshrined in the Constitution.

Rather than accept the verdict in the Kesavananda Bharati case with grace because it had protected the fundamentals of the Constitution from mischievous tampering in the future, the ruling Congress hit back at the Supreme Court. Judges who had given judgements in favour of Parliament’s unfettered right to amend the Constitution were promoted, while judges who had ruled that the right to amend was limited and did not extend to altering the Constitution’s basic structure, were superseded. Not just that, a section of the judiciary that was aligned to the Congress even made a vain bid to review the verdict at a later stage. If some of the judges had decided to play ball with the Congress it was because in those days the Government had the power to appoint judges to the Supreme Court. The Congress had taken full advantage of that leverage and routinely sought to manipulate the judiciary. Today, the same party talks of having the “greatest regard and respect” for constitutional and statutory institutions!

In fact, until 1970 the appointment of judges was made by the Union Government in consultation with the Chief Justice of India. But the Congress had found even that arrangement inconvenient after it faced embarrassment in the Golak Nath case. Mrs Indira Gandhi did away with the policy of even notional consultation with the Chief Justice, and the Government began appointing judges on its own and intimated its choice to the Chief Justice after the names had been finalised. Senior advocate TR Andhyarujina in his illuminating book, The Kesavananda Bharati Case: The untold story of struggle for supremacy by Supreme Court and Parliament, writes of the effort that the Congress made in the composition of the Bench that was to adjudicate on the Kesavananda Bharati case. He says, “It was evident that Government was careful to appoint judges who were not likely to be obstructive to Government’s policies…when the constitutional amendments would come up for challenge in the court.” The author should know; he had assisted the State of Kerala in its battle against His Holiness Kesavananda Bharati Sripadagalvaru.

The Congress’s desperation to pack the Supreme Court with ‘committed’ judges who would rule in its favour is also highlighted in a statement made by Justice P Jaganmohan Reddy, who was part of the 13-member Bench. In his autobiography, he writes of a clique in Mrs Indira Gandhi’s Government who set out to “advise the Prime Minister to appoint judges who were committed to a policy as highlighted in Parliament.” The Congress had then virtually sought to convert the judiciary into an extended arm of its Government.

It is a miracle that despite all these sinister manoeuvrings, the Congress failed to get — though by a whisker — a verdict in favour of an unlimited right for Parliament to amend the Constitution. The Bench, by a majority of seven to six, ruled that “Article 368 (of the Constitution) does not enable Parliament to alter the basic structure or framework of the Constitution.” The ‘view by the majority’, as this came to be called in subsequent years, has been a topic of debate, but that is largely limited to legal hair-splitting. The simple fact is that Mrs Indira Gandhi and the Congress had to step back.

The immediate response of the Congress Government was swift and revengeful. On the retirement of Chief Justice SM Sikri who had headed the 13-member bench, it superseded the three senior-most judges — Justices JM Shelat, KS Hegde and AN Grover, who had been part of the majority judgement, and appointed AN Ray as the Chief Justice of India. Needless to add, Justice Ray had ruled in favour of Parliament having the full right to bring any kind of amendment to the Constitution. Another judge, Justice HR Khanna, who too had ruled against Parliament’s unfettered powers to amend, was also superseded less than four years later.

Of course, the Congress was still too full of its own bloated importance and considered the judicial pronouncement as something that should be ‘corrected’ at the earliest. There was no question of learning any meaningful lesson. Roughly two years after the verdict, Mrs Indira Gandhi imposed Emergency and suspended Fundamental Rights guaranteed by the Constitution. Again, the Congress found pliant judges who did its bidding to push through the draconian measures. As Mr Andhyarujina says in his book, “The supersession served as a precedent for appointments and transfers of judges during the Emergency in 1975.” Such has been the Congress’s concern for maintaining the dignity of constitutional bodies.

It was also towards the end of 1975 that hearing on the review of the verdict in the Kesavananda Bharati case began. Not satisfied with having muzzled the fundamental nature of the Constitution through the Emergency, the Congress Government now wanted the Kesavananda verdict to be overturned, just in case it became an obstacle in its future manipulations. But that never happened as, according to Mr Andhyarujina, the review Bench was suddenly and dramatically dissolved. This was perhaps because of the huge amount of criticism and opposition that the decision to review the judgement had led to.

Decades later, the Congress still wants to control key institutions. Its leaders lunge at the judiciary, saying that the collegium system is not working too well and that the judiciary must remain within limits. The party’s leaders ridicule the Comptroller and Auditor-General of India, make a mockery of the Public Accounts Committee and challenge the Election Commission of India. Nothing has changed.

Tuesday, February 21, 2012

States stand up to Congress's bullying

(First published in The Pioneer dated February 21, 2012)


It seems that the Manmohan Singh Government just cannot do anything right. As a consequence it keeps getting into a confrontation with not just the Opposition but also its allies on key decisions that are best taken after securing broad-based support across the political spectrum. The result is that the Congress, which heads the Government, has had to backtrack on important matters, leaving them untackled. The failure of the UPA regime to pursue its financial agenda (the fiasco over foreign direct investment in multi-brand retail) and push through anti-corruption measures (the Lokpal and Lokayukta Bill, 2011) has been extensively documented. But what has come as a shock to the people is the inability of the Government to develop a consensus even on issues relating to the security of the country and its bluster in trying to push through measures that find no favour with several State Governments that are as responsible as the Union Government is for combating terrorism. The controversy over the establishment of the National Counter-Terrorism Centre is the most recent example of that ineptness.
With nearly all non-Congress Chief Ministers and several other prominent politicians strongly protesting against the Government’s executive order to make the NCTC operational from March 1 and all but making it clear that they will not cooperate with the Union Government on the issue, the Government had no option but to strike a conciliatory note and accept that the matter would have to be discussed with the States to arrive at a consensus. That is something it should have done before it issued the order. The Government had ample time to fix the glitches. The idea to establish the NCTC as an umbrella organisation to effectively coordinate the various anti-terror measures that are being taken across the country was first mooted by Union Minister for Home Affairs P Chidambaram in 2009 in the wake of the 26/11 attacks in Mumbai. The proposal was cleared by the Cabinet Committee on Security in January 2012. Apparently, in these three years the Government made no meaningful attempt to bring the political parties on board – neither during the deliberations that led to the finalisation of the proposal nor immediately before the Cabinet gave its nod to the establishment of the NCTC. Why?
The Government has argued that, since the NCTC is just an offshoot of an Act that has been passed in Parliament, there was no need to seek any fresh consensus. It is technically true that the NCTC flows from the amended Unlawful Activities (Prevention) Act, 1967. But it is equally true that the sweeping powers that the NCTC has been given trespasses into the State subject of law and order. Rather than having discussed the issue with the States to find a way to tackle this bone of contention, the Union Government suddenly issued an executive order to establish the NCTC. This is the work of an arrogant regime that has clearly overestimated its strength.
What has especially raised the hackles of the Chief Ministers is the power given to the NCTC under Section 43(A) of the Unlawful Activities (Prevention) Act, 1967. The Section that deals with the power to arrest, search, etc, reads as follows: “Any officer of the Designated Authority empowered in this behalf, by general or special order of the Central Government or the State Government, as the case may be, knowing of a design to commit any offence under this Act or has reason to believe from personal knowledge or information given by any person and taken in writing that any person has committed an offence punishable under this Act or from any document, article or any other thing which may furnish evidence of the commission of such offence or from any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under this Chapter is kept or concealed in any building, conveyance or place, may authorise any officer subordinate to him to arrest such a person or search such building, conveyance or place whether by day or by night or himself arrest such a person or search a such building, conveyance or place.”
In other words, the NCTC will have the power to search and arrest suspects of terror-related activities in States without necessarily getting the consent of the respective State Governments. This is outrageous, because it renders the State Governments irrelevant. Moreover, even the Intelligence Bureau, to whom the director of the NCTC will report, does not have the powers to search and arrest. Worse, since the Intelligence Bureau is a shadowy organisation that is not accountable to Parliament, there is bound to be opacity in the functioning of the NCTC too, adding to the woes of the State Governments.
But, let us keep technicalities aside for a moment and accept every one of the Union Government’s defence on the controversy: That the NCTC flows from an existing law; that the State Governments will be represented in the NCTC; that the NCTC is essential to effectively counter terrorism in the country. However, there is another truth: The Congress-led UPA is facing a huge trust deficit and cannot afford more confrontations. Not only the Opposition but also its key partners have on more than one occasion questioned its motives on a range of issues in recent times. The story of another executive order, now all but dead, is still fresh in memory. The Government had through that order opened up the multi-brand retail sector to foreign direct investment. There too it had failed to take political parties including allies like Trinamool Congress on board. Consequent to the huge political outcry, it has had to hold back that order. It also failed to push through the Lokpal and Lokayukta Bill, 2011, because the States refused to be directed by the Union Government on the appointment of the Lokayukta, taking the correct position that the creation of the anti-corruption institution was the prerogative of State Governments.
Then there is a third episode that has also contributed in a large measure to the environment of distrust. It relates to the UPA’s move to bring in the Prevention of Communal and Targetted Violence (Access to Justice and Reparations) Bill late last year. Like in the case of the NCTC, this Bill too threatened to whittle down the powers of the States and give the Union Government the right to directly intervene in any case of violence that it believed was communally motivated. Worse, the Bill assumed straightaway that the majority community would be held responsible for such violence.
So, why is the Congress, which leads the UPA, so determined to damage the federal structure of the Constitution that has unambiguously laid out the powers of the Union and the State Governments? The fact is that the Congress has always indulged in undermining the autonomy of States with various measures of success. The reason why that tactic is not working now is because the party is confronted with truly strong Chief Ministers like Mamata Banerjee, Naveen Patnaik, J Jayalalithaa, Narendra Modi and Nitish Kumar who are not at its mercy for survival. The Congress has to realise that it can no longer arm-twist States into submission. Those days are gone.

Tuesday, February 14, 2012

An unabashed rabble-rouser

(First published in The Pioneer dated February 14, 2012)


The transformation of Salman Khurshid from a suave and soft-spoken politician to a rabble-rouser is now complete. His supporters can say that the ongoing Assembly election in Uttar Pradesh is the cause for this metamorphosis and that once the election is done with, Mr Khurshid will return to his affable self. Even if that happens, it will not wipe out the taint of communalism that the Union Minister for Law and Justice is now besmirched with. Anything that he does now or later to ‘correct’ this perception will be taken by the people with a pinch of salt. In short, he has lost credibility.

But why has Mr Khurshid sacrificed his impeccable reputation? It is an act of desperation by a politician who knows that the community which he is cultivating for votes (for his wife who is a contestant in Uttar Pradesh and for the Congress) is slipping out of his reach. He had the option of retaining his secular credentials even at the cost of losing the support of those Muslims who vote on communal considerations, but he did not exercise it. Instead, the Minister has plunged deeper down by compromising his position further. In the process, he has lost both his image and the support of the Muslims who are more amused than impressed by his antics.

Events of the recent past serve to illustrate the dangerous path that Mr Khurshid has begun to walk. As a Minister for Law and Justice, he has brazenly taken on the Election Commission of India, not just questioning it but even cocking a snook at it, merely because the Election Commission has taken strong objection to the Minister’s violation of the Model Code of Conduct. In fact, after Mr Khurshid made the announcement for the first time at an election meeting in Uttar Pradesh that the Congress would extend reservation to the Muslims to the extent of nine per cent within the existing quota of 27 per cent currently available to the Other Backward Classes, the poll panel had concluded that he had indeed violated the code of conduct. It had observed, “The Commission, therefore, cannot help expressing its deep anguish and disappointment over his violation of the model code of conduct.” Having expressed “anguish” and “disappointment”, the Election Commission let him off with a censure, and everybody hoped that Mr Khurshid had got the message and would reform.

But that did not happen; in fact, the Minister became even more emboldened after being let off so lightly. Days later on February 11, at another meeting in Uttar Pradesh, he not only reiterated the resolve to offer reservation, but also dared the poll panel to take action against him. “If they want to hang me they can, they can hang me for committing to people the quota. We will change the fate of the poor, even if we have to go against the Election Commission.” This is not the language of a responsible Union Minister, and certainly not the language that a Union Minister for Law and Justice should be speaking. It only goes to demonstrate the contempt with which he holds the Election Commission – an organisation which, along with the judiciary, the media and the Armed forces, is the most respected and trusted by the people in the country.

Mr Khurshid’s shocking remark has not drawn any condemnation from the Congress, which talks of upholding the sanctity of constitutional and statutory bodies. Let alone deliver a strong rebuke, the party has preferred to distance itself from his remarks, as if the promise of quota for Muslims that he has been making is strictly for his personal use and not for the Congress. Neither has there been any response from the Prime Minister. The maun vrat by both Ms Sonia Gandhi and Mr Manmohan Singh on the issue is as revolting as Mr Khurshid’s utterances. The Congress’s advisory subsequent to Mr Khurshid’s belligerence that party leaders must respect constitutional authorities, does not serve any real purpose.

In the light of the Government’s and the Congress’s inaction and the lack of any enthusiasm to act against the Minister, the Election Commission must consider a harsher response to Mr Khurshid’s action. It has already taken the unprecedented step of writing straight to the President and complaining about the Minister’s conduct. The Election Commission has said in its letter, “We have found the tone and tenor of the Union Minister dismissive and utterly contemptuous about the Commission’s lawful direction to him, besides the fact that his action is damaging the level playing field in the election. The response of a Union Minister and that too, the Law Minister, to the Commission’s decision has created a disturbing situation. The Commission is shocked that instead of being remorseful about the violation of the Model Code, that carries the consensus of all political parties and the sanction of the Supreme Court, the Minister has chosen to be defiant and aggressive.”

So, what can the Election Commission do now? It has already expressed enough anguish and disappointment; it has censured Mr Khurshid and lodged a written protest with the President. Remember, in its letter, the Commission has mentioned that the Minister has violated a code that has the “sanction of the Supreme Court”. In that case, why should it not move the Supreme Court on the matter? The legal position on the issue is best left to the legal brains, but it is assumed that any violation of the provisions that have been endorsed by the Supreme Court can be legally challenged. If the Commission does not wish to do that, it can explore other measures at its command. Surely, it is not that toothless.

Mr Khurshid has a problem with the Election Commission. He did not have a problem earlier when the Commission issued its ridiculous diktat of covering all statues of Mayawati and elephants (the election symbol of the Bahujan Samaj Party) during the election period. But the moment the poll panel took note of his remarks on reservation, the Minister lashed out, at one point trying to cut it down to size by remarking that the Commission fell within the administrative control of the Union Ministry of Law and Justice, since the Ministry signed documents which related to the travel of Election Commissioners. Chief Election Commissioner SY Quraishi had then complained about him to the Prime Minister, but remedial action from the Prime Minister, as expected, was near to nothing.

The disgraceful extent to which Mr Khurshid is willing to go in his pursuit of the elusive Muslim vote was on display when he recently told a crowd of Muslims – yes, again in Uttar Pradesh – that Ms Sonia Gandhi had tears in her eyes when he showed her the images of the Batla House encounter. (Apparently the images that he is talking of are not of the grievously injured Delhi Police office MC Sharma who succumbed later but those of the bodies of the terrorists who were holed up in the building where the encounter took place). This time it was not the Election Commission but his own party colleagues who put him on the mat. Congress general secretary Digvijay Singh, who has been the most vocal in the Congress claiming that the Batla encounter was fake, denied that Sonia had cried. Party leader Parvez Hashmi too does not remember Ms Gandhi shedding tears. She was worried, he has clarified. So, has Mr Khurshid made up this story? Given his recent conduct, nothing is beyond the Minister.

Tuesday, February 7, 2012

Clean chit that raises questions

(First published in The Pioneer)


After a series of setbacks in the Supreme Court on various matters, the Congress finally found something to celebrate when a Delhi trial court on Saturday dismissed a petition to make Union Minister for Home Affairs P Chidambaram a co-accused in the 2G Spectrum scam case. While the party’s desperation to be happy is understandable, the various justifications that trial court Special Judge OP Saini has offered to extend relief to Mr Chidambaram is not that easy to understand. Since the petitioner, Mr Subramanian Swamy, will be challenging the verdict in the Delhi High Court, the grounds on which Mr Chidambaram has been let off will be explored in detail and contested in that court. We have to wait and see how that legal battle plays out. For now, we have Judge Saini’s ruling and his logic to comment upon.

Four things are well established over which there is no dispute. They form the basis for the allegations and counter-allegations that have been exchanged between those who believe Mr Chidambaram is accountable for the 2G Spectrum scam as much (or more or less) than A Raja, who presided over the loot as the then Union Minister for Telecommunication, and those who hold that Mr Chidambaram is not culpable in any way. The first point is that Mr Chidambaram had all along been aware of the fraud that Raja was indulging in. The second is that, as the then Union Minister for Finance, Mr Chidambaram could have prevented the licences (and the spectrum that came bundled with it) from being distributed at throwaway rates. Third, he made no effort to spike the deal which clearly would lead (and later did) to a massive loss to the national exchequer. And, fourth, not only did he did not prevent the fraud from taking place, he actually endorsed Raja’s action before the Prime Minister subsequent to several meetings that he had with the now incarcerated former Minister on the issue.

Mr Swamy has relied on and placed before the court a number of documents that substantiate the issues raised above. In the process, he has questioned Mr Chidambaram’s role in failing to take preventive measures that were well within the latter’s domain. But neither the Central Bureau of Investigation nor the Government accepts the interpretation. While not denying any of the four facts mentioned above, they have maintained that nothing in them proves Mr Chidambaram’s mala fide intent, and that being a party to a wrong decision does not automatically mean being criminally complicit or culpable. Judge Saini has gone by the latter argument which is nothing but a game of convoluted reasoning.

But, before we get to the relevant portions of the verdict, here is a question: How does one determine the action — bona fide or mala fide — of a person unless that action is investigated? We can, for a moment, set aside the contention by Mr Chidambaram’s opponents in the present case that he is criminally liable over his endorsement of an act for which Raja stands accused, and assume that criminal liability is far from proved as of this date. Even so, his action remains questionable and, hence, it should have been probed, if only to determine the presence or absence of his culpability. Not to even allow for such an elementary inquiry is tantamount to short-circuiting the process of natural justice.

That Judge Saini did not see anything wrong is evident from paragraph 67 of his verdict. Having earlier accepted the material on record to show that Mr Chidambaram had endorsed Raja’s decision on awarding licences to companies without having an auction, the judge said, “A decision taken by a public servant does not become criminal for simple reason that it has caused loss to the public exchequer or resulted in pecuniary advantage to others.” This begs the question: If causing loss to the public exchequer is not a criminal act, why is Raja behind bars? By Judge Saini’s logic, the former Minister has not indulged in any criminal act.

The judge then proceeded to build upon this bizarre premise when he explained, “There is no evidence that he (Mr Chidambaram) obtained any pecuniary advantage… There is such incriminating material against other accused persons, who stand charged and are facing trial.” Well, if there is incriminating material against those persons who face trial, it is because these people were probed into by the Central Bureau of Investigation. They did not willingly present incriminating material against themselves to the authorities. This is not to say that Mr Chidambaram is guilty of a criminal act, but such possibilities can be effectively ruled out only through an investigation and not because somebody believes that a bunch of documents does not serve to implicate him.

In paragraph 68, Judge Saini relied on a happy coincidence to boost his belief that Mr Chidambaram is in the clear. He observed, “There is no evidence on record to suggest that there was an agreement between him (Mr Chidambaram) and Raja to subvert telecom policy…” One has to be extremely na├»ve to expect ‘evidence on record’ — in the form of a notarised agreement, perhaps, between the two? — which points to a shady deal.

In the same paragraph, he then observed what the media has latched on to as a quotable quote: “A bit of evidence here and a bit there does not constitute prima facie evidence for showing prima facie existence of a criminal conspiracy.” We all stand corrected. We always thought that even a ‘bit of evidence’ against a person is good enough reason to investigate the charges against him or her, without in any way concluding straightaway that the person is guilty or has engaged in a criminal act or been part of a criminal conspiracy. Just an inquiry by the appropriate agency — is that too much to seek?

Judge Saini tied himself up in knots in the process of delivering the verdict in favour of Mr Chidambaram. Take these observations made in paragraph 65 of the judgement as an instance: “In a case of criminal conspiracy, the court has to see whether two persons are… acting together in pursuit of an unlawful act. One may be acting innocently and other may be actuated by criminal intention. Innocuous, inadvertent or innocent acts do not make one party to the conspiracy.” Judge Saini should have elaborated on how Mr Chidambaram’s act of endorsing a decision of the then Telecom Minister to gift 2G Spectrum licences to firms without an auction was an act of ‘innocence’.

The learned judge also ought to have told the country what was so “innocuous, inadvertent and innocent” in Mr Chidambaram’s refusal to scuttle Raja’s elaborate loot even when his own then Finance Secretary had strongly objected to the manner in which the licences were being doled out.

For that matter, Mr Chidambaram backed Raja on the matter even though some senior officials in the Department of Telecommunication and the Telecom Regulatory Authority of India had objected to Raja’s wrongdoings.

Finally, there are really two key issues that need to be understood: First, an allegation has been made that Mr Chidambaram is criminally culpable in the 2G Spectrum scam; and second, because it’s just an allegation it needs to be investigated so that the matter is brought to a closure either way.

It is hoped that the higher courts will settle these two issues in the coming days.

Thursday, February 2, 2012

Congress has lost the plot in UP

(First appeared in The Pioneer on February 2, 2012)


Appearing on a television channel last Saturday, Congress spokesperson Abshishek Manu Singhvi dismissed with scarcely hidden contempt the findings of India Today’s latest ‘Mood of the Nation’ survey that showed the Congress in a dismal position across the country and Gujarat Chief Minister Narendra Modi as the favourite choice as Prime Minister, far ahead of Congress’s heir apparent Rahul Gandhi. Mr Singhvi may have a point when he says that opinion polls are not generally accurate reflections of the ground reality, but it cannot be denied that these are good enough indicators of which way the political wind is blowing. In Uttar Pradesh, the wind is blowing away from the Congress.

As the polling dates near for the seven-phase Assembly election in the State, the party appears to be drawn into further confusion on its course of action. Everything that it has done so far has either failed to work or boomeranged. A few days ago, inside reports of the Congress suggested that the party has all but given up on its ambitious hope of securing 100 seats, and is not sure even of winning 65 plus seats. This is sad news for a party that under the leadership of Rahul Gandhi has been working for months now to re-establish its base in the State. That things have gone wrong for the Congress cannot be denied, but it is equally true that the party’s senior leadership is responsible for the state of affairs.

Perhaps the party’s greatest blunder in Uttar Pradesh has been its aggressive foray into minority politics. For a national party that flaunts its secular (though much worn out and dimmed) credentials and wants to make a comeback in the State, the worst possible strategy is to be associated with religious appeasement. Yet, this is what the party has done, effectively cutting itself away from the support of the large number of voters that saw the Congress as a pan-caste and pan-community party. The UPA Government led by it first notified reservations of 4.5 per cent for Muslims within the 27 per cent quota that already exists for the Other Backward Classes. Later, at an election meeting, Union Minister for Law and Justice Salman Khurshid promised nine per cent reservation for Muslims in Government jobs and educational institutions. When the announcement became controversial and the Election Commission demanded an explanation, the Congress first said the announcement was the ‘personal’ opinion of the Minister and later defended him before the poll panel. On his part, Mr Khurshid claimed that what he said at the election rally was merely a reiteration of what the Congress had promised in its election manifesto three years ago.

Perhaps the Congress believes that, while it has staked its ‘secular’ image to win over the Muslims in Uttar Pradesh, it can conveniently switch back to secularism once the election is done with. But the party has failed to honour even that sham commitment to the Muslim voters. The ‘vision document’ that it released for the State recently and its manifesto do not even mention the nine per cent quota promise that Mr Khurshid had dangled before the minority community — and which the Congress had supported. The Muslims are naturally not amused by this ‘deceit’ and they are now even less likely than before to vote for the party that has developed cold feet after promising them the moon.

The Congress’s silence over the nine per cent sub-quota for Muslims also has to do with the realisation — rather late in the day with the election only a few days away — that it stands to lose the support of the bulk of non-Muslim voters if it continues with its shameless pandering of the minorities. Knowing well that the OBC pie has been more or less divided between the SP and the BJP — with the SP cornering the Yadav votes and the BJP eyeing others such as the Kurmis, the Kushwahas, the Lodhs, the Koeris, the Mauryas and the Kevats — the Congress is now desperately wooing the upper caste Brahmins that comprise some 13 per cent of the State’s population. Reports have it that the party is reaching out desperately to ‘Brahmin leaders’ in the State and may even ask Delhi’s Chief Minister, Ms Sheila Dikshit to campaign and strike a chord in the heart of the Brahmin voters in Uttar Pradesh. It helps that Ms Dikshit hails from that State.

The success of such moves is highly doubtful, though, because the upper caste votes are still largely concentrated among the SP, the BJP and, of late, the Bahujan Samaj Party. Moreover, the upper caste voters still view with suspicion the Congress’s groveling before the minorities in the State. If the party still manages to net in some of these upper caste votes, it will be on the strength of its individual candidates in some constituencies. But these may not be enough to counter the other stronger vote-banks that the rivals of the Congress have.

While the minority card has backfired, the Congress has to firefight another crisis in Uttar Pradesh: The perception that it has sought to rob the beneficiaries of the OBC quota by seeking reservation for the Muslims from within the 27 per cent pie that the OBCs now enjoy. While the SP has sought to play down the fear because it is seeking the support of both the OBCs and the Muslims, the BJP has gone to town hammering it into the non-Yadav OBCs that the Congress is planning to dip into their share and hand a good part of it over to the Muslims. There are indications that the strategy is working for the BJP and the party could end up cornering a significant share of the non-Yadav OBC votes. The BJP can turn up good figures if it can forge a non-Yadav OBC-Brahmin combination which is leak-proof.

The loss of steam in the Congress’s campaign and the visible drop in enthusiasm over its fate in Uttar Pradesh must be seen in the context of the leadership that Mr Gandhi has given the party. The aggressive though insincere outreach towards the Muslims must have been his idea — or at least he must have endorsed the plan. The sudden backing off and the decision of the party to exclude from its ‘vision document’ for the State the specific promises its leaders have been making to the minority community in the course of election meetings, too must have had Mr Gandhi’s blessings. The most charitable explanation for the mess is that his principal advisor on Uttar Pradesh, Mr Digvijay Singh, has lost the plot — though Mr Singh continues to bravely maintain against all odds that the fight in the State is between the SP and the Congress. But true leaders are those who take the blame for a loss and credit their team for a victory.

While it is admittedly too early to write the Congress’s obituary in Uttar Pradesh and foolish to anticipate all sorts of dire consequences for the party at the national level if it fails in the State, not even its most optimistic leaders will stick their necks out now and predict the sort of victory the party was projecting until a few months ago. It had then cheerfully talked of finishing at least second; now it may have to settle for either the third or the fourth position. Barring a miracle, of course.