Dear Friends,
This article is taken from Frontline.While writing the answers it is very important to have an all round understanding of the constitution. More importantly every now and then civil servant will have to interpret the the constitution in its real spirit. These are the articles which you have to read again and again.
Regards
GMStudyCenter
Article is written by A.G. NOORANI
It is the people who alone can make it work.
C. Rajagopalachari, Vallabhbhai Patel and Jawaharlal Nehru. Nehru was the
Chairman of the Union Constitution Committee and the Union Powers Committee.
Vallabhbhai Patel was the Chairman of the Committee on the Principles of a Model
Provincial Constitution and the Advisory Committee on Minorities, Fundamental
Rights, etc.
“Constitutions are easily copied, temperaments are not; and if it should
happen that the borrowed constitution and the native temperament fail to
correspond, the misfit may have serious results. It matters little what other
gifts a people may possess if they are wanting in those which from this point of
view are of most importance. If, for example, they have no capacity for grading
their loyalties as well as for being moved by them; if they have no natural
inclination to liberty and no natural respect for law; if they lack good humour
and tolerate foul play; if they know not how to compromise or when; if they have
not that distrust of extreme conclusions which is sometimes misdescribed as want
of logic; if corruption does not repel them; and if their divisions tend to be
either too numerous or too profound, the successful working of British
institutions may be difficult or impossible.
“It may be least possible where the acts of parliamentary persuasion and the
dexterities of party management are brought to their highest perfections. Let
the political parties be reduced to two (admittedly the most convenient number
for Cabinet government), but let the chasm dividing them be so profound that a
change of administration would in fact be a revolution disguised under a
constitutional procedure” (Walter Bagehot; The English Constitution, The
World’s Classics; Oxford University Press; 1867, Balfour’s Introduction to
the Second Edition, 1928; pp. xxii-xxiii).
THE framers of India’s Constitution decided, at the very outset, to adopt the
parliamentary system of government based on the British model. On this the two
top leaders were agreed. Jawaharlal Nehru was Chairman of the Union Constitution
Committee as well as the Union Powers Committee. Vallabhbhai Patel was Chairman
of the Committee on the Principles of A Model Provincial Constitution and the
Advisory Committee on Minorities, Fundamental Rights, etc.
As early as June 5, 1947, it was decided, at a joint meeting of the Union and
Provincial Constitution committees, to emulate the British model. Patel
announced the decision in the Constituent Assembly on July 15, 1947: “Both these
committees met and they came to the conclusion that it would suit the conditions
of this country better to adopt the parliamentary system of Constitution, the
British type of Constitution with which we are familiar” (Constituent
Assembly Debates (CAD); Vol. 40; page 578).
Two days later, Patel told the Assembly that “a Schedule according (sic.) to
the traditions of responsible government will be framed and put in”. Members
demanded that the Schedule be put in first before the clause conferring powers
on the governors was adopted. Patel retorted angrily: “It has been suggested
that there is no guarantee that the Schedule will come. There is as much
guarantee about it as a guarantee that the House will meet tomorrow” (ibid.,
pages 648-649).
Two years later, on October 11, 1949, at the fag end of the Assembly’s
labours, the Schedules containing two Instruments of Instructions, for the
President and the Governors, were dropped; a little over a month before the
Constitution was adopted on November 26, 1949. The Instruments codified a few of
the conventions on which the uncodified British parliamentary system rests. T.T.
Krishnamachari, a member of the Assembly’s Drafting Committee, explained
unconvincingly: “It has now been felt that the matter should be left entirely to
convention rather than be put into the body of the Constitution.” The directions
to the President and the Governors “really should arise out of conventions
that grow from time to time, and the President and the Governors in
their respective spheres will be guided by those conventions” (CAD;
Vol.X; pages 114-116. For the texts vide B. Shiva Rao The Framing of India’s
Constitution: Select Documents on India’s Constitution; Vol. IV; pages 67-6
8. emphasis added, throught). Sixty years of the working of India’s Constitution
have belied these expectations which were unrealistic even in 1949. What Indian
conventions did he expect to “grow”?
It would be a gross exaggeration to say that the perversions of the
parliamentary system we have witnessed all these years, at the Centre and in the
States, would not have occurred if only the conventions had been codified. Even
the letter of the supreme law, the text of the Constitution, has not been spared
abuse. But codification could have served as a significant check and, more, as a
guide to the people by which they could judge the conduct of those they had
voted to power.
Each of the major offices and institutions that the Constitution set up in
1950 bears a battered shape in 2010 – the President, Parliament, the Supreme
Court, Governors, State Assemblies and the High Courts. The generation that
works the system it established has a radically different outlook from that of
those who enacted it and worked it for some years thereafter. As far back
as 1962 Myron Weiner wrote of “India’s two political cultures”, the culture in
the districts and “the second political culture [which] predominates in New
Delhi”, an “emerging mass political culture” and an “elite political culture”
(Political Change in South Asia; Firma K.L. Mukhopadhyay; page
114).
This was, perhaps, a trifle simplistic even in 1947 or 1962. By 2010 the
divide has all but vanished. We have had Prime Ministers like Charan Singh,
Chandrashekhar, and H.D. Deve Gowda, who could have done little credit even to
the office of the Chief Minister. Parliament is as rowdy as any State Assembly.
It is more meaningful to talk of our constitutional culture. Dr B.R. Ambedkar,
Chairman of the Constituent Assembly, was steeped not only in British and
American constitutional history and constitutional law, but also in the history
of Greece and Rome and in political science. In this he was peerless among
lawyers. His colleague, Sir Alladi Krishnaswami Ayyar, was an erudite
conservative, while K.M. Munshi, alert to political realities, spoke more than
once, unlike Sir Alladi, in defence of the citizens’ rights.
Constitutional lawyers of the time had drunk deep at the fount of British
constitutional lore. With H.M. Seervai’s death in 1996, the last of the
constitutional lawyers was gone. We have advocates of conspicuous ability ready
to argue on complex issues of constitutional law or company law but bereft of
the erudition and the insights that make a constitutional lawyer. They know
little outside the law. If this seems harsh, listen closely to the off-the-cuff
remarks they so readily dish out to anchors on television shows or editors at
the drop of a hat, as it were.
When did we last see a single judge of the Supreme Court who had earned a
reputation as a constitutional lawyer before his appointment to the
court? How many erudite, incisive commentaries on the Indian Constitution can
one cite today? The discourse is debased by political partisanship, craze for
publicity, and an assertiveness that is not backed by learning. Constitutional
illiteracy has spread. Informed critiques are few. Abuse receives censure that
is sporadic and seldom well-informed.
There is something lacking and that is the spirit of
constitutionalism. Balfour’s caution is one of the many that mocks us as we
survey the situation today. Gladstone held that the British Constitution
“presumes more boldly than any other, the good faith of those who work it”. That
good faith is none too conspicuous in our public life.We resented British admonitions as excuses for denying India its right to
govern itself. Especially these observations in the Report of the Joint
Committee on Indian Constitutional Reform: “Parliamentary government, as it is
understood in the United Kingdom, works by the interaction of four essential
factors; the principle of majority rule; the willingness of the minority for the
time being to accept the decisions of the majority; the existence of great
political parties divided by broad issues of policy, rather than by sectional
interests; and finally the existence of a mobile body of public opinion, owing
no permanent allegiance to any party and therefore able, by its instinctive
reaction against extravagant movements on one side or the other, to keep the
vessel on an even keel. In India none of these factors can be said to exist
today. There are no parties, as we understand them, and there is no considered
body of political opinion which can be described as mobile” (Vol. 1 (Part 1)
Session 1933-34; Her Majesty’s Stationery Office (HMSO), London; 1934; page
210). It was an illiberal document, but those words sting. They are so true.
South Asia is unique among parliamentary democracies in enacting laws against
defections by legislators. Such a malaise cannot be cured by laws alone. It
reflects a state of political morality and an outlook that rejects the system.
The defector will readily topple a newly elected government for personal gain
and even wreck the system for political gain. To his niece Blanche Dugdale,
Balfour was more forthright, in a conversation on April 25, 1925: “I doubt if it
is written in any book on the British Constitution that the whole essence of
British parliamentary government lies in the intention to make the thing work.
We take that for granted. We have spent hundreds of years in elaborating a
system that rests on that alone. It is so deep in us that we have lost sight of
it. But it is not so obvious to others. These peoples – Indians, Egyptians, and
so on – study our learning. They read our history, our philosophy, and our
politics. They learn about our parliamentary methods of obstruction, but nobody
explains to them that when it comes to the point all our parliamentary parties
are determined that the machinery shan’t stop. ‘The King’s government must go
on,’ as the Duke of Wellington said. But their idea is that the function of
opposition is to stop the machine.”
The constitutional lawyer Ivor Jennings wrote in his famous work Cabinet
Government: “The function of parliament is not to govern but to criticise.
Its criticism, too, is directed not so much towards a fundamental modification
of the government’s policy as towards the education of public opinion… the
government governs and the Opposition criticises. Failure to understand this
simple principle is one of the causes of the failure of so many of the progeny
of mother of parliaments and of the suppression of parliamentary government by
dictatorship” (page 16).
The frailty of public morality of India’s political class was no secret even
during the freedom movement. Motilal Nehru wrote to his son Jawaharlal on
December 2, 1926, about the tactics used “under the auspices” of men of stature
like Madan Mohan Malaviya and Lajpat Rai in an election: “Communal politics and
heavy bribing of the voters was the Order of the day. I am thoroughly disgusted
and am now seriously thinking of retiring from public life…. The Malaviya-Lala
gang aided by Birlas’ money are making frantic efforts to capture the Congress”
(Jawaharlal Nehru; A Bunch of Old Letters; 1958, page 50). The Governor
of Bengal Lord Lytton complained to the Viceroy about the practice of bribing
members of the Legislative Council in the early 1920s (Evolution of
Parliamentary Privileges in India till 1947; Salil Kumar Nag; 1978; page
212).
The wise Rajaji saw it all and wrote while in prison: “Elections and their
corruptions (sic.), injustice and life power and tyranny of wealth, and
inefficiency of administration will make a hell of life as soon as freedom is
given to us. Men will look regretfully back to the old regime of comparative
justice and efficient, peaceful, more or less honest administration.“The only thing gained will be that as a race we will be saved from dishonour
and subordination. Hope lies only in universal education by which right conduct,
fear of God and love will be developed among the citizens from childhood. It is
only if we succeed in this that Swaraj will mean happiness. Otherwise it will
mean grinding injustices and tyranny of wealth.”
None of this was absent from the minds of the framers of our Constitution,
least of all from the most erudite and discerning one among them, B. R.
Ambedkar, Chairman of the Drafting Committee. He was far removed from the tribe
of lawyers whose vision is limited to texts and precedents. Ambedkar was
erudite, profound and insightful.
Constitutional morality
While moving for the adoption of the Draft Constitution in the Constituent
Assembly on November 4, 1948, Ambedkar quoted at some length Grote, the
historian of Greece, on constitutional morality. It meant “a paramount reverence
for the forms of the Constitution, enforcing obedience to authority acting under
and within these forms yet combined with the habits of the speech of action
subject only to defined legal control, and unrestrained censure of those very
authorities as to all their public acts combined too with a perfect confidence
in the bosom of every citizen, amidst the bitterness of party contest, that the
forms of the Constitution will not be less sacred in the eyes of his opponents
than in his own.”
Such confidence was not overly abundant even in 1948. Sixty years later, it
does not exist. Ambedkar was not unaware of its frail nature. “Constitutional
morality is not a natural sentiment. It has to be cultivated. We must realise
that our people have yet to learn it. Democracy in India is only a top dressing
on an Indian soil which is essentially undemocratic” (CAD; Vol. VII; page 38).
The seth who converts his proprietary firm into a company does not acquire the
corporate culture.
On November 25, 1949, when he moved “That the Constitution as settled by the
Assembly be passed”, Ambedkar said: “However good a constitution may be, it is
sure to turn out bad because those who are called to work it happen to be a bad
lot…. It is, therefore, futile to pass any judgment upon the Constitution
without reference to the part which the people and their parties are likely to
play.” The following day the President of the Constituent Assembly, Rajendra
Prasad, pointed out that many things that cannot be written in a constitution
are done by conventions. “Let me hope that we shall show those capacities and
develop those conventions.” (CAD; Vol. VII; page 38, and Vol. XII; pages 975 and
993).
Indian politicians, the tallest included, betrayed the trust reposed in them.
As far back as November 19, 1954, the then Union Home Minister, Kailash Nath
Katju, described the practice in vogue in these picturesque terms in the Lok
Sabha: “Offer some plums before them, give a laddu to one, a
rasagulla to another… members from Independents will join and you will
then be able to produce a majority. Now, this is an insult to the Constitution.
This is a mockery of the Constitution.”
A Constitution rests on the foundations of basic norms of political morality
as Katju correctly noted. The situation deteriorated further in 1967 when the
Congress lost its hegemony. Defections became the norm. Now half a century after
Katju spoke, we have lost not only vestiges of political morality but also a
national consensus on which a democracy can function. During 1969-1989 it was
Indira Gandhi, and later Rajiv Gandhi, versus the rest. From 1990 to this day,
it is the Bharatiya Janata Party’s Hindutva versus the rest. We are a badly
split polity justifying Balfour’s fears.
It is absurd to suggest that the presidential system accorded better with our
national character such as it is. The defector or bitter partisan who topples a
government in the parliamentary system will bring the government itself to a
grinding halt as Newt Gingrich did in the United States. In India, it would pave
the way for a legitimised autocracy. It is, however, one thing to lament the
growing disconnect between constitutional values and public morality and between
the text of the Constitution and the underlying conventions of the parliamentary
system on which the text is based. It is another to assert that the Constitution
is unsuited to the Indian character and temperament and should be discarded in
favour of a shuddh (pure) swadeshi document, as the Rashtriya
Swayamsewak Sangh (RSS) holds.
This was the very argument which Indira Gandhi’s supporters in Britain
patronisingly asserted during the Emergency. They received their just deserts
from Prof. W.H. Morris-Jones, Constitutional Adviser to the Viceroy in 1947 and
a scholar of high repute: Referring to Eldon Griffiths’ defence of the
Emergency, Prof. Morris-Jones wrote to The Times (London) on June 25,
1976:“Mr Griffiths’ jibe about ‘exhibit A of the Westminster model abroad’ misses
the point that it had become a specifically Indian achievement; it only
adds insult to the injury already suffered by Indian democrats. Such denigration
has long been a sport in which high imperial Tory and revolutionary Marxist
could find common enjoyment. Even your own leader (June 21) chose an odd time to
point out the limitations of democracy under Congress, for an incomplete
democracy is diminished further, not remedied by illiberation.
“Nor can one easily detect any clear and consistent signs that the elite-mass
gap which you deplore is being closed by the present regime of Mrs Indira
Gandhi. And just how may the change ‘accord better with indigenous habits’? Are
habits never modified? Had not growing numbers of Indians begun to make the
habits of liberal democracy indigenous? Surely it is a ‘massive’ loss when
damage is done to a way of political life which in two decades had already
converted into citizens so many who had been subjects beyond the political
pale…. Moreover, the gains are doubly suspect. In origin they are at best
uncertainly attributable to Mrs. Gandhi’s dose of autocracy. In their effects
they appear too fragile to endure. Unitedly, Indian democracy had freely
mobilised demands and grievances; in its place is put none of the usual
alternatives.”
The Constitution of India is very much an Indian achievement and Indian
democracy, which it nurtures and protects, has struck root in the Indian soil.
These achievements were predicted by some British statesmen. By none more
prophetically or eloquently than Thomas Babington Macaulay who is decried for
his thoughtless Minute on Indian Education dated February 2, 1835. Overlooked is
his majestic peroration in the House of Commons on July 10, 1833, perhaps the
very first prediction by anyone, English or Indian, of India’s eventual rise to
self-government (“demand European Institutions”).
The parliamentary system has struck root in the entire South Asia. Its
practice can be improved. There is no cause for despair provided the causes are
accurately understood and the remedies effectively devised. Consider the office
of the President. The first holder of the office, Rajendra Prasad, sought to
undermine parliamentary democracy. His successor, S. Radhakrishnan, bared his
ambitions and animosities no sooner than he assumed office. Bar Zakir Hussain,
we had since rubber stamps or intriguers. We owe it to Shankar Dayal Sharma and
K.R. Narayanan that in 2010 the office is just what the framers intended it to
be – a constitutional head of state in the parliamentary democracy. How did this
come about? Because all the major political parties realised that it was in
their interests to abide by the rules. A wayward President is a menace to
all; to one party now, to the opposition tomorrow.
Eleven principles
The record from 1950-2010 establishes the following eleven principles. First
and foremost, it is now firmly established that the President is entitled, in
exercise of his own judgment, to question the government’s bills, appointments
and policy proposals. Secondly, within limits, Presidents can comment on affairs
of the state in public. Criticism of the government must be muted, though it
should be more in the nature of sounding an alarm. In rare cases, public
expression of disquiet is proper. Thirdly, the President is entitled to admonish
and even censure the Prime Minister in private. Fourthly, the President’s right
to know, embodied in Article 78, is not challenged. Fifthly, the practice is now
established of the President receiving leaders of opposition parties, singly or
in a delegation, to lodge a protest against the government’s action. He offers
no comment but forwards the protest to the Prime Minister and speaks to him, if
he so decides. Sixthly, it is established that the President is not bound to
accept the Prime Minister’s request for dissolution of the Lok Sabha but is
entitled to exercise his judgment and consider the alternatives before accepting
it.
Seventhly, the power of dismissal of the government cannot be exercised
except on the extreme grounds mentioned in textbooks. There was universal
criticism of Zail Singh’s intentions in 1987 and again of his admission of them
in 1992. The best course is to have an explicit provision on the lines of
Articles 91 (5) and 130 (5) of the Pakistan Constitution, respectively for the
Prime Minister and Chief Ministers of States. They say that while the Prime
Minister and the Chief Ministers hold office “during the pleasure” of the
respective heads of state, the latter will not exercise their powers unless
satisfied that the head of government has ceased to command the confidence of
the House. There follows the crucial constraint – “in which case he shall
summon the National Assembly and require the Prime Minister to obtain a vote of
confidence from the Assembly”. An identical expression is used for
Governors.
Eighthly, not only the opposition parties but Chief Ministers of States also
invoke the President’s moral authority as “guardian of the Constitution”; in
their case, specifically to safeguard its federal character.
Ninthly, in 1977, the acting President, B.D. Jatti, was extremely reluctant
to sign the proclamation under Article 356 imposing President’s Rule in certain
States. The government’s threat of resignation induced him to sign the
documents. The Postal Bill is of far less consequence. The fact remains that two
successive Presidents, Zail Singh and R. Venkataraman, declined to sign it. They
returned it for reconsideration in exercise of their own individual judgment. It
is well settled that assent cannot be withheld; only reconsideration can be
sought. If re-enacted assent must follow.
Tenthly, the question whether the President can assert a right, under Article
86, to address Parliament or to send messages to either of its Houses in his own
discretion, is open. In 1950 the Attorney-General opined against it in the face
of President Rajendra Prasad’s challenge on a host of issues. His opinion on the
point gave no reasons. At the least, the matter is open. It is unthinkable that
in an extreme case a President would flinch from taking his case to
Parliament.
Lastly, the President is entitled to insist, when appointing a Prime
Minister, that he obtain a vote of confidence from Parliament within a
stipulated short period.
The existence of the President’s power of dismissal has not been
seriously challenged. There is near unanimity on fears of its abuse. No
responsible politician has sought such an intervention by the President against
his political opponents. In 1987, some carpetbaggers did. In June, Zail Singh
was tempted but wiser counsel prevailed. He would have come to grief.
India’s democracy has functioned for 60 years, bar the interlude of the
Emergency. But the parliamentary system came into its own only since
1992.
Situation in the States
But this is not so in the States. Discredited Ministers are appointed
Governors (Shivraj Patil and H.R. Bhardwaj). So are civil servants whose
shelf-life has expired. They act as the Centre’s agents. The Chief Minister
himself owes his office to the bounty of the central high command of his or her
party. He cannot select his own Ministers, expand his Cabinet or sack a
dissident without the high command’s permission. This is a result of the
practice of 1937-39 when Congress Ministries were responsible to the high
command rather than the elected legislature, a perversion that Prof. Reginald
Coupland criticised trenchantly.
There is another flaw, even more fundamental. The Member of Parliament or
Member of the Legislative Assembly acquires the party’s ticket to contest the
polls not from his partymen in the constituency but from his party bosses. He
serves as a bondman. Members of Parliament in Britain can defy the party whip.
The Indian legislator lacks the capacity to revolt.
Speaker’s office
In 1937, the issue arose whether Purushottam Das Tandon should resign his
party membership on election as Speaker. Both Gandhi and Nehru held that he need
not, unmindful of the rights of non-Congress MLAs (Selected Works of
Jawaharlal Nehru, First Series, Vol. 8; pages 351 and 376). Nehru
deprecated following “blindly British practice and procedure”. Truth to tell,
Nehru’s outlook on constitutional issues differed from Ambedkar’s. The hoary
Erskine May holds: “Confidence in the impartiality of the Speaker is an
indispensable condition for the successful working of the procedure, and many
conventions exist which have as their object not only to ensure the impartiality
of the Speaker but also to ensure that his impartiality is generally
recognised.” In India, this “indispensable condition” does not exist and has not
existed for many years.
One doctrine deserves speedy burial: the Speaker’s office is a gift in the
hands of the ruling party. The Economist of November 19, 1994, wrote:
“Over the grey men, the placemen and the hired men who characterise the present
House of Commons, a star shines. Betty Boothroyd, the Speaker, dominates a
difficult House to a degree that her immediate predecessors never attained.” She
was elected in 1993 with the support of the Conservatives though she belonged to
the Labour opposition. “She won because 74 Tories rightly rebelled at the
thought of someone who had just left the Cabinet – the government’s unofficial
candidate, Peter Brooke – sitting in the Speaker’s chair and posing as a neutral
arbiter of proceedings.”
In India, such a revolt would be unthinkable and the language The
Economist used would be regarded as breach of parliamentary privilege by
Speakers, most of whom are no more than instruments of the government’s will.
These are the very men who will act as judges on issues of free speech in the
name of “parliamentary privilege”.
The anti-defection law calculatedly makes the Speaker judge and thus
further politicises an office politicised already to a degree. But Parliament
itself is held to ransom. “We don’t want a debate for debate’s sake,” Atal
Bihari Vajpayee said on December 19, 1995, while the memorandum of the Left
Front and the Janata Dal to the President, on December 22, 1995, queried: “Can
we remain supine spectators of parliamentary proceedings being reduced to
desiccating debates, particularly when the government has, time and again,
cynically tried to sweep a succession of scandals under the carpet?”The implication is plain. Since debates do not yield the result desired by
the Opposition, it will prevent Parliament from functioning. There is a certain
contempt for debates per se, as if they are an exercise in futility.
However, parliamentary debate has a direct impact on the minds of the
public.
Supreme Court
The Supreme Court does not enjoy the esteem that apex courts enjoy in
Britain, Canada or Australia. It is not politicised unlike the U.S. Supreme
Court. But it has exceeded its explicit constitutional limits to usurp the power
to appoint judges to itself, to veto the police’s professional discretion to
investigate into the conduct of, and to prosecute, a judge, to order the
legislature on how it should conduct its affairs, and intrude on the executive
and legislative domain and to silence the citizen who asserts a right to censure
the judges. Constitutional learning was not expended on any of these matters.
Ipse dixit were used confidently and lavishly.
Parliament had to step in to provide that truth is a defence to a charge of
contempt of court.But the Supreme Court is benumbed with excessive caution when faced with
issues the nation expects it to answer. We know the havoc wreaked by Justice
J.S. Verma’s palpably flawed judgment allowing campaigns for Hindutva to pass
muster in elections. On April 16, 1996, a three-member Bench of the Supreme
Court noted the conflict in the court’s decisions (Verma had studiously ignored
ones that ran counter to his view).
The Bench directed the Registry to place the case before the Chief Justice
“for constituting a larger Bench of five judges, and, if possible, at an early
date so that all the questions arising in the present appeal could be decided
authoritatively and expeditiously” (Abhiram Singh vs C.D. Commachen &
Others (1996) 3 Supreme Court Cases 665, para 14; page 671).
Chief Justices of India have come and gone since, including J.S. Verma
himself. Five general elections to the Lok Sabha and umpteen to State Assemblies
have followed. With characteristic mendacity leaders of the Sangh Parivar tout
the Verma ruling as the last word, which it is not. The Supreme Court has
refused to heed the plea to decide the matter at “an early date”. Its silence is
deafening.
So it is on the issue of parliamentary privileges, which are abused
rampantly. One has lost count of the petitions pending before the court. The
latest was by The Hindu. On December 9, 2004, the Supreme Court
referred the issue to a seven-judge Bench, though not before delivering
uncalled-for homilies to the press. Five years have rolled by. The Bench is yet
to be constituted. The abuses continue apace to the court’s knowledge, of
course.
Need for reform
On each of these matters – Parliament, Governors, the Speaker’s office and
the Supreme Court – reform is feasible and practicable through constitutional
amendment provided that the major political parties realise that, as in the
case of the office of the President, it is in their interest to abide by the
Constitution and remove the deformities that have crept in.
We consciously adopted, in Patel’s words, “the British type of Constitution”
and froze our parliamentary privileges to the state they were in Britain on
January 26, 1950. But our political class wilfully ignores developments in the
U.K. thereafter. Fifty years later, a committee of both Houses of
Parliament recommended codification of the privileges and abolition of the power
to imprison for contempt. In Britain, it noted, “members do not divide on party
lines” on issues of privilege. In India they do. The British model itself has
evolved significantly. One of the most eminent authorities, Prof. Vernon
Bogdanor, Professor of Government at Oxford, has written an erudite work
entitled The New British Constitution (Hart Publishing; pages 392,
£17.95). He traces the radical changes introduced by the Human Rights Act, the
devolution of power to Scotland and Wales by referenda, etc. Particularly
relevant to India is the chapter on “Hung Parliaments; Governing without a
Majority”, a fate all too common here.
Mass disenchantment
However, far more relevant are his remarks on the state of politics despite
the reforms. It describes our lot as well: “Constitutional reform seems to have
done little to combat disenchantment with politics. That disenchantment has been
marked by a fall in turnout in general elections, a decline in the membership of
political parties, and by a weakening in popular identification with political
parties.”
The mass political party is dying on its feet. “It is hardly surprising,
then, that the constitutional reform programme has made so little impact upon
political disenchantment, for it has done little to open up a political system
dominated by political parties, whose roots are no longer as deep as they once
were, whose relationship to social interests is far less intimate than it was in
the past, and which are not able ideologically to penetrate British society.
Parties are no longer the pre-eminent mechanism for the expression of political
opinion in Britain. They have become primarily a means by which the voter can
choose between competing teams of rulers. The constitutional reforms do little
to touch this condition; they do little to meet popular aspirations in a
post-socialist and individualist age. They do little, therefore, to meet real
popular grievances….
“The real achievement of constitutional reform is to have redistributed
power, but it has redistributed power between elites, not between elites and the
people. …. The next stage of constitutional reform, therefore, and a far more
difficult stage, must be a redistribution of power, not from one part of the
elite to another, amongst those professionally involved in politics and the law,
but from politicians to the people.”
It is the people who alone can make the Constitution work. As John Stuart
Mill noted: “If we ask ourselves on what causes and conditions good government
in all its senses, from the humblest to the most exalted, depends, we find that
the principal of them, the one which transcends all others, is the qualities of
the human beings composing the society over which the government is exercised.
Of what avail is the most broadly popular representative system if the electors
do not care to choose the best member of Parliament, but choose him who will
spend most money to be elected? How can a representative assembly work for good
if its members can be bought, or if their excitability of temperament,
uncorrected by public discipline or private self-control, makes them incapable
of calm deliberation, and they resort to manual violence on the floor of the
House, or shoot at one another with rifles? How, again, can government, or any
joint concern, be carried on in a tolerable manner by people so envious that if
one among them seems likely to succeed in anything those who ought to cooperate
with him form a tacit combination to make him fail? Whenever the general
disposition of the people is such that each individual regards those only of his
interests which are selfish, and does not dwell on, or concern himself for, his
share of the general interest, in such a state of things good government is
impossible” (Considerations on Representative Government, Everyman’s Library,
page 192).
To read such old truths of 1861 is to realise how far we have gone. It is an
accurate description of the state of our legislatures, Central and State, and of
our politics in 2010. On this our own Dr Ambedkar’s words are even more
striking: “I feel that it [the Constitution] is workable, it is flexible and it
is strong enough to hold the country together both in peace time and in war
time. Indeed, if I may say so, if things go wrong under the new Constitution,
the reason will not be that we had a bad Constitution. What we will have to say
is that Man was Vile” (CAD; Vol.VII; page 44).
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