Sunday, February 14, 2010

Constitution today

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.


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).

The Republic in retrospect

Dear Friends , 

Am sure,for the students of public administration the name Gransville Austin is not new. Here you have one beautiful article from the person himself. Please make this part your notes.The article is taken from Frontline magazine dated Feb. 13-26, 2010


At 60 the Indian Republic has come a long way, but it has to travel a greater distance to achieve the goals set in the Constitution.

ANY people that sets out to govern itself assumes a monumental task. Who are “we?” Are “we” a congeries of groups, or something that might realistically be called a nation? What do we want from self-governance – our form of political and administrative organisation; our form of representation, the reach of suffrage; the kinds of laws and the institution that should oversee their justness and effectiveness – especially for the lower classes in society; what should “our” goals be for the entirety of this new thing that we are creative? Are we going to write this all down – and call it a “constitution”?

The public figures gathered in New Delhi in 1946 confronted all these and more issues. The Indian Constituent Assembly declared three grand goals for the founding document: They were protecting and enhancing national unity and integrity, establishing the institutions and spirit of democracy, and fostering a social revolution (often called socialism) to better the lot of the mass of citizens. As essential as were the goals, individually, the framers believed that none should be pursued at the expense of any of the others. They were mutually dependent.

Of course, the institutions for government created in the Constitution also were mutually dependent whether or not their responsibilities put them at odds. The judiciary often struck down parliamentary legislation as not in accordance with the Constitution. Parliament responded, first in 1951, with an Act that placed certain land reform laws outside the Supreme Court’s jurisdiction. In 1973, the government, during Indira Gandhi’s prime ministership, did its best to curb the court’s reach and, indeed, to bring it closely under the influence of the executive branch. The relationship between the court and the government was soured several more times during the 1970s and 1980s and the first few years of the 1990s before stabilising since then.

In federations that may find themselves facing issues where Central government authority may be at odds with actions by the constituent units’ governments (State legislative and executive actions) Supreme Courts are typically called upon to settle the disputes. Somewhat surprisingly, the court in Delhi seldom has been called upon to adjudicate these “federal” cases. It has been approached through political channel – the dominant party at the Centre bringing its power to bear on the party dominant in the Legislative Assembly in the State. When the Congress party was powerful, nationally, this was comparatively easy. As other political parties won power in the States, the task was far more difficult. In the late 1960s and in the 1970s, with Indira Gandhi in office as Prime Minister, she clipped the wings of the Congress in the States and outmanoeuvred other State parties. This trend culminated in her well-known Emergency, in which her government and Parliament, over which she had unchallenged influence, held authoritarian sway over the entire country.

This degree of “centralisation”, to employ an inadequate euphemism, had been seen in milder form for two decades. State governments had been complaining about New Delhi’s policies to exert influence over them. Chief Ministers formed committees in protest, offering recommendations for measures, constitutional and less formal, to restore greater balance in the federal relationship. The Centre, for its part, devised methods to bring the Ministries and the State governments together for problem solving. These efforts, however, typically bore New Delhi’s stamp and were unpopular with the States, which continued to level charges against centralisation. The report of the Commission on Centre-State Relations, chaired by Justice R.S. Sarkaria and published in 1983, proposed alterations in constitutional provisions and extra-constitutional political practices that, if implemented, would have markedly improved the situation.

None of this should startle us greatly for the Constitution tips the scales of power towards the Central government. The mood among the framers was anxiety about national unity and integrity. Partition was only months in the past; Kashmir’s status was undecided; there were murmurings of separatism among the Sikhs; Telangana was in revolt; the north-east was uneasy (as it since has continued to be); secularism versus communalism worried Jawaharlal Nehru and other Congress leaders; economic planning and development depended upon national unity. Still, Centre-State relations have worked. India now is a united nation, blemishes notwithstanding. If Telangana does become a State it is unlikely that its relations with New Delhi will vary significantly from those of other States. Most important was, and is, that the Constitution is two documents, a national constitution and a constitution for the States – a situation that seems to have had little effect on Centre-State relations. The appearance of independent political parties in States will reduce the ability of the Central government and its constituent parties to meddle in State affairs. Violence by naxalites, however, persists as a dangerous matter. But not more so than exploitation of peasants by alliances between politicians and economic “developers”.

From time to time during the past 60 years, theorists have argued that federal and parliamentary systems fit ill together. In India’s situation I, personally, think that little would be gained from changing to a presidential system. Beyond the vast subsidiary changes that would be entailed, States would still be dependent on the Centre’s power and largesse. Related to this consideration is the often raised query: “Does the Constitution need significant change to make it work better?” Perhaps. I am not a student of the question. My reaction to the suggestions I have heard is that they are premised on the fantasy that a change in the Constitution’s wording would reform human, political conduct. Yet improving human behaviour never has been so easily achieved. Substitute the word “draftsman” for “doctor” and “Constitution” for “patient” and you have, “The draftsman survived, but the Constitution died.”
Thanks to the character, humanity and prescience of the founding fathers, and mothers, the Constitution has been “the cornerstone of the nation”. Reduced to its barest essentials, it is a template for national administration (thanks in great part to the Parliament in London and its 1935 Government of India Act) and a document meant to establish the nation’s social reform goals and to write down the constitutional mechanisms to be used to reach them. These appear throughout the Constitution – in the Fundamental Rights and the Directive Principles of State Policy, and in the provisions for special treatment for various minorities and backward sections of society. As Vice-President S. Radhakrishnan put it, India must have a “socio-economic revolution… [to achieve] the real satisfaction of the fundamental needs of the common man… [and] a fundamental change in the structure of Indian society.”

The Constitution’s Preamble says that it is to secure to all its citizens
JUSTICE, social, economic, and political and
EQUALITY of status and opportunity and
FRATERNITY assuring the dignity of the individual.

The nobility of these goals is exceeded only by their ambition.For India is a “survival society” – a society characterised by hierarchy and want. The “want” stretches from the man who is striving for two chapatis for himself and his family when he has one – the tenant farmer, the agricultural labourer, the Dalit, the member of the backward classes – to the person at the top of society – as defined by economic status or caste – who strives to maintain the contacts in government that bring him money, who assures his son a place in a university or a good school (perhaps with a little gentle bribery), to him who, no matter what his caste or income, follows the scriptural injunction to promote the well-being of his family before that of his neighbour.

The well-known social thinker R.C. Dutt has said that “the moral atmosphere of the struggle for existence…has provided ample opportunities for corruption and for collective self-aggrandisement at the expense of the poor”. P.N. Haksar, for some time secretary to Indira Gandhi, has said that members of “our civil services…are committed first of all to themselves and to their nuclear family…[and beyond this] to members of…his sub-caste, caste, community, and region.”

Himalayan barrier

These characteristics of Indian culture, have constituted a himalayan barrier to achieving the creed of the Preamble. Yet, the provisions of the Constitution have chipped away at the barrier with some success. Adult suffrage has been its principal tool – even though candidates elected may promptly ignore the promises they have made to constituents. As injurious to the integrity of adult suffrage – and certainly to its reputation in India and abroad and to Parliament and several State legislatures – has been political parties giving the ticket to known criminals to contest elections. On the plus side, suffrage continues to spawn political parties and active politics and an open process for vote seeking. The Fundamental Rights and the security measures put in place by the Election Commission have protected voters’ rights. Social action legislation and group activity and the increasing energy shown by panchayats have enlivened villagers’ political involvement. Reservation of seats for various classes, castes and women in education, legislative bodies, including panchayats, and the civil services have brought previously unrepresented individuals and groups into national life. Great controversy accompanied such developments.

Recently, long-argued issues have re-emerged: the definition of “backwardness – caste or class or poverty”; whether reservation is equalising downward or upwards; whether reservation/concession tends to become vested interests; whether reservation/concession engenders a spirit of self-denigration among the people. What is basically important here is that legislators, lawyers, and the courts are considering these questions seriously. Faith in the Constitution is widespread among the wide variety of constituencies.

In a speech given recently on Human Rights Day, the noted advocate Fali S. Nariman said: “It is not because of our Constitution but despite its provisions that we have failed to achieve what were naively assumed [in the year 1950] to be achievable goals.” Nariman added: “The remedy to effectively countering discrimination…is not by law, but in attitudes… [which] must change.” The noted political thinker Andre Beteille summed up this appraisal when he wrote that “a constitution may indicate the direction in which we are to move, but the social structure will decide how far we are able to move and at what pace”.

A success despite frailties

The Constitution and its seamless web of democracy, social revolution, and national unity and integrity have met India’s needs. It is fair to say that it has been a success despite some frailties – which might, with political will, be easily remedied. Yet the Constitution has presented a paradox: the sturdiness of the system it has provided has permitted vast deviations from its system and its spirit, by those who would ignore them or distort them. The Constitution has provided protective coloration much as an animal or a bird changes its appearance without changing its being. Praising its provisions has given licence to those who would ignore them to do so. Democracy was subverted by the First Amendment’s placing of the land reform legislation beyond the Supreme Court’s jurisdiction, by the executive branch’s many attacks on the court’s independence, and by the imposition of the monstrous Emergency in 1975.

The Preamble’s promise to seek justice, social economic and political, and equality of status and opportunity – and the vainglorious addition of the words “socialist” and “secular” to the Preamble by the 42nd Amendment left conditions for Dalits and other backward castes much as they long have been. I must add here that adult suffrage, and its accompanying effect of caste encouraging political mobilisation for voting, and reservation policies have increased citizen participation in democratic processes – although caste-against-caste oppression still may be savage. To compare political conditions in, say, 1945 with those in India today demonstrates how far representative government has come during the interim.

India under the Constitution has come a long, long way in 60 years – not to forget the distance it still has to go. The critics who downplay its achievements lack understanding and empathy – particularly American critics, whose democracy has serious difficulties no matter where they look. Indeed, not looking is one of their difficulties. Indian citizens have much to be proud of, but should avoid smugness. A remedy for it could be to ask themselves what the members of the Constituent Assembly might think if, like Rip Van Winkle, they awoke tomorrow.

With Independence we have lost the excuse of blaming the British if anything goes wrong, Ambekdar told the Assembly. We will have nobody to blame except ourselves.

Historians of constitutional developments in India are unlikely to be without a job. There is too much going on, too much to puzzle over, to learn. One matter, among the many others, especially perplexes me. Can India be a great democracy, strong in itself and in the eyes of the world, so long as so many of its people are denied the promise of the Preamble?

(Granville Austin began his study of India and the Constitution in 1959. He has published two books on the subject: “The Indian Constitution – Cornerstone of a Nation”, 1966, and “Working a Democratic Constitution – A History of the Indian Experience”, 1999. He holds a D.Phil degree from Oxford University.)

Monday, February 8, 2010

Indian Administration News Bits

No promotion to IAS on quota

JAIPUR: The Rajasthan High Court has ruled against promotion of Rajasthan Administrative Service officers to the Indian Administrative Service (IAS) on the basis of reservations.

While their recruitment was done on the basis of reservations, they are not entitled to promotions on the basis of the same criterion, the Court said.
A Division Bench of the Court comprising Justice R. S. Rathore and Justice N. K. Jain gave the ruling in response to as many as 19 petitions from different persons filed at different times starting from 1993.

The petitioners had questioned “out of turn” promotions of officers belonging to the Scheduled Castes and Scheduled Tribes overlooking the seniority of officers from the general category.

The promotions of Rajasthan Administrative Service officers have been held up for a long time as the issue has been pending in court. In between, in the years 2002 and 2008, the State Government had issued notifications for carrying out the promotions on the basis of the reservation quotas but could not execute it.

The cases of 56 RAS officers are pending for promotion to IAS. The High Court in its order asked the Government to prepare a fresh promotion list.

Trainee IAS officers to enjoy high security cover

Indian Administrative Service (IAS) probationers and officers training at the Lal Bahadur Shastri National Academy of Administration (LBSNAA) in Mussoorie will soon start 'enjoying' tight security cover.

The Union home ministry has reportedly cleared a proposal to deploy paramilitary force at the premier institute, the cradle of India's top bureaucracy. According to sources, the authorities of the academy - it is under the department of personnel and training - had requested to upgrade its security two years ago.

"The approval has come now. But the government hasn't yet decided which paramilitary force would be deployed at the academy. The choice is between the Central Industrial Security Force (CISF) and the Indo-Tibetan Border Police (ITBP)," the sources said, adding that the deployment would be done "very soon". Chances are the ITBP would be assigned the task since it has its sector headquarters, a training centre and a station in Mussoorie.

As of now, the LBSNAA's security is handled by a private agency, which has a skeletal staff of about two dozen personnel.

The Uttarakand government has cited the academy as a vulnerable terror target along with the state assembly in Dehradun. According to recent reports, Doon School and the Indian Military Academy, both situated in Dehradun, are also under threat.

The Mussoorie academy trains over 1,000 civil service officers every year. It runs an annual common foundation course for all recruits of all- India services and central services.