Opinion
The Demonisation of
the Constitution
In its Preamble, in the chapter on Fundamental Rights, in the Directive Principles of State Policy, in its provisions for the separation of powers and the independence of the judiciary, in the special protection given to the civil services, in its provision for the independence and autonomy of the Election Commission, the Constitution makes ideological statements which are strong, unambiguous and specifically designed at good governance. All that is needed is acceptance of the basic philosophy of the Constitution and a desire to make it work in the spirit in which it has been framed. Regardless of the political leanings and ideologies of individual political parties if they accept the Constitution in the letter and spirit this country would be truly democratic, secular, welfare oriented, honest and peaceful. The fact, however, remains, that fifty six years after independence and fifty three years after adoption of the Constitution we are less secular, less democratic, certainly less welfare oriented, less just and less honest than had been envisaged by the framers of the Constitution. Why has this happened? What we are seeing is a demonisation of the Constitution in which various politicians vie with each other in trying to find loopholes in the Constitution or ways and means by which they can bypass the Constitution, subvert it and even negate it for their own personal or political benefit. In this they have been actively supported by sections of the bureaucracy.
In Britain, which has no written constitution, there are conventions, customs, commonsense and parliamentary practices which determine the behavior of the rulers and the would be rulers. In the absence of a law it is common law and precedent which would prevail, subject only to the overriding demands of equity. Though Britain is the founder of the Westminster type of democracy in which the party which enjoys a majority in parliament can legislate at will, in actual practice the opposition is heard and the legislative excesses of government are subjected to the scrutiny of an active public opinion which can and does force the government to retract where necessary. This is the position which prevailed in India also in the early years of independence in which parliament and the bureaucracy both had a sense of responsibility and accountability. This is the period when we built up the institutions of democratic government and tried to act according to certain norms of propriety. It is Mrs. Indira Gandhi who changed the rules of the game and brought manipulative politics to the fore. I am not singling out Mrs. Gandhi for blame because the political culture she introduced has been heartily embraced by all politicians of all parties, including the party which claims to be different, the BJP.
In many ways 1967 was the watershed year because that was the year in which purchase of legislators, engineering of defections and ousting of elected governments began. The spirit of the Constitution is that there will be a parliament at federal level and state legislatures in the states. These are elected bodies and as per recognized parliamentary practice people offer themselves for election on the basis of a program, an agenda and a party ideology and the voter makes his choice. The party which enjoys the majority is invited to form the government and, as per Article 83 and 172, the legislature and the government are expected to continue for five years. That is the letter and spirit of the Constitution. Engineering defections and forming governments through manipulation may not be unconstitutional but it is certainly against the spirit of the Constitution and the practice destroys the sanctity both of the legislature and of the government. The legislators no longer feel themselves accountable to the electorate, which they have to face every five years and which fact should dictate their conduct. They look upon the legislature as a means of gaining power by methods which short cut or bypass the election process and convert majorities into minorities and minorities into majorities by dubious means. A country in which power is something which flows from an ideology and gives the opportunity of implementing a specific program would be a democracy with the objective of furthering welfare. A country in which power can be purchased and is viewed as a means of self advancement cannot be a democracy and is certainly not attuned to welfare. India as a polity now falls in the second category. Here the Constitution no longer remains an ideology but only becomes a means of coming to power.
In a Westminster type of democracy there is always the danger of majoritarianism prevailing. It is this majoritarianism which was used by Mrs.Gandhi during the emergency to legislate for the emergency. The emergency was an aberration and a perversion and finds no place in the Constitution, Part XVIII notwithstanding. If the Constitution were accepted as ideology the events of 1975 would never have occurred. If our parliamentarians had understood the spirit of the Constitution a foray into absolutism would have been aborted at birth. If the President of India had been faithful to the oath sworn by him under Article 60 he would not have signed the proclamation of emergency without question but would have certainly interacted with his council of ministers to try and obtain a justification for the emergency. Had the council of ministers, or for that matter, the then Prime Minister been true to their oath sworn under Schedule IV of the Constitution they would never have advised the President to declare an emergency which was not justified by the letter and spirit of the Constitution. All these high dignitaries failed to accept the Constitution as ideology.
No Constitution can cover every possible contingency and it is assumed that in its working people holding office will observe atleast the norms of propriety and conventional wisdom and the spirit behind a particular provision in the Constitution. By way of example, one has to refer to Rajiv Gandhi's Postal Bill which sought to curb individual freedom and permit government to impose a form of censorship on matters conveyed through the post. Undoubtedly the Bill was controversial and allegedly anti democratic. However, the Bill was passed by Parliament, which is the only constitutional authority which may enact laws. The council of ministers, of which Rajiv Gandhi was the head, forwarded the Bill to the President, Giani Zail Singh, for his assent under Article 111 of the Constitution. In the American Constitution there is a provision in Article 1, Section 7, sub section 2 that when a Bill is presented to the President for his assent he must either give the assent or return the Bill for reconsideration within ten days of presentation (Sundays excepted). On his failure to return the Bill within the stipulated period the Bill would be deemed to have been assented to by him and will become law. Under Article 111 of our Constitution, however, no such a period is prescribed. The words used are, 'Provided that the President may, as soon as possible after the presentation to him of a Bill for assent, return the Bill' Gianiji took the view that he could indefinitely defer assent to the Bill without returning it to Parliament for reconsideration and he sat on the Postal Bill for a whole year. Parliament was thereafter dissolved and the Bill abated. In MP in more recent times the Governor Bhai Mahavir, did the same with a Bill relating to the universities. If we accept the Constitution as ideology then we have also to accept that the legislature have the freedom to enact laws which may even be intrinsically bad. Only if they are unconstitutional will the courts strike down the validity of such laws. It is not, however, for the President or the Governor to indefinitely delay a decision on legislation because this works against the spirit of the Constitution, despite the fact that the legal lacuna permits them to resort to such legerdemain. This is an example of failure to accept the Constitution as ideology. In the above two examples in the case where the President should have defended the Constitution he did not do so and blindly signed the proclamation of emergency, whereas in the latter case where the President should have either given his assent or sent the Bill back with his comments, he simply sat on it.
This brings us to a feature of the Constitution which is perhaps unique to this country as one has not come across similar provisions in the Constitution of other countries. One refers here to Part V Chapter I and Part VI Chapter 1 of the Constitution. Articles 53 and 154 of the Constitution vest the executive power of the Union and the States in the President and Governors respectively. The same Articles state that such executive power shall be exercised by the President or Governor through officers subordinate to him. Part XIV of the Constitution which provides for Services under the Union and the States lays down how such officers will be appointed and what protection will be given to them so that they can function impartially and without fear. At the same time Articles 74 and 163 provide that the President and the Governor will be aided and advised by a Council of Ministers presided over by the Prime Minister or Chief Minister respectively and that the President and the Governor shall be bound by the advice rendered by the council of ministers. When read in conjunction with Article 54 and 154 this means that in India the executive is divided into two parts, the elected component of which is the Council of Ministers whose advice is binding on the government and who would, therefore, take all decisions relating to policy; and the permanent executive, that is, the Civil Service, which is required to exercise the executive power on behalf of the President or the Governor. The permanent executive is bound to obey and implement the orders of the council of ministers but in doing so it is required to abide by law and to implement policy decisions impartially and without fear or favor.
Decision making is a political process in India but implementation is an impartial executive process in which the whims and fancies of the ministers do not come into consideration. This is the letter of the Constitution and the spirit. In effect, however, the council of ministers seem to consider itself an organization with unbridled powers whose servants are the civil servants. Civil servants are the servants of the people but not of ministers and no minister has a right under the Constitution to interfere with the working of a civil servant who is doing his duty according to law. One of the reasons why the entire system is in shambles is that these salutary provisions of the Constitution are given the go by and a civil servant who tries to be impartial and does his duty according to law and rules is condemned as a red tape bound rulewallah who prevents the peoples' representatives from delivering welfare to the people.
It is ironic that the main allegation against civil servants doing their duty is, 'They do not listen to us'. Actually this is a compliment because civil servants are required to listen to rules and laws but not to individual ministers and it is precisely because they now listen only to ministers and politicians and do not care much for rules and laws because in this they see personal gain that we have so much corruption, favoritism, nepotism and even disorganization verging on anarchy in India. The Civil Service has also forgotten its oath on entry into service that it will be a servant of the Constitution and the law and has thus proved false to its salt. Civil servants, who enjoy such a high degree of security under the Constitution, cannot be forgiven for this perfidy.
Part V Chapter 4 and Part VI Chapter 5 provide for the Supreme Court, High Courts and the subordinate judiciary. The letter and spirit of the Constitution is that in the scheme of separation of powers the judiciary will stand apart from and independent of the executive and the legislature, except to the extent of the legislative competence of parliament and the state legislatures. There is complete security of tenure for the judges, with Supreme Court and High Court judges being removable only through impeachment as provided by Article 124 (4) and (5) of the Constitution read with Article 217 (1) (b). We have seen in the Ramaswamy case how the sanctity of the constitution was violated because some political parties refused to rise above petty political considerations. Justice Ramaswamy of the Supreme Court was found guilty as charged on several counts by a Tribunal set up under Article 124 (4) and (5). His removal from office was a forgone conclusion, except that in the last minute the Congress party played politics and ensured that the requisite two third majority was not available in the House for his removal. A corrupt judge continued to hold office and the signal sent down the line was that the judiciary was not accountable.
The need to protect the independence of the judges but at the same time make them accountable is of great importance today, especially because so many scandals have emerged about the conduct of some of our judges. But in this behalf there is another equally important factor which needs to be considered. A member of a Public Service Commission is debarred from holding any office of profit under government on retirement. The same applies to the Comptroller and Auditor General. The only bar on judges is that they may not practice in a court in which they have served. The fact is that judges are accommodated post retirement in all sorts of ways, including through commissions of enquiry, chairmanship or membership of various regulatory and other authorities, against the post of Lok Ayukt, in the Human Rights Commission and in commissions set up to look into issues such as forest policy, existing laws, the Constitution itself, etc., How can a judge be expected to be impartial if he is eligible for such post retirement appointments? How can he be deemed to be impartial when we know that to get the appointment the judge has curried favor with the powers that be? A post retirement appointment is perhaps the biggest inducement that a government can offer to a judge to be sympathetic and pliant. If the spirit of the Constitution is to be implemented judges should be totally prohibited from accepting any appointment, including to a commission of enquiry, after retirement so that government is in no position to offer a quid pro quo to a judge for his pliant and convenient behavior.
In a democracy perhaps the most sacred process is that of election because that is the method by which we choose our rulers for a period of five years. Elections have to be free and fair and held in an environment of peace, security and freedom of choice. All political parties must accept this practice as the minimum sine qua non of a democracy. Inducement of any sort is totally barred by the Representation of People Act and yet every government promises the sky to the voters before an election, gives encouragement to encroachment on public land, panders to the most base caste considerations and empties the treasury by utterly irresponsible distribution of largesse. All means are considered to be fair for the purpose of winning an election, including subversion of the opposition, bribery, threat, inducement, promise and even outright violence. All this goes against the spirit of the Constitution and is also violative of the letter of the law. Why should it be left to the Election Commission alone to ensure free and fair elections? Is it not the duty of the political parties to ensure that elections are free and fair? There are only two alternatives to a fair election, anarchy or dictatorship. Which of these two do the political parties favor ?
This paper is not exhaustive and has only covered some of the areas in which the Constitution has been violated and its ideology torn to shreds. To cover the entire spectrum of violation would call for a volume. However, in ending one must state that it is the citizen, the only sovereign in our republic, who has to decide whether its Constitution will work or not. He has to decide whether the republic will be secular and ensure this by rejecting any party which works against secularism. He has to decide whether there will be equity, which means that he firmly rejects any party which works for the interests of a particular group only and ignores the public welfare mandated by the Constitution. He has to decide whether the institutions enshrined in the Constitution will be strengthened or destroyed by rejecting a party which works against the interests of these institutions. He has to decide whether he wants governance or not, because if he opts for the former, he has to accept the discipline imposed by the Constitution.
06-Jul-2003
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M. N. Buch
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