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"Indian Democracy Has Collapsed"

Rajinder Puri is a veteran journalist and cartoonist.

The Statesman, Oct. 5, 2005

Photo: Rajinder Puri

Say hello to our Constitution

Regardless of whether the Bihar assembly dissolution was justified or not, who was responsible? Bihar was under president's rule. The governor's report was recommendatory. The decision rested with the union government. The union cabinet held an emergency meeting at 10:30 p.m. At 3 a.m. it faxed the dissolution order for signing to the president who was in Moscow at that time. The responsibility, therefore, rests with the cabinet.

What about the president? He is under oath to protect the Constitution. He had to make sure the dissolution was constitutional. This is where the Supreme Court's twisted logic relating to the governor's role comes into play.

Two rulings

According to its ruling in Dr. Raghulal Tilak's Case (1979), the Supreme Court said: 'His (the governor's) office is not subordinate or subservient to the Government of India . . . His is an independent constitutional office which is not subject to the control to the Government of India.' Is the governor therefore sovereign? No, he is appointed by the president to whom he is accountable. But, according to the Supreme Court's ruling in the Samsher Singh Case (1974), the 'aid and advice' tendered by the prime minister shall be binding on the president. How are the two rulings compatible?

Ironically, left to his own instincts, Dr. Manmohan Singh probably would not have dissolved the Bihar assembly. The compulsions of partisan politics impelled him to do so. Similarly, Atal Behari Vajpayee as prime minister would have dismissed chief minister Narendra Modi after the Gujarat riots but for partisan politics. Only the president on both occasions could have risen above partisanship to preserve the spirit of the Constitution. But our system has reduced him to a rubber stamp. This is just one glaring instance of how our working of the Constitution has rendered the law into an ass.

Without rule of law there is no democracy. That is why Indian democracy has collapsed. People don't recognise this because India has a democratic culture. It has freedom of expression. Critics can blow off steam. Officials do not normally inflict repression as in dictatorships. And people are willing to live with corruption and peddling of influence. But India lacks credible rule of law. It fails to qualify as a full-fledged democracy.

When the rich and powerful break laws, the system protects them. Since Independence, no celebrity committing a crime faced more than disgrace and public odium. One need not recall the twists and turns that helped exonerate those with power and influence who were guilty in the Bofors case, the urea scam, the 1984 anti-Sikh genocide, the Gujarat communal carnage and a host of other crimes.

Consider this absurdity. The Supreme Court, basing itself on the Jain hawala case, ruled that the post of a Central Vigilance Commissioner should be created to monitor the C.B.I. But in the Jain hawala case itself, the court found insufficient evidence to even warrant prosecution. And this after the court itself had closely overseen investigations in that case before charge-sheets were filed!

Or consider the Supreme Court and the National Human Rights Commission [N.H.R.C.] accepting the findings of a C.B.I. investigation that 2,098 people were secretly killed and cremated by the Punjab police during its crackdown against separatism in just one out of thirteen districts in the state. Official investigations confirmed that close to a thousand of those killed had no role in terrorism.

Worldwide condemnation

The backgrounds of the remainder have yet to be investigated. And at the end of it all, relatives of the victims merely received compensation. Were there no guilty politicians and policemen to punish for committing a crime that equalled or exceeded crimes committed by Milosevic or Pinochet? Both received worldwide condemnation as war criminals.

Politicians, officials, policemen and judges conspire to make such things happen. They unfailingly choose expediency over truth. This arises from corruption of the spirit. Corruption, whether financial, intellectual or professional, has become endemic. It did not surface overnight. It has been spreading for over half a century. It makes a mockery of democratic rule. How did it begin and why did it spread?

The basic cause of the malaise may be traced to the working of the Constitution. Our Constitution is not flawed. It has never been followed. From the start, it was misinterpreted by politicians and jurists to render it unrecognisable from its original intent. Consequently there is no real separation of power between the legislature and the executive. The government has a majority in parliament. That renders parliament ineffective as a check on the government.

The seed to destroy the Constitution was planted by Pandit Nehru. He was captivated by the British parliamentary system. But our written and explicit Constitution differs substantially from the Westminster model. On 10 September 1949, Nehru said: 'No Supreme Court and no judiciary can stand in judgment over the sovereign will of parliament.' This is nonsensical of course. Britain has no written constitution. Our Constitution has fundamental rights. And, unlike Britain, India is a republic.

However, Nehru's towering personality induced jurists to look the other way when President Rajendra Prasad raised relevant questions regarding his powers. If words have meaning, even a cursory reading of the Constitution indicates a role for the presidency very different from the empty ceremonial role it has come to acquire. They err who urge India to opt for a presidential system. India already has a presidential system. There is, therefore, no need for a new constitution.

There is great need to reinterpret our present Constitution. Recourse to debates in the constituent assembly or to rulings by learned judges of the Supreme Court are superfluous when words in the Constitution are explicit and unambiguous.

For years this scribe has argued that India would have a presidential system if the Constitution were followed faithfully in letter and spirit. Legal experts oppose this view. But experts tend to miss the wood for the trees. Although one constitutional expert, Ivor Jennings, did write: 'One should never trust politicians; it is equally true that in the context of the future one should never trust constitutional lawyers.'

Great paradox

Consider the powers our Constitution confers to the president. Parliament consists of 'the president and two houses.' The president can address either or both houses whenever he wants. In other words, he can intervene in any parliamentary debate. Since the cabinet participates in the debate, clearly the president's intervention would not be at the cabinet's bidding. The president can order the cabinet to discuss any minister's decision that has not been considered by it. True, the president must abide by the advice of the cabinet. But so must the prime minister. The difference being that the prime minister like a C.E.O. controls day to day functioning while the president as chairman guides policy. The Constitution does not specify the powers of the prime minister. It merely describes him as the head of the council of ministers.

For the rest, he must 'communicate' to the president all decisions of the council of ministers relating to 'administration and legislation.' The president is the supreme commander of the armed forces. He takes oath to protect the Constitution and laws of the land. If the cabinet's advice conflicts with this oath, what should take precedence?

The views of this scribe as a layman have no impact. But a book by a distinguished retired police officer, Dr. R.S. Jha, published last year is titled Cry of the Indian Republic.

He has vindicated these views with scholarship and painstaking legal research. Let legal experts try countering his arguments! There is a great paradox. India stands poised for economic breakthrough but governance is near breaking point. Systemic reform is desperately required. It will not come without reclaiming the true intent of our Constitution. The president must exercise powers that the Constitution confers on him. The longer we wait, the deeper we will sink.