CRITIQUE OF THE INDIAN CONSTITUTION

By P. KODANDA RAO

The Constitution of India asserted, in its Preamble, that the people of India resolved in their Constituent Assembly to constitute India into a sovereign, democratic republic. How far has this multiple objective been realised? Is India today sovereign in status, republic in form and democratic in function?

Is India sovereign in status? The Indian Constituent Assembly was not a sovereign body, created by the people of India after attaining independence from British imperial rule, as was the case in America. It was convoked by the British rulers by executive action before India’s independence, and its composition was determined by them. It was in the nature of an extra-constitutional convention to draft a constitution, which was to be given constitutional sanction by the British Parliament subsequently, as happened in the case of South Africa. On July 18, 1947, still before India’s independence, the British Parliament enacted the Indian Independence Act, and thereby gave constitutional sanction to the Indian Constitution in advance of its formulation, whereas in the case of South Africa, parliamentary recognition followed the drafting of her constitution. Since the British Parliament is sovereign, it is constitutionally possible for it to repeal the Indian Independence Act, though it is politically impossible. It would thus seem that even after independence and the enactment of the Constitution, India is not as sovereign as Britain, though she is politically as independent as Britain.

Is India a republic? India is a full member of the Commonwealth like the other Dominions and acknowledges the sovereign of Britain as the head of the Commonwealth. The British Sovereign exercises no more constitutional authority over the Dominions than over India. In function, even Britain is a republic inasmuch as the sovereign cannot overrule Parliament. India is a republic as a matter of sentimental courtesy and a diplomatic concession to her high-strung susceptibilities at the time of her attaining functional freedom.

Is India democratic? The Constitution provides for it, but the adoption of the extra-constitutional party system violates it in function. It is notwithstanding the almost axiomatic view to the contrary held by very eminent authorities.

Is the party system essential to democracy? Or, is it undemocratic and even anti-democratic? It is significant that no constitution which professes to be democratic has given constitutional recognition to the party system. The Constitution of India is perhaps the latest and the most comprehensive. It considered that the age qualification for the Presidentship of India was of sufficient constitutional importance as to warrant its inclusion in the Constitution! But it made no mention of the party system which is obviously extra-constitutional.

It seems very odd that one should start with the proposition that democracy is good, and then proceed to the proposition that the party system is essential to work it, and then proceed to create parties! It is just the other way about in practice. Since, with freedom of thought essential to democracy, some public policies do not receive universal assent, each of them divides the people into two groups: for and against. In view of the multiplicity of dividing issues it is not possible to form just two political parties, coherent and homogeneous. Many issues cut across one another and do not line up. Often, differences and criticisms within a party are greater than between parties. Some issues will have to be subordinated rigorously, if only two parties are to be permitted. It amounts to denial of freedom to some people and to some views, which is anti-democratic.

Freedom of speech and vote are essential to democracy. Under the party system, there is such freedom in the meetings of the party, which have, however, no constitutional status, whose proceedings are not public and whose decisions are not binding on the people. But in the duly constituted legislature, whose proceedings are public and whose decisions are binding on the people, freedom of speech and vote is denied to the minority in the party, which has to toe the line of its majority in the legislature. Members who form even a bare majority in the ruling party but a minority in the legislature can have their way which is also anti-democratic.

The party system is even more anti-democratic in the parliamentary than in the presidential system. In the former, a party forms the Government only if it has a majority in the legislature. Its defeat on any important measure involves its resignation and perhaps the dissolution of the legislature as well. Candidates generally spend comparatively large sums of money to fight elections. Those who succeed get salaries and opportunities for patronage. Some of them become Ministers, with larger emoluments and patronage. If the Ministry be defeated and resigns, the Ministers lose the advantages. If the legislature be dissolved, all the members lose theirs also. Members, who plead poverty when approached for a donation to a well-known charity, manage to large funds to fight elections, and take the risk of forfeiting their deposits. In their cases, it is not so much service to the public as to themselves that motivates them. If a Ministry resigns or the legislature is dissolved before its constitutional term, the legislators lose their opportunities to recoup their investments, and face the risk of another election and its uncertainty. Humanly speaking, it is not their interest to risk such a contingency by exercising their democratic right of freedom of speech and vote in the legislature.

Though the party system occurs in America under her presidential system, party discipline is not so rigid as in Britain or India under the parliamentary system, because the executive is not “responsible” to the legislature, and the defeat of a President’s proposal does not involve his resignation or the dissolution of the Congress. The consequent stability permits greater freedom of speech and vote in the American Congress. It is, therefore, more democratic than the parliamentary system in Britain or India.

It is noteworthy that America has not yet acknowledged that the parliamentary system is the best form of democracy, and has not adopted it, In fact, she deliberately discarded her inheritance.

The party system is inconsistent with national interest. A party cannot be national as long as there is another party. It has to subordinate larger national interests to its own narrower ones. Democracy demands all for the nation and none for a party, but the party system demands each for his party and none for the nation.

It often happens that a party pleads with other parties not to take a party-view of a question under consideration. To insist on parties and yet ask them not to take a party-view is a contradiction. A nation needs a national government all the time and a party government at no time.

The party system in India has been a handicap to good government. Most Ministers find it difficult to keep their slippery seats without humouring their party factions at public expense, and have little time to study public questions. India has self-government; she should now concentrate on good government. The party system is not the way to secure it.

Sir Winston Churchill said that the first duty of a Member of Parliament was to do what, in his faithful and disinterested judgment, his believed right and necessary for the honour and safety of his country; his second was to his constituency; and only his third was to his party. But in practice the party comes first.

The Swiss Federal Constitution seems to offer an example which India may well follow, with adaptations if necessary. It is a democracy which, in the opinion of very competent critics, is the most efficient in the world, and yet it is neither parliamentary nor presidential. It is collegiate or coalition democracy, opposed to party democracy. “The most interesting feature about the Swiss party system is the absence of strongly centralised parties on the American or the British model,” said Prof. R. C. Ghosh of the Calcutta University. (The Government of the Swiss Republic, 1953, p. 128.) Christopher Hughes remarked that the Swiss Confederation has never known the two-party system where government alternated with opposition. (The Federal Constitution of the Switzerland, 1954, p. 84). It has always a national government consisting of all parties. Hans Huber, Judge of the Swiss Federal Supreme Court, said: “If a party had or obtained an absolute majority, as a rule it soon handed over a few seats to one or more minority parties. Switzerland has become a country of coalitions.” Article 91 of the Swiss Constitution provides that the members of the legislature shall vote without “instructions,” which means without party mandates and according to their conscience. As regards its operation, Christopher Hughes said that the Swiss democracy was noted for its stability, cleanliness, swiftness and moderation which were virtues essential for ordered freedom, and in which Switzerland led the world. In that country politics is serious business, as it should be everywhere, and not the sport of political parties. Prof. Dicey observed that the Swiss Federal Council was a Board of Directors appointed to manage the concerns of the country in accordance with the wishes of the Federal Assembly. According to Prof. Ghosh, the Swiss Government was remarkably free from bitter party rivalry or monopoly of power, and offered little scope for professionalism or demagoguery in politics. The administration was highly businesslike and efficient, which is what the people everywhere want.

It may be recalled that the late Rt. Hon. V. S. Srinivasa Sastri advocated the Swiss system for India, in 1916. He acquiesced in the parliamentary system as expedient for the moment when the late Rt. Hon. E. S. Montagu declared it as the goal of British policy in India. Subsequently, when the Indian Constituent Assembly was contemplated, he recommended the Swiss system. It was open to the Assembly to adopt it, but it was so obsessed with the British parliamentary system that it copied it pretty wholesale.

M. Maurice Duvarger spoke the truth when he said that the organisation of political parties was certainly not in conformity with the orthodox notions of democracy, that the general development of parties tended to emphasise their deviation from the democratic regime, and parliamentary representatives themselves were compelled to an obedience which transformed them into voting machines, controlled by the leaders of the party. He clinched it when he asserted: “Parties became totalitarian”. (Political Parties, 1954, p.422-23.)

Democracy is best served by “independents” who are elected for their individual character, competence, and experience and are free to speak and vote on the merits of each question in the elected bodies, national or municipal. It is true that freedom of speech and vote is allowed even under the party system, but only on rare occasions. It should be universal.

India is unique in that her Constitution is neither unitary nor federal in the typical sense. It is largely unitary, with a few federal elements which have been a handicap to good administration. The Constitution is federal in that the functions of Government have been divided into the Federal, to be administered by the Government of India, and the State, to be administered by the several States, and makes jurisdictional disputes justiciable. It is also federal in that some kinds of amendments to the Constitution require the assent of the States. On the other hand, it is unitary in that there is a single Constitution and a single citizenship for the whole of India, there is a concurrent list of subjects in which both the Centre and the States can legislate but the Central prevails over the State law, and, on the recommendation of the Central Upper Chamber, the Centre can legislate on a State subject, and, finally, the Centre can suspend a State government. There is one judicial hierarchy for the whole of India, with the Supreme Court at the top. The Centre was not created by pre-existing sovereign independent units by the transfer of limited powers to it.

In administration, there is but one Planning Commission which plans mostly for the State subjects, which the States find it obligatory to follow if only because they look to the Centre for finance, inspiration and directive.

The federal elements have been defended on the ground that India is a large country with a large population, and that one single government at the Centre would not be able to administer all the subjects efficiently and democratically. It may be pointed out, however, that the federal subjects, which the Centre alone is competent to administer, constitute nearly half the number of all the subjects of administration, and the concurrent subjects form nearly another quarter, which the Central government can administer and even supercede State legislation. It follows that, for nearly three-fourths of the subjects of administration, India is unitary, notwithstanding her large area and population. If the Centre is competent to administer them democratically and efficiently, there is no reason why it cannot administer the State subjects also equally democratically and efficiently. In any event in view of the single Planning Commission and of the finance and prestige of the Government of India, the State governments have, in practice, become its agents. Apart from that, the needs of the citizens in the State sphere of administration, like education, health and police protection, do not vary with the State boundaries, but are common. The need for uniformity of policy and administration through out India is being increasingly realised. The latest instance was the plea of the Central Food Minister to constitute the whole of India into a single zone for food.

In the circumstances, the federal aspects are a handicap to economy and efficiency in administration, as their primary function has been to provide some politicians with power, pelf and patronage, and with opportunities for corruption and interference in administration. The only advantage of State legislatures and ministries is that they can provide knowledge of local needs. But this can be secured by the constitution of small advisory committees. For instance, the Railways, a Central subject, have formed several regional advisory committees. It is highly desirable that the federal handicaps should be eliminated, and India given an undiluted, unitary government, in the interest of the people which should be the paramount consideration.

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