THE INDIAN SCENE
PROF.
M. VENKATARANGAIYA
The
period under review–April to July 1973–is remarkable for a number of
constitutional changes, some formal and some informal, which are bound to have
far-reaching significance and for the strengthening of the trends in the
country’s political processes like factionalism in the ruling party which may
in course of time adversely affect peaceful progress for which democracy
stands. The danger lies not in the growth of a revolutionary atmosphere but of
utter anarchy and chaos.
Among
the constitutional changes the first place has to be given to the judgement
delivered by the Supreme Court on April 24 in what is known as the Fundamental
Rights case or the Constitutional Amendment case. Readers have already been made
aware of the judgement of the Supreme Court delivered in Golaknath case in 1961
which denied to the Parliament the right to amend any Article relating to
Fundamental Rights, thus reversing its previously held views. As a consequence
of this and also as a consequence of the Court declaring invalid the
President’s ordinance on the nationalisation of fourteen commercial banks and
on the abolition of privy purses of princes, there grew a sort of confrontation
between the highest organ of judiciary on one side and the highest organ of legislature
on the other, a confrontation which was most undesirable from every point of
view. Several sections of the ruling Congress Party and of
the general public began to condemn the so-called arrogance of the judges and
even thought of impeaching some of them. A way had to be found for putting an
end to this kind of confrontation. The Parliament was determined on asserting
its sovereign right to change any part of the Constitution including the
chapter on Fundamental Rights and in the assertion of such a right passed the
24th Amendment which laid down “Notwithstanding anything
in this Constitution, Parliament may in exercise of its constituent power
amend by way of addition, variation or repeal any provision of the Constitution
in accordance with the provisions of this Article” (Article 368 as amended).
From this followed naturally the corollary that it could change the Articles
bearing on Fundamental Rights, irrespective of the Supreme Court’s judgement in
Golaknath case.
It
also put the corollary into immediate operation by the 25th Amendment which
dealt a blow to the Fundamental Right to property guaranteed by Article 31 of
the Constitution. Readers have already been told that as a result of this
amendment the right to property ceased to be a fundamental right and that it is
open to Parliament or to State legislature to pass legislation depriving a
person of his property by paying to him no “compensation” but some arbitrary
“amount” and denying to the Courts the power to question the validity of such
legislation.
It
was the validity of these two amendments that was questioned by parties
affected in the cases on which the Supreme Court gave judgement on April 24,
1973. So far as a Parliament’s power to amend fundamental right is concerned,
it reversed by a majority the judgement in Golaknath case and accepted the view
that Parliament has the power to amend fundamental rights. In this way one
factor responsible for the confrontation between the judiciary and Parliament
was eliminated. The 25th amendment relating to right to property was declared
valid and in the course of the judgement it was even held that the right to
property did not pertain like other fundamental rights to the basic structure
of the Constitution and Parliament’s power to deal with it is absolute.
Those
who filed the writ argued that the 24th Amendment, which empowered the
Parliament to amend the Constitution in any way it liked, should be declared
invalid on the ground that there were always certain implied limitations to the
sovereignty of Parliament. The Court did not agree with this contention but
stated that the word “Amendment” means that the Constitution could only be
amended and not altered in such a way as to change or alter its basic character
or its framework. This is only saying in an indirect way that Parliament’s
power to amend the Constitution is subject to an implied limitation, viz., that
it should not change its basic character or framework. It is therefore open to
the Supreme Court in future to declare a constitutional amendment invalid on
this ground.
But
many jurists think that the scope for such declaration is very narrow because
of the vagueness involved in the expression “basic character of the
Constitution”. This means that for all practical purposes the confrontation
between the judiciary and the legislature has come to an end with the Supreme
Court’s acceptance of the validity of both the 24th and 25th Amendments to the
Constitution. This means that Parliament has the sovereign right to amend any
and every part of the Constitution and all doubts on the matter which arose out
of the judgement in Golaknath case are once for all set at rest. Some may not
agree with the view that this involves a great constitutional change and that
it is only a restoration to Parliament the powers which it exercised previous
to 1967. The restoration is in itself a change and it is one of considerable
significance.
More
controversial has been the change in the convention that the senior most judge
in the Supreme Court should be appointed Chief Justice. This convention was
broken when, on April 25, the day following the pronouncement of judgement by
the Supreme Court above referred to, three of the senior Judges in the Court
were superseded and the President appointed Justice Ray, next in rank according
to seniority, as Chief Justice. Almost all Bar Associations in the country as
well as many jurists of great standing and reputation like Setalvad, Daphtary,
Chagla, etc., regarded this as an exercise of pure arbitrary power by the
President and the Prime Minister (the President’s adviser in the matter) and
that it is sure to adversely affect the independence of the judiciary which is
one of the corner-stones of our democratic Constitution. Moreover the Constitution
definitely says: “Every Judge of the Supreme Court shall be appointed by the
President after consultation with such of the judges of the Supreme Court and
of the High Courts in the states as the President may deem necessary for the
purpose.” No such consultation took place in respect of this appointment and
when the question was raised in Parliament, the Law Minister declared that
consultation was necessary only in respect of judges of the Supreme Court other
than the Chief Justice, implying thereby that the Chief Justice is not a judge
of the Supreme Court.
The
real motive, however, in superseding the three senior judges a was to assert
that the executive had the right to act in any way it lied in making an
appointment like this so that there might in future be no confrontation between
the judiciary and the executive. This came out more clearly when the late Mohan
Kumaramangalam defended the appointment in his capacity as the spokesman of
Government’s policy in the matter. He pointed out that it was necessary to have
judges in the Supreme Court who agreed with the social and political philosophy
of the Government of the day and who would not stand in the way of any
progressive legislation and policies that it sponsored. This meant that it was not
the legal scholarship and experience that mattered in the selection of judges
but the readiness of the persons selected to accept blindly the legislation
enacted by Parliament under the influence of the executive of the day. It is
only judges of a High Court who do so that will have a chance of being promoted
to the Supreme Court and it is only those judges of the latter who toe the
Government’s line that will have a chance of becoming Chief Justices in the
Supreme Court.
All
this strikes at the root or the idea of an independent judiciary. Many writs
are filed in Courts against the laws enacted by the legislature and the
administrative orders issued by the executive and there will be no guarantee
under the new dispensation that the judges will give a verdict in favour of the
litigants as against the Government of the day even when the law is in favour
of the former. It is quite possible that at the time when one is appointed
judge, his social philosophy may be an important factor but does this mean that
he should stick to it for all time? People’s ideas undergo a change from time
to time in the light of their growing experience and the ideas of judges also
undergo such a change. Should this become a disqualification for future
promotion? Is the executive in a position to determine in every case what
constitutes the right kind of social philosophy and what changes are in
consonance with it and what changes are not? In such a situation the insistence
on the right kind or philosophy will only result in the judges becoming mere
tools of the executive and not the fearless interpreters of law and the
providers of justice.
There
is a general complaint that even as it is the best lawyers do not care to
become judges. This is due in most cases to their salaries as judges being very
much less than their income as practising lawyers. If, in addition to this,
they find that once they are elevated to the Bench, they have to abandon their
view of right and wrong and accept the view of the executive of the day, no
eminent lawyer with a sense of self-respect will accept a place on the Bench.
Judiciary will then have to be recruited from among the ranks of second and
third grade lawyers with very little of intellectual and moral integrity. No
one except the believers in totalitarianism, as practised in communistic
regimes where all power is in the hands of the party executive, will welcome a
change like this.
An
independent judiciary is an integral part of a democratic constitution. The
makers of our Constitution recognised this and incorporated in it several
provisions for the purpose. The arbitrary exercise of executive power in
appointing judges goes against the spirit of the democratic constitution.
In
countries like the United States there have been occasions of confrontation
between the Supreme Court and the President. Even President Roosevelt who
suffered most from such confrontation was unable to tamper with the
independence of the judiciary. There is need everywhere for placing restraints
on the arbitrary exercise of power. For as Lord Acton said several years ago,
“power corrupts and absolute power corrupts absolutely”. This is why in all
democracies the need for protecting the freedom of the individual is recognised
and the judiciary is given the right to protect it against the arbitrary
exercise of power by the executive. But such protection ceases to exist when
the judiciary is indirectly transformed into an arm of the executive as is
happening in our country today. Unless arrested this change will undermine the
basic character of our Constitution. This, unlike the change effected by the
judgement of the Supreme Court, is informal in the sense that it is the outcome
of forces outside the legal Constitution. The next change to be referred to
below is also of a similar character.
We witness in our
country today a frequent resort to the introduction of President’s rule in
states. This has ceased to be something exceptional to be made use of to meet a
real emergency. It is used to strengthen in the states the hold of the party in
power at the Centre. The latest example of this is the introduction of
President’s rule in U. P.
In
U. P. the ministry of Tripathi had a solid majority behind it. The dissidents
were few. All the same, the Centre made him resign, knowing full well that with
the Congress in a majority in the legislature no other popular ministry was
possible. The ostensible reason for taking this step was the mutiny of the
Provincial Armed Constabulary but it was suppressed by the Tripathi Government and
punitive steps were taken against the ring leaders and the battalions involved.
If more steps had to be taken it could have been done through negotiation
between the Centre and State Governments. There was no question here of a State
Government refusing to carry out the directives of the Centre as both
Governments belonged to the same party. All the same, the popular ministry was
superseded and President’s rule was introduced. And President’s rule means the
taking over of the State Government by the Centre. It is a negation of both
local democracy and federalism.
This
is not an isolated case. If we look to developments in the country, especially
during .he prime ministership of Srimathi Indira Gandhi, we notice that resort
to President’s rule and therefore to the erosion of the federal spirit of the
Constitution is becoming a matter of course. It is one more example of the
growing centralisation and concentration of power in the executive at the
Centre which in reality means in the hands of the Prime Minister. It is on a
par with the attempt of the executive to get control over the judiciary.
It
has been calculated that while in the sixteen-year period, between the
inauguration of the Constitution and the beginning of Indira
Gandhi’s prime ministership, President’s rule was imposed only on ten
occasions, it was imposed twenty-two times during the seven years of her prime
ministership. Making in 1969 an exhaustive survey of the circumstances under
which recourse was taken by the Congress party at the Centre to introduce
President’s rule, Shivraj Nakade observes: “Since the promulgation of the
Constitution nineteen years ago, the Congress party has been the ruling party
at the Centre. In states where the Congress party was not in power or was
defeated, the Centre never hesitated even for a single moment to interfere in
their domestic affairs by clamping President’s rule under Article 356. This was
done on nineteen occasions and sometimes for reasons too slender to justify it.
It is no denying the fact that the Centre had misused the powers under Article
356.” (Union State Relations in India published by the Institute of
Constitutional and Parliamentary Studies, New Delhi. pp. 121-22) The same thing
has to be laid about the invoking of the Article during the last
four years.
During
the discussions on this Article in the Constituent Assembly, H. N. Kunzru, the
elder statesman, pointed out that it was sure to be misused. He also stated
that when there was a constitutional breakdown the remedy lay in appealing to the
people through a general election. “If responsible Government is to be
maintained the electors must be made to feel that the power to apply the proper
remedy when misgovernment occurs rests with them. They should know that it
depends upon them to choose new representatives who will be more capable of
acting in accordance with their best interests. Responsible Government requires
patience and it requires the courage to take risks.” Even Dr. Ambedkar who
piloted the Constitution Bill in the Assembly said in reply: “The proper thing
we ought to expect is that such Articles will never be called into operation.
If at all they are brought into operation, I hope the President who is endowed
with these powers will take proper precautions before actually suspending the
administration of the province. I hope the first thing he will do would be to
issue a mere warning to a province that has erred, that things were not
happening in the way in which they were intended to happen in the Constitution.
If that warning fails, the second thing for him to do will be to order an
election, allowing the people of the province to settle matters by themselves.
It is only when these two remedies fail, that he would resort to this Article”.
But the experience all these years is that the Article is put into effect
without any warning or without any appeal to the people. Everything is done to
help the ruling Congress party at the Centre to strengthen its party position.
There is no justification, for instance, for the imposition of President’s rule
in U. P. where there was no constitutional breakdown.
The
protests against the misuse of the Article are half-hearted. The Congress party
is a faction-ridden party in every State and the faction which has no chance of
capturing power is indifferent in the matter. So also is the case with
opposition parties in general. The people are also apathetic and the small
number or politically conscious sections have grown disgusted with the
activities of politicians and they see in the imposition of President’s rule at
least a temporary suspension or their corrupting activities. The
top-administrators also welcome it because they feel free to have their own way
without the interference of politicians. In an atmosphere like this the Centre
is able to have its authority imposed on a State. Nothing has been done to
educate the people all these twenty-five years in the ways of responsible
democracy. The trend in States is towards President’s rule and away from
democracy. We began in 1950 with a political system, democratic both at the
Centre and the states. The misuse of Article 356 leaves us with democracy only
at the Centre. There is no need to point out that it goes against the federal
spirit of the Constitution.
At
the root of the trouble in states is the lack of a minimum standard of public
morality among the politicians. It is, of course, true that all politics is
about power. But this does not mean that it is concerned only with the
acquisition of power and its retention. It is also concerned and it ought to be
concerned with the proper and legitimate use of power acquired and retained.
Power in society is needed only for this purpose. This is what philosophers and
political thinkers have been telling us from the days of Kautilya, Plato,
Aristotle and Confucius down to the present day. But this has been completely
ignored by the politicians in free India. The idealism which characterised the
large majority of freedom fighters under the leadership of Mahatma Gandhi has
completely disappeared. All politicians have become mere power-seekers.
In
no other way can we account for the factional struggles inside the Congress
party. The purpose of a faction is to throw out a chief minister and his
ministry from office and take his place. Its only argument is why his faction
should have power and not they themselves. There are no ideological differences
between the factions as they all belong to the same party. Every holder of the
chief ministership and minlstership is accused of corruption and nepotism and when
one chief minister is overthrown as a result of factional intrigues and another
is installed in his place, his opponents begin a crusade against him on the
very same grounds–corruption and nepotism. The truth, however, is that every
politician wants to have a share in the spoils of office.
Elections
are prohibitively costly. One has to spend several lakhs before one gets
elected to the State Assembly or Parliament. Like all investors, those elected
naturally wish to recover the cost incurred by them and some profit in
addition. The profits can be maximised if one is in a position to secure
office. Even otherwise politicians have ample opportunities of serving as
brokers between those in power and those who want to secure a licence, a permit
or some other facility in the possession of men in authority and make money.
Even non-politicians can do this; but politicians have greater opportunities.
They have easier access to men in power and to members in higher ranks of the
civil service. Politics has become the gateway to riches.
Addressing
a public meeting at Lucknow on July 28, our President, Sri V. V. Giri, said
that he had come to know that a large number of legislators were responsible
for encouraging hoarders and legislators. “If the legislators are responsible
for hoarding and adulteration, how could the Government take any action against
the enemies of society,” he asked (The Hindu, 29-7-73). These words are
not spoken with a light heart. They are serious charges against the politicians
of the present day and with such men to legislate for the country and to
administer the laws enacted, it is no wonder that those elected to positions of
power care only for their own interest and care little for public interest–the
interest of the people at large. All factionalism and all political instability
even when the Congress party has a majority in the legislature have their
origin in the self-seeking nature or politicians.
This
explains also in a way why we are facing an economic crisis today. The sky has
become the limit for the rise in prices. Deficit financing and inflation are
mounting up. Unemployment is on the increase. Food, power and very many of the
other essentials are in short supply. There are acute famine conditions over a
large part of the country. The rate of savings is not keeping pace with the
needs for investment. Conspicuous consumption is on the increase. The black
marketeers are running a parallel economy and making huge profits. People cry
for a little more bread, a little more of drinking water and some shelter.
Those who run the government have no time or energy to look to these problems
and find a solution for them. They know that there are solutions for them. But
any solution which experts place before them will necessitate a curb on their
greed for power, for riches, and for ostentatious living. What the country
needs is austerity and in this matter men in power should set an example. That
was the essence of the teachings of Mahatma Gandhi. He was the first to lead a
life of austerity and he insisted on his example being followed by those who
fought for the country’s freedom under his leadership. This was the
significance of his appeal that people should put on Khaddar and be satisfied
with Swadeshi articles however crude they might be. But men in power today
preach austerity to the people forty per cent of whom are below the poverty
line. They don’t themselves practise it. Look at their palatial residences,
their luxury cars, their habits of food and drink and the entourage with which
they want to be surrounded. It is out of this corrupt political atmosphere that
the country has to come out. The question is whether with so much greed for
power and wealth pervading the politicians and the higher ranks of officials in
both the public and private sector, can the country come out of it? It
is this question that awaits an answer and the answer will come when the elite
in the country realise that the ultimate basis of society is ethical.