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The Silver Jubilee of the Constitution : a Plus and Minus Assessment *
by V. G. Ramachandran, (Honorary Editor)
Cite as : (1975) 1 SCC (Jour) 1
Liberty lies in the hearts of men and women ; When it dies there, no
Constitution, no law, no Govt. can save it ; no Constitution,
no Law, no Court can even do much to help it
— Learned Hand
1. The Jubilee Objectives
It is now 25 years since we attained the status of a Republic in the Comity of Nations. The founding fathers of Bharat forged a Constitution in 1950 giving to the people of India the great Charter of liberty, which was the result of grand sacrifices made by our forbears led by that saint-politician Mahatma Gandhi. What inspired them to do all this for us is as the poet says:
". . . . . . . . . . . . which bade those heroes dare
To die and leave their children free."
But are we really free now? That is rather intriguing to answer. The redoubtable Jurist Advocate N. A. Palkhivala would however say, "It is a poignant thought that countless Indians died in order to secure the basic human freedoms for India, and within a quarter of a century of our attaining these freedoms our elected representatives claim the right to take them away."1 Is this a fair assessment?
It appears therefore permissible to take stock of our national achievements these twenty-five years in areas specified in the Preamble of the Constitution wherein the people of India have assured to secure to all its citizens:
(i) Justice social, economic and political ;
(ii) Liberty of thought, expression, belief, faith and worship ;
(iii) Equality of status and opportunity ; and to promote among them all ;
(iv) Fraternity assuring the dignity of the individual and unity of the Nation.
Speaking of first things as first, the Preamble opens with the sentence "We the People of India, having solemnly resolved to constitute India into a Sovereign Democratic Republic". It is indeed gratifying that even after these 25 years of national tribulations and constitutional and economic mishaps, (1) the people of India exist and (2) the Democratic Republic also exists.2
This is indeed a justifiable achievement. For, did not the people of India suffer many a year from hunger, poverty, illiteracy and thraldom under the scheming power-mad corrupt political Nawabs from the firka level to the capital of Delhi ? And was not the Republic threatened periodically with language and food riots, not to speak of the autonomy demands of the States to the near breaking-point of secession as in Tamil Nadu, occasioned by the epidemic of extreme parochialism that would often pose a threat to the very unity of India, the most sacred objective trotted out in the Preamble to the Constitution of India. That despite all this we survive as a united nation is in itself a good achievement. That our political leaders have let us down may be harrowing but yet there is a silver lining in our ancient heritage that points out a Dharmic survival for Bharat which is destined to play its prominent role as the Wise Man of the East for the very survival of mankind.
May be there are critics that would point out that this dream is impossible of achievement and opposed to the national statistics that reveal that in India—
(i) the Executive Power has scored nearly 80% marks in corruption, 70% in inefficiency, and 60% in unconstitutionalism;
(ii) the Legislative Power has scored 60% in inefficiency and 60% in unconstitutionalism with individual politicians (over 80%) revelling in corrupt methodology to the tune of 70%;
(iii) the Judicial Power scoring only 50% in efficiency, 60% in lethargy and fortunately only about 10% in unconstitutionalism. It is pardonable as it is only 10%, and judges also are human and are likely to err. But the saving grace is they have the power of review for rectifying such an error.
Fortunately these are only traces of corruptive tendencies in the lower echelons of the hierarchy, that can be eradicated if only the norms of recruitment are devoid of nepotism, favouritism and non-meritocracy.
But what is staggering is the breaking of the corner stone of the Constitution that it is the Constitution that is supreme and that the three wings of Government, the Executive, the Legislative and the Judiciary are only sub-ordinate to it. The Executive and the Legislature revel in their neotheory that they are truly sovereign in the absolute sense. The late lamented Cabinet Minister Shri Mohan Kumaramangalam proclaimed that the Judiciary is bound by the philosophy of the Constitution as understood and declared by the Cabinet and Parliament. The Law Minister Shri H. R. Gokhale (mark you an ex-High Court Judge!) echoed this grand declaration which was duly approved by the Prime Minister of India. Our Parliamentarians have a clear vision that the Lok Sabha has all the sovereignty on the same lines as Parliament of the United Kingdom, forgetting that this is contrary to the very provisions of our Constitution. In the United Kingdom Parliament is indeed supreme but in India it is only the Constitution that is supreme. What the constitutional provision means is within the interpretative jurisdiction of the Judiciary and surely it does not rest on what the Cabinet says in that regard. It is a good augury that at least the Judiciary accepts the supremacy of the Constitution.
The sad working of the Executive Power in collaboration with the Legislative Power has in these 25 years taken the people of India to live under the umbrella of totalitarianism and autocracy clothed in colourable democratic fabrics. This has led critics led by ex-Chief Justice Mahajan to say that an underdeveloped country like India is not fit for the Cabinet System of democracy and that the Presidential form of Government as obtaining in the US is the only solution. Corruption galore and inefficiency terrible might have influenced such critics to plead for the strong hand of Presidential system of Government. There are yet others that feel that in this Silver Jubilee Year we have all the qualifications to cry out for military dictatorship. Much may be said in favour of these two concepts. But we have indeed opted for a Republican form of democratic Government. It is wiser to cure our defects and rid our polity of corrupt politicians, inefficient executive and man our Legislatures with persons of high calibre, merit and national integrity. This indeed should be our resolve in this Year of Grace, 1975, the Silver Jubilee Year of our Republic. It is indeed unwise and most perilous to jump from the present form of Government to the Presidential system. It may sound like flying from the frying pan into the fire. It is indeed salutary to realise that whatever be the provisions of the Constitution or the form of Government, in the ultimate analysis what matters most is the calibre, honesty and nationalism of those gentlemen whom we, the people of India have elected to work the Constitution. So it matters not what the Constitution is, but it matters as to who work out the Constitution. As is often quoted: The people get the Government they deserve. Therefore it is the people that must awake, arise and march on with a firm determination to achieve all the grandiose ideals they have set out "unto themselves" in the Preamble of the Constitution. They shall not rest till the goal of such an Utopia is reached. More than the Executive, Legislative and Judicial Power, what matters is the canalising of the People's Power which vibrates from the Preamble through all the provisions of the Constitution. The paramount motto for this Jubilee Year is hence:
"Indian citizen, do rise up to defend your rights to which end you will properly exercise your sacred franchise."
This will indeed be in accordance with the real intendment of the Constitution and in consonance with the clarion call of the famous and often quoted declaration of Herbert Spencer:
"If men use their liberty in such a way as to surrender their liberty, are they thereafter any the less slaves? If people by a plebiscite elect a man to be a despot over them, do they remain free because the despotism was of their own making? Are the coercive edicts issued by him to be regarded as legitimate because they are the ultimate outcome of their own votes?"
Therefore as Hamlet in a crisis uttered 'To be or not to be' the significant question addressed to the citizens of India is:
"Are you going to be a free citizen or not : Are you going to succumb to democratic tyranny justifying the famous words of Ludwig Lewisohn:
'Democracy which began by liberating man politically has developed a dangerous tendency to enslave him through the tyranny of majorities and the deadly power of their opinion'."
May be a democracy generally breeds only mediocrity to be in power. May be the elite and the high intellects may not get a place in the Governance of the country. But surely you, the voter, the common man of India can see that honest and sincere men though of mediocre calibre alone are seated in positions of political power. The core and base of the Indian People are basically dharmic, honest and cultured though not highly literate and educated in the western sense. So long as this base remains pure and it activises itself to be alert and discerning in the exercise of franchise, there is hope for democracy to survive and to sprout out as a glorious fruit in this sacred land of Bharat.
2. Evaluation of the Safeguarding of the Rights and the Directives
What the people of India ensured to themselves have been broadly stated in the Preamble as Justice, Liberty, Equality and Fraternity. The several provisions in the Constitution do spell out the various aspects of these guarantees. We may thus note that social justice is emphasised in Articles 17, 38 to 48, while economic justice is sought to be given under Articles 19(1)(f), (g), 31, 39 and the provisions in Part XII of the Constitution. Political justice is meted out in Parts V, VI and XI and detailed in the Legislative lists. The concept of Liberty is emphasised in Articles 21 and 22 read with the provisions in Part XVIII. The guarantee of freedom of expression and freedom of the Press are imbedded in Article 19(1)(a) while clauses (b) to (c) advert to the freedoms of assembly, association, movement and residence. Religious freedom is detailed in Articles 25 to 28, while cultural and educational rights of minorities are revealed in Articles 20 to 30. Equality of status and opportunity are adumbrated in Articles 14 to 16 and in the Provisions contained in Part XVI of the Constitution. The dignity of the individual which is part of the concept of promotion of Fraternity is emphasised in Articles 17, 23 and 24 while the unity of the Nation is revealed in Articles 1 to 4 and in the concept of supremacy of the Constitution over the three wings of Government which are designed to serve the federal set-up of this Democratic Republic.
As Edmund Burke had pithily observed, "The people never give up their liberties but under some delusion ; the true danger is, when liberty is nibbled away for expedients and by parts". So it was when the nibbling took place in parts in our democracy under pressure of political majorities whose precept and practice were far apart when they cried out for a socialistic pattern of society under the magical formula of a slogan Garibi Hatao 'Remove Poverty'. To these slogan-mongers it was anathema to recall the golden words of Joseph Story, "That Government can scarcely be deemed to be free where the rights of property are left solely dependent on the will of a legislative body without any restraint". India is over-populated and the landed property therein is scarcely adequate for division amongst its teeming millions. To divide them is only dividing poverty. To co-ordinate them into a good system of productivity is indeed wisdom. Acquisition of property of individuals by the State with little compensation meted out to them, under the ephemeral slogan of public purpose and the so called benefiting of landless persons often tended to be merely a colourable exercise of the power with no tangible achievements in the field of agrarian reforms. Unplanned and irrational division of landed property leads to needless fragmentation sans all utility. As Chief Justice Subba Rao opined, the present provisions of the Constitution (Articles 31, 31A) read with the provisions of the Land Acquisition Act, 1894 give ample scope to effect all the needed agrarian reforms and there was no need to nibble at the provisions as to compensation, reducing it to near confiscation. The fetish to destroy property rights has been the vote-catching slogan of scheming politicians as the majority of votes were landless but this always ended in destroying the capacity to produce agricultural wealth. The part played by the Legislature and the vacillating verdicts of even the highest court of the land has had a crippling effect on our agricultural economy. There has been too much needless tinkering with the constitutional provisions in this regard to get round the difficulties arising out of some useful court verdicts. If only the drafting section of the Law Ministry and the enforcing section of the Executive work hard in envisaging proper solutions vis-a-vis agrarian law reforms, and agricultural production, and a satisfactory arrangement is made to make available lands to groups of hard working peasants much of the absurdities of our land reform policy will disappear. But as it is land reform is contained in the mirage of political slogans with a view to score at the ballot box.
The reform as to Social Justice has been negligible these 25 years. The declaration in Article 17 that untouchability is abolished is only on paper. It persists despite even penal provisions. The core of the problem is to make the Harijans change their way of life (social, religious and economic) so as to be in tune approximately with the rest of the community. Living in hygienic surroundings, and leading a healthy and clean life requires more attention than merely giving them money grants. While the rest of the community has higher modes of worship, the Harijans are yet addicted to appeasing their Goddesses with pots of toddy and flesh. Buttressing them with preferential treatment for thirty years since the Constitution came into force has had an adverse effect leaving them no initiative to compete with the rest and shine in efficiency. The right decision of the Madras High Court in Rangachari's case has unfortunately been overruled by the pronouncement of the Supreme Court led by Chief Justice P. B. Gajendragadkar (General Manager, S. Rly v. Rangachari3) in construing Article 16 in such a way as to construe the words 'employment and appointment' to include 'promotion'. The saddest thing is that in these one and a half decades (since 1962) national efficiency has gone very low since in all the Civil Services if there was a Harijan employee he was promoted over the heads of deserving meritful seniors who belonged to other communities. To give preference to Harijans at the time of initial employment is salutary but to prefer them even for promotion is to kill the zeal of other senior employees to the detriment of national efficiency. The present malaise of inefficiency in the public sector is partly due to this erroneous interpretation of Chief Justice Gajendragadkar.
As to political justice, the Nation is yet retrogave. It has failed to produce the right type of men to man our Legislatures. Adult franchise was given on a platter to the teeming millions of illiterate voters who do not know how to exercise it in national interests. They have been lured by scheming politicians to suit their own power grabbing ends. The political parties are too many and they refuse to consider themselves as trustees of the people. With no polarisation of political parties there is hardly any worthwhile opposition in the Central or State Legislatures. The result is the Ruling Party runs amock being cocksure of its majority strength in the Legislature, with little or no check offered by the Opposition. Political justice thus becomes the first casualty at the hands of a party that has been in power too long. As continued power corrupts we now hear too often the great rumblings of corruption and autocracy at the Centre and the States. Our electoral machinery appears to be greatly at fault as it permits a majority of members returned with minority of votes to rule the country while those opposition parties who have recorded more votes have to suffer defeat permanently, having no voice in the governance of the country. The remedy appears to lie in effective electoral reforms fashioned on the doctrine of proportional representation and the List System as prevalent in West Germany. The present system of majority votes in single member constituency enables easily a candidate who gets only a minority of votes to rule the country. This is possible when we have too many parties and the votes get divided among the innumerable candidates set up for the election.
As to liberty of thought and expression it must be stated that in India the citizen does exercise this freedom on a par with the citizen of any advanced country as U.K. or U.S.A. So may it be said generally with regard to the freedom of belief, faith and worship. But when it comes to equality of status and opportunity it must be stated that Article 14 has been rendered effete under the judicial justification discovered under the bogey of 'reasonable classification'. Discrimination is rampant in the exercise of the executive and legislative power with the Judiciary supporting the doctrine of 'reasonable classification'. Equality before law is well nigh impossible without equal and free access to courts of law. A duty is thus cast on the State to provide legal aid as the majority of citizens cannot have court redress without heavy expenditure with their meagre money resources. It is refreshing to know that after 25 years the State is now thinking of providing a scheme of legal aid financed by the public exchequer.
As to the dignity of the individual which is paramount for promoting the Preamble objective of fraternity, it must be said that the declaration emphasised in Articles 17 and 23 and 24 must be real and effective. In the scheme of our Constitution it is the individual's freedom that is important. The rights in Part III of the Constitution stress this subject only to reasonable restrictions in public interests. In that sense the directives in Part IV must subserve the provisions in Part III and not eclipse them to the point of extinction of the rights. If the directives in Article 39 are carried out in full, it will only erase altogether the rights vouchsafed in Part III. We will then have an U.S.S.R. pattern of society. This is the danger that the majority opinion in Kesavananda Bharati v. State of Kerala4 feared and hence the Court emphatically declared that there can be no amendment of the Constitution which in any way affects or destroys the basic features of the Constitution. There can be no doubt that the rights in Part III of the Constitution do form a basic charter of freedoms coming within the definition of 'Basic features' as formulated in the Fundamental Rights case.
The other aspect of promoting the fraternity concept in the Preamble is the concept of unity of the nation. It should be stated that this unity of the nation has been fairly well kept up these 25 years despite the rumblings we have had periodically from parochial forces poisoned by the slogan of linguistic fanaticism and the mad urge for secession. Fortunately the latter urge once kindled in Tamil Nadu has been given up by the political party in power (D.M.K.) though it reveals the linguistic excessive zeal of Tamilism, to the detriment somewhat of the unity of the nation. The erroneous slogans raised in Maharashtra and Tamil Nadu on the Sons of the Soil' doctrine is indeed a dangerous portent. It would appear that the late Prime Minister Jawaharlal Nehru committed at least two Himalayan blunders: (1) Division of India into linguistic States (2) 'Hindi Chini Bhai Bhai' slogan which led to the Chinese war. One truly wishes that the States be reorganised not on linguistic basis but on a zonal basis so as to herald more cohesion between the peoples living in the various States now to be transformed into one Zone.
It must be conceded that there has been considerable erosion of the rights guaranteed in Part III of the Constitution and that there is much justification for the eminent jurist Advocate Shri N.A. Palkhivala for writing his famous book (1974) "Our Constitution Defaced and Defiled". It must however gladden the citizen that the Supreme Court functioning as the Great sentinel on the qui vive has at long last salvaged a good part of the Rights by the famous pronouncement in Kesavananda Bharati case (majority of 7 in a Bench of 13 Judges) overruling Golaknath v. State of Punjab5 But there is yet danger ahead as the minority view is to the liking of the Ruling Party in power at the Centre. Responsible members of the Cabinet pronounced their views against the majority opinion and in fact went to the extent of stating barefacedly that the Judiciary must adopt the philosophy of the Constitution as enunciated by the Cabinet and the Legislature. In other words the Ruling Party is out for a committed Judiciary committed to the views of the party in power. If this disaster is to happen the Judiciary must change their views every five years in accordance with the views of the new Cabinet formed every five years. This absurd proclamation of the Executive was followed by the rejection of the precedent of establishing the seniormost puisne judge as Chief Justice of India. The supersession of Justices Shelat, Hegde and Grover led to their resignation in protest and a reaction of public opinion against it. Nevertheless the die has been cast and the citizens of India are worried whether the committed Judiciary concept of the late Shri Mohan Kumaramangalam will come into real vogue. Fortunately Chief Justice A.N. Ray is of a sterling mould with deep erudition and knowledge of legal jurisprudence. We are sure that the integrity and dignity of the Judiciary is safe in the hands of the present incumbents of the Supreme Court. It is of the utmost importance that the Judiciary and the Bar do see that the tradition (this one century and more) of an independent Judiciary in India is always kept up. Without an independent Judiciary no democracy, much less a federal democracy, can survive.
3. The Amending Power in the Constitution
The Constitution of India being a 'controlled' one, correctly speaking on the authority of Wheare (vide 'Modern Constitutions' p. 31), the Legislature's power to alter the Constitution is either limited or non-existent. But in an un-controlled Constitution such as in the United Kingdom where Parliament is supreme with unlimited jurisdiction, Constitutional law can be altered merely by enacting legislation inconsistent with it (vide McCawley v. The King).6 In the Indian Constitution, Article 368 which refers to amendment is really silent as to the width of the amending power. In Golaknath v. State of Punjab7 the Supreme Court was of the opinion (majority view) that the article merely laid down the procedure for amendment, that Parliament had not the constituent power to effect any amendment of the provisions in Part III, and that the Constitution Amendments I, IV and XVII could however be sustained by invoking the doctrine of prospective overruling. This opinion was reversed in Kesavananda Bharati case8 wherein the constituent power was conceded to Parliament as specified in the 24th Amendment and that consequently any provision of the Constitution can stand amended provided such an amendment does not alter or destroy any of the essential features, basic elements, or fundamental principles of the Constitution. It is a pity that this was not discovered earlier than 1973. We may not have been faced with so many problems affecting agrarian reforms or have had the needless tussle between the Legislative Power v. The Judicial Power.
It is significantly good that the majority of the Judges in the Fundamental Rights case led by Sikri, C.J. held the amending power to be limited, applying the rule of inherent and implied limitation. The minority Judges led by A.N. Ray, J. (as he then was) rested their decision on a restricted meaning of the word 'amendment'. The result is that Parliament can now amend even the basic features of the Constitution but without altering or destroying those features. One wishes that there was at least unanimity among all the 13 Judges as to what those 'basic features' are. It appears to us (this is conceded by the majority of the Judges) that the basic features include the Democratic Sovereign Character of the Republic, Cabinet form of Parliamentary Government in a federal set-up, Fundamental Rights, Judicial Review, Unity of India, etc. There can be no doubt that the ultimate sovereignty rests with the people and consequently no basic features of the Constitution can be destroyed except on a referendum or on the convening of another Constituent Assembly. For Parliament is only a creature of the Constitution, liable to be dissolved every five years. It is the Constitution which is supreme and not any of the three wings of Government.
In the Fundamental Rights case it was fortunate for the survival of our democracy that Justice Khanna's opinion tilted the balance. But for the opinion of Justice Khanna, the basic feature of the Constitution in Judicial Review would have had a casualty. It was Justice Khanna who tilted the balance in 7 : 6 on the question of judicial review. He struck down the latter part of new Article 31-C as it ousted the jurisdiction of the court. Thus by a strange quirk of fate the judgment of Justice Khanna, with which none of the other twelve Judges totally agreed, has become the law of the land.
We do hope that Executive(Ruling Party) accepts the verdict of the Supreme Court and gives up the idea of a committed Judiciary.
4. The Role of the President and the Governors
The tragedy of these 25 years is that the role of the President is one of an ornamental piece in the grandiose durbar of the Union Government. This twist has been given by this interpretation of Article 74(1) where it is stated. "There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President in the exercise of his functions". Mark you, the duty is cast on the Council to advise and no obligation is thrust on the President to accept it once or always. Yet Prime Minster Nehru was able to get the Attorney General's opinion in his favour in this regard. His charisma and ego worked and now the political opinion is that the President has no powers. He has to function only as per advice of the Cabinet. The bitter controversy on this point between President Babu Rajendra Prasad and Nehru is well known as also the attitude of President Radhakrishnan. The latter day succeeding incumbents were verily rubber-stamps of the Prime Minister. This was so ludicrous that Shri H.L. Pandit brought out an informative book under the revealing caption, 'The PM's President'! It is not possible to debate on this aspect at length in this article. We reserve the same to a detailed article on a subsequent occasion.
What havoc the Nehru-Setalvad doctrine created is clear if we see how the President had been reduced to a rubber-stamp of the P.M. when he exercised his emergency powers under Articles 352 to 360 in the last decade or more. Declaration of emergency has to be the independent satisfaction of the President as the Federal Head. The Cabinet's advice does not come in at all and even if it is given, the President has to decide on his own satisfaction. When he acted on the compelling advice of the Ministry in the last decade not only was there a violation of the constitutional mandate but the rule of law was greatly jeopardised. Thus for instance, from 1969 to 1975, there have been a dozen declarations of emergency and introduction of the President's Rule in Manipur, Mysore, Orissa, Gujarat, W. Bengal, Punjab, Tripura, Bihar, Andhra, etc. Only in the case of Tripura and Andhra Pradesh was there a real emergency occasioned by the Chinese invasion and break-down of law and order respectively. In all other cases it was because the Ruling Party had difficulties in running the Government. The party in the Centre and the State was the same and so the Union Cabinet misused the constitutional provisions by insisting on the President to come to the political party's rescue by the ruse of President's Rule. Such a misuse and the continuance of emergency even now in 1975 has deprived the citizen of his remedy under Articles 32 or 226 for infringement of his rights under Part III of the Constitution. The present economic crisis, the political crisis in Bihar and Gujarat, the J.P. Satyagraha movement in Bihar and other States are all due to the fact that the President was not conceded the power or felt powerless to pull up the Central Ministry vis-a-vis grave situations facing the country from time to time. The charisma of the P.M. appears to have exhausted itself now, and the empty slogan of Garibi Hatao (Remove poverty) without any implementation of the highsounding economic programmes trotted out by the P.M. from time to time, appears to have landed the Nation in a terrible quandary.
Just as the President, the Governor has also certain powers. He is the watch dog of the President in seeing that the State Ministry functions within the four corners of the constitutional set-up. But if Governors are appointed from gentry who are in tune with the Ruling Party, the institution of Governor in our Federal set-up (particularly when the State Party is different) appears a mockery and an unwanted commodity. The choice of Governors these two decades has not been happy except for a few exceptions. Men of calibre and integrity and truly independent should be the choice for Governorships. If the choice is on those Ruling Party men who were defeated in an election, or who were inconvenient or notorious ministers with not a too happy record, it is indeed a sad day for the future of the constitutional machinery. Nothing should prevent offering of Governorships to men of integrity even belonging to the opposition parties or to men of independent status e.g. scientific or economic experts or persons with distinguished public service records universally respected.
5. An assessment of the Executive and the Legislative Power
It was Herbert Spencer who observed "The republican form of Government is the highest form of Government ; but because of this it requires the highest type of human nature—a type nowhere at present existing". Yes, it does not appear to exist now in the Indian Republic where the general moral plane in public and private sectors is rather at a very low ebb. Our civil services, our Ministries, Legislators lack in high moral objectives while they revel in inefficiency and debased outlook. Corruption is rampant everywhere and it is a wonder that the Government is yet running with such bankruptcy, in- efficiency and integrity. Mediocrities, and that too of low morals, can hardly promote any progress in the running of Democratic Government. As we stated earlier, the Executive have bungled these twenty-five years in not only exhibiting lack of drive and lack of fulfillment of natural purposes in planning, but also had run out the national treasury and indulgently revelled in foreign aid galore making us an awful debtor Nation without redemption. Our economy cannot be improved unless the Nation is yoked to the wheels of high production of consumer commodities and industrial development (both small and heavy industries). The Executive must needs avoid encroaching on the Legislative and Judicial spheres. They have yet to carry out many of the reforms propounded by the Administrative Reforms Commission. The Legislatures have to keep within their jurisdiction and not venture to circumvent each judicial pronouncement by a saving enactment. The Indian Parliament should give up its zeal to operate as a sovereign body as if it had the powers similar to Parliament of the United Kingdom. It may as well codify what privileges it can claim and not bask under the saving clauses in Articles 105 and 194 whereby the privileges as obtaining in UK in 1950 would govern India. The rider is that this can be so till the Indian Parliament itself formulates its own code. Was this not possible all these 25 years? The fear that once this is done it will be inviting judicial review at some level or other is most unhealthy. The time is come when the Legislature and the Judiciary should respect each other's jurisdiction and not be suspicious or envious of each other. The tendency to delegate legislative power to the Executive has necessarily to be curbed. The Ruling Party in Parliament should respect the views of opposition parties even if they are in a small minority. It is betimes the leader of the Opposition is given respectful recognition at the official level occupying a status next only to the Leader of the House. It cannot be said that the criticism of the Public Accounts Committee of Parliament or of the State Legislatures have been heeded to by the Executive. Wastage (of men and money) and too much expenses have been the bane of our Governmental offices. Electoral reforms are long overdue for the last one decade and yet no effect has been given even to the small reforms suggested by the Wanchoo Committee of the Electoral Law Amendment Committee of Parliament. The Executive is chary of parting with any of its powers or with its capacity to misuse such power. The mad desire in tinkering too often with the Constitution by indulging in umpteen amendments is disastrous to the very stability of the State. Much of the ticklish situations we had to face could have been avoided if Parliament had tried to build up its own conventions wherever there is scope for it under the Constitution. On the other hand, there has been a cruel and tardy disposition not to build up conventions but indulge in arbitrariness and autocracy.
No Legislature of any Republic can function effectively unless there is polarisation of political parties into a few well-organised parties who will act as the de facto trustees of the people and thus have an effective check on the Ruling Party. If the latter misbehaves there must be an alternative Government ready to step into its place. A shadow Cabinet must be reared up by the other political parties in the Opposition. This alone will operate as a good check on the arbitrariness of any Ruling Party. The Centre-State relations must be harmonious, and there should be financial stability assured to the State. Autonomy of States should be built around finance and implementation of the State plan. A sense of participation in the national planning and implementation thereof is most desirable. The Speakers of the Legislature at the Centre and the State should be men of calibre and integrity inspiring confidence among all sections of the House. He must be able to make the party in power and the opposition devote their attention to major problems of the Nation in a constructive way. The relationship between the Speaker, the President or Governor and the Ministry must be cordial and harmonious enabling the smooth running of Parliamentary democracy. Unless the Executive and the Legislature pay respect to the judicial views, we cannot evolve a high type of democracy. It should not be forgotten (unfortunately it has been so sometimes) that Article 144 enjoins all civil and judicial authorities to act in aid of the Supreme Court.
The efficiency of a Cabinet depends upon the efficiency of its Secretariat. It cannot be said that an efficient Secretariat has been built up at the Centre or the State. The President's Secretariat is too meagre and unless it is built up on a good scale he will not be able to function in an independent way. It may be the Cabinet Secretariat may delay giving him the needed information. It is therefore of the utmost importance that the President must be a tall personality with good health, drive and calibre so as to inspire all minorities and to compel the Cabinet to act in a constitutional way at moments of crisis. To leave the choice of the President to the Prime Minister has resulted in giving us senile and old men who could not hold up against the autocratic attitude of the P.M. The party whip to vote for the Ruling Party's Presidential candidate reduces the election to a farce. There must be free voting and then only the Opposition candidate can have a good chance provided he has the required qualifications superior to that of his rival.
6. The Judiciary and the Bar
The role of the Judiciary in our democratic polity is best explained in the words of James Madison:
"If they are incorporated into the Constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardian of those rights ; they (the courts) will be an impenetrable bulwark against every assumption of power in the Legislative or Executive ; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by the declaration of rights."
Thus indeed the courts are constituted as guardian of our liberties and in the memorable words of Chief Justice Patanjali Sastri "as the sentinel on the quivive" to protect the rights of the citizen against the onslaughts of the State on them. If so the courts discharge this sacred duty and strike down ultra vires legislation, it should not be deemed as any disrespect shown to the legislative power. It must be stated that, by and large, these 25 years the Judiciary has performed this noble task fairly and well. Maybe there are a few errors here and there due to honest though erroneous misinterpretation or due to excessive zeal and sometimes due to insufficiency of knowledge.
The appointments to the Higher Judiciary should be solely based on merit. Eminent members of the Bar of high calibre and character should be prevailed upon. The salutary provision of Article 124(3)(c) of appointment of a distinguished jurist must be utilised. The provision cannot be made a dead letter nor can it be believed that there are no distinguished jurists in the country. Appointment of jurists is necessary for active development of Indian jurisprudence.
The free play of nepotism and favouritism in the choice of the Subordinate Judiciary in the last decade have contributed to the lowering of the prestige and efficiency of the Indian Judiciary.
In the High Courts and the subordinate courts, judges do not have the patience to hear Counsel's arguments. Some even shun case law and very often the Bar refuses to place the full material before the court, the latter being allergic to much learning. Some Judges revel in question and answer method of the school master variety with the result that court halls are reduced sometimes to classrooms with attendant frailties !
The Judiciary alone are not to be blamed for such situations. The Bar also is at fault. Very often they are ill-prepared and oftentimes unlearn their learning merely because the judges are indifferent to jurisprudential eloquence. Then again in the lower rungs of the Bar there is a feeling of fatality not to read law in depth as the newly recruited judges at the lower rung refuse to read law. But then how are we to rectify the situation even if the recruitment to the Judiciary is erroneous. You can even reform a judge by persistent and learned advocacy. If the Bar sinks, the Judiciary also sinks in the sea of ignorance. If only the Bench and the Bar ponder over the objectives of judicial review as postulated by that great jurist Dean Rascoe Pound, they will surely mend their roles and act in depth and fairness to the cause, the client or parties in the cause, and to Law itself. The Dean said:
"The guarantees of liberty . . . . . . are not . . . exhortations as to how Government should be carried on or its agencies will operate. They are precepts of the law of the land backed by the power of the courts of law to refuse to give effect to legislative or executive acts in derogation thereof. Thus violation of these secured liberties must amount in effect to a revolution in order to overthrow them. Any considerable infringement of guaranteed individual or minority rights appears to involve much more than overriding a pronouncement of political ethics in a political instrument. It involves defiance of fundamental law ; overthrow of established law upon which the maintenance of the general security rests."
The lack of depth in judgments is often due to the fetish for quick disposals to satisfy statistics. This leads to jettisoning Counsel's arguments and short-circuiting all procedure and ignoring the Rules of Natural Justice particularly fair hearing. Admission of appeals or writ applications are often jeopardised on the altar of statistics and disposals. The Judiciary has thus reduced the Fundamental Right in Article 32 as one subject to the principle of res judicata and even laches, forgetting that there is no great fundamental principle than the right guaranteed in moving the court under Article 32. Article 32 is silent as to res judicata and limitation but judicial legislation has introduced these needless aspects into writ jurisprudence.
Talking of Jurisprudence, the Judiciary and the Bar, we have to observe that in India the development of Jurisprudence (Constitutional or General) is much neglected. This is due to the allergy exhibited by the Bench and Bar to jurisprudential jargon ! Appointment of distinguished jurists on the Supreme Court though envisaged has regretfully not been done. The incentive to develop jurisprudential thought lies in the encouragement of the reading habit by judges and lawyers and in the enterprise of Law publishers who would attract eminent lawyers to pen down their jurisprudential thoughts by paying them adequately. Eminent lawyers and judges have a duty to put down their thoughts and experiences for the growth of indigenous legal literature.
The remedy for law's delays lies in the proper recruitment of judges who can decide quickly and efficiently and in the creation of more courts if need be. The number of judges of the Supreme Court and the High Courts may be appropriately increased. The need for expertise in Administrative law, Tax law, Labour law, etc. calls for recruiting judges with experience in these areas. To attract the best men for the Judiciary, there must be better salaries and other emoluments and conveniences for them. Though this has been so often stated we have yet to see any constitutional amendment as to these, though the Executive is not wanting in zeal to rush through constitutional bills affecting the rights of the citizens of India as to property and other freedoms envisaged so flamboyantly in Part II of the Constitution.
7. High Functionaries and Bodies
The success of a constitutional set-up lies on the persons who work it, particularly on those on whom a duty is cast to further the objectives of the constitutional document. Viewed in this light the offices of the Attorney General of India, the Advocate General in a State, the Comptroller and Auditor General of India, should be manned by stalwart men of proved capacity, integrity and independence. It is the President that has to appoint the first and the last of the aforesaid dignitaries while his agent, the Governor, appoints the Advocate General. Even if the Central and State Cabinet are inclined to advise the President in this regard, it is the paramount and sacred duty of the Head of the Union and Head of the State to appoint proper personnel to these high offices without fear or favour. It may be said that there has been a fair selection vis-a-vis Attorney General of India and the Comptroller and Auditor General of India these two decades. But nevertheless, we had instances when the Central Cabinet wished the persons to act according to their own desires. So far as the Advocate General is concerned, they had a meritful career in the first decade of the Constitution. But lately the party in power in each State wanted the Advocate General to be the mere mouthpiece of the Ruling Party. In some States (e.g. Tamil Nadu) the Ruling Party changed the Advocate General with each change of Government, forgetting that high office is independent of party patronage. In England, the Lord Chancellor was part of Government and changed with the Government. In India it is otherwise, as the Attorney General and the Advocate General are not even members of the Legislature at all. This deterioration in standards and outlook in India is indeed lamentable and does not portend a good future in the working of a democracy.
We have constitutional and statutory bodies in the Public Service Commission of the Union and the States, the Election Commission, the Finance Commissions etc. It has to be stated that these Commissions have not always been manned by men of outstanding ability and integrity. Some of them have proved to be sycophants of the Ruling Party, devoid of independent outlook. In the case of the Public Service Commissions the standard set at the Centre is indeed better than that exhibited at the State level. In the latter case, instances are not wanting when recruitment to the services were made on grounds other than merit. The Election Commission should be manned by a non-official to be thoroughly independent of the Ruling Party. But all these decades it is a retired official of the Law Ministry or the Home Ministry that is the Chairman. This does not help in eradicating official bias. There has been loud criticism that the Election Commissioner is functioning as a subordinate to the Cabinet, though under the Constitution he has to be an independent stalwart functionary who would attract the approbation of all political parties. The Constitution envisages the appointment of more Commissioners than one and yet it is a tragedy that Commissioner though the load of work demands appointment of at least four Commissioners, one for each zone.
The Backward Class Commission has yet to truly function. Somehow by a mere Presidential order issued by the Cabinet, all forward classes are included as backward, making it all a mockery. The Official Language Commission is working haphazardly, not adhering to the mandates envisaged in Articles 343 to 347. The bias for Hindi should not smother English which has stood its ground and which verily opens the window of knowledge to and from the outside world. Hindi literature has yet to grow in fields of science, technology, medicine, law, engineering etc. The fetish for regional language, bred on the poison of parochial linguism, appears to disrupt even the basic unity of our Republic. The division of the Union into linguistic States during the Nehru regime has proved to be a Himalayan blunder and it is betimes they are scrapped and four or five zonal Governments be introduced. Such a reform may prove fruitful in promoting the unity of India which is so eloquently emphasised in the Preamble of the Constitution.
It is a pity that the recommendations of successive Finance Commissions have not been strictly implemented. This has greatly upset our national economy. The Law Commission's recommendations are often kept in cold storage as they do not suit officialdom. The Planning Commission is a huge white elephant with no constitutional basis but yet it operates as a super Cabinet, producing plans galore. But the Cabinet is unable to implement or give effect to them. A sense of practical vision and performance appears to be totally absent in our planning. Precept and practice should go together if any official policy is loudly proclaimed.
It is a tragedy and a standing disgrace that Article 262 as to river disputes is a dead letter though disputes as to river waters between State and State has been on the increase. Each State claiming natural water as its own property appears to jeopardise national unity and economic development of the affected States. There is no permanent body or tribunal created under Article 262 to settle such disputes. One good suggestion is to nationalise all rivers. The fetish for nationalisation in unwanted and deficient areas e.g., nationalisation of banks, industries, motor transport etc. have only led to inefficiency. Public sector corporations have proved their inefficiency resulting only in losses. But nationalisation of rivers will yield very good results in that there will be fair distribution of water to all States, and withal electricity too. Maybe parochial critics will oppose this move, but in the long run the nation is to gain in its economy. National unity will also be one very good result.
8. Constitutional lapses and abuses
The Constitution has some very salutary provisions for enabling the Nation to march ahead in matters social, economic, judicial and political. But it is a pity that not much thought has been given to those provisions. They include:
(1) The provision in Article 307 enabling appointment of authority for carrying out the purposes of Articles 301 to 314, vis-a-vis trade, commerce and inter-course among the States. It has to be on the pattern of the Inter-State Commerce Commission of USA with administrative, quasi-judicial and quasi-legislative functions. Inter-State commerce in India has acquired enough dimensions so as to demand the appointment of such a commission. It is tragic this provision has been put in cold storage so far.
(2) The provision in Article 340 enabling the President to appoint a commission to investigate the conditions of backward classes has not been so far put into proper effect. One bad effect of this was that each State Government exercises its own power to determine the socially and economically backward classes for taking action under Article 15(4). The Constitution First Amendment introduced the new clause (4) of Article 15 enabling States to determine their own list of backward classes notwithstanding the directives of Article 340. This is the result of the Supreme Court opinion in Smt. Champakam Dorai Rajan v. State of Madras.9 Unless there is a central commission listing out fairly the really backward classes and this is made binding on the States, the tendency in some States is to resort to unfair classification. It is notorious that some forward classes and castes are included in the Backward Classes list of some States (e.g. Tamil Nadu), though they are greatly forward in their economy and social conditions.
(3) As referred to earlier, Article 262 has not yet been implemented by the Constitution and no Standing Tribunal has been constituted to settle inter-state water disputes. This has resulted in many political squabbles as between State and State, much to the detriment of national productivity.
(4) Nor has any good attempt been made to constitute an inter-State Council to effect co-ordination between States as visualised in Article 263.
(5) There is no constitutional or statutory provision for the Planning Commission to exercise its authority. The matter requires deep consideration. So far, the Planning Commission consumed a lot of expenditure, and its largeness of size and expenditure has given no tangible worthwhile results. It has only created a jar since it tended often to operate as a super Cabinet. There is no effective participation of the States either in the formulation of the plans, or in their effective enforcement. The objectives, procedure and performance details must have statutory authority for any success to be achieved in national development.
(6) The provision of Article 124(3) for the appointment of distinguished jurists should be put in practice to spread the growth of our Jurisprudence and Constitutional Law.
(7) Though the need for a Ombudsman-type body has been felt to be necessary this decade to put down administrative delays and corruption, nothing has so far emerged. Even the Lok Pal and Lok Ayukt Bills which were periodically presented to Parliament, have been allowed to lapse. There is no keen desire evinced by the Ruling Party to legislate in these directions.
(8) The much talked of statute to prevent defections from political parties is yet in the making and the proposed code of conduct for legislators also seems to be a distant cry. These reforms, though ever so important, appear to our political parties best deferred.
(9) The high objectives of the Constitution have necessarily to be always kept in view, not only in the public sector but also in the various high powered commissions, and they surely should inspire those in high offices. For this the personnel who man these commissions and high offices should be of a high calibre, merit and integrity. The association of experts in each field of governmental work e.g., expertise in science, technology, economics, etc. is ever so called for. But power-mad politicians appear to be allergic to them. The hidden expertise in the Secretariat or elsewhere—even these appear to fade due to non-user or due to needless interference by 'budding' politicians who have developed a high-brow habit of poking in, in matters they do not know.
(10) It has indeed become a common feature of Governmental efficiency not to carry out the recommendations of high power commissions e.g. The Law Commission, The Administrative Law Commission, etc. Even the recommendations of successive Finance Commissions have not been fully and properly implemented.
- The Constitution Defaced and Defiled, (1974) p. 3.
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- The Constitution Defaced and Defiled, (1974) p. 3.
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- AIR 1962 SC 36 : 1962(2) SCR 586, overruling AIR 1961 Mad 35.
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- (1973) 4 SCC 225.
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- AIR 1967 SC 1643 : (1967) 2 SCR 762.
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- 1920 AC 691, 705 (PC).
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- AIR 1967 SC 1643 : (1967) 2 SCR 762.
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- (1973) 4 SCC 225.
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- AIR 1951 Mad 120.
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