Thursday, January 26, 2012
Saturday, August 13, 2011
Some journos from Dainik Jagran contacted me from my hometown. They had heard and were impressed with the work that I am doing on these senior level appointments linking with Constitution and firing the volley of RTIs at the government( My blog is almost full of that. For those who don't know, my RTI applications are never related to corruption and are highly non-direct. I am trying to make the system work as per the Constitution at the top level in the government with almost no change. The rest of correction to the bottom, my assumption is, will follow in due time.)
Friday, June 17, 2011
Thursday, May 26, 2011
Wednesday, March 23, 2011
Wednesday, March 02, 2011
Thursday, February 24, 2011
Friday, December 31, 2010
Thursday, September 30, 2010
Saturday, August 21, 2010
Monday, August 02, 2010
Thursday, July 29, 2010
I had all these discussions on things not working and what not and then they got lost in nothingness. That’s no way. Action must follow reasoning. Reasoning’s useless otherwise.
I have always known that roads to disasters are paved with good intentions. In our case, roads to disaster of
The second question being, “How can the election commission of
But election commission, who is answerable to no one, can easily brush it off that they are judges only for big parties while being only administrators for those hopeful starts. I might need a little help here in making the question 2 simpler therefore.
The third question being, “Who is the competent authority to appoint the Cabinet Secretary?” This question is the summation and culmination where all this analysis converges. I could give up following up on question number 1 and question number 2 just for the sake of this question. This is most specific I can get and hits right at the heart of the reason of all the nonsense happening in this country. Its cold logic meeting the practically invincible jugaad and chalta hai mentality of
When I’ll fight on the side of this question the politician or their mandarins will come up with all the jugaad to avoid giving a specific answer. When, and its not if, I do escalate it to the relevant persons or the court maybe, they will give me the chalta hai, ismein dikkat kya hai dialogue.
I have already acted anyway.
An RTI was filed at Cabinet Secretary office asking this 3rd question specifically on 7th June. I had also filed a similar RTI with Department of Personnel and Training(DoPT), earlier on 18th May as well.
Those sarkari people over there while accepting the RTI said that why are you filing an application for asking a GK question because everyone knows that Prime Minister appoints the Cabinet Secretary. I had to tell the bumheads that no minister, including the Prime Minister has the power to appoint any sarkari officer. So they then asked each other, who does it? I said I know but I would want your department to tell me who is it.
These questions may look innocuous but have the greatest potential. Even the officials in the highest government office are a little lost about it.
Watch this space.
Watch this space.
Friday, June 11, 2010
Thursday, June 10, 2010
Sunday, June 06, 2010
Thursday, May 27, 2010
Monday, May 10, 2010
Here are a few questions which I hope somebody is going to ask an MP or an election commissioner or in the Parliament.
Q1) Why the hell does a new party have to choose from a list of symbols released by the Election Commission and thus have its own symbol out of the "free symbols" list maintained by the EC?
Q2) If two or more independent candidates want to share an election symbol without forming a party, and are willing to give that in writing why does the election commission have to still give them different symbols by drawing random lots?
I know you chaps are surprised by the first question. I thought a new party is free to choose symbols closely resembling whatever it believes in. But then look at this link here(and jump to page 78 of the page that opens) of the election commission official website. Your new party's choice of symbols is restricted to the EC's choices listed here. I didn't know that at all. And it is kind of dumb of us to accept that restriction.
The second question makes me think of divide and rule. If two or three chaps want to have a common symbol without forming a party (and therefore have a party president who controls the rest) then forcing them to choose separate symbols is like Lord Curzon or Aurangzeb forcing animosity on people who are willing to sort out their differences their own way.
If we don't have a problem, then whats your damn problem, EC man ?
Why can't me and my friends, if we ever choose to contest elections, have our own common symbol which nobody else wants?
Monday, May 03, 2010
People tried but no one gave a verifiable answer. Answers were given in the comments. My erudite dost Abhishek Singhal came close I think though.
I had a clear suspicion of poor mathematical(almost) logic lurking somewhere. Since constitution is logically ok. That is, it does not give an individual minister any power at all. It gives power to Cabinet only.
Even the cabinet is not capable of using its power without formal approval of sarkari officers or the President. So there was no way by which an individual minister can get any power without support, and not submission, from the sarkari officer or the President.
Since power breeds corruption, therefore logically, individual minister could not have gotten so much power to be so much corrupt in India.
That is why I had posted those questions in that blog.
Having spent days in the Central Secretariat Library at Shastri Bhavan , hunting in the Gazettes of India, I fished out what I was looking for i.e. the method, by which ministers get to tower over the sarkari officers, and get their submission without the need of getting their support.
Obviously, as expected from above mentioned inferences and assumptions, it was illogical.
Here is the excerpt of one such order from the Gazette of India
Wednesday, April 28, 2010
Some vella person asked this question making me undoubt his stupidity (there's a spark of genius in every dhakkan, i guess)"Why can't government print more money to remove all this gareebi?"
People have become so vella nowadays to suggest Indian government should do the ISI's job of printing the money now, I thought. (I'll come to the genius spark later.)
Another colleague, whose mouth moves faster than his mind suggested that we should declare 1 Rupee = 1 Dollar , and that will make our economy at par with the world economy.
And now I have taken up a policy of giving short answers to such short questions. The damn deal is to make that short answer.
So answer1 to query 1 of removing gareebi by printing money is
A1) Printed money when handed over to the finite gareeb people will remove their gareebi is a sure thing. When the gareeb people will use the new money, major mehngai will set in and will be maintained because of higher circulation of money. This will make the next generation of the current gareeb people even more gareeb because by then the current gareeb people would have used up much of their printed money but higher mehngai would have left their saved stockpile of cash as lesser useful.
So, printing money will cause more despair to gareeb folks after some time. Thats why printing money is never a solution. And which ever dumb minister ever orders printing it, should be asked to sing his songs outside the parliament, near the chandni chowk gurudwara or something.
Query 2) Wouldn't declaring 1 Rupee = 1 dollar make us come to terms with world economy?
A2) Sundar ladkiyon waali akal paayi hai iss bande ne! Mere baap, if you declare 1 Rupee = 1 dollar then you'll have to give 1 dollar for every 1 rupee that any angrez tourist presents to the government. Now swear on your appraisal if you think that the government has so many dollars to pay for every rupee that we have.
Basically, other countries judge us by amount of dollars we have, not Rupees.
Declaring without thinking enough is for motormouths. Simple demand, supply and commerce will make you see stars in daytime if you declare so.
There are more questions which my intellectual team members keep asking. Will keep posted on them as well.
Answers were long. Pur I am trying, yaar! :)
Wednesday, April 14, 2010
Thursday, April 01, 2010
This writeup is targeted to senior civil servants whose work follows the "Rules of Business" made by the President or the constitutional lawyers who interpret the provisions of constitution.
Under article 77(3) of constitution, the President is empowered to create rules for convenient transaction of business and allocation of said business amongst ministers.
The President has thus made 2 rules called as
(i) "Allocation of Business rules, 1961" for allocating department and subjects to ministers, and
(ii) "Transaction of Business rules, 1961" for more convenient transaction of business of government.
The official government of
I do not see anything in "Allocation of Business rules, 1961" which is against any constitutional provisions. That is not being challenged. ( I would reserve the following challenge for later, that allocation of business rules should be the ones referring the transaction of business rules due to word "said business" in the article 77(3) and not the other way round. )
It is the "Transaction of Business rules, 1961" that is being challenged.
Specifically the following 4 rules in it are challenged on grounds being constituionally invalid and requested that they do not have any place in President's rules. It is admitted that these rules are very valid in toto and are helpful but only for functioning of Council of Ministers internally. However these rules must be excluded out of President's rules.
The 4 rules are:
1) Rule number 3 which gives individual minister powers to dispose business alloted to them.
2) Rule number 4's clause 1 which gives Cabinet to decide on inter-departmental consultations on special cases.
3) Rule number 6 defining committees of the cabinet and their executive powers.
4) Rule number 12 providing power to PM to directly permit or condone a departure from these rules.
Note: The President is bound to act on aid and advice of Council of Ministers(CoM) under article 74(1). That aid and advice is not to be enquired by any court under article 74(2).
Following are the challenges offered against each of the above four rules:
1) Rule 3 which gives individual minister powers to dispose business alloted to them.
Power to dispose of business is executive action. Article 53(1) states that President exercises his authority either directly or through officers sub-ordinate to him. Therefore the person to dispose of business must be an officer, and sub-ordinate to the President as well.
If minister is treated as an officer exercising executive authority of President, then the decision of minister becomes the decision of President and therefore binding on the State. That is not the current view. Decision of minister's do not become decisions of the State as per Supreme court decisions. Therefore, power to dispose of business assuming minister is officer cannot be valid.
Also, the view of the courts' is minister is no more than an advisor to the State, constitutionally(refer Shanti Sports case and many others). Also, advises are kept away from the purview of courts because of article 74(2) as per note above. Therefore if the minister is disposing of the business as advisor then his advises to the executive will be beyond the purview of law. But then this is also not the correct current position since all of ministers advises, file noting, decisions are open to RTI. If ministers are to dispose of business as advisors then their advises must be kept secret.
Not only that. The advise, its existence , and inquiry into the nature of advise would be beyond any court. Yet courts are full of cases under Prevention of Corruption etc where minister's binding advises have been inquired into and brought into open.
Therefore, rule 1 is invalid to be included under President's rules if open-ness of minister's decision are to be allowed.
Rule 1 can be held as valid and consistent with courts only when it is interpreted that individual minister's instructions in this rule are not advises, therefore non-binding on civil servants. In case of difference of opinion between a minister and a civil servant final decision rests with President who may either choose to accept that minister's decision or choose to exercise his right under article 78(c) to let the minister's decision be considered by CoM.
2) Rule 4 clause 1 which gives Cabinet to decide on inter-departmental consultations on special cases.
(This rule 4 clause 1 is being challenged as invalid on the assumption that by Cabinet is meant "Cabinet of Ministers or CoM". If it is interpreted as Cabinet Secretariat, then it is not being challenged. )
For inter-departmental consultations, President cannot make decision of the cabinet binding on the civil servants without compromising open-ness. Decision of cabinet will also,constitutionally speaking be treated as advise only , and hence will have to kept out of purview of the courts.
However the decision of Council of minister, to President can be considered as binding on civil servants and not compromise open-ness. It will be made open to court as well because it will be the instruction from the President to the civil servant that will be brought into open even though that instruction may be same as CoM's advice.
This rule 4 is assuming that decisions of CoM are same as decisions of President, and assuming further that President is denying himself the right to encourage, right to warn and right to be consulted by the CoM. Decisions of CoM are not the decisions of President and therefore not the decisions of the State , this has been established by courts. President cannot not only give up his rights, but also cannot appear to give up his rights. There is a case of an act of self-abnegation.
Therefore rule 4 clause 1 is invalid to be included if Cabinet is interpreted as not being Cabinet Secretariat, and open-ness of decisions to civil servants in inter-departmental matters ,from CoM is to be allowed.
The executive business of inter-departmental decisions should be with Cabinet Secretariat or the head of all departments i.e. the President, to make the system open and consistent with courts' view.
3) Rule 6 defining committees of the cabinet and their executive powers
This rule 6 is being challenged as invalid because
a) As shown above, it will require the communication of standing committee's decisions to civil servants as not eligible for coming into open. Standing committees consisting of ministers can communicate only their advise.
b) The President under article 74(1) is to take advice from a Council of ministers as a whole. President cannot break CoM into smaller parts (of committee's) for decision making for his convenience. Breaking up itself is CoM's internal matter. In fact President is supposed to enforce collective responsibility inherent to article 74(1) . President is even further expected to return decisions as specified under article 78(c) for consideration by entire council if he feels that such a decision has not been considered by the CoM.
This rule is valid if it was a rule made by Council of Ministers for their internal working. However it is invalid to be included in President's rules.
Also, the Standing committee minister's have been given direct charge to issue orders without allocating the said business to a ministery/department/mantralaya in allocation of business rules. The orders of Standing committees will become binding once they have been accepted by a department head/ministry/mantralaya. Article 77(3) makes it binding on President to include the said business in allocation rules. Since such is not the case, rule is invalid till then.
4) Rule 12 providing power to PM to directly permit or condone a departure from these rules.
As per rule 12, PM gets direct powers to permit or condone departure from these rules to the extent he deems neccessary.
It is fact that these rules are made by the President and therefore only the President can permit or condone departure from these rules. Permitting or condoning departure from these rules of business is executive decision. PM is not the head of executive and does not have executive authority. PM can definetely advise the President to permit or condone departure from the rules, and the President is bound to act on that advise as PM is the head of CoM.
However, until that advice is accepted it does not become effective in executive functioning of the government. President can exercise his right to warn, consult and encourage. This rule is valid if it is interpreted as condonation or departure pemitted by the President, on the advice of the Prime Minister.
Corrections to these 4 rules above should get us quite ahead in sorting out this corruption.
At the constitution level there does not appear to be any systemic problem. We have chosen the Parliamentary style of working which is working very well in developed countries like
Getting one level above constitution throws up inconsistencies as shown above. The corruption appears to be spreading from inconsistencies of these business rules with provisions of constitution.
These 4 medicine prescriptions after diagnosis should be able to sort out the corruption. In case, they think clearing these rules is too tough a medicine then they can at least take the medicines with easiest first as follows:
a) In rule 12, add "President, on the advise of the Prime Minister" instead of "Prime Minister". President is anyway bound to act on the advise of the Prime Minister.
b) Mention the business of Standing Committees of rule 6, in "Allocation of business rules, 1961" such that the business of the Standing Committees fall under one department/mantralaya or vibhag. In any case, the departments/mantralaya/vibhag will be instructed by corresponding Standing Committees due to Rule 3.
c) The word "Cabinet" in rule 4 should be replaced with "Cabinet Secretariat". Cabinet Secretariat is already bound under Rule 3 to be instructed by Cabinet. Its decisions will be decisions of the Cabinet.
d) Modifying Rule 3 is going to be the toughest medicine to take. The rule in reality is useful, but not relevant under President's rules. Perhaps, they should be followed internally as Council of Minister's rules, signed by PM. Perhaps, these rules should be retained as it is, with a provision of difference of opinion between the department and minister(s) to be referred to Council of Ministers and the President.
Lets try getting these medicines across one by one.
Tuesday, February 23, 2010
1) Politicians are responsible for maintaining law and order -----
2) If a politician gives a corrupt order to a bureaucrat in writing, then the politician can be booked for corruption -----
Here's the logic. As per the constitution article 163(3), a politician's aid and advice which are orders for the bureaucrats, cannot be enquired into any court of law. So the bureaucrat gets the boot and politician saves his neck.
3) India is completely free from the British Crown since 1947 ---
India was a member of Commonwealth before independence, because of colonisation. IN 1947 Mountbatten was given the mandate by Atlee, the PM in UK, to make India free condition to continuing allegiance to Crown through Commonwealth. So he did.
And so it stands now. Countries of commonwealth even now cannot choose the head of the Commonwealth. The next head will be a wife ditcher whose child wears Nazi symbols and not somebody else that the countries may want to appoint.
India is very free of the British Queen. But India still recognises her authority related to Commonwealth activities. Mountbatten succeeded in granting India a conditional independence. It is not yet a complete independence. We still take some orders from a person sitting thousands of miles away in Britain , in whose appointment we have no say at all.
4) If not the politicians, at least the Supreme Court follows the constitution ---
The Supreme court is our best hope but it also makes mistakes. And these mistakes go a long way in giving power to politicians.
For example, constitutionally per Article 166 all government orders have to be in name of Governor or signed by persons authorised by him to do so. Courts have held that this part of constitution is really not mandatory because it'll be very inconvenient to follow it every now and then. So because of this laxity by Supreme court sometimes even politicians get to issue direct instructions bypassing the bureaucrat authorised to issue orders. And sometimes, personal opinions of bureaucrats are fished out as government decisions and thus implemented.
For another example, constitution's article 163(3) says courts are not supposed to analyse if anything and what went on between a politician and a bureaucrat. It is a matter of trust between them. Yet the courts assume that bureaucrats must be getting orders from the politicians. Such judgements make the bureaucrats who are more technically capable of taking good decisions put the onus on politicians , this inviting even more interference.
For another example, Constitution's article154(1) says bureaucrats are responsible for all the real work. Yet the court, in many a judgements make the politicians responsible for all the real work. So because of this consideration by the courts the bureaucrats do not do any real work till a politician or his henchmen asks him to do it.
These are just a few examples of costly mistakes by Supreme court in interpreting non-subjective portions of constitution. Courts basically want the system to run like the British system which it cannot because we are different. Somebody wake up the courts!!!!
5) Politicians should be judged by the amount of work done -----
Politicians should be judged by the amount of laws passed by them. If bureaucrats are making rules, and politicians are getting into everyday activities of the government machinery then they have got their roles reversed against the constitution.
6) The system does not work and needs a revolt ----
Thats what is happening with our constitution. It was put into writing by the freedom fighters. But the very words of constitution are not being followed as written ,sometimes by good courts as well at heavy costs later on.
So you cannot say that the system does not work simple because it has not yet been put to use as it is written till now. Lets cut the bull of revolt and all therefore.
Express your opinion on youtube. Express your anger on twitter. Fwd sms. Ring up the radio fm channels. Speak up on the internet. Its the least you can do. You are educated. You've got freedom. Use it or you don't deserve it!
Monday, September 07, 2009
So well, basic point number (1) My education has taught me that the constitution is supreme since it is the creator of all the powers , rights, functions of this republic. I take that at face value. Let me put it as thus that I firmly believe that the constitution is even above the Supreme court. If the Supreme court attempts to interpret the provisions of the constitutions then it has to first make a case before me that the said provision is ambiguous and needs interpretation. If the Supreme court fails to convince me about what is written in the constitution is ambiguous, then I will have to make a choice between the clear unambiguous letter of the constitution and the interpretation of the court. It is needless to say, that I will follow the written and unambiguous letter of the constitution and not the Supreme court. Simply because, the constitution is even above the supreme court. The constitution is that supreme. Its that simple.
This simple point of constitution being supreme goes further. The constitution that has been handed over to and adopted by me on the 26th Jan of 1950 has since then been supreme.Since that day, the constitution has risen even above its creator, Baba Saheb Ambedkar's opinions, or the discussions that preceded 26th Jan, 1950. The constitution presented to me after that date was even above the constituent assembly's discussions. It has become supreme. And it remains so. After that day, only Supreme court had the power to interpret the ambiguous provisions of the constitution. And the court has to use its own judgment while interpreting it. Not the opinion of constituent assembly, not the opinion of Ambedkar, not Rajendra Prasad's but its own. Not even the role model, Mahatma Gandhi's.Nothing else. If the court does that then the court is implicitly placing the assembly's debates, and the opinions of great men above that of constitution. The constitution is even above great men.Above history. Above the debate of parliamentary or presidential system. Above what inspired it.Above whether it is good or bad for me. It is what it is. And I have sworn by it as it was presented to me on 26th Jan, 1950.
The supremacy of the constitution cannot be underemphasized by me. It is the only thing after God. Supreme court needs to be very very careful while interpreting it. This was a simple point. But needed much emphasis. Supreme court should realize this that it is subservient to the constitution, and not above it by virtue of powers of interpretation. It should not force me to make a choice between its interpretations and what is clearly not ambiguous as I would hate to dutifully go against the supreme court because I respect it a lot. I may be silent but I am not to be taken for granted.
(2) The second basic point that I have been taught is about separation of powers indemocracy. Ideally, a democracy should have an independent judiciary,executive and legislative branch for keeping checks on each other. Sharing of powers would cause nexus. However, I have also been taught in my history that not all democracies may follow this in ideal sense. Now I don't care what other countries follow or not. I needed to know whether my country follows it or not. So I downloaded the latest constitution of India from the government's website(http://india.gov.in/govt/constitutions_india.php) and checked it out.
It was with great and pleasant surprise that I discovered that there are three different chapters to legislature, executive and judiciary. They are not presented together anywhere.President seems to have been given far more weight in the constitution than the prime minister. A ctrl+F on the soft copy of the constitution gave me only 8 instances of Prime Minister as against 454 for the president. Somebody please tell me how the hell can the president be just a figure head. Prime minister looks more like a figure head than the President. I am definitely not paying my taxes to keep a figurehead because she is not a figurehead. The constitution , by which I have sworn, would have given all the executive power to the prime minister otherwise but it does not do so.
So how do the politicians start bullying the bureaucrats and the police in the name of the constitution? How does this nexus develop? These politicians say that it is because of article 74(1) and article 163(1) by way of which president/governor are bound to take the aid/advice of the ministers. I checked that in the constitution and found that it is true.And that puts the whole executive under the legislative, these politicians say. And even the Supreme court in various judgments says that the Indian constitution is based on Britian's Westminster model of Parliamentary system and not Presidential system. So like the Westminster model the executive powers reside with the legislative.
Well, my one problem is with this tendency of the Supreme court to assert itself above the constitution. Does it anywhere say that India would have a parliamentary system or define it?Is there any ambiguity at any part of the constitution about British model of Parliamentary system? There is no ambiguity because it is not mentioned. Why does Supreme court interpret when it is not supposed to? The court goes into Government of India Act before Independence to help in interpreting the model of constitution when it is not supposed to. The constitution is what it is. Give it a new system name if you can't find a precedent in democracy for such a model. Somebody remind the supreme court that we got rid of British on 15th Aug 1947. And that independence was not theoretical but mental as well. To assume that constitution is like the British model and therefore the assumptions of the British model apply is a grave insult to my independence of thought. I am free. The young are born free. My mind is free. So it was when I adopted the constitution AFTER independence. And to convey that the model of constitution is dependent on assumptions and workings of British model not only smacks of a mind still not independent, but also puts the constitution below or at par with the British parliamentary system whatever its assumption are. I hold that against the Supreme court.
The constitution is supreme.It is what it is. There is no ambiguity about what kind of system it is and no need to apply the system's assumptions to it. The constitution is independent. Independent of definition of any system in the world. It was adopted in freedom. It shall always be. The name of the system practiced anywhere else in the world is not relevant and the constitution is therefore not subject to ambiguity and consequential interpretation following of that system's name. It is free. A beautiful gift to the people of India on independence. And that gift was given not by British. I , the free people of this country, reject the judgments of Supreme court likening my constitution to British parliamentary system and therefore applying the assumptions of parliamentary system. My constitution is not Presidential system either if it has been declared so in any judgment. It is what it is.
The court judges ,perhaps bred in colonial institutions, never realized the independence of the mind. I need to remind the judges that they hold the seat of Supreme court of the largest democracy in the world. The Supreme court of this country is above the supreme court of England . Or United States. You are the largest and most important judiciary body in the history of civilization. You set examples. You do not fit other court or systems to your systems. You guide other systems. You are superior to all systems, only below the constitution and God. The English parliamentary system should mention that it sees Indian system of whatever name as an example for itself. The US presidential system should mention that it looks up to Indian system of whatever name as example. It is upto the Supreme court of India to lead, by example, the world. Set up a new name for the Indian system when it is clearly unambiguous from the constitution's preamble that word parliamentary or presidential system have not been mentioned in describing my democratic republic.
This over interpretation by court that of parliamentary system being the one in India , and therefore the executive being not independent of legislature is my biggest problem. Article 74(2) keeps the advice of the ministers out of purview of court. It even keeps inquiring whether any advice was tendered at all from purview of the court. Somebody tell me how doesn't this article 74(2) keep the question whether executive is acting on the minister's advice out of the courts' purview? By virtue of article 74(2), it is not for the court to decide whether a certain executive action is independent of legislature. The independence of executive action from legislature is beyond judicial purview due to article 74(2). Then why does the court keep equating the President to a King of some island country whereKing is the ceremonial head and who always needs to take advice from the ministers. Some other organ of the state can make that comment but not the court because it is expressly barred from inquiring if an advice was given at all. This article 74(2) also clearly mentions the word "if at all any advice was given" , which means that court cannot even hold the president for not following article 74(1) . It is a matter between legislature and the executive only.
But then who must the court hold responsible for executive action if it is barred from inquiring even the existence of the advice. Again, the constitution answers this as it holds all executive actions are taken in the name of president(or the governor). That is unambiguous. There is no room for interpretation. The president must be held responsible , by court, for all executive actions. It is clear.
Even if the the president submits the evidence of advice tendered by the legislature, the court should refuse to inquire into it, let alone its nature of what it is, as it is expressly prohibited in article 74(2).
It is my firm belief that this article 74(2) is the savior of the independence of executive from legislature, from courts' point of view. And the courts' must begin to hold the executive responsible for executive actions.
These are simple things clearly mentioned in my constitution. Why do judges complicate it by getting in Westminster model and what not? My constitution is based on principles that people of my country are expected to understand. All this debate of Westminster model is beyond even the educated men of my country. It stinks of an elite opinion and is not representative of opinion of the free people of this country that ours is a Westminster model.
I want to appeal to Supreme court judges as it is the only organ of the state that I have hopes from. I still respect it and bow to it. The fact that the courts have assumed dependence of executive on legislature on the basis of article 74(1) , inspite of the courts expressly barred to even inquire into existence of the advice, in article 74(2), has created the problems of bureaucrat-politician nexus. Article 74(2) words "if at all" would bar court from even assuming dependence based on advice. The supreme court needs to be shown by the people of this country, not by the legislature, not by the executive that as far as the court is concerned the constitution has kept the executive independent from the legislature. The court needs to discourage governors/presidents from presenting the minister's advice to the court as article 74(2) bars the court from even inquiring into its existence. The courts must stop the buck at the governor/president and hold them responsible for executive action. Most of the time executive actions are made answerable to the ministers under 74(1) by way of their advice. This must be stopped by the courts. The media, the people or the legislature can hold the executive for not following article 74(1) but not the court. Because the substance of article 74(1) , the advice, is kept beyond courts purview by article 74(2). But not beyond the purview of the legislature itself.
Such activist actions by Supreme court( I know I am hoping a lot from the court as it has already helped us, the free people , a lot) will help in checking legislature from undermining executive. It will help the executive in asserting its relative independence from the legislature. It will at the minimum stop this senseless transfers of IAS officers and police officers at the whim of politicians. Politicians will stop taking the bureaucrats for granted. I sincerely believe that the rise in corruption and its extense in every sphere of our lives is because of Supreme court's judgments on acknowledging even the existence of minister's advices when the governors/presidents presented them. The court should have maintained distance from even acknowledging it in spirit of article 74(2).
I would go further, and appeal to the Supreme court, to make the executive assert itsindependence from the legislature, as far as the court is concerned. Even if the executive does not want to assert the independence in court because like everybody the executive would tend to pass on the buck to the ministers. I appeal to the Supreme court to make the buck stop at the executive as far as court proceedings are concerned. Beyond that lies the advice,whose even the existence is beyond the inquiry of the court.
I believe that my constitution is most well balanced and beautiful. It keeps the executive actions under legislature by article 74(1) but out of purview of court by article 74(2). It keeps the judiciary appointment under executive but out of legislature purview. It keeps the legislature under the judiciary (who can declare laws made by legislature as constitutional or not) but keeps it out of purview of executive. One organ checks the next. In my knowledge,there is no other constitution in the world to have achieved this fine balance in three of itsorgans of judiciary, legislative and executive. I am happy and must be blessed to have got this constitution as my independence gift.
What I am unhappy about is the Supreme court judgments have not acknowledged the balance and beauty of this country's constitution. Of not making the executive realize that it is judicially independent of legislature. Of letting the executive voluntarily give up its independence to executive even in court when the buck should have stopped at the executive in the court. Outside the court, the legislature and media could have taken the buck to minister though.
Had the Supreme court asserted the independence of executive from legislature in courts then at least we would have had less corrupt society, less distrust of police and the bureaucrats.Perhaps we would have had politicians who would focus on making the laws better and tighter,instead of giving bureaucrats "advice" and get their transfers here and there. We might have had news which said that the chief minister was sternly warned by local police for smoking in public. News of how the tightened law passed by ministers made IAS officers declare every penny of their assets would have occurred. News of how the new rules passed made all the police officers declare their reasons for not keeping crime rate in check. We would have been in a much better position had the courts not unwittingly encouraged this politician-bureaucrat nexus. Legislature would have been involved in law making and passing only. Executive would have been involved in maintaining the law and plans passed by legislature only. Both would have been acting independent of each other.
Problems in my country are simpler to solve than it looks. Courts need to understand the simple concept of independence first of all. They need to realize that we have aconstitution made by free people and free minds. It is not a Westminster British model. It has its very very independent identity. They should refrain from that opinion of elite few who understand Westminster and then apply its assumptions here. I am a farmer, a cobbler, a businessman, a tribesman, a worker, an accused, a defendant but I do not understand Westminster in this country and much less will take any likening of my constitution to Westminster after independence.
Secondly, the courts must acknowledge the beauty and fine balance between the three organs in our constitution. The courts must do everything within its powers to preserve this balance,even by discouraging the executive to acknowledge even the existence of advice in a court.
Its simple and basics that are required to be understood.