Monday, September 07, 2009

This is my country and nobody tells me its British in anyway..

I can't just wait and see all this dysfunctioning of the system before my eyes and do nothing about it. Thus I went into one academic research exercise some time ago, to figure out what's going wrong. All this criminal-politician-bureaucrat nexus talk has got to be a symptom of a malfunction at a higher level, and not a cause of the malfunction I thought.Basics and the original document, is what I have gone into. And I like to keep things simple for understanding, based on what I have been taught and understood.

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.

6 comments:

PT said...

Well.. i think it's too much of an ask from our judiciary, given the state of affairs post-independence...it has become a well-known secret that legislature, executive and judiciary go hand-in-hand in our country, much like the three musketeers, and the beauty which you mention has been taken to bins ... it's still existent though - in the hearts of the people, in the interpretations by the people and of the many who still dont quite understand the value of our constitution, but do realize the basic necessity of it ... it's we who could savour the much acclaimed pride you talk about ... but i still think that only a bottom-to-top approach could only work ... pleading to the judiciary has invariably fallen on deaf ears and it shall continue to do so ... i guess rest has already been said ... i'd just say ... the buck stops here .... Hallelujah!!

PS - ... oh .. and it was a powerful post .. you fired me up !!

Anirban Bose said...

It is great that you have put in lot of thoughts and efforts into this writing.
Yes, it is very true that if we can stop the sharing of power among executive, legislative, and judiciary systems, most of our issues will get resolved.
The point is how to do that. How, what we have understood quite easily be made understandable to the heads (The President, The Prime Minister, and The Chief Justice of India respectively) of these three systems. How our President can become the President that our constitution had envisioned.
It is really a thought provoking piece of writing Milan, keep it up...

Abhishek Singhal said...

Costitution in a passive sense is a book/ document that reflects the fundamental ideology behind this country's governance.
In a more active sense, it is the soul of this country, the very essence of India!
In that sense you cant refer to constitution narrowly as one document. Nor can you separate the underlying thought or practices, i.e. Westminster (UK), Presidential (US) and other constitutions from which it heavily draw and finally you cant interpret constitution by its one (article 74) or few articles... You need to see it as a whole!

My first observation, therefore is around the incompleteness of your argument.

Second is the key tenet of any system, more so democracy - we get what we deserve. We pay bribes hence we get people who take bribes; we are complacent about our literacy efforts and therefore we get illiterates in our parliament and so on, so forth! So no point talking about independence of each of the organ of our government and berating about constitution side by side. Further, while there is independence, there is also interdependece between the three. And there is a fine line separating the two. That fine line is always subjective and would vary across people, times, and geographies!

So i would take your point but would not be too judgemental about it! Instead i choose action!!

Milan said...

Abhishek Singhal tumne fir se itni angrezi boli. Hum kehe chale jaa rahe hain ki humein kissi aur desh ke baare mein nahi sunana pur tum ho ki manate hi nahi.

Tumhara doosra para to chamka hi nahi. Yaar hamara mann hai express karne ka isliye kar rahe hain. Action kahan se le aayein abhi se. Koi pagal saand to hota nahi ki socha-vocha baad mein pehle action hi action macha diya.

Pur tumne hamare blog pur itna gyan se bhara hua comment mara iske liye tumhari treat pucci... :)

Abhi said...

I like the last line - treat has been overdue for long :)
What do you say to sometime next week?

VIPUL said...

r u MBA with LLB ?