February 13, 2006 — drsubrotoroy
SEPARATION OF POWERS
Montesquieu’s Spirit of the Laws outlined a doctrine that applies to India, the USA and all constitutional democracies: there is no monopoly of political wisdom.
By SUBROTO ROY
First published in The Sunday Statesman, The Statesman Editorial Page, Special Article Feb 12-13 2006
The Speaker’s noble office is that of the single member of the House, traditionally chosen by unanimity, whose task it is to self-effacingly maintain order in Parliamentary debate and proceedings, so that the House’s work gets done. C’est tout. Once chosen Speaker, he ipso facto retires from partisan politics for life. The Speaker neither contributes to the substance of Parliamentary debate (except in the rare case of a tie) nor has to feel personally responsible for Parliament’s conduct.
Our Parliament has tended to become so dysfunctional since Indira Gandhi and her sycophants destroyed its traditions 30 years ago, that supervising its normal work is an onerous enough task for even the finest of Speakers to handle.
The Lok Sabha’s incumbent Speaker has tended to see himself as the champion of Parliament. He need not. He does not command a majority in the Lok Sabha; the Government Party does. We have had the oddest peculiarity unfolding in India at present where the person who does command the Lok Sabha’s majority, and therefore who would be normally defined as Prime Minister of India, has chosen to nominate someone who is not a member of the Lok Sabha to act as Prime Minister, i.e. to command the Lok Sabha’s majority. (The Rajya Sabha was and remains irrelevant to most things important to Indian democracy, regardless of its narcissism and vanity). Someone with access to 10 Janpath should have told Sonia Gandhi in May 2004 that if she did not wish to be PM and wanted to gift the job to someone else, she should do so to someone who, like herself, had been elected to the Lok Sabha, like Pranab Mukherjee (elected for the first time) or Kamal Nath or Priya Ranjan (both veterans).
Manmohan Singh, a former Lok Sabha candidate, may as Finance Minister have been able to progress much further with economic reforms. But sycophancy has ruled the roost in the Congress’s higher echelons, and nobody had the guts to tell her that. Indeed as early as December 2001, Congress leaders knew that in the unlikely event they won the polls, Manmohan Singh would likely be PM by Sonia Gandhi’s choice (though he was not expected to last long at the top), and yet he did not contest the Lok Sabha polls in 2004.
The Government of the day, not the Speaker, is Parliament’s champion in any discussion with the Supreme Court over constitutional rights and Separation of Powers. And the Government has in fact quietly and sensibly requested the Supreme Court to set up a Constitutional Bench for this purpose. Such a Constitutional Bench shall have cause to ask itself how far Kesavananda Bharati needs to be tweaked if at all to accommodate the contention that Parliament has a right to judge its own members. The Court may well likely say that of course Parliament has a right to judge its own members but even that right is not an absolute right, (nothing is). Even Parliament’s right to judge its own members must be in accordance with natural law, with principles of justice, with due and clearly defined processes. E.g. the established Privileges Committee and not the ad hoc Bansal Committee had to do the needful.
Imagine a hypothetical case of fantastic fiction where half a dozen independent MPs are elected to a future Lok Sabha, and then take it upon themselves to expose corruption and shenanigans of all major political parties. Our fantastic super-heroes become whistleblowers within Parliament itself while remaining totally incorruptible as individuals — like Eliot Ness’s team who jailed Al Capone and other gangsters, and came to be depicted in Hollywood’s The Untouchables. These Untouchables would come to be feared and despised by everyone from Communists on one side of the political spectrum to Fascists on the other. They would upset everybody precisely because they were so clean and were not purchasable. The Government and Opposition of the day might wellgang up to expel such troublemakers and even fabricate charges to do so. (Now there’s a script for a Bollywood movie!)
What our Supreme Court’s Constitutional Bench decides now in the matter at hand will determine the fate of our super-heroes in such a future fantasia. The present case is a polar opposite — where MPs have been caught on camera with their sordid fingers in the cookie-jar, and then made to walk the plank immediately by their peers. Yet natural law applies here as it will to our fantastic future fighters, and this is what the Bench would have to speak on.
Why the present situation continues to be disconcerting is because the whole country heard all the holier-than-thou protestations, yet everyone continues to take a very dim view of what they see of politicians’ behaviour. There remain strong suspicions that only a few very tiny tips of very large icebergs were or can be caught on camera. Large-scale deals and contracts involve payments into invisible bank accounts, not petty cash into pockets or even suitcases filled with cash sloshing around Delhi.
What we have desperately needed in the situation is modern prime ministerial leadership which could intelligently and boldly guide national debate in the right direction on the whole matter of probity in public life. Why a distinguished parliamentarian like the Speaker has found himself in the limelight is because neither the de jure nor de facto Prime Ministers of India are anywhere to be seen thinking on their feet on these central issues of constitutional procedure and practice. They tend to use prepared scripts and may be temperamentally disinclined to do what has been called for by these unscripted circumstances. (Indeed the much-maligned H. D. Deve Gowda could be alone among the bevy of recent PMs who has been able to think on his feet at all.)
Collapse Before Executive Power
In the meantime, the United States is going through its own Separation of Powers’ crisis. As explained in these columns previously, the American system is distinctly different from the British, and our own system is midway between them. Yet similar principles may be discerned to apply or fail to be applied in all.
Winston Churchill once perspicaciously observed:
“The rigid Constitution of the United States, the gigantic scale and strength of its party machinery, the fixed terms for which public officers and representatives are chosen, invest the President with a greater measure of autocratic power than was possessed before (the First World War) by the Head of any great State. The vast size of the country, the diverse types, interests and environments of its enormous population, the safety-valve function of the legislatures of fifty Sovereign States, make the focussing of national public opinion difficult, and confer upon the Federal Government exceptional independence of it except at fixed election times. Few modern Governments need to concern themselves so little with the opinion of the party they have beaten at the polls; none secures to its supreme executive officer, at once the Sovereign and the Party Leader, such direct personal authority.”
America’s Legislative Branch has, on paper, strong powers of advice and consent to control errors, excesses or abuse of power by the Executive President. But (with rare and courageous exceptions like Sen. Robert C. Byrd of West Virginia) the Legislature cravenly collapsed before the father-son Bush presidencies in regard to the Middle East wars of recent years. America’s once-revered federal judiciary has also tended to lose its independence of mind with overt politicisation of judicial appointments in recent decades.
Bush the First went to war against Saddam Hussein (a former American ally against Islamic Iran) at least partly with an eye to winning re-election in 1992 (which he would have done as a result but for a random shock known as Ross Perot; Bill Clinton became the beneficiary). Bush the Second obsessively wished to follow up on the same, to the point of misjudging the real threat to America from Bin Laden and fabricating a false threat from an emasculated Saddam.
America’s Legislature palpably failed to control her Presidents. Now, late in the day, after all the horses have bolted, the Senate Judiciary Committee began tepid hearings on February 5 2006 into whether the President authorized laws to be broken with impunity in regard to wire-tapping some 5,000 citizens (doubtless mostly non-white and Muslim) without judicial warrants. Republican Senator Arlen Specter, the Committee’s Chairman, has said he believes the Foreign Intelligence Surveillance Act has been “flatly” violated, and “strained and unrealistic” justifications are now being offered. Bush’s men, from his Vice President and Attorney General to political intelligence operatives, have brazenly placed in the dustbin the traditional principle fiat justitia pereat mundus — let justice be done even if the world perishes — saying that the Sovereign can do just as he pleases to save the realm from external enemies as he might perceive and define them to be.
What this kind of collapse in current American practice reveals is a new aspect unknown at the time of Montesquieu’s Spirit of the Laws. In the modern world, Separation of Powers involves not merely constitutional institutions like Executive, Legislature and Judiciary but also the normal civil institutions of a free and open society, especially academic institutions and the press. In America, it has been not merely the Legislature and Judiciary which have tended to collapse before Executive Power in regard to the recent Middle East wars, but the media and academia as well.
“Embedded reporters” and Fox TV set the tone for America’s official thought processes about Iraq and the Muslim world — until it has become too late for America’s mainstream media or academics to recover their own credibility on the subject. On the other hand, unofficial public opinion has, in America’s best traditions, demonstrated using vast numbers of Internet websites and weblogs, a spirited Yankee Doodle individuality against the jingoism and war-mongering of the official polity.
Neither the press nor academia had collapsed the same way during America’s last major foreign wars in Vietnam and Cambodia forty years ago, and it may be fairly said that America’s self-knowledge was rather better then than it is now, except of course there were no Internet websites and weblogs.
Our Pakistani Cousins
Across the border from us, our Pakistani cousins are, from a political and constitutional point of view, cut from the same cloth as ourselves, namely the 1935 Government of India Act, and the Montague-Chelmsford and Morley-Minto reforms earlier. However, ever since Jinnah’s death, they have refused to admit this and instead embarked haplessly on what can only be called an injudicious path of trying to write a Constitution for a new Caliphate. The primary demand of the main scholars influencing this process was “That the sovereignty in Pakistan belongs to God Almighty alone and that the Government of Pakistan shall administer the country as His agent”. By such a view, in the words of Rashid Rida and Maulana Maududi, Islam becomes “the very antithesis of secular Western democracy. The philosophical foundation of Western democracy is the sovereignty of the people. Lawmaking is their prerogative and legislation must correspond to the mood and temper of their opinion… Islam… altogether repudiates the philosophy of popular sovereignty and rears its polity on the foundations of the sovereignty of God and the viceregency (Khilafat) of man.” (Rosenthal, Islam & the Modern National State, Cambridge 1965.) Pakistan’s few modern constitutionalists have been ever since battling impossibly to overcome the ontological error made here of assuming that any mundane government can be in communication with God Almighty. In the meantime, all normal branches of Pakistan’s polity, like the electorate, press, political parties, Legislature and Judiciary, have remained at best in ill-formed inchoate states of being — while the Pakistan Armed Forces stepped in with their own large economic and political interests and agendas to effectively take over the country and the society as a whole, on pretext of protecting Pakistan from India or of gaining J&K for it. Pakistan’s political problems have the ontological error at their root. Pakistan’s political parties, academics and press, have with rare exceptions remained timid in face of the militaristic State — directing their anger and frustration at an easier target instead, namely ourselves in India. The Pakistan Government’s way of silencing its few political, academic or press dissidents has been to send them into comfortable exile abroad.
Sheikh Abdullah Contrasted
Pakistan’s perpetual constitutional confusion deserves to be contrasted with the clarity of Sheikh Mohammad Abdullah’s thinking, e.g. his 5 November 1951 speech to the Constituent Assembly of J&K: “You are the sovereign authority in this State of Jammu & Kashmir; what you decide has the irrevocable force of law. The basic democratic principle of sovereignty of the nation, embodied ably in the American and French Constitutions, is once again given shape in our midst. I shall quote the famous words of Article 3 of the French Constitution of 1791:- ‘The source of all sovereignty resides fundamentally in the nation. Sovereignty is one and indivisible, inalienable and imprescriptable. It belongs to the nation.’ We should be clear about the responsibilities that this power invests us with. In front of us lie decisions of the highest national importance which we shall be called upon to take. Upon the correctness of our decisions depends not only the happiness of our land and people now, but the fate as well of generations to come.”
Contrasting the Pakistani views of constitution-making with those of Sheikh Abdullah may help to explain a great deal about where we are today on the delicate and profound subject of J&K. (See “Solving Kashmir”, The Statesman, December 1—3, 2005)
India’s current debate about Separation of Powers needs to keep at a distance the clear negative examples of our American friends, who have brought upon themselves in recent times a craven collapse of Legislature, Judiciary, press and academia to the Executive President (as Churchill had seemed to predict), as well as of our Pakistani cousins who have continued with general political and civil collapse for half a century. Because our universities are all owned by the State, India’s academics, from Communist to Fascist, have tended to be servile towards it. In respect of the press, the power of independent newspapers has been dwindling, while the new TV anchors have created their own models of obsequiousness and chummery towards New Delhi’s ruling cliques of the day. It thus becomes India’s Supreme Court which remains the ultimate guardian of our Constitution and the safest haven of our very fragile freedoms — besides of course our own minds and hearts.
February 5, 2006 — drsubrotoroy
OF GRAVEN IMAGES
It is a fallacy of our narcissistic age to expect images of what supreme leaders of thought may have looked like; their teachings and deeds are unaffected by our erroneous expectations
By SUBROTO ROY
First published in The Statesman Editorial Page Special Article, Feb 5 2006
IT is hard for us in our narcissistic age of photography, cinema, TV and the Internet to imagine older worlds and cultures where men and women (especially named historical figures) lived and died without any images whatsoever being left behind of what they may have looked like. Few of us know what our own great great grandparents looked like, and they died only a century ago. In Indian religious and philosophical thought, we hardly even know any names.
Eliot in his monumental Hinduism and Buddhism said, “In reading the Brahamanas and older Upanishads we often wish we knew more of the writers and their lives. Rarely can so many representative men have bequeathed so much literature and yet left so dim a sketch of their times. Thought was their real life… we hear surprisingly little about contemporary events.”
In Jain tradition, the first saint, Risabha, son of a king of Ayodhya, was born 100 billion sagaras of years ago, where one sagara is 100 billion palyas, and a palya is the period in which a well a mile deep filled with fine hairs can be emptied if one hair is withdrawn every one hundred years. That is a long time. Risabha lived 8,400,000 years, exceeding all the enormous longevities mentioned in Judaeo-Christian scriptures.
Fortunately for the cause of logic and natural science, “the lives of his successors and the intervals which separated them became shorter”. In Asoka’s edicts, the Jains find their first definite objective mention outside fable, myth and legend. Mahavira, the 24th and greatest Jain saint, whose personal name was Vardhamana, was a contemporary of Buddha though somewhat older. His parents lived in a suburb of Vaisali. When he was 34, “they decided to die by voluntary starvation and after their deaths he renounced the world and started to wander naked in western Bengal, enduring some persecution as well as self-inflicted penances.” Thirteen years later, at age 47, Mahavira had attained enlightenment and appeared as the head of the Nigantha religious order, i.e. the “unfettered”, and it is by that name that the Jains are known to the Buddhists. No image of the historical Mahavira is available, which should not surprise us given the great length of time that separates us as well as the simple fact that the art of realistic portrait-painting is but a few centuries old — starting with, say, Rembrandt and the Dutch Masters — and of course the arts of photography etc are all wholly recent.
Of Gotama, the Buddha, the Sakyamuni of Mahayana tradition, there have been countless images made over the millennia though none may bear any recognisable likeness to the actual man. During his period of fruitless self-mortification, we have his own words “When I touched my belly, I felt my backbone through it and when I touched my back, I felt my belly”. After his enlightenment, wanderings and teachings, the “beauty of his appearance and the pleasant quality of his voice are often mentioned but in somewhat conventional terms which inspire no confidence that they are based on personal reminiscence, nor have the most ancient images which we possess any claim to represent his features, for the earliest of them are based on Greek models and it was not the custom to represent him by a figure until some centuries after his death.”
It is possible “the truest idea of his person is to be obtained not from the abundant effigies which show him as a somewhat sanctimonious ascetic, but from the statues of him as a young man such as that found at Sarnath, which may possibly preserve not indeed the physiognomy of Gotama but the general physique of a young Nepalese prince, with powerful limbs and features and a determined mouth. For there is truth at the bottom of the saying that Gotama was born to be either a Buddha or a universal monarch: he would have made a good general, if he had not become a monk” (Eliot).
In case of Yeshua ben Nazereth, the founder of Christianity, the controversy has become most intense in recent times. A trial has begun in an Italian courtroom on 27 January 2006 as to whether Jesus existed at all, whether the Roman Catholic Church has violated Italian law by teaching about him. An atheist plaintiff, Luigi Cascioli, has alleged “The Church constructed Christ upon the personality of John, the son of Judas of Gamala”, and claims it is up to the Church to prove in court that Jesus did exist. A priest, Enrico Righi, representing the Church in court, has been accused of breaking two laws: impersonation and abuse of public belief, for having published in a parish bulletin that Jesus was born of a couple named Mary and Joseph in Bethlehem and lived in Nazareth. Judge Gaetano Mautone initially refused to hear the case but was forced to do so after being over-ruled by the Court of Appeals.
As for what the historical Jesus may have looked like, The Bible gives no physical description other than in Isaiah 53:2b, “he hath no form nor comeliness, and when we shall see him, there is no beauty that we should desire him.”As a Palestinian Jew, Jesus was likely to have been dark, not the blue-eyed Nordic Jesus of modern American imagination with Presbyterian nose, long blonde hair and height of six feet (Fig. 1). For centuries, the Shroud of Turin was believed by many to have been the actual burial cloth of Jesus — until modern scientific techniques of carbon-dating have conclusively proved that the Shroud was probably of a medieval nobleman and had nothing to do with the historical Jesus. Out of respect as well as sheer ignorance of what he may have looked like, modern cinematic productions traditionally did not show Christ’s face. But based on the Shroud of Turin image (Fig 2), the actor Jim Caviezel recently acted the role of Jesus in “The Passion of the Christ” (Fig. 3). Jean Claude Gragard, in a 2001 BBC documentary “Son of God” chose a different way. “Using archaeological and anatomical science rather than artistic interpretation makes this (Fig 4) the most accurate likeness ever created. It isn’t the face of Jesus, because we’re not working with the skull of Jesus, but it is the departure point for considering what Jesus would have looked like.” They “started with an Israeli skull dating back to the 1st century. They then used computer programs, clay, simulated skin and their knowledge about the Jewish people of the time to determine the shape of the face, and colour of eyes and skin.” The result is “a broad peasant’s face, dark olive skin, short curly hair and a prominent nose, about 5’ 1” in height, 110 pounds in weight.” We do not and cannot in practice know what Jesus looked like but this might be closer to the truth than the work of great artists.
And of course, Jesus’ Divinity to Christian believers, and his teachings and deeds for all mankind, like those of Mahavira or Buddha or other supreme leaders of human thought like Aristotle, Zarathustra, Confucius, Muhammad and Nanak, are unaffected by whatever image people have erroneously made of them.
see also my Twitter Wall on the CharlieHebdo controversy; also https://independentindian.com/2001/12/22/the-case-for-and-against-the-satanic-verses/ and https://independentindian.com/science-religion-art-the-necessity-of-freedom-2004/