May 27, 2009 — drsubrotoroy
There are at least three Supreme Court lawyers, all highly voluble, among the higher echelons of Congress Party politicians; it is surprising that not one of them has been able to get the top Party leadership of Sonia Gandhi and Manmohan Singh to see the apparent breach of normal constitutional law in Parliament not having met more than 10 days after it was elected.
A Government has been formed, Ministers have entered their offices and have been holding press-conferences and taking executive decisions, wannabe-Ministers continue to be wrangling night-and-day for the plums of office — BUT THERE IS NO PARLIAMENT!
Today is the death-anniversary of Jawaharlal Nehru and last week was the death anniversary of Rajiv Gandhi.
Nehru, whatever his faults and infirmities, was an outstanding parliamentarian and a believer in the Westminster model in particular. He was intimately familiar with its unpoken customs and unwritten laws. He would have been completely appalled by the situation today where luminaries of the party that goes by the same name as the one he had led are paying obeisance to his memory 45 years after his death but have failed to see the absurdity in having a Government in office with no new Parliament ten days after a month-long General Election was over! (Incidentally, had he not left explicit instructions against any hero-worship taking place of himself too?)
Rajiv knew his grandfather and had acquired a sense of noblesse oblige from him. He too would have been appalled that the procedural business of government had been simply procrastinated over like this.
It surprises me that Dr Manmohan Singh, having been a post-graduate of Cambridge, having earned a doctorate from Oxford, and more recently having been awarded honorary doctorates from both Ancient Universities, should seem so unaware of the elements of the Westminster model of constitutional jurisprudence which guides our polity too.
It is too late now and the mistakes have been made. I hope his new Government will come to realise at some point and then keep in mind that our Executive receives political legitimacy from Parliament, not vice versa. An Executive can hardly be legitimately in office until the Parliament that is supposed to elect it has been sworn in.
As for our putative Opposition in the Parliament-yet-to-meet, it seems to have drawn a blank too, and eo ipso revealed its own constitutional backwardness and lethargy.
May 25, 2009 — drsubrotoroy
Sad to say, Parliament’s sovereignty has been diminished, indeed usurped, by the new Executive Government.
Here is a brief record for future generations to know.
India’s people completed their voting in the 15th General Elections on Wednesday May 13 2009.
The results of how they had spoken, what was their will, were known and declared by Saturday May 16 2009.
There was no legal or logical reason why the 543 members of the 15th Lok Sabha could not have been sworn in as new MPs by the close-of-business on Monday May 18 at the latest.
On Tuesday May 19 the 15th Lok Sabha could have and should have met to elect itself a pro tem or even a permanent Speaker.
The Speaker would have divided the new House into its Government Party and its Opposition.
There would have been a vote of confidence on the floor of the House, which in the circumstances would have been in favour of the Government Party.
Observing this to have taken place, the Hon’ble President of India as the Head of State would have sent for the leader of the Government Party and invited her to form the new Government.
In this particular case, the leader of the largest political party, namely Sonia Gandhi, would have been accompanied perhaps by the Leader of the Lok Sabha, Pranab Mukherjee, as well as her personal nominee for the position of PM, namely, Manmohan Singh.
Sonia Gandhi would have respectfully declined the invitation of the President to be the new Prime Minister, and she would have also explained that she wanted Manmohan Singh to have the position instead.
The President would have said “Very well, Dr Singh, can you please form the Government?”
He would have said, “Yes Madame President it shall be a privilege and an honour to do so”.
The President would have added, “Thank you, and I notice you are not a member of the Lok Sabha at the moment but I am sure you are taking steps towards becoming one.”
End of visit.
Manmohan Singh would have been sworn in as PM and would have gone about adding Ministers at a measured pace. Later, he would have resigned his Rajya Sabha seat and sought election to the Lok Sabha on the parliamentary precedent set by Alec Douglas-Home.
What has happened instead?
On May 18 2009, instead of 543 members of the 15th Lok Sabha taking their oaths as required by parliamentary law and custom, Dr Singh held a purported “Cabinet” meeting of the 14th Lok Sabha — a long-since dead institution!
Some of the persons attending this meeting as purported “Cabinet ministers” had even lost their seats in the elections decided a few days earlier and so had absolutely zero democratically legitimate status left. All these persons then submitted their purported resignations which Dr Singh carried to the President, stating his Government had resigned. The President then appointed him a caretaker PM and he, along with Sonia Gandhi, then went about “staking claim” to form the next Government — turning up at the President’s again with “letters of support” signed by some 322 persons who were MP-elects but were yet to become MPs formally by not having been sworn in.
The President appeared satisfied the party Sonia Gandhi and Manmohan Singh belonged to would command a majority in prospect in the Lok Sabha and invited him to be PM. Some major public wrangling then took place with at least one of his allies about cabinet berths — and that is the situation as of the present moment except that Dr Singh and several others have been sworn in as the Council of Ministers even though the new 15th Lok Sabha of 543 members has still not convened! It has been all rather sloppy and hardly uplifting.
Parliament is supposed to be sovereign in India.
Not the Executive Government or the largest political party or its leader.
The sovereignty of Parliament required Sonia Gandhi and Dr Singh to have realised
first, that the 14th Lok Sabha stood automatically dissolved when elections were announced;
secondly, that the 15th Lok Sabha could have and should have been sworn in by Monday May 18;
thirdly, that there should have been a vote of confidence in the Lok Sabha immediately which would have gone in favour of the Government Party;
fourthly, that only then should the Executive Government have been sought to be formed;
and of course fifthly, that if that Executive Government was to be led by someone who happened to be a member of the Rajya Sabha and not the Lok Sabha, parliamenary law and custom required him to follow the Douglas-Home precedent of resigning from the former and seeking election to the latter at the earliest opportunity.
Let future generations know that as of today, May 25, the 543 persons whom the people of India voted to constitute the 15th Lok Sabha still remain in limbo without having been sworn in though we already have an Executive Government appointed!
The sovereignty of Parliament, specifically that of the Lok Sabha, has come to be diminished, indeed usurped, by the Executive. It is the Executive that receives its political legitimacy from Parliament, not vice versa. Nehru and his generation knew all this intimately well and would have been appalled at where we in the present have been taking it.
January 13, 2006 — drsubrotoroy
India’s Separation Of Powers’ Doctrine
First published in The Statesman Jan 13 2006 Editorial Page Special Article,
By Subroto Roy
The Speaker does not like the fact the High Court has issued notices questioning the procedure he followed in expelling MPs from Parliament. Sonia Gandhi’s self-styled “National Advisory Council” has demanded control over disbursement of 100,000,000,000 rupees of public money. The Manmohan Singh Government plans to quietly ignore the Supreme Court’s finding that it had breached India’s Constitution in imposing President’s Rule in Bihar. All three issues have to do with application of India’s Separation of Powers Doctrine, i.e. the appropriate delimitation of Constitutional powers between our Legislature, Executive and Judiciary.
A constitutional crime was attempted in India during the Indira-Sanjay Gandhi political “Emergency” declared on 26 June 1975. On 10 November 1975 (a time of press censorship) a 13-judge Bench of the Supreme Court met to hear the Government plead for overrule of Kesavananda Bharati (A.I.R. 1973 S.C. 1461), a landmark Nani Palkhivala once called “the greatest contribution of the Republic of India to constitutional jurisprudence”. Within two days, the Government had failed in the Court, and Kesavananda held. What was upheld? That while India’s Parliament was sovereign and could amend the Constitution, the amending power may not be used to alter or destroy “the basic structure or framework of the Constitution”. And the Supreme Court decides for itself whether Parliament has exceeded its legitimate power to amend.
Palkhivala’s description of what constitutes the “basic structure or framework” of India’s Constitution is excellent enough: “the rule of law, the right to personal liberty and freedom from arbitrary arrest and imprisonment, the right to dissent which implies the freedom of speech and expression and a free press are… a part of the basic structure of a free democracy, and it is these priceless human freedoms which cannot be destroyed by Parliament in exercise of its amending power. Thus Kesavananda’s case ensures that tyranny and despotism shall not masquerade as constitutionalism.”
Palkhivala argued that, if anything, the aspects of Kesavananda that needed to be set aside were those that had over-ruled Golaknath (A.I.R. 1967 S.C. 1643) which said Parliament should not be held to have the power to abridge any fundamental right, indeed any amended article which abrogates any fundamental right is invalid.
Dicey said “In the principle of the distribution of powers which determines its form, the constitution of the United States is the exact opposite of the English constitution.” Kesavananda Bharati showed the midway point between the two in constitutional jurisprudence anywhere in the world. We are like the Americans and unlike the British first in being a Republic, and secondly in having an explicit written Constitution. We are like the British and unlike the Americans in being a parliamentary democracy where the Executive Branch of Government, namely the Prime Minister and his/her Cabinet is elected from within the Legislative Branch of Government, namely, Parliament, and must at all times retain the confidence of the latter, specifically the Lok Sabha, the House of the People.
The American Executive Branch has a directly-elected President who chooses his administration, and it is commonplace for him to not have the confidence of the Upper or Lower House of the Legislature, to the point that one recent president had to undergo impeachment proceedings and barely survived. There is no constitutional crisis in America if the Legislature loathes the President and wishes him out. The American President and his Executive Branch stay in office until the last minute of his fixed term.
PM answers to Parliament
In our system, the Prime Minister answers at all times to Parliament. Parliament in India’s democracy has normally meant the House of the People — where every member has contested and won a direct vote in his/her constituency. India’s current Lok Sabha has set a constitutional precedent not seen in more than a hundred years anywhere in electing an Executive led by someone not a member. The British Upper House used to have an aristocratic hereditary component which Mr Blair’s New Labour Government has removed, making it more like what the Rajya Sabha was supposed to be — except that by now our Rajya Sabha has tended to become a place for party worthies who have lost normal elections, superannuated cinematic personalities, perpetual bureaucrats still seeking office, and others who really should be at home helping to raise the grandchildren. Parliament may not have fully recovered its health ever since that constitutional crime committed against the Republic known as the Indira-Sanjay “Emergency” (and at least one member of Sanjay’s coterie wields much power today).
Crimes and misdemeanours
The Supreme Court’s finding that the Government breached the Constitution by imposing President’s Rule in Bihar is a finding not of a constitutional crime but of a constitutional misdemeanour. (For reasons given already in these columns on 20 October 2005, it has nothing to do with the President, who merely embodies the sovereignty of our Republic.) For an Executive Order or Legislative Act to be found by a competent Court as being unconstitutional means merely that it does not have to be obeyed by citizens. In the Bihar case, the Supreme Court found this consequence irrelevant because new elections were already in process, the result of which would come from the most authentic democratic voice possible, namely, the same people who elect the House of the People in the first place. India’s Executive has been found to have committed a constitutional misdemeanour, for which it needed to apologise to the Court and Parliament (who are its constitutional co-equals) and then ask the latter to renew its confidence — in which event, life goes on. If confidence was not renewed, the Government would fall and a new Government would have to be formed. But we do not have yet the idea of a backbench revolt —mainly because all the front benches themselves have tended to be in such confusion and disarray with regard to parliamentary traditions, processes and functions.
The Supreme Court as the ultimate protector of the Constitution would be well within its prerogative to oversee whether a Parliamentary Speaker has acted appropriately. Consider a hypothetical case. Once elected, a Speaker is supposed to have no party-affiliation ever more for the rest of his/her life. Suppose, hypothetically, a controlled experiment found a Speaker systematically biased in favour of his/her own former party-members and against their opponents. Where but the Courts could such arbitrariness be effectively remonstrated against? Even if the incumbent Speaker impossibly imagines himself the personal embodiment of the Legislative Branch, he is not beyond the Constitution and therefore not beyond India’s Separation of Powers’ Doctrine.
The Opposition had alleged that the Speaker failed to follow procedure which required the culprits in the expulsion case be referred to the Privileges Committee. But beyond that the Opposition was too confused and guilt-ridden to pursue the matter during the dying moments of Parliament’s Winter Session. In the clear light of day, the issue has now ended up in the Courts. If the Supreme Court eventually rules the Speaker had in fact failed to follow Parliament’s own procedures (and hence breached Constitutional practices), the Speaker would need to apologise to the Courts and the House that elected him, and perhaps offer to fall on his sword.
Finally, for the “National Advisory Council”, a wholly unelected body, to demand a say for itself over spending Rs. 100 billion in State and Union Government budget-making, would be another constitutional misdemeanour — unless its members are merely on the personal staff of the Hon’ble Member representing Rae Bareili, who may of course introduce whatever legislation on money-bills that any other Lok Sabha Member may do.