Do diplomatic parties help the common man?

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Subroto Roy is afraid he does not think the interests of the common man and woman of India come to be served in the slightest by a fancy dinner-party whether given by the Queen of  England at Buckingham Palace for the President of India or by the President of the United States at the White House for the Prime Minister of India….(…though some businessmen and bureaucrats become happy…)

Parliament is supposed to control the Government, not be bullied or intimidated by it: Will Rahul Gandhi be able to lead the Backbenches in the 15th Lok Sabha?

Any Lok Sabha MP who neither sits with the Opposition nor is a sworn-in member of the Government is a Backbench MP of the Government party or its coalition.

Shrimati Sonia Gandhi is the most prominent of such Backbench MPs in the 15th Lok Sabha, just as she was of the 14th Lok Sabha, and has chosen to be in a most peculiar position from the point of view of parliamentary law. As the leader of the largest parliamentary party, she could have been not merely a member of the Government but its Prime Minister. She has in fact had a decisive role in determining the composition of the Manmohan Government as well as its policies. She in fact sits on the Frontbenches in the Lok Sabha along with the Manmohan Government. But she is not a member of the Government and is, formally speaking, a Backbench MP who is choosing to sit in the Frontbenches.

(Dr Manmohan Singh himself, not being a member of the Lok Sabha, may, formally speaking, sit or speak from among the Frontbenches of his own Government only by invitation of the Lok Sabha Speaker as a courtesy – such would have been the cardinal reason why Alec Douglas-Home resigned from being Lord Home and instead stood for a House of Commons seat when he was appointed British Prime Minister.)

Sonia Gandhi’s son, Mr Rahul Gandhi, is also a Backbench MP. From all accounts, including that of Dr Singh himself, he could have been a member of Dr Singh’s Government but has specifically chosen not to be. He has appeared to have had some much lesser role than Sonia Gandhi in determining the composition of the Government and its policies but he is not a member of it. He is, formally speaking, a Backbench MP, indeed the most prominent to actually sit in the Backbenches, as he had done in the 14th Lok Sabha, which, it is to be hoped, he does in the 15th Lok Sabha too.

Now Rahul Gandhi, Sonia Gandhi and their 541 other fellow 15th Lok Sabha MPs were declared winners by May 16 2009 having won the Indian people’s vote.

(Incidentally, I predicted the outcome here two hours before polls closed on May 13 – how I did so is simply by having done the necessary work of determining that some 103 million people had voted for Congress in 2004 against some 86 million for the BJP; in my assessment Congress had done more than enough by way of political rhetoric and political reality to maintain if not extend that difference in 2009, i.e., the BJP had not done nearly enough to even begin to get enough of a net drift in its favour. I expect when the data are out it shall be seen that the margin of the raw vote between them has been much enlarged from 2004.)

As I have pointed out here over the last fortnight, there was no legal or logical reason why the  whole 15th Lok Sabha could not have been sworn in latest by May 18 2009.

Instead, Dr Manmohan Singh on May 18 held a purported “Cabinet” meeting of the defunct 14th Lok Sabha – an institution that had been automatically dissolved when Elections had been first announced! The Government then went about forming itself over two weeks despite the 15th Lok Sabha, on whose confidence it depended for its political legitimacy, not having been allowed to meet. Everyone – the Congress Party’s Supreme Court advocates, the Lok Sabha Secretariat, the Election Commission, Rashtrapati Bhavan too –  seems to have gotten it awfully wrong by placing the cart before the horse.

In our system it is Parliament that is sovereign, not the Executive Government. In fact the Executive is accountable to Parliament, specifically the Lok Sabha, and is supposed to be guided by it as well as hold its confidence at all times.

What has happened instead this time is that Government ministers have been busy taking oaths and entering their offices and making policy-decisons days before they have taken their oaths and their seats as Lok Sabha MPs!  The Government has thus started off by diminishing Parliament’s sovereignty and this should not be allowed to happen again.

(Of course why it took place is because of the peculiarity of the victory relative to our experience in recent decades – nobody could remember parliamentary traditions from Nehru’s time in the 1950s.  Even so, someone, e.g. the former Speaker, should have known and insisted upon explaining the relevant aspect of parliamentary law and hence avoided this breach.)

A central question now is whether a Government which has such a large majority, and which is led by someone in and has numerous ministers from the Rajya Sabha, is going to be adequately controlled and feel itself accountable to the Lok Sabha.

Neither of the Lok Sabha’s most prominent Backbenchers, Sonia Gandhi and Rahul Gandhi, have thus far distinguished themselves as Parliamentarians on the floor of the Lok Sabha. In the 14th Lok Sabha, Sonia Gandhi, sitting in the Frontbenches, exercised the  enormous control that she did over the Government not on the floor of the House itself but  from outside it.

It would be best of all if she chose in the 15th Lok Sabha to actually physically sit in the Congress’s Backbenches because that would ensure best that the Government Party’s ministers in the Frontbenches will keep having to seek to be accountable to the  Backbenches!

But this seems unlikely to happen in view of the fact she herself seems to have personally influenced the choice of a Speaker for the 15th Lok Sabha and it may be instead expected that she continues to sit on the Frontbenches with the Government without being a member of it.

That leaves Rahul Gandhi. If he too comes to be persuaded by the sycophants to sit on the Frontbenches with the Government, that will not be a healthy sign.

On the other hand, if he continues to sit on the Backbenches, he may be able to have a salubrious influence on the 15th Lok Sabha fulfilling its responsibility of seeking to seriously control and hold accountable the Executive Government,  and not be bullied or intimidated by it. His paternal grandfather, Feroze Gandhi, after all, may have been India’s most eminent and effective Backbench MP yet.

Subroto Roy, Kolkata

Note to Posterity: 79 Ministers in office but no 15th Lok Sabha until June 1 2009!

The Government of India’s 79 Ministers have taken to their offices like bees to honey yet the 15th Lok Sabha that the people of India elected a fortnight ago is still three days from being convened.

In other words, people have been taking oaths and entering offices as Ministers even before they have taken their oaths or their seats in the 15th Lok Sabha which accords the Government its political legitimacy by its confidence!

Let posterity recall that the 15th Lok Sabha was made to needlessly wait from May 16 2009 until June 1 2009 and despite this the Government formed itself and entered office during that time.  It cannot be something that helps the psychology or morale of  our elected representatives nor be something conducive to the smooth working of the House.

It is all a terrible constitutional muddle  which I doubt the PM or his party or Government, or even the Opposition, will admit to or want to clear up on their own but shall probably have to await a Constitutional Bench of the Supreme Court of India telling them  what  parliamentary law is in due course.

Subroto Roy

Eleven days and counting after the 15th Lok Sabha was elected and still no Parliament of India! (But we do have 79 Ministers — might that be a world record?)

A lawyer friend tells me she thinks it a “technicality” that there is no Lok Sabha or Parliament in India today despite eleven long days and nights having passed since the 15th Lok Sabha came to be elected by the people of India.  “At least we did not get Advani and Modi to rule”, is how she sought to justify the current circumstance.   I am afraid I think she has produced a non sequitur, and also forgotten the constitutional law she would have read as a student.

The best argument that I think the Government of India shall be able to give justifying their legal error in not having the 15th Lok Sabha up and running yet 11 days after India’s people have spoken would run something like this:

(1) The President of India invites a Council of Ministers led by a PM to form the government and has done so.

(2) The President must be satisfied that the PM commands a majority in the Lok Sabha, and the President has been satisfied by the 322  “letters of support” that the PM produced.

(3) The Government of the day calls parliamentary sessions and does so at its discretion, and the Government of the day headed by this PM has announced when it shall call the 15th Lok Sabha which will be in a few days yet.

Any such argument, I am afraid, would be specious because it simply puts the cart before the horse.

Parliament is sovereign in India, to repeat what I have said several times before.

Parliament is sovereign in India — not even the President who is the symbol of that sovereignty.  We do not follow the British quite exactly in this because we are a republic and not a monarchy.  In Britain sovereignty rests with “The King in Parliament”.  With us, Parliament is sovereign and the President is the symbol of that sovereignty.  In all matters of state, our President must act in a manner that Parliament and parliamentary law says.

Parliament is sovereign in India — not the Executive Government, certainly not its largest political party or its leader.

Parliament is sovereign in India because the people of India have chosen it to be so within the Constitution of India.

Parliament is sovereign in India and the people of India have elected the 15th Lok Sabha which has still not been allowed to meet eleven days later.

To the contrary, as noted days ago, the purported “Cabinet” of the 14th Lok Sabha, a dead institution, met on May 18 2009, some 48 hours after the 15th Lok Sabha had already been declared!   The 14th Lok Sabha in fact stood automatically dissolved in law when General Elections came to be announced.

Is all this merely a “technicality” as my friend believes?  I think not.

Executive Government in India derives its political legitimacy from being elected  by Parliament,  i.e., from holding the confidence of Parliament, and that means the Lok Sabha.

The Government of the day might  for sake of convenience have a prerogative of calling sessions of the 15th Lok Sabha once it has been constituted but the Government of the day cannot logically constitute a Lok Sabha after a General Election because it itself receives legitimacy from such a Lok Sabha.

If the 15th Lok Sabha has not met, confidence in any Executive has yet to be recorded, and hence any such Government has yet to receive legitimacy.

Do “322 letters of support” suffice?  Hardly.  They are signed after all by persons who have yet to take their seats in the Lok Sabha!  (Let us leave aside the fact that the PM, not being a member of the Lok Sabha, is in this case unable to be one of those 322 himself!)

Yet we have 79 “Ministers” of this new “Government” holding press-conferences and giving out free-bees and favours etc already.  As I have said before, Ambedkar, Nehru and others of their generation, plus Indira and Rajiv too, would all have been appalled.

Because the incompetence of the fascists and communists in the Opposition may continue to  be expected, it will be up to ordinary citizens and voters of India to point out such  simple truths whenever the Emperor is found to be naked.  (Our docile juvenile ingratiating media may well remain mostly hopeless.)

Subroto Roy

Why does India not have a Parliament ten days after the 15th Lok Sabha was elected? Nehru and Rajiv would both have been appalled

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.

Subroto Roy

Parliament’s sovereignty has been diminished by the Executive: A record for future generations to know (2009)

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.

Subroto Roy

May we have reviews & reforms of protocols & practices to be followed at Rashtrapati Bhavan and elsewhere? (2009)

The Hon’ble President of India has invited you to join the Council of Ministers and has invited you to Rashtrapati Bhavan to be sworn in by an oath she shall administer. You are awaiting your name to be called. Your name is called and what do you do? You stand up and do a namaste to the PM and then walk a bit to do another namaste to Sonia Gandhi sitting in the audience opposite the President, and then you move towards the microphone ignoring or turning your back on the President herself and then you suddenly remember where you are and realize it is the President who has invited you and shall be administering your oath so you turn around and do a small namaste to her smiling apologetically for having made her an afterthought, and then you go about taking your oath, and then you perhaps do another namaste or two to the President more deeply because you want to make up for having forgotten her last time and finally you feel so happy and pleased with yourself you do another big namaste to Sonia Gandhi in the audience and finally get back to your seat! Phew!

Such was how several of Dr Singh’s new and senior-most cabinet members behaved yesterday at their swearing-in. Dr Singh himself walked straight to the President and did a very gracious bow to her before taking his oath, though on the way back he may have started the ball rolling by doing an exceptionally glad namaste to Sonia Gandhi sitting in the audience. AK Antony was the first and the most senior on the list who most blatantly ignored the President herself initially and turned his back on her momentarily before correcting himself, though he did not fail to do an initial namaste to Shrimati Gandhi. By contrast, Sharad Pawar may have got the whole thing right by walking straight to the President and doing a proper namaste, followed by his oath fluently spoken in Hindi followed by a small acknowledgment of the audience as a whole before returning to his seat.

But in half a dozen cases it all seemed a little sloppy, and even though the President seemed game and sportsmanlike about it, a discourtesy was noticeable to her high office as Head of State which needs to be apologized for and corrected. After all, these were the senior-most ministers, what might lesser ministers do next week?

In fact, a strong case might exist for a rational review nationwide of all such practices and protocols in Delhi and the State capitals, some of which have become so ossified from ancient times that they look bizarre today. Why do we have to have such an elaborate ceremony at all for a mere swearing in, which gets repeated too in each of the states with the Governors and State Governments? Yes perhaps the Head of State did administer the oath to the PM back in 1947 but it is not really necessary for the Head of State to do so now – it could be, for example, the Chief Justice of India who does so, at least to the Prime Minister. The Prime Minister could then himself/herself administer the oath to everyone else in his/her Cabinet, while someone, even the Cabinet Secretary perhaps, could administer the oath to everyone else. The oath itself is what is important, not so much the status of the person administering it. There need not be any such elaborate ceremony at all in Rashtrapati Bhavan that risks the dignity of the President like this and spends everyone’s time.

(And did anyone else notice the private sector lobbyists and public sector fixers seated in the audience? Precisely what were they doing there? Is this just another New Delhi social occasion for people to put on a show of showing their presence?)

For that matter, why was the National Anthem apparently played twice not by any live or noticeable orchestra or band but as a rather grainy recording? It is all a bit depressing when it should have been uplifting. Imagine instead some splendid soprano or tenor leading the singing of the Anthem in that splendid Hall accompanied by a first-class band.

I have long thought we need a National Commission to review all such matters and much more.

It would need to start with the 15th August Red Fort speech by the PM. 15th August was a date chosen by Mountbatten and its auspiciousness was diminished by all the bloodshed that flowed with it. It has become quite unseemly in recent decades to hear our PMs read out party-slogans or government propaganda statements from behind a bullet-proof barrier there. If I was a perceptive school-child being compelled to wait for hours in front of the Red Fort on a hot and muggy August morning to hear such dreary stuff, I might be justifiably upset, and of course many schoolchildren faint every year from exhaustion at being forced to do such things across the country. My own recommendation would be that August 15 be renamed Martyrs’ Day and be a solemn holiday marked only by a long five-minute nationwide silence, say at noon, in memory of all those who have died for India to be what it is today.

Then there is 26 January, going all the way to the “Beating of the Retreat”. Why on earth do we feel a need in this modern age to have such a display in the capital city once a year? Marching bands and parades and floats and fireworks can be great fun for all citizens but they can be and should be spread year-round all across the country’s many cities and towns, and the occasion need not be made a pompous one only in Delhi once a year (with some pale imitations in the State capitals). Republic Day can be a happy holiday for everyone in January when the weather is splendid around the country, with fireworks and fun for everyone, not merely New Delhi’s already delusional Ruling Class.

Then there is the oh-so-common ceremony all over the country from Parliament downwards of standing before the portrait or statue of someone long dead and throwing flowers at it along with a namaste (or in the case of communists, a clenched-fist Black Panther salute). Have we so lost our secular ethos that we do not realize that, for example, a Muslim or Jewish believer might find throwing flowers and doing namaste to a portrait something awkward to do? Both Ariel Sharon and Pervez Musharraf seemed to feel awkward when we took them to the Mahatma Gandhi memorial and said right, now, this is what we expect you to do, throw flowers and walk around it in this manner… it is not enough for you as a visiting dignitary to merely place a bouquet… ! We need to chill out a bit about all this ritualism.

And so it goes. To their considerable credit, neither Nehru nor Indira or Rajiv stood on ceremony much, and the same seems to apply to Sonia Gandhi and her children. The time may be opportune for all such matters to be reviewed calmly and soberly by a National Commission– in the meantime, the PM needs to send a small apology to the President for any unintended discourtesy from his Council of Ministers that may have occurred yesterday or at least a promise that it will not get repeated.

Subroto Roy, Kolkata

Postscript: Then there is the matter of Presidents, Prime Ministers, Governors, Chief Ministers et al taking salutes from the uniformed armed forces  or the paramilitary — if you are not yourself a commissioned officer or have never been one, do not respond to a salute from uniformed men and women by saluting or trying to salute them back yourself.  What is required is instead to perhaps stand to attention when they salute you, and perhaps bow your head slightly to acknowledge their salute.   Salutes are exchanged only within the uniformed services.  We instead have civilian leaders seeming to greatly enjoying trying to return salutes themselves….

Why has the Sonia Congress done something that the Congress under Nehru-Indira-Rajiv would not have done, namely, exaggerate the power of the Rajya Sabha and diminish the power of the Lok Sabha?

We in India did not invent the idea of Parliament, the British did.  Even the British did not invent the idea of a “Premier Ministre”, the French did that, though the British came to develop its meaning most.  Because these are not our own inventions, when something unusual happens in contemporary India to political entities and offices known as “Parliament”, “Prime Minister” etc, contrast and comparison is inevitable with standards and practices that have prevailed around the world in other parliamentary democracies.

Indeed we in India did not even fully invent the idea of our own Parliament though the national struggle led by the original Indian National Congress caused it to come to be invented.  The Lok Sabha is the outcome of a long and distinguished constitutional and political history from the Morley-Minto reforms a century ago to the Montagu-Chelmsford reforms and Government of India Act of 1919 to the Government of India Act of 1935 and the first general elections of British India in 1937 (when Jawaharlal Nehru briefly became PM for the first time) and in due course the 1946 Constituent Assembly.   Out of all this emerged the 1950 Constitution of India, drafted by that brilliant jurist BR Ambedkar as well as other sober intelligent well-educated and dedicated men and women of his time, and thence arose our first Lok Sabha following the 1951 General Elections.

About the Lok Sabha’s duties, I said in my March 30 2006 article “Logic of Democracy” in The Statesman

“What are Lok Sabha Members and State MLAs legitimately required to be doing in caring for their constituents? First of all, as a body as a whole, they need to elect the Government, i.e. the Executive Branch, and to hold it accountable in Parliament or Assembly. For example, the Comptroller and Auditor General submits his reports directly to the House, and it is the duty of individual legislators to put these to good use in controlling the Government’s waste, fraud or abuse of public resources.   Secondly, MPs and MLAs are obviously supposed to literally represent their individual constituencies in the House, i.e. to bring the Government and the House’s attention to specific problems or contingencies affecting their constituents as a whole, and call for the help, funds and sympathy of the whole community on their behalf.  Thirdly, MPs and MLAs are supposed to respond to pleas and petitions of individual constituents, who may need the influence associated with the dignity of their office to get things rightly done. For example, an impoverished orphan lad once needed surgery to remove a brain tumour; a family helping him was promised the free services of a top brain surgeon if a hospital bed and operating theatre could be arranged. It was only by turning to the local MLA that the family were able to get such arrangements made, and the lad had his tumour taken out at a public hospital. MPs and MLAs are supposed to vote for and create public goods and services, and to use their moral suasion to see that existing public services actually do get to reach the public.”

What about the Rajya Sabha?  I said in the same article:

“Rajya Sabha Members are a different species altogether. Most if not all State Legislative Councils have been abolished, and sadly the present nature of the Rajya Sabha causes similar doubts to arise about its utility. The very idea of a Rajya Sabha was first mooted in embryo form in an 1888 book A History of the Native States of India, Vol I. Gwalior, whose author also advocated popular constitutions for the “Indian India” of the “Native States” since “where there are no popular constitutions, the personal character of the ruler becomes a most important factor in the government… evils are inherent in every government where autocracy is not tempered by a free constitution.”  When Victoria was declared India’s “Empress” in 1877, a “Council of the Empire” was mooted but had remained a non-starter even until the 1887 Jubilee. An “Imperial Council” was now designed of the so-called “Native Princes”, which came to evolve into the “Chamber of Princes” which became the “Council of the States” and the Rajya Sabha.  It was patterned mostly on the British and not the American upper house except in being not liable to dissolution, and compelling periodic retirement of a third of members. The American upper house is an equal if not the senior partner of the lower house. Our Rajya Sabha follows the British upper house in being a chamber which is duty-bound to oversee any exuberance in the Lok Sabha but which must ultimately yield to it if there is any dispute.  Parliament in India’s democracy effectively means the Lok Sabha — where every member has contested and won a direct vote in his/her constituency. The British upper house used to have an aristocratic hereditary component which Tony Blair’s New Labour Government has now removed, so it has now been becoming more like what the Rajya Sabha was supposed to have been like.”

The Canadian upper house is similar to ours in intent: a place for “sober second thought” intended to curb the “democratic excesses” of the lower house.   In the Canadian, British, Australian, Irish and our own cases, the Prime Minister, as the chief executive of the lower house has immense indirect power over the upper house, whether in appointing members or even, in the Australian case, dissolving the entire upper house if he/she wishes.

Now yesterday apparently Shrimati Sonia Gandhi, as the duly elected leader of the largest political party in the 15th Lok Sabha, accompanied by Dr Manmohan Singh, as her party’s choice for the position of Prime Minister, went to see the President of India where the Hon’ble President apparently appointed Dr Singh to be the Prime Minister of India – meaning the Prime Minister of the 15th Lok Sabha, except that Dr Singh is not a member of the Lok Sabha and apparently has had no intent of becoming one.

In 2004 Shrimati Gandhi had declined to accept an invitation to become PM and instead effectively recommended Dr Singh to be PM despite his not being a member of the Lok Sabha nor intending to be so.   This exploited a constitutional loophole to the extent that the drafters of our 1950 Constitution happened not to have explicitly stated that the PM must be from the Lok Sabha.  But the reason the founders of our democratic polity such as BR Ambedkar and Jawaharlal Nehru did not specify that the PM must be from the Lok Sabha was quite simply that it was a matter of complete obviousness to them and to their entire generation that this must be so — it would have been  appalling to them and something beyond their wildest imagination that a later generation, namely our own, would exploit such a loophole and allow a PM to be appointed who is not a member of the Lok Sabha and intends not to be so.

Ambedkar, Nehru and all others of their time knew fully well that the history and intended purpose of the Lok Sabha was completely different from the history and intended purpose of the Rajya Sabha.  They knew too fully well that Lord Curzon had been explicitly denied the leadership of Britain’s Tory Party in 1922 because that would have made him a potential PM  when he was not prepared to be a member of the House of Commons.  That specific precedent culminated a centuries’-old  democratic trend of  political power flowing from monarchs to lords to commoners, and has governed all parliamentary democracies  worldwide ever since — until Dr Singh’s appointment in 2004.

When such an anomalous situation once arose in Britain, Lord Home resigned his membership of the House of Lords to contest a House of Commons seat as Sir Alec Douglas Home so that he could be PM in a manner consistent with parliamentary law.

Dr Singh instead for five years remained PM of India while not being a member of the Lok Sabha.  Even if reasons and exigencies of State could have been cited for such an anomalous situation during his first term, there was really no such reason for him not to contest the 2009 General Election if he wished to be the Congress Party’s prime ministerial candidate a second time.  Numerous Rajya Sabha members alongside him have contested Lok Sabha seats this time, and several have won.

As of today, Dr Singh is due to be sworn in tomorrow as Prime Minister for a second term while still having no declared intention of resigning from the Rajya Sabha and contesting a Lok Sabha seat instead.   What the present-day Congress has done is elect him the leader of the “Congress Parliamentary Party” and claim that it is in such a capacity that he received the invitation to be Prime Minister of India.   But surely if the question had been asked to the Congress Party under Nehru or Indira or Rajiv: “Can you foresee a circumstance ever in which the PM of India is not a member of the Lok Sabha?” their answer in each case would have been a categorical and resounding  “no”.

So the question does arise why the Congress under Sonia Gandhi has with deliberation allowed such an anomalous situation to develop.  Its effect is to completely distort the trends of relative political power between the Lok Sabha and Rajya Sabha.  On the one hand, the Lok Sabha’s power is deliberately made to diminish as the chief executive of the Government of India shall not be from the Lok Sabha but from “the other place” despite the Lok Sabha having greater political legitimacy by having been directly elected by India’s people.   This sets a precedent that  might  get repeated in India  in the future but which contradicts the worldwide trend in parliamentary democracies over decades and centuries in precisely the opposite direction –  of power flowing in the direction of the people not away from them.   On the other hand, the fact this anomalous idea has been pioneered by the elected leader of the largest political party in the Lok Sabha while her PM is in the Rajya Sabha causes a member of the lower house to have unexpected control over the upper house when the latter is supposed to be something of an independent check on the former!

It all really seems an unnecessary muddle and a jumbling up of normal constitutional law and parliamentary procedure.  The Sonia-Manmohan Government at the outset of its second term should hardly want to be seen by history as having set a poor precedent using brute force.  The situation can be corrected with the utmost ease by following the Alec Douglas Home example, with Dr Singh being given a relatively safe seat to contest as soon as possible, if necessary by some newly elected Congress MP resigning and allowing a bye-election to be called.

Subroto Roy

What’s all this business about political parties “staking a claim” to Government? Can there not be more dignified behaviour towards the President of India?

Press reports today say “With a comfortable majority in the Lok Sabha, UPA Chairperson Sonia Gandhi and Prime Minister Manmohan Singh will meet President Pratibha Patil to stake claim (sic) to form the new government. This was decided unanimously at a meeting of the leaders of the United Progressive Alliance in which Gandhi was re-elected its Chairperson.” (emphasis added)

“Stake claim”?

“To stake a claim” is  to show that you believe something is yours or to declare that something belongs to you.

Is that what Jawaharlal Nehru did with Dr Rajendra Prasad or Dr Radhakrishnan?  He went and said something like “Now look here Mr President, I would like to stake my claim to be Prime Minister of India now that this here General Election is over and I won”?

Is anyone else at present submitting any competing “claims” to the President?  Of course not.   Is the President unaware of the fact the General Elections are now over, or that she has a solemn duty to perform of inviting the leader of the largest political party in the new Lok Sabha to Rashtrapati Bhavan for an important chat?  Why does it have to be said that someone has to “stake a claim” to be asked to form the Government when the field is open and there is no sign of any other “claimant”?   Besides there has been the rush of political parties shooting off letters to the President declaring their support of Shrimati Gandhi and Dr Singh when they “stake claim” to the Government.  What does the President of India do with such letter-carriers when they turn up at her doorstep uninvited?  Offer each of them a cup of tea and a smile?

It is all hardly sober or uplifting — in fact, it is all rather undignified.

Perhaps a President of India might someday murmur something to the politicians like “Really, why do we need such talk about “staking claims”; I was going to invite you anyway.”

Inviting a new Prime Minister of India to form a Government: Procedure Right and Wrong (updated 2019 since 2009)

2019

Better Procedure:

 

 

So please follow my timetable for : Th 23/5 Results declared Fri 24/5 EC certifies results Sat Sun 25 26/5 Members sworn in Mon 27/5 Speaker pro tem divides House; Prez invites new to form a Gov’t Tue 28/5 Cabinet appointed

Better Procedure for .. Respected 16LS no longer exists as soon as results are certified by … Let 543 members of new be sworn in immediately one by one; let them elect a Speaker pro tem.

Let the Speaker pro tem divide the House between a putative Government & Opposition… Let then invite the leader of the former side to visit him for a chat… better then before please

Gen Chohan: Utopia not possible Prof. We can only dream IMO.

It’s the correct parliamentary logic tho.. Not hard to do… informs of winning candidates; LS informs 543 new members of to turn up pronto and be sworn in; elect a Speaker pro tem, divide the House; invites

Worse Procedure: 

Halla gulla … lists… parades of signatories… you know… Dilliwalla histrionics… 

 

 

2009:

Better Procedure

The Hon’ble President of India invites the leader of the single largest political party in the 15th Lok Sabha to visit Rashtrapati Bhavan.

The leader does so, bringing with her, her own nominee for the Prime Ministership of India as she herself wishes to decline the invitation to be PM.

The President meets the leader alone and extends the invitation.

The invitation is respectfully declined with the recommendation that the Hon’ble President may perhaps consider instead the name of the person nominated by the leader.

The President agrees and extends the invitation to the latter in the presence of the leader.  The latter accepts with thanks.

The President observes that since the PM-elect in this case happens not to be  a member of the Lok Sabha, she hopes that he shall soon become one.

The meeting ends.

Worse Procedure

The leader of the single largest political party in the 15th Lok Sabha publicly announces her nominee for the position of Prime Minister.

The Hon’ble President of India comes to learn of this from the newspapers or television and extends an invitation to the latter.

The latter visits Rashtrapati Bhavan, receives and accepts the President’s invitation to form a Government.

Of related interest:

Parliament’s sovereignty has been diminished by the Executive

Memo to the Hon’ble President of India: It is Sonia Gandhi, not Manmohan Singh, who should be invited to our equivalent of the “Kissing Hands” Ceremony

Starting with Procedural Error: Why has the “Cabinet” of the 14th Lok Sabha been meeting today AFTER the results of the Elections to the 15th Lok Sabha have been declared?!

Memo to the Hon’ble President of India (May 16, 2009)

H.E. The Hon’ble Shrimati Pratibha Patil

President of India

Your Excellency,

As India is fortunately a Republic and not a Monarchy, we do not have  a “Kissing Hands Ceremony”  where “the monarch invites the incoming prime minister to form a government and swear allegiance to the throne”.

While we do not have such a ceremony literally, we do have its republican equivalent in the well-established constitutional custom of the President of India after a General Election inviting one person to be Prime Minister and to form the new  Government.

It soon shall be your solemn duty to invite such a new Prime Minister of India to form the Government.

Given the results of the 15th General Elections to the Lok Sabha, that invitation may be extended only to the Leader of the winning coalition in the Lok Sabha, who is Shrimati Sonia Gandhi.

The outgoing Prime Minister, Dr Manmohan Singh, not having contested the Lok Sabha election, may not by  you be invited to be Prime Minister at this stage.

What happened in 2004 was that Shrimati Sonia Gandhi declined to accept such an invitation and instead effectively appointed Dr Singh to be PM despite his not being a member of the Lok Sabha nor intending to be so.

This exploited a constitutional loophole to the extent that our Constitution did not explicitly state that the PM must be from the Lok Sabha.

What may have been passable as the hurried exploitation of a loophole in 2004 is surely not acceptable in 2009.

Why the founders of our democratic polity such as BR  Ambedkar and Jawaharlal Nehru did not specify that the PM must be from the Lok Sabha was quite simply that it was a matter of complete obviousness to them and to their entire generation that this must be so — it would have been  appalling to them and something beyond their wildest imagination that a later generation, namely our own, would exploit this loophole and allow a PM to be appointed who is not a member of the Lok Sabha and intends not to be so.

Ambedkar, Nehru and all others of their time knew fully well that Lord Curzon had been explicitly denied the leadership of Britain’s Tory Party in 1922 because that would have made him a potential PM  when he was not prepared to be a member of the House of Commons.

That specific precedent (culminating a centuries-old  democratic trend of  political power flowing from monarchs to lords to commoners) has governed all parliamentary democracies  worldwide ever since  — until Dr Singh’s appointment in 2004.

In fact,  when such an anomalous situation once arose in Britain, Lord Home resigned his membership of the House of Lords to contest a House of Commons seat as Sir Alec Douglas Home  so that he could be PM in a manner consistent with parliamentary law.

I believe you are fully within constitutional law and precedent to invite Shrimati Sonia Gandhi to form the new Government of India after the 15th General Elections to the Lok Sabha.  If she declines and instead requests again the use of the loophole to appoint Dr Singh as PM,  I believe that parliamentary law and precedent requires him to resign from the Rajya Sabha and instead contest a seat in the Lok Sabha.

Respectfully submitted

Subroto Roy, PhD (Cantab.), BScEcon (London)

Citizen and Voter

Postscript: Please see also here “Inviting a new Prime Minister of India to form a Government: Procedure Right and Wrong”.

A Dozen Grown-Up Questions for Indian Politicians Dreaming of Becoming/Deciding India’s PM After the 2009 General Elections

The 2009 General Election campaign is supposed to elect a Parliament and a Head of Government for the Republic of India, not a Head Boy/Head Girl at an urban middle-class high school or the karta of a joint family. Unfortunately, our comprador national-level media seem to be docile  and juvenile enough in face of power and privilege to want to ask only touchy-feely koochi-woochi pretty baby questions of the “candidates” for PM (several of whom are not even running as candidates for the Lok Sabha but still seem to want to be PM).   Rival candidates themselves seem to want to hurl invective and innuendo at one another, as if all this was merely some public squabble between Delhi middle-class families.

So here are a set of grown-up adult questions instead:

1. Pakistan is politically and strategically our most important neighbour. Can you assure the country that a government headed by you will have a coherent policy on both war and peace with Pakistan? How would you achieve it?

2. Do you agree with the Reagan-Gorbachev opinion that “a nuclear war cannot be won and must never be fought”? If so, what would your Government do about it?

3. If there are Indian citizens in Jammu & Kashmir presently governed by Article 370 who wish to renounce Indian nationality and remain stateless or become Pakistani/Afghan/Iranian citizens instead, would you consider letting them do so and giving them Indian “green cards” for peaceful permanent residence in J&K and India as a whole?

4. Do you know where Chumbi Valley is? If so, would your Government consider reviving the decades-old idea with China to mutually exchange permanent leases to Aksai Chin and Chumbi Valley respectively?

5. Nuclear power presently accounts as a source of about 4% of total Indian electricity; do you agree that even if nuclear power capacity alone increased by 100% over the next ten years and all other sources of electricity remained constant, nuclear power would still account for less than 8% of the total?

6. The public debt of the country  may now amount to something like Rs 30 lakh crore (Rs 30 trillion); do you find that worrisome? If so, why so? If not, why not?

7. The Government of India may be paying something like Rs 3 lakh crore (Rs 3 trillion) annually on interest payments on its debt;  do you agree that tends to suck dry every public budget even before it can try to do something worthwhile?

8.  If our money supply growth is near 22% per annum, and the rate of growth of real income is near 7% per annum, would you agree the decline in the value of money (i.e., the rate of inflation) could be as high as 15% per annum?

9. Do you agree that giving poor people direct income subsidies is a far better way to help them than by distorting market prices for everybody? If not, why not?

10. How would you seek to improve the working of  (and reduce the corruption in) the following public institutions: (1) the Army and paramilitary; (2) the Judiciary and Police; (3) Universities and technical institutes?

11. There has never been a Prime Minister in any parliamentary democracy in the world throughout the 20th Century who was also not an elected member of the Lower House; do you agree BR Ambedkar and Jawaharlal Nehru intended that for the Republic of India as well and thought it  something so obvious as  not necessary to specify in the 1950 Constitution?  What will your Government do to improve the working of the Presidency, the Lok Sabha, Rajya Sabha and State Assemblies?

12. What, personally, is your vision for India after a five-year period of a Government led by you?

Subroto Roy,

Citizen & Voter

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Leadership vacuum

First published in The Statesman, Editorial Page Special Article, June 7 2008, http://www.thestatesman.net

Leadership vacuum

Time & Tide Wait For No One In Politics: India Trails Pakistan & Nepal!

Subroto Roy

The Karnataka legislative elections, as well as to lesser extent the Bengal panchayat polls, have revealed the vacuum that exists across the leadership of India’s national-level politics today.

To start with the BJP: had India been a normal democratic country on the Western pattern, Mr Arun Jaitley would have rocketed to the top of his party’s leadership by now. Besides being articulate in both Hindi and English and in his fifties (the age-group of most leaders in democratic countries), Mr Jaitley’s political acumen and organisational skills have been acknowledged even by his Congress adversaries after the Karnataka result. He himself has been frank and expansive about his formula for winning in Karnataka, which was simply to focus on real issues, especially state-specific ones, as well as to project a single credible leader. Had the BJP been a normal political party in a normal country, Mr Jaitley would have been given the task of leading it to victory in the next General Election and, assuming he won a Lok Sabha seat, to become its prime ministerial candidate.

Dadagiri

Instead, the BJP chooses to remain backward, backward, backward in the majority of its thought-processes and behaviour-patterns ~ from its kneejerk anti-Muslim psychology via its hyperinflationary macroeconomics and protectionist trade to its embrace of astrology and bovine exclusiveness. The idea of uniting behind someone relatively modern-minded in his politics like Mr Jaitley would be simply unacceptable not merely to people in the party within his own age-cohort (including the present party president) but even more so to those in age-cohorts decades older (including the party’s present prime ministerial candidate).

The opposition of the first group would arise from, in a word, jealousy. The opposition of the second group would arise from, in a word, dadagiri, i.e. the gerontocratic idea that merely because one is older, one is owed respect, authority and the plums of office in precedence over someone who is younger. Jealousy is a universal emotion not something specific to Indian politics, but dadagiri and the lack of meritocracy in our political culture is one reason India remains an abnormal polity in the modern democratic world.

LK Advani, driven by his unfulfilled personal ambition, will likely lead the BJP in the next election and do so with Mr Jaitley’s explicit support; Mr Advani may lead it into defeat or even to a victory in which he, given his age, is not as successful a PM as a Jaitley might have been. Yet our sclerotic political culture is such that neither Mr Advani nor Mr Rajnath Singh will simply stand aside now and hand over the reins to a newer, more competent and progressive leadership.

The same idea of dadagiri pervades what passes for the official “Left” in India as exemplified by the CPI-M. Mr Jyoti Basu has in a recent letter to Harkishen Singh Surjeet reminisced of their times together, and in doing so remarked that he remained the Chief Minister of West Bengal for as many years as he did because the Party had instructed him to do so, and when he handed over power to Buddhadeb Bhattacharjee, he did so with the Party’s agreement.

Those who believe in India’s parliamentary democracy might have thought that what our system requires is for a Chief Minister to hold the confidence of the legislative assembly from the bottom up but clearly that is not so because what a CM or PM seems to need are Party instructions from the top down. When Mr Bhattacharjee was anointed the new CM, the present author had remarked to the then Editor of The Statesman that the transition seemed to take place even without a formal vote of confidence in the Assembly. Does anyone in fact recall the last confidence vote debated and passed in the West Bengal Assembly? Democratic legislatures the world over routinely begin their new sessions with a debate and vote of no confidence being brought by the Opposition against the Government-of-the-day.

Does that happen with us, purportedly the world’s largest democracy? Let aside State legislatures, even our Parliament sees only the rare vote of confidence, and LK Advani specifically as Leader of the Opposition seems to have introduced none. Oppositions that do not wish to properly oppose are of course complicit in a government’s misdeeds.

It is the dadagiri culture shared by the official Communists that has caused the generational handover of power from Mr Basu and Mr Surjeet to the JNU coterie of the Karats and Mr Sitaram Yechuri. The “Left” like the “Right” and everyone else in Indian politics, can only handle cherubic “known” faces at the top ~ genuine grassroots activists like Binayak Sen or Medha Patkar must languish in jail or starve on hunger-strike in seeking to represent the politically and economically powerless in India while the entrenched dadas of Indian politics continue with their dissimulation.

Puppet-masters

In case of the Congress, it is an even deeper aspect of the Indian joint family system than dadagiri that has dominated its political culture, namely, the question who is the karta of the family and, if the karta is or seems too young or naïve or inexperienced, who will act as Regent on the karta’s behalf? Indira Gandhi was successfully guided in international politics for several years by a coterie led by PN Haksar. Rajiv Gandhi was attempted to be guided by several different competing coteries of senior party dadas ~ one of whom first brought up the name of Manmohan Singh in Indian politics on 22 March 1991 in a challenge addressed to the present author on liberalisation plans that Rajiv had authorised.

It is almost true to say that Sonia Gandhi and Rahul Gandhi have been in recent years played by puppet-masters of whose personal interests and intrigues they remain clueless. As has been said before by this author, the most salubrious thing Sonia Gandhi could have done for the Congress Party was to remain steadfast in her decision to stay out of Indian politics, and to have organised a fair, tough intra-party contest among its putative senior leaders based on differences of political and economic ideology.

Instead there is now paralysis in decision-making induced by Sonia Gandhi and Manmohan Singh each mistakenly relying upon the other’s purported economic wisdom and political acumen. This confusion came to be most clearly illustrated in the choice of Head of State last year though that was something politically costless ~ the failures of which Karnataka is the current example may lead the Congress to lose what it, like other Indian parties, loves most of all, namely political power in Lutyens’ Delhi.

Indians should make no mistake: our good neighbours in Pakistan and Nepal (Muslim in Pakistan, Hindu and Buddhist and communist in Nepal) have been through healthy cathartic political experiences in recent months and years of a kind we have not. There continues to remain a dangerous intellectual vacuum around the throne of Delhi.

Political Stonewalling

Political Stonewalling
Only Transparency Can Improve Institutions

By Subroto Roy

First published in The Statesman, July 20 2007, Editorial Page Special Article http://www.thestatesman.net


“Stonewalling” has come to mean being continually evasive and misleading in politics by, for example, parroting a party line against fair public inquiry or criticism. “I want you to stonewall it”, was Richard Nixon’s infamous instruction during Watergate. (The original meaning was not ignoble: General T. J. “Stonewall” Jackson, during the US Civil War stayed on his horse under constant fire, taking all the bullets “like a stonewall” until he was killed.)

Stonewalling is what we are likely ever to receive from Pratibha Patil and the present day Congress Party. It is not as if India and the world will not survive if she becomes our President. Rashtrapati Bhavan has had undistinguished occupants before, even ones with clouds of disreputable or nefarious public deeds hanging over their heads. All that will happen is that our political institutions shall retrogress for five years; a pity but not something catastrophic in view of our long history ~ Nadir Shah’s brief stay set the standard for catastrophic behaviour in Delhi.

“Individuals may form communities, but it is institutions alone that can create a nation”, said Disraeli. Nation-building would become that much harder, our pessimism and disillusionment about whether we will ever succeed would become that much greater.

Corrosion
The corrosion of our political, financial, academic and other public institutions over decades has been something in which all our official political parties and religious formations are hand-in-glove complicit. In the case of Pratibha Patil, it is the PM and UPA Chair who are directly responsible for the institutional corrosion taking place in full view of all with respect to the highest office of the land.

But then Dr Manmohan Singh, despite his sojourns as a young social scientist in Britain, has not cared a hoot that the Prime Minister in a parliamentary democracy must seek to be an elected member of the House of the People. Also, ever since 1991, he has permitted the flattering fiction to develop that he or any of his acolytes had something to do with the origins of the economic reform.  As for Sonia Gandhi, her list of naïve misjudgements only grows longer ~ cardinal among them being her having apparently retained as trusted advisers around her persons who had been warned about the vulnerability of her husband to assassination. Had Rajiv not been assassinated, Sonia would have been today merely a happy grandmother and not India’s purported ruler.

Stonewalling has become standard government practice in 21st century India across party-lines. The BJP stonewalled after the post-Godhra pogrom in 2002 and held none of its own responsible; the CPI-M has done precisely the same after the Nandigram pogrom a few months ago.

In October 2005, the Supreme Court ~ proving yet again that there are or can be institutions which do work in India ~ found the Union Government had behaved unconstitutionally. Lesson 101 of Constitutional Politics says: If you are uncertain whether a head of government commands confidence, ask him/her to prove his majority on the floor of the house. Instead the Sonia-Manmohan Government had launched a pre-emptive putsch against an aspirant for a democratic majority in a State assembly. What Sonia-Manmohan should have done in response to the Supreme Court’s finding was to recall or transfer the apparent culprit, and express regret to Parliament and the Court. That would have ended the matter and also engendered some moral growth in the polity. What they did instead was stonewall. Worse stonewalling was to follow from the whole of Parliament itself in the “office-for-profit” scandal.

Aristotle said politics was the supreme good because the ends of all other activities are subsumed in politics. This means that if the politics of a national society gets corroded, so does everything else. It is because India’s politics have become rotten, that our financial, academic and other institutions have followed.

The private American “equity group” Blackstone recently purchased Hilton Hotels for 26 thousand million American dollars cash. Why is that significant to Indians? Because India’s Finance Minister, P. Chidambaram, took the unprecedented step of naming Blackstone along with one private Indian citizen, Deepak Parekh in his February 2007 Budget Speech. He referred to a Government of India financial scheme by which favoured private businesses can “borrow” India’s foreign exchange reserves to pay for purchases of foreign assets. The same Reserve Bank of India which cracked down on Pratibha Patil’s dubious bank-dealings has now been bullied into allowing India’s foreign exchange reserves to be “borrowed” ~ and quite possibly never to be returned. Furthermore, foreign exchange reserves are not like tax-revenues but largely constitute already borrowed funds!
In academia, Mr Arjun Singh tyrannises defenceless medical students but presides (like his predecessor Dr Murli Manohar Joshi) over appointments at national institutes of full professors without postgraduate degrees or any experience of teaching or research. The Union Finance and Education Ministers report in the Government and their party to the PM and the UPA Chair. But neither Dr Singh nor Mrs Gandhi can have any effective control over the rot in India’s macroeconomic, financial, academic or other institutions when they are presiding over political rot themselves.

Shameless behaviour

Stonewalling is the political behavour of the shameless. Shame used to be a cultural means of political self-control in traditional societies. Modern politics makes a distinction between private and public domains, and says that transmuting valuable public property of any kind into private wealth or advantage constitutes nefarious corruption. It is possible our subcontinent has not wished to or has not yet entered the world of modern politics. Instead we remain feudal in our political behaviour ~ where large rival clans perpetually battle over what is the ill-defined common property of the realm. In Pakistan and Bangladesh, the militaries predominate and participate in this feuding. In India the feuds take place within a framework which outwardly seems democratic with institutions of a free society like a free press and official civilian control of the military. Our feuds are between three large rival clans: the Indira-Sonia Patriarchal Matriarchs, the Hindu Patriarchs, and the Communist Matriarchal Patriarchs. The Congress, BJP and Communists are yet to become modern parties, and unless and until they do, our politics shall remain in retrogression.


Political Paralysis

POLITICAL PARALYSIS

India has yet to develop normal conservative, liberal and socialist parties. The Nice-Housing-Effect and a little game-theory may explain the current stagnation

By SUBROTO ROY

First published in The Sunday Statesman, Editorial Page Special Article, June 24 2007, http://www.thestatesman.net

THE theatrics surrounding the choice of presidential candidates refer to the highest and most dignified office of the land. Otherwise, India’s public would have been justified to think we were watching an absurd farce. Even so, lessons may be learnt about the nature of our polity, especially our purported Government and its purported Opposition.

Consider first how the name of the Congress’s candidate apparently arose. “Why don’t you think of Pratibha Patil?” was the rhetorical suggestion apparently made by Manmohan Singh to Sonia Gandhi at a joint meeting of the UPA and Left where no other person could be agreed upon. What could have been the emotional state of the Prime Minister of India in addressing such a question to its specific addressee? It had to be the same unconscious perplexity and mental contradiction he has experienced throughout the UPA Government, saying to himself: “I am the Prime Minister but I am not the Prime Minister, I am the Head of India’s Government but I am not the Head of India’s Government”.

Instead of leading the country as he was chosen to do in the belief he possessed some superior wisdom and capability for the job, Dr Singh has constantly deferred to and followed the person who chose him to lead. The Head of Government in our system recommends an appropriate Head of State. If Dr Singh truly felt himself India’s leader, not merely someone permitted for some time to enjoy the office and perquisites of India’s Prime Minister and being nominally referred to as such, he could have said: “I think we should consider Pratibha Patil, what say all of you?”

Such words would have displayed too much assertiveness in the presence of Sonia Gandhi, too much leadership from someone flatteringly described as mild and gentle but unflatteringly described as obsequious in the face of power. It is the same excess of deference displayed when he allows himself to be bullied or insulted by the DMK or receive the open contempt of his own Cabinet ministers. Dr Singh has just returned from the so-called “G-8 summit” where he was an invitee. In a group photo standing above and behind the American President, Dr Singh was seen gently touching George Bush on the shoulder as if Bush was a rich younger brother who needed a lift in spirits. Afterwards Dr Singh reportedly said the summit was useless ~ from his long bureaucratic experience he should have known that long beforehand, and declined to waste India’s time there. But then Europe is nice this time of year when Delhi is so hot. China is next on his itinerary, and he will surely not want to miss the Great Wall despite China’s continuing insults.

What the Pratibha episode reveals about Sonia Gandhi is her continuing bewilderment and confusion about the parameters of her life since her husband’s assassination sixteen years ago. There is a very simple candid explanation why, after her years in mourning, she entered politics following the Sitaram Kesri period: she and her children could not financially sustain a lifestyle to which they had become accustomed at 10 Janpath except as part of India’s politics via the Congress Party. Running the Rajiv Gandhi Foundation was not enough, and Rahul Gandhi’s income in a normal private sector career would have been unexceptional. Hence the lure of power has remained strong and cannot be walked away from even if walking away would be the right thing to do for sake of the political health of the Congress Party ~ which would finally have to grow up, find some political principles, and develop some normal processes of internal competition.

When Pratibha Patil’s name was mentioned for the first time in this manner, the rational course of action for the UPA Chair would have been to say, wait, if we are now thinking about a woman definitely, may we please have two or three such names to consider for a few days? But it was Dr Singh mentioning the name, and his supposed wisdom is what Sonia Gandhi believes, in her bewilderment, she should defer to, so she agreed at once in a parallel state of mental confusion as his: “I am India’s Leader but I am not India’s Leader”. Hence Pratibha Patil becomes the nominee. A little “game-theory” may help to explain the outcome (see table).

The paralysis and/or sclerosis of the Congress’s thinking processes is matched by the BJP and Communists. If Sonia Gandhi could bring herself to walk away from Indian politics, a genuine leadership contest in the Congress would have to occur for the first time in decades. Similarly, if Atal Behari Vajpayee and Lal Krishna Advani could bring themselves to honestly walk away from BJP politics, there would have to be a genuine leadership contest and some new principles emerging in their party. There is an excellent and very simple political reason for Vajpayee and Advani to go, which is not that they are too old (which they are) but that they led their party to electoral defeat. Had they walked away in May 2004, there might have been by now some viable conservative political philosophy in India and some recognisable new alternative leadership for 2009. Instead there is none and the BJP has not only failed very badly at being a responsible Opposition, it will go into the 2009 General Election looking exceptionally decrepit and incompetent.

Indeed, Vajpayee and Advani may not have walked away for the same reason as Sonia Gandhi, namely, the “10 Janpath Effect” or what may be generalised to the “Nice-New Delhi-Government-Housing-Effect”. Besides, like our ageing cricketers, cinema stars, playback singers and tons of ageing bureaucrats and corporate executives, where would they go, what would they do, how would they live, what do they know how to do if they were not doing what they have been doing for so long? Golf and grandchildren is the usual American formula.

In case of the Communists, it is not electoral but ideological defeat, indeed ideological annihilation, that their leaders have led them into. When was the last time we heard our Communist leaders extolling Marx, Engels, Lenin, Stalin, Mao, Zhou or even Fidel Castro? Not for a long time. The bankruptcy of official communism is obvious even to them, at least in their candid moments in front of the mirror every morning. Even for the CPI and CPI(M) to merge into a genuine modern socialist party is too creative and productive an outcome to be handled since top and middle management retrenchments would be inevitable. Also, the Cannot-Leave-Nice-Housing-Effect applies here too, and so the most we find by way of communist transformation is a perverse alliance with organised big business in trying to cheat very poor and unorganised peasants of their land in an economy where runaway paper money printing threatens a hyperinflation.

Nobody in power wants to address the rotten state of our public finances, since all of them have contributed to causing the stench. Our Finance Minister finds time to attend posh parties and publish books while presiding over an RBI-supported capital flight of India’s super-rich: “ultrahigh networth individuals are looking forward to buy overseas equities and real estate” Business Standard (25 April 2007) blithely said. The Finance Minister should have been instead burning the midnight candle getting public budgets and government accounting cleaned and healthy nationwide.

We in India have had more than enough time and democratic experience to have developed by now a set of normal conservative, liberal democrat, social democrat and socialist parties. That we have nothing of the kind speaks to the rot in the political culture we are witnessing in our capital and other major cities. Politically, we may be in for an especially ugly, unpleasant and incoherent few years starting with the presidential election currently underway.

Presidential Qualities

Presidential Qualities

Simplicity, Genuine Achievement Are Desirable; Political Ambition Is Not

by Subroto Roy

 

First published in The Statesman, Editorial Page, Special Article, May 8 2007

 

 

To become President of the Indian Republic is to become our Head of State, and we may wish to see our President possess certain kinds of qualities of character and achievement. Unlike the USA, France and Russia but like Britain, Germany and Japan, our Head of State is not our Head of Government, who is the Prime Minister. Unlike Britain and Japan but like Germany, our Head of State is someone we get to choose and we do not have to depend on aristocratic hereditary chances.

 

Naked political ambition, whether overtly or covertly manifested, may be expected and can be tolerated in the drive to becoming a Prime Minister or a Chief Minister. But it is not a quality we would find endearing or salubrious in a President of India. One former President quite meticulously planned his career so as to make him a possible choice, and then asserted his “right” to the job and allowed a lobbying process to take over. Then too, becoming President is the highest possible honour for an Indian citizen ~ there can be nothing higher; no Bharat Ratna, no Nobel Prize or anything else can surpass having embodied the sovereignty of India as a free democratic republic. Yet one former President received a private award after leaving office and declared it to have been his highest honour ~ again, not an endearing or salubrious thing to have done.

 

We may almost say that the expressed wish or desire to become President of India should be almost a disqualification for the job. In the USA, a childhood ambition to grow up to be President is an admirable thing; in India it is not.

 

 

Practical aspects

 

Secondly, looking to the practical aspects of the job, these are twofold: acting as the Head of State of the Union of India as well as supervising the Presidential emissaries to our more than two dozen States, namely, the Governors. In a different and more modern nomenclature, the idea of a Governor would have been dispensed with as a British-era anachronism, and instead we would have had a Vice President for the Union of India and a Vice President for each of the States, forming an indirectly elected college of high and eminent dignitaries with fixed terms of office. So instead of a Governor of UP or Governor of Karnataka, we would have had a Vice President for UP and a Vice President for Karnataka, besides a Vice President of the Union of India who would chair the Upper House of Parliament.

 

This may have served to highlight the fact that the President is the constitutional Head of State both at the Union and in each of the States. His/her deputies act solely in his/her name, which, after all, is in the name of the sovereign people of India as expressed in their Constitution.

 

Plainly, we need a President who is wholly familiar with India’s Constitution, not merely as a written document but in its full working and vitality. A President does have legal advisers but there is ultimately no substitute for having achieved adequate political wisdom firsthand in knowing when advice is good or bad. Someone who has visibly or wilfully subverted constitutional norms of jurisprudence somewhere or other along the line may be assumed not to have that kind of wisdom.

 

For example, we have had elected chief ministers dismissed for no good reason in the past, while we now have the first prime minister anywhere since Salisbury in 19th Century Britain who does not command a majority in the Lower House of Parliament. Also, many life-long “career politicians” have spent their lives organising this or that political party, giving speeches at mass rallies, undermining their opponents, backing their friends, being involved in all the ugliness of day-to-day politics. Such persons would not have transcended their own pasts sufficiently to be able to earn the kind of public confidence and respect that is necessary in our President. Nor is our Presidency a place to carry on any kind of explicit personal agenda or political hobby or ideology.

 

Then, too, we could do with a President who does not feel any great urge for foreign travel or pomp and circumstance. India’s Foreign Minister and Foreign Trade Minister may have need to run around the globe but hardly anyone else in our Government needs to be in fact travelling abroad, not even the Prime Minister, especially when the domestic political and economic and jurisprudential agenda of our country is so large and yet unfulfilled.

 

Our Presidential term lasts sixty months: if, say, 20 months in total are devoted to the Union’s matters and another 30 months to our more than two dozen States and Union Territories, that would leave a month’s vacation for each of five years, with a full five months in hand for exigencies. How should the President allocate all that time? Plainly, the answer is that we expect him/her to be using moral suasion and sheer physical presence in defending the Constitution and the ordinary anonymous individual citizen against whatever misfortune may befall them, whether from natural calamity or evil behaviour by the State.

 

When was the last time we had a President who travelled by AC 2-tier and chatted normally with his fellow citizen-travellers? Or someone who spent not just a flying visit of a few hours to Mizoram or Tripura but who actually set up camp there at the Raj Bhavans for several weeks and came to know firsthand what was going on and what the Indian Union as a whole may do to help?

 

Have we ever had a President who requested an end to all the bands playing and marching around in front of a few boring New Delhi people once a year, and instead sent those marching bands to play on Sunday mornings all year long ~ along a Marine Drive or Chowringhee or a Mahatma Gandhi Road in this or that city or small town or other, for the enjoyment and entertainment of the common Indian family?

 

 

President’s rights

 

The President is not the Head of Government, and must at all times remember that he/she is to be guided by Cabinet advice in substantive political matters, which have mainly to do with the raising and spending of public resources. But there are a thousand parliamentary and procedural things wrong at present with our Governments and Oppositions both at the Union and the States, and the President of India may be the only person with the moral stature, dignity and gravity to try at least to nudge things in the right direction before they get any worse. The constitutional Head of State in our system has, in the words of Walter Bagehot, the right to be consulted, the right to encourage and the right to warn. Someone needs to be a person of character and achievement and not a hollow empty dummy to be able to exercise such rights appropriately.

 

What is needed overall is someone with the practical wisdom and political virtue recommended by Aristotelian, Confucian, Buddhist and other cultures ~ or at least without obvious political ignorance or political vices. Balzac said the genius resembles everyone and no one resembles him. India needs a President and Vice-Presidents who can talk with crowds and walk with kings without losing sobriety ~ who have earned the country’s respect through worthwhile achievement yet have been without overt or covert political ambition.

Unaccountable Delhi: India’s Separation of Powers’ Doctrine

UNACCOUNTABLE DELHI

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.

Basic structure
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.

After the Verdict: Why the Executive Needed a Vote of Confidence

AFTER THE VERDICT

By Subroto Roy

First published The Statesman, October 20 2005, Editorial Page Special Article, http://www.thestatesman.net

The last and only time a Head of State of India “resigned” was when Edward VIII (uncle of the present Queen of England) abdicated in 1936 because he wished to marry Mrs Wallis Simpson, a twice-divorced American, and the British Government under Stanley Baldwin felt this was unacceptable to the public and told him so. To his eternal credit, Edward VIII chose true love over the vainglorious trappings of a constitutional monarchy, gave up the kingship, and went with his new wife into a quiet voluntary life-exile in France as the Duke and Duchess of Windsor. India’s Presidents cannot act in state except upon advice of the Cabinet. That means they cannot even resign from office except upon advice of the Cabinet. A President may tragically die in office in which case the Vice-President would become the acting Head of State but there is no provision or precedent in India for a President to be made to resign except for Edward VIII’s abdication.

Richard Nixon resigned the office of the President of the United States in 1974 and more recently William Jefferson Clinton was brought under a lot of pressure to do so by the legislative impeachment proceedings against him. Nixon resigned (which made Gerald Ford President) because it had become impossible for him to stay in office having been proved to have lied to the people, and Clinton managed to stay on by the skin of his teeth for similar misdeeds. But the American system is different because the Head of State and Head of Government are united in the person of the President.

In our system, the Head of State embodies the sovereignty of India and does nothing more. Mountbatten as the first Governor-General imagined himself much more than that and caused damage to the subcontinent’s polity which has still to be repaired. But the first four Indian Heads of State, C. Rajagopalachari, Dr Rajendra Prasad, Dr S. Radhakrishnan, and Dr Zakir Hussain, were exemplary role-models. Unfortunately since their time the office of the President has suffered some of the shocks too that have been suffered by almost all our institutions. For example, retired Presidents really should vanish most gracefully into quietude to write their memoirs and help raise their grandchildren, yet we have had a former President say that an award received after retirement as President has been his most prized. It is not logically possible for such a thing to happen, since to become President of India is the ultimate honour for any citizen of our country. We elect someone among us to be a constitutional monarch for a period of five years and call that person President. Even if a former Indian President should receive the Nobel Peace Prize afterwards it would not mean his/her having embodied the sovereignty of our Republic was not the ultimate honour.

In our constitutional law, our Head of State cannot choose to resign any more than the sovereignty of India can be made to momentarily come to an end. If, to construct a hypothetical case, a President of India while in office became, heavens forbid, physically or mentally incapable of carrying out the duties of the office, the Government of India as represented by the Union Cabinet may well look to the Vice-President to fulfil the role of the Head of State temporarily but there would be no provision for the President to be made to demit office. The only precedent is that of Edward VIII where his personal love for Mrs Simpson compelled his abdication upon the advice of the Prime Minister.

Bringing ourselves back to Bihar, the Honourable Supreme Court’s finding of unconstitutionality is of grave import. On the positive side, what it indicates yet again is that India’s political institutions, no matter how battered and bloody they become by our self-inflicted wounds, still do work.

Furthermore, for the Honourable Court to have allowed the elections to go forward indicates how fine is the quality of our justice, for the Court has allowed the people of Bihar to speak again, and of course Mr Nitish Kumar and friends have been free to use at the hustings the Court’s finding in their favour. Certainly heads should roll and be seen to roll for all this. The Governor should have gone immediately but has not only not done so, he has let it be known that he was acting under orders himself. If so, the least that should happen is that the party-functionary responsible for this should be sacked.

For some press-commentators to demand that Sonia Gandhi should replace Dr Manmohan Singh reveals an appalling ignorance of constitutional norms; this is not a matter of a “High Command” replacing one acolyte by another as chief minister somewhere – if a Prime Minister resigns, so does the entire Cabinet he has appointed, and a new Government has to be sought to be formed. At the same time it is less than candid for the Leader of the Opposition to demand via the television cameras that the Prime Minister should resign, since the Opposition knows fully well that there is an institution called Parliament which can express its lack of confidence in a Government. And of course it also remains open for the Prime Minister himself to go to Parliament and seek to renew its confidence in his Government when the public confidence has thus come to be shaken.

In fact, the right course of action for the President is to summon the Prime Minister and say something like: “It would appear the Judicial Branch of the Government of India has found the Executive Branch to have breached the Constitution. Reference must now be made to the Legislative Branch, namely, to Parliament, to see if it still has confidence in the Executive. Please ask for a Vote of Confidence in the Lok Sabha as soon as possible.” Of course, Dr Manmohan Singh has been the first Prime Minister in Commonwealth history since Salisbury who has not been himself a member of the Lower House. Curzon had wished to be British prime minister after returning from India but was passed over in 1922 in favour of Baldwin in a decisive demonstration that a prime minister must be a member of the Lower House. That is why Alec Douglas-Home stopped being a member of the House of Lords in order to become British PM in 1963-64. India in the last thirty years has seen parliamentary traditions at the Union and State levels being ruinously weakened (or not even allowed to develop) being replaced all too frequently either by street-fighting or by discretionary bureaucratic decision-making by committee. The present moment is an opportunity for the rot to be stemmed. It may be too optimistic though to believe that it will be taken.

Constitution for a Second Indian Republic (April 1991)

Constitution for a Second Indian Republic

Author’s Note April 2007: I wrote “A Second Constitution for India” on October 2 1990 while working in an advisory capacity for Rajiv Gandhi, then Leader of the Opposition. But he did not get to see it and I was not able to guide any coherent discussion towards this vital subject. I published it on April 20 1991 in The Statesman in its Saturday supplement. While I am not sure I agree with all of my 1991  “Constitution” today, it may be useful for discussion. One salient feature of this concise 60-article Constitution is having a directly elected PM and Deputy PM with a tough Senate somewhat on the US pattern (though the distinction between Head of Government and Head of State is  maintained as in the present system) with a modified British pattern of parliamentary democracy continuing in the States.

I do, however, fully endorse what I wrote on December 30 2002 in a personal letter to the late C. R. Irani, in his capacity as a member of the “Constitutional Review Commission” (to which he responded with very warm agreement). That letter is placed below the text of the proposal and outlines some of what I think is most urgent today in India’s constitional progress.

“Nai Duniya”, Constitution of a Second Republic

by Subroto Roy

First published in The Statesman, April 20 1991

Preamble

We the People of India, in order to establish a more perfect Union of PERPETUAL PEACE; in which the ancient virtues of COURAGE,TRUTHFULNESS and JUSTICE may be better practiced; in which the FREEDOM and WELFARE of all our People may be more easily secured, do adopt, enact and give to ourselves this Constitution, on this the 26th day of January 1995.

FOUNDATION
1. India, that is Bharat or Hindustan, shall be a Union of States and Territories, and a sovereign member of the community of nations.

2. The Union of India shall be a democratic republic, and the Union shall guarantee a democratic and republican form of governance in each of its States and Territories.

3. The Union of India shall protect every State and Territory against foreign aggression and armed rebellion, and shall ensure its governance to be in accordance with  provisions of the Union Constitution.

4. A State or Territory may elect to establish its own Constitution, but no provision of the Constitution of any State of Territory shall be valid if it violates any provision of the Union Constitution.

FUNDAMENTAL RIGHTS OF CITIZENS
5. Every person born in the territory of India, or either of whose parents or any of whose grandparents was born in the territory of India, or who is a citizen of India at the commencement of this Constitution shall be a citizen of India by birth. Any person who has been domiciled in India for five years may become a citizen of India by naturalization according to law.

6. Every citizen of India who is not less than 21 years of age shall have the right to vote, and the right to vote shall not be denied or abridged on account of religion, race, sex, descent, caste or place of birth, or by reason of failure to pay any poll tax or any other tax.

7. The Union of India or any of its States or Territories shall not deny to any person within the territory of India equality before the laws or the equal protection of the laws.

8. No person within the territory of India shall be deprived of life, liberty or property save by authority of law, nor shall private property be taken for public use without just compensation.

9. The rights of citizens to be secure in their persons, homes, communications, papers and effects, against unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation, and describing the place to be searched, and the person or things to be seized.

10. No person accused of a criminal offence shall be compelled to be a witness against himself or herself, nor shall any person be arrested without being informed of the grounds of such arrest, nor shall any person in custody be deprived of the right to legal
counsel, nor shall the privilege of the writ of habeas corpus be suspended unless in the case of war or armed rebellion the public safety requires it.

11. No person shall be prosecuted or punished for the same offence more than once, nor shall excessive bail be required or excessive fines imposed, nor shall punishments be cruel or unusual.

12. The Union of India or any of its States or Territories shall not deny to any citizen the right to move freely throughout the territory of India or to reside or settle in any part of the territory of India.

13. The Union of India or any of its States or Territories shall not deny to any citizen the right to freedom of conscience, or the right to freely profess or practice religion, or establish, maintain and manage religious institutions in accordance with law and subject to public safety, order and health.

14. No citizen shall be subject on account of religion, race, caste, sex, descent or place of birth to any disability, liability or restriction with regard to public institutions, public places or places of worship, or use of public facilities, maintained wholly or partly out of public funds or otherwise dedicated to the use of the public.

15. The Union of India or any of its States or Territories shall not deny any citizen equality of opportunity or discriminate on account of religion, race, caste, sex, descent or place of birth.

16. The Union of India or any of its States or Territories shall not deny or abridge the freedom of speech, inquiry or expression of citizens, or the freedom of the press or broadcasting, subject to public safety, order, health, laws of defamation and standards of common morality.

17. The Union of India or any of its States or Territories shall not deny the right of citizens to form associations and unions, to assemble peaceably without arms, or to petition for redress of grievances, subject to public safety, order and health.

18. The Union of India or any of its States or Territories shall not deny to any citizen the right to practice any profession, trade or business, or carry on any occupation or means of livelihood, subject to public safety, order, health and standards of common morality.

19. Trade, commerce and enterprise throughout the territory of India shall be free, and the Union of India or any of its States or Territories shall not make any law to restrict them except in the interests of public safety, order, health, standards of common morality or economic efficiency.

20. No tax shall be levied or collected except by authority of law.

DUTIES OF CITIZENS
21. It shall be the duty of every person within the territory of India to abide by the Constitution of India and show no disrespect to its institutions; to participate in democratic processes and to vote in elections according to law; to make timely payments of taxes, fees and dues according to law; to keep clean and hygienic streets, roads, highways, neighbourhoods, waterways, railways, parks, public buildings and institutions; to protect public property; to protect the natural environment and to treat living creatures without cruelty; to abjure violence and promote harmony among all people; to value and preserve the languages and cultural history of the Indian subcontinent; to renounce practices derogatory to women or children.

EXECUTIVE, LEGISLATIVE AND JUDICIAL POWERS
22. There shall be a President of India in whom shall be vested the executive power of the Union, and who shall be the Supreme Commander of the Armed Forces of the Union. The President shall be elected indirectly by the citizens of India in the manner prescribed in Article 40 of this Constitution.

23. There shall be a Vice-President of India, who shall exercise the duties and functions of the President in the event of the death, resignation, incapacitation, absence or impeachment of the President. The Vice-President shall be elected indirectly by the citizens of India in the manner prescribed in Article 41 of this Constitution.

24. The President of India shall appoint a Prime Minister upon the advice of the citizens of India in a direct election in the manner prescribed in Article 43 of this Constitution. The Prime Minister of India shall be the Chief Executive Officer of the Union, and the President shall, in exercising the executive power of the Union, act at all times upon the advice of the Prime Minister. The Prime Minister shall keep the President of India informed at all times, and shall reconsider advice rendered if the President so requests it.

25. There shall be a Union Parliament which shall consist of the President, the Vice-President, the Prime Minister and two elected Houses.

The Upper House, or Council of the Nation, shall consist of members elected directly by the citizens of India according to States in the manner prescribed in Article 37 of this Constitution. The Lower House, or House of the People, shall consist of members elected indirectly by the citizens of India according to States, in the manner prescribed in Article 35 of this Constitution. The legislative power of the Union of India shall be vested in the Union Parliament.

A Bill, except a Tax Bill, may originate in either House. A Tax Bill, that is to say any Bill for the raising of revenue, shall originate in the Lower House. After a Bill has been passed in one House, it shall be sent to the other House which shall pass, modify or reject it. A Bill passed by both Houses shall be sent to the Prime Minister, upon whose approval it shall be sent to the President for signature upon which it shall become law. A Bill passed by both Houses which does not receive the approval of the Prime Minister shall be returned to the House where it shall have originated. If, after reconsideration, both Houses pass the Bill, each House by two thirds of its members, then the Bill shall be sent to the Prime Minister who shall advise the President that it be signed and become law.

26. There shall be a Supreme Court of India, consisting of a Chief Justice and Associate Justices appointed by the President upon the nomination of the Prime Minister with the advice and consent of the Upper House of the Union Parliament. The judicial power of the Union of India shall be vested in the Supreme Court and such courts inferior to it that it may establish or authorize. The Supreme Court of India shall have its seat in the capital of the Union and also in every State of the Union.

27. Each State shall have a Governor appointed by the President of India upon the nomination of the Prime Minister with the advice and consent of the Upper House of the Union Parliament. The Governor shall be vested with the executive power of the State, and shall be the supreme commander of all police forces within the State.

28. Each State shall have a Parliament, which shall consist of the Governor of the State and one or two chambers, elected by the citizens of the State in accordance with the Constitution or laws of the State. All legislative power of the State shall be vested in the State Parliament or such duly elected bodies of local government which the State Parliament shall establish by law.

29. The Governor of a State shall appoint a Chief Minister who shall be a member of the State Parliament enjoying the confidence of that Parliament. The Governor shall act upon the advice of the Chief Minister in exercising the executive powers of the State except in conditions of Emergency as stated in Article 56 of this Constitution. In the event no member of the State Parliament shall have its confidence, or in conditions of Emergency as stated in Article 56, the Governor of the State shall exercise the executive powers of the State in consultation with the State Parliament, until such a time as either such confidence comes to obtain, or new elections to the State Parliament take place within a maximum time of one year, or conditions of Emergency come to an end.

30. Each State Parliament shall elect its representatives to the Lower House of the Union Parliament in accordance with the provisions of Articles 34 and 35 of this Constitution.

31. Each State shall have a Supreme Court consisting of a Chief Judge and Associate Judges appointed by the Governor as the Constitution or laws of the State may establish. The judicial power of the State shall be vested in the Supreme Court of the State and such courts inferior to it as the Constitution or laws of the State may establish.

ELECTIONS AND TERMS OF OFFICE
32. All elections in the Union of India and its States and Territories shall be held on the 2nd day of October in any year, and this day shall be known as Election Day or Gandhi Jayanti and shall be a bank holiday. There shall be no more than 14 other bank holidays in the year, and no more than  2  in any month of the year.

33. The power required for the conduct of all elections to the Union Parliament and all State Parliaments shall be vested in a Chief Election Commissioner, who shall be appointed by the President upon the nomination of the Chief Justice of India with the advice and consent of the Prime Minister and the Upper House of the Union Parliament. The Chief Election Commissioner shall be assisted by four Associate Commissioners, one each for Northern, Central, Southern and Eastern India, and State Election Commissioners, one for each State.

34. Election to any State Parliament shall be for a maximum term of 4 years. A State Parliament shall consist of no more than 1000 members, chosen by direct election from territorial constituencies of the State, each member representing no more than 100,000 citizens so far as is possible.

35. Elections to the Lower House of the Union Parliament shall be for a term of 2 years, and the House shall stand dissolved every 2 years. The Lower House shall be elected indirectly by the citizens of the States, the delegations from a State being elected by members of the State Parliament. Each member of the Lower House shall represent indirectly 1 million citizens of the State so far as is possible. The Lower House of the Union Parliament shall have no more than 1000 members, each member having one vote.

36. The Lower House shall choose its own Speaker; determine the rules of its own proceedings; punish its members including by expulsion with the approval of two thirds of its members; keep a record of its proceedings and publish the same regularly except such parts as may in the judgement of the House require secrecy in the national interest. During their attendance in Parliament or travel to and from Parliament, members shall be privileged from arrest except for treason, felony or breach of peace. Nor shall any speech made in the Lower House be questioned in any other place. No member of the Lower House shall hold any other office of profit or honour of the Union of India or any State or Territory of India.

37. The Upper House of the Union Parliament shall have no more than 100 members, of whom 90 shall be chosen by direct election from territorial constituencies of the Union and shall have one vote each. Elections to the Upper House shall be for a term of 6 years, with one third of the elected members retiring every 2 years. No person shall be elected to the Upper House for more than three terms successively. For purposes of elections to the Upper House, the Union of India shall be divided into territorial constituencies each of approximately 10 million citizens, so long as there are no more than 22 constituencies from the States of Southern India (presently consisting of Tamil Nadu, Kerala, Andhra Pradesh, Karnataka and Goa); 22 constituencies from the States of Eastern India (presently consisting of Arunachal Pradesh, Tripura, Mizoram, Manipur, Meghalaya, Nagaland, Assam, Sikkim, West Bengal and Bihar); 22 constituencies from the States of Northern India (presently consisting of Uttar Pradesh, Himachal Pradesh, Jammu and Kashmir,Rajasthan, Punjab and Haryana); and 22 constituencies from the States of Central India (presently consisting of Gujarat, Maharashtra, Madhya Pradesh and Orissa). There shall be one constituency in the Union Territory of Delhi and one constituency in all other UnionTerritories together.

38. The President of India may appoint up to 10 members of the Upper House each of whom shall have no vote and shall hold one term of office of 2 years. The President shall make such appointments in view of considerations such as the representation of the arts, sciences, sports, literature or social work, as also the representation of any community, caste, religion or other group which, in the opinion of the President, deserves a voice in the Upper House in the national interest.

39. The Vice President of India shall chair the Upper House but shall have no vote unless they are equally divided. The Upper House shall choose its own Chairman pro tempore in the absence of the Vice President; determine the rules of its own proceedings; punish its members including by expulsion with the concurrence of two thirds of its members; keep a record of its proceedings and publish the same except as may in the judgement of the House require secrecy in the national interest. During their attendance in Parliament or their travel to and from Parliament, members shall be privileged from arrest except for treason, felony or breach of peace. Nor shall any speech made in the Upper House be questioned in any other place. No member of the Upper House shall hold any other office of profit or honour of the Union of India or any State or Territory of India.

40. The President of India shall be elected for a term of 5 years by the Union Parliament, and shall be a citizen of India not less than 35 years of age. If there are more than two nominations, there shall be a primary election in the Upper House by secret vote, and the names of those receiving the highest and second highest number of votes shall be sent to the Lower House which shall elect between them by secret ballot. The President of India shall not hold any other office of profit or honour.

41. The Vice-President of India shall be elected for a term of 5 years by the Union Parliament, and shall be a citizen of India not less than 35 years of age. If there are more than two nominations, there shall be a primary election in the Lower House by secret vote, and the names of those receiving the highest and second highest number of votes shall be sent to the Upper House which shall elect between them by secret ballot. The Vice-President of India shall not hold any other office of profit or honour.

42. The terms of the President and Vice-President shall not be concurrent.

43. The Prime Minister of India shall be appointed by the President upon the advice of the citizens of India in a direct election, and shall hold office for four years. The Prime Minister shall be a citizen of India not less than 35 years of age, and no person shall hold the office of Prime Minister for two terms successively. Candidates shall register 12 months prior to the date of the election with the Chief Election Commissioner. The Chief Election Commissioner shall report to the President the results of the election to the office of the Prime Minister, and the President shall appoint the candidate receiving the highest number of votes.

44. Upon the nomination of the Prime Minister, the President shall appoint a Deputy Prime Minister and a Council of Ministers, who shall hold office at the pleasure of the President and who shall assist the Prime Minister in the discharge of the duties of the office. The Deputy Prime Minister shall exercise the duties and functions of the Prime Minister in the event of the death, resignation, incapacitation, absence or impeachment of the Prime Minister.

45. The Prime Minister, the Deputy Prime Minister and the Council of Ministers shall from time to time answer the questions of members of the Union Parliament as requested by the latter, and the Prime Minister shall no less than once every year address the Union Parliament on the State of the Republic.

46. Neither the Prime Minister nor the Deputy Prime Minister nor any member of the Council of Ministers shall hold any other office of profit or honour.

DUTIES OF THE UNION AND THE STATES
47. The duties of the Union of India shall include

— defence of the Republic from foreign aggression, armed rebellion and crime
— foreign relations and foreign trade
— management of currency and exchange-rate
— management of the public debt of the Union
— inter-State highways, waterways and dams
— regulation of inter-State railways
— regulation of harbours and airports
— regulation of civil aviation
— regulation of communications and broadcasting
— protection of national monuments and archives
— development of space and atomic research, research
universities and institutes of national importance
— planning of metropolitan areas
— environmental protection, national forests, parks and wildlife
— regulation of banking other than rural banking
— regulation of stock exchanges and futures markets
— census, voter registration, and social security

48. The Union of India shall in addition
— promote and encourage State and local democracy
— reduce disparities of income and wealth consistent with economic efficiency
— reduce inequitable transfers of debt to future generations by ensuring balance in the Union Budget over a quincennial period
— promote harmony among the nations of the world, abjure violencein the settlement of international conflicts, foster respect for international law, and maintain just and honourable relations with other nations.

49. The original jurisdiction of the Supreme Court of India shall extend to substantive questions of law and constitutional interpretation; fundamental rights of citizens, and relations between the citizen and the Union and its States and Territories; international law; inter-State relations and commerce; relations between the Union and any State.

50. There shall be a Reserve Bank of India. Upon the nomination of the Prime Minister and with the advice and consent of the Upper House of the Union Parliament, the President of India shall appoint a Governor and Deputy Governors of the Reserve Bank of India. It shall be the duty of the Reserve Bank of India to maintain a sound currency, that is, a stable value of the Rupee for transactions within the Union and outside it. The Reserve Bank of India shall be further responsible for the charter and regulation of banks, and the efficient working of financial and credit markets.

51. Upon the nomination of the Prime Minister and with the advice and consent of the Upper House of the Union Parliament, the President of India shall appoint a Comptroller and Auditor General of India, who shall be responsible for the issue of public moneys and the audit of the accounts of the Union of India.

52. There shall be a Public Services Commission of India. Upon the nomination of the Prime Minister and with the advice and consent of the Upper House of the Union Parliament, the President of India shall appoint a Secretary-General of the Public Services Commission, who shall be responsible for all matters relating to the civil services of India.

53. The duties of each State of India shall include
— civil order and police forces in the State
— State highways, waterways and dams
— regulation of State railways
— land registration and tenurial reform
— agricultural pricing, stocks and extension
— animal husbandry
— colleges and non-research universities
— finance of schools and setting of school standards
— regulation of electricity
— regulation of insurance
— regulation of rural banking
— management of the public debt of the State
— vital statistics
— public health
— environmental protection
— State parks and forests

A State of India shall in addition
— extend processes of democracy by promoting ad encouraging constitutional local government
— reduce disparities of income and wealth consistent with requirements of economic efficiency
— reduce inequitable transfers of debt to future generations by ensuring balance in the State Budget over a quincennial period
— endeavour to secure a common civil code for citizens of the State
— promote harmony among the peoples of India.

The duties of local governments established in a State by law shall include provision of primary and secondary education or regulation thereof; provision of and maintenance of streets, roads and lighting or regulation thereof; provision of fresh water and sewage disposal or regulation thereof.

54. The original jurisdiction of the Supreme Court of a State shall extend to substantive questions of law and interpretation of the State Constitution; civil and criminal law within the State; marriage, divorce, custody and guardianship of minors; fundamental rights of citizens and relations between citizens and the State.

WAR AND EMERGENCY
55. The President of India, upon the advice of the Prime Minister and with the consent of a majority of each of the Union Parliament, shall have authority to declare and make war on behalf of the Union of India and its State and Territories, and to raise armed forces and resources for this purpose. A declaration of war may include the suspension of fundamental rights so long as that no such suspension shall continue for longer than 30 days without the consent of a majority of each House of the Union Parliament.

56. The President of India, upon the advice of the Prime Minister and with the consent of a two thirds majority of the Upper House of the Union Parliament, shall have authority to declare the whole of India or any part of its territory to face an imminent danger from foreign aggression, armed rebellion, disturbance or natural calamity, and proclaim an Emergency accordingly. Proclamation of Emergency may include declaration of Governor’s Rule in a State according to Article 29 and suspension of fundamental rights, so long as that no such suspension shall continue for longer than 30 days without the consent of a two thirds majority of the Upper House, and no elections to any State shall be delayed for longer than one year.

AMENDMENTS AND MISCELLANY
57. Within the groupings of States given in Article 37, new States may be formed or State boundaries altered by authority of the President of India, upon the advice of the Prime Minister and with the consent of two thirds of the members of each House of the Union Parliament and the consent of a majority of each State Parliament affected thereby.

58. The provisions of this Constitution may be amended by the authority of the President of India with the consent of a four fifths majority of each House of the Union Parliament.

59. Impeachment from office of the President, Vice-President, Prime Minister or Deputy Prime Minister of India shall be initiated by a four fifths majority of each House of the Union Parliament. The Speaker of the Lower House shall inform the Chief Justice of India of such a majority in each House, whereupon the Chief Justice shall constitute a Special Bench of the Supreme Court of India which shall act as the Court of Impeachment.

60. Written and printed communications between the Union of India and foreign nations; between the Union of India and the States of India, and between the States of India and the Union of India; and between the Union of India and citizens of India shall be in the Hindustani (Hindi) and English languages. Any language or dialect of India may be spoken in the Union Parliament or any State Parliament with the prior permission of the Chairman or Speaker of the chamber.”

December 30 2002 letter to Mr C. R. Irani, Constitutional Review Commission:

“Dear Mr. Irani, Other than yourself and Mr. Sorabji, most other members of the Constitutional Review panel seem to be retired judges or bureaucrats. How many are under 50 years of age? Or have demonstrable knowledge of e.g. modern economics or constitutional political theory? Such a panel may be worse than nothing, since after its fossilized reports are in, it will take another 50 years before genuine constitutional reform can be addressed. Here are some examples:1. There is no such thing as a “Central” Government of India. There used to be one taking orders from London, giving orders to “Provinces” on the periphery. Free India has been a Union of States. Each Indian is supposed to be and to feel as being a citizen both of the Union and of his/her State, owing loyalty and taxes at both levels. Yet the colonial anachronism continues in all our thought with devastating results, so, e.g. the States remain mendicants before an all-powerful “Centre” which remains a mendicant before the new “London”. Ergo, your panel should be talking about Union-State relations, and the proper nature of federalism in modern India. But is any member a recognised expert on fiscal finance? For a start, all our State and Union Government accounting would need to be sorted out properly before anyone can comprehend what is going on between them. 2. The Governor of the RBI must be made a Constitutional post, on par with e.g. the Auditor-General. Reason: Monetary policy needs to be made independent of the fiscal compulsions of the Government of the day, which was the intended function of the RBI at its inception in 1935. Instead it has become a large Department of the Finance Ministry. The RBI’s sole job should be to establish and maintain the soundness of the currency, both domestically and internationally. I wonder if such an idea will arise from the panel appointed to look into it. 3. Our 16 large States have an average population of 61 million people. Each needs to be allowed to have its own Constitution if it so wishes on the American model, where the Union Constitution presides over a large number of State Constitutions. Indeed the resolution of the J&K problem and indeed our problems with Pakistan may rest in a broad, controlled devolution of fiscal and monetary powers to all States, with the Union’s mandate becoming clearer and more focussed and feasible and realistic as a result. Will your panel talk about this? (Delhi does not forsake its own power, as even Old Man Tughlak found many years ago.) I could go on. Eleven years ago, I wrote in Foundations of India’s Political Economy “The 1950 Constitution was a marvellous document at the time. Since then it has become too bulky, too full of exceptions and qualifications, and far from comprehensible to the ordinary Indian. A neater, cleaner and shorter document may be sought which keeps the best of the 1950 Constitution and integrates it with the experience of forty years as well as the best of foreign constitutions, with the aim of promoting a system with less uncertainty and more stability.” The Statesman on April 20 1991 published my proposed Constitution for a Second Indian Republic, now … I enclose a copy for your interest. In Keshavananda Bharati the Supreme Court meant that liberal, republican, representative democracy in a free society with separation of powers must not be subverted by any sort of constitutional gimmickry. My proposals enhance such political values. I hope your panel may do the same.”