May 29, 2009 — drsubrotoroy
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.
May 29, 2009 — drsubrotoroy
Cabinet Government has become far too unwieldy and impractical in India, and the new Cabinet chosen by Sonia Gandhi and Manmohan Singh over almost a fortnight — of some 79 Ministers, almost certainly the largest number in the world — may be destined to be so as well. If there is going to be “fiscal prudence” as the PM and Finance Minister have declared, it really needs to start at the top with the Union Government itself. Remember we also have more than two dozen State Governments plus Union Territories and myriad local governments too.
Here then is an example of a better-designed Cabinet for the Government of India with Cabinet Ministers in bold-face, others not so:
– Parliamentary Affairs
– Intra-Government Liaison
Defence War/Forces ( Raksha, Yudh/Fauj)
– Navy & Coast Guard
– Air Force & Strategic Forces
– Money & Banking
– Accountant General
– Law & Justice
– Internal Security
– Disaster Management & Civil Defence
– Archaeology, Art & Culture
– Commerce & Tourism
– Overseas Indians
– International Organisations
– Roads & Highways
– Shipping & Waterways
– Civil Aviation
– Urban Development
Agriculture & Food
– Rural Development
– Water, Flood Control & Irrigation
– Forestry & Tribal Affairs
– Competition and Monopoly-Control
– Petroleum and Energy
– Chemicals & Fertilizers
– Coal and Mines
– Communications and IT
– Higher Education
– Vocational Education
– Science and Technology
Labour & Employment
Health and Human Services
– Women and Child Development
– Social Security
There are just eleven Cabinet Ministers (in bold-face above) including the PM, so, along with the Cabinet Secretary, they could sit with ease around a normal table which should help the process of deliberation.
This document has arisen out of one during my work as an adviser to Rajiv Gandhi in his last months in 1990-1991 though the latter never reached him; I had intended to talk to him about its contents but it was not to be.
It may be profitably read alongside my “Distribution of Government Expenditure in India”, which is part of my ongoing research and was released in the public interest last year.
Subroto Roy, Kolkata
May 25, 2009 — drsubrotoroy
Sad to say, Parliament’s sovereignty has been diminished, indeed usurped, by the new Executive Government.
Here is a brief record for future generations to know.
India’s people completed their voting in the 15th General Elections on Wednesday May 13 2009.
The results of how they had spoken, what was their will, were known and declared by Saturday May 16 2009.
There was no legal or logical reason why the 543 members of the 15th Lok Sabha could not have been sworn in as new MPs by the close-of-business on Monday May 18 at the latest.
On Tuesday May 19 the 15th Lok Sabha could have and should have met to elect itself a pro tem or even a permanent Speaker.
The Speaker would have divided the new House into its Government Party and its Opposition.
There would have been a vote of confidence on the floor of the House, which in the circumstances would have been in favour of the Government Party.
Observing this to have taken place, the Hon’ble President of India as the Head of State would have sent for the leader of the Government Party and invited her to form the new Government.
In this particular case, the leader of the largest political party, namely Sonia Gandhi, would have been accompanied perhaps by the Leader of the Lok Sabha, Pranab Mukherjee, as well as her personal nominee for the position of PM, namely, Manmohan Singh.
Sonia Gandhi would have respectfully declined the invitation of the President to be the new Prime Minister, and she would have also explained that she wanted Manmohan Singh to have the position instead.
The President would have said “Very well, Dr Singh, can you please form the Government?”
He would have said, “Yes Madame President it shall be a privilege and an honour to do so”.
The President would have added, “Thank you, and I notice you are not a member of the Lok Sabha at the moment but I am sure you are taking steps towards becoming one.”
End of visit.
Manmohan Singh would have been sworn in as PM and would have gone about adding Ministers at a measured pace. Later, he would have resigned his Rajya Sabha seat and sought election to the Lok Sabha on the parliamentary precedent set by Alec Douglas-Home.
What has happened instead?
On May 18 2009, instead of 543 members of the 15th Lok Sabha taking their oaths as required by parliamentary law and custom, Dr Singh held a purported “Cabinet” meeting of the 14th Lok Sabha — a long-since dead institution!
Some of the persons attending this meeting as purported “Cabinet ministers” had even lost their seats in the elections decided a few days earlier and so had absolutely zero democratically legitimate status left. All these persons then submitted their purported resignations which Dr Singh carried to the President, stating his Government had resigned. The President then appointed him a caretaker PM and he, along with Sonia Gandhi, then went about “staking claim” to form the next Government — turning up at the President’s again with “letters of support” signed by some 322 persons who were MP-elects but were yet to become MPs formally by not having been sworn in.
The President appeared satisfied the party Sonia Gandhi and Manmohan Singh belonged to would command a majority in prospect in the Lok Sabha and invited him to be PM. Some major public wrangling then took place with at least one of his allies about cabinet berths — and that is the situation as of the present moment except that Dr Singh and several others have been sworn in as the Council of Ministers even though the new 15th Lok Sabha of 543 members has still not convened! It has been all rather sloppy and hardly uplifting.
Parliament is supposed to be sovereign in India.
Not the Executive Government or the largest political party or its leader.
The sovereignty of Parliament required Sonia Gandhi and Dr Singh to have realised
first, that the 14th Lok Sabha stood automatically dissolved when elections were announced;
secondly, that the 15th Lok Sabha could have and should have been sworn in by Monday May 18;
thirdly, that there should have been a vote of confidence in the Lok Sabha immediately which would have gone in favour of the Government Party;
fourthly, that only then should the Executive Government have been sought to be formed;
and of course fifthly, that if that Executive Government was to be led by someone who happened to be a member of the Rajya Sabha and not the Lok Sabha, parliamenary law and custom required him to follow the Douglas-Home precedent of resigning from the former and seeking election to the latter at the earliest opportunity.
Let future generations know that as of today, May 25, the 543 persons whom the people of India voted to constitute the 15th Lok Sabha still remain in limbo without having been sworn in though we already have an Executive Government appointed!
The sovereignty of Parliament, specifically that of the Lok Sabha, has come to be diminished, indeed usurped, by the Executive. It is the Executive that receives its political legitimacy from Parliament, not vice versa. Nehru and his generation knew all this intimately well and would have been appalled at where we in the present have been taking it.
May 23, 2009 — drsubrotoroy
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….
February 13, 2006 — drsubrotoroy
SEPARATION OF POWERS
Montesquieu’s Spirit of the Laws outlined a doctrine that applies to India, the USA and all constitutional democracies: there is no monopoly of political wisdom.
By SUBROTO ROY
First published in The Sunday Statesman, The Statesman Editorial Page, Special Article Feb 12-13 2006
The Speaker’s noble office is that of the single member of the House, traditionally chosen by unanimity, whose task it is to self-effacingly maintain order in Parliamentary debate and proceedings, so that the House’s work gets done. C’est tout. Once chosen Speaker, he ipso facto retires from partisan politics for life. The Speaker neither contributes to the substance of Parliamentary debate (except in the rare case of a tie) nor has to feel personally responsible for Parliament’s conduct.
Our Parliament has tended to become so dysfunctional since Indira Gandhi and her sycophants destroyed its traditions 30 years ago, that supervising its normal work is an onerous enough task for even the finest of Speakers to handle.
The Lok Sabha’s incumbent Speaker has tended to see himself as the champion of Parliament. He need not. He does not command a majority in the Lok Sabha; the Government Party does. We have had the oddest peculiarity unfolding in India at present where the person who does command the Lok Sabha’s majority, and therefore who would be normally defined as Prime Minister of India, has chosen to nominate someone who is not a member of the Lok Sabha to act as Prime Minister, i.e. to command the Lok Sabha’s majority. (The Rajya Sabha was and remains irrelevant to most things important to Indian democracy, regardless of its narcissism and vanity). Someone with access to 10 Janpath should have told Sonia Gandhi in May 2004 that if she did not wish to be PM and wanted to gift the job to someone else, she should do so to someone who, like herself, had been elected to the Lok Sabha, like Pranab Mukherjee (elected for the first time) or Kamal Nath or Priya Ranjan (both veterans).
Manmohan Singh, a former Lok Sabha candidate, may as Finance Minister have been able to progress much further with economic reforms. But sycophancy has ruled the roost in the Congress’s higher echelons, and nobody had the guts to tell her that. Indeed as early as December 2001, Congress leaders knew that in the unlikely event they won the polls, Manmohan Singh would likely be PM by Sonia Gandhi’s choice (though he was not expected to last long at the top), and yet he did not contest the Lok Sabha polls in 2004.
The Government of the day, not the Speaker, is Parliament’s champion in any discussion with the Supreme Court over constitutional rights and Separation of Powers. And the Government has in fact quietly and sensibly requested the Supreme Court to set up a Constitutional Bench for this purpose. Such a Constitutional Bench shall have cause to ask itself how far Kesavananda Bharati needs to be tweaked if at all to accommodate the contention that Parliament has a right to judge its own members. The Court may well likely say that of course Parliament has a right to judge its own members but even that right is not an absolute right, (nothing is). Even Parliament’s right to judge its own members must be in accordance with natural law, with principles of justice, with due and clearly defined processes. E.g. the established Privileges Committee and not the ad hoc Bansal Committee had to do the needful.
Imagine a hypothetical case of fantastic fiction where half a dozen independent MPs are elected to a future Lok Sabha, and then take it upon themselves to expose corruption and shenanigans of all major political parties. Our fantastic super-heroes become whistleblowers within Parliament itself while remaining totally incorruptible as individuals — like Eliot Ness’s team who jailed Al Capone and other gangsters, and came to be depicted in Hollywood’s The Untouchables. These Untouchables would come to be feared and despised by everyone from Communists on one side of the political spectrum to Fascists on the other. They would upset everybody precisely because they were so clean and were not purchasable. The Government and Opposition of the day might wellgang up to expel such troublemakers and even fabricate charges to do so. (Now there’s a script for a Bollywood movie!)
What our Supreme Court’s Constitutional Bench decides now in the matter at hand will determine the fate of our super-heroes in such a future fantasia. The present case is a polar opposite — where MPs have been caught on camera with their sordid fingers in the cookie-jar, and then made to walk the plank immediately by their peers. Yet natural law applies here as it will to our fantastic future fighters, and this is what the Bench would have to speak on.
Why the present situation continues to be disconcerting is because the whole country heard all the holier-than-thou protestations, yet everyone continues to take a very dim view of what they see of politicians’ behaviour. There remain strong suspicions that only a few very tiny tips of very large icebergs were or can be caught on camera. Large-scale deals and contracts involve payments into invisible bank accounts, not petty cash into pockets or even suitcases filled with cash sloshing around Delhi.
What we have desperately needed in the situation is modern prime ministerial leadership which could intelligently and boldly guide national debate in the right direction on the whole matter of probity in public life. Why a distinguished parliamentarian like the Speaker has found himself in the limelight is because neither the de jure nor de facto Prime Ministers of India are anywhere to be seen thinking on their feet on these central issues of constitutional procedure and practice. They tend to use prepared scripts and may be temperamentally disinclined to do what has been called for by these unscripted circumstances. (Indeed the much-maligned H. D. Deve Gowda could be alone among the bevy of recent PMs who has been able to think on his feet at all.)
Collapse Before Executive Power
In the meantime, the United States is going through its own Separation of Powers’ crisis. As explained in these columns previously, the American system is distinctly different from the British, and our own system is midway between them. Yet similar principles may be discerned to apply or fail to be applied in all.
Winston Churchill once perspicaciously observed:
“The rigid Constitution of the United States, the gigantic scale and strength of its party machinery, the fixed terms for which public officers and representatives are chosen, invest the President with a greater measure of autocratic power than was possessed before (the First World War) by the Head of any great State. The vast size of the country, the diverse types, interests and environments of its enormous population, the safety-valve function of the legislatures of fifty Sovereign States, make the focussing of national public opinion difficult, and confer upon the Federal Government exceptional independence of it except at fixed election times. Few modern Governments need to concern themselves so little with the opinion of the party they have beaten at the polls; none secures to its supreme executive officer, at once the Sovereign and the Party Leader, such direct personal authority.”
America’s Legislative Branch has, on paper, strong powers of advice and consent to control errors, excesses or abuse of power by the Executive President. But (with rare and courageous exceptions like Sen. Robert C. Byrd of West Virginia) the Legislature cravenly collapsed before the father-son Bush presidencies in regard to the Middle East wars of recent years. America’s once-revered federal judiciary has also tended to lose its independence of mind with overt politicisation of judicial appointments in recent decades.
Bush the First went to war against Saddam Hussein (a former American ally against Islamic Iran) at least partly with an eye to winning re-election in 1992 (which he would have done as a result but for a random shock known as Ross Perot; Bill Clinton became the beneficiary). Bush the Second obsessively wished to follow up on the same, to the point of misjudging the real threat to America from Bin Laden and fabricating a false threat from an emasculated Saddam.
America’s Legislature palpably failed to control her Presidents. Now, late in the day, after all the horses have bolted, the Senate Judiciary Committee began tepid hearings on February 5 2006 into whether the President authorized laws to be broken with impunity in regard to wire-tapping some 5,000 citizens (doubtless mostly non-white and Muslim) without judicial warrants. Republican Senator Arlen Specter, the Committee’s Chairman, has said he believes the Foreign Intelligence Surveillance Act has been “flatly” violated, and “strained and unrealistic” justifications are now being offered. Bush’s men, from his Vice President and Attorney General to political intelligence operatives, have brazenly placed in the dustbin the traditional principle fiat justitia pereat mundus — let justice be done even if the world perishes — saying that the Sovereign can do just as he pleases to save the realm from external enemies as he might perceive and define them to be.
What this kind of collapse in current American practice reveals is a new aspect unknown at the time of Montesquieu’s Spirit of the Laws. In the modern world, Separation of Powers involves not merely constitutional institutions like Executive, Legislature and Judiciary but also the normal civil institutions of a free and open society, especially academic institutions and the press. In America, it has been not merely the Legislature and Judiciary which have tended to collapse before Executive Power in regard to the recent Middle East wars, but the media and academia as well.
“Embedded reporters” and Fox TV set the tone for America’s official thought processes about Iraq and the Muslim world — until it has become too late for America’s mainstream media or academics to recover their own credibility on the subject. On the other hand, unofficial public opinion has, in America’s best traditions, demonstrated using vast numbers of Internet websites and weblogs, a spirited Yankee Doodle individuality against the jingoism and war-mongering of the official polity.
Neither the press nor academia had collapsed the same way during America’s last major foreign wars in Vietnam and Cambodia forty years ago, and it may be fairly said that America’s self-knowledge was rather better then than it is now, except of course there were no Internet websites and weblogs.
Our Pakistani Cousins
Across the border from us, our Pakistani cousins are, from a political and constitutional point of view, cut from the same cloth as ourselves, namely the 1935 Government of India Act, and the Montague-Chelmsford and Morley-Minto reforms earlier. However, ever since Jinnah’s death, they have refused to admit this and instead embarked haplessly on what can only be called an injudicious path of trying to write a Constitution for a new Caliphate. The primary demand of the main scholars influencing this process was “That the sovereignty in Pakistan belongs to God Almighty alone and that the Government of Pakistan shall administer the country as His agent”. By such a view, in the words of Rashid Rida and Maulana Maududi, Islam becomes “the very antithesis of secular Western democracy. The philosophical foundation of Western democracy is the sovereignty of the people. Lawmaking is their prerogative and legislation must correspond to the mood and temper of their opinion… Islam… altogether repudiates the philosophy of popular sovereignty and rears its polity on the foundations of the sovereignty of God and the viceregency (Khilafat) of man.” (Rosenthal, Islam & the Modern National State, Cambridge 1965.) Pakistan’s few modern constitutionalists have been ever since battling impossibly to overcome the ontological error made here of assuming that any mundane government can be in communication with God Almighty. In the meantime, all normal branches of Pakistan’s polity, like the electorate, press, political parties, Legislature and Judiciary, have remained at best in ill-formed inchoate states of being — while the Pakistan Armed Forces stepped in with their own large economic and political interests and agendas to effectively take over the country and the society as a whole, on pretext of protecting Pakistan from India or of gaining J&K for it. Pakistan’s political problems have the ontological error at their root. Pakistan’s political parties, academics and press, have with rare exceptions remained timid in face of the militaristic State — directing their anger and frustration at an easier target instead, namely ourselves in India. The Pakistan Government’s way of silencing its few political, academic or press dissidents has been to send them into comfortable exile abroad.
Sheikh Abdullah Contrasted
Pakistan’s perpetual constitutional confusion deserves to be contrasted with the clarity of Sheikh Mohammad Abdullah’s thinking, e.g. his 5 November 1951 speech to the Constituent Assembly of J&K: “You are the sovereign authority in this State of Jammu & Kashmir; what you decide has the irrevocable force of law. The basic democratic principle of sovereignty of the nation, embodied ably in the American and French Constitutions, is once again given shape in our midst. I shall quote the famous words of Article 3 of the French Constitution of 1791:- ‘The source of all sovereignty resides fundamentally in the nation. Sovereignty is one and indivisible, inalienable and imprescriptable. It belongs to the nation.’ We should be clear about the responsibilities that this power invests us with. In front of us lie decisions of the highest national importance which we shall be called upon to take. Upon the correctness of our decisions depends not only the happiness of our land and people now, but the fate as well of generations to come.”
Contrasting the Pakistani views of constitution-making with those of Sheikh Abdullah may help to explain a great deal about where we are today on the delicate and profound subject of J&K. (See “Solving Kashmir”, The Statesman, December 1—3, 2005)
India’s current debate about Separation of Powers needs to keep at a distance the clear negative examples of our American friends, who have brought upon themselves in recent times a craven collapse of Legislature, Judiciary, press and academia to the Executive President (as Churchill had seemed to predict), as well as of our Pakistani cousins who have continued with general political and civil collapse for half a century. Because our universities are all owned by the State, India’s academics, from Communist to Fascist, have tended to be servile towards it. In respect of the press, the power of independent newspapers has been dwindling, while the new TV anchors have created their own models of obsequiousness and chummery towards New Delhi’s ruling cliques of the day. It thus becomes India’s Supreme Court which remains the ultimate guardian of our Constitution and the safest haven of our very fragile freedoms — besides of course our own minds and hearts.