Habeas Corpus: a captured terrorist mass-murderer tells a magistrate he is not being mistreated by Indian police
December 3, 2008 — drsubrotoroyA youth who had been a petty thief in Multan, was induced by Pakistan’s terrorist masterminds to train to become a mass murderer with an assault rifle and grenades in the Mumbai massacres last week. He was shot and arrested by India’s police and is now in custody. He has already been produced before a magistrate who asked him if he was being mistreated, to which he said he was not. This redounds to India’s credit in view of the vast (and yes, probably racist) mistreatment over years of those held e.g. at Guantanamo Bay. (The argument that the US Constitution and the laws associated with habeas corpus did not apply to the US Government because Guantanamo Bay was not American territory, was always specious.)
Two (and a half) critical reforms for America’s polity (2008)
November 20, 2008 — drsubrotoroyAmerican friends tell me they have liked what I had to say in my November 2006 article “American Democracy”, which may be found elsewhere here. I continue to think the polity of the United States needs long-term reform for the reasons stated in that article.
Surprisingly enough, the critical reforms would be rather simple and two-fold:
(A) Extending the tenure of the House of Representatives to, say, four years.
(B) Separating the Head of State from the Head of Government.
The former cannot be something very hard to accomplish, relatively speaking, though of course it would need amending the Constitution. Its positive result would be to calm political discussion and behaviour, making them less myopic and nerve-racking than at present.
The latter would be more complicated as there are alternatives possible. A French model preserves the political power of the Head of State relative to the Head of Government. Other models, e.g. of Germany or Britain or India, has the Head of State being a mere (but crucial) constitutional figurehead, while the real political business is carried out by the Head of Government.
My own recommendation would be to have an indirectly elected Head of State in the United States (elected, for example, by the House and the Senate as well as the State Legislatures) who maintains the dignity of the nation and the decorum of the office and is above the fray, while the Head of Government is elected directly much like a President is now (except there need be no Veep running-mate).
Indeed the present nomenclature need not be too hard to modify once it is seen possible for a President as Head of State to be elected indirectly and be a constitutional figurehead, while the Vice-President (?)/Prime Minister (?) could be elected as the Head of Government much in the way a current President is. The term in office of the Head of State and that of the Head of Government probably should not coincide.
Politics is a tough and ugly business and it is dismaying (and destructive) to see, under the present American system, every Head of State inevitably dragged through the mud as has happened since the end of the Eisenhower Administration (coinciding too with the rise of the television age).
Subroto Roy
Land, Liberty & Value
December 31, 2006 — drsubrotoroyLAND, LIBERTY & VALUE
Government must act in good faith treating all citizens equally ~ not favouring organised business lobbies and organised labour over an unorganised peasantry
By SUBROTO ROY
First published in The Sunday Statesman Editorial Page Special Article, December 31 2006
EVERY farmer knows that two adjacent plots of land which look identical to the outsider may be very different in character, as different as two siblings of the same family. Adjacent plots may differ in access to groundwater and sunlight, in minerals and salts, in soil, fertilisers, parasites, weeds or a dozen other agronomic factors. Most of all, they will differ in the quality and ingenuity of thought and labour that has gone into their care and cultivation over the years, perhaps over generations.
John Locke said: “Whatsoever that (a man) removes out of the state that Nature hath provided and left it in, he hath mixed his labour with and joined to it something that is his own, and thereby makes it his property… For this labour being the unquestionable property of the labourer, no one but he can have a right to what that once joined to, at least where there is enough and as good left in common for others” (Second Treatise of Government). Plots of land are as specific as the families that have “mixed” their labour with them. Locke wrote of labour being something “unquestionably” the labourer’s own property; in the same libertarian vein, Robert Nozick opened Anarchy, State and Utopia saying “Individuals have rights, and there are things no person or group may do to them (without violating their rights)”.
But as we recognise the universal sanctity of the individual person and his/her private property, we have to start qualifying it. If you purchase a field, forest or estate through which runs a pathway traditionally used by the public to get from one side to the other then even as the new owner you may not have a right to forbid the public’s use of the pathway. By extension, it is clear the State, the community of which you are a citizen, may approach you and demand there should be and will be a public road or thoroughfare through your property in the common interest. Such is the sovereign’s right of “eminent domain” recognised throughout the world, not only in times of war or natural disaster but also in normal times where private property may be taken for public use. The individual’s right to free use of his/her property is circumscribed as a result.
What may be certainly expected though in all matters is that the State will act in good faith, i.e., that it has conducted proper technical surveys and cost-benefit analyses as well as transparent public hearings, and has honestly decided that the road must be constructed using this route and no other. The doctrine of eminent domain implies that while the right to private property may be basic, it is not absolute, as indeed no right is, not even the right to one’s own life. In India, one key difference between the landmark Golaknath (AIR 1967 SC 1643) and Kesavananda Bharati (AIR 1973 SC 1461) rulings had to do precisely with the former recognising the right to property being fundamental as in our original 1950 Constitution, while the latter consented to the Indira Parliament’s denial of this.
When private property is taken, fair compensation must be paid. For example, the American Constitution says “no private property may be taken for public use without just compensation”. What is just compensation? Typically it would be the “fair market value” — but that must be properly adjudged accounting for the best future use of the land, not merely the historical or traditional past use of the land.
Consider, in a mature urban real-estate market, a plot made vacant because a warehouse located on it has accidentally burned down. What is the value of the plot now? Another warehouse could be built, but other bids could come in too for construction of offices or residential flats or a multi-storey garage. The plot’s value would differ depending on which use it is ultimately put to. And this value would be ascertained by calculating the expected cash flows into the future from each of these possibilities, discounted appropriately to account for the fact the future is less valuable than the present, with the highest value alternative being chosen. That is how a mature private real-estate market works in theory, though in practice there would be zoning and environmental restrictions to account for the traditional nature of the neighbourhood as well as possible pollution by effluent waste etc.
In India, Government departments and ministries have inherited prime urban real estate from British times. Amidst the highest value real estate in Kolkata, Bangalore, Delhi etc. will be found a military camp or flats built for military personnel, having nothing whatsoever to do with furtherance of the nation’s defences today. The appalling state of government accounting and audit of our public property and institutions includes the fact that neither the Union nor State Governments and municipalities have the faintest idea of assets, including real estate, that they own. These public assets are frequently open to abuse by managerially uncontrolled government employees.
Fallacies even more curious seem to be currently at work in Indian policy-making, whether by this or that political party. The “eminent domain” doctrine requires a public purpose to exist for acquisition of private property by the State: e.g. construction of a road, bridge, dam, airport or some other traditional public good which is going to be used by the public. In India as elsewhere, “land reform” did involve taking an absentee landlord A’s land and distributing it to B, C, D and E who worked as peasants on it. But nowhere else outside formerly communist China has land been forcibly taken from peasants B, C, D and E and handed over to this or that private capitalist in name of economic development (in a reverse class war)!
Eminent domain doctrine requires good faith on part of the State with respect to its citizens and that implies treating all citizens’ interests equally – not e.g. favouring an organised business lobby or organised industrial labour over the unorganised peasantry uneducated in the wiles of city people.
Also, there is no reason why Government should be interested in a particular product-mix emerging out of a given private factory (such as the so-called inflation-unadjusted “Rs one lakh car” instead of telecom equipment or garments or textiles). Dr Manmohan Singh’s statement last week that he wishes to see “employment-intensive” industries merely added to Government confusion: from Henry Ford to Japanese “lean business” today, everyone knows the direction of change of technology in the automobile industry has been towards robotics, making modern manufacturing less and less manpower-intensive! The Tatas themselves underwent a major downsizing and restructuring in the last decade, hiving off industries not considered part of their “core competence”.
Traditional agriculture of Singur’s sort represents the most labour-intensive employment-generating kind of rural economy. While such rural life may appear unsatisfying to the urban outsider, there is, as Tolstoy, Rabindranath, Gandhi and others knew, subtle happiness, contentment and tranquility there absent in alienated industrial sprawls. “Surplus” labour occurs in agriculture because of technological improvements in quality and delivery of agricultural inputs as well as new education and awareness (Theodore W. Schultz,Transforming Traditional Agriculture). It is mostly seasonal and all hands are used during the harvest when even urban migrants flock back to help. Industry did not leave Bengal in the 1960s and 1970s because of Mamata Banerjee but because of urban unrest, the culture of gheraos and lockouts, and bad regulations of the labour and capital markets associated largely with Ms Banerjee’s Left Front adversaries.
The basic fiction the Union and State Governments have made themselves believe is that their idea of an industrialisation plan is necessary for economic development. It is not. Real economic problems in West Bengal and elsewhere are financial to do with State budgets. “Debt overhang is there” is how the RBI Governor apologetically put it last week. Interest payments on the West Bengal State public debt consume larger and larger fractions of the revenue: these payments were at Rs 13 Bn in 1995 but grew to Rs. 92 Bn by 2004, and may jump to Rs 200 Bn in the next decade. The communists have been in power thirty years and no one but they are responsible. Making the State’s budget healthy would require tackling the gargantuan bureaucracy, slashing ministerial extravagance (foreign trips, VIP security) etc. It is much easier to hobnob with the rich and powerful while tear-gassing the peasants.
Separation of Powers: India, the USA, Pakistan
February 13, 2006 — drsubrotoroySEPARATION OF POWERS (2006)
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.
Communists and Constitutions
January 22, 2006 — drsubrotoroyCOMMUNISTS & CONSTITUTIONS
By SUBROTO ROY
first published in The Sunday Statesman, Editorial Page, Special Article,
January 22, 2006
Constitutions and communists do not go together. The most glaring example comes from Russia — the Motherland not only of modern communism but also of great brave individual souls like Aleksandr Solzhenitsyn and Andrei Sakharov, and the many other men and women who struggled to defeat communism there over seven decades. Before Russia managed to liberate herself from communism — i.e. before the Communist Party of the Soviet Union began under Mikhail Gorbachev and Boris Yeltsin to liberate itself from itself in the late 1980s — the only genuine elections that ever occurred in the country were to the Constituent Assembly of November 1917.
That Constituent Assembly was a multiparty legislative body and it happened to have a large anti-Bolshevik majority. It met only once in January 1918 and was destroyed under Lenin immediately because it quite naturally refused to adopt Bolshevik proposals. Under the Czar, the “Constitutional Democratic Party” (the “Cadets”), formed in 1905, “constituted the most dangerous ranks of revolution”. Under the government of the proletariat, the very same Cadet Party represented “the most dangerous ranks of reaction” (Solzhenitsyn). Constitutionalists inevitably end up battling both the Fascists of the Right and the Communists of the Left. As Hannah Arendt made clear, the organisation of totalitarian governments whether of Hitler’s Germany or Stalin’s USSR or Mao’s China were remarkably similar in nature. Upon seizing power in November 1917, Russia’s Bolsheviks attacked the constitutionalists first, outlawing the Cadet Party and arresting its members, and doing the same to students, workers and soldiers associated with the “Alliance for the Constituent Assembly”.
This is not a coincidence. Communists and fascists are powered by instincts of grabbing State political power for themselves any which way they can, in order to impose by brute force on everyone else the rather shoddy obsolete ideologies they subscribe to themselves. Karl Marx himself most famously said the words “I am not a Marxist”. Communists and fascists cannot stand the idea of the anonymous individual citizen standing up on his or her own; their instinct is one which cannot attribute credit to the individual person for any good that may be done, instead purloining it into a fake “collective” effort. Similarly, errors cannot be simply acknowledged, and instead responsibility is diffused all around until nobody remembers who said or did what or when, and all history becomes a jumble.
Every great scientific and artistic achievement has been an expression of individual genius, often against the reactionary collective will. And constitutions from Magna Carta onwards have been built on the idea of protecting the anonymous, powerless individual citizen against the violent arbitrary power of the established State and its comprador organisations. Britain and America may have contributed their share of evil to world history but they have made up for at least some of it by pioneering Anglo-Saxon constitutional jurisprudence. It may be no coincidence Britain and America have been home to the greatest outpourings of human creativity and invention in modern times, from the steam engine to the Internet.
In fact it has been a singularly American contribution to pioneer the very idea that parliamentary majorities themselves need to be restrained from their own baser proclivities. In 1767, before America had herself become free from British rule, the British Parliament once issued a declaration that a parliamentary majority could pass any law it saw fit. It was greeted with an outcry of horror in Britain’s American colonies. Patrick Henry of Virginia — later famous for his cry “Give me Liberty or give me Death” — led the battle for the anonymous free individual citizen against the arbitrary power that comes to be represented by the herd or mob instincts even of elected parliamentary majorities. Constitutions are written to protect parliaments and peoples from themselves.
The philosopher John Wisdom, who translated the subtle work of Wittgenstein and Freud into normal idioms, once said: “Sometimes a society acts as if all power lay in the hands of the most babyish and animal members, and sometimes as if all power lay in the hands of strict old men, and sometimes it acts more as a whole — mostly when there’s a war on. Sometimes a man is not himself and acts as if a babyish or cunning animal had gained control — that’s the id — sometimes as if an exacting parent, a sarcastic schoolmaster, or an implacable deity possessed him — that’s the super-ego. Sometimes a man is more himself and acts more as a whole, a new whole which is not a combination but a synthesis of the id and the super-ego. Some are constantly at the mercy of the id, some are slaves to the super-ego, and in some first one and then the other gains an unhappy victory in a continual struggle, and in some conflict and control have vanished into cooperation…”
Similarly, we may say that political processes in any country appear to often give play to the most “babyish” and “cunning animal” instincts of the society, while at other times the “strict old men” or “exacting parent” take over. The constant struggle of political reasonableness is to find the rational, normal national self that rests in between.
India at present has been set upon an unproductive and pointless course of inevitable Constitutional collision between Parliament and the Supreme Court. That course has been singly set by the present Speaker even though every attempt is being made now to diffuse his responsibility for the situation that has arisen, so that soon nobody will be able to remember exactly what happened or why. The incumbent Speaker, instead of being wholly self-effacing as called for by the job-requirements of the high and grave office he holds, has remained too much of a normal parliamentary advocate. Before grave irreparable damage comes to be done to India’s Parliamentary and Constitutional traditions, he needs to return at once to the Front Benches of the Communist Party of India (Marxist) as a distinguished senior Member of the House, and from there make whatever arguments he wishes about Parliament’s rights under the Constitution. The high self-effacing office of the Speaker is not from where such arguments as he has been making should be made — unless India’s Parliament and Constitution are soon to be thrown into the dustbin for ever (as has similarly happened for half a century across the border with our Pakistani cousins).
The incumbent Speaker is right that the Supreme Court does not oversee Parliament. The Supreme Court oversees something greater than Parliament, namely, India’s Constitution. Parliament, its Speaker, its Prime Minister, the President of India, and the Supreme Court itself are all creatures of the Constitution. However, the Constitution of India that was adopted on 26 January 1950 is not sui generis a creature of itself. It is the outcome of a clear and well-known constitutional history which has among its modern milestones the Government of India Act of 1935, and thence all the ancient milestones of Anglo-American constitutional jurisprudence going back to Magna Carta. And India’s Supreme Court — sitting not in any of its normal division benches but as a Constitutional Bench — does indeed have jurisdiction, indeed it has sole jurisdiction, over whether India’s Constitution is being made to suffer crimes or misdemeanours at the hands of India’s Government or Parliament of the day. For the Speaker to decline to receive a notice from the High Court is an irrelevancy; many people who are served notices ignore them; it does not reduce jurisdiction by an iota. An “All-Party” meeting of MPs can rail all it wants against the Supreme Court — even the whole of the present Parliament can pass as many unanimous resolutions as they want against the Supreme Court. They will only make themselves look silly and petulant in the eyes of history. As for the BJP Opposition in particular, the present situation may make it perfectly clear that there is not among them a single, principled, liberal constitutionalist hidden in their proto-fascistic ranks.
Unaccountable Delhi: India’s Separation of Powers’ Doctrine
January 13, 2006 — drsubrotoroyUNACCOUNTABLE 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
October 20, 2005 — drsubrotoroyAFTER THE VERDICT
by
Subroto Roy
First published The Statesman, 20 October 2005, Editorial Page Special Article
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.
Independent Indian: Work & Life of Professor Subroto Roy 