India's Constitution and politics

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INDIA'S CONS'ITl'UTION

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POLmcs

INDIA'S CONSTITUTION AND

POLITICS •

1)) A.

✓ p ~) '., RANI

1970 JAIOO PUBLISHING HOUSB Bombay

© A. G.

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NOORANI, 1970

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India's Constitution and Politics

Pint Jaico Impression, 1970

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Printed in India by : Rusi Khambatta : R.M.D.C. Press Pvt. Ltd., i 70/71, Worli Estate, Worli, Bombay - 18. ·

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Published in India by Jaman H. Shah · Jaico Publishing House 12S Mahatma Gandhi Road ' Bombay-I. 1

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J. NATARAJAN, EaqM

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INTRODUCTION Oiange is the new vogue word in the liturgy of Indian political practice. It is an attractive word in the Indian context. For much of India life still responds to ossified concepts of social and economic organization which have little relation to the challenges of the maturing decades of the 20th century. Change we certainly have got in plenty, especially in the last twelve-month period. But the claim by some political parties that we are in the middle of a transformation which will modernise life by bringing new social values into play is the result of an over-heated imagination. Outside the professional political arena nobody believes that anything of the kind is happening, and what some of us mistook in the hectic days of bank nationalisation as the exhilaration of the masses at the dawn of a mighty upsurg~.._of new life is now revealed as the cynical manipulation by a political machine of the awakened hopes and expectations of the common man. From then on we have been through a bewildering succession of exercises in the power game, each more morally insensible than the last. Defections and the toppling of governments in the States have been brought about with the brazen use of all manner of inducements and, where they do not work, of threats. We have seen the steady running down of the administrative apparatus, a consciously cultivated permissiveness on the question of the maintenance of law and order and, in the case of West Bengal, the deliberate neglect by the Centre of its constitutional obligations. We are getting used to the open expression of resentment by those in authority at the independence of the judiciary. We have seen the fragmentation of the party system and the negation of the normal standards of loyalty has become the test of radical thinking. Opportunism masquerades as a call to conscience. All this adds up to a debasement of the operative standards of political morality to a point where it constitutes a dire threat to the survival of democracy. Indian democracy is a frail plant. It cannot be otherwise in a country in which the great majority of the population is

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steeped in poverty and ignorance. Democracy is a system based on participation and poverty and ignorance set obvious limits to the quality and extent of participation. Some kinds , of participation of the agitational kind we do have and we :are getting more and more of it such as attendance at political meetings and demonstrations. But this is exactly the type of 1nterest which is the most exploitable by the power cliques. There is no use denying that such activity is also in part genuinely expressive of real grievances. The only point I concerned to make here is that agitation is becoming an end

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system, of enlarging the awareness of the community to its · rights and obligations, an awareness which in tum would en• sure that the exercise of the power of the State and its functionaries accepts the checks and balances which are a necessary safeguard against arbitrariness in a democratic polity. Judged from such standards we are very far away from a functioning democracy. Worse still, there seems to be a growing tendency, even. among the parties which profess to be democratic, to misrepresent the restraints on arbitrariness that democracy imposes as brakes on achievable progress. No doubt, this is in great part a reaction to the continued failure to deliver results because of inherent mismanagement. There is a twin danger here.. The present disparities in economic and social conditions must be removed and seen to be removed for democracy to have any future in India. But regardless of the fact that no political system can -contain in-built guarantees of progress no matter how inefficiently it is worked, the search for excuses for the retention of power in the teeth of squalid performance, must in the end result in a proneness to bypass the rules of the democratic game till the concept of democracy becomes meaningless and not worth preserving. This has happened in similar circumstances in Burma, Indonesia and Ghana. We are at the beginning, some will say in the middle, of a similar phase in India. I have already referred to the impatience that has been voiced with the restraining power of the judiciary. Far more ardent has been the pursuit to dismantle other foci of power outside the State apparatus such as the economic power represented by private enterprise

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INTRODUCltON

and here and · there the power to communicate rival ideas represented by the press is coming under attack. Fortunately, I can now see some signs of the process being arrested. Any ruling party was bound to come up sooner rather than later against the contradictions of foil owing a course of political decision-making based on competitive bidding for populist support. The ruling party has suffered some setbacks which appears to be causing some rethinking. But to imagine that the phase is over and done with would be grossly complacent. The situation will demand continued vigilance of everywhere; from politicians and journalists certainly but even more from intellectuals who, standing above the contentions of the moment, can take the longer view. And it is here that we must bemoan that there are ,so few from among those many to whom the values of a free and open - society matter who are prepared to stand up and man the watch-towers of democracy. Of these few, Noorani has through the years made an outstanding contribution. I find myself agreeing with him most of the time. But it is not necessary to agree with Noorani to recognize in him the authentic voice of committed liberalism. The range of Noora_ni's interests is astounding and reading again some of his writings in the collected form in which they are now being presented, I hope to a much wider audience, I am struck by the breadth of his vision and his essential sanity more. forcibly than when I oame upon- them as they appeared at intervals in newspapers and journals. Consider, for instance, his many discussions on the Constitution., There have been more learned writings on the Constitution but none so far removed from the approach of the pettifogging lawyer or the arid scholar. The examination of 1 each issue is by a mind 'steeped the higher criteria of the place of law and its philosophy in the organization of a free • society. I have already bemoaned the dearth of Nooranis in our midst, but what sets him apart even in this small company is that he is a Muslim who refuses to accept that his religious status qualifies or limits his horizons as a citizen of a secular democracy. That does not mean that he has shirked from the issues that concern the Muslim community. He has deplored the communal virus and its violent explosions and the

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prevalence of a climate in several parts of the country that has brought about the phenomenon of withdrawal. But he ·has done this from the enlightened standpoint that the perpetuation of conditions which prevent the Muslim community from pulling its weight as full citizens must lead to an impairment of the national purpose and of the quality and sub.stance of the effort in search of progress and renewal. I choose two passages from much Noorani has written on the subject which reflect his approach eloquently: · ''To deny discrimination and pretend all is. well is to fly in the face of facts. But agitation against discrimination arouses the very emotions that foster discrimination. The solution of the Muslim problem lies in a resolution of this dilemma by devising a form and a context of agitation which heals old wounds and inflicts no new ones, This resolution can be achieved by regarding discrimination as what it is: a problem of Indian democracy to be resolved within the framework of national integration.." Or again, ''For the Muslims to play a role in the national life no more than that of passive spectators, fairly dealt with• .is to betray their own heritage and this country's future. What is. demanded of them is not passivity but involvement. not detachment but commitment._ Here indeed is the challenge, the challenge of a novel experiment whose success alone will finally. eradicate the scars of the past. An India democratic. and seoolar is more than a country worth living in. It is a country worth living for." ., ":;, ·· Commitment and involvement. In Noorani's view there can be ~o integrated approach to politics without them. In his sturdy liberalism there is room for · non-conformism but no room for the permissiveness that passes for tolrrance. For tolerance, he reminds , us, ''is a virtue only if 1t · is. a function of judgment. It is no virtue _when it becomes a substitute for judgment'' There I shall leave Noorani to speak for himself. J

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May 5, 1970 New Delhi

S. Mulgaokar

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PREFACE Thea are some of the articles on aspects of India's Constitution and Politics which I have written over the last nine years~ A companion volume contains articles on India's foreign policy.

They are reprinted in book fo1m in the hope that students of current affairs might find them interesting and some of the material I have drawn upon helpful. Nothing has been added to them but a very few cuts have been made to avoid repetition and to excise the acerbities of current

controversies. Writing has given me great pleasure and an enormous sense of satisfaction. I should like to place on record here my gratitude to those who encouraged me to write. To Mr. J. Natarajan who, in the absence of the Cbief, accepted my first article, 'National Unity', and to the Editor-in-Otief himseH, Mr. Frank Moraes, who has all these nine years generously extended to me the hospitality of the columns of The Indian Express. But for his understanding and encouragement, my career in journalism, brief as it is, should have ended years ago. Opinion was the first periodical to which I later began regularly to contribute, The many articles reprinted here from that fine weekly show how much I owe its editor, Mr. A. D. Gorwala. Weekend Review had a brief but brilliant existence from December 1966 to July 1968. I wrote regularly for it as law correspondent and prize the experience. Its Editor, Mr. S. Mulgaokar, has laid me in still greater debt by contributing to this volume an Introduction in his own inimitable style. Finally, I should like to thank th~e friends as editors of their respective journals for their kind permission to reprint these articles. My thanks are, likewise, due to Mr. Khushwant Singh, Editor, The lll,,strated Weekly of India; Mr. D. F. Karaka, Editor, Current; Mr. V. B. Karnik, Editor, Freedom First, the Institute of Constitutional and Parliamentary Studies, New Delhi and Mr. V. V. John, Editor, Quest. I have separately, at the foot of each article, acknowledged the source and the date of publication: Bombay• Sept. 16, 1970 A. G. Noorani

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CONTENTS· Page

Introduction by S. Mulgaokar Preface

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Cltapter I 'IHE EXECUTIVE

The President .. .. .. ' The Governor .. .. .. The Selection of the· Prime ·Minister The Dismissal of a Ministry Dissolution of ·the Legislatur~ . ~ . The Right to Summon the, ~gislature The.Cabinet System . . . . .. .. The Cabinet and its Bead . . .. President's Rule in the States .. The Presidential Systein . ~ . . . ·' ,Qapter II 1

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TIIE LEGISLATURE

The Crisis of Parliament . . .. • • . Parliamentary Privilege~ . . ... .. The Speaker . . .. , .. .. • • · Cliecks ori Delegated Legislation .. • • Adjournment Motions . . . .. • • The Independence of the M.P. . . • • Chapter Ill 'l'HE JUDICIARY Disturbing Trends in . the Judiciarv • • Retired Judges .. .. .: • • The Fortas Affair . . .. .. • • ► Judges and Political Inquiries .. • • Judges and Politicians .. .. • • .

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Chapter IV

TIIE ADMINISTRATION The Attorney-General •• •• •• .The Auditor-General • • • • • •

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Ministers and Ovil Servants .. .. The Soviet Procurator .. .. .. The Ombudsman . . .. .. .. The Otiun's Grievances . . •. .. Mode of Inquiry into Public Scandals . . Corruption Inquiries .. .. .. Inquiries into Police Fuings .. .. The NEFA Debacle Inquiry .. .. The Suprcmd Court & Sardar Kairon . . Mr. Nehru & Sardar Kairon .. .. The Patoaik-Mitra Mair . . .. .. Mr. Krishna Menon and the Jeep Scaodel The Commissions of Inquiry Act, 1952 . . The Duty to Tell . . .. .. .. The Legal Accountability of Public Servants The Accountability of Public Servants . . The Director of Prosecutions .. .. O>mmunists in Public •Service . . ..

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Otapter V THE Cl'l'IZEN'S RIOH'IS Fundamental Rights and Public Opinion .. .. Mr. Nath Pai's Bill . . .. .. .. .. .. Censorship of FIims and Plays . • .. .. .. Imposition of Government Approved Films . . .. Censorship by the Customs .. .. .. .. Preu Control and the Constitution .. .. .. The Press and National Security . . .. .. .. Freedom of Expression in Maps . . .. .. .. Free Speech and Friendly Relations .. .. .. Dissent and Foreign Policy: The Unlawful Activities Bill: Will the Heretic be Burned? . . .. •• Dissent and Foreign Policy: The Unlawful Activities Act, 1967: Will the Heretic be Spared? .. .. Preventive Detention .. .. .. .. .. A Ovil Liberties Watchdog .. .. .. .. Tele_ehone Tapping . . .. .. .. .. .. The Bandhs and the Law . . .. .. .. ..

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The Emergency and Liberty The Emergency .. ..

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Page Princely Privileges . . Privy Pu:-ses .. Princes and Succession Fundarne3taJ Rights and

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National Unity .. .. .. .. • • Inter-State Disputes . . .. .. .. • • Inter-State Disputes and Linguistic· Minorities ..

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.. Maharashtra-Mysore Border Disputo The Mahajan Report . . . .. The Seoas and the Constitution . . ' The Union and the States . . ..

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Oiapter VII 'I'HB INDIAN MUSLIMS

The Position of Muslims· in: India . . The Grievances of Indian Muslims . Urdu

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The Aligarh Muslin;i . University . . . _. Seca1laris,11 and Muslim Personal Law .. Riots •• Y. • •• •• How a Riot &gins and Spreads ., • .. The Ranchi Riots Inquiry Report .. The Communists and Muslims . . .. The Communists, Jan Sangh and Muslims Oiapter VIII I

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POLITICAL PAR-·1·I---es

The Necessity of Politics The Party or Government?

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The Politics of Violence . . .. .. .. I)efections . . .. .. .. .. .. Two Party Merger, and National Government .. The Democratic Alternative •: .. .. The Communists and Coalition . . .. .. The Communists and the Constitution . . .. Gandhiji and the Communists . . .. .. A Peep into the Communist Mind .. .. ;Mrs. Gandhi and the Communists .. .. The Finances of Political Parties . . .. .. Fund Collecting .. .. . .. .. . . ·: · Selecting Candidates for Elections .. .. -Otoosing A Party I ieader · I · ·~. .. .. Otoosing A Party Leader II .. .. .. How the Conservative Party Elects its Leader .. The Communists, Krishna Menon and the Border Question .. i •• . . • • . . Mr. Menon and the Cotigress . . .. .. •

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Chapter IX INDIA AND Ol'HER STATES

India and the Right of Asylum •. •. • • • • Foreign Interference • • • • •• •• Oiapter X THE PROBJ,EM AREAS . Kashmir and the Constitution • • • • •• Ceuion of Territory and ·the Constitution • • Nagaland • • • • • • • • • • • • • ·Otapter XI 'l'HE CRISIS -OF INTEGRATION •

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The National Integration Council .. The Jan Sangh's Indianisation .. The Famous 23 Riots .. ..

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APPENDIX Withdrawal of Prosecutions

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'IHE PRESIDENT Probably no other office under the Constitution has aroused so much interest and conce.tn as that of the President. ID different ways its first two incumbents have done a lot to eos•1re this. Addreuing the Indian Law Institute on November 28, 1960. Dr. Rajendra Prasad had said: ''There is no provision in the Constitution which in so many words lays down that the Pr~dent shall be bound to act in accordance with the advice of his ministers.'' He criticised attempts ''to invoke and incorporate into our written Constitution by interpretation the conventions of the British Constitution. which is an unwritten Constitution. ''1 Dr. Radhakrishnan. while less anxious, apparently. to claim larger powers than commonly allowed to the Indian President, has time and again censurf:-d publicly the Government of the day. ''Our credulity and negligence are responsible for our reverses.'' he said.,' The· now famous ~ye-of-Republic Day 1967 broadcast was delivered in tera11s which a leader of an Opposition party would not have disowned.. , . Hin the days of the Congress Party's dominance many looked to him as the saviour from the tyranny of. the brute majority. in the wake of the party's debacle at the hustings the President is regarded as the great coping stone in the arch of the Union. The politicians, however, would be doing an enorm\lus disservice were they to approach the pi;oblem in a partisan spirit. The controversial constitutional provisions had best be quoted at the outset. After establishing the offi(:e (Art. 52). the Constitution says (Art, 53) that ''The executive power of the Union shall be vested in the President and shall be exercised by ·him either directly or through officers subordinate to him in accordance with the Constitution.'' He is to be elected by l

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----------------------For text vidt Indian Constitutional Documents vol. I Pilgrimage 1

to Freedom by K. M. Munshi, Bharatiya Vidya Bhavan p. S97. 1

At Te-zpm- on Nov. 8, 1962

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an electoral college consisting of the elected members of the Lok Sabha and the State Assemblies. Art. 74(1) is crucial: ''There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President in the exercise of his functions .." These provisions have to be read in the light of the debates in the Constituent Assembly for they reveal unmistakably the intention of the Constitution framers. The Presidential form of Government was expressly rejected from the very start. A joint meeting of the Union and the Provincial Constitution Committee held on June 7, 1947. opted, in Sardar Patel's words, for ''the parliamentary system of Constitution, the British type of Constitution.'' Sir B. N. Rau's suggestion that the President should have powers·· to exercise in his discretion was rejected.' Moving for the consideration of the Report of the Committee on the principles of the Union Constitution Mr.. Nehru said (July 21, 1947): ''Many members possibly at first sight might object to this indirect election and may prefer an election by adult suffrage. We have given anlious thought to this matter and we came to the very definite conclusion that it would not be desirable, first because we want to emphasise the ministerial character of the Govern.Dient, that pow~ really resided in the Ministry and in the Legislature and not · in the President as such. At the same time we did not want. to make the President just a mere figure-head -like the French President. We did not give him any rea1··power but we have made his position · one of great authority and dignity. You will notice that he is ·also to be the Contniander-in-Chief · of the , Def~nce 'Forces just as-,the American President is."' , On the basis of the principles adopted by the Constituent Assembly a Draft Constitution was prepared liy its Drafting Committee. Dn 1 B. R: Ambedkar, the Committee's Chairman. introduced the ·Draft in the Assembly on November, 4, 1948. He said that ''under the Draft Constitution the President occu.. pies the same position as the King under the English Constitution. He is the head of the State but not of the Executive_ '

• India's Constitution in the Makina by B. N. Rao Bdited by 8. Shiva Rao · • C.A.D. (Constituent Assembly Debates) vol. IV P. 734

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He represents the Nation but does not rule the Nation .....• (He) will be generally bound by the advice of his Ministers. He can do nothing contrary to their advice nor can he do anything without their advice.,,. Later (December 10, 1948) the article establishing the office jtself came up for disc11ssion .. Replying on behalf of the Draft. ing Committee. Dr. Ambedkar said that the Committee bad ''followed the proposals set out'' in the report of the Union Constitution Committee. ''The report of that Committee says that while the President is to be the head of he executive. he is to be guided by a Council of Ministers whose advice, shall be binding upon him in all actions that he is supposed to take under the power given to him by the Constitution.'". When the article dealing with the mode of election was being · debated Dr. Ambedkar repeated (December 13, 1948) Mr. Nehru's arguments quoted above. It is important to note that a specific amendment was moved by a mernher, Mr. :T ahir, which sought to lay down that the President shall not be bound to accept the Cabinet's~·.advico wbere he has discretionary powers to perfc,rm, and tbe amendment was rejected by the Constituent Assembly. It was on this occasion (December 30, 1948) that ·0r. B. R. Ambedkar said that ''there is no case which can arise where the President would be called upon to discharge his functions without the advice of the Prime Minister or his Cabinet.'' He added. however, that ''under a parliamentary system of. Government, there are only two prerogatives which the King or the Head of the State may exercise. One is the appointment of the Prime Minister and the other is the dissolution of Parlia-

ment.'" All this notwithstanding, the Assembly's President, Dr. Rajendra Prasad, felt (May 23, 1949) that Article 61(1) of the Draft Constitution (the present Article 74(1)) ''does not lay down that the President is bound to accept the advice'' and asked, ''Is there any real difficulty in providing somewhere that the President will be bound by the advice of the Ministers?'' Dr. Ambedkar referred him to para 3 of the Instrument • C.A.D. Vol. VIl p. 32 • C.A.D. Vol. VII p. 974 ' C.AD. Vol. VII p. 1158

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of . Instructions which provided that the President shall ''be guided'' by the Cabinet's advice. He also stressed that ''Article 61 follows almost literally yarious other constitutions and the Presidents have always understood that the language means that they must accept the advice.'' This exchange, be it noted. took place when the Assembly was discussing the President's power to promulgate an ordinance.• Eventually, no Instrument of Instructions was incorporated in the draft ~Cohstitution. Mr. H. V. Karnath reverted to this (October 14, 1949) and reminded Dr. Prasad about his doubts. He bluntly asked Dr. Ambedkar. ''If : in any particular case the President does not act upon. the advice of his Council of Ministers, will that be tantamount -to a violation of the Constitution and will he be liable to impeachment?'·' · ·''There is . not the slightest doubt about it'' was the categorical reply.' Sir Alladi KrisJinaswamy Ayyar, another ·member of the Drafting Committee too, thought ''that the point as to the necessity of provision is entirely ·without substance.'' Article 61 was ''merely a euphemistic way of saying that -the President shall be guided by the advice of his Ministers in the exercise of I his functions.'' When the Constitution was finalised, Dr. Prasad said (November 26, ~1949) ''We have had t~ reconcile the position of an elected ·President with an elected Legislature and, in doing so, we have adopted more or less the position of the British Monarch for. the President. ''This may or may not be satisfactory. Some people ·t hink too much power has been given to the President; others thinlc that the President, being an elected President, should have even more powers than are given to him .... But although the President is elected by the same electorate as the Central and State Legislatures, it is as well that his position is that of a Constitutional President ... although there are no specific provisions, so far as I know, in the Constitution itself making it binding on the President to accept the advice of his ministers, it is hoped that the convention under which in England the King acts always on the advice of his ministers will be established in this country also and the President. • C.A.D. Vol. VIll p. 216 • C.A.D. Vol. X p. 269

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not so much on aa:ount of the written word in the Constitution, but as the result of this very healthy convention, will · become a Constitutional President in all matters.,,. So much for the debates. Dr. Rajendra Prasad, as the first President of the Indian Union, lost little time in raising the question of his powers. We owe a great debt to Mr. Granville Austin for throwing much new light on the whole problem in his recent and important work ''The Indian Constitution'' (Oxford University Press.) Mr. Austin has not only delved deep into the Assembly's debates but has had the advantage of access to valuable ·papers hitherto unpublished. He reveals, ''Ptesident Rajendra Prasad on several occasions attributed to his office enormously greater powers than' those given by the Constitution. Had his first attempt to ignore conventional restrictions and to act the part of his own Prime Minister not been foiled, parliamentary government in India would have disappeared before it was two years old. On September 18 1951, Dr. Prasad ·sent a note to Mr.. Nehru in which he expressed ... the desire to act solely on his own judg1neot, independently·· of the Council of Ministers, when giving assent to Bills, when sending messages to. Parliament, and when returning Bills to Parliament for reconsideration. This was a flagrant attack on the conventions of Cabinet Government, and there can be little doubt that .it was inspired by the Hindu Code Bill which had just been introduced in the Provisional Parliament.'' Mr. Nehru referred the President's letter to Mr. Alladi Krishnaswamy Ayyar and to the Attorney-General. Mr. M. C. Setalvad, for opinion. Mr. Setalvad's opinion (September 24, 1951) was that ''By Article 74(1) the President is required to act in all matters with the aid and advice of his Council of Ministers.'' Mr. Alladi Krishnaswamy Ayyar wrote (September 20, 1951) that it was ''perfectly clear'' that our President's posi• tioo was analogous to that of a Constitutional monarch in England ... and there is no sphere of his functions in respect of which he can act without reference to the advice of his Ministers.'' In another letter (October 8, 1951) Sir Alladi M

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observed · that the Piesident's arguments if conceded 'will upset the whole constitutional structure envisaged at the time when the Constitution was passed (and will) make the President a kind of dictator .... '' Dr. Prasad, Sir Alladi added. ''seems to read every Article of the Constitution in which the expression 'President' occurs as conferring powers upon the President in his personal capacity without reference to the Cabinet.'' But, Article 74 was ''all pervasive'' and it would be ''constitutionally improper for the President not to seek or not to be guided by the advice of his Ministers.'' Dr. Prasad's demarche thus helped clarify the position once and for all, though with results he could hardly have liked. As Mr. Austin notes in his book, Dr. Radhakrishnan did not 11 adopt his predecessor's stand. Respected as the clear intent of the Constitution's framers has been in its practice, it has also received the imprimature of judicial verdict. The Supreme Court has observed, ''The executive power of the Union is vested in the President but under Article 75 there is to be a Council of Ministers with the Prime Minister at the head to aid advise the President in the exercise of his functions. The President has thus been made a f onnal or constitutional head of the executive and the real executive powers are vested in the Ministers or the Cabinet..''11 · · However, precisely because the President of India is a ''constitutional head,'' devoid of · ''real executive powers," unlike the American President, is it important that he should be above party strife. The American President, though the leader of the nation, is necessarily the leader of a political party and the advocate of a party programme. The Constituent Assembly debates clearly show that the Indian President was intended to act impartially and in a nonparty spirit. Mr. Nehru said (July 21, 1947) that the reason why the President's election by Parliament alone was not adopted was that the ruling party ''will tend to choose a per•

and

11

The text of Documents referred to have since been published in I~dian Constitutional Documents Vol. I pp. 568-597. 12 Rai Saheb Ram Jamaya, Kapur vs. State of Punjab (1955) 2. Supreme Court Reports 225, 236-7

nm

1

PRBSwgNT

son of their own party. He will then be even more a d11mmy than otherwise..'' Three days later, Mr. Nehru refe11ed to the ''amendment moved in regard to the President not being a party man.'' In his own inimitable style, he said, ''Now, I don't know. but certainly I have a certain sneaking sympathy with such a proposition. But in spite of that, it seems to be completely impractical. What is a party man? .... Everybody is associated, I am afraid, with some group or association. .T he point is that the elected President should not function as a party man after he is elected. That, on the whole is so. I am not myseH clear in my own mind as to what his relation to the party he belongs to should be after his election. However, the question does not arise. But in any event, he should function as anyone should function, whether he is a party man or not, completely impartially when he is :in high office.11 The amendment was negatived, but the prineiple of the Pr~ident's detachment from party after his election as such was clearly laid down. This is most important, for, as Dr. Ambedkar str~, a constitutional head has, like the British Crown, two very important prerogatives-the dissolutioq of Parliament and the selection of the Prime Minister. Neither of these can he exercised in his ·u nfettered discretion. Authorities are divided on whether the Crown can refuse •to accept the Prime Miowter'• advice to d~olve . Parliam~t. _Tb~ bette, view is thu while the power to do so ·exists, it will be cxacised ''only in exceptiona I circumstances..'·' . ,. • In regard to the appointment of the ·Prime Minister, an authority on constitutional law ·p oints out, ''rhe, di~etion of the Crown is now, owing· to the growth of party ties, nominal in cases. In most cases the King's choice of Premier is not a real one, but whe,;e the party with a JD4Jority in tho House of Commons is not agreed on its leader, or where no party has a clear majority or where a coalition is 'in the air.' the King's choice might still be decisive.'' Mr. Neville Maxwell is, therefore, right when he argues, "If the majority party's factions became so sharply opposed !

'

• C.A.D. Vol. 4 pp. 863-4

•

.

_,

8

INDIA'S CONSltlU'DION AND POLITICS

and evenly balanced that no stable leadership could emerge the President's preference could be a decisive factor.'' A Prime Minister, thus elected, may ''be dependent upon the continued approval of the Piesident.'' In such a situation, the President might even rule through a pliable Prime Minister. But directly he cannot. The constitution makes the Prime Minister the governing leader of the Indian polity. When the Prime Minister fails to live up to his job, it is perhaps tempting to look to the President to fill the void. In such a situation, a wise President will exert just enough influence to see that the political system works until another Prime Minister comes along. But when he usurps the functions of the Prime Minister and descends in the arena of the political battle and succ.eeds, he signifies yclearly that the system has collapsed. Mr. :M axwell, makes much too -much of the fact that the President is the Supreme Commander of the ar1ned forces. ''In a situation in which the Army was exercising more and more civil authority, helping to put down violence and perhaps distribute food in famine-stricken areas, that role could augment his significance. It could point to his becoming either the actual source of political authority, or a figure-head for a group composed possibly of army officers and a few politi·cians..'' •-Th~re is no warrant for such a role by the President in the Constitution. Even as Article 53(1) vests the Union's executive gower in the President and provides for its exercise, ,..in accordance wi~ this Constitution, sub-clause (2) of the same :. ,Article confers· Qn him the supreme command of the Defence Forces and lays down that ''the exercise thereof shall be regulated by law.'' it is no• more than an adjunct to his office as President and subject to all the limitations that bind him in ·the· _primary role as the head pf State. · But for all the restraints that bind him the President can yet play a vital role. The Constitution ensures that he is not ignored. Article 78 obligates the Prime Minister himself to communicate to the President all Qibinet decisions and proposals for legislation·, furnish him with such infor1nation relating to the affairs of State ''as the President may call for.'' and ''if the President so requires, to submit for the consideration of the Council of Ministers any matter on which a deci-

nm

PRESIDENT

'

• sion has been taken by a Minister but which has not been considered by the Council.''

The opportunities available to a shrewd President, aware of the currents and cross-currents in the Cabinet, are considerable. Moreover, a Constitution is a living organism. It grows. A President assured enough to accept the restraints and astute enough to wield the powers, properly his, will find little cause for frustration. He will realise the truth of Bagehot's famous words: ''The Sovereign has, under a COD• stitutional monarchy, such as ours, three rights-the right to be consulted, the right to encourage, the right to warn. And a king of great sense and sagacity would want no others.,,,. In course of time, the President, and the others with him, will discover the effectiveness of limited powers, bow even so elaborate a doc11ment as our Constitution can yet grow. But that will be the growth of the office within the political system. Rather. the growth of the system itself. It will not be its subversion. The Indian Expr~ March 20 & 21, 1967

tt

The English Constitution; Collins, The Fontana Library 1693; p. 1t·t

• 'IHB GOVERNOR The recent conference of State Governors was in more ways than one a conclave of reaJ importance. It was held in the wake of the debate over the powers and functions of the Governors and was the first such conference: aince the General Election which brought non-Congress governments in a good many States. Prime Minister Indira Gandhi struck the right note when she spoke of ''a more vigorous practising federalism with multiple parties and coalitions in power.'' Truly, ''what we do and do not do now will shape events and establish conventions and precedents that will influence the future.'' The conduct of the Governor of Rajasthan soon after the elections, the role of the Governor of West Bengal in the present crisis and the controversy over the appointment of Mr. Kanungo as Governor of Bihar will all serve as a precedent or a warning for the future, as the case may be. It is of the utmost importance, therefore, that the role of the Governor in the Indian polity be correctly appreciated. The relevant constitutional provisions are few and simple. They imply more than they tell. There shall be a Governor for each State and (Art. 154) ''the executive power of the State shall be vested in the Governor and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution.'' He is, thus, the Head of the State, but is appointed by the President and holds office ''during the pleasure of the President.'' It is this ambivalence, as we shall see, which introduces complications, complications inescapable in a quasi-federal system. That the Governor is but a constitutional Head of State is emphasised by Article 163 (1). ''There shall be a Council of Ministers with the Chief Minister at the bead to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion.''

TIIE GOVERNOR

II

The U>nstitution specifies those ea~: appointment of the Governor as an ''agent'' of the President to administer the tribal areas of Assam, or to act as Administrator of an adjoining Union Territory. These are not all. Article 200 lays down: ''The Governor shall not a~t to. but shall reserve for the consideration of the President, any Bill which in the opinion of Cite Governor would, if it became law, so derogate from the powers of the High Court as to endanger the position which that Court is by this Constitution d~igned to fill.'' .· . This is explicit. It would be surprising if the Constitutionframers intended that the Governor's intervention be confined solely to the protection of the High Court's independence and not extend to, say, the subversion of democratic practice. Article 356, not surprisingly, enables the Governor to take over the governance of the State on behalf of the President "if the President, on receipt of a report from the Governor of a State or otherwise, is satisfied that a situation has arisen in which the government of the State cannot be canied on in ac.cordance with the provisions of this Constitution.'' · In submitting the report, obviously, the Governor would be acting in his own discretion. Doubtless, these are exceptional measures. As the Supreme Court has observed, the Goveinor has been made ''a formal or constitutional head of the executive and the real executive powers are vested in the Ministers or the Cabinet.'' It also added, significantly, ''in the Indian Constitution, therefore, we have the same system of parliamentary executiye as in England.'' It is pointless, then, to argue that British precedent and Practice are irrelevant. In the words of Dr. K. M. Munshi, one of the framers of the Constitution, we adopted ''responsible government after the British model.'' There is no mistaking that. Dr._ Munshi, in a notable speech in the Constituent A&1embly on May 31, 1949, explained why the Constitution• framers after having once suggested an elected Governor opted for a nominated ·one. ''One view was that India as a whole should adopt the American model, and the other. that it 1 should adopt the British model.'' 1

C.A.D. Vol. VIII p. 4S2

INDIA'S CONSTITUTION AND POLITICS

12

Ultimately, opinion veered round in favour of the British model ''both in the Centre and in the Provinces._" However, the position regarding the Governor was not corrected in the Draft. ''After we have adopted the British model, the election of the Governor by adult st.atf,age remained an anomaly.'' Far from acting as constitutional head, he would be tempted to act as a rival to the Chief Minister and invoke in support the people's mandate extended in the elections. The debates shed much light on the intent of the Constitution framers regarding the role the Governor is expected to play. At the recent Governors' conference, Mrs. Gandhi cryptically remarked, ''You can be the guide, philosopher and friend to your respective governments, while also discliarging your constitutional responsibilities.'' These responsibilities are there. Some are conferred in express ter1ns, others flow ineluctably -from the Governor's position as a constitutional head of State functioning under a parliamentary system. Dr. B. R. Ambedkar, the Chairman of the Constituent Assembly's Drafting Committee, opined that in regard to the .dissolution of the legislature, the constitutional head is not · bound by the Cabinet's advice. Opinion is sharply divided as regards the powers to summon the legislature and to dismi~~ the Cabinet. The problem is so complex as really to necessitate separate discussion by itself. Suffice it to say here that as Dr. Ambedkar pointed out (June 1, 1949) ''the retention in or the vesting the Governor with certain discretionary powers is in no sense contrary to or in no sense a negation of responsible government. ''2 There is no power in the Governor of a State to ''disregard the advice of his Ministers in any matter in which he finds he ought to disregard.'' As a rule, he is very much bound by the advice the Otief Minister tenders except in those cases in which the Constitution expressly requires him to exercise his own discretion and, no less, in those cases in which his position as head of State requires him to act in his judgment unfettered by the advice of the Chief Minister. . 1

C.A.D. Vol. VIII p. SOO

•

11IE GOVERNOR

..

13

It is worth-noting that only the previous day (May 31. 1949) Dr. Ambedkar had characterised the office of Gove1nor as ''purely ornamental."' It was an obvious error. No wonder the next day (June, 1) he was at pains to stress that limited discretionary powers in a head of State are not in• compatible with responsible government. The fact that the Indian political system is quasi-federal and the Governor is an instrument of Central vigilance and control further necessitates a certain residue of gubernatorial d.1srretion . . He is no agent of the Centre except in regard to matters in which he is required under the Constitution to act on its behalf; for example, when the President's rule is proclaim~. Mr. Y. B. Chavan, the Union Hom~ Minister, recognised this recently when discussing the crisis in Madhya Pradesh. In the Constituent ~mbly, a member of the Drafting Committee, M·r. T. T. Krishnamachari, remarked, ''I would · at once disclaim all ideas, at any rate so far as I am concerned, that we in this House want the future Governor who is to be nominated by the President to be in any sense an agent of the Central Government.'" Bot as Dr. Ambedkar, later, authoritatively darifled, ''fhze provincial Go,a.■mmts are req11ired to work in 111bordiuatioa to the Central Go\er ■ameot, and, therefore, In order to 11e that they do act in subordination to the Cent1al Government, the Go\ero.x- will reserve ~utain things in order to give the Pteudent the opport,•••ity to see that the rules under which die provincial govei1■t0ents are supposed to act accordinl to die Omstitotion or in subordination to the Central Gove1.ameat are observed."' Mr. Nehru also envisaged that the Governor's appointment by the President would be a unifying influence. ''Now, one of the things that we have been aiming at a great deal has boon to avoid any separatist tendencies, the creation of groups. etc. We have decided that we will not encourage communalis111; we have abolished separate electorates and reservation • C.A.D. Vol. VITI p. 468 • C.A.D. Vol. VIII p. 460 • C.A.D. Vol. VIII p. S02

14

INDIA'S CONSTinJTION AND POLITICS

of seats, etc. We have yet to deal with many other separating factors. ''We cannot deal with them by law, of course. We have to deal with minds and hearts. Nevertheless, a certain convention and practice helps or hinders the growth of separatist tendencies. I feel that, if we have an elected Governor, that would to some extent encourage that separatist provincial tendency more than otherwise. There will be far fewer COID• mon links with the Centre.'" The Governor is, thus, at once the conscience-keeper of the Chief Minister and the eyes and ears of the President It is an unenviable position. It is known that the Governors write home, as it were, every fortnight. But they provide the Chief Ministers with copies of their epistles to the President. There are rare cases, though, when the Governor has advisedly refrained from so doing. All thi$ only makes it of the utmost importance that the Governor ·should be a person command4lg the highest respect We have non-Congress ministries in: the States, but no non-Congress Gov~ors except form~r civil servants. Mr. Nehru felt (May 31, 1949) ''on the whole, it probably would be desirable to have people from outside eminent people, sometimes people who have not taken too great a part in politics.'' In preference to election, Mr. Nehru asked, ''Would it not be better to have a more detached figure, obviously a figure that is acceptable to the province, otherwise he could not function there? He must be acceptable to the province, he must be acceptable to the Gover11ment of the province •... "' It is very doubtful if the Constitution framers wished to confer on the Chief Minister a veto on the Governor's appointment. It would be contrary to the entire scheme of the Constitution. The members of the Drafting Committee spoke discordantly on this point. Mr. Krishnaroachari was for a veto, Sir Alladi Krishnaswamy Ayyar for the convention of ''con• suiting the provincial Cabinet.'' The latter is the sounder view•.'

• C.A.D. Vol. Vlll p. 455 ' ibid. • C.A.D. Vol. VIII p. 432

•

'nlE GOVERNOR

1,

But then, this only makes it the more incumbent OD the C'.mtre not to appoint a person who does not or cannot enjoy the respect his office demands. In the Constituent Assembly it was proposed that the State legislature might elect a panel from out of which alone the Plesident can select and appoint a Gove1nor. It was not adopted and, perhaps, rightly for it would have conferred a virtual veto on the State. Given a quasi-federal system in which the Govc1nor might be required to act on behalf of the Centre, no mode of apappointment will work which takes away the Centre's discretion in the appointment of a Governor. Parliamentary ratification, as Mr. Nath Pai has suggested, is a more practicable method and merits serious consideration. particularly if, as in the past, the Centre persists in appointing as Governors men who have passed their prime. All things considered, the Governors' Conference did well in not adopting any set of guidelines. For one thing, it would have had no legal sanction; for another, it would have been a partisan effort without any contribution from the Opposition. The present constitutional position of the Governors is admittedly complex but it is not obscure. Moreover, there is room for growth. Two Articles of the Constitution which are seldom noted highlight the potentialities of the office. Article 167 is one. It provides:"lt shall be the duty of the Chief Minister of each Statr,..e(a) to communicate to the Governor of the State all decisions of the Council of Ministers relating to the administration of the affairs of the State and proposals for legislation; (b) to furnish such infor1nation in relation to the administration of the affairs of the State and proposals for legislation as the Governor may call for; and (c) if the Governor .so requires, to submit for the consideration of the Council of Ministers any matter on which a decision has been taken by a Minister but which has not been considered by the Council.'' In the hands of an astute Governor these powers can ass11me great significance. Article 160 is another. ''The President may make such provision as he thinks fit for the discharge of the functions

16

INDIA'S CONSl'l'IU 110N AND POLITICS

of the Governor of a State in any contingency not provided for'' by the Constitution. All too often it is overlooked that the Governor's dual position is not a one-sided advantage to the Centre alone. The States also can avail themselves of it. In · his statement (Oct. 16, 1967) explaining his abortive move for resignation as Chief Minister, Mr. Ajoy Mukherjee said that fearing disturbances in the State he felt that "tho military should stand by and some extra policemen trom other States may be reqt1ired.'' He, therefore, ''requested tho C.Cntral Government directly and through the Governor to give us this sort of help.'' The Governor, clearly, can be both a helpful mediator and an irritant in the relations between a State and the Union.: He · can overplay his hand and trespass beyond his powers. Equally he cao fold his hands and resign himself to futility. It is not the Constitution but the men who work it who are largely to blame. The existence and scope of guber11atorial discretion are clear. It can, however, be exercised to · advantage. only if the Centre appoints as Governors men who have reached but not outlived the age of political discretion. •

-The Indian Express, 3 December 1967.

'l'HE SBLECfION OF 'IHE CHIEF MINlSl'ER

•

After the respite of President's rule follows the mid-term poll, and with it begins once again the old row of who shall be invited to form a Ministry. There is no problem, of course. if a political party or a pre-existing coalition of parties secures a clear majority in the Legislature. The elected leader of the party or the coalition is invited as a matter of course. The trouble arises only when no party or coalition has such, a clear majority. The. presence of a large number of independents further complicates matters. Following the Rajasthan muddle in 1967, Mr. Y. B. Chavan, the {Jnion Home Minister, promised the Lok Sabha that he would consult constitutional experts on the question, and he did so. Mr.. Cbavan sent a letter to the late Mr. M. C. Mahajan, Mr. A K. Sarkar, Mr. P. B. Gajendragadkar, all fo1mer Otief Justices of India, Mr. M. C.. Setalvad, the former Attorney General, and Mr. H. M. See,vai, the Advc►. cate General of Maharashtra, in which he outlined the pro1 blem with admirable clarity. ''Three distinct views have been expressed on this matter. One view has been that the leader of the largest single party in the Legislature should be invited to form the Government i11espeictive of the consideration whether or not such a party commands a stable majority. "Supporters of :this view have also suggested that the Governor should use his influence to secure advice to summon the newly elected Legislature as early as may be possible so that the extent of the supported behind the Ministry may be tested in an open constitutional forum. ''The second view has been that if the party in power had failed to secure an absolute majority in the newly elected J ,egislature, the leader of that party should not be invited to form the Government even if it were the largest single party in the I egislature and that instead the leader of the Opposition or the leader of the next largest party should be I.

• May 17, 1967 C.-2

18

INDIA'S CONSTITUTION AND POLITICS

invited to form the Government. The reasoning behind this view is that the electoral verdict should be regarded as in effect disqualifying the party in power for holding office for a further term. ''The third view is that the Governor should make endeavours to appoint a person who has been found by him as a result of his soundings, to be most likely to command a stable majority in the Legislature. It may be recalled that the Drafting Committee of the Constituent Assembly had also proposed to include Schedule to the Constitution containing an instrument 9f Instructions to the Governors of States and para 2 of the Draft Instructions contemplated a similar guide-line to the Governor in appointing a Chief Minister.'' The jurists' opinions deserve prompt consideration if the controversy which vitiated the- political atmosphere last year js to be avoided in the future. The. appointment of the Oiief Minister is a matter in which a Governor can act in his own discretion. . ,We have adopted the parliamentary system . both at the Centre and iri the States. The rules regulating the discretion of the Head of State in the appointment of the Chief Executive will apply as much to the President as to the Governors. · The jurists' opinions, though conflicting, were supported with arguments which, if analysed carefully, will not fail to yield sound con~lusions. Mr. Mahajan _opined that the Governor's duty is to ''~hoose a person who in his opinion can form a stable Government and then leave him to face the T,egislature. '' He is not bound to invite the leader of ihe largest ~rty.

,

.

. Mr. Mahajan also felt that if the party in power fails to obtain a majority, ~e Governor should treat it as a popular ~ejection and call upon the leader of the Opposition to form a Ministry. In the event of his failure to do so, the leader of ~e largest political party should next be invited. . ·Mr. Sarkar, on the other hand, regards this interpretation of the electoral result as untenable. The fact that it held power before the polls should not disqualify the largest single party. ''Such a party must ·be allowed to assu111e office. if it gets support from any other party or independent members and with such support commands the majority in the legislature.''

r

THE SBLECtlON Ofl 111B CH•F.F ·MIN1$IER

19

But this is merely a statement of:1he obvious. u ·t11e t,ai-ty

~

fo,merly in power can, indeed. muster a majority9 no other party will be able to form a Gove11am~t The · question of '1estions is who shall · be called in the first instance in an uncertain situation and it· is ce1 tainly not ''trivial'' as Mr. Sarkar thinks... As he himseH notes. once a party is in office ''it can offer inducements, for the acquisition of support which it could not before.'' Mr. Sarkar rejects also the view that the largest single party is to be. invited first He opts for the last of the three views Mr. Chavan set out with the rider that ''in e&,ty'ing out bis 'soundings,' the Governor should keep in mind that his duty is to ascertain the party or coalition commanding the majority. and not to create one.. It would be a safe course for the Gove1nor, generally speaking. to proceed to consult the parties in the order of their strength in the legislature.'' Mr. Gajendragadkar, broadly speaking. concurs with Mr.

Sarkar.

.

Mr. Setalvad quotes a .passage· from the late Sir Ivor Jeoning's classic ''Cabinet Government'' which so convincingly demonstrates the force of the second view that it deserves to be set out in extenso.. : "Where no party obtains a majority at a general election there are two possibilities ·only, the (01mation of a coalition Gove, 11ment or the formation of a minority Government with Opposition support; for another dissolution is not practicable. "It must not be thought. however, that the absence of a strict two-party system gives the Queen discretion to summ~ as Prime Minister whom she pleases. It is expected that wh~ a Government is defeated either in Parliament or at the polls, the Queen should send for the leader of the Opposition. There may be two or more parties in Opposition. But the practice of the present century has created an 'official' Opposition whose leader is 'the leader of the Opposition'. · · J. lbe largest party in Opposition· is the 'official' Opposition. The rule is that . on the defeat and resignation of the. Govemma ■t, the Queen should first send for tlie leader of the Opposition. This rule is· the result of· long practice, though it has hardened into a rule comparatively recently. Its basis is the asa,mption of the impartiality of the Crown.. Democratic

20

lNDIA'S C01'1Slfl'U'l10N AND POUIU

Government involves competing policies and thus the riyalry of parti~ .... ''The Queen's task is only to secure a Government not to try to form a Government which is likely to forward the policy of which she approves. _To do so would be to engage in party politics.. It is moreover essential to the belief in the Monarch's ·impartiality, not only that she should act impartially, but she should appear to act impartially. The only method by which this can be demonstrated nc,1mally is to send at once for the leader of the Opposition.,,s There is everything to be said for this view for it demon- .... strates in the best manner po.uible the impartiality of the Head of State, and that in itself is no small gain. Besides, . the interpretation which such a view puts on the result of the election is not an unfair one. A ruling party which has failed to secure a majority ought. in all decency, to resign and give a fair chance to others to form a. Government.. Mr.. Mahajan and Mr. Setalvad, therefore, hold that in such circumstances the Opposition· should · first be invited and if it fails to seoure a majority, the largest single party should be invited. Mr. Seervai, like Mr. Sarkar, brushes aside as ''beside the point'' the advantages of the first invitation. H the independents hold the balance of power, Mr. Seervai opines, the Governor ''must inquire of each independent member'' whose policies he will generally support.. The practicability of such a course and· the reliability of its results are· questionable. Mr. Seervai is right in holding that if the ruling party after losing its majority, nonetheless. manifestly commands a majority with the declared support of others, it ought to be sent for. Such support declared clearly, openly, and in advance for any party, ruling or Opposition, which has the .effect of securing it a majority, well qualifies it to be called upon first to form a Government. Mr. Seervai quotes a good precedent. In 1929 the Conservatives were returned as the largest single party, with Labour and the Liberals coming second · and third, respectively. As Jennings explained, ''Mr. Baldwin decided to resign forthwith because the public would think it • Page 30

'l'BE SRt.ECitON OP 'IHE CHIEF MINISIElt

21

.

'unsporting' of him not to do so, and would suspect that be was contemplating a deal with the Liberals. George V agreed with Mr. Baldwin and sent for MacDonald (the leader of the Opposition.)'' But Mr. See1vai himself comes pretty close to the MahajanSetalvad view when he observes, apropos this case. ''Negatively the electorate withdrew its support from the Conservatives ·and under the circum$tances the best way of giving effect to the verdict was to call upon the second largest party if it . could count upon Liberal support. H the Conservatives and >-- · the Liberals had decided to combine, there can be no doubt that Mr. Baldwin would have been asked to form a Government.'' In short, unless the ruling party once again commands a firm and manifest majority by itself or with others, the fair thing to do is to ask the Opposition first to form a Ministry even if it is not the largest single party. Mr. Setalvad while expressing · the view be did was careful to add the proviso. ''It must not be over-looked that the pri111ary duty of the Governor is to see that the Government of the State is carried on. H the minority party has been returned in such small numbers that the possibility of its • being able to carry on the Government cannot be contemplated, the G~vemor will have to tum to the party which was before the elections the governing party and which after the elections constitutes the largest single party.'' A clear and declared majority for the ruling party even if the majority be the result of support by other parties will ~ r i l y deprive the Opposition of ''a possibility of its being able to carry on the Government." 'fo s11m up, if the ruling party fails to secure an absolute majority but is returned as the largest single party, the Governor must, nonetheless, invite the Opposition to f or1n a Ministry unless the possibility of its being able to do so has hem effectively destroyed by the ruling party securing a clear majority in the legislature as a result of the declared support cl. others. . Should no such support be forthcoming and the Opposition also fail to form a Government after being called upon to tlo so first, the Governor should next carry out bis ''sound-

-·

22

.·.. .INDIA'S CO~SITI'U'l10N AND POLITICS

ings'' as -t o who will command the requisite majority in the legislature. As Mr. Sarkar says, ''It would be a safe course for the Governor, generally speaking, to proceed to consult the parties in the order of their strength in the legislature. This would largely avoid criticism of his 'soundings'.'' Mr. Mahajan, Mr. Sarkar and Mr. Gajendragadkar expre&1 themselves against any hard and fast rules being laid down to control the Governor's discretion.. But if, as Mr. Gajendragadkar says, the ''principles are well recognised in all countries which have adopted a parliamentary for1n of democratic Government, there can surely be no objection to embodying them in an Instrument of Instructions.'' The Constitution c.ao be amended to incorporate a Schedule containing the Instrument. The Constitution has not, after all, passed the age of child-bearing.

-The Indian Bxprea, March 25 and 26, 1968.

~

'IHE DISMISSAL OF A MINISTRY

We have had this year a rich crop of knotty questions of constitutional law; to mention a few, the powers of the President. the proprieties of Presidential rule in States, the dissolution of the legislature, and the powers of Governors. Not least important among them are the questions whether the head of State has the power to dismiss a Ministry and, also. whether he can summon the legislature in disregard of the Cabinet's advice. The West Bengal crisis, regardless of how it is resolved, has raised these two vital queries. The power of dismissal must first be considered. The Supreme Court has observed after citing relevant constitutional Provisions. ''The President has thus been made a formal or .constitutional head of the executive and the real executive powers are vested in the Ministers or the Cabinet. The same provisions obtain in regard to the government of States.'' 1 The West Bengal crisis should not blind one to the fact that the existence and extent of the Governor's power to dismiss cannot be different from that of the President, save of course, that the President can in exercise of special powers specially conferred on him take over the governance of a State, whereas no such provision exists regarding the government at the Centre. These, however, are special and emergency powers quite distinct from those that exist in him simply as constitutional head of State. These latter powers will necessarily be the same in both the President and the Governors. The constitutional provisions affecting them are identical. The executiv~ power of the Union is vested in the President, of the State in the Governor. There shall be a Council of Ministers, in each case, ''to aid and advise.'' Finally, ''the Ministers shall hold office during the pleasure of the President.'' An identical expression regulates the position in the States.. These have to be read in the light of the 1

(19SS) 2 S.C.R. 225, 236-7

24

INDIA'S CONSI'I'l'U'l'ION AND POLITICS

fact that, as the Supreme Court put it_, ''we have the same system of parliamentary executive as in England.'' When, according to British constitutional law, is the Crown entitled, if not bound, to dismiss a ministry one might usefully ask since British precedent is obviously relevant. Three distinct grounds are often stated. First, if, in the Crown's judgement, the ministry has lost the confidence of the people. This necessarily involves the question of dissolution for, inevitably, the corollary to dismissal in such a case is a reference to the electorate. The second ground is if the Crown is satisfied that the ministry has forfeited the confidence of the Commons. Lastly, the Crown is entitled to dismiss a Ministry, irrespective of the confidence it might enjoy, if it is guilty of conduct that justly calls for dismissal. Authorities have described such conduct with a fair degree of precision. In each case, sooner or later, the electorate is called upon to give its verdict on the Crown's action.. But the power to dismiss exists and, indeed, is properly exercised on behalf of the people. Unfortunately, discussion of constitutional questions tends to be influenced by political considerations. A recent and learned work by a lawyer known to be free from political bias states the position with crystal clarity. In his book ''Constitutional Law of India'' Mr. H. M. Seervai writes, ''that in the very unlikely event of Council of Ministers in the House of the People being bent upon subverting the Constitution, the President has certain reserve powers and is obliged by his oath to exercise them, need not be disputed.'' Mr. Seervai adds, ''He may dissolve the House of the People and compel an appeal to the electorate; but unless the electorate supports him, he must give way, or face an impeach-

ment._'n A dismissal is, thus, not n~arily a negation of de,110cracy and is often the only means left for its preservation. In all cases, the electorate must eventually be asked to give its verdict and that verdict must be respected. Authorities .in support of the existence of the power to dismiss are · ample and convincing. 1

N.M. Tripathi Pvt. Ltd; Bombay, 1967 p. 77S

25

THE DISMISSAL OF A MINISTRY ,

·The hoary commentaries of Halsbury have it that ''in cases where the Ministry still retains the confidence of the House of Commons, but the Crown has reason to believe that the latter no longer represents the sense of the electorate, the dismissal of tbe Ministry or the dissolution of Parliament '" would be constitutional; and cases of emergency might conceivably arise where, through the unfitness or incapacity of the Ministry, the exercise of the power of dismissal would be constitutional, justifiable and proper, in order to prevent the adoption of some course ruinous to the nation.'" Dicey holds, ''There are certainly combinations of circumstances under which the Crown has a right to dismiss a Ministry who command a parliamentary majority, and to dissolve the Parliament by which the Ministry are supported . .. . the reason why the House can in accordance with the Constitution be deprived of power and of existence is that an occasidQ has arisen in which there is fair reason to suppose that the opinion of the House is not the opinion of the electors. A dissolution is in its essence an appeal from the legal to the political sovereign. ''4 ~ · An interesting case of di&missal by reason. of misconduct arose in 1932 when Mr. Lang, the Premier of New South Wales, repudi~ted the payment of inter~t on J]le State loans due to the Commonwealth in spite of the decision of the High Court ·of· Australia .in favour, of the validity of the Finandal Agreements Eoforcement · Act of· the Commonwealth. Mr. . Lang defied the ruling and the Governor was cempellt4 to dismiss his Ministry. Referring to th~ · incident Keith wrote ''the param6µnt ..d~ty of the ,King's represefitative is Jo earl)' out the law of the Constitution and h~ is entitled t,9 demand from Mr. Lan&_,obedience to _that. la~, ~d~ "in 'event A pf refusal of the ,d~111:and,_to exerpise ,his ~n~t4\io~ -1 \0Wet: of

t~e

reinovaI.,, ' ' J , • ,· -. •. ' . After a careful consideratjan of.,the constitutional positima the Kerala Enquiry Committee of the Indian Comm~ion gf t

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• Halsbury's Laws of England 3rd-· Bdition Vol. Vll p. 361 . • Law of the Constitution, Mac111illan & Co. Ltd., London 10th Bein, p. 433 . :·

26

INDIA'S CONSl'IIOIION AND POLITICS

Jurists opined.' ''Where, therefore, the Governor is satisfied that Ministerial orders are in violation of the law, it is not only his right, but his duty as the guardian of the Constitution. which he has sworn to preserve, protect and defend, to correct and rectify, and, in the last resort, to dismia the Ministry, if recalcitrant. A Governor who fails in this duty, must be deemed to be privy to the violation of the law; and his position would become wholly untenable. It may be that on the dismissal of the Ministry, the Governor might be unable to find an alternative Ministry commanding a majority in the Legislature. But in that event, he has the right to order a dissolution of the Legislative Assembly and direct fresh elections.'' The committee consisted of Mr. N. H. Bhagwati, a for1ner Judge . of the Supreme Court, Mr. M. P. Amin, former AdvocateGeneral of Bombay, and Mr. N. K. Nambiar, an eminent Constitutional lawyer. The opinion expressed recently (November 11, 1967) by a spokesman ''on behalf of the Union Government'' on the point is, therefore, perfectly sound. He said ''when in his judgement, the Governor is duly satisfied that the atlef Minister no longer commands support of the majority of the MLAs, he would be justified in the exercise of his discretionary functions to dismiss the Council of Ministers. In such cases there can be no question of his acting on the advice of his Ministers.'' This action, he elaborated, can be taken ''on the basis of any material or information available to him, even if such material or, information might be extraneous to the proceedings of the Y'gislative Assembly.'' . . · .)1ie Govenupent of India's opinion is supported ~n both j,oints, the power to dismiss and the absence of a legislative :verdict, by a ruling of the ~Judicial · Committee of the Privy Council delivered in 1963~- Chief Akintola had been re~ mo•ed from his office as Premier of Western Nigeria by -·fte ~v~mor who had acted upon a letter signed by 66 out- of r24·. members of the House e•pressing their lack of confidence in the Chief. • Journal of the International· Commission of Jurists 19S~ vol. II No. 2 p. 197 ') • Adegbenro vs. Akintola (1963) A.C. 614

THE DISMISSAL OF A MIN1SI1tY ·

The Constitution of Westei11 Nigeria, like our Constitution. · i,rovided that the Ministers '•shall hold office during the : Governor's pleasure.'' But, 11olike ours, it contained two pro• •

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YJSIODS:-

(a) The Governor shall not remove the Premier from office

unless it appears to him that the Premier no longer com- · mands the support of a .mtjority of the members of the . House of Assembly; and (b) The Governor shall not remove a Minister other than the Premier from office except in accordance with · the advice of the Pre11aier. J: The provisos do not make much difference; for they merely reflect the settled constitutional tpractice. Indeed, their absence from the Indian Constitution might. be said to leave greater discretion in the President and _the Governors. The Privy Council's observations ·a re, therefore, of added force in their application to the . Indian. Constitution. ;_. It said: ''It is .clear, to begin with, that the .Governor .- is invested withT some power to dismiss the Prero'ier. Logically, that power · isi a eoasequence 'Of die enactment that Ministers lhaD hold He pointed out ·th•i !he pr(iSCilt situation- with regard to th~ law of privileges• .lllposed · gpon editors the btJrden ''to .acquaint themselves with the mass of scattered material'' to keep themselves ab~st ci the Ja'!. of privilege. Mr. Subba ~aQ s~fd that. so long as the dec1S1on of the Supreme Court m th:e ·hrd,Jtp't 4&~from which he had diAented, stood. ''thtf Indian press· will

INDIA'S CONSl flU'l JON AND POLITICS 1

66

1

find itself in a difficult position to report the proceedings of the legislature,'' and from this point of view. Mr. Justice Subba Rao asserted, it was necessary to effect a codification of the law of privileges.. It is all too plain from the very terms of the constitutional provision that the privileges shall be such as are defined by law and only ''until so defined shall be those of the House of Commons,'' When the Constituent Assembly took up the provision it was assured by Sir Alladi Krishnaswamy Ayyar on .-behalf of the . drafing committee on May 20, 1949, that ~only as a temporary measure the privileges of the House of 1 Commons are made applicable to this HollSe.'' On the faith of this assurance was the article adopted. Sir Alladi, after all, had said that the article ''subordinates the reference to privileges obtained by. the 111embers of Parliament in England. to the privileges which may be conferred by this Parliament by its own enactments.'' As the Supreme Court remarked in the U.P. Judge's case' ''the Constitution-makers must have thought that the legislatures will take some time to make laws in respect of their powers, privileges and imm11nities. During the interval it was clearly necessary to confer on them the necessary powers, privileges .and immunities. Hence the convenient incorpora. tion of the privileges of the Commons.'' It also observed that ''the Constitution-makers thought it necessary that the legislatures should in due course enact laws in ·respect of their powers. privileges and immunities, because. they knew that when such laws are made, they -would be subject to the fundamental rights and would be open to examination by the Courts in India.'' Pending the making of such laws, powers, privileges,- and immUBities ·were confe11ed'. by the latter part of Article 194(3). . The first important case to arise after· the Constitution- came into force on January. 26, 1950. was that of Mr. G. ~ K . Reddy, an ~tant &iitor of BliCz.1 He was aqested in' Bombay, pursuant to --·3: warrant issued by the· S~ker of the U~P. Assembly, flown to Lucknow and detained there. Blitz's New C.A.D. Vol. VIII p.- 149 - ~ AI.R. 1965 S.C 74S • A.I.R. 1954 S.C. 636 ...

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PARLIAMENTARY PRIVILEGES

67

Delhi correspondent applied for a writ of habeas corpus, specifically alleging that the fundamental right guaranteed in Article 22(2) of the Constitution (production before a magistrate w.ithin 24 hours of arrest) had been violated. At the hearing of the petition, this was conceded by the AttomeyGeneral. The Supreme Court ordered release since ''it is per• fectly clear that this provision of the Constitution has boon contravened.'' The primacy of fundamental rights over Parliamentary privileges was thought to be assured as a result of this case even by a body like the Press Commission. But in 1959 the Supreme Court delivered a ruling which held up to legislatures prospects not dreamt of before.• S.rcbJigl•t, a Patna paper, had published a report of some proceedings in the State ~mbly which the Speaker had ordered to be expunged. A show cause notice was issued against its Editor for breach of privileges. He moved the Supreme Court, claiming that it violated his fundamental rights to freedom of speech and expression and to-- personal liberty, guaranteed respectively by Articles 19(1) (a) and 21 of the Constitution. The majority judgment was delivered by atlef Justice S. R. Das. He declared first, that the Legislature did in fact have the privilege it claimed of prohibiting reports (even true ones) of its debates since the House of Commons had it. On the basic question, whether this privilege overrode the fundamental right to free spa:ch and expression, the majority decided that the only way of reconciling the two provisions of the Constitution, Article 19(1) (a) and Article 194(3), was that the forn1er, which is "general'' must yield to the latter which is ''special.'' H Parliament or the State I egislatures were to make a law, as contemplated by Article 105 and 194, defining the privileges sncb a law would be subject to the fundamental rights like any other law. But the privileges conferred in the interim by the Articles themselves, which are as much part of the Constitution as the fundamental rights, would not. Indeed the Olief Justice commented ''It ·may well be that is precisely the reason why our Parliament and State Legislatures have not made any law.'' . • A.LR. 19S9

s.c

395

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INDIA'S CONSl'fl"U't·10N AND POLITICS

Mr. Justice Subba Rao delivered a vigorous dissent. '~I qislatures and its mem.b ers have certainly a wide range of.powers and privileges and the said privileges can be exercised without . jnfringjng the rights of a citizen . . When there is a conflict, the privileges should yield to the extent they affect. the fundamental rights. This construction gives full effect to both articles.'' . But the majority decision was law and its . lesson was simple. A code would be a law which like any other would be subject to fundamental rights. The existing position ac~ording to the majority was that fundamental rights· were subject to the privileges of the legislatures. Hence. the opposition to the codification of privileges although members 9f ~e Constituent Assembly had been assured that a code would be enacted. In the U.P. case, the majority . opinion held that the Searchlight case laid down that in a case of Parliamentary privilege, Article 19(1) (a) relating to freedom of speech and expression has no application but Article. 21, relating to personal liberty, applied. l)jssenting, Justice Sarkar held that the hrchlight case did not imply that even Article 21 was applicable. Jbe facts of the U.P. case are too recent to need recounting.' Suffice it to say that an ugly situa~pn was averted by. the President referring the issues to the ,Supreme Court for its advisory opinion. The majority judgment held, .on the reference, that yet another fundamental right, Article 32 guaranteeing the right to move the Supreqie ~oµrt 'for , the enforcement of fundamental rights is ,applicable. . It is '''abs~ lute'' and ''no exception is ·int.ended t9 be ntade by the Constitution by reference· to · any power or privilege vesting iri the Legislatures of this country." However, the Court did not propose to enter 'into a general 1 discussion (as to the applicability of all the fundamental riglits to the ·.cases where legislative powers and privileges can be exercised against any individual citizen of this country. This i$ the _state of the legal position ·today. It is ~ wholly unsatisfact~ one by reason of. its manifHt vagueness. One remedy would be to ask the Supreme Court, in an appropriate case to reconsider its ruling in the Searchlight case. As the Supreme_ Court itself said in_ the Bengal Immunity case ''if on a re-examination of the question we··come to the

PARLIAMENTARY PRIVILEGES

69

conclusion, as indeed we have, that the previous decision was plainly erroneous, then it will be our duty to say so and not to perpetuate the mistake.'' The speedier and better remedy is the fulfilment of the pledge to the Constituent Assembly by codifying the privileges. Gonsider, for one thing, the very large number of bod~ entitled to -SlJCh sweeping privileges. Over a decade ago reviewing cases of contempt of legislatures, the Press (;ommission remarked that some of them ''disclose over-sensitiveness on the part of the legislatures to even honest criticism. When the decisions of the High Court and Supreme Court are liable to be criticised without any action being taken for contempt of Court, there is no reason why legislatures should claim ex~ive immunity from criticism in press or public.''• Since ~ was written, the oversensitiveness has increased and exaggerated claims have been made. The U.S. Congress is able to function _w ithout claiming ,such privileges which are a pure accide~t of British history since the Commons were a constituent part of the ''High Court of Parliament'' and, therefore, entitled to powers of contempt like a Court. · It is ironical that while some of our legislatures seek to cling to the privileges such as the House of Commons enjoyed. that body itself has had second thoughts about its privileges. On March 24, 1965, a very ~structive debate took place on an issue of privileges arising out of an article in the Spectator. Even while supporting the motion, Mr. Michael Foot said he would not shed too many tears if privileges were wiped out altogether and if the whole idea were abolished. The remark was cheered. Of grea~ relevance ·m the present controversy in lnd'ia, is the following · passage in the SolicitorGeneral, Sir Dingle Foot's speech: "It would be a good thing if. in the not .very distant future. Parliament looked again at the boundaries of privilege. The jurisdiction given to the House is one which they must exercise with the grea~t care. It is something unique in the law, because the !louse is- in effect judge in its own cause. Against ·its decisions there is no appeal.'' ·· · '

• Report of the Press Commission 19S4 part I p. 430

70

INDIA'S CONSTITUTION AND POLITICS .

In Britain far greater latitude is allowed than is imaginable in our country. On July 19, 1966, Mr. Atkinson, l..abour M.P.• said in a message to his constituents ''I am ashamed of Parliament and want sincerely to apologize to my constituents and the country. They elected me to do a serious job, not to be part of an idiotic circus. It is beyond comprehension that Parliament should spend 13 hours debating whether or not an additional six hours should be given to the Selective Employment Payment's Bill.'' Mr. Atkinson was not hauled over the coals for breach of Parliament privilege. The fate of any one using similar language in India needs no descrip• tion. One has only to witness the manner in which the Privileges Committee discharge their business: Prosecutors and Judges rolled into one. Their approach is anything but impartial and detached. Mr.. Govinda Menon will do well to move for the setting up of an all-party committee to codify the privileges of Parliament and induce his colleagues in the States to do likewise before our legislatures become inverted Voltaires each declaiming· ''I detest what you say, and I will do every• thing in my power to stop you saying it.'' The curious thing is that in Britain itself there is ·m arked dissatisfaction with the _state of parliamentary privileges and a move towards their liberalisation. H. the trend continues. as it bids fair to, we shall be left with the anomaly of India following British practices considered retrograde by the Bri• tish themselves. Sir Dingle Foot. Q.C.,· M.P., a former Solicitor• General observed recently: ''It is e&ential that speeches made in either House should be completely protecteg from proceedings for defamation. It is arguable that similar protection should be extended . to correspondence between members and ministers. It is reasonable that members of Parliament should not be expected to serve on juries. Otherwise it is difficult to see why they should in any respect occupy a privileged posi• tion vis-a-vis the rest of the community.'' He also referred caustically to the fact that the British Parliament had not

·P~IAMENTARY PRIVILBGES

71 •

fo••od ti111e to consider the .rece-ot Report of the Select Commit~ on Parliamentary Privilege.• The Report repays study. The Committee was nµly ''satisfied that the complaint of 'uncertainty,' which was the m()St generally made, is justified and is, indeed, the natural consequen~ of the piecemeal development of the law apd practice. relating to Parliament's penal jurisdiction. · They do not ~ink that this criticism of uncertainty is in any way inconsistent with the further criticism that the House relies too heavily upon precedent, and particularly upon what is called 'archaicy precedent. Any apparent inconsistency between these criticism is rather an illustration of another criticism, that of 'arbitrariness'.." Be it remembered that these remarks ·are applicable to the state of the Indian law as well, until codification is achieved& The British Committee was of the opinion that the law. practice, and procedure of parliamentary privilege ''are all in need of radical reform-and require not only ~o be simplified and clarified, but to be brought into harmony with contemporary thought.'' The General Council of the Bar suggested that ''the best solution to this problem would be to codify the law and practice relating to parliamentary privilege.'' The Select Committee did not accept this suggestion. However, its discussion on the point is noteworthy. ''The very defuiition of 'contempt' which they have proposed for the future guidance of the House clearly indicates that new fo1ms of obstruction, new functions and new duties may all, contribute _to new f or11is of contempt. They are convinced. ' therefore. that the House ought not to attempt by codification to inhibit its powers. They are satisfied moreover that only 11oder statutory authority can the House lawfully be divested of its powers. in such manner as to bind its successors. Codification if desirable at all could be effective only if embodied in legislation.'' As to : the first objection, any forn;t of real obstruction, however novel could easily be brought wjthin the purview of the code by suitable amendment.. The second di{ficulty need not deter· us since. unlike the British ·Parliament, our .

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• Report from the Select Committ~ on Parliam~tary Pri• HMSO Lendon 1967 \. -. f .

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INDIA'S CONSTI1UTION AND POLITICS

72

Parliament has to function -within the ambit prescribed · by a written Constitution. And it is the Constitution which ··en• joins codification. While rejecting codification the Select Committee proposed many reforms in the present law and practice which are · all in the direction of protecting the citizen's rights. Thus, . it did ''not believe that the interests of Parliament are best served by insisting that critics should !be· insurers of the truth of their criticisms." · _Accordingly, it recommended that fair comment should be accepted as good defence to a charge of contempt of. the legislature. So also a truthful statement made in the public interest. . · This · might well result in enlarging the scope of enquiries into complaints of contempt. But the committee would ''not accept that the overburdening of such machinery as at present exists should be a factor outweighing the fundamental rights of the citizen. H necessary the machinery should be adapted to enable effect to be given to those rights.'' If this approach is adopted in the Indian context, the logical result will be codification. Undoubtedly, some improvement in the present practice can be easily brought about by a mere amendment of the rules. Tlie committee has, for instance·, made some useful ' suggestions for altering the preseqt practice of invoking the penal jurisdiction of the legislature which ''tends to encourage its use · for the purposes of publicity and is an inadequate 4eterrent to the raising of trivial complaints.'' However, the substantive law can be reformed satisfactorily only by codification: The alternative is to retain the present law which is the British law petrified as on January 26, 1950. Codification is being resisted in India on two gtounds: its extreme difficulty and the fact _it would render parliamentary privilege suborcfinate to fund~~ental rights. ~Neither i,s con• vmcma~' ' . . As ~any a$ 31 .Iegislatur:es in ~~ Commonwealth h~ve codified ..their privileges... Indeed., _in . our own. country ~ a very ee!li~ensive")rtode··was drafted but unfortunately it ·was not proceeded with~ The Bengal Assembly Powers and Privileges '

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PAllLIAMENTAllY PIUVIJ,EGES

73

Bill 1939. can yet be t1sed as a convenient model to draw

upon.' 'Jbe second ground is disingenious ·if not worse. The code is what the Constitution contemplated. Second thoughts arose only when the Searchlight case conjured up new sour~ of pow~r. It is about time that the intent of the Constitution framers is carried out. -Weekend Review April 22. 1967 and

The Indian Express August 29. 1968

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. ~Par> (text see· 1be : Law of Parliameatary Privile&es· in ·I ndia· by V. Ramachandtan; Bast~m Book..iCo., Delhi! 1'66, Appondix i XX

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~l'H F, SPEAKER ''The Presiding Officer or the Speaker, more than any other functionary, symbolises the values on which a Parliamentary system of Government is based. The main characteristics of this 'high office are dignity, independence and impartiality. · Parliament is the pivot of a democratic system of Government and the Presiding Officer is the pivot of the Parliamentary machinery.'' The Vice-President, Mr. V. V. Girl remarked in his inaugural speech on May 9, 1968 at the Symposium on the powers of the presiding officers in Indian Legislatures organised by the Institute of Constitutional and Parliamentary Studies. The Speaker is at once the symbol of the parliamentary system and the pivot of its machinery. As such he must have both the authority and power. Both have been called 'in question lately and for different reasons. The disquiet over this was apparent in the Conference of Presiding Officers held in Trivandrum on October 5 and 6,

1968, There are three distinct aspects. The Speaker's impartiality, his powers and the problem of judicial control. It is significant that these issues should have come to the force since the waning of the one-party dominance which the results of the General Elections of 1967 reflected. Soon thereafter Mr. Madho Limaye M.P. in a letter to the Prime Minister Mrs. Indira Gandhi dated March 13, 1967 put forth five points for securing the Speaker's independence and impartiality. Mr. Limaye proposed that the Speaker must, upon election, resign from his party and declare his impartiality in the House. While in office, he should abstain from participation in current controversy and should contest elections only as a non-party candidate, while the other parties should not put up a candidate against him~ After retirement, the Speaker _ sho~ld be given pension for life and barred from further employment in the service of the State save as President.

THE SPEAKER

7S

What Mr. Limaye was_proposing in effect was the insulation of the Speaker's Office from the heat of the political battle by agreed methods. As May bas observed ''confidence in the impartiality of the Speaker is an indispensable condition of the successful working of procedure, and many conventions exist which have as their object not only to ensure the impartiality of the Speaker but also to ensure that his impartiality is generally recognised. He takes· no part in debate either in the House or in Committee. He votes only when the voices are equal. And then only in accordance with rules · which preclude an expression of opinion upon the merits of a question''. To secure this recognition of the impartiality of the Speaker a consensus was small price to pay. Mr. Limaye's proposal implied a certain dissatisfaction with part performance. Unfortunately, the proposal was ignored. H matters had remained there not much h11rm would have come though a fine opportunity would still have been mi~. The great divide was the direct intervention of two nonCongress Speakers into the political arena, the Speakers of West Bengal and of the Punjab. The circumstanus differed, but both claimed to be entitled to rule on constitutional questions beyond their purview and in breach of settled practice.' Mr. B. K. Banerjee ruled on the legality of the Ghosh Ministry and Mr. Joginder Singh Mann on the validity of the Governor's or Y/15 HMSO London para 4). ., ! 1

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FUNDAMENTAL RIGHTS AND PUBLIC OPINION

As often before, Rajaji has expressed an idea at once original and courageous. Speaking in Bombay recently, he revealed that he had opposed the fotmlllation of a code of fundamental rights while the Constitution was being framed and had advocated, instead, the British model. ''Because they were written down, they have been amended out of existence.'' Had they not been put in writing, such a thing would not have happened, he remarked. Coming as these views do from a person of Rajaji's insight into human nature and affairs, they deserve study and reflection. Britain has no written Constitution. Its Parliament is sovereign. It can make any law whatever and no person or body is recognised by the law as having a right to override the legislation of Parliament. Consequently, as Lord Wright has observed, ''In the Constitution of this country there were no guaranteed or absolute rights. The safeguard of British liberty is in the good sense of the people and in the system of representative and responsible government which has been evolved.'' 1 In the USA, on the other hand, the powers of the Congress are limited by the Constitution. A law which violates the Constitution, of which the Bill of Rights is a cherished part, can be declared void by the Supreme Court. This limitation on the power of the State is based on a profound and healthy distrust of the majority of the day. To Jefferson ''the tyranny of the legislatures is the most for1nidable dread.'' The B~tish entrust their rights to the good sense of Parliament and to the force of public opinion. The Americans, while relying on them, fear that both may go wrona disastrously. The memorable words of the ''Federalist'' papers come to mind. ''It may be a reflection on human nature, that such devices s~o~ld be necessary to control the abuses of government. But what is -gover11ment itself, but the greatest of all 1

Liversidge vs. Sir John Anderson (1942).'. A.C. 206, 261.

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INDIA'S CONSTITUTION AND POLITICS

reflections on human nature? H men were angels, no govem-ment would be necessary. If angels were to govern men neither external nor internal controls on government would be: necessary. A dependence on the people is no doubt, the primary control on the government, but experience has taught mankind the necessity of auxiliary precautions.'' As early as 1918, the Indian National Congress at its Bombay session de~anded a Declaration of Rights. A decade: later the Nehru Committee stressed ''our first care should be to have our fundamental rights guaranteed in a manner which will not permit their withdrawal under any circumstances.~' The Karachi Congress reiterated this even more precisely. The Simon Commission, however, rejected the demand. It was put forth again at the Round Table Conference. The Joint ~l_ect Committee on Reforms, 1934, reflecting the British outlook, observed ''either the declaration of rights is of so abstract a nature that it has no legal effect of any kind or its leg~l effect will be to impose an embarrassing restriction on the powers · of the legislature a·n d to create a grave risk that a large number of laws may be declared invalid by the courts because of inconsistency with one or other of the rights so declared.'' · · It .~Qded ''A cynic might indeed _find plausible arguments. in the ~tory during the last ten years . of more than one country, for~ asserting that the most effective method of .ensuring the destructjol) of a fundamental .right i$, to include a declaration of its existence ·in a constitutional· ·instrument.,, This is -exactly what Rajaji fears today. Is the alternative then to ~dopt the British model and do away with such ~nstitutional ~afeguards as we have? These have proved to be fairly effective. In the brief history of our Republic, the judiciary has, on the whole, done nobly by us. Besides. we lack tl1e peculiar British temperament and their long tradition of individual liperty. . . . · ·But it is not difficult to see ~e reasons ·for Rajaji's dissatisfaction with the present state · of things. Our public opinion has yet to develop to the desired. strength. The other safeguard Lord Wright mentioned ''the system of representative and ~ponsible government'' has failed to function as expected because of the lack of a single powerful opposition party. This failure in the· party system has led to what Prof. W. H. Mor-

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FUNDAMENTAL RIGHl'S AND PUBLIC OPINION

ris Jones has called the ''one-party dominance'' in India. It ·h as made legislation and even constitutional amendment so -easy as to make the administration far less sensitive to criticism than it should be. , It is interesting to note that even in the U.S. with all their long history of a Bill of Rights the late Mr. Justice Frankfurter could write. ''But neither the Court and counsel nor police and prosecution are the ultimate deliance for the _liberties of the .people. They rest in ourselves. The liberties that are defined by our Bill of Rights are, on the whole, more living realities in the daily lives of Englishmen without any fu,mat constitution because they are part of the national havit, they are in the marrow of the bones of the people. Such habits become a national tradition through constant renewal in thought and in deed,'' The great merit in Rajaji's contribution is that amidst our pre-occupation with legal remedies, he has strickingly invited our attention to the political necessities-a vigilant public opinion and a fully functioning parliamentary democracy. The Federalist papers ea.lied the people ''the primary control on the government,'' and the constitutional limitations ''auxiliary precautions.'' The precautions -·are very necessary for · the people must be saved against themselves and fundamental rights may not be denied by even the largest of majorities. That protection is the task of the judiciary which functions above the dust arid din of p0litical controversy. But the political pre-requisites are indispensable. It is their feebleness or non-existence which causes such anxiety. The remedy lies with us. For, in Mr. Justice Brandeis' words ''the greatest menace ·to fiecdo~ is an inert people.'' -The ·I ndian Express, June 30~ 1966. . .

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MR. NATH PAI'S BILL

'Twill be recorded for a precedent; And many an error, by the same example, Will rush into the state: it cannot be.' The Bill introduced by Mr.. Nath Pai, M.P. in the Lok Sabha April 7, 1967, seeking to override the Supreme Court's decision in Golak Nath's case,1 is conceived in the same fear as Portia's. It is not surprising that the issues . it has raised get mixe.d up and are not considered on their merits, for if constitutional law is statecraft in its highest sense, as Frankfurter once remarked, constitutional amendment in our country at least, has come to be statecraft at its lowest.. Few legislative measures have aroused as much emotion, or been subjected to as much misrepresentation, wilful or innocent, as this Bill. The issues are two, in the main. Is the ruling in Golak Nath's case worthy of being per11aitted to remain as a precedent because of the intrinsic soundnea of its reasoning? Sound or not on merits, is the legal eflect of the ruling a desirable one? The first issue is a legal one, the second is basically political. When one hears some of the arguments on the second issue about the utter immutability of the fundamental rights and the like, one wonders why in the seventeen years during which, on two occasions, the Supreme Court gave decisions quite contrary to that given in Golak Nath's case, no serious effort was at all made to set the position right. The conclusion is irresistible that, as in the Searchlight case in regard to parliamentary privileges, a judgment of the Supreme Court has opened a vista of power which is too tempting to be blocked. For all the plethora of argument, the legal issue is simple. Article 13(2) of the Constitution provides that: ''The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made

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AIR 1967 S.C. 1943 decided on Feb. 27, 1967.

MR. NA1H PAl'S Bll,I,

203

in contravention of this clause shall, to the extent of the contravention, be void.." The qu~tion is whether this Article is confined to the ordinary -law made under the Constitution or covers the amendment of the Constitution as well. Article 368 of the Constitution reads: ''An amendment of this Constitution may be initiated only by the introduction of a Bill for the .purpose in ·either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House and by a I majority of. not less than two-thirds of the members of that House present and voting, it shall be presented to the President for his assent_ and upon such assent being given to the Bill, the Constitution shall stand amended in accordance with the te1 ms of the Bill.'' However, if the amendment seeks to make any change in certain named provisions bearing on the federal structure, a proviso lays down that 'the amendmeQt shall also requ{re to be ratified 11 • by the legislatures of one-half of the States before the amending Bill is presented to the President for assent. Article 368 itself is· also one of such provisions. The Centre and the States, in such cases, share the labours of amendment. As early as ~tober 1951 a unanimous Constitutional Bench (five Judges) of the Supreme Court held in Shankari Prasad's Case' that Article 13(2) does not cover constitutional amendment. · The judge1nent bears quotation in extenso oil this point for the clarity of ·the reasoning·· that would help in the later discussion. · . · - ''Although 'la~' ·m ust ordinarily include constitutional law, there is a clear demarcation between ordinary law, which is made in exercise of legislative power, and constitutional law, which is. ,pade in exerci8e of constituent pow~r. Dicey ·defines constitutional law as including 'all rules ~which ~irectly or indirectly aff~t the distribution· Qr the eacercise ·. of the sov,:reign power in the . ,$late'. It is thus -~~inly . concerned _ with the _cteati~ of .the three -great .organs of the State, the executive, the · Jegislafltre . am'. .·the judiciary,: :the distribution ·of gover•>rn.,ntal pottaL.ainong them·. and ,the·-defi11ition 1.of their mutual relation. No doubt our constitution m«kers, follow~ .

: AIR 1951 S.C. 4S8i

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INDIA'S CONSl l't·u't·10N AND POLITICS 1

ing the Americ.an model, have incorporated certain fundamental rights in Part and made them immune ·from interference by laws made· by the State. We find it, however, difficult, in the absence of a clear indication to the contrary~ to suppose that they also intended to make those rights immune from constitutional amendment We are inclined to think that · they must have had in mind what is of more frequent occurrence. that is, invasion of the rights of the subjects by the legislative and the executive organs of the State by mean~ of laws and rules made •in exercise of their legislative power and not the abridgement or nullification of such _rights by alterations of the Constitution itself in exercise of sovereign constituent power. That power, though it has been entruste-d to Parliament, has been so hedged about with restrictions that its exercise must be difficult and rare. On the other hand. the terms of Art. 368 ar~ perfectly general_ and empower Parliament to amend the Constitution, with any exception-wltatever. Had it been intended to save the fundam~,ntal rights from the operation of that provision, it would have been perfectly easy to make that intention clear by adding a proviso to that effect. In short, we have here two articles each of which is widely phrased, but conflicts in its operation with . the other. Harmonious construction requires. that one shoµ]d · be read as· controlled and qualified by the other. Having regard to the considerations advertecl to above, we are of .opinion that in the context of Art. 13 'law' must 1,e · taken· to mean rules or. regulations made in exercise of ordinary legislative power and not amendments to the Con• stitution made in exercise ·-o f constituent power, with . the result that. Art. 13(2) ,does not affect amendments-made under Art 368. '! . . Thirteen years later the challenge was renewed in Sajjan Singh's Case,• . but was repelled. This time, however, the Bench divided, three judges followed Shanlcari frasad, two, the present Chie( Justice Hidayatullah being ~ne of them, doubted the· soundness of the precedent. In view of ! this division of opinion Golak Nath's Olse was heard~by a Special Bench ·of eleven Judges. By a maj«ity j six ·to fi.ve, the Bench held :that Article . 13(2) dOtB~ ,,indeal, go\rm a constitutional· amendment ·as well. · r~

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AIR 1965

s.c.

84S decided

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Oct. 30, 1964.

MR. NATH PAI'S BILL

20S

Mr. Nath Pai's Bill seeks to override this judgment by an amendment of the Constitution. Art, 368 would be amended expressly to cover amendment ~f 'any provision' of the Constitution. To this Bill the Joint Committee of Parliament which considered the Bill suggested one basic change. namely that 'in view of the importance of Fundamental Rights, State Legislatures should also be associated with the amendment of the provisions contained in Part m (which contains these rights). They have accordingly brought Part m, within the purview of the proviso to Art. 368. Henceforth. all constitutional Amendments relating to Part m would also have to be ratified by the Legislatures of not less than one-half of the States'.• To remove all doubt, a clause will be added to declare in clear te1ms that Article 13 will not apply to constitutional amendment.. . The Bill deserves consideration, then, from both as~ts, the legal and ·the political. That it will cany out the intention of the framers=of the Constitution is evident from the following remarks_. made by the Chairman of the Drafting Committee, Dr.. B. R. Ambedkar, in the Constituent Assembly on September 17, l949..' '"Therefore, the first point which I wanted to emphasise was that it is absolutely a misconception to say tb:at;.there ·is no article in the Constitution which could not be amended -by Parliament by a simple majority. As I said,. we have any number of articles in our Constitution which it would be .open for Parliament to amend by a bare majority. .. .. ''Now, what is it we do? We divide the articles of the Constitution under three categories. The first category is the one which consists of articles which can be amended by Parliament · by a bare majority. The seconlhd -sectlrify,

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INDIA'S CONSTITUTION AND POLITICS

the prevention of dissemination of documents containing any matter which is likely to prejudicially affect friendly relations with any foreign State or is d~rogatory to national prestige, and any other purpose conducive to the inter~t of the general public. All these grounds for prohibition including the last vague and all embracing one, ''the interests of the general public,'' are deterininable solely by the Central Government in their exclusive discretion. Against its decision the citizen has little redress. The Act (Sec. 155) is explicit on the point, ''No suit, prosecution or other legal proceeding shall lie against the Central Government or any officer of the Government, or a local authority for anything which is done, or intended to be done in good faith, in pursuance of this Act or the rules or regulations.'' One remedy, nonetheless, remains. The Act confers on the Central Government arbitrary, uncontrolled powers. Under the Cinematographs Act, 1952 a censorship Code has been formulated for the guidance of the Censors. The discretion conferred on them is thus a regulated one. No such rules exist under the Customs Act. The Supreme Court has time and again ruled that conferment of unregulated discretion on the State violat~ the fundamental right to equality in that it would enable the State to pick and choose from among those equally situated, It is incontestable that the State should ~ the power to prohibit the entry of certain literature. The mass of obscene literature, obscene by the best judicially approved test of obscenity-''dirt for dirt's sake''-testifies to the need for such power. Only, the grounds for prohibition must be spelt out precisely, on a rational basis, and there must be safeguards against abuse. But what is one to say if the Central Government prohibits the entry of a book on the ground that it is ''likely to prejudicially affect friendly relations'' with another State, or that it is ''derogatory to national prestige.'' Or, simply that the ban is ''conducive to the interests of the general public?'' Such a power can by no stretch of logic be said to be a ''reasonable'' restriction on the fundamental rights to freedom of spooch and expression and to acquire and hold property (\Vbidl the literature would be in the bands

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221

of the reader), all guaranteed by Article 19 of the Constitu-

• tion. In sum, the law is in such a bad shape as almost to invite perpetration of wrong. The number and the kind of books that have been so banned in recent years proves the point.

-The Indian Express, Nov!t 11, 1967

PRESS CON1ROL AND THE CONSTITUTION

••1 would rather have a completely free Press with all the dangers involved in the wrong use of that freedom, than a suppressed or regulated Press.''-Jawaharlal Nehru. The Prime Minister, Mrs. Indira Gandhi, certainly has ideas about the country's Press. With banks and industries, the Press is under a monopoly of the few. ''We shall not progress so long as this monopoly exists,'' she said (July 28). That it was really the dissent of the few from her policies, rather than the state of ownership of the newspapers, which had aroused her wrath became clear a few days later (August 4) when she ascribed Press criticism of her policies to a numerical few. ''These few individuals have both money and newspapers,'' and they have been able to ''raise their voice against the common men, against me and against the women of this country (sic), through the newspapers.'' The sweeping, unrestrained denunciation and the selfidentification with ''the common man'' and ''the women of the country'' bes~k a certain outlook. And it is an outlook which has scant respect for the freedom of speech of . others. Predictably, the Prime Minister's wild cry has been echoed by others. It is urged that all newspapers combined should be converted into public trusts with representatives of working journalists and other employees associated with the management of newspapers. This is supposedly in implementation of the Press Commission's Report. The analysis of that doctiment, therefore, deserves careful attention before the recommendations are carried out. Let it be pointed out at the outset that the Prime Minister's charge of a monopoly Press is wide of the mark. The Press Commission said, ''We are of the Qpinion that a monopoly should be deemed to prevail if a predominant part of all the newspapers sold in the whole country or a substantial part of it is supplied by one person or by one group of inter-connected companies.'' Judged by this fair test it found a monopoly only in the case of two newspapers in Bengal

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one in Te\ugu and another in Tamil. That was in 19S2. The position h&S hardly changed since. Interestingly, the Commission also observed, ''While we are satisfied that in the present stage of development of the industry, no monopoly as such of public opinion exists. we foresee the possibility of regimentation coming in. Wherever a newspaper has tried to build up· a mass circulation, it has met with competition from undertakings expressing other points of view arid such competition is by itself the best corrective to the acqtiisition of any monopoly· of public opinion.'' The Commission said in another context that it was ''strongly opposed to the subsidising of such competition in any · manner by Government.'' · · . As regards n~wspapers owned by businessmen or industrialists, the Commission had ~'no cause to complain'' if their ownership affected editorial, policy but only if ''the fairness, objectivity, accuracy ·or comprehensiveness of .news reporting'' was affected. · The Commission was at pain·s to emph~ise that the shortcomings of the Press are not peculiar to any particular ·type of ownership. ''There has also been evidence about newspapers whose ownership was vested in a political ··part}', where the profit motive was not the dominant one, which indulged. in ··misllepresentation of political opponents. . The~ have hem ca~s ·of , sroall-rnewspapers, . owned by i~ividuals .or groups or part-•;ershi~ indlllgiDg ilwt scurrilous. and offen. publi · - '' .. . ~ ., , . i. :1. · . &ve . cations. There · have also·~beelJ. instances ·:wliete, thou~ ·•e· of ownership · ·permitted dose )contr-ol~ ·editom "tftave ·defied ptprietmw- and ·followed policies· ilot ·. manifestly · in the public in~t~ ''The,e has also been evid~nce about· a newspaper, whose ownership is kept within a family, which has set up hi~.. t~aditio~ .