Enemies within the system

Print edition : September 01, 2017

The President's bodyguards at Parliament House ahead of the swearing-in ceremony of the 14th President in July. Photo: PTI

A view of the Central Hall of Parliament House. Photo: R.V. Moorthy

We have erected a democratic edifice on feudal ground. But this achievement is now at stake because we have failed to instil in our polity the values which alone can sustain the Constitution. In the main it is the leaders who are to blame.

The framers of the Constitution of India opted for the British parliamentary system, as a matter of course, at the very outset of their deliberations, at a joint meeting on June 5, 1947, of the Union Constitution Committee and the Initial Constitution Committee. Vallabhbhai Patel announced the decision in the Constituent Assembly on July 15, 1947: “Both these Committees met and they came to the conclusion that it would suit the conditions of this country better to adopt the Parliamentary system of Constitution, the British type of Constitution with which we are familiar” ( Constituent Assembly Debates, Volume IV, page 578). That was but natural. But were the leaders and the people qualified to run that model?

Ivor Jennings, one of the foremost authorities on the British Constitution, pointed out in his classic Cabinet Government: “Experience has taught the British people that ‘fair play’ is as necessary in public as in private life. It has taught parties that parliamentary intransigence and electoral dishonesty brings ultimate retribution at the polls. But the real reason is that the parties, like the people, accept the necessary conditions of democracy. They accept the principle, that is, that the majority may govern but may not oppress the minority. Government and Opposition alike assume the honesty of the other. The British Constitution, said Mr Gladstone, ‘presumes, more boldly than any other, the good faith of those who work it’. The ‘understandings and habits of mind’ by which the Constitution functions are ‘bound up with the growth of mutual confidence between the great parties in the State, transcending the political differences of the hour’. Democratic government has its Marquess of Queensberry rules, and public opinion is the referee” (emphasis added, throughout; third edition, page 16.)

He also added: “It is not untrue to say that the most important part of Parliament is the Opposition in the House of Commons. The function of Parliament is not to govern but to criticise. Its criticism, too, is directed not so much towards a fundamental modification of the Government’s policy as towards the education of public opinion. The Government’s majority exists to support the Government. The purpose of the Opposition is to secure a majority against the Government at the next general election and thus to replace the Government. This does not imply that a Government may not be defeated in the House of Commons. Nor does it imply that parliamentary criticism may not persuade the Government to modify, or even to withdraw, its proposals. These qualifications are important; but they do not destroy the truth of the principle that the Government governs and the Opposition criticises. Failure to understand this simple principle is one of the causes of the failure of so many of the progeny of the Mother of Parliaments and of the supersession of parliamentary government by dictatorships” ( ibid, page 172).

In such a system, “The most elementary qualification of a minister is honesty and incompatibility. It is, however, necessary not only that he should possess this qualification but also that he should appear to possess it” ( ibid; page 106). Note that he distinguished between public honesty and personal corruption.

The parliamentary system rests on a recognised set of conventions and tacit understandings. Even if the Constitution is written out, unlike the British Constitution, those conventions apply. The Supreme Court of India holds that constitutional conventions are as binding as the written text (S.C. Advocates on Record Assn vs Union of India [1993] 3 SCC page 656).

No Constitution can possibly provide for all situations. There must be play at the joints, and that play is governed by a culture to which all belong. Writing of the influence of British political culture, young John F. Kennedy, during his stay in the United Kingdom when his father, Joseph Kennedy, was Ambassador, summed up some of its elements—do not put your hand in the public till, nor make money out of politics; conduct party warfare fiercely, but stop at the point where the system itself is threatened; do not press a party advantage too far; the political system and its rules are more important than party gains or power. The system must be worked, not wrecked.

Walter Bagehot’s work The English Constitution is a classic. So is A.J. Balfour’s Introduction to its third edition, which the great jurist and Sanskrit scholar Justice M.M. Ismail quoted profusely in his study The President and the Governors in the Indian Constitution (Orient Longman, 1972; it deserves a reprint).

Balfour went to the very heart of the matter. “Constitutions are easily copied, temperaments are not; and if it should happen that the borrowed Constitution and the native temperament fail to correspond, the misfit may have serious results. It matters little what other gifts a people may possess if they are wanting in those which, from this point of view, are of most importance; if, for example, they have no capacity for grading their loyalties as well as for being moved by them; if they have no natural inclination to liberty and no natural respect for law; if they lack good humour and tolerate foul play; if they know not how to compromise or when; if they have not that distrust of extreme conclusions which is sometimes misdescribed as want of logic; if corruption does not repel them; and if their divisions tend to be either too numerous or too profound, the successful working of British institutions may be difficult or impossible. It may indeed be least possible where the arts of parliamentary persuasion and the dexterities of party management are brought to their highest perfections… Let the political parties be reduced to two (admittedly the most convenient number for Cabinet Government), but let the chasm dividing them be so profound that a change of administration would in fact be a revolution disguised under a constitutional procedure.”

To his niece, Blanche Dugdale, he was more forthright in a conversation on April 25, 1925: “I doubt if you would find it written in any book on the British Constitution that the whole essence of British parliamentary government lies in the intention to make the thing work. We take that for granted. We have spent hundreds of years in elaborating a system that rests on that alone. It is so deep in us that we have lost sight of it. But it is not so obvious to others. These peoples—Indians, Egyptians, and so on—study our learning. They read our history, our philosophy, and our politics. They learn about our parliamentary methods of obstruction, but nobody explains to them that when it comes to the point all our parliamentary parties are determined that the machinery shan’t stop. ‘The King’s government must go on,’ as the Duke of Wellington said. But their idea is that the function of opposition is to stop the machine” ( The World’s Classics, Oxford University Press, pages xxii – xxiii; and Blanche E.C. Dugdale, Arthur James Balfour, Hutchison, page 364, respectively).

Take each qualification and ask ourselves—do we have it? Do Indians know how to grade their loyalties, putting, for instance, the Constitution above party or personal gain? Do we have respect for the law? Practise tolerance? Tolerate foul play? Seek compromises in the public interest? And, most importantly, does corruption, indeed, repel us?

Let me cite a telling case. William Jowitt, a successful barrister, was a member of the Liberal Party, on whose ticket he won a seat in the House of Commons in the general election on May 30, 1929. On June 4, he became Attorney-General in the Labour Government. Announcement of “the rapid conversions” became, as The Times (London) put it, “a topic of recrimination and ribaldry”. He stood again in a byelection on July 11 and won. He undertook also never again to stand from this safe Liberal constituency. Yet he received a stinging rebuke during a debate on the definition of “unemployed” in the Bill as “those genuinely seeking work”. Lloyd George said it applied to Jowitt.

By our standards, Jowitt was a saint. But the rapid conversion was not explained. “From time to time in later life Jowitt had to face remarks which showed that the events of 1929 had not been forgotten. Thus, on the day on which a general election was announced in February 1950, Jowitt entered the dining room at the House of Lords and took his seat at a table with some younger peers—Lords Mancroft, Tweedsmuir, and Fairfax of Cameron. Jowitt remarked that their future was brighter than his. Their political careers would not be seriously affected by the outcome of the election, whereas if Labour lost, he would lose his position and with it his flat in the Palace of Westminster and be obliged to find another residence. ‘I wonder whether there is any room in the vicarage at Bray,’ remarked Lord Mancroft to his neighbour in an audible aside. Jowitt did not pretend to be amused, and thereafter, whenever Lord Mancroft spoke, Jowitt left the Chamber” (R.F.V. Heuston, Lives of the Lord Chancellors 1940-1970, Oxford University Press, page 80).

In India, persons censured by commissions of inquiry or even courts of law do not incur such contempt. Attorneys General who manifestly lacked character remained in office. Two defectors who split their parties and conspired with the opposition became Prime Ministers—Charan Singh and Chandrasekhar. There was another candidate, too, one P.V. Narasimha Rao. The standard of British public life has declined steeply since Margaret Thatcher. It was intolerance of moral and financial corruption that had shaped politics for long, as the Jowitt incident shows.

At the root of the malfunctioning of its constitutional system is India’s utter and prolonged failure to evolve a viable, working political system in which political parties alternate at the seat of power. Ramshackle coalitions are a temporary palliative to counter a single party hegemon in power.

A strong opposition ensures that the conventions are obeyed. Before Independence we resented British criticisms on this score as excuses for not granting independence to India. The Joint Committee on Indian Constitutional Reform (Sessions 1933-34) took a dim view of India’s ability to work “an unqualified system of parliamentary government”. It said: “Parliamentary government, as it is understood in the United Kingdom, works by the interaction of four essential factors: the principle of majority rule; the willingness of the minority for the time being to accept the decisions of the majority; the existence of great political parties divided by broad issues of policy, rather than by sectional interests; and finally the existence of a mobile body of public opinion, owing no permanent allegiance to any party and therefore able, by its instinctive reaction against extravagant movements on one side or the other, to keep the vessel on an even keel. In India none of these factors can be said to exist today. There are no parties, as we understand them, and there is no considered body of political opinion which can be described as mobile” (Volume 1 [Part I] Report, HMSO, London, 1934, HL 6 [Part 1], HCS [Part 1, ibid., page 11).

After Jawaharlal Nehru’s death in 1964, people started saying that the Constitution was not suited to the Indian temperament and began clamouring for the presidential system. But with the conduct we have witnessed of that “temperament”, one wonders if it can sustain any other constitutional system, least of all the presidential one. The Aya Rams, Gaya Rams will, like Newt Gingrich, ensure deadlocks to exact their price and imperil democracy itself. There were and still are those who believe as Sir Tej Bahadur Sapru did in 1930: “I do not believe that we have yet got the necessary mentality for democratic forum of government.” On February 22, 1941, he wrote to the Chief Justice of the Federal Court, Sir Maurice Gwyer: “I have never been so foolish as to imagine that in the best of circumstances we could reproduce in this country the conditions of British democracy” (Rima Hooja, Crusader for Self-Rule, Rawat Publications, Jaipur and New Delhi, pages 167 and 194).

Two decades earlier, a directly opposite view was expressed on August 13, 1919, before a Committee on Constitutional Reforms appointed by the British Government. It was by a member of the Congress and was based on personal experience. Lord Islington’s question and his reply are set out here. “What I want to get at is this: You would say that there are people in India who, though they be not literate, have a sufficient interest in the welfare of the country to entitle them to a vote? I think so, and I think they have a great deal of common sense.

“People who have that kind of common sense which would justify them having a vote? — Yes; I was astonished when I attended a meeting of mill hands in Bombay when I heard some of the speeches, and most of them were illiterates.” Another exchange is interesting. “You said you spoke from the point of view of India. You speak really as an Indian nationalist? — I do. Holding that view, do you contemplate the early disappearance of separate communal representation of the Mohammedan community? — I think so. That is to say, at the earliest possible moment you wish to do away in political life with any distinction between Mohammedans and Hindoos? — Yes. Nothing will please me more than when that day comes.

“You do not think it is true to say that the Mohammedans of India have many special political interests, not merely in India but outside India, which they are always particularly anxious to press as a distinct Mohammedan community? — There are two things. In India, the Mohammedans have very few things really which you can call matters of special interest for them — I mean secular things. I am only referring to them, of course? — And therefore that is why I really hope and expect that the day is not very far distant when these separate electorates will disappear.”

The witness was none other than M.A. Jinnah, which proves the utter falsity of Nehru’s charge that Jinnah was against mass politics. What went wrong then? It was Gandhi’s programme of civil disobedience and Nehru’s contempt for the British system and for the liberals who espoused it. They dominated the Drafting Committee of the Constituent Assembly. It was served by a Constitutional Adviser, Sir B.N. Rau, and elected a Drafting Committee with Dr Bhim Rao Ambedkar as its head. Its members were lawyers of eminence like Sir Alladi Krishnaswamy Ayyar and K.M. Munshi and men of wide experience in public affairs like Sir Gopalaswami Ayyangar, T.T. Krishnamachari, Sir Mohammed Saddulla of the Muslim League, and N. Madhava Rau.

Nehru’s discomfort

They had all drunk at the fount of the British constitutional system and parliamentary practice, some more deeply and admiringly than others. Jawaharlal Nehru savoured a different and far headier brew. His Autobiography poured scorn on Indian liberals of old, constitutionalists par excellence, for seeing things “through British spectacles of true-blue colour”. He was uncomfortable with the class composition of the Congress, no less. “Most of those who have shaped Congress policy during the last seventeen years have come from the middle classes. Liberal or Congressmen, they have come from the same class and have grown up in the same environment.… As the Congress became more and more representative of the rural masses, the gulf that separated it from the liberals widened, and it became almost impossible for the liberal to understand or appreciate the Congress view point. It is not easy for the upper-class drawing room to understand the humble cottage or the mud hut” ( Autobiography, page 416 and 420). Did Nehru?

The liberals believed that Indians should work the legislatures established by the Act of 1919 to gain experience in the parliamentary system. When, finally in 1937, the Congress accepted office under the Government of India Act, 1935, it was to use the provinces as another front in the freedom struggle. One episode illustrates that. Both Gandhi and Nehru were opposed to P.D. Tandon resigning from the Congress after his election as Speaker of the U.P. Assembly in accordance with British practice. This was the mindset. After Independence, the Speakers have always been the ruling party’s faithful.

Sources of corruption

Corruption reared its head even during the freedom movement, as Dr Tomlinson documented in his work The National Congress and the Raj, based on the archives. Subhas Chandra Bose was not above it. “This independence of outlook and action was the real source of Bose’s challenge to the established leaders. Even Bose’s financial resources were independent of those of the ‘Gandhians’. The main sources of funds open to the ‘right-wing’ leaders were donations from Indian businessmen negotiated by Patel, Desai, Bajaj and G.D. Birla. There was also the capital and interest on certain special appeal funds and the loans that could be raised on them. Nehru had no independent resources; he was completely dependent on the ‘Gandhians’ for money. Bose’s sources of income were smaller, but they were genuinely his own. He could rely on payments for favours shown to Bengali businessmen by the Bengal P.C.C. [Pradesh Congress Committee] and the Calcutta Corporation (as long as he controlled these bodies) and on ‘protection money’ from large industrial magnates in Bengal, Bihar, Assam and Orissa, given in return for good labour relations. He also had support from a group of non-Bengali businessmen, headed by the Delhi mill-owner Shankar Lal, and could use the funds of the Tropical Insurance Company (of which he and his brothers were directors and Shankar Lal Managing Director) to stabilise his finances. From these sources Bose managed to raise Rs.50,000 simply for the expenses of his delegates and canvassers at Tripuri” (pages 123-124). How much could the Rs.50,000 be worth now in 2017? Bad examples were set by the leaders during the freedom movement.

Gandhi’s movements were not free from use of violence by its participants. K.M. Munshi wrote of the Quit India Movement: “Truth to tell, what they did was anybody’s business. It was certainly not non-violent even at the start. Disruption of communications and destruction of public property provoked stern action by the Government, which in turn led to more reckless behaviour by the people—what Gandhiji later pithily described as ‘leonine violence’” ( Pilgrimage to Freedom, page 81).

The wise Rajaji (C. Rajagopalachari) predicted in an entry in his jail diary: “Elections and their corruption [ sic] injustice and life power and tyranny of wealth, and inefficiency of administration will make a hell of life as soon as freedom is given to us. Men will look regretfully back to the old regime of comparative justice and efficient, peaceful, more or less honest administration.

“The only thing gained will be that as a race we will be saved from dishonour and subordination. Hope lies only in universal education by which right conduct, fear of God and love will be developed among the citizens from childhood. It is only if we succeed in this that Swaraj will mean happiness. Otherwise it will mean grinding injustices and tyranny of wealth.”

Weak constitutional morality

As Dr Ambedkar warned the Constituent Assembly, on November 4, 1948, “Constitutional morality is not a natural sentiment. It has to be cultivated. We must realise that our people have yet to learn it. Democracy in India is only topdressing on an Indian soil, which is essentially undemocratic” ( CAD, Volume VII, page 38).

He was implying, no doubt, that things would improve under the Constitution and that it would help to instil and strengthen constitutional morality which is indispensable for its own survival. Now, decades later, one finds that constitutional morality in India is far weaker than it was when the Constitution was being drafted. There is no gainsaying the reality of the Indian achievement in working a parliamentary system despite grave handicaps. We have erected a democratic edifice on feudal ground. But this achievement is now at stake because we have failed to instil in our polity the values which alone can sustain the Constitution. In the main it is the leaders who are to blame.

As Walter Lippmann wrote: “There is no mechanical gadget by which the moral level of public life can be maintained. There is no spasm of popular righteousness which will raise it much for very long. … In the realm of morals, the example set by the prominent is decisive. It is far more important than the exposure of the wicked. In fact, the example of the prominent shows those who administer and enforce the laws what is expected of them.”

India did worse than fail to evolve a party system. It distorted its shape in a manner that no self-respecting democracy will accept. It reduced MPs and MLAs to bondsmen. This alone suffices to reduce democratic governance to a farce. In the U.K., for instance, the party ticket is awarded by the constituency party and the political parties are so organised. An MP owes no debt to the central leadership; he can defy it so long as his constituents stand by him. He can refuse to obey the party whip on a matter of conscience. The party in power rests on MPs with an independent political base. They have the capacity to rebel. The Indian system not only warps democracy but also freedom.

The Chief Minister owes his job to “the high command” and can only meekly assert his State’s rights vis-a-vis the Centre. He cannot select Cabinet Ministers, nor expand the Cabinet nor advise dissolution of the Assembly to enforce discipline. The Governor is the Centre’s man. In sum, parliamentary government at the State level exists only in form. At the Centre, deviations from the norm are common. The high command has a say on the composition of the Cabinet.

Which other democracy is plagued with defections and distorted by anti-defection laws? Confidence in the integrity and independence of the Speaker is indispensable to the working of the parliamentary system. In India this precondition is absent. Coalitions in Uttar Pradesh provide for change of Speakers when each party takes its turn to form a government. Kashmir has a Rashtriya Swayamsewak Sangh (RSS) man as Speaker.

The Supreme Court of 2017 is a pale and very disturbing shadow of the court we had and respected in its early years. The doctrine of a “committed judiciary” and the supersession of three of the most senior judges in 1973 robbed the judges of self-confidence and even self-esteem. A good few became populist, in judgments and on public platforms. On sensitive issues judges shirk their duty boldly to do justice even if it invites unpopularity. The right to free speech, minority rights, the right to individual liberty against a state which curtails it in the name of “terrorism” are some of the topics on which the court fails almost invariably. When it comes to Kashmir, the court beats a magnified retreat. One judge refused to touch Longowal’s habeas corpus case. He became the Chief Justice of India. If this be the surrender on Punjab, what do you expect on Kashmir?

It is not the Constitution which has failed the nation. It is the leaders who betrayed the trust which the framers of the Constitution reposed in them. Two pronouncements by Dr Ambedkar record that trust. One was on November 25, 1949: “However good a Constitution may be, it is sure to turn out bad because those who are called to work it happen to be a bad lot. However bad a Constitution may be, it may turn out to be good if those who are called to work it happen to be a good lot. The working of a Constitution does not depend wholly upon the nature of the Constitution. The Constitution can provide only the organs of the state such as the Legislature, the Executive and the Judiciary. The factors on which the working of these organs of the state depend are the people and the political parties they will set up as their instruments to carry out their politics. Who can say how the people of India and their parties will behave?” ( CAD, Volume XI, page 975). He added that it was futile to pass any judgment upon the Constitution without reference to the part which the people and their parties are likely to play.

The other pronouncement, on November 4, 1948, is more telling: “I feel that it [the Constitution] is workable, it is flexible and it is strong enough to hold the country together both in peace time and in war time. Indeed, if I may say so, if things go wrong under the new Constitution, the reason will not be that we had a bad Constitution. What we will have to say is that Man was Vile” ( CAD, Volume VII, pages 43-44).

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