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The Constitution and the course of politics

Print edition : Apr 01, 2000 T+T-
A.G. NOORANI

Working a Democratic Constitution: The Indian Experience by Granville Austin, Oxford University Press; pages 771, Rs.995.

GRANVILLE AUSTIN'S work could not have appeared at a more opportune moment; nor could its writer have been present in India, as he was these last three months, at a time when his wise counsel would have been more relevant and timely. His first book Th e Indian Constitution: Cornerstone of a Nation, also published by Oxford University Press in 1966, took the world of scholarship by storm. Delving into the archives, the author described how the Constitution of India came to be drafted. This volume, written after a decade's study, records how it has worked in actual practice since it came into force on January 26, 1950 till the end of 1984.

Here, Austin goes back beyond 1950 to provide perspective and reaches farther than 1984 to cover events such as the controversy over the Mandal Report (1990), the Supreme Court's ruling on the appointment and transfer of Judges, "and the failure in 1992 to use Central Government forces to protect the Babri mosque at Ayodhya" (he is too honest to refer to it as "the disputed structure"). One unfortunate omission is the court's historic ruling in the Bommai case on the limitations on the power to i mpose President's Rule in the States. Another is the neglect of the erosion of Article 370 on Kashmir's special status in the Indian Union. To be fair to the author, it would have necessitated a detour from the main road. He is uniquely qualified to writ e a definitive monograph on the subject.

Uniquely, because very few can match his industry and integrity and a talent for delivering candid censure in measured words. His empathy for India and its democracy have won him and his wife, Nancy, the affection of all who have known them.

A Constitution can do no more than set up the skeletal framework of the polity. Politics provide the flesh and blood. Once one of the "experts" on the Constitution, and member of the Bharatiya Janata Party-led Government's Constitution Review Committee, angrily asked a flamboyant lawyer, also a member of the committee, whether the Constitution had helped banish poverty. His illiteracy has not debarred him from performing on television or the membership of this star-crossed body. Its Chairman, Justice M. N. Venkatachaliah, when asked what was the main challenge it faced, replied - checking the population explosion. The committee's exertions in this noble endeavour will be watched with keen interest.

In this context, Granville Austin's remarks in recent speeches and press interviews were pointed. "The Constitution has been accused of failures and weaknesses - in recent articles and discussions - that cannot reasonably be attributed to it. It would be absurd, as some individuals have suggested, to amend the Constitution in an attempt to meet the needs of those below the poverty line or to outline the obligations of foreign investors... Governments will become stable not through constitutional amendme nt, but when factionalism - and its causes - declines."

Austin raised some "critical questions". Would amending the Constitution take India closer to its aims? "What are citizens' reactions to the very idea of a review of the Constitution, for the Constitution belongs to them? Who has the moral and political authority to initiate a review - as opposed to an amendment - and to establish the modalities for conducting one, including deciding who are to be the reviewers?" (India Today, January 31, 2000).

Would the quality of India's politics improve if its Constitution were amended? On the BJP's self-serving idea, he said: "If you had a Parliament with a fixed term, you could be re-enacting the Emergency." As he put it pithily in a telling phrase: "Const itutions do not work; they are worked by citizens and governments" (The Hindu, February 2 and 3, 2000).

This book records in meticulous detail precisely how it has been worked by our politicians, judges and lawyers. "Constitutional law ... is not at all a science, but applied politics, using the word in its noble sense," Justice Felix Frankfurter aptly sai d. The stark reality is that India has failed to evolve a viable party system. The Left and the Right have, despite ups and downs, stood their respective grounds. But centrist parties have been a pathetic mess. Granville Austin's study is as much abou t the course of India's political development as it is about the working of its Constitution, a point missed in the deservedly laudatory notices of the book.

"The subject deserves a multi-volume history of record to include every scrap of evidence and the relevant documents from several government ministries. But presently, even the files on constitutional amendments kept in the Law Ministry are hidden by a c onspiracy of silence. I have included what I consider the maximum tolerable amount of evidence to support the narrative."

Austin has had perforce to rely on books, pamphlets, newspapers and extensive interviews. So extensive have they been that we have authoritative "insides" on very many of our constitutional crises. They were all triggered, not because of any defect in th e Constitution, but by the short-sighted policies and inordinate ambitions of politicians in power, especially Indira Gandhi.

There are certain areas which merit closer attention. Successive British monarchs in the last century, to go no further, have been served by advisers of the calibre of Sir Arthur Knollys, Lord Stamfordham, Sir Clive Wigram and Sir Alan Lascelles; each de signated Private Secretary and appointed at the discretion of the Crown to offer independent advice. Lascelles' letter to The Times (May 2, 1950) on the dissolution of the House of Commons, written under the pseudonym "Senex", is quoted by every work on constitutional law as an accurate statement of the law on the topic. Successive Presidents of India, in contrast, have been served by men drawn from the Indian Administrative Service or other public services, whose future lies with t he government. In August 1950, President Rajendra Prasad wrote to the Home Minister, Sardar Vallabhbhai Patel, expressing the desire for the services of a senior staff person to inform him "if there is any matter in which I should have discussions with m inisters."

If the history of constitutional development through political crises is a major feature of the work, another is its record of the manner in which some vital parts of the Constitution were applied; most notably, the fundamental rights and Article 356 on President's Rule in the States. One finds it hard to believe but it is true that in power as Law Minister, Dr. B.R. Ambedkar told Prime Minister Jawaharlal Nehru that while "reasonable restrictions could be placed on speech relating to libel, slander, an d undermining the security of the state, laws placing such restrictions, he added, ought to be exempted from court intrusion." This was recorded in a memorandum of March 14, 1951 cited in the book (page 44). He did favour adding the word "reasonab le" to qualify the "restrictions" on the right to free speech in Article 19(2) of the Constitution. That was done by the First Amendment (1951).

Nehru set some bad examples early in the day. In 1951 he advised the imposition of President's Rule in Punjab. "President Prasad was unhappy with the situation. 'I intensely dislike suspending the normal working of the Constitution in the Punjab and assu ming to myself the functions of the State government,' he wrote to Nehru. No emergency had arisen in the State and the Chief Minister said he had resigned 'in obedience to a directive of the Congress Parliamentary Board' (CPB), not because he had lost th e confidence of the legislature. 'I consider it wholly wrong,' Prasad continued, to permit a non-constitutional body (the CPB) to interfere with the normal working of the Constitution by producing an artificial emergency. 'My feeling is that we have crea ted a very bad and a very wrong precedent... (and) acted against the spirit of the Constitution, although the action may be justified as being in strict accordance with its letter.'"

Indira Gandhi inherited bad precedents and made matters worse. Bar the Janata Party interlude (1977-79), most of the book is about her two tenures in office as Prime Minister (1966-77 and 1980-84). The author's interviews reveal how close we had come to a repressive Press Bill in 1971. Its professed aim was to make the press "more responsive to the aspirations of the people". Its supporters were Information Minister Nandini Satpathy, Secretary in the Ministry R.C. Dutt, Minister of State for Company Aff airs Raghunath Reddy, and Secretary to the Prime Minister P.N. Haksar, the most ardent of them all.

Austin's summing up of that fateful period deserves to be quoted in extenso: "Although politically secure from 1971 onwards as she never had been, Mrs. Gandhi moved away from constitutionalism toward absolutism. Aware of her people's adoration, sh e came to believe that she had the 'divine right of support'. Suspicious of the courtiers in the party and government who surrounded her, her attitude was 'if you oppose me, you are an enemy'. As a result, Ministers, Chief Ministers, and party officials did not assert themselves. Opposition parties and leaders were not political opponents, but anti-national forces... In combination, these factors led to the virtually one-person rule of 1971-77, during which her government first challenged and then subve rted constitutional democracy. Owing their elections to her, Chief Ministers depended on her continuing favour. And she appeared to be 'deliberately manipulating Congress factionalism to prevent a healthy consolidation of power in the States'. Her domina tion of Congress members in Parliament, most of whom also owned their seats to her... evolved to the point described by Sir Ivor Jennings: 'The flexibility of the cabinet system allows the Prime Minister to take upon himself a power not inferior to that of a dictator, provided always that the House of Commons will stand by him.' The Lok Sabha barely objected to her aggrandisement of power, and with her Ministers subdued, constitutional power migrated from the voter to his legislator to the Council of Mi nisters and then to the Prime Minister. Mrs. Gandhi had gone from vulnerability to the political system to mastery of it."

One wonders, in retrospect, how much of its traces linger in our polity. The Congress(I) persists in nominating Chief Ministers. Is the BJP much different?

The Supreme Court's response was disastrous. The Golak Nath ruling 1967, on the exemption of the fundamental rights from Parliament's power to amend the Constitution, was "a political decision, not based on the true interpretation of the Constitution," w rote Motilal C. Setalvad, India's first and most distinguished Attorney-General, in his memoirs My Life (page 581). Few noticed his prophecy in 1970 which came so true: "It may well be that Chief Justice Subha Rao and his majority colleagues in tr ying to preserve unabridged the rights (fundamental) in Part III for all time by a political judgment, have paved the way for political moves which may result in packing the Supreme Court, so as to alter its complexion."

The court's ruling in the bank nationalisation case (1970), which this writer then praised in grave error, and in the Privy Purses Case 1970, of dubious correctness, tempted Indira Gandhi to accept S. Mohan Kumaramangalam and others to supersede the thre e most senior Judges in the appointment of the Chief Justice of India in April 1973.

The Indian judiciary is yet fully to recover from that blow. The author's "insides" on that episode and others will be of immense help to historians. The judiciary would not have suffered the fate it did but for defects in character of not a few of its p ersonnel. "The imbalance of constitutional institutions exceeded the expectations of the architects of the supersession of judges. After becoming Chief Justice, A.N. Ray more than shared the government's economic viewpoint - he developed an adulatory att itude toward the Prime Minister which was remarked upon by many observers and associates. He made himself amenable to her influence by telephoning her frequently, using the 'RAX' telephone system directly connecting the most senior officials of governmen t. He would also ask her personal secretary's advice on simple matters, conveying the impression that the Prime Minister's views might be heard concerning an ongoing case."

It is public response which demonstrated the strength of our democracy. "The anti-democratic actions of a few aroused the constitutional sensibilities of the many." The same was true of the Emergency. Austin's interviews shed a flood of light on many of its dark corners. The Emergency truly aroused the nation. "In retrospect, the ugly experience may have been the saving of democracy in ways not thought of by the Prime Minister when she told Parliament that the Emergency was not to destroy the Constituti on but 'to preserve and safeguard our democracy'. It taught Indians about the dangers to democracy that lurk anywhere; of demagoguery, of leaders uncaring of liberty, of hero-worship and placing power in the hands of a few, of the dangers from citizens' abdication of responsibility. Like the 'McCarthy period' in the United States, it taught that vigilance would be the price of its not happening again."

It is interesting to recall that Indira Gandhi herself voted in the Lok Sabha in 1978 for the repeal of her 42nd Amendment to the Constitution which sought to institutionalise the Emergency. Here, again it was the flawed character of the men in power whi ch paved the way for her return to power - the ambitions of Home Minister Charan Singh and the intrigues of President N. Sanjeeva Reddy.

Once in power, Indira Gandhi behaved as if history had taken a holiday in the interregnum. She had learnt nothing from her brief days in the wilderness. "By the mid-Eighties, the politician fabled for astute political manoeuvring among allies and opponen ts and skilled at associating herself with the people's longings for a better life seemed to have lost touch with reality. If for a decade and a half you are surrounded by courtiers who tell you that India is you and you are India; if you are brilliantly victorious in politics and in war (as in 1971); if you then succeed in making Parliament your creature; if you manipulate your own council of ministers and the nation by imposing a state of emergency, ostensibly to protect national unity and advance soc ial reform, but actually to retain your office, and if after ruling autocratically, you can return to office, acclaimed by the very voters who had rejected you, then your hubris can be understood. If you then plan for your sons, one of them devotedly con temptuous of civil liberty to follow you as Prime Minister, then your hubris is confirmed."

Those traits ruined Rajiv Gandhi too, while the personality flaws revealed in the Janata phase led to V.P. Singh's ouster from office and those of H.D. Deve Gowda and I.K. Gujral as well. The first two were betrayed by their own colleagues; Gujral, by So nia.

The book will serve as a work of reference for its careful record of the events. The author's reflections in the last Chapter (31) deserve particular notice. "The Constitution, above all, has been the source of the country's political stability and its o pen society. Stability in India should not be defined as a decorum in legislatures, or factionless political parties, or as the absence of turmoil in State governments and caste-class violence in rural areas. These exist and predictably will continue to do so, for the latter are democratic, social revolutionary stirrings. Stability consists of continuity and a reasonable degree of predictability. It and the status quo cannot be equated, for the status quo is incompatible with reform. The s tability deriving directly from the Constitution has been evident in the overall orderly conduct of the nation's business, in the stability of the system, even when governments have not been stable... The country's citizens will need patience and determination to preserve the gains they have made and the Constitution that made their attainment possible."

The political situation has changed markedly with the BJP in power. Now, more than ever before, the nation must protect its Constitution against the enemies of the open society.