Mr H K Dua’s lecture at Platinum Jubilee of Bhartiya Vidya Bhavan, New Delhi, on October 10, 2014.
Don’t blame the Constitution
The Role and Decline of Constitutional Institutions
By H K Dua
Ladies and Gentlemen,
The world history has always had two kinds of people — those who make institutions and those who undo them. Kanaiyalal Maneklal Munshi was one of those who would set-up institutions and guide them to serve the people. Bharatiya Vidya Bhavan which is celebrating its Platinum Jubilee, is an example of what one man’s vision can achieve.
He was one of the framers of India’s Constitution and a statesman, freedom fighter who worked with Mahatma Gandhi, Jawaharlal Nehru and Sardar Patel. He was India’s Food Minister in Jawaharlal Nehru’s government when India was going through acute food shortage.
Not only he was a great lawyer and a jurist, he was an eminent writer in Gujarati. One of his passions was to spread education and consciousness of India’s spiritual and cultural heritage. Bharatiya Vidya Bhavan, which has now 300 centres spread across the country and abroad has been devotedly carrying forward Mr K M Munshi’s work and produced lakhs of boys and girls who can be considered as citizens of the country equipped with some values.
Years ago, when I was at high school, I happened to see the Bhavan’s Journal in the library and started reading it regularly. I remember having also read affordable paperback editions of the Ramayana and the Mahabharata written by non else than C. Rajagopalachari. Also in paperback, there were three volumes produced by Bharatiya Vidya Bhavan in late 1950’s, called Indian Inheritance. They became a part of some of my personal extra-curricular education about Indian heritage in art, literature, science and culture.
The Platinum Jubilee Lecture Series is an excellent idea thought of by the Bhavan’s leadership to not only celebrate this great institution’s 75 years of service to the nation, but is also a tribute to the memory of its founder, Mr K M Munshi
I am thankful to the management of Bharatiya Vidya Bhavan to have asked me to give one of Bhavan’s Platinum Jubilee lectures. The subject of my talk is: “The Role and Decline of Constitutional Institutions.
Ladies and Gentlemen,
The health of our democracy depends on the functioning of our constitutional institutions – Parliament, the Judiciary and the Executive” and whether they have lived up to the lofty expectations of the Founding Fathers or whether they have actually served the country in meeting various challenges as it went about finding its way through during the last 67 years.
It will also be worth examining whether these organs of the State are equipped for meeting the challenges at a point when the country is poised for taking major strides to emerge as a power during the next 30- odd years.
Our Constitution was framed by wise men and women who steered it through the Constituent Assembly as they did the Freedom struggle. They dreamt high and tried to bequeath to the posterity their aims, ideas, and these vital institutions for the governance of the new nation. Have these institutions lived up to their hopes, and have proved their fears and trepidations wrong? Such questions need to be examined so that we can correct the mistakes we may have committed. Or have we been walking on the right path or have got deflected from it? Or, do we need to carry out a course correction during the next few years.
The making of the Constitution was a prominent landmark in the history of India traversing centuries which has seen the rise and fall of many an empire, feudal culture and diverse social set up, belated industrialisation and the rise of the middle class. The Constitution in a way was the outcome of a hundred years of Freedom Struggle led by leaders who wanted to free the country from the British Raj, and wanted India to emerge as a nation State and find its due place in the comity of nations. Mohandas Karamchand Gandhi provided political backbone to the Freedom Struggle with non-violence as a sort of moral underpinning to the national movement and by mobilising the poor masses. He played no role in the making of the Constitution and his views of India as a state were different from those of Jawaharlal Nehru, Sardar Patel, Dr B R Ambedkar and a galaxy of other leaders who wanted India to emerge as a powerful nation-state, but his influence is still visible in the stream of conscious that runs through the Constitution. These leaders who assumed political power came from different backgrounds and political persuasions representing the rich tapestry of a vast Indian reality – social, economic and political. Yet they all managed to come out with a document that has turned out to be one of the better constitutions of the world and properly used can take the country deep into the 21st century with confidence.
For the first 25 years India and the three organs of the State — Parliament, the Judiciary and the Executive — did well. Despite the post-Independence uncertainties facing the country and trauma of the Partition, influx of refugees, and an immediate war on Kashmir, its major institutions stood up to the challenges. During the later years, however, these organs of the state have been increasingly coming under strain. Public concern about the functioning of Parliament, Judiciary and the Executive has naturally been steadily growing and lately some sections of society have been questioning the validity of these institutions in the present times. Some of them have been wanting the Constitution to be replaced by a new charter. The number of the people who want a new Constitution may not be large but some sections of people do question the way Parliament, the Judiciary and the Executive have been functioning lately.
Public concern over the functioning of Parliament, Judiciary and the Executive is understandable. Personally, I believe it is not the Constitution that is to blame, but the way we have tried to use it in the States and at the Centre for partisan ends. Why blame the charter and not those who wilfully ignore its underlying constitutional morality.
The Founding Fathers wanted to ensure we remain united as one country and at no cost unity should be allowed to come under strain. It should also be democratic country where every community — irrespective of religion, region, language, race — will have equal rights. Also there should be universal adult franchise where every citizen of the country, rich or poor, educated or otherwise, will have equal rights to vote.
There were major challenges confronting the leaders who had spent effective years of their lives in British jails. But they were men of great vision, steeped in idealism, and determined to come out with a Constitution befitting a great country. They had come from different backgrounds and often their differences came to the fore during the debates in the Constituent Assembly. They thrashed out their differences in open debates. They resolved their differences even on fundamental issues while adopting the Constitution and evolved the historic document based on a national consensus.
Jawaharlal Nehru was keen on evolving a modern nation state, Sardar Patel thought whatever the cost, India after Partition, cannot be allowed to fall apart. They all agreed to have parliamentary form of government based on universal adult franchise, independence of the judiciary and an executive that was expected to be accountable to the people through Parliament. Parliament, the Judiciary and the Executive thus emerged from the labours of the Constituent Assembly as three main pillars which were to ensure that India will be a democratic country united, secular and march towards a new destiny.
To give meaning to democracy, the Founding Fathers provided for Directive Principles of State Policy and also sweeping Fundamental Rights that have remained in all these years bulwark of the basic rights of the People.
Ladies and Gentlemen,
The makers of the Constitution were aware of the challenges that would arise in a diverse society, full of divisions of caste and class, social and economic inequality and the new expectations that Independence generated. There was a fear that democracy itself might turn out to be fragile unless the Constitution and the three organs it had created functioned on the principles laid down for them in the Constitution.
Dr B R Ambedkar and his colleagues were aware of these challenges. In his last speech in the Constituent Assembly which adopted the Constitution, Dr Ambedkar as Chairman of the Drafting Committee said:-
(Quote) “If we wish to maintain democracy not merely in form, but also in fact, what must we do? The first thing in my judgement we must do is to hold fast to constitutional methods of achieving our social and economic objectives. It means we must abandon the bloody methods of revolution. It means that we must abandon the method of civil disobedience, non-cooperation and satyagraha. When there was no way left for constitutional methods for achieving economic and social objectives, there was great deal of justification for unconstitutional methods. But where constitutional methods are open, there can be no justification for those unconstitutional methods. These methods are nothing but the Grammar of Anarchy and the sooner they are abandoned, the better for us.”( Unquote).
He went on to say in what was one of his most remembered speeches:-
(Quote) “On the 26th of January 1950, we are going to enter into a life of contradictions. In politics we will have equality and in social and economic life we will have inequality. In politics we will be recognizing the principle of one man one vote and one vote one value. In our social and economic life, we shall, by reason of our social and economic structure, continue to deny the principle of one man one value. How long shall we continue to live this life of contradictions? How long shall we continue to deny equality in our social and economic life? If we continue to deny it for long, we will do so only by putting our political democracy in peril. We must remove this contradiction at the earliest possible moment or else those who suffer from inequality will blow up the structure of political democracy which this Assembly has so laboriously built up.”
“If hereafter things go wrong, we will, have nobody to blame except ourselves. There is great danger of things going wrong. Times are fast changing.” ( Unquote)
Dr B. R. Ambedkar was clear in his warning. But we as a nation, did not listen to him.
Ladies and Gentlemen,
Constitutional institutions need continuing nurturing for growth and strength in their sinews. Unfortunately, after the first 25 years we forgot about basics of constitutional morality and began fiddling with essentials of the Constitutional institutions. The Emergency was the first major blow to the Constitution, and then the demolition of the Babri Masjid. The damage done to the Constitution by these two major blows has not been fully undone. Not only the Constitution was defiled, these two traumatic post-Independence events led to the widespread impression that the Constitution and its legal and moral underpinnings are no longer sacred — particularly for myopic rulers who think personal and party interests are more important than the nation’s interest.
I can understand occasional frictions and turf wars between the three organs in a democracy — despite the separation of powers provided in the Constitution. Lakshaman Rekhas at times get blurred in the day-to-day work. But these problems are inherent in a growing democracy and can be sorted out.
What I cannot understand, however, is why the constitutional institutions should not do their duty prescribed in the Constitution. Parliament, for instance, failed the people when the Emergency was imposed in June 1975 by not protecting the rights of the people. Fundamental Rights – a sacred part of the Constitution – were thrown out of the window; Press Freedom was cruelly suppressed, lakhs of political workers were sent to jail, the courts came under pressure, the citizens felt choked. Also, when Babri Masjid was demolished, religious rights of the minority community were rudely violated. So were the moral principles woven into the Constitution.
Over the years, Parliament has lost respect among the people. The best of leaders, men and women, people like Jawaharlal Nehru, B R Ambedkar, Govind Ballabh Pant, Jagjivan Ram, Hiren Mukherjee, Indrajit Gupta, Atal Behari Vajpayee, Acharya Kripalani, Dr Ram Manohar Lohia, Madhu Limaye, Nath Pai, and H V Kamath were some of the ablest Parliamentarian who represented the people in Parliament with selfless dedication. Much later, their speeches were education in public affairs for those of us sitting in the press gallery. They had political differences but they treated Parliament with reverence.
Not now. Disrupting Parliament, going into the well, displaying placards, has replaced reasoned debate and discussions and policies of the government. Often the Question Hour has been dispensed with further diluting government’s accountability to Parliament.
The time lost because of frequent disruptions is made up by passing legislation without much thought and discussion. At times vital laws and the budgetary grants are passed without debate and often voting taking place in the raucous.
Ladies and Gentlemen,
After centuries, democracy comes to a country and a Parliament comes into existence. It is the job of those sitting on the opposition benches to oppose the government – in Parliament by parliamentary means and outside by mobilising and educating people and at times with peaceful protests. But during the last few years we have seen in Parliament, as also in the State legislatures, that they are fighting Parliament, — and not the government — by disrupting it. They have chosen “to wreck it from within,” with the result that the people have lost respect for Parliament and the State legislatures and also for the politicians as a class.
Also, the sight of criminals getting elected to Parliament and the Assemblies and the law-breakers making laws is edifying neither for Parliament, nor India’s democracy. Neither the Supreme Court, nor the Election Commission, nor the political parties has found effective ways to block the entry of criminals into Parliament and State legislatures. They do not realise that this can lead to the mafia hijacking the entire political system —so fondly crafted in the Constitutional scheme.
Kachehriis the last hope of the common man, but the state of the judiciary is causing a great deal of worry to the people. The weight of over three crore cases pending in the lower courts, High Courts and the Supreme Court can only delay the delivery of justice for years. There are reports of growing corruption in the courts at different levels. Justice can be bought and sold in many parts of the country. Even the Supreme Court is increasingly getting into news for wrong reasons.
The appointment of judges of the Supreme Court has been causing confrontation between the Executive and the Supreme Court for some years. I won’t be surprised if the Supreme Court sooner or later strikes down the recent Constitution Amendment Bill passed by Parliament for setting up the Judicial Appointments Commission. The Judicial Standards and Accountability Bill is still pending before Parliament and can add to the friction between the government and the Judiciary. The Judiciary feels that the Executive is always keen to cut into its independence guaranteed by the Constitution. It won’t like to surrender this.
The Supreme Court, however, has already come out with a landmark judgement in the Keshavanand Bharati case to lay down the Law that Parliament cannot pass any law that violates the Basic Structure of the Constitution. The Supreme Court has not defined the Basic Structure, but has often thrown the hint that independence of Judiciary is a part of the Basic Structure of the Constitution. It can use this as the shield to protect its independence against any encroachment by the Executive, or Parliament — intended or otherwise.
Ladies and Gentlemen,
The less said the better about the Executive. The administration in the States and at the Centre has not worked with the kind of efficiency and commitment required of them after the Independence. The bureaucracy in India is bloated and the red tape too long to permit quick decision-making and delivery to the people. Exceptions apart, the administration is distant from the people, indifferent, and callous — unmindful of the woes of the common man . Elections are held and political rulers change in the States and at the Centre, but attitude towards to the people does not change.
The civil servants are happy to be in cahoots with political masters, and serve their interests and their own, unmindful of the interests of the people whom both the political leaders as well as the civil servants are supposed to serve. The nexus between the political masters and the bureaucracy is the major reason for the slow progress in different fields.
The nexus between the bureaucrat and the politicians is also the reason for corruption that has over the years spread like cancer in the body politic. The rich and the powerful and the pedlars of influence can get things done according to their wishes, while the poor, the illiterate and all those who have no influence continue to suffer. The local mafia in many States also knows which string to pull and when to use the muscle. The ‘Rule of Law’ in many parts of the country remains a subject for only a class-room discussion.
No easy explanation is available from the leaders of different political parties why after 67 years of Independence we have crores of people who are illiterate, without primary health care or safe drinking water, or jobs or a little house for shelter. It has taken 67 years to wake up to the need for toilets in the country.
The accident of birth still decides the fate of an child. Birth in a dalit or in a tribal family leads to lifelong suffering because of the unrelenting weights of social and economic inequality. This is despite the Constitution of the Republic which provides equality before law and for equal opportunity for all. It looks like it will take several decades before constitutional mandate can be translated into our daily lives.
Let all of us work for an India where the poorest of the land, “the loneliest and the lost” in Gandhiji’s words does not feel lonely and the lost. It is possible to wipe out his or her tears, if we all work for a country that cares. The Constitution cares. Do we?
Thank you so much.
* Mr H K Dua is a former Editor of the Hindustan Times, Editor-in-Chief of the Indian Express and the Tribune, Editorial Adviser of the Times of India, and Ambassador of India to Denmark. At present he is a Member of Parliament.