Constitution under threat
Fali S. Nariman
The Constitution is about politics. And the real problem about politics in India is its unpredictability. That doyen of American journalists, James Reston, started his newspaper career as a sports writer. Some years before he died, he told the Washington Post that he preferred sports to politics because "at the end of the day you know who has won; in politics, you have to wait 60 years to see how it all comes out." We have waited — 60 years, and it is still not certain how it will all come out. But one thing is certain. Our Constitution has survived — and that is a plus point.
It took two years 11 months and 17 days to finalise the draft of the Constitution of India 1950 — years, months and days of much effort, of accommodation and compromise, and untiring devotion. We all thought our Founding Fathers had done a great job. But (as Sir Alladi’s son recalls in the biography of his great father) the year after the Constitution was promulgated Sir Ivor Jennings (Constitutional historian of the Commonwealth) was asked by the University of Madras to deliver a lecture on its provisions. Jennings was critical of our Constitution. He characterised it in one cynical sentence — "Too long, too rigid, too prolix". And to add insult to injury, he said that the dominance of the Constituent Assembly by lawyer — politicians had contributed to the Constitution’s complexity!
When I related this a few years ago to my friend Desmond Fernando, then President of the International Bar Association, he said something which pleased me immensely. He said that the same Jennings, who was so critical of India’s Constitution, had taken great pains to draft Sri Lanka’s first Constitution — and it lasted only seven years! Which only shows that the success of a written Constitution is measured by one criteria alone — viz. whether it works!
Our Constitution did work — and worked well for the first 19 years after independence. What happened after that? I think the answer lies in this — it ceased to work well the moment politics in this country became immoral and unprincipled. We have not been able to work the Parliamentary system — we cannot work any system — unless we re-inject some degree of idealism and morality into politics. Some years ago that prestigious English weekly "The Economist" expressed an opinion (which was both frank and brutal), and to which, I believe, we must all pay heed. It said: "India will continue to be misgoverned until politics becomes more of a vehicle for policies instead of the other way round" — i.e. instead of policies being fashioned to suit the politics of the day.
To govern this country well, we must recognise (and then attempt to overcome) some problems which hinder good government. I would like to mention a few:
First: the problem of governing India begins with numbers — and the hydraulic pressure they exert on national resources. We are just too many to govern. Politicians have not dared to address themselves to this "mother-of-all-problems"(!) — particularly after the nightmare of forced sterilisations during the Emergency era.
Second: Our failure to learn from the legacies of our political past — the British built a wall of separation between those in governance, and the governed. When the British left, we kept this wall of separation but discarded the idealism which had inspired generations of public officials in British India. We also jettisoned two other aspects of British rule: mentioned (somewhat pompously) by the British historian G.M. Trevelyan: The reason why the British ruled India for so long (he says) was that (i) "we were looked upon a nation which kept our promises"; and (ii) "as rulers we took no bribes’."
We too started, as a nation, by making promises — and then did not keep them. The second part of the Trevalyan quote: "`85`85.as rulers we took no bribes" may be exaggerated but, in the main it is true: ministers and public servants in British India, as a class, were not dishonest. But today 60 years after independence we cannot say the same. There are two types of corruption; secret isolated instances; they happen everywhere; they are endemic: they take place without infecting the body politic. The other type is what has engulfed us — it is known as tidal corruption: it floods the entire State apparatus, including those at the centre of power. I cannot visualise an era of good government in India until we take emergent steps to exorcise graft and corruption from public life.
Third: When promises are broken by sovereign nations, when it is believed that its leaders and officials (or a majority of them) are corrupt, it devalues and debases the people: actions of governments have an ever-widening ripple effect on the general social milieu of the time. In our country those in positions of power are looked up to — fawned upon — as "great": and the Gita says that whatsoever a great person does that very thing others also do; whatever standards they set up the generality of human kind follow the same. "We the people" of India (the opening words of our Constitution) learn only by the example of our leaders — not by the precepts they hypocritically profess, and proclaim.
Fourth: there is the failure of Constitutional functionaries to function as is expected of them, especially when times are bad. In India politics begets power, but the men and women in power assume that they owe no responsibility to the people who elected them till election time comes around once again! The connivance in and acceptance of the Internal Emergency of June 25, 1975, by constitutional functionaries in high places can only be explained on this basis. They may be forgiven — but the lesson they have taught us must never be forgotten.
Fifth: there is a crisis of competence: Every election after 1951 has thrown up men and women less and less proficient, less and less scrupulous than the past. The downward trend is most noticeable — it is also significant. It points not to the inadequacy of the parliamentary system of government but the crying need for reforms in the electoral process. Successive political parties have come to power with promises to reform the electoral system but it has gone the way of all promises made by politicians. So long as a politician is voted to power by employing corrupt means — he will remain in power with like methods. Citizens have a vital stake in the reformation of the electoral system: there is no dearth of solutions; only a lack of the will to adopt them.
Sixth: in their euphoria with India’s economic progress and recognition as a world power, those in governance have omitted to notice that current policies have certainly made the rich and prosperous more rich and more prosperous; but a very large majority of India’s populace is still struggling to keep body and soul together, often without much success. The Great Divide is getting wider partitioning one people into two almost warring camps. All the financial wizardry with which this great country is endowed has not been able to find acceptable and viable solutions of the problems of the poor-and-hungry and the poorly educated. Our Constitution cannot long survive if we only pay lip service to the Constitution’s Directive Principles of State Policy: we must implement them. The neglect of the poor and needy in our country is perhaps the greatest single serious threat of survival in this 60th year of independence.
Finally — When members of the Constituent Assembly of India first took a pledge to dedicate themselves in all humility to the service of the country and her people, Dr S. Radhakrishnan, whilst seconding the resolution, had warned that when power outstrips ability, we will fall on evil days. Power has overtaken ability. We have fallen on evil days. There is a crisis of competence and a lack of integrity in almost all fields of activity -more markedly in the political. The public is now fed up with politicians as a class. The phenomenon has been noticed in parts of the Western world. In that delightful book "Yes Minister", there is this delightful passage:
"If civil servants could remove politicians on grounds of incompetence it would empty the House of Commons, remove the Cabinet, and this would be the end of democracy — and the beginning of responsible government"!
I believe what has sustained the freedom enjoyed by our people has been a residual basic horse-sense. As you know, "horse sense" has been defined as the good sense that horses have in not betting on people! But in a democracy we have to bet on people and to set store by, and have faith in, the decisions they make. Mercifully we have so far pulled through with this Constitution. And we are still one nation, and pray that we long remain so. What we appear to have lost over the last 60 years, however, is the fine art of conserving the freedom we have won, of nurturing the sense of idealism that had inspired our Founding Fathers. We have over the years lost that spirit is which the Constitution itself was drafted — the spirit of accommodation and consensus, so wanting now in all fields of activity.
The writer is a Senior Advocate, Supreme Court, and eminent jurist
It took two years 11 months and 17 days to finalise the draft of the Constitution of India 1950 — years, months and days of much effort, of accommodation and compromise, and untiring devotion. We all thought our Founding Fathers had done a great job. But (as Sir Alladi’s son recalls in the biography of his great father) the year after the Constitution was promulgated Sir Ivor Jennings (Constitutional historian of the Commonwealth) was asked by the University of Madras to deliver a lecture on its provisions. Jennings was critical of our Constitution. He characterised it in one cynical sentence — "Too long, too rigid, too prolix". And to add insult to injury, he said that the dominance of the Constituent Assembly by lawyer — politicians had contributed to the Constitution’s complexity!
When I related this a few years ago to my friend Desmond Fernando, then President of the International Bar Association, he said something which pleased me immensely. He said that the same Jennings, who was so critical of India’s Constitution, had taken great pains to draft Sri Lanka’s first Constitution — and it lasted only seven years! Which only shows that the success of a written Constitution is measured by one criteria alone — viz. whether it works!
Our Constitution did work — and worked well for the first 19 years after independence. What happened after that? I think the answer lies in this — it ceased to work well the moment politics in this country became immoral and unprincipled. We have not been able to work the Parliamentary system — we cannot work any system — unless we re-inject some degree of idealism and morality into politics. Some years ago that prestigious English weekly "The Economist" expressed an opinion (which was both frank and brutal), and to which, I believe, we must all pay heed. It said: "India will continue to be misgoverned until politics becomes more of a vehicle for policies instead of the other way round" — i.e. instead of policies being fashioned to suit the politics of the day.
To govern this country well, we must recognise (and then attempt to overcome) some problems which hinder good government. I would like to mention a few:
First: the problem of governing India begins with numbers — and the hydraulic pressure they exert on national resources. We are just too many to govern. Politicians have not dared to address themselves to this "mother-of-all-problems"(!) — particularly after the nightmare of forced sterilisations during the Emergency era.
Second: Our failure to learn from the legacies of our political past — the British built a wall of separation between those in governance, and the governed. When the British left, we kept this wall of separation but discarded the idealism which had inspired generations of public officials in British India. We also jettisoned two other aspects of British rule: mentioned (somewhat pompously) by the British historian G.M. Trevelyan: The reason why the British ruled India for so long (he says) was that (i) "we were looked upon a nation which kept our promises"; and (ii) "as rulers we took no bribes’."
We too started, as a nation, by making promises — and then did not keep them. The second part of the Trevalyan quote: "`85`85.as rulers we took no bribes" may be exaggerated but, in the main it is true: ministers and public servants in British India, as a class, were not dishonest. But today 60 years after independence we cannot say the same. There are two types of corruption; secret isolated instances; they happen everywhere; they are endemic: they take place without infecting the body politic. The other type is what has engulfed us — it is known as tidal corruption: it floods the entire State apparatus, including those at the centre of power. I cannot visualise an era of good government in India until we take emergent steps to exorcise graft and corruption from public life.
Third: When promises are broken by sovereign nations, when it is believed that its leaders and officials (or a majority of them) are corrupt, it devalues and debases the people: actions of governments have an ever-widening ripple effect on the general social milieu of the time. In our country those in positions of power are looked up to — fawned upon — as "great": and the Gita says that whatsoever a great person does that very thing others also do; whatever standards they set up the generality of human kind follow the same. "We the people" of India (the opening words of our Constitution) learn only by the example of our leaders — not by the precepts they hypocritically profess, and proclaim.
Fourth: there is the failure of Constitutional functionaries to function as is expected of them, especially when times are bad. In India politics begets power, but the men and women in power assume that they owe no responsibility to the people who elected them till election time comes around once again! The connivance in and acceptance of the Internal Emergency of June 25, 1975, by constitutional functionaries in high places can only be explained on this basis. They may be forgiven — but the lesson they have taught us must never be forgotten.
Fifth: there is a crisis of competence: Every election after 1951 has thrown up men and women less and less proficient, less and less scrupulous than the past. The downward trend is most noticeable — it is also significant. It points not to the inadequacy of the parliamentary system of government but the crying need for reforms in the electoral process. Successive political parties have come to power with promises to reform the electoral system but it has gone the way of all promises made by politicians. So long as a politician is voted to power by employing corrupt means — he will remain in power with like methods. Citizens have a vital stake in the reformation of the electoral system: there is no dearth of solutions; only a lack of the will to adopt them.
Sixth: in their euphoria with India’s economic progress and recognition as a world power, those in governance have omitted to notice that current policies have certainly made the rich and prosperous more rich and more prosperous; but a very large majority of India’s populace is still struggling to keep body and soul together, often without much success. The Great Divide is getting wider partitioning one people into two almost warring camps. All the financial wizardry with which this great country is endowed has not been able to find acceptable and viable solutions of the problems of the poor-and-hungry and the poorly educated. Our Constitution cannot long survive if we only pay lip service to the Constitution’s Directive Principles of State Policy: we must implement them. The neglect of the poor and needy in our country is perhaps the greatest single serious threat of survival in this 60th year of independence.
Finally — When members of the Constituent Assembly of India first took a pledge to dedicate themselves in all humility to the service of the country and her people, Dr S. Radhakrishnan, whilst seconding the resolution, had warned that when power outstrips ability, we will fall on evil days. Power has overtaken ability. We have fallen on evil days. There is a crisis of competence and a lack of integrity in almost all fields of activity -more markedly in the political. The public is now fed up with politicians as a class. The phenomenon has been noticed in parts of the Western world. In that delightful book "Yes Minister", there is this delightful passage:
"If civil servants could remove politicians on grounds of incompetence it would empty the House of Commons, remove the Cabinet, and this would be the end of democracy — and the beginning of responsible government"!
I believe what has sustained the freedom enjoyed by our people has been a residual basic horse-sense. As you know, "horse sense" has been defined as the good sense that horses have in not betting on people! But in a democracy we have to bet on people and to set store by, and have faith in, the decisions they make. Mercifully we have so far pulled through with this Constitution. And we are still one nation, and pray that we long remain so. What we appear to have lost over the last 60 years, however, is the fine art of conserving the freedom we have won, of nurturing the sense of idealism that had inspired our Founding Fathers. We have over the years lost that spirit is which the Constitution itself was drafted — the spirit of accommodation and consensus, so wanting now in all fields of activity.
The writer is a Senior Advocate, Supreme Court, and eminent jurist
source: The Tribune
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