LAW RESOURCE INDIA

Decline of institutions

Posted in ACCESS TO JUSTICE, CONSTITUTION, COURTS, DEMOCRACY, UNCATEGORIZED by NNLRJ INDIA on December 6, 2009

BY PP RAO IN THE TRIBUNE CHANDIGARH

India is the largest democracy in the world and has survived for over 62 years with all its shortcomings. We hope and wish it will emerge stronger.

The problems of today are mostly due to the changed priorities of political parties, drifting away from their ideology. Democracy cannot function without political parties. Regulation of political parties is a felt necessity today.

We have adopted parliamentary democracy after due deliberation. Coalition governments cannot provide effective governance in our country for want of requisite political culture and common commitment to the constitutional goals and values. Fights over distribution of portfolios are common. At the most, they can effect a few cosmetic changes. It is necessary to arrest further deterioration in the quality of public life.

As Nani A. Palkhivala used to say, “If experts imbued with a spirit of dedication and wisdom were to be inducted into the cabinet and were to be allowed the requisite freedom of action, we could transform this country into one of the great economic powers.”

The Election Commission has been doing a commendable job. It would do still better by revising the norms for classification of political parties which grow like mushrooms and to help emergence of two national parties or at least two combinations of parties.

Stable and successful democracies like the UK and the US run with a two-party system. The problem in India is that there are too many political parties. The Commission can attempt a three-fold classification: national, regional or multi-state and state parties. It needs to be strengthened by giving more powers including regulation of political parties, disqualification of defectors, and power to withdraw or cancel the registration granted to a political party if and when the party violates any law or the undertaking given to the Election Commission for obtaining registration.

Now it does not have these powers. The Commission could then tackle parties like the Maharashtra Navnirman Sena (MNS) and the Shiv Sena. All Election Commissioners should be given the same powers, status and safeguards in the matter of removal from office as the Chief Election Commissioner.

To make the political executive perform better, a few structural changes in the Constitution by amending some provisions governing the executive are imperative. B.K. Nehru’s suggestion to have total separation of the executive and the legislature is not possible, parliamentary democracy being a basic feature of the Constitution. However, it is possible to separate the executive from the legislature to the extent of making MPs, MLAs and MLCs ineligible to hold any executive office other than the post of minister and lay down strict conditions of eligibility for the office of minister simultaneously so that undesirable persons cannot aspire for the office.

If ministership is made inaccessible to all except the most outstanding MPs or a state legislature, it will ensure good governance. In addition, a provision for the direct induction into the Cabinet of outstanding persons of ability and experience to handle the key portfolios, without their having to be elected to Parliament or the state legislature concerned is a felt necessity. They could be made ex-officio MPs, MLAs or MLCs as the case may be to facilitate transaction of business in the legislature.

Dr Rajendra Prasad had mentioned in his concluding address to the Constituent Assembly: “I would have liked to have some qualifications laid down for members of the legislatures. It is anomalous that we should insist upon high qualifications for those who administer or help in administering the law but none for those who make it except that they are elected. A law giver requires intellectual equipment but even more than that, capacity to take a balanced view of things, to act independently and above all to be true to those fundamental things of life – in one word – to have character. It is not possible to devise any yardstick for measuring the moral qualities of a man and so long as that is not possible, our Constitution will remain defective.”

C. Subramaniam, former Governor of Maharashtra, suggested that a candidate for election to the Assemblies or the Lok Sabha must possess a minimum educational qualification of Plus Two (HSC) for the Assemblies and a graduate from a recognised institute for the Lok Sabha or have experience in the functioning of the panchayati raj Institutions or must have done public service in a recognised voluntary service organisation. This cannot be implemented without a strong political will.

Experts have analysed the causes for the decline of democratic institutions and have suggested remedial measures. However, political will is lacking to reform the system. Too many political parties bereft of ideology, consumed by burning desire to capture power and retain it by hook or by crook are destabilising our democracy.

From Parliament down to a students’ union, democracy has come to mean, election of mostly ill-equipped, self-serving and ambitious politicians hungering for limelight and power. The people who are the real repository of sovereignty have been reduced to the position of helpless spectators with a limited right to vote in the elections. Their wishes do not matter at all in the choice of candidates sponsored by political parties. It is desirable to lay down rigorous standards for selection of candidates by political parties by legislation.

Governors hold important positions. In the words of former President R. Venkataraman, they are like emergency lights, which flash when there is need. On two occasions, his role becomes crucial: at the time of choice of a Chief Minister when no party commands majority in the House or the situation in a state warrants imposition of President’s Rule. A Governor is expected to be totally non-partisan like the Speaker.

The Sarkaria Commission in 1988 has given guidelines for appointment of a Governor, but till now no party or parties in power at the Centre have followed the guidelines. They cannot help appointing their own partymen who have not retired from politics.

In the words of Atal Behari Vajpayee: “India rightly boasted of having a great asset in its permanent but non-political and impartial civil services. Sadly, the rot has set in here too”. Now, the general trend of civil servants is to dance to the tune of their political masters rather than stand up and guide them to follow the correct course of action and refuse to obey illegal orders. Corruption has corroded the governing structures as never before, irrespective of the party or coalition of parties in power.

To tone up the efficiency and integrity of the bureaucracy, it is necessary to amend a few provisions of the Constitution. The law should be such as to ensure recruitment of the most meritorious candidates among the applicants, rewarding and encouraging employees rendering outstanding service with promotion etc. and facilitate quick and deterrent punishment to those indulging in corruption or any other reprehensible misconduct.

It should permit showing the door straightaway to all civil servants of doubtful integrity or who have become deadwood having outlived their utility, irrespective of the length of service put in by them.

There are elaborate provisions in the Constitution to ensure the autonomous functioning of Public Service Commissions, independent of the Union and State Governments. It was expected that persons of eminence, integrity and experience in administration alone would be appointed as chairpersons and members of Public Service Commissions. As regards the qualifications for the remaining members, the Constitution is silent. This silence is being exploited by shortsighted and self-centered politicians in power in many cases.

High rate of filing, huge backlog of cases and low rate of disposal plague the justice delivery system. A few Chief Justices of India have openly admitted that there is corruption in the judiciary as well, to a limited extent. It is necessary to provide for premature retirement of judges and judicial officers of doubtful integrity by making suitable provisions in the Constitution and the service Rules respectively. The Bench is not able to attract competent members of the Bar.

The controversy regarding Justice P.D. Dinakaran underlines the need for a better mechanism for selection of judges. I have suggested the constitution of a statutory Search Committee headed by a former Chief Justice of India, which includes representation from the Bar and the Government.

It is possible to improve the situation by recruiting the fresh law graduates from National Law Schools at the lowest level and imparting them adequate in-service training before posting. If governments appoint the most deserving members of the Bar as Law Officers and Government Pleaders in consultation with the Chief Justices concerned, in due course, they could be elevated as Judges of High Courts.

Inordinate delay in the disposal of cases at all levels is a matter of growing concern. It is possible to clear the backlog of cases by introducing shift system in all courts utilising the existing infrastructure and availing the services of reputed retired judges and judicial officers who are fit to serve. With minimum additional expenditure on courts, the litigant public would get considerable relief.

Terrorism is posing a serious threat to the security of India. 26/11 is a rude warning and a wake-up call. Unless we recruit people to the police, paramilitary and security forces on the basis of merit and efficiency, train them fully, give them latest weapons and equipment and motivate them to fight to the finish, it will be difficult to outmanoeuvre the terrorists.

With the kind of coalition governments we have, will they allow such recruitment? We cannot afford to behave like an ostrich. We have to set our house in order and reform the system immediately.

There is no need to despair. India is a country with tremendous potential. We have a clean and competent Prime Minister. By improving the system of governance, phenomenal progress can be achieved within the shortest time.

It is time we proceed to elect men of ability and integrity to the legislatures, appoint qualified and competent ministers, recruit men and women of exceptional merit to services and posts at all levels, plug the loopholes in the Constitution and the laws and march ahead.

The writer is Senior Advocate, Supreme Court. The article is excerpted from his Institute of Constitutional and Parliamentary Studies Tenth G.V. Mavalankar Memorial Lecture in New Delhi on December 4, 2009

http://www.tribuneindia.com/2009/20091206/edit.htm#1

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