A.G. NOORANI IN THE HINDU
It is the people who alone can make it work.
“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 be least possible where the acts 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” (Walter Bagehot; The English Constitution, The World’s Classics; Oxford University Press; 1867, Balfour’s Introduction to the Second Edition, 1928; pp. xxii-xxiii).
THE framers of India’s Constitution decided, at the very outset, to adopt the parliamentary system of government based on the British model. On this the two top leaders were agreed. Jawaharlal Nehru was Chairman of the Union Constitution Committee as well as the Union Powers Committee. Vallabhbhai Patel was Chairman of the Committee on the Principles of A Model Provincial Constitution and the Advisory Committee on Minorities, Fundamental Rights, etc.
As early as June 5, 1947, it was decided, at a joint meeting of the Union and Provincial Constitution committees, to emulate the British model. 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 (CAD); Vol. 40; page 578).
Two days later, Patel told the Assembly that “a Schedule according (sic.) to the traditions of responsible government will be framed and put in”. Members demanded that the Schedule be put in first before the clause conferring powers on the governors was adopted. Patel retorted angrily: “It has been suggested that there is no guarantee that the Schedule will come. There is as much guarantee about it as a guarantee that the House will meet tomorrow” (ibid., pages 648-649).
Two years later, on October 11, 1949, at the fag end of the Assembly’s labours, the Schedules containing two Instruments of Instructions, for the President and the Governors, were dropped; a little over a month before the Constitution was adopted on November 26, 1949. The Instruments codified a few of the conventions on which the uncodified British parliamentary system rests. T.T. Krishnamachari, a member of the Assembly’s Drafting Committee, explained unconvincingly: “It has now been felt that the matter should be left entirely to convention rather than be put into the body of the Constitution.” The directions to the President and the Governors “really should arise out of conventions that grow from time to time, and the President and the Governors in their respective spheres will be guided by those conventions” (CAD; Vol.X; pages 114-116. For the texts vide B. Shiva Rao The Framing of India’s Constitution: Select Documents on India’s Constitution; Vol. IV; pages 67-6 8. emphasis added, throught). Sixty years of the working of India’s Constitution have belied these expectations which were unrealistic even in 1949. What Indian conventions did he expect to “grow”?
It would be a gross exaggeration to say that the perversions of the parliamentary system we have witnessed all these years, at the Centre and in the States, would not have occurred if only the conventions had been codified. Even the letter of the supreme law, the text of the Constitution, has not been spared abuse. But codification could have served as a significant check and, more, as a guide to the people by which they could judge the conduct of those they had voted to power.
Each of the major offices and institutions that the Constitution set up in 1950 bears a battered shape in 2010 – the President, Parliament, the Supreme Court, Governors, State Assemblies and the High Courts. The generation that works the system it established has a radically different outlook from that of those who enacted it and worked it for some years thereafter. As far back as 1962 Myron Weiner wrote of “India’s two political cultures”, the culture in the districts and “the second political culture [which] predominates in New Delhi”, an “emerging mass political culture” and an “elite political culture” (Political Change in South Asia; Firma K.L. Mukhopadhyay; page 114).
This was, perhaps, a trifle simplistic even in 1947 or 1962. By 2010 the divide has all but vanished. We have had Prime Ministers like Charan Singh, Chandrashekhar, and H.D. Deve Gowda, who could have done little credit even to the office of the Chief Minister. Parliament is as rowdy as any State Assembly. It is more meaningful to talk of our constitutional culture. Dr B.R. Ambedkar, Chairman of the Constituent Assembly, was steeped not only in British and American constitutional history and constitutional law, but also in the history of Greece and Rome and in political science. In this he was peerless among lawyers. His colleague, Sir Alladi Krishnaswami Ayyar, was an erudite conservative, while K.M. Munshi, alert to political realities, spoke more than once, unlike Sir Alladi, in defence of the citizens’ rights.
Constitutional lawyers of the time had drunk deep at the fount of British constitutional lore. With H.M. Seervai’s death in 1996, the last of the constitutional lawyers was gone. We have advocates of conspicuous ability ready to argue on complex issues of constitutional law or company law but bereft of the erudition and the insights that make a constitutional lawyer. They know little outside the law. If this seems harsh, listen closely to the off-the-cuff remarks they so readily dish out to anchors on television shows or editors at the drop of a hat, as it were.
When did we last see a single judge of the Supreme Court who had earned a reputation as a constitutional lawyer before his appointment to the court? How many erudite, incisive commentaries on the Indian Constitution can one cite today? The discourse is debased by political partisanship, craze for publicity, and an assertiveness that is not backed by learning. Constitutional illiteracy has spread. Informed critiques are few. Abuse receives censure that is sporadic and seldom well-informed.
There is something lacking and that is the spirit of constitutionalism. Balfour’s caution is one of the many that mocks us as we survey the situation today. Gladstone held that the British Constitution “presumes more boldly than any other, the good faith of those who work it”. That good faith is none too conspicuous in our public life.
We resented British admonitions as excuses for denying India its right to govern itself. Especially these observations in the Report of the Joint Committee on Indian Constitutional Reform: “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” (Vol. 1 (Part 1) Session 1933-34; Her Majesty’s Stationery Office (HMSO), London; 1934; page 210). It was an illiberal document, but those words sting. They are so true.
South Asia is unique among parliamentary democracies in enacting laws against defections by legislators. Such a malaise cannot be cured by laws alone. It reflects a state of political morality and an outlook that rejects the system. The defector will readily topple a newly elected government for personal gain and even wreck the system for political gain. To his niece Blanche Dugdale, Balfour was more forthright, in a conversation on April 25, 1925: “I doubt if it is 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 constitutional lawyer Ivor Jennings wrote in his famous work Cabinet Government: “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 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 mother of parliaments and of the suppression of parliamentary government by dictatorship” (page 16).
The frailty of public morality of India’s political class was no secret even during the freedom movement. Motilal Nehru wrote to his son Jawaharlal on December 2, 1926, about the tactics used “under the auspices” of men of stature like Madan Mohan Malaviya and Lajpat Rai in an election: “Communal politics and heavy bribing of the voters was the Order of the day. I am thoroughly disgusted and am now seriously thinking of retiring from public life…. The Malaviya-Lala gang aided by Birlas’ money are making frantic efforts to capture the Congress” (Jawaharlal Nehru; A Bunch of Old Letters; 1958, page 50). The Governor of Bengal Lord Lytton complained to the Viceroy about the practice of bribing members of the Legislative Council in the early 1920s (Evolution of Parliamentary Privileges in India till 1947; Salil Kumar Nag; 1978; page 212).
The wise Rajaji saw it all and wrote while in prison: “Elections and their corruptions (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.”
None of this was absent from the minds of the framers of our Constitution, least of all from the most erudite and discerning one among them, B. R. Ambedkar, Chairman of the Drafting Committee. He was far removed from the tribe of lawyers whose vision is limited to texts and precedents. Ambedkar was erudite, profound and insightful.
While moving for the adoption of the Draft Constitution in the Constituent Assembly on November 4, 1948, Ambedkar quoted at some length Grote, the historian of Greece, on constitutional morality. It meant “a paramount reverence for the forms of the Constitution, enforcing obedience to authority acting under and within these forms yet combined with the habits of the speech of action subject only to defined legal control, and unrestrained censure of those very authorities as to all their public acts combined too with a perfect confidence in the bosom of every citizen, amidst the bitterness of party contest, that the forms of the Constitution will not be less sacred in the eyes of his opponents than in his own.”
Such confidence was not overly abundant even in 1948. Sixty years later, it does not exist. Ambedkar was not unaware of its frail nature. “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 a top dressing on an Indian soil which is essentially undemocratic” (CAD; Vol. VII; page 38). The seth who converts his proprietary firm into a company does not acquire the corporate culture.
On November 25, 1949, when he moved “That the Constitution as settled by the Assembly be passed”, Ambedkar said: “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…. It is, therefore, futile to pass any judgment upon the Constitution without reference to the part which the people and their parties are likely to play.” The following day the President of the Constituent Assembly, Rajendra Prasad, pointed out that many things that cannot be written in a constitution are done by conventions. “Let me hope that we shall show those capacities and develop those conventions.” (CAD; Vol. VII; page 38, and Vol. XII; pages 975 and 993).
Indian politicians, the tallest included, betrayed the trust reposed in them. As far back as November 19, 1954, the then Union Home Minister, Kailash Nath Katju, described the practice in vogue in these picturesque terms in the Lok Sabha: “Offer some plums before them, give a laddu to one, a rasagulla to another… members from Independents will join and you will then be able to produce a majority. Now, this is an insult to the Constitution. This is a mockery of the Constitution.”
A Constitution rests on the foundations of basic norms of political morality as Katju correctly noted. The situation deteriorated further in 1967 when the Congress lost its hegemony. Defections became the norm. Now half a century after Katju spoke, we have lost not only vestiges of political morality but also a national consensus on which a democracy can function. During 1969-1989 it was Indira Gandhi, and later Rajiv Gandhi, versus the rest. From 1990 to this day, it is the Bharatiya Janata Party’s Hindutva versus the rest. We are a badly split polity justifying Balfour’s fears.
It is absurd to suggest that the presidential system accorded better with our national character such as it is. The defector or bitter partisan who topples a government in the parliamentary system will bring the government itself to a grinding halt as Newt Gingrich did in the United States. In India, it would pave the way for a legitimised autocracy. It is, however, one thing to lament the growing disconnect between constitutional values and public morality and between the text of the Constitution and the underlying conventions of the parliamentary system on which the text is based. It is another to assert that the Constitution is unsuited to the Indian character and temperament and should be discarded in favour of a shuddh (pure) swadeshi document, as the Rashtriya Swayamsewak Sangh (RSS) holds.
This was the very argument which Indira Gandhi’s supporters in Britain patronisingly asserted during the Emergency. They received their just deserts from Prof. W.H. Morris-Jones, Constitutional Adviser to the Viceroy in 1947 and a scholar of high repute: Referring to Eldon Griffiths’ defence of the Emergency, Prof. Morris-Jones wrote to The Times (London) on June 25, 1976:
“Mr Griffiths’ jibe about ‘exhibit A of the Westminster model abroad’ misses the point that it had become a specifically Indian achievement; it only adds insult to the injury already suffered by Indian democrats. Such denigration has long been a sport in which high imperial Tory and revolutionary Marxist could find common enjoyment. Even your own leader (June 21) chose an odd time to point out the limitations of democracy under Congress, for an incomplete democracy is diminished further, not remedied by illiberation.
“Nor can one easily detect any clear and consistent signs that the elite-mass gap which you deplore is being closed by the present regime of Mrs Indira Gandhi. And just how may the change ‘accord better with indigenous habits’? Are habits never modified? Had not growing numbers of Indians begun to make the habits of liberal democracy indigenous? Surely it is a ‘massive’ loss when damage is done to a way of political life which in two decades had already converted into citizens so many who had been subjects beyond the political pale…. Moreover, the gains are doubly suspect. In origin they are at best uncertainly attributable to Mrs. Gandhi’s dose of autocracy. In their effects they appear too fragile to endure. Unitedly, Indian democracy had freely mobilised demands and grievances; in its place is put none of the usual alternatives.”
The Constitution of India is very much an Indian achievement and Indian democracy, which it nurtures and protects, has struck root in the Indian soil. These achievements were predicted by some British statesmen. By none more prophetically or eloquently than Thomas Babington Macaulay who is decried for his thoughtless Minute on Indian Education dated February 2, 1835. Overlooked is his majestic peroration in the House of Commons on July 10, 1833, perhaps the very first prediction by anyone, English or Indian, of India’s eventual rise to self-government (“demand European Institutions”).
The parliamentary system has struck root in the entire South Asia. Its practice can be improved. There is no cause for despair provided the causes are accurately understood and the remedies effectively devised. Consider the office of the President. The first holder of the office, Rajendra Prasad, sought to undermine parliamentary democracy. His successor, S. Radhakrishnan, bared his ambitions and animosities no sooner than he assumed office. Bar Zakir Hussain, we had since rubber stamps or intriguers. We owe it to Shankar Dayal Sharma and K.R. Narayanan that in 2010 the office is just what the framers intended it to be – a constitutional head of state in the parliamentary democracy. How did this come about? Because all the major political parties realised that it was in their interests to abide by the rules. A wayward President is a menace to all; to one party now, to the opposition tomorrow.
The record from 1950-2010 establishes the following eleven principles. First and foremost, it is now firmly established that the President is entitled, in exercise of his own judgment, to question the government’s bills, appointments and policy proposals. Secondly, within limits, Presidents can comment on affairs of the state in public. Criticism of the government must be muted, though it should be more in the nature of sounding an alarm. In rare cases, public expression of disquiet is proper. Thirdly, the President is entitled to admonish and even censure the Prime Minister in private. Fourthly, the President’s right to know, embodied in Article 78, is not challenged. Fifthly, the practice is now established of the President receiving leaders of opposition parties, singly or in a delegation, to lodge a protest against the government’s action. He offers no comment but forwards the protest to the Prime Minister and speaks to him, if he so decides. Sixthly, it is established that the President is not bound to accept the Prime Minister’s request for dissolution of the Lok Sabha but is entitled to exercise his judgment and consider the alternatives before accepting it.
Seventhly, the power of dismissal of the government cannot be exercised except on the extreme grounds mentioned in textbooks. There was universal criticism of Zail Singh’s intentions in 1987 and again of his admission of them in 1992. The best course is to have an explicit provision on the lines of Articles 91 (5) and 130 (5) of the Pakistan Constitution, respectively for the Prime Minister and Chief Ministers of States. They say that while the Prime Minister and the Chief Ministers hold office “during the pleasure” of the respective heads of state, the latter will not exercise their powers unless satisfied that the head of government has ceased to command the confidence of the House. There follows the crucial constraint – “in which case he shall summon the National Assembly and require the Prime Minister to obtain a vote of confidence from the Assembly”. An identical expression is used for Governors.
Eighthly, not only the opposition parties but Chief Ministers of States also invoke the President’s moral authority as “guardian of the Constitution”; in their case, specifically to safeguard its federal character.
Ninthly, in 1977, the acting President, B.D. Jatti, was extremely reluctant to sign the proclamation under Article 356 imposing President’s Rule in certain States. The government’s threat of resignation induced him to sign the documents. The Postal Bill is of far less consequence. The fact remains that two successive Presidents, Zail Singh and R. Venkataraman, declined to sign it. They returned it for reconsideration in exercise of their own individual judgment. It is well settled that assent cannot be withheld; only reconsideration can be sought. If re-enacted assent must follow.
Tenthly, the question whether the President can assert a right, under Article 86, to address Parliament or to send messages to either of its Houses in his own discretion, is open. In 1950 the Attorney-General opined against it in the face of President Rajendra Prasad’s challenge on a host of issues. His opinion on the point gave no reasons. At the least, the matter is open. It is unthinkable that in an extreme case a President would flinch from taking his case to Parliament.
Lastly, the President is entitled to insist, when appointing a Prime Minister, that he obtain a vote of confidence from Parliament within a stipulated short period.
The existence of the President’s power of dismissal has not been seriously challenged. There is near unanimity on fears of its abuse. No responsible politician has sought such an intervention by the President against his political opponents. In 1987, some carpetbaggers did. In June, Zail Singh was tempted but wiser counsel prevailed. He would have come to grief.
India’s democracy has functioned for 60 years, bar the interlude of the Emergency. But the parliamentary system came into its own only since 1992.
Situation in the States
But this is not so in the States. Discredited Ministers are appointed Governors (Shivraj Patil and H.R. Bhardwaj). So are civil servants whose shelf-life has expired. They act as the Centre’s agents. The Chief Minister himself owes his office to the bounty of the central high command of his or her party. He cannot select his own Ministers, expand his Cabinet or sack a dissident without the high command’s permission. This is a result of the practice of 1937-39 when Congress Ministries were responsible to the high command rather than the elected legislature, a perversion that Prof. Reginald Coupland criticised trenchantly.
There is another flaw, even more fundamental. The Member of Parliament or Member of the Legislative Assembly acquires the party’s ticket to contest the polls not from his partymen in the constituency but from his party bosses. He serves as a bondman. Members of Parliament in Britain can defy the party whip. The Indian legislator lacks the capacity to revolt.
In 1937, the issue arose whether Purushottam Das Tandon should resign his party membership on election as Speaker. Both Gandhi and Nehru held that he need not, unmindful of the rights of non-Congress MLAs (Selected Works of Jawaharlal Nehru, First Series, Vol. 8; pages 351 and 376). Nehru deprecated following “blindly British practice and procedure”. Truth to tell, Nehru’s outlook on constitutional issues differed from Ambedkar’s. The hoary Erskine May holds: “Confidence in the impartiality of the Speaker is an indispensable condition for the successful working of the procedure, and many conventions exist which have as their object not only to ensure the impartiality of the Speaker but also to ensure that his impartiality is generally recognised.” In India, this “indispensable condition” does not exist and has not existed for many years.
One doctrine deserves speedy burial: the Speaker’s office is a gift in the hands of the ruling party. The Economist of November 19, 1994, wrote: “Over the grey men, the placemen and the hired men who characterise the present House of Commons, a star shines. Betty Boothroyd, the Speaker, dominates a difficult House to a degree that her immediate predecessors never attained.” She was elected in 1993 with the support of the Conservatives though she belonged to the Labour opposition. “She won because 74 Tories rightly rebelled at the thought of someone who had just left the Cabinet – the government’s unofficial candidate, Peter Brooke – sitting in the Speaker’s chair and posing as a neutral arbiter of proceedings.”
In India, such a revolt would be unthinkable and the language The Economist used would be regarded as breach of parliamentary privilege by Speakers, most of whom are no more than instruments of the government’s will. These are the very men who will act as judges on issues of free speech in the name of “parliamentary privilege”.
The anti-defection law calculatedly makes the Speaker judge and thus further politicises an office politicised already to a degree. But Parliament itself is held to ransom. “We don’t want a debate for debate’s sake,” Atal Bihari Vajpayee said on December 19, 1995, while the memorandum of the Left Front and the Janata Dal to the President, on December 22, 1995, queried: “Can we remain supine spectators of parliamentary proceedings being reduced to desiccating debates, particularly when the government has, time and again, cynically tried to sweep a succession of scandals under the carpet?”
The implication is plain. Since debates do not yield the result desired by the Opposition, it will prevent Parliament from functioning. There is a certain contempt for debates per se, as if they are an exercise in futility. However, parliamentary debate has a direct impact on the minds of the public.
The Supreme Court does not enjoy the esteem that apex courts enjoy in Britain, Canada or Australia. It is not politicised unlike the U.S. Supreme Court. But it has exceeded its explicit constitutional limits to usurp the power to appoint judges to itself, to veto the police’s professional discretion to investigate into the conduct of, and to prosecute, a judge, to order the legislature on how it should conduct its affairs, and intrude on the executive and legislative domain and to silence the citizen who asserts a right to censure the judges. Constitutional learning was not expended on any of these matters. Ipse dixit were used confidently and lavishly.
Parliament had to step in to provide that truth is a defence to a charge of contempt of court.
But the Supreme Court is benumbed with excessive caution when faced with issues the nation expects it to answer. We know the havoc wreaked by Justice J.S. Verma’s palpably flawed judgment allowing campaigns for Hindutva to pass muster in elections. On April 16, 1996, a three-member Bench of the Supreme Court noted the conflict in the court’s decisions (Verma had studiously ignored ones that ran counter to his view).
The Bench directed the Registry to place the case before the Chief Justice “for constituting a larger Bench of five judges, and, if possible, at an early date so that all the questions arising in the present appeal could be decided authoritatively and expeditiously” (Abhiram Singh vs C.D. Commachen & Others (1996) 3 Supreme Court Cases 665, para 14; page 671).
Chief Justices of India have come and gone since, including J.S. Verma himself. Five general elections to the Lok Sabha and umpteen to State Assemblies have followed. With characteristic mendacity leaders of the Sangh Parivar tout the Verma ruling as the last word, which it is not. The Supreme Court has refused to heed the plea to decide the matter at “an early date”. Its silence is deafening.
So it is on the issue of parliamentary privileges, which are abused rampantly. One has lost count of the petitions pending before the court. The latest was by The Hindu. On December 9, 2004, the Supreme Court referred the issue to a seven-judge Bench, though not before delivering uncalled-for homilies to the press. Five years have rolled by. The Bench is yet to be constituted. The abuses continue apace to the court’s knowledge, of course.
Need for reform
On each of these matters – Parliament, Governors, the Speaker’s office and the Supreme Court – reform is feasible and practicable through constitutional amendment provided that the major political parties realise that, as in the case of the office of the President, it is in their interest to abide by the Constitution and remove the deformities that have crept in.
We consciously adopted, in Patel’s words, “the British type of Constitution” and froze our parliamentary privileges to the state they were in Britain on January 26, 1950. But our political class wilfully ignores developments in the U.K. thereafter. Fifty years later, a committee of both Houses of Parliament recommended codification of the privileges and abolition of the power to imprison for contempt. In Britain, it noted, “members do not divide on party lines” on issues of privilege. In India they do. The British model itself has evolved significantly. One of the most eminent authorities, Prof. Vernon Bogdanor, Professor of Government at Oxford, has written an erudite work entitled The New British Constitution (Hart Publishing; pages 392, £17.95). He traces the radical changes introduced by the Human Rights Act, the devolution of power to Scotland and Wales by referenda, etc. Particularly relevant to India is the chapter on “Hung Parliaments; Governing without a Majority”, a fate all too common here.
However, far more relevant are his remarks on the state of politics despite the reforms. It describes our lot as well: “Constitutional reform seems to have done little to combat disenchantment with politics. That disenchantment has been marked by a fall in turnout in general elections, a decline in the membership of political parties, and by a weakening in popular identification with political parties.”
The mass political party is dying on its feet. “It is hardly surprising, then, that the constitutional reform programme has made so little impact upon political disenchantment, for it has done little to open up a political system dominated by political parties, whose roots are no longer as deep as they once were, whose relationship to social interests is far less intimate than it was in the past, and which are not able ideologically to penetrate British society. Parties are no longer the pre-eminent mechanism for the expression of political opinion in Britain. They have become primarily a means by which the voter can choose between competing teams of rulers. The constitutional reforms do little to touch this condition; they do little to meet popular aspirations in a post-socialist and individualist age. They do little, therefore, to meet real popular grievances….
“The real achievement of constitutional reform is to have redistributed power, but it has redistributed power between elites, not between elites and the people. …. The next stage of constitutional reform, therefore, and a far more difficult stage, must be a redistribution of power, not from one part of the elite to another, amongst those professionally involved in politics and the law, but from politicians to the people.”
It is the people who alone can make the Constitution work. As John Stuart Mill noted: “If we ask ourselves on what causes and conditions good government in all its senses, from the humblest to the most exalted, depends, we find that the principal of them, the one which transcends all others, is the qualities of the human beings composing the society over which the government is exercised. Of what avail is the most broadly popular representative system if the electors do not care to choose the best member of Parliament, but choose him who will spend most money to be elected? How can a representative assembly work for good if its members can be bought, or if their excitability of temperament, uncorrected by public discipline or private self-control, makes them incapable of calm deliberation, and they resort to manual violence on the floor of the House, or shoot at one another with rifles? How, again, can government, or any joint concern, be carried on in a tolerable manner by people so envious that if one among them seems likely to succeed in anything those who ought to cooperate with him form a tacit combination to make him fail? Whenever the general disposition of the people is such that each individual regards those only of his interests which are selfish, and does not dwell on, or concern himself for, his share of the general interest, in such a state of things good government is impossible” (Considerations on Representative Government, Everyman’s Library, page 192).
To read such old truths of 1861 is to realise how far we have gone. It is an accurate description of the state of our legislatures, Central and State, and of our politics in 2010. On this our own Dr Ambedkar’s words are even more striking: “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; Vol.VII; page 44).
Rarely has a judicial figure struck such a chord with civil society, rarely has a judge’s not being elevated to the Supreme Court generated so much controversy. Former Delhi High Court chief justice Ajit Prakash Shah’s landmark judgements on the rights of the disabled and homosexuals and on bringing the office of the Chief Justice of India under the ambit of rti grabbed headlines and were widely lauded as modern, liberal and democratic. So when he was not moved to the apex court and had to retire on February 12, the obvious question on everyone’s mind was: why was this good judge kept out?
It is not clear if the Chief Justice of India, K.G. Balakrishnan, was in favour of Shah’s candidature or not. However, Supreme Court judge S.H. Kapadia is believed to have been the chief dissenting voice in the five-member collegium which decides who should or should not move up to the Supreme Court. Sources attribute this to a professional rivalry dating back to Mumbai when both were judges. Others, however, talk of Kapadia’s unhappiness with two verdicts Shah delivered as the chief justice of the Madras High Court; the former is believed to have told lawyers who met him that the judgements were made for “extraneous reasons”—that is, considerations not germane to the case influenced the judgements.
If true, this could be a serious charge against Shah. However, strangely enough, nothing of this sort has been put on record. Nor have the two questionable judgements identified before the legal fraternity. Sources, in fact, say that Justice Shah himself is keen to know which cases these are so that he can defend his judgements.
The specific reasons apart, Shah’s exclusion has raised general questions about the process of selecting judges for the Supreme Court. What are the norms for such appointments? Conversely, what are the reasons for rejecting a judge? Are the reasons cited put down in writing? Are appointments made after consultations with the legal fraternity or do they rest on the preferences of a single individual?
From what has been reported in the media, Shah appears as anguished as anyone else who believes in a transparent, accountable judiciary. Equally baffling to all is that while Shah has not been considered for elevation to the Supreme Court, the court collegium has been silent on its own recommendation of Justice P.D. Dinakaran, against whom there are several allegations of land-grabbing. Going by press reports, of the five names suggested by the collegium for elevation to the Supreme Court, Dinakaran is one.
All this comes as no surprise to former CJI J.S. Verma. The history of the Supreme Court, he says, is full of instances of good legal luminaries being kept out of serving the court. “The question one should be asking is how to ensure that the most suitable get appointed,” says Verma. Other legal experts are realistic enough to point out that several factors like caste- and region-wise representation, religion and politics do come into play. Senior Supreme Court advocate Anil Divan feels there should be a separate statutory body to look into appointments. “Have a body which has a senior judge, outstanding civil servants and respected members of civil society who will be entrusted with the responsibility of selecting judges,” he advocates.
Shah’s omission, says senior advocate Prashant Bhushan, underlines the absence of clear criteria in the selection of judges. “Are factors like judicial temperament, sensitivity towards the common man and transparency in making the names of judges public being considered at all?” Bhushan asks. At present, he says, all that’s offered as reason for appointing judges is integrity and competence. How do you measure these, he wants to know.
Right through the ’80s till the present, several instances have surfaced from time to time when senior judges have failed to move up while their juniors have marched ahead of them. As many as 43 chief justices of 18 high courts have retired without being elevated to the upper court since the ’90s. Some have even quit in protest.
A question legal experts often ask is whether the apex court follows its own judgements vis-a-vis appointments. In a historic judgement by a nine-judge bench in 1993, the judiciary took over the rights of appointment from the executive on the premise that appointments should not rest on the whims and fancies of a single individual. But has exactly the same happened in Shah’s case? Was Kapadia the only one opposed to Shah’s candidature or did all members of the collegium opposed his appointment? Did one judge stand in the way of this appointment? The 1993 judgement also says the opinion of all members of the collegium with respect to each recommendation should be put in writing. Something, experts say, that is hardly observed. “The collegium,” senior lawyer Rajeev Dhawan concludes, “has created a cabal in court and we know nothing about how this cabal functions”. Who is to judge those who judge us?
IN THE EDITORIAL OF THE HINDU
The politicisation of policing is rampant across Indian States. When the police come under political pressure, they are known to serve as the handmaiden of the ruling party, whether in covering up failures and misdeeds of the administration or in targeting political opponents. In many such instances, courts have intervened in the interest of an impartial probe and ordered investigation by the Central Bureau of Investigation. Therefore the ruling of a Constitution Bench of the Supreme Court that the highest court in the land and the High Courts have the power to order, without the consent of the State government concerned, an investigation by the CBI into cognisable offences committed within its territory comes as no surprise. But importantly, while upholding the constitutional validity of an existing judicial practice, the court entered certain crucial caveats. Calling for great caution on this issue, the Bench asked the courts to “bear in mind certain self-imposed limitations on the exercise of these constitutional powers.” While disagreeing with the contention that the ordering of a CBI probe without the State government’s consent would impinge on the federal structure of the Constitution and violate the doctrine of separation of powers, the Supreme Court ruled that such orders could not be passed as a matter of routine or on the basis of allegations against the local police by a party.
However, the judgment raises several other issues and concerns. For one thing, the CBI too is not insulated from political pressures. As was evident in the Bofors case, the CBI is susceptible to pressures from the central government just as the State police forces are to pressures from the party in power in the State. Preferring one agency at the expense of another is not the solution. Institutional mechanisms must be put in place to protect investigating agencies from the influence of their political masters. It is a sound principle of law that courts should not normally intervene at the stage of investigation; judicial intervention at this stage should come only in the face of overwhelming evidence of a possible miscarriage of justice. This is also because the primary responsibility for maintaining law and order rests with the State government, and ‘police’ is in the State list. Courts have shown a tendency to overreach, to encroach on the powers of the executive. Each encroachment is made in the name of protecting civil liberties and fundamental rights of the citizens. But every time the courts do so without sufficient reason, the foundations of the Constitution are shaken. Wrong use of extraordinary provisions is the surest way of undermining them.
Srikrishna Rajagopal in THE INDIAN EXPRESS
The contribution of writers and music composers to Indian cinema cannot be overestimated. However, due to unremitting exploitation by film producers and record companies, they have seldom had the opportunity to truly benefit from the value they have consistently brought to films. Now, a well-intended amendment to the country’s copyright law seeks to address the situation.
However, the amendments proposed to protect writers and music composers may further undermine their ability to negotiate new forms of exploitation of their works. Over the last few years, several new revenue opportunities have arisen with respect to film songs such as their use in ringtones. Although one might imagine that the writers and composers instrumental in the creation of film songs would be able to benefit from these new revenue opportunities, film producers and record companies have systematically ensured that they are denied their fair share.
By way of background, film producers and record companies succeeded in marginalising writers and composers by interpreting a Supreme Court judgment rendered in the IPRS case in 1977. The owner of copyright in a film is the producer of the film. In the IPRS case, the Supreme Court held that when music composers or lyric writers write music to be used in a film, they are in fact making a part of the film, and consequently the producer is the owner of copyright. The decision was based on the definition of “cinematographic film” that prevailed under the Copyright Act 1957 at the time. Pertinently, “cinematographic film” was defined to include the “soundtrack” accompanying the film. The court held that since the music composition and lyrics contribute to the soundtrack of the film, and the soundtrack is an integral part of the film, the producer is the owner of copyright in the music and lyrics.
Significantly, in 1994, the act was amended and the definition of “cinematographic” film changed so that it included only the accompanying “sound recording”. Consequently, musical compositions and lyrics which are treated as “musical works” and “literary works” respectively, under the act, could no longer be treated as integral to the film. In other words, after the 1994 amendment, in the absence of a contract to the contrary, a music composer or lyric writer merely gave a producer a licence to use/ incorporate the music compositions/ lyrics as part of the film and no other rights. All other forms of exploitation of the musical works and lyrics such as use as ringtones, public performance of the music in hotels, discos, etc, were retained by the music composers/ lyric writers, in their capacity as the authors/ creators.
The producers and record companies saw in the 1977 judgment of the Supreme Court an opportunity to deprive music composers and lyric writers of their share in revenues generated out of alternative steams of exploitation of their works. Unfortunately, there was no occasion for a court to revisit the decision of the Supreme Court in the IPRS case in the light of the 1994 amendment to the act, resulting in music composers and lyric writers having no choice but to accept the position of the producers and record companies.
The proposed amendments to the act seek to retain ownership of copyright in favour of the music composers and lyric writers so that producers will have only obtained a permission to use the music and lyrics in the film. However, the amendments may have the unintended consequence of further undermining the rights of music composers/ lyric writers. The amendments ought to have just clarified that music composers/ lyric writers retain all rights of exploitation of their works unless they have specifically assigned their rights to the producer. Instead, the proposed amendments merely give the music composer/ lyric writer the right to claim royalties in respect of exploitation of their works other than in respect of making a film. The amendments merely seek to prohibit any agreement by virtue of which a music composer/ lyric writer assigns the right to receive royalties. Pertinently, there appears to be no bar on the ability of a music composer/ lyric writer to assign copyrights in favour of a producer or any third party in respect of exploitation of his/ her works in any other form. If the proposed amendments were to become law, this could result in an anomalous and peculiar situation.
For example, a mobile company which seeks to exploit a particular film song for mobile ringtones may need to pay the producer (who may be the assignee of all copyrights in respect of the music) and also pay the music composer/ lyric writer royalties. In a situation where a composer/ lyric writer alone has been paid royalties, the producer as owner of copyright may also stake a claim. It is not clear whether the law contemplates in what manner and proportion the producer and the music composer/ lyric writer would share royalties. The proposed amendments will only result in having to additionally pay the music composer/ lyric writer, with the producer being in a position to independently assert his/ her rights.
A simpler way of protecting music composers/ lyric writers would perhaps be for the law to just clarify that they continue to retain all rights of exploitation unless these rights have been specifically assigned to the producer. If the law were to be amended to simply clarify this position, music composers and lyric writers in this country would be placed in a considerable position of strength to negotiate commercial terms. One can only hope that the Copyright Committee constituted for this purpose addresses important issues such as these rather than bicker over whose contribution to cinema is more important.
The writer is a Delhi-based intellectual property litigator