Constitutional excesses

BHARAT RATNA DR B R AMBEDKAR

BHARAT RATNA DR B R AMBEDKAR

A.G. NOORANI in FRONTLINE

Recent instances of perceived overreach by Governors and judges can be fraught with grave consequences if left unchecked.

A COUNTRY committed to the rule of law and the norms of democracy is not governed by continuous litigation to set right continuous wrongs, especially if judges who are appointed to check violations of the Constitution by the legislature and the executive themselves commit excesses, testifying to a disregard of not only the established norms of judicial behaviour and the spirit of the Constitution but even the very letter of the Constitution.

For reasons not hard to understand, leading figures of the Supreme Court Bar are quiescent. They deliver the occasional mild criticism when censure is the need of the hour. We do not have a single learned journal that remotely resembles Law Quarterly Review or Harvard Law Review. Academics disappoint. What we have had is instant comment. The quality of the discourse has been lowered by TV channels and most of those who perform for the idiot box. There is another vice – political partisanship. Constitutional values suffer as constitutional excesses proceed unchecked.

Here is a shortlist of some recent ones.

1. Chief Minister Narendra Modi of Gujarat presided over a pogrom of Muslims in March 2002 and should be despised. But should that fact or the fact that he is a member of the hate-spewing BJP becloud one’s judgment on the grave wrong the Governor of Gujarat, Kamla Beniwal, perpetrated on August 25 by appointing Justice (Retd.) R.A. Mehta as the Lokayukta? She claimed to act under Section 3(1) of the Gujarat Lokayukta Act, 1986. It enjoins consultation with the Chief Justice of the High Court and the Leader of the Opposition in the Legislative Assembly. This power is to be exercised and the consultation must be conducted by the Chief Minister, not by the Governor. She is bound to act on his advice. How on earth can she talk to the opposition leader on such a matter ignoring the Chief Minister?

The legal issues thus raised will be decided by the High Court. The Governor’s assertion, however, is fraught with grave consequences. She said: “Although generally the Governor acts as per the aid and advice of the Council of Ministers, headed by the Chief Minister, there might be circumstances where the Governor cannot remain a mute spectator to the happenings in the State and is compelled to use discretion.” The emotive language reveals a lot. She herself will be the judge of those “circumstances” and will “use discretion” which does not belong to her at all under the Constitution.

Initially, the framers of the Constitution envisaged an elected Governor. Jayaprakash Narayan was among those who had made suggestions on the draft and his comment on the appointment of Governors was pointed and perceptive:

“The coexistence of a Governor elected by the people and of the Chief Minister responsible to the Legislature may lead to friction. If the Governor is appointed by the President on the advice of the Federal Government out of a panel of four persons chosen by the Provincial Legislature by means of a single transferable vote, the Federal Chief Minister is likely to choose out of the panel a man of his own party even if the latter had not secured the largest number of votes. Such a situation is not likely to promote harmony in the provincial government and may disturb the harmony which must exist between the Federal and State Authorities.”

The drafting committee’s comment on Jayaprakash Narayan’s criticism is quoted below:

“Note: The criticism that the coexistence of a Governor elected by the people and a Chief Minister responsible to the Legislature might lead to friction and consequent weakness in administration will also apply if the Governor is elected by the members of the Legislature of the State and the representatives of the State concerned in the Federal Parliament. To meet the objection to the election of a panel of candidates for appointment to the office of Governor, the Special Committee recommended that the Governors should be directly appointed by the President. It has also been proposed that the Governor should act on the advice of his Ministers in all matters. This would obviate the possibility of any friction between the Governor and his Ministers.”

The drafting committee therefore decided: “That for Article 131, the following be substituted: Appointment of Governor: The Governor shall be appointed by the President by warrant under his hand and seal.”

This is the genesis for the provision as finally adopted by the Constituent Assembly. The Governor would be a constitutional head of state just like the President of India and be governed by identical conventions of the parliamentary system. This was made amply clear by B.R. Ambedkar in the Constituent Assembly on December 30, 1948.

“Under a parliamentary system of government, there are only two prerogatives which the King or the Head of the State may exercise. One is the appointment of the Prime Minister and the other is the dissolution of Parliament. With regard to the Prime Minister it is not possible to avoid vesting the discretion in the President. The only other way by which we could provide for the appointment of the Prime Minister without vesting the authority or the discretion in the President is to require that it is the House which shall in the first instance choose its leader and then on the choice being made by a motion or a resolution, the President should proceed to appoint the Prime Minister.”

Mohammed Tahir asked: “On a point of order, how will it explain the position of the Governors and the Ministers of the State where discretionary powers have been allowed to be used by the Governors?

Ambedkar: “ The position of the Governor is exactly the same as the position of the President and I think I need not over-elaborate that at the present moment because we will consider the whole position when we deal with the State Legislatures and the Governors” (emphasis supplied throughout). ( Constituent Assembly Debates, Vol. VII, page 1158.)

What if the President asserted such a power since his powers are “exactly the same” as those of the Governor? The Governor of Bihar, Debanand Konwar, holds up his assent to Bills passed by the Assembly and appoints Vice-Chancellors without consulting Chief Minister Nitish Kumar. What if the President also behaves thus?

2. On August 24, leading dailies carried a full-page advertisement of the Tamil Nadu government headed by J. Jayalalithaa ostensibly to highlight the “achievements” of a government which had come to power on May 19. The photo/picture of her meeting with U.S. Secretary of State Hillary Clinton alone suffices to expose the falsity of the excuse. The whole page projected J. Jayalalithaa personally. Such a projection is a gross abuse of power and is unconstitutional. The High Court can order her personally to reimburse the treasury with the money spent on the advertisement. In fairness, she was only following the example set over decades by Chief Ministers of all political parties. As H.M. Seervai pointed out, under Article 294 of the Constitution assets and properties are vested in the Union and the State governments for the purpose respectively of the Union and the States, in short for a public purpose. ( Constitutional Law of India, Fourth Edition, Vol. I; page 933). The Federal Constitutional Court of Germany held such ads to be abuse of power, in March 1977 and more recently.

3. The Indian Express of August 24 reported: “Students of government-run primary schools in Madhya Pradesh are now compulsorily reading what their counterparts in the RSS-run Saraswati Shishu Mandirs have been doing for a long time. The first copies of Devputra, a children’s magazine published by Indore-based Saraswati Bal Kalyan Nyas, have reached over 83,400 primary schools across the State.

“The Hindi monthly, which boasts of a circulation of 1.3 lakh, has devoted a special issue to RSS ideologue M.S. Golwalkar in the past. Senior RSS functionary Krishna Kumar Ashthana heads the trust that brings out the magazine. The magazine will cost the exchequer Rs.1.5 crore.”

This outrage should be set at naught by the courts. In R. vs Ealing London Borough Council, ex p. Times Newspapers Ltd. (1986) 85 LGF 316, The Times had the borough council’s decision to exclude it for extraneous reasons struck down. As the venerable Halsbury’s Laws of England sums up: “A decision as to the library stock taken on purely political grounds is a decision for an ulterior motive taken into account an irrelevant consideration is therefore susceptible to judicial review” (Vol. 28, page 188, para 335). The poison spread in textbooks is a menace none should tolerate.

4. But what is the citizens’ recourse against excesses committed by judges of the highest court in the land? It is bad enough that law correspondents and the dailies meekly submitted, bar exceptions, to Justice J.S. Verma’s arbitrary edict that outbursts of individual judges should be attributed to “the Bench”, and thus perpetrate a falsehood. “The Bench” speaks only through its judgment. It is individual judges who make remarks in the course of the hearings.

Read this report in the Indian Express of August 30: “Days after MPs questioned the process of judicial appointment, the Supreme Court (sic) today hit back. ‘We have seen some enlightened people making comments that the standards of judiciary have gone down. Let those people cry from rooftops that the standards of judiciary have gone down,’ said a Bench of Justice G.S. Singhvi and Justice H.L. Dattu.

“ The Judges also attacked the government saying that pople would ‘teach them a lesson’ as was seen recently in the Anna Hazare campaign for the Jan Lokpal. In fact, the Bench suggested that the government could face more such protests and that things could take a ‘worse’ turn’.” By the way, which of the two judges spoke thus. They could not have spoken the same words together in chorus. Why talk of “the Bench” and why “the Supreme Court”?

These brazenly political remarks are not only grossly improper but also violative of Article 122 of the Constitution. Judges have no right to comment on debates in Parliament. Correspondingly, under Article 121 MPs may not comment on judges. Two features stand out: intemperate comments by judges on and off the Bench and aggrandisement of power. The Supreme Court by its own ipse dixit and in violation of the Constitution assumed to itself the power to appoint judges and created a bar, equally unconstitutionally, of police inquiries against a judge save with the permission of the Chief Justice of India. Five of these custodians recently came under a cloud – CJIs K.M. Singh, A.S. Anand, M.M. Punchi, Y.K. Sabharwal and their “distinguished” successor K.G. Balakrishnan. Both this bar so erected and the bogus collegium stand discredited today, but not before they had done incalculable harm (see the writer’s article “Above the law”, Frontline November 7 and November 21, 2008, and “Talking judges”, Frontline, February 25, 2011).

The remarks made recently by Justices B. Sudershan Reddy, A.K. Ganguly and Aftab Alam, in different judgments have aroused much criticism (Vide Krishnadas Rajagopal’s report, Indian Express, August 5, 2011).

5. The correspondent reported in the same paper on August 26 a set of “updated” norms issued by the Supreme Court for accreditation of journalists to the court. It “can be withdrawn, at any time, without assigning any reason” – a pathetic display of arbitrary power by a court whose duty it is to strike down arbitrary power. Judicial excess is more obnoxious than legislative or executive excess. This order is subject to judicial review and deserves to be challenged in court.

Source: http://www.frontline.in/stories/20111007282010400.htm

Advertisements

Jan Lokpal Bill and Parliament

Social activist Anna Hazare having a word with his team members Prashant Bhushan and Shanti Bhushan during the fast for Jan Lokpal Bill at Ramlila Maidan in New Delhi.

Social activist Anna Hazare having a word with his team members Prashant Bhushan and Shanti Bhushan during the fast for Jan Lokpal Bill at Ramlila Maidan in New Delhi.

SHANTI BHUSHAN IN THE HINDU

Is the Bill within the legislative competence of Parliament? Yes.

All provisions in Anna Hazare‘s Jan Lokpal Bill are within the legislative competence of Parliament, including the provisions relating to Lokayuktas in the States. Some confusion is being spread in the media that Parliament cannot enact all the provisions of the Jan Lokpal Bill, particularly those relating to the Lokayuktas in the States, a law for which will have to be enacted by the State Legislatures themselves. Any constitutional jurist would confirm that there is no substance in this impression and that Parliament is fully competent to enact all the provisions of the Jan Lokpal Bill.

Parliament can enact any law if the “pith and substance” of that law is covered by any entry in the Union List or any entry in the Concurrent List. Entry 97 of the Union List is as follows: “Any other matter not enumerated in list 2 or list 3 including any tax not mentioned in either of those lists.”

The effect of this is that unless the pith and substance of the Jan Lokpal Bill falls squarely under any of the entries in the State List, Parliament cannot be denied the legislative competence to enact the provisions of the Jan Lokpal Bill. Even a student of law would tell you that the pith and substance of the Jan Lokpal Bill does not fall under any entry in the State list.

One of the entries in the Union List is entry No.14: “entering into treaties and agreements with foreign countries and implementing of treaties, agreements and conventions with foreign countries.” Article 253 provides that “Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body.” The effect of Article 253 is that even if the pith and substance of an Act is squarely covered by an entry in the State List, even then if the enactment is for implementing a U.N. Convention, Parliament would still be competent to enact the legislation.

As the statement of objects and reasons of the Jan Lokpal Bill would show, the object of the Jan Lokpal Bill is to implement the United Nations Convention on Corruption, which has already been ratified by India (http://www.unodc.org/unodc/en/treaties/CAC/index.html).

The definition of “public official” in the U.N. Convention includes any person holding a legislative, executive, administrative, or judicial office, whether appointed or elected. This is quite similar to the definition of “public servant” in the Prevention of Corruption Act, 1988, enacted by India’s Parliament, which covers all Ministers including the Prime Minister, all judges of the High Court and the Supreme Court as well as all elected Members of Parliament and State Legislatures. Incidentally, it may be mentioned that the Prevention of Corruption Act was enacted by Parliament and not by any State Legislature, even though it is applicable not only to Central government servants but also to servants of the State governments. The main object of the Jan Lokpal Bill is to set up an independent authority as required by the U.N. Convention to investigate offences of corruption by all public servants covered by the Prevention of Corruption Act, 1988.

Entry 1 of the Concurrent List refers to criminal law, including all matters included in the Indian Penal Code. As bribery and corruption were covered by the Indian Penal Code, Parliament had full competence to enact the Prevention of Corruption Act.

Entry 2 of the Concurrent List relates to criminal procedure, including all matters included in the Code of Criminal Procedure. Since the investigation of bribery and corruption was included in the Code of Criminal Procedure, Parliament is fully competent to enact a law to provide for alternative methods of investigation of offences under the Prevention of Corruption Act.

Article 8 (2) of the U.N. Convention requires each state that is a party to the Convention to apply, within its own institutional and legal systems, codes or standards of conduct for the correct, honourable, and proper performance of public functions.

Article 8 (5) further requires the states to establish systems requiring public officials to make declarations regarding their outside activities, employment, investments, assets, and substantial gifts or benefits from which a conflict of interest may result with respect to their functions as public officials.

Article 8 (6) further requires the states to take disciplinary or other measures against public officials who violate the codes or standards established in accordance with the convention.

Article 12 (2) requires the taking of measures for preventing the misuse of procedures regulating private entities, including procedures regarding subsidies and licences granted by public authorities for commercial activities. It further requires the imposition of restrictions for a reasonable period of time on the professional activities of former public officials after their resignation or retirement, where such activities of employment relate directly to the functions held or supervised by those public officials during their tenure.

Article 34 of the Convention requires the states to consider corruption a relevant factor in legal proceedings to annul or rescind a contract, withdraw a concession or other similar instrument, or take any other remedial action. It would be crystal clear to any constitutional jurist that even if the Jan Lokpal Bill had not been for the purpose of implementing the U.N. Convention, all its provisions would be squarely covered by the Union List and the Concurrent List.

While one can understand the anxiety of political parties to somehow attempt to dilute the provisions of the Jan Lokpal Bill by reducing its coverage or to weaken it, they owe it to the people of India not to mislead the gullible people that Parliament is not competent to enact the provisions contained in Anna Hazare’s Jan Lokpal Bill. Even the claim that at the least the States are required to be consulted has no basis at all. The Constitution-makers had foreseen that in a federal or quasi-federal country, the States’ views had to be taken into consideration by Parliament when enacting a law. They had, therefore, provided for the Council of States and a Bill cannot be enacted by Parliament unless it is passed both in the Lok Sabha and the Rajya Sabha. The constitution of the Rajya Sabha provides that each State elects its representatives to this House. Thus all States are represented in the Rajya Sabha. The MPs in the Rajya Sabha are there to represent the views of the states on any Bill that comes before it and there is thus an inbuilt mechanism in the Constitution itself to provide for taking into consideration the views of the States on a Bill that is being enacted by Parliament.

(Shanti Bhushan, a constitutional expert, is a former Union Law Minister and member of the Joint Drafting Committee on the Lokpal Bill.)

Source: http://www.thehindu.com/opinion/lead/article2430078.ece?homepage=true