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The Constitution, the Government, the Governor and the Judiciary
Opinion

The Constitution, the Government, the Governor and the Judiciary

K.M. Chandrasekhar

The question increasingly being asked today is: are the guardians of the Constitution protecting and preserving it in the manner laid down in the Constitution itself?

I read a nice opinion piece in “The Hindu”( 26/11) on the Indian Constitution by N.L. Rajah, Senior Advocate of the Madras High Court, titled “ India’s enduring document of governance.” He talks of a series of lectures by Ivor Jennings in 1951 in the University of Madras in 1951. Jennings found the Constitution of India “too long, too rigid, too prolix”. Yet, India’s Constitution has survived the test of time, unlike many others and has become, as our Prime Minister said last week in Parliament, a testament to ensure “ dignity for Indians” and “unity for India.” Our Constitution had necessarily to be tortuous and laboured because it sought to bring together, in happy harmony, a conglomeration of princely states and British administered provinces, many different religious, linguistic and ethnic groups, a medley of cultural practices and beliefs. That the Constitution stood the test of time, while many other countries’ constitutions fell by the wayside in a few years, stands testimony to its versatility, its flexibility and the spirit of compromise and mutual accommodation embedded in it. As Rajah puts it,“What is noteworthy is the fact that inclusiveness during the formative years of the Constitution-making debates; specificity of the provisions that produced an excellent balance between redundant verbosity and confounding ambiguity; fundamental rights and judicial review being made sheet anchors of the instrument; a workable scheme for amending the constitutional provisions....to ensure longevity of Constitutions, were all applied even in the 1940s by our Constitution makers.”

Is this priceless document under threat from the very institutions it created, institutions intended to serve the larger interests of the Indian people? Can the government, the judiciary, Constitutional and statutory authorities work together in the manner envisaged?

Shortly before the Prime Minister’s statement in Parliament on the Constitution, the President of India, on the advice of the Government, revoked President’s rule in Maharashtra and the Governor of that State chose to swear in a government headed by the BJP which had no proven majority as subsequent events clearly revealed. The sequence of events that took place the preceding night is clearly a slur on the democratic principles enshrined in the Constitution. It was the bounden duty of the Governor to ensure that the government he swore in had the support of the majority of MLAs in the Legislative Assembly. It was not his duty to give the reins of government to the BJP or any other political party. The Governor’s role is clearly and unambiguously defined in the Constitution and in the jurisprudence that has evolved over the years.

This is not an isolated instance that has occurred in the recent past. Earlier, there was a similar incident in Karnataka when a BJP government was installed and fell after a few days as it could not prove its majority. There have been repeated instances of Governors or Lieutenant Governors taking antagonistic positions against non-BJP governments in Delhi, Puducherry, West Bengal. In fact, the default option seems to be to play politics on behalf of the ruling party at the Centre.

The first casualty in the erosion of Constitutional values is,therefore, the office of Governor. The Governor of the State is under an oath administered to him by the Chief Justice of the High Court of the State to preserve, protect and defend the Constitution and to devote himself to the service and well-being of the people of the State. When the Governor acts unfairly and is perceived to be acting unfairly, one pillar of our system of Constitutional checks and balances begins to crack.

Nor did the Government of India cover itself with glory. When the previous evening, the three major non-BJP parties had got together publicly and decided on their candidate for CM, the pre-dawn shenanigans at Delhi cannot be justified on Constitutional or moral grounds. The fact that the Governor’s letter for revocation of President’s rule was accepted without question and rushed through the layers of the Central Government shows that the entire episode was planned and orchestrated. Rule 12 of the Government of India( Transaction of Business) Rules, enabling the Prime Minister to permit or condone departure from the rules is expected to be used very discreetly only in the rarest of rare cases. Using it to bypass the Cabinet to revoke President’s rule in Maharashtra again casts doubts on the government’s honesty of intention. Cabinet meetings have been called at very short notice at odd hours to discuss matters of urgency. While going through an old file relating to the Bhopal gas tragedy, I found that the then PM, Rajiv Gandhi had even convened a meeting at 2 am in the morning. The way in which this matter was handled in the PMO brings back unhappy memories of the impulsive haste with which demonetisation was rushed through, which triggered off events that eventually culminated in the downward spiral we now witness in the economy. Worse, it casts doubts on the integrity and moral standards at the highest rungs of the political executive.

If the Government of India and the Governor of Karnataka came out of the episode with their credibility clearly eroded, a three judge bench of the Supreme Court redeemed to a great extent the reputation and credibility of the top court of the country. Meeting on a Sunday to hear the petition, completing the hearing on Monday and giving their order on Tuesday, the Supreme Court is widely recognised as the saviour of Indian Constitutional values and the democratic system of governance. This has not always been the case in the last few months. The judgments in the Ayodhya case, the Rafale case, delayed action in the cases relating to Article 370 and Jammu and Kashmir - all these have contributed to a certain loss of confidence in the independence of the judiciary and its ability to withstand pressure brought on it by the political executive. While the Ayodhya judgment was a unanimous one and actually resulted in the resolution of a difficult socio-political dispute that created deep, seemingly irreconcilable, rifts in Indian society for more than a century, there are many who feel that more detailed examination of the other cases would have been useful. Even in the Ayodhya judgment, it is pointed out that, while in the earlier Sabarimala case, law trumped faith, in the Ayodhya case, faith seems to have formed the basis of a legal decision. There were cases earlier,too, where the impartiality and strict adherence to values by the judiciary have been called in question. We even saw the unusual scene of four senior Justices of the Supreme Court reaching out to the public through the media to talk about the misuse of authority by the then Chief Justice as “master of the rolls” in allocating cases to Justices. Questions continue to be asked about the Prasad Educational Trust case, the Justice Loya case and many others

The reactions to the judgments have been different, some have been received with acclaim, some with doubt. In the final analysis, the Supreme Court, like the High Courts, consists of individuals. Different individuals can have different approaches, different understanding of the legal issues involved and may give differing judgments. The appellate system built into the judicial structure itself is proof of the universal recognition that judges are not infallible and that mechanisms have to be provided for redress of wrong decisions. Nor are all judges in the entire structure of the judiciary immune to the thought processes and weaknesses of society as a whole.

Justice Madan Lokur, in a recent introspective article in the ““Hindustan Times”, pointed out specifically that the new Chief Justice of the Supreme Court has “an unenviable task ahead, principally to restore the credibility and stature of what is incorrectly described as the most powerful court in the world.” The operative word here is “restore”, which implies that there was a balance and that balance somehow no longer exists. “ Unless this concern is urgently addressed,” he says,“the cascading effect will be the death knell of the independence of the judiciary.” Ominous words that need to be carefully considered by the higher judiciary and the government equally to bring back faith into the system.

What is at stake today is the future of the Constitution, so carefully designed by its makers. In this Constitution lies the key to the unity and integrity of the country.