EQUALITY BEFORE LAW — Myth on paper & unreal in practice

EQUALITY BEFORE LAW

Myth on paper, unreal in practice

By Amba Charan Vasishth

Congress rallies in support of ex-PM Dr. Manmohan Singh.

Biz honchos come out in support of (Kumar Mangalam) Birla.

Human rights and social activists rally behind Teesta Setalvad alleging she is victim of an administration out to harrass her for her espousing the cause of the Gujarat riot victims.

These are some of the highlights of the headlines that appeared in the media recently. With such averments and behaviour by the people who matter, are they slowly and steadily not displaying their lack of faith in the rule of law, the investigating agencies and criminal jurisprudence of the country? Inadvertently or otherwise, it looks they are.

What for does this "support" stand for — support for the person who allegedly committed a crime for which his/her conduct is under investigation and trial? Does this conduct behove a responsible, law-abiding citizen of a free and democratic India? Does it ennoble political parties and leaders — some of whom are law-makers themselves — who boast of doing their very best to usher in a civil society where peace and prosperity reigns supreme where justice prevails, innocent are protected and guilty get punished? A regime under which the people have no sense of security of life and property and criminals do not dread the rod of law is a jungle raj.

Whenever a politician is brought to book for a crime he committed, whether in the discharge of his official duties holding a public office or in the performance of his political activities, the instant — and stock — reaction is that the case is "false, baseless, unfounded, politically motivated, an instance of political vendetta, aimed at character assisination" and what not.

 Take note of just a few cases during the last some years. Whether it was the Commonwealth Games scam, 2G scam, Coalgate or others, the then Congress-led UPA government had rubbished the CAG and his reports. On the contrary, the then Prime Minister Dr. Manmohan Singh and Congress President Mrs. Sonia Gandhi are on record having defended that no wrong had been done in violation of the UPA government policy They even issued 'honesty' certificates to the accused A. Raja and others. When Dr. Manmohan Singh's name surfaced in the Coalgate scam, the whole party stood behind him.  As the investigation progressed and facts oozed out, the then CAG Vinod Rai appears now to have the last laugh. The likes of UPA ministers Kapil Sibal and P. Chidambaram now turn the laughing stock of the people for their funny statements and logic.

Now that Dr. Manmohan Singh has been sum named as one of the accused in the Coalgate scam by a CBI court, the Congress party is standing as a pillar of support behind him.  The industry has come out unanimously behind Kumar Mangalam citing various reasons. Protest demonstrations too are not an unheard of even.

A public display of affinity amounts to undermining the credibility of the judicial system and faith in the law to dispense justice by giving a free and fair trial. The judicial system provides for at least two ladders of appeal to higher and the highest courts of the country to ensure that everybody gets justice. A media trial does justice to no party. But the way verdicts, without trial, of "guilty" or "not guilty" by the interested parties and well-wishers, particularly politicians or socially aligned to the accused, can be most harmful.

The Constitution may provide equality before law for all without discrimination on any ground but these gestures by the higher echelons of society seem to be presenting a different spectrum — a spectrum of the practice of law one for the elite and different for the ordinary mortals. A law under which the latter are paraded handcuffed and denied bail even for petty crimes and if allowed bail, they do not have the financial and social resources to fulfill the conditions. They are condemned as "guilty" instantly without trial. On the other hand, the privileges class even when charged with heinous crimes like rape, murder, cheating flashes a broad smile merrily waving to the crowd as if in a battlefield making a great sacrifice fighting for the nation. Even when found guilty and sentenced to prison, the ordinary being rots in jail undergoing rigorous punishment. But the elite enjoy their sentences in the luxury of 5-star hospitals or have fun getting every comfort in the four walls of a prison.

In a civilized society a crime cannot be a  matter of pride for one to raise one's head high and matter of curse and shame for the less privileged.

It is time for all to do something to stem the rot and not allow this notion overwhelm the mind of the common man. That would be disastrous for the democracy and the nation. The people who  matter need to ponder before it is too late.                                           ***

Preamble ad controversy — IT IS NO 'TREASON', MR SACHAR

Preamble ad controversy

IT IS NO 'TREASON', MR SACHAR

By Amba Charan Vashishth

The veteran jurist and former chief justice of Delhi High Court, Mr. Rajinder Sachar has taken undue offence to the watermark of the Preamble to the Consitution in an advertisement appearing without the words "secular" and "socialist". In his article which appeared with the same caption , "This is treason, Mr Prime Minister" in the The Statesman on February 12, in the weekly Mainstream on February 14 and The Hindu as also in the Muslim Mirror. These words were inserted in 1976 Amendment to the Constitution while the ad was issued on the occasion of the 66^th anniversary of India's Republic when these words did not form part of the Preamble. He dubs the action as "treason". This is not the case.

The line of argument taken by a person of the stature of Rajinder Sachar in his article, ”This is treason, Mr Prime Minister” published in various national newspapers and periodicals in February is appalling. One is surprised at his understanding and appreciation of the fact, law and the situation of an “unimaginable crisis…gripping our country”, something nowhere visible.

He takes offence to a government advertisement carrying the watermark of the Preamble to the Constitution on the occasion of the 66th anniversary of our Republic on January 26. How could the omission of the words “secularism” and “socialism” become a “devious interpolation” when these words were not there in the Preamble in 1950? Moreover, January 26 marked the 66^th anniversary of the 1950 Preamble and not of the 42nd Amendment to the Constitution which “interpolated” the two words in 1976. In fact, it would have been insertion of these two words on the occasion of the 66^th anniversary that would have constituted what he calls a "devious interpolation".

It has also been pointed out that a similar advertisement bearing the watermark of the 1950 Preamble too was published in 2012. But to Sachar, for reasons best known to him, it did not constitute “treason”. There is hardly any overt or covert reason for Sachar to jump to anticipate that the NDA government wishes to delete the words “secularism” and “socialism”. He quotes Union Minister Ravi Shankar Prasad expressing his opinion to “delete” secularism although nothing of the sort appeared in the media. Even if Sachar is rightly quoting Prasad, the latter had every right to exercise his constitutional right to personal opinion and expression. We also know that a single individual cannot amend the Constitution.

Sachar quotes the Keshvanand Bharati case to say that the Parliament has no right to change the basic structure of the Constitution. But this SC judgement applies as much to the 1976 amendment to the Constitution as to any a future government may think of. If that amendment did not change the basic structure of the Constitution by inserting the two words, how will any future amendment to remove these words do?  The present Parliament is as much representative and competent to amend the Constitution to delete the two words from the Preamble to the Constitution as was the then Parliament to insert these in 1976 during emergency.

The 1976 Amendment was in itself a political ploy in the guise of national interest. Sachar himself quotes Dr. B. R. Ambedkar stating in the Constituent Assembly: “If these directive principles to which I have drawn attention are not socialistic in their direction and in their content, I fail to understand what more socialism can be”. The Supreme Court alluded to the same impression: “Though the word “socialism” was introduced into the Preamble by a late amendment of the Constitution that socialism has always been the goal is evident from the Directive Principles of State Policy . The amendment was only to emphasise the urgency.”

Sachar claims that “Dr. Ambedkar refused to do so (incorporate the word “socialism” in the Preamble) for technical reasons”. He stands contradicted by the latter's speech in Constituent Assembly where he emphatically declared: “I don’t see why the Constitution should tie down the people to live in a particular form and not leave it to the people themselves to decide it for themselves”. Why should the future generations of Indians be perennially bound constitutionally to a particular way of live and live in a particular form of society and government?  Why should the people in a democracy be perpetually denied the right to choose or change the system of economy they likein changed circumstances?

Even without these two words the various Articles virtually make the Constitution "secular" and "socialist" because it prohibits discrimination on grounds of faith and provides for equal opportunities and rights to all irrespective of caste, creed, sex and region.

The Prime Minister and his cabinet did take oath that “they will bear true faith and alligience to the Constitution of India as by law established”. Nowhere have they implicitly or explicitly hinted their intention not to abide by their oath. Therefore, there is hardly any rationale to demand and the PM to oblige to reiterate their resolve just to satisfy the imaginary fears of some persons. If Sachar’s argument was stretched further, that would inversely mean that Parliament cannot amend the Constitution because the MPs had on oath declared to abide by the Constitution.

There  seems  to be a deliberate design in leaving the two words undefined to let different people and parties the unbridled liberty to interpret these differently in their own way to suit their political purpose at a particular point of time and place. It is because of this that every leader and political party enjoys the unrestrained freedom to claim to be 'secular' and to dub the opponent 'communal'. Even those political organizations whose membership is restricted to a single community claim themselves to be 'secular'.

Mentioning "secularism" is meaningless unless defined and codified. And when was the Hindu (Indian) society not secular?  No concept could be more secular than that of sarv dharma sambhav (every faith was equal).  The founding fathers of the Constitution had refrained from inserting the word “secular” only because they never doubted that Hindu society could ever be not secular.

The insertion of the word “socialist” without defining too is as much a misnomer as is “secular”. Socialism means different things to different people in different countries. USSR, now Russia, China, Cuba and many other countries are ‘socialist’ ones but socialism varies from country to country. Many of our political parties claim themselves ‘socialist’ but their concept of socialism is not one and the same. It changes with the person and the party. During last assembly elections Mamta Banerjee defeated CPM led left front government in West Bengal and replaced it with a TMC one.  But interpreting this change as defeat of communism-socialism and advent of a capist regime would be patently wrong. Therefore, calling the country a “socialist” republic is as vague and incomprehensible as “secular”. 

In reality the mere saying so in the Preamble does not make the Indian government, political parties and the people "secular" and "socialist". These two words are not a panacea for all the ills of secularism-communalism and poverty facing the country. Despite their being in the Preamble, neither has communal harmony become the order of the day, nor have the communal riots become a thing of the past nor is socialism ruling the roost. During the last about forty years of the country having been declared "socialist" constitutionally, poverty has just not vanished. The gap between the rich and the poor continues to widen. 

Going by the Sachar logic, exercising their fundamental right to opinion and to express it against the Amendments to the Constitution by individuals or parties or challenging these in courts amounts to "treason" in this "secular" and "socialist" Republic of India. But section 124A of the Indian Penal Code provides: "Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards… the Government estab­lished by law in India … shall be punished with im­prisonment for life…" How does the words and actions NDA government amount to "treason" only the jurist in Rajinder Sachar can explain.              ***

                                                                             

The writer is a Delhi-based political analyst.

A 'Victory' or Retreat, Mr. Kejriwal?

It looks eating his own words is the favourite dish Delhi chief minister Arvind Kejriwal relishes the most. He enjoys it the most when sprinkled with the flavour of hypocrisy on it.

Announcing the termination of his 30-hour old dharna near the Railway Bhawan, New Delhi Mr. Kejriwal claimed it a victory of Delhi people. But what for? He was not fighting for a cause dear to the Delhi people. He had staked the prestige and honour of his government and party only for establishing the superiority of his two ministers whose conduct did not behove the office they held. It is not the function of a minister to order raids or conduct the same themselves. Or to catch hold of people, more so women, whom they suspect to be involved in any kind of crime. It is neither the duty of a minister to decide the course and manner of a police operation and command officers to act or not to act in a particular manner. They cannot grab the law in their own hands like a jhadoo, their party election symbol, and instead of using it to sweep the floor start beating people with it. This whole gimmickry has cost the people very dear. It put out of gear the normal life. It disturbed peace and tranquility in the country's national capital.

On the first day he exhorted party workers and supporters to keep off the dharna. Next day when he felt that his whole Cabinet alone was not strong enough to make Union Government bend, he issued a call to his MLAs to bring, in thousands, people to the dharna site. The people of Delhi already suffering the pangs of his dharna because of snarling traffic jams paid no heed to his appeals. Ultimately, as per media reports, Delhi AAP had to 'import' about 400 people from Haryana to give semblance of peoples' support.

Mr. Kejriwal also seems to be suffering from occasional bouts of selective amnesia. He had started off his protest march which culminated into a dharna outside Rail Bhawan with a demand that five police officers should be suspended pending probe for, in the words of AAP leaders, "dereliction of duty" for not acting on the diktat of Law Minister Somnath Bharti etc. Mr. Kejriwqal had accordingly declared that there could be no compromise on this demand under any circumstances. He rejected the advice of Home Minister Sushil Kumar Shinde to maintain the dignity of office he occupies. He also turned down Mr. Shinde's suggestion to shift his dharna to the Jantar Mantar. "It is me", Mr. Kejriwal declared at noon on January 21 to the clapping of his horde, "and not Shinde where should I sit on dharna". He threatened that the dharna would linger on as long as even 10 days till his demands were met. When pointed out that this would hinder the Republic Day celebrations in the national capital, he remained unrelenting. When some political parties accused him of spreading anarchy, he proudly acknowledged himself to be "an anarchist". He retorted: "Politics cannot be played sitting in five-star comforts but sitting on the roads with the people". He forgot that administration cannot be run sitting in dharnas on the roads. Instead of maintaining law & order and obeying the laws of the land Kejriwal himself became a threat to law and order in the city.

But by the afternoon the 'proud anarchist' seemed rattled by lack of public support for his un-public cause, no-nonsense attitude of the Union government and Lt. Governor and, above all, the unkind weather. The solid ice of his arrogance of power melt away even in this bone-chilling cold. He became panicky for a face-saver. He, according to reports, wanted that at least these officers should be transferred, if not suspended, from their posts. The Lt. Governor stood his ground. He was kind enough not to humiliate the chief minister too far and gave a lollypop of sending just two police officers on paid leave for, according to reports, only three-four days. And this, Mr. Kejriwal took as a "great victory" for the Delhi people which for he himself was an ignominious humiliation. Kejriwal & company have let down their own government and Delhi people — those very people who catapulted them to power. The defiant Kejriwal who had the guts to ignore Union Home Minister condescended to relent as a show of respect to the Delhi Lt. Governor.

Kejriwal cabinet took oath of office swearing in the name of God/solemnly affirming that they "will bear true faith and allegiance to the Constitution of India as by law established" and "will do right to all manner of people in accordance with the Constitution and the law, without fear or favour, affection or ill-will."  They violated this oath and the Constitution by sitting on a dharna in defiance of prohibitory orders under section 144 and by calling upon policemen on duty to shed their uniform and join their protest dharna.

Mr. Kejriwal claimed that this 'victory' was a great step forward making Delhi Police hark the voice of the elected government of the people. His assumption is erroneous. On the other hand, his government's unbecoming behaviour has spoiled the case for handing over the reins of Delhi Police and responsibility for law and order to the "elected government of the people". The irresponsible and self-assertive conduct of the Kejriwal government has justified the denial of this right to the Delhi government. One shudders at the very thought of the prospect of what havoc lay in store for the people of Delhi had Kejriwal government full control over Delhi Police and law & order as other State governments have, particularly with the republic day celebrations just a few days ahead. It would have proved — there is no exaggeration to say — to be "a live bomb in the hands of a child".

Mr. Kejriwal's conduct has all the more been depressing for those who were discovering in him the qualities of being a good prime minister. Do these people stand by their impression of him? That is the question.                                                            

                                                                                                                  ***

PARLIAMENTARY DEMOCRACY IN INDIA NEEDS A PRIME MINISTER OF THE PEOPLE

PARLIAMENTARY DEMOCRACY IN INDIA NEEDS A PRIME MINISTER OF THE PEOPLE

Not a nominee of political dictators

By Amba Charan Vashishth

BJP has announced its prime ministerial candidate for the 2014 Lok Sabha elections. The ruling Congress continues to maintain the suspense as it toys with various options. 

It is a travesty of India's parliamentary democracy that after Mr. P. V. Narasimha Rao (1996) with the exception of NDA (1998-2004), the post of prime minister (PM) has been reduced to an accident of maneuvers and manipulations. For the first time in independent India's history the country is carrying the baggage of a prime minister for over nine years the party has foisted on the people.

The very fact that elections are held only after every five years on the expiry of the term of House of the People, i.e. the Lok Sabha (LS), or earlier on its dissolution, is a clear indication that in the letter and spirit of the Constitution and the tradition formation of a government at the Centre (or in States) depends upon the verdict of the people given out through the exercise of their right to franchise. Since we follow the Westminster model of parliamentary democracy, it clearly means that the person who is duly and democratically elected by the elected LS members as their leader is the Prime Minister of the country and should be one of the LS members. This had been the tradition since the dawn of parliamentary democracy in India till the United Front government of Mr. H. D. Deve Gowda in 1996. He was not a LS member but he maintained the tradition availed himself of the first opportunity to enter Lok Sabha after becoming PM.

There have been only two instances of exception to the rule and tradition – that of Mrs. Indira Gandhi and Mr. Inder Kumar Gujral. Mrs. Gandhi was a RS member when she succeeded Mr. Lal Bahadur Shastri in late January 1966 following his unfortunate death. In between the Election Commission, for reasons best known to it, did not hold by-election to Allahabad Mr. Shastri represented or any other constituency. She did contest the LS elections next year in 1967 and won.

Mr. Inder Kumar Gujral became United Front's PM after the incumbent Mr. Deve Gowda was eased out on Congress Party's insistence on whose ventilator support from outside the Government was breathing. Before he could think of finding a seat to contest for LS, he was dethroned.

Now it looks as if our great erudite framers of the Constitution failed to visualize that in about fifty years our political parties will turn so bankrupt of mass leaders that though they would like to nominate a person as prime minister yet dare not expose him to the people dreading the vagaries of an uncertain electoral climate. That is why our political parties, particularly those in power, have turned the Constitution into just a wax which can be moulded to give any shape and form to promote their political goals.

They now exploit the absence of any specific provision in the Constitution stipulating in so many unambiguous words that a prime minister shall always be a LS member. They quote Article 75 which provides: (1)" The Prime Minister shall be appointed by the President……", (2) that the "ministers shall hold office during the pleasure of the President" and (3) that the "Council of Ministers shall be collectively responsible to the House of the People" (LS)".  It would be too simplistic and naïve to construe the wording of this Article as if it gives the President dictatorial powers to "appoint" anybody as a PM who need not be an MP at all.

Another shelter they seek behind is the provision in Article 75(5) that a "Minister who for any period of six consecutive months is not a member of either House of Parliament shall, at the expiration of that period, cease to be a Minister". This, again, is an attempt at arm twisting of the Constitution to make it subserve a party's or individual's purpose. This provision was inserted, as the debates in the Constituent Assembly indicate, with the purpose just to utilize the services and talent as ministers in the government of technocrats and specialists in their own fields because they otherwise shy away from the arena of elections. This Article was not meant to induct into the council of ministers, through the back door, persons rejected by the people during elections.

If the intention of the Constitution makers had been to stipulate that a prime minister could be from either House of Parliament, they were free to add the words "Prime Minister" too alongside "Minister" in Article 75(5). To infer that a "Minister" includes the prime minister is stretching a misnomer too far without logic.  Whether a prime minister is considered as "first among equals" or "the moon among the stars", the fact remains that a prime minister is a prime minister and a minister is just a minister. Even our Constitution makes a clear-cut distinction between the two and puts the position of the prime minister superior: "The Prime Minister shall be appointed by the President and the other Ministers shall be appointed by the President on the advice of the Prime Minister". Further, a prime minister is the leader of the majority party elected by its members; ministers are just MPs hand-picked by the prime minister or the party bosses. Therefore, trying to read prime minister in the word "Minister" is nothing short of denying the reality of the day.

There is an unambiguous distinction between a member of Rajya Sabha and that of Lok Sabha. The former is indirectly elected; the latter democratically elected directly by the people through the exercise of their right to franchise. The former has a tenure of six years, the latter's – and that of the council of ministers, even of those who are RS members – is only five years. After every five years, the latter has to go to the people for a fresh bout of elections; the latter has just to seek another round of maneuvers and manipulations of favour from the party bosses.

Further, if the intention of the Constitution had been that a prime minister need not necessarily be a LS member but could also be a RS member, then why is it that the life of the Council of Ministers coincides with that of the tenure of LS and not with that of RS?

It is customary for the incumbent prime minister to resign following the declaration of LS election results even if the party in power has won another mandate to rule the country. This is done because tenure of the Prime Minister and his Council of Ministers is coterminous with that of LS. They have to take oath as MPs afresh. If it is not mandatory that a prime minister should be a LS member, in that case if his party is voted to power again the PM need not resign at all because he continues to be RS member for which he has not to take a fresh oath. He needs just to get himself elected again as leader and reconstitute his ministry.

If PM is not a LS member, how can he and his "Council of Ministers be "collectively responsible" to the LS (Article 75(3)? If one is not a shareholder or stakeholder of a company, how can one be a director or CEO of that company and responsible to it?

In the alternative, one could go on stretching the argument to any length. No Article of the Constitution makes it mandatory that a prime minister must compulsorily be a member of either House of Parliament. As per Article 75(1) he is just "appointed by the President"; it doesn't say he must be an MP at all. While the Constitution stipulates as to who can and who cannot be a member of Parliament, no such condition has been prescribed for a person to be "appointed" as prime minister for six months without being a member of either House of Parliament {Article 75(5)). In that case a person needs only to manipulate to get himself "appointed" as the prime minister and command a majority in the LS to which he as head of the Council of Ministers "is collectively responsible" {Article 75(3)}.

Further, a prime minister could continue indefinitely, with a one or two day's break, to hold his office without being a member of the either House. In that case, a prime minister can resign a day before completion of his six months period without being a member of either House. The President, as per the tradition, will ask him to continue in office till alternative arrangements are made. After two days he can again get himself elected as leader and lay claim to majority in Parliament and seek to be invited to form government again. This exercise he can repeat a number of times and complete his tenure of five years as prime minister without being a member of either House of Parliament and without infringing a single word of the Constitution.  

Now that elections to the Lok Sabha are just about six months away, it is time all those eyeing the post of prime minister after elections respect both the letter and spirit of the Constitution "We, the people of India" gave unto ourselves." We need to make democracy truly a government of the people, by the people and for the people of India.

The writer is a Delhi based political analyst.

(Published in the SOUTH ASIA POLITICS November 2013 issue.