Amendment to President's Address — POLITICS GAINS, NATION LOSES

Amendment to President's Address

POLITICS GAINS, NATION LOSES

By Amba Charan Vashishth

On March 9 the opposition led by Congress succeeded in carrying through its amendment to the Vote of Thanks to the President for his Address to the joint session of Parliament regretting that the President's Address did not support the rights of citizens to contest in panchayat elections, in the backdrop of restrictions imposed in Haryana and Rajasthan. If the objective of was just to score a political point the attempt did succeed. Deliberately or otherwise, however the Congress party glossed over the fact that the constitutional validity of the law passed by the BJP government in Haryana to which Congress referred to while pressing for the amendment, had been upheld by the Supreme Court (SC) of India. The amendment is also, in no way, a binding obligation on the government. In the process, however, it was no gain for the nation.

Earlier, arguing that the amendment could not be moved in Parliament as it was a State subject, Finance Minister Arun Jaitley said:  “If we put this to vote, every State will have the right to move a resolution criticising the decisions made by Parliament.”  Parliamentary Affairs Minister M. Venkaiah Naidu pointed out that the right to contest elections was not a fundamental right, unlike the right to vote. 

A bench comprising justices J. Chelameswar and Abhay Manohar Sapre in December 2015 had dismissed a plea challenging the Haryana Panchayati Raj (Amendment) Act, 2015, and upheld all the amendments which provided for criteria of minimum essential educational qualification of matriculation for general candidates and Class VIII for women in the general category as well as scheduled caste candidates; they should have a functional toilet at home, not having defaulted in cooperative loans or having outstanding dues on rural domestic electricity connections and not charged by a court for a grave criminal offence to be eligible to contest local body elections. “It is only education which gives a human being the power to discriminate between right and wrong, good and bad,” the court said while upholding the imposition of specific educational qualifications. In December 2014, Rajasthan too had brought in the Rajasthan Panchayati Raj (Second Amendment) Ordinance, 2014 providing for a minimum qualification of Class X for contesting the zilla parishad or panchayat samiti polls and Class VIII to contest sarpanch elections.   It is pertinent to recall that a Cabinet minister in Bihar had recently to be administered oath for a second time because he had failed to read some words correctly. In the second attempt too, he fumbled. He had studied upto XII and his brother, also a minister, had quit class IX. A news channel recently showed that some candidates contesting Panchayat Pradhan election in UP did not know even the name of the Prime Minister and the President of India. These incidents once again highlight the need for some minimum educational qualification not just for Panchayatiraj and urban local body institutions but also for our lawmakers both in the State and at the national level. The quality of legislation is determined by the quality of our legislature to usher in a better life for the people. Elected persons need to be able to read, write and understand what is brought before them for consideration and orders. But, it looks the forces of status quo do not wish to come out of the 20th century ethos to join the present 21stcentury running in its second decade.  They seem bent upon thwarting any attempt at making the process of administration, legislation and justice more relevant to the situation that has changed during the past 68 years. In the Constituent Assembly Dr. Rajendra Prasad, who later became India's first President, did insist on providing some minimum qualification for legislators but Pandit Jawaharlal Nehru rejected the proposal. Yet, the suggestion remains not unreasonable and illogical. Pandit Nehru was then only trying to be more pragmatic to the situation then prevailing. When the British left India free in 1947, the country had a literacy percentage of just 12. Providing minimum qualifications then would certainly have deprived an overwhelming majority of 88 percent from the opportunity to contest elections. But the literacy situation in the country has gone through a revolutionary upsurge since then. India now commands a literacy percentage of 74.4 in 2011 and it should have improved further by now.  It is also a fact that members of the Constituent Assembly which framed our Constitution were persons of eminence in their own right despite the fact that at that time there was no essential minimum educational qualification to be a member of the house. So about the council of ministers headed by Pandit Nehru at the Centre and Congress leaders in States at that time. It is a fallacious assumption and argument to say that the Haryana law, in any way, deprives citizens of their "right to participate in the affairs of the polity of the country" because persons contesting an election to such bodies do not constitute even 0.00001 percent of the total electorate. Let us also not forget that on August 27, 2014 SC opined that "time has come for Parliament to prescribe some minimum qualifications for Parliamentarians/Legislators as prescribed in other fields". It "recalled the words of the first President, Dr. Rajendra Prasad, in the Constituent Assembly that he would have liked to have some qualifications laid down for Members of Legislatures". A member of the zila parishad, panchayat samiti, and gram panchayat — as also to State and Central legislatures — should be a literate person able to appreciate and understand the intricacies of law governing Panchayati Raj institutions. Otherwise, he/she will end up a parasite on others unable to do justice either to the office to which he has been elected or to those who elected him. The executive, legislature and judiciary are the three pillars of democracy. These must be run by literate persons of wisdom, intelligence and merit and not by illiterate and mediocre ones. Some of the ills facing the country owe their origin to the lack of essentials the States of Haryana and Rajasthan have provided. Let us shun away from turning our executive and legislature to be the institutions of the elite or aristocracy and, at the same time, not reduce these to be institutions of mediocrity — a situation the country can afford only at its peril.                                                 ***

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.

Constitution and morality

Because we are different.
137 YEARS IN PRINT
•  

Special Article

2 January 2013

Constitution and morality

Parliamentary Contradictions Over FDI

Amba Charan Vashishth

THE illustrious framers of our Constitution were men of character, morality, intelligence and farsightedness in their own right.  Their singular consideration was the interest and future of the nation, and nothing else. Although more than 80 per cent ~ maybe even more ~ of the members of the Constituent Assembly belonged to the Congress, yet they never even for a while  thought about the interests of their party.  The same can be said of the leaders of other parties and non-political celebrities.
But things are totally different today. Whichever party may be ruling at the Centre or in the States, the uppermost priority and objective of the political rulers are centred on promoting and protecting the interests of the party and catering to the sectoral interests of their constituency of voters who provided them the edge over the opponents to win. The electoral benefit any programme and policy may fetch to the party in power acts as an accelerator. In fact, ‘opposition for opposition’s sake’ is the guiding star of every political party, both ruling and the Opposition. The latter opposes a government policy only because it is likely to swell the vote- bank of the ruling party which, in turn, is not willing to entertain any suggestion  from the Opposition even if it is in the interests of the people or the nation. The party in power wants to prevent the Opposition from deriving any political and electoral mileage in the event of acceptance of a policy emanating from the other side.
Every political party has a right ~ constitutional and moral  ~  to its stand on any issue and to vote accordingly. At the same time, the stand and voting on any issue cannot be contrary to each other. The two cannot be separated, from each other. Otherwise, it turns out to be hypocrisy in all its manifestations.
In its winter session in December 2012 the Lok Sabha presented a unique case-study. While participating in an Opposition motion calling for the withdrawal of the government’s decision to allow 51 per cent Foreign Direct Investment (FDI) in the retail trade, certain parties adopted a stand that was totally at variance with their stated position on the issue. This was reflected in the voting, abstention and the walkout. When it came to voting, some of them supported the government’s decision and others devised a strategy to indirectly bail the government out on an issue they otherwise opposed. Some staged the drama of a walkout in protest against the reply and explanation of the minister concerned. 
They were obviously trying to fool the people with their strident public opposition to FDI; simultaneously they were helping the government in an indirect manner to achieve its objective. Their action was in stark contrast to what they had said in the House.
The conduct of these legislators  may not be against the word of law and the Constitution, but it certainly destroys the spirit of both.  One doesn’t know whether it pricked their collective conscience. Their attitude places the Constitution in direct conflict with the tenets of ethics and morality.
In the discussion in the Lok Sabha with an effective strength of 544 members, a total of 261 MPs representing various political parties were with the Opposition, appealing to the government to withdraw the decision to introduce FDI in the retail sector.
Some of these groups belonged to parties which were either part of the United Progressive Alliance (UPA) or were supporting it from the outside. But when the Opposition motion was put to vote, only 218 stood for it while 253 stood by the government. Some political groups (43 MPs), which had opposed the move tooth and nail in the House, tactically preferred to stage a walkout.
The political groups opposing the government were actually playing politics which has, over the past 65 years, come to be acknowledged as the deft art of fooling the people. On the one hand they were vociferously telling the people that they were against the move but, on the other, they staged a walkout to facilitate the Bill being passed to save the face of the government. 
The Constitution does stipulate a voting pattern on a confidence or no-confidence motion; in the case of a Constitution Amendment Bill, there is a clause of two-third of the members present in the House and voting. Those who had framed the Constitution could not visualize a situation where politics would stoop so low that this provision of “those present in the House and voting” would be exploited to vote for a government or vote it out by taking recourse to a walkout or not voting in violation of their own stand spelt out in the House. This contradictory conduct makes a mockery of both the spirit of the Constitution and the sanctity of the words and views expressed in the House.
A walkout is a mark of protest and a virtual vote against the issue under debate and voting in the House. On moral grounds, it amounts to a vote against. Would it be constitutionally and morally right if a government adopts a strategy to create conditions provoking the Opposition to walk out in protest and, later, in the absence of the Opposition, getting the approval of the House with a near unanimity of those “present and voting” on certain controversial issues?
The Constitution may not have stipulated as much in so many words; yet it would be equally wrong to construe the absence as putting its seal of approval on the duality of the conduct in opposition to the words and opinion expressed on any issue in the House.  

The writer is a Delhi-based political analyst and commentator

(Courtesy: The Statesman)