Strange Things-Disquieting Times

Today's state of affairs sadly reminds us of George Orwell's anguished remark: “We have sunk to a depth at which restatement of the obvious is the first duty of intelligent men. If liberty means anything at all, it means the right to tell people what they do not want to hear.” All the wings of State seem to have lost their moorings and failed the people. We also recall what Yeats wrote: Things fall apart; the centre cannot hold. Every institution is human and liable to err. There can and will be aberrations. As long as such aberrations are noticed and corrected, there is nothing much to worry or complain. But if aberrations become the rule or occupy a large space, then institutions and systems are poisoned. And when it happens to every institution, we can only repeat the Biblical aphorism, If the salt has lost its savour, wherewith shall it be salted?

A constitutional democracy implies that deliberative forces prevail over the arbitrary. The right to question, to scrutinize and to dissent is of the very essence. The cardinal feature of our system of government is the requirement that the executive enjoys the confidence of, and is accountable to, the legislature and ultimately to the people. Parliament/legislature is a pivotal institution in a democracy. It is the greatest invention of the wit of man. Its twin primary objectives are law making and holding the executive accountable. In both these aspects there appears to be a marked deterioration, indeed a dismal failure.

Constitutional conventions are as important as the constitutional provisions. The Speaker represents the House. The convention in England- and our Constitution has borrowed and adopted many British constitutional conventions- is that once a person is elected Speaker, he is not to associate with a political party and must be, and seen to be, impartial. Unfortunately, this convention has not been imbibed and put into practice in India. Presiding Officers of our legislatures have not acquitted themselves well in recent times: we had such stellar examples like G.V. Mavalankar. It is essential that we develop such healthy conventions and abide by them.

Article 93 mandates that the Lok Sabha shall have a Deputy Speaker. The mandatory nature of this is borne out by the words 'so often as the office becomes vacant, the House shall choose another member to be Deputy Speaker'. By convention it is a member from the Opposition who is chosen as Deputy Speaker. But there is no Deputy Speaker now, and that office was vacant throughout the life of the last Lok Sabha.

Unfortunately Parliament does not function smoothly and meaningfully. Proceedings are interrupted. Both sides of the House contribute to the chaos. There is hardly any meaningful debate or discussion. Laws are simply rushed through the House. The Treasury benches have an attitude of holier than thou. They believe they have the numbers and can do what they like and what they do is right. The Opposition is more often than not rudderless, it is opposing for the sake of opposing.

It is imperative that there is free and fair discussion and exchange of ideas in the House. Indeed, the Constitution confers such freedom to enable members to discharge their duties and functions freely and effectively. But many times, free discussion and questioning which is what really reins in the executive and holds it accountable is wanting. Members cutting across party lines should effectively discharge their functions- to question and scrutinize governmental action. There is a fear that the Anti-Defection law discourages or impedes this. In Kihoto case while upholding the constitutional validity of Schedule X, it has been clearly observed that the disqualification is confined to cases where a change of government is likely to be brought about or prevented as a result of voting or abstinence. Such instances would be confidence/no-confidence motions, Finance Bills or something touching the core of a political party's ideology or manifesto. The disqualification is attracted only to cases of voting or abstaining, and that too only in matters referred to. It does not at all inhibit any discussion and questioning.

Equally relevant is the importance of the Question Hour which is the time when members shine a light on government functioning and government is really held accountable. That should never be suspended or dispensed with. In England from where we have adopted the conventions there is the Prime Minister's Question Time every week, when the PM has to be present in the House and answer all kinds of questions put to him by the Opposition as well as his own party men. This is another significant, desirable practice that we need to have. Indeed, it is heartening that we have the Chief Minister's Question Hour in Jharkhand. But unfortunately the Prime Minister hardly takes any questions and answers them. In the eleven years in office he has never addressed a press conference. It is always, and only, a one-way street: he speaks.

Law making is the other primary function. Scrutiny of every legislation- plenary or subordinate- both at the level of committees and the full House, is imperative. Law makers- both the executive which initiates a legislation and the legislature which ultimately makes the law- should embark upon educating the people on the nuances of the laws and anything that affects them. We need to develop a culture to not pass any laws without a proper, informed debate. It is equally important that bills which are not really money bills are not introduced and passed as such, only to get over any obstacles in the Upper House. Such action would be both unethical and unconstitutional.

It is ironic that though the legislature is to hold the executive to account, it is the executive which decides when the legislature meets, subject, of course, to the condition that six months shall not intervene between the last sitting in one session and the first sitting in the next. In many constitutional states, the legislature sits and functions for a much longer period than here. It is necessary to prescribe the minimum time for which the legislature must sit and transact business.

Constitution Amendments may be brought, wherever required, to plug the loopholes and clarify the position. But who will bell the cat?

It is equally important that the level of political discourse and parliamentary debates is maintained high and there is mutual respect and courtesy. While we may have some exceptional good debates, there is certainly a sharp general fall. In this behalf the importance of wit and humour cannot be overlooked. Humour raises the level of debate and discussion; it also relieves the stress and tension. It is a great vehicle for getting a message across. It is rightly said that humour can make the wonderful moments of life truly glorious and tragic moments bearable.

The executive is primarily responsible for good governance. Healthy and informed debate and discussion and even stringent criticism is necessary and desirable. But the executive is seen as shutting out criticism. The right to dissent and criticize is the very soul of any democracy. This right becomes the duty of every right-thinking and knowledgeable citizen when he feels governmental action is not in public interest. The right to dissent is conferred by the Constitution, it is part of Art 19(1)(a). The duty to dissent is dictated by the realization that in a democracy we have to practise obedience to the unenforceable. Another cardinal problem is that criticism of the government or those in authority is mistaken for something said against the nation. Criticism of government is not sedition. To speak against those in power or authority is no sin, it is not unpatriotic. Indeed, informed dissent and a healthy criticism are virtues.

We may recall that at the height of World War II there was stringent criticism of Prime Minister Churchill and the government. But Churchill refused to stifle press freedom pointing out that a free nation could permit press freedom to flourish even when the country's existence was in peril.

The position of the Governor has also been devalued. Quite a few Governors do not conduct themselves with dignity and decorum and in keeping with what the Constitution requires of them. A Governor is not a parallel centre of power. We have seen a Governor reserve a Bill for the President's consideration after it was passed a second time and presented to him when the only option for him was to assent. Another Governor spoke of withdrawing his pleasure re: a cabinet minister. The constitutional position is clear-the pleasure is not of the Governor personally. 'During the pleasure of the Governor' in the constitutional sense and context is the pleasure of the Chief Minister.

Very recently we were witness to an unprecedented situation. Former Vice President Jagdeep Dhankar was never known for any restraint or prudence. He had an opinion on everything and missed no opportunity to air it in season and out of season, on any platform. His sudden resignation on the night of July 21 left everyone perplexed. That his resignation was on health grounds is something which none would buy. By the manner of his resignation and the absolute silence thereafter he did a great disservice to the high office he occupied and to the nation. It is unimaginable that a person like him who has been talking all the time should now be tight-lipped.

Judiciary is considered as the last bastion of our liberties and democracy. The Supreme Court has been rendering landmark judgments. But that institution too is slipping. It should not become the lost bastion. The High Courts are constitutional courts. They are not subordinate to the Supreme Court. The Supreme Court has, and exercises, only appellate jurisdiction on the judicial side. It has no control or supervisory jurisdiction over the High Courts in the manner that High Courts have over the subordinate judiciary. Therefore, any direction to the High Court – in the matter of disposal or to the CJ in regard to work allotment- is inappropriate and impermissible. The Chief Justice of the High Court is the master of the roster. The Supreme Court, like anyone else, cannot dictate or direct how he should exercise that power and how he should assign work to the judges. Such directions are not binding on the High Court. They may be, and should be, ignored. But that is something we cannot even dream of today, particularly after the advent of the collegium system. It cannot also be forgotten that High Court judges are chosen for appointment by the Supreme Court (collegium). It was, however, heartening to see at least some judges of the Allahabad High Court voice their protest and anguish. In appeal, it is the judgment and not the judge who is before the Supreme Court. While the judgment may be condemned and set aside if so warranted, the judge is not to be condemned. In very rare and extreme cases, some restrained observation may be allright. Anything beyond that is wholly unwarranted. But then it is High Court Chief Justices and judges who must uphold their dignity and freedom. When they cave in, none can help. It is a different matter that later the Supreme Court recalled the directions. But they should not, and could not, have be given in the first place.

Of all people in all branches of the State, those in the judiciary are expected to talk the least. Judges speak only through their judgments which have to be sober, mature and balanced. Unfortunately it is not uncommon now for some judges to shoot their mouth off sometimes. While hearing cases in court, some judges at times say all sorts of things. They have only to decide the case, not comment on the litigant. What questions are to be asked, to whom and where, what comments are to be made, is for each one to decide for himself. That is not a matter for the court. Off the cuff remarks of judges are unnecessary and unwarranted. Judges have no immunity against all that they speak, sometimes without thought or restraint. Judges cannot erect their personal views and predilections into constitutional principles. As the Supreme Court has stated caution and circumspection are always called for in the judges' language and behaviour; and language in judgments and in court must comport with judicial propriety. Equally amazing and disappointing is the fact that when one judge, normally the presiding judge, makes such unwarranted remarks, the other judge(s) on the Bench does not say anything and disassociate with the remarks. That is the least he is expected to do and not to sit there like a sphinx. Recall one instance in pre–independence India: In the Nagpur High Court Fredrick Grill, CJ presiding over a Division Bench of which Hidayatullah, J was the other member, refused pass over and dismissed a case for default. Hidayatullah, J immediately observed that it was not the order of the DB, he was not signing it. That order was, no doubt, recalled the same afternoon.

The media, the guardian of public interest has served us no better. It has not lived up to the standards expected. The reporting is very often not accurate or unbiased. Stories emanating purely from the imagination of the writer and published as facts are not unknown.

All that is adverted to above does not augur well for our polity. It is not that nothing good has come from our institutions. All of them have done quite some good. But their aberrations are on the rise. It is to be remembered that institutions are more important than individuals; and systems and institutions must be strengthened and nurtured. With such aberrations and institutional failures, the only saviours are we, the people. Nightfall does not come at once, nor do aberrations; there is a twilight when everything remains seemingly unchanged. It is in then that we must all be aware of change in the air, however slight, lest we become unwitting victims of the darkness. We need to build national character and acquire a keener sense of national identity. Constitutional values and aspirations will have to be internalised in the psyche of the nation. Buddha's last words to his disciples, “Look not for refuge to anyone besides yourself”, contain a world of timeless wisdom and come home with a strange poignancy.

Author is a Senior Advocate, Supreme Court of India. Views Are Personal.