Reforming Parliament

Dr M N Buch, 

Dean, Centre for Governance and Political Studies, VIF

Article 79 of the Constitution provides for a Parliament for the Union consisting of the President, House of the People (Lok Sabha) and the Council of States (Rajya Sabha). Our bicameral Parliament thus shapes itself on Westminster, where Parliament consists of the Sovereign, the House of Lords and the House of Commons in Parliament assembled. By contrast the U.S. Parliament, called the Congress, consists of the House of Representatives and the Senate, the latter representing the States, but does not include the President. There the separation of powers is total, whereas in India the Executive, the Legislature and the Judiciary overlap at the margin. One common factor between India and the U.S is that both have an Upper House which is supposed to represent the States, but in India the representation of the States is unequal because the number of seats allotted is based on the size of the State Legislature whereas in the U.S. Senate each State has two seats.

In Britain the Commons are the repository of real legislative power because the Lords can advise, suggest changes in a proposed Bill and slightly delay, but they cannot overrule the Commons. In the U.S. all Money Bills must originate in the House of Representatives, but both Houses have equal powers with regard to legislation and if either House decides to reject a Bill there can be a total stalemate. In India if a Money Bill is rejected or amended by the Rajya Sabha it goes back to the Lok Sabha, which can vote on the final shape of the Bill and that goes to the President for assent as if both Houses have passed it. However, for all other legislation either House can kill it through rejection and the present government is finding difficulties in pushing key legislation through the Rajya Sabha because it does not have a majority in that House and the Opposition has combined in frustrating government. Of course under Article 108 the President can summon Parliament to a joint sitting of both Houses where a stalemated Bill will be discussed and if the majority of Members present and voting pass the Bill, it will be deemed to have been passed by both Houses.

The problem with a joint sitting is that our system is based on the collective wisdom of our Parliament considering and debating a Bill on merits, aimed at promoting the welfare of the people and not on narrow, sectarian, partisan or negative considerations. A joint sitting would introduce an unwanted element of majoritarianism into the system. The role of Parliament is to legislate in a manner such that it enables government to function and deliver on its electoral promises, regardless of which party is in power. That is why under Article 75 the Council of Ministers is collectively responsible to the directly elected House, the Lok Sabha and not to the indirectly elected Rajya Sabha. The Rajya Sabha is really a House of Elders, which is why Article 84 provides for a differential age for eligibility for membership, 30 years for Rajya Sabha and 25 years for Lok Sabha. Can a House to which the Ministers are not directly responsible be allowed to indefinitely delay the legislation which government feels it has been mandated to enact? In the U.S. the Senate, as guardian of the States’ rights, is required by Article II to concur, or otherwise , with the President in the appointment to Cabinet posts and to all other high posts, including judges, except to the extent that Congress, by law, exempts him from seeking the Senate’s concurrence. In India the Rajya Sabha has no such authority, but by stalling legislation it can bring government to a halt. Is this desirable?

Perhaps the time has come for us to reform Parliament. Let us start by making the Council of States truly representative of the States by giving equal representation to each State. Thus the Council would now consist of the number of States (regardless of size) multiplied by two. The Union Territories combined could be given two seats and the number of nominated members under Article 80(i) (a) should be reduced from twelve to five. Regarding legislation, the provisions given in Articles 109 and 117 for Money Bills and Financial Bills should apply across the board to all Bills, that is, if the Rajya Sabha rejects or radically amends a Bill approved by the Lok Sabha, it will be returned to the Lok Sabha and if passed by it again, with or without the proposed amendment, it should be deemed to be passed by both Houses. If we accept this amendment the need for a joint sitting of both Houses will not arise because no legislation can then be stalled.

In order to strengthen the role of the Rajya Sabha as the guardian of the rights of States it is proposed that:-

1. If Parliament legislates on a matter included in the Seventh Schedule, List III (Concurrent List), then the approval of the Rajya Sabha should be mandatory so that Parliament does not ride roughshod over the States in matters where the State Legislature has concurrent jurisdiction.
2. For a proclamation under Article 352 and 356 the approval of the Rajya Sabha must be mandatory because here we are dealing with the Union’s power to dismiss or dis-empower a State Government.
3. Under Article 368 no amendment of the Constitution should be valid unless the Rajya Sabha approves it. Under Article One India is a Union of States and, therefore, the Constitution which creates the Union must be safeguarded and protected by the body which represents the States.
4. In appointing Governors the Rajya Sabha, through a non-partisan committee of its members, must concur so that the present shameful practice of appointing worthless party hacks to such a vital post ends.

The objective of these proposed constitutional changes is to make Parliament effective in legislation, to accept the primacy of the House of the People in law making because it is directly elected and to covert a toothless Council of States into a fully empowered guardian of the rights of the States. This would make the Constitution more balanced.

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Published Date: 13^th April 2015, Image source: http://www.diehardindian.com

Systemic Failure or Organ Failure?

Dr M N Buch 

(Visiting Fellow, VIF)

The Chambers Twenty-first Dictionary, which is quite an authoritative lexicon, describes ‘system’ in the following words, “A set of inter-connected or inter-related parts forming a complex whole”. The word ‘systemic’ is defined as “referring or relating to a whole organism. ‘Organ’ is defined as, “A part of a body or plant which has a special function, e.g. a kidney, a leaf”. Therefore, when an organ fails it is an individual part which becomes inoperative and, perhaps, with proper treatment the organ, or part, can either be repaired or made functional, or it can be replaced. A systemic failure, however, would be much more serious because in such a situation the entire system, or the complex whole consisting of individual organs, begins to give way and this can lead to what can only be called termination which is irreversible. Here all the organs either seriatim or collectively fail. The situation can still be retrieved by repair or replacement. The question which faces India today is whether our body politic is facing organ failures or is it that we are a looking at a system failure?

The total system under which India operates is what is provided in the Constitution. The body politic consists of three major subsystems, the Executive, the Legislature and the Judiciary which together constitute the whole system called the Indian State. Within the overall system and the sub-systems there are a number of organs which are required to perform specific functions. Schools and colleges are required to impart education, medical institutions are meant to look after the health of citizens the Income Tax Department is supposed to collect taxes levied by the Legislature, the Agriculture Department is meant to promote agriculture and the Police are required to create an overall environment of security and for that purpose to maintain law and order, prevent, detect and prosecute crime, guard the country against externally sponsored acts of terrorism and generally reassure people that they can go about their normal vocations in peace. This functional distribution or responsibility applies to all the organs of the State and to all levels of public servants, elected or appointed. Sometimes a particular organisation or department fails to live up to our expectations. Some civil servants do not carry out their duties faithfully. Quite often even at subsystem level there is failure, such as the virtual lock out of Parliament that we have witnessed for the last few months. Sometimes the citizens themselves are so annoyed with a particular organ of the State that they react strongly and, therefore, there is a hiatus between public servants and people at large. These are aberrations which will crop up from time to time in any system, but the system itself has to be resilient enough to apply self-correcting measures so that the organ which is faltering is brought back on track. Organ failure is correctable but when the self correcting mechanism fails it can have a cascading effect on the functioning of organs and an unchecked failure of one organ can cause other organs to come under stress and fall. This can lead to systemic failure, which has to be avoided at any cost.

How sound are our systems? Because the republic is founded on democracy and the fact that every five years people do exercise their franchise in an environment which is basically free of fear means that democracy has taken very deep roots in India. Democracy, therefore, becomes the very base, the very foundation on which is the system rests and this foundation cannot be destroyed. This does not mean that the superstructure, which corresponds with organs of a system, cannot be damaged, but systemic failure cannot take place unless the foundations themselves crack. The foundations of Indian democracy are stable and safe and this can be categorically proved by the failure of the State of Emergency which Indira Gandhi declared in 1975 and had to hastily withdraw in 1977. This is one side of the story, but the other side is that if organs fail and corrective measures are not taken in time, cumulatively this can lead to a system failure. There are many critics, many pessimists, who say that this is beginning to take place increasingly and that we are in danger of systemic failure. People with extremist views go to the extent of saying that the systems themselves are rotten and we should scrap them and create new systems. In Russia, the Tsarist Government and the Tsarist system had become rotten and, therefore, the Russian Revolution took place and Imperial Russia became the Communist ruled Soviet Union. Every organ of the old regime was destroyed.

The problem with revolutions is that they quite often go against the established nature of things and, in turn, they themselves fail. Two glaring examples of this are Russia today and the modern Peoples Republic of China. Within seventy years of establishment the Soviet Union broke up and disappeared, to be replaced by the Federated Russian Republic which has moved away from one party rule of the Communist Party of the Soviet Union to something which is attempting to resemble western multi party democracy. The Eastern Republics have broken away from the Soviet Union and its successor State, Russia, as have Ukraine, Belarus, Latvia, Estonia, the Caucasian Republics of Georgia and Armenia. The system failed and the country split. The second example is of China, where Mao’s revolution transformed a rotten Kuo Min Tang governed China to a Peoples Republic, which consolidated the country but also brought it under harsh one party rule. Today, however, the picture has changed and is continuing to change. Under Deng Tsiao Ping and his successors China has moved away from an extreme Left Wing form of communism and instead wholeheartedly embraced the capitalist economic system. Politically China has remained under one party rule and the tension is apparent between an economic system which is liberal and a political system which is still rooted in the shibboleths of Marx, Lenin and Mao. Yet, this country has accepted Hong Kong and Macau, former British and Portuguese colonies, as part of China but following their old political systems. Here revolution has turned to evolution, which has kept the country intact and will probably drive it closer to liberal ideas of political organisation, though not necessarily the Westminster or the American model of democracy. This country is to be watched very carefully, not so much because it is now an economic powerhouse but because political changes are taking place which may have very far reaching effects globally.

It is in the context of what the holders of extreme views on how the Indian State functions have to say about scrapping the system that I have brought up the position prevailing in Russia and China. The Indian system of change is evolutionary rather than revolutionary and, therefore, the change tends to be seamless, painless and very long lasting. For those with short memories I would like to draw their attention to what Jawaharlal Nehru and S.K.Dey achieved through the Community Development Programme. Colonial India with its highly regulatory administration was launched on the path of development, especially rural development, by co-opting the people of our villages into an effort to galvanise rural society and unleash people oriented, people driven rural development. Without anyone realizing it, India evolved the system of development blocks, each headed by an officer specifically dedicated to the development agenda. The regulatory mechanism of the tehsil and district remained, but a new unit of administration, the block which was coterminous with tehsils in States which had small tehsils and with more than one block per tehsil where the tehsil was large and could be segmented into more than one block. Extension officers in various disciplines were posted in each block. The BDO was equivalent in rank to the Tehsildar, but because the development administration structure was separated from revenue administration, which could be called coercive to an extent, we had a new cadre of officials who were accountable to the people at block level and whose only agenda was improvement of the rural economy. Setting up a parallel development administration without reducing the importance of the regulatory administration was a remarkable achievement and India can take great pride in this. It is on this foundation that the subsequent panchayat Raj system has been created. This evolutionary form of passing real power to the people through the Panchayats is the an achievement of which India can be justifiably proud. Had we abolished the tehsil and had created only a development administration we would probably have had the chaos that now prevails in Pakistan where half baked reforms which virtually destroyed the district administration without a parallel Panchayat system to take over. This step disconnected the police from accountability to the Magistracy and converted the Deputy Commissioner of a district to a District Coordinating Officer with virtually no coordinating powers, has led to administrative chaos. Our method is better.

The recent debate has originated from the unfortunate rape of a young woman in a moving bus in Delhi and her subsequent death, which has led to an outburst of horror and rage against the manner in which the Indian State is functioning. People are absolutely fed up with crime, especially against women and the rape of the young lady has led to widespread public revulsion and demand for action. People want modified lynch law to apply, they are attacking the police, the judiciary and the legislature for failure to enact tough laws and to enforce them and they want sweeping changes in the organs of the State which would amount to systemic changes. Any attempt to tell people that whereas the anger is justified it is the law which must take its own course, not only because people demand it but because the law is on the statute book and it is the duty of the Executive to enforce the law. The anger of the people is understandable, but what is not understandable is the manner in which government has handled the whole matter. What the people needed was reassurance from the highest officials of the State, including the President and Prime Minister, that in the instant case there would be swift justice, in general there would be a tightening of security and law enforcement in such a way that law breakers begin to have fear of the law and that the general security environment would be improved so that everyone in India, especially women, has the right to protection of laws. This demand is absolutely justified and had government taken steps immediately which could convince the people that government is serious, the things which happened in Delhi when the protests started would not have taken place. If the President, the Prime Minister or the Home Minister, as also the Lieutenant Governor of Delhi had not sheltered behind police barricades and had come to Vijay Chowk to talk to the protesters, not only the would the people be reassured but the agitation itself would have ended. None of these functionaries thought it fit to meet the people, not within the four walls of their own office but in the open where people could congregate around them. A little courage shown by the leaders would have defused the situation immediately, but then we are ruled by insensitive people who are also cowards. This is a prime example of the executive organ of the State not performing its duty and to some extent this amounts to an organ failure. However, it is remediable if for the future the lesson is learnt and the administration goes out of its way to meet people, hear them and then provides suitable remedy and takes suitable corrective steps.

There are a few signals about organ failure or at least organ stress on which I would like to comment. The first goes beyond an organ and forms a sub-system which is a vital constituent of the Indian State. I refer here to the Legislature. Whether it be Parliament or a State Legislature, the legislative organ of the State is really the most important constituent of the democratic system because the House is elected by all the people and, collectively and individually, it and its members represent the people of India. The representatives of the people have at all time to be accountable to the people and, therefore, behave in a responsible manner. The people’s mandate to the Legislature is to deliberate and legislate, that is, give us a system of laws which makes India a society based on law rather than arbitrariness or whimsicality of the ruler. It is the custodian of the public exchequer in that it votes grants and the budget in its totality, which authorises the Executive to draw funds from the Consolidated Fund of India and make accruals to it through revenue and capital receipts. The Executive can neither impose a tax nor an impost, nor can it spend even a single paisa without the approval of the Legislature. In turn, the Legislature can call the Executive to account on how the money has been spent and in this it is assisted by the Comptroller and Auditor General of India. The Executive has to account for every expenditure and, therefore, the parliamentary convention is that if government if defeated on a Money Bill and, in particular the Appropriation Bill, it must resign.

The Legislature also calls the Executive to account in its executive functioning through questions, call attention motions, adjournment motions, motions of no confidence, debate, discussions and resolutions. This can only be done if the Legislature meets for extended periods of time, each day’s session lasts the whole day and discussions and debate take place in an environment of peace and normal give and take. If the Legislature meets for just 50 to 60 working days in an year, as is the case with most State Legislatures, or proceedings are held up for days and months because the opposition and the ruling party do not see eye to eye on issues and nonissues, then the legislative subsystem comes under more stress. This can affect the working of the Executive and then there is a real danger of a systemic failure.

There are remedial measures which can be adopted. India does need more than one party and, as I have written in the past in extenso, ideally we should have a centrist party, a left of centre party and a right of centre party in which the centrist party becomes a pivot, but also a role model which prevents an excessive swing either to the Left or to the Right. Splinter groups and purely regional outfits should either have no presence in Parliament or a very subdued presence. If we adopt one single political reform, that is, no independent can stand for Parliamentary election unless he has won at least one local government election and one assembly election, with a condition applying to regional parties or splinter groups that unless they, as a party, hold at least five seats each in the Legislature of three States, they cannot contest an election to Parliament. The smaller parties would then either have to merge into larger parties, or they would have to expand beyond the narrow confines of their State boundaries, or they would have to confine themselves to State Legislatures only. They would then not be able to exert pressure in Parliament which would be far more in proportion to their numerical strength. If the larger parties are no longer at the mercy of these small groups one can definitely expect more responsible behaviour by them, both in government and in opposition.

Moving from a whole subsystem to organs of government within subsystems, I would like to comment on three of them. The first is government. As a part of the Executive organ of the State the government is required to function within the mandate given to it by the people, that is, the approval given by the people during elections and the agenda and programmes of the party which is voted to power. The party manifesto, the party ideology and the party agenda cannot and must not be altered case by case and government must adhere to the policy guidelines provided to them by the manifesto and agenda of the ruling party. This will guide future legislation and it will certainly guide policy formulation on specific issues. Within these parameters, however, those instrumentalities of the State which are responsible for implementation of policy will take the orders from the law, the people’s mandate and the decisions of the Council of Ministers. The problem in India is that government itself vacillates and dithers, with the result that its officers do not have clear-cut orders or a clear-cut policy which they are supposed to implement. This is an organ failure, but if it enlarges itself to encompass the whole range of executive action, then organ failure here can lead to failure of the subsystem and this must be guarded against. The Constitution in Part XIV already gives the Civil Services protection against arbitrary action, the Preamble, Articles 14, 19, 21 and 38 of the Constitution lay down the fundamental duty of government to promote a welfare state and the Rules of Business framed under the Constitution categorically provided for the manner in which public servants will function, impartially and without fear or favour. If we can go back to a system in which every functionary is not only allowed but actively encouraged to do his duty according to the mandate given to him, we would be able to stop the downward slide of the efficiency and efficacy of our public servants. This is well within our means and if there is to be public protest, it should not be confined to an individual case of rape but must take the form of insisting that government functions effectively.

The second organ I would like to pick up is the judiciary, which is one of the constituent organs of the State and forms a complete subsystem. People talk of judicial reforms. Even the Supreme Court keeps emphasising this, but no one has really articulated what they mean by judicial reforms. Any reform which aims at reducing or in any way curbing the independence of the judiciary enshrined in Chapter 5, Part V and Chapter 5 and 6, Chapter VI of the Constitution has to be firmly rejected. If the judiciary, from the court of first instance upto the Supreme Court, becomes in any way amenable to pressure by the Executive or the Legislature, it can neither function independently nor can it be a guardian of the Constitution and the rights of the people against Executive or Legislative highhandedness. Having said this one has also to recognise that there is a great deal of inefficiency and even corruption in the judiciary today and that this has to be cleansed with a heavy hand. The cleansing process, however, must be a part of the judicial system, with no say of the Executive or the Legislature. The judicial reforms should take the following form.

1. An objective assessment of the strength of judges and magistrates from the court of first instance upto the Supreme Court which should be approved to deal with the huge number of cases now pending or likely to be instituted in future.
2. A process of selection of judges which safeguards the independence of the judiciary, but is transparent, open to examination and time bound in the matter of selection and appointment.
3. A clear-cut understanding by the judiciary at all levels that the provisions of section 309, Cr.P.C, which call for speedy disposal on a day-to-day basis will be applicable to every court in India and every judge and magistrate will be held accountable for delays. In this the High Courts and the Supreme Court must interact with the Bar Council of the State and Bar Council of India to ensure that these Councils lean hard on their members to help in speedy disposal of cases rather than act as obstructions which indefinitely delay trials.
4. The High Courts and Supreme Courts must exercise self-restraint in the admission of appeals and petitions so that trivia is thrown out at motion hearing. Today many petitions are entertained, especially Public Interest Litigation, where the issue is high profile that the judge can garner free publicity. This hits at the roots of the anonymity of judges. Today a normal petition or appeal before a High Court or the Supreme Court remains unheard for years at a time, but Public Interest Litigation gets priority. The Supreme Court must take a good hard look at what really constitutes public interest and must issue suitable directions to the High Courts so that normal cases received due attention. Of course, in order to achieve speedy trial there has to be the cooperation of the prosecuting agency and of the police in ensuring that process is served and presence of witnesses ensured.

The third instrumentality I would like to speak about is the police. At one level it is the coercive arm of the State because it is utilised for putting down public violence and maintenance of law and order. This is a legitimate role, provided that the police is not used selectively. We need to strengthen the Executive Magistracy and the Police in tandem so that, faced with a particular law and situation, the Police and the Executive Magistracy will react in an uniform and predictable manner. Minimum necessary force will be used at the first instance of a law and order situation developing, with the emphasis on preventive action, followed by physical force when that becomes necessary. Neither government nor any other functionary should be allowed to interfere in this part of the duty of the Police, that is, immediate intervention to prevent a law and order situation spiralling out of hand. If such a philosophy has been built into the Gujarat Police and Maharashtra Police the post Ayodhya riots in Maharashtra would have been brought under control very quickly, as would the post Godhra riots in Gujarat. The coercive arm of the State, in exercising force, must do so in the interest of the person at large, which means that necessary force will be used to curb lawlessness at the earliest juncture, with no one having the power to stop the police from doing its duty.

Another area in which the Police operates is in the prevention of crime, its detection, investigation and prosecution without delay and in maintaining surveillance over criminals, which would prevent them from indulging in criminal activities. Under Chapter XI of the Code of Criminal Procedure the Police is not only authorised but is required to take preventive action so that cognisable offences may be nipped in the bud. Under Chapter XII of Cr.P.C the Police is required to investigate every cognisable case and to carry the investigation forward upto the stage of filing a challan before a competent court. Under law the power of the investigating officer to investigate a cognisable offence is unlimited. His superior in the police hierarchy can guide him or even take over the investigation himself, but he can neither order him to drop an accused against whom a prima facie case is made out nor order him to falsely implicate someone against whom no case is made out. However, as we have seen in innumerable cases investigated by CBI, interference at political levels in the investigation of offences is quite frequent and this is one reason why CBI has such a dismal record of conviction If the Police is unable to investigate offences or is unwilling to do so, it is inevitable that lynch law will prevail, as happened at the time of the infamous Bhagalpur blinding case. If we are to be a society of laws then lynch law has no place in India. This means that for our own sake we have to make the Police an effective instrument of crime control and for this purpose we must give the police freedom of action. I do not agree with a great deal of what Prakash Singh says in the matter of details of police autonomy, but I am in total agreement with him that the operational freedom of the Police must be restored, strengthened and enhanced. Whatever legal changes are necessary in this behalf should be brought on the statute book with great speed.

There is no doubt that the superstructure of the State is under considerable stress. Different organs are distressed and weakened and there are signals about current or potential organ failures. As yet there is no danger of systemic failure, but it is about time that we took note of what is happening to the organs of the State and to apply remedial measures now.

Freedom of Speech and Archaic Law on Sedition

Dr. M.N. Buch
Visiting Fellow, VIF

The Chambers Twenty-first Century Dictionary defines sedition in the following words: “Public speech, writing or action encouraging public disorder, especially rebellion against the government “. The word itself comes from the Latin word seditio, or growing apart. In a way it is connected with the word seduce, one meaning of which is to lead astray or to tend into wrong doing. The Indian Penal Code has section 124-A which makes sedition a criminal offence with the full section reading as under:

Section 124-A IPC—Sedition:: “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, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.

Explanation 1. The expression “dissatisfaction” includes disloyalty and all feelings of enmity.

Explanation 2. Comments expressing disapprobation of the measure of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under the section.

Explanation 3. Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt, do not constitute an offence under the section ”.

The offence of sedition carries imprisonment for life as a sentence in its extreme form and rigorous imprisonment for up to three years if the court determines that the seriousness of the offence is mitigated by circumstances. This gives an enormous leeway to a court in the matter of sentencing and this in itself can be called into question for permitting excessive judicial discretion to a court. For example, under section 302 IPC the offence of murder carries a liability of either a death sentence or imprisonment for life and a trial court has to give one or the other sentence. The Supreme Court has laid down guidelines in the matter of sentence by directing that it is only in the rarest of rare cases that the death penalty should be imposed. Under section 304 IPC in a case of culpable homicide not amounting to murder the court may impose a penalty of imprisonment for life where the act which caused death in the ordinary course could be fatal, or imprisonment of up to ten years if such act was committed without any intention to cause death. In the case of section 124-A IPC no such guidelines are provided by the law and, therefore, a judge would be able to pass a sentence which could be quite inappropriate. The Indian Penal Code is one of the laws which govern this country within the framework of the Constitution. Under Article 13 a law which is inconsistent with or in derogation of the fundamental rights would be void. The Preamble to the Constitution mandates liberty of thought, expression, belief, faith and worship and Article 19 (1) (a) gives citizens the right to freedom of speech and expression. No doubt Article 19 (2) and (3) permit the Legislature to make laws to impose reasonable restrictions on the rights given in Article 19, but the operative word here is “reasonable”. In other words, the freedom of speech and expression is almost absolute and a restriction thereon is an exception which has to be imposed after very great thought and only in the interest of public peace and tranquility.

Chapter VIII of the Code of Criminal Procedure relates to security for keeping the peace and for good behaviour and in case the said person cannot provide adequate security, then under sections 107, 108 and 109 Cr.P.C. the person may be kept in jail for up to one year and under section 110 for up to three years. Section 108 applies to persons disseminating seditious matters. In other words, the Police and the Executive Magistracy can prevent a person from disseminating information which is seditious. Then we have Chapter X Cr.P.C. which relates to maintenance of public order and tranquility and permits the Police, the Magistracy, and on requisition the armed forces may cause an unlawful public assembly to disperse, if necessary, by use of force and to restore public order. In other words, acts which could be deemed to be seditious can in fact be prevented by pre-emptive action.

Section 124-A speaks of bringing into hatred or contempt the lawfully constituted government. The word “contempt” is defined by the Chambers Twenty-first Century Dictionary as either disregarding or disobeying the orders of a court of law or despising a court or a lawfully constituted authority. The Contempt of Court Act is sufficient to uphold the dignity of the courts and, therefore, the law relating to sedition would not be applied so far as courts are concerned, despite the fact that the Judiciary is one of the three pillars of the State. Hatred is defined as intense dislike, enmity or ill-will. There is a whole chapter in the Indian Penal Code, Chapter X, which deals with matters relating to contempt of the lawful authority of public servants. Under section 186 IPC if a public servant is obstructed in the discharge of his public functions the offender can be punished. Under section 188 IPC if there is an order duly promulgated by a public servant, then disobedience of such an order is liable both to imprisonment and a fine. Chapter XI of IPC relates to offences against public justice. An insurrection against government amounts to waging war against government under section 121 IPC can be punished with death. In other words, jeopardizing the security of the State to an extent where it is tantamount to armed rebellion is also subject to the most stringent penalty permissible by law. Section 124-A relating to sedition aims at preventing and punishing the exciting of disaffection towards government; the purpose of which obviously would be to bring about a downfall of government. Now it so happens that we are living in a democracy whose Constitution, in its Preamble, constitutes India to be a sovereign, socialist, secular, democratic republic. So long as the Preamble exists, the said Preamble being immutable, democracy cannot be denied to the people. What is more, the opening words of the Preamble are “We, the People of India …” In India sovereignty vests in the people and not in a monarch or in Parliament. Parliament is only the instrumentality through which in a representative democracy people exercise their rights. In this republic the citizen is supreme and the government is an organisation through which citizens exercise their supremacy through the executive powers which vest in the President and the Governors. Therefore, the right to criticise government and to call government to account is far superior to the right of government to protect itself against sedition. The words ‘treason’ and ‘sedition’ have to be used with great care and caution in a democracy.

Article 14 of the Constitution guarantees for every citizen equality before law and equal protection of laws. This makes India a society of laws and every action of government has to be within the framework of law. This includes depriving a citizen of his liberty through the operation of law because that is exactly what Article 21 says. Article 21 reads,” No person shall be deprived of his life or personal liberty except according to a procedure established by law”. The chapter on Fundamental Rights apart, Part IV of the Constitution lays down the Directive Principles of State Policy. Article 38 directs the State to secure a social order for the promotion of the welfare of the people. Supposing the State is in neglect of this principle? Do the citizens not have the right to be critical of the government, even stridently critical, even critical to the point of calling the government useless and worthless, if it does not strive to establish such a social order? Would critcism by people who accuse it of not doing its duty amount to sedition? After all, if a government is proved to be corrupt, unwilling to look after the welfare of the people, incompetent and negligent of its duties, the people have every right to call for the overthrow of such a government but through due process.

Under Part V, Chapter 2 of the Constitution and in particular Article 79 it is constitutionally mandated that there will be a Parliament for the Union. The House of the People is directly elected from territorial constituencies by the electorate consisting of every citizen of India not less than eighteen years of age on the date prescribed by law in this behalf. As per Article 326 of the Constitution the basis of election is universal adult suffrage. Every single Indian above the age of eighteen is, therefore, an integral part of the process of constituting the Parliament of India. Under Article 83 the normal duration of the House of the People is five years from the date of its first meeting after an election. Every five years the citizens of India, therefore, constitute the House of the People through a process of elections in which there is adult franchise. The executive government is conducted by the President on the aid and advice of the Council of Ministers which, under Article 75(3), is collectively responsible to the House of the People. Therefore, every citizen is a part of the process of the constitution of the Council of Ministers on whose advice the President of India conducts the executive government of the Union. Through adult franchise, through participation every five years in the process of constituting Parliament, through the constitutional requirement of collective responsibility of the Council of Ministers to the House of the People, every citizen of India has a say in how the duly constituted Government of India will conduct itself. The government cannot try and silence a citizen and accuse him of sedition if he criticizes the government.

When an election takes place contending parties do not fight it on the basis of praise of the party in power. It is the job of the opposition to criticise government, point out its shortcomings and ask the people to defeat the ruling party at the polls and place before the people its own agenda of how it will govern. The objective of such a campaign is to convince the people that the government in power is so worthless as not to merit its return to power. The objective is to create in the public mind such a feeling of disappointment about how they have been governed and in fact to arouse dissatisfaction with the ruling party that it is defeated at the polls. Because the ruling party and government are virtually one, till the ruling party is defeated, will such criticism amount to sedition? Incidentally, propaganda against the ruling party and government does not begin only after the election is announced. It is a continuous process in which government would be liable to criticism in the Legislature, by the press and electronic media, through public meetings, agitations and movements and through the expression of the right to free speech by individual citizens. Does all this amount to sedition?

Let us try another tack. Parliament frames laws, almost all of which are drafted by the Executive and, because the ruling party has a majority, they reflect the will of the Executive. High Courts and the Supreme Court quite often strike down such laws as being inconsistent with the Constitution. Sometimes strictures are passed. In cases involving government very often the courts are stridently critical of executive action. Can this be construed to be sedition? What about the Comptroller and Auditor General of India appointed under Article 148? Under Article 151 the audit reports prepared by the CAG are placed before Parliament by order of the President after CAG submits them to him. Generally audit reports are critical of government, up to and including CAG’s comments on transactions which virtually accuse the government of wrongdoing which may be tantamount to corruption. Is this sedition? Is criticism of government based on an audit report an act of sedition? Is a movement which says that corruption be rooted out an act of sedition because it does, in the eyes of the public, paint the government to be worthy of contempt because of its own actions?

The Constitution permits criticism of government to the point where the people are so fed up with it that they call for a change of government through the process of election. What the Constitution does not permit is the overthrow of government by violence or by means other than constitutional. The Constitution enjoins government to govern for the welfare of the people; it does not state anywhere that a government must govern wisely and well. What it says is that every five years the people of India will judge the performance of government and will decide whether there should be a change in those who govern us. To take care of a situation where people are trying to unlawfully overthrow the government, apart from section 121 IPC, we have Article 352 whereby if the security of India or any part thereof is threatened by war, external aggression or armed rebellion and this gives rise to a grave emergency, the President may issue a Proclamation of Emergency and assume extraordinary powers to deal with the Emergency. Similarly, if it is found by the President that there is failure of the constitutional machinery in a State he may issue a proclamation under Article 356 and pro tem take over the government of the State. During the Proclamation of Emergency operation of Article 19 can be suspended and enforcement of the Fundamental Rights may also be suspended. This, however, is possible only in a situation in which the very existence of India is jeopardised. Indira Gandhi misused the provisions of Article 352 and we went through a two-year period of virtual dictatorship. The Constitution and the people proved themselves to be stronger than arbitrary rule, Mrs. Gandhi was defeated in 1977 and the supremacy of the Constitution, constitutional government and the people of India were restored, hopefully never to be breached again. When we have all these provisions in the Constitution why do we need section 124-A IPC?

I am no great supporter of Binayak Sen. I am totally against violence against people and the State and I do feel that Naxalite terrorism must be suppressed with a heavy hand. If Binayak Sen supported the Naxalites and it can be proved that he and the Naxalites were part of a criminal conspiracy under section 120-A IPC or had a common intention under section 34 IPC to commit acts which led to culpable homicide amounting to murder I would be quite prepared to have Binayak Sen charged with these offences and suitably punished. But to accuse him of sedition under section 124-A is ridiculous, just as it is idiotic to charge Aseem Trivedi, a cartoonist, of sedition because he substituted three wolves for three lions and the legend ‘satyameva jayate’ for‘bhrashtameva jayate’ in a symbol which was an obvious caricature. For material which is libelous, or is otherwise defamatory we have Chapter XXI of IPC to provide legal remedies. Certainly a charge under section 124-A IPC is not justified. In fact I am now of the confirmed view that taking into account the constitutional right to criticise government, the duty of the citizens, the Legislature, the courts and the other constitutional authorities to call government to account and the freedom of speech that we all enjoy, there is no justification for the existence of section 124-A IPC which defines sedition and provides drastic penalty against it. The offence of sedition as defined by section 124-A IPC is similar to laws of blasphemy as operated in the medieval Europe and even today in some countries such as Pakistan which claims to be Islamic theocracies. Allah, Jehovah, God, Parmatma, call Him what you will, is too powerful to be threatened by a puny mortal who blasphemes. The Indian State is too powerful to be threatened by a seditious individual because normal law can effectively neutralise active sedition. Therefore, Section 124-A IPC needs to be immediately repealed.

A Relook at the Three Pillars of the State: Wisdom by Hindsight

Dr. M.N. Buch

Visiting Fellow, VIF

Of the three pillars of the State, the Executive, the Legislature and the Judiciary the task of the Executive is perhaps the most arduous. The Legislature is answerable only to itself and to the electorate. The Legislature can make and break a government and when this is done by due process it is legitimate. When, however, this is done through dubious means which have come to prevail since 1967, when for the first time legislators were purchased and thus induced to defect, resulting in the legitimately elected governments falling and power passing to those who had purchased it by arranging defections, it is totally reprehensible. The entire history of corruption as it affects us today dates back to that fateful period in 1967 when in States such as Madhya Pradesh, Bihar, Haryana and Uttar Pradesh governments were bought and sold. The legislators suddenly found that they command a price and this could only be paid through the wholesale corruption which became possible only by subverting the State and its institutions. The process brought the legitimacy of government itself into question and it certainly brought the Legislature, both at the Centre and the States, under a cloud which is refusing to lift.

The judiciary is in the happy state of enjoying total autonomy in which whereas there is a hierarchical judicial accountability, there is very little internal administrative accountability up to the level of District Judge and virtually no internal or external administrative accountability so far as the High Courts and the Supreme Court are concerned. Because the process of impeachment of a judge ultimately rests in Parliament, as was proven in the Justice Ramaswami case even a judge found guilty of various misdemeanours by a properly constituted tribunal could not be removed because the Congress Party played foul and the requisite majority for passing of the impeachment motion could not be mustered. Theoretically even if a judge is convicted of a heinous offence and sentenced to a long term of imprisonment he will continue in office if the necessary majority cannot be ensured in Parliament to have an impeachment motion carried. Therefore, the conscience of the judges apart, there is no one on earth to whom a judge of a High Court or the Supreme Court is accountable.

This brings us to the Executive. At the political level the Executive, that is, the Council of Ministers, is collectively responsible to the House of the People under Article 75 (3) of the Constitution, with the House having the power to remove the government by adopting a motion of no confidence. The Council of Ministers advises the President on how the Executive government will be conducted and the Executive government itself then functions as per the Rules of Business approved by the President under Article 77. Incidentally, under Part VI of the Constitution whatever applies to the Central Executive also applies mutatis mutandis to the State Executive. The Executive power vests in the President and he exercises this power through officers appointed by him under Article 53 of the Constitution and Part XIV of the Constitution. The permanent Executive, that is, the officers who implement the decisions of government, is organised into Services under Part XIV of the Constitution, with selection to the Services being done as per the provisions of Chapter 2 of Part XIV. The structure of the Services is hierarchical and, therefore, every official is accountable to his immediate superior and through him right up to the senior most person in his Service or his department. For the organised Services this accountability is virtually daily and continuous and an official who is unable to discharge his duty is liable to disciplinary action. The Conduct Rules, Disciplinary Rules, etc., are all framed to provide a framework within which the Services will act and be called to account for their actions. These officials, therefore, are accountable to their superiors and the ministers and can lose their jobs if they are found to be guilty of misdemeanour after a proper departmental enquiry. Neither the Legislature nor the Judiciary is subjected to this type of accountability, especially at the level of the higher Judiciary.

What are the functions of the Executive government? Under the definition given in the Chambers Twenty-first Century Dictionary one meaning given to the Executive is “the branch of government that puts laws into effect”. This is an excellent definition of the Executive. The implementation of laws, therefore, is the primary function of the Executive and whereas it is the Legislature which gives the framework of laws, it is the Executive which takes all the necessary decisions to implement the laws. A start has to be made with the Constitution itself, which is the fundamental law of the country. Therefore, the Executive has to take action to ensure social, economic and political justice and zealously guard the liberty of the citizen and ensure him equality of status and opportunity. The Executive has to take action to ensure that no citizen is discriminated against on grounds of religion, race, caste, sex or place of birth. It has to ensure that untouchability is not practised and that the protection under Article 19, especially to move freely throughout the territory of India, to reside and settle in any part of India and to practise any lawful profession and carry on any lawful trade or business is fully available to all citizens. The Executive must also strive to make the Directive Principles of State Policy an integral part of the business of government, which means that the Executive must secure a social order for the promotion of the welfare of the people. In other words, the protection of the people and the promotion of their welfare becomes a fundamental duty of the Executive. All this is possible only if there is an environment of law and order, public security and freedom of the citizen from fear. It is the duty, constitutionally and legally, of the Executive to ensure that such a climate of security is created. If one single citizen of India lives in fear then the State has failed in its duty.

Every business house functions with the objective of maximising profit and obtaining the highest possible return on investment. There is nothing intrinsically wrong or immoral in maximising profit, but in business terms it means an excess of income over expenditure. Everything in business is amenable to a cost benefit analysis in monetary terms and that activity which does not yield a monetary profit would come within the definition of bad business practice. The objective of government is to maximise welfare. Welfare entails the health, comfort, happiness and general well-being of people at large, welfare economics means equitable distribution of the Gross Domestic Product to the best advantage of people at large and the promotion of welfare uses welfare economics to maximise the welfare of the citizens. Health care of citizens, provision of social security, development of an educational system which extends the benefit of quality education to the least privileged child, elimination of malnutrition and hunger, providing directly or facilitating gainful employment, providing adequately for the defence of the country against foreign aggression and internal disturbance are all the legitimate concerns of the State in general and the Executive in particular. Many of the measures which are to be undertaken for this purpose will not pass a commercial cost benefit analysis. Quite often welfare is not quantifiable, though there are objective and subjective tests which can help us in determining whether maximum benefit is being delivered by the Executive.

Let us take a few examples Tamil Nadu pioneered the mid-day meal programme and is running the only successful example of this programme in India. Because the programme is being run efficiently over a million children in school get a nutritious diet, the school drop-out rate has substantially reduced and level of nutrition in Tamil Nadu is better than in any other State. It a fully subsidised programme, ultimately paid for by the tax payer. No private business establishment would take up such a programme because it does not yield monetary profit. But what about the social benefit which flows from it? Should not that be taken into account when assessing the programme?

Let us take another programme, that of providing housing and house sites to the poor. The jhugi- jhopdi resettlement scheme of the Delhi Development Authority is an example of providing a house site, with some services to, the squatter population of a city. Certainly the opportunity cost of land given to the squatters is not taken into account and in purely monetary terms people with no legal entitlement are thereby given a house site whose present value is a multiple of what that land cost when it was initially developed. Why only squatter colonies? Almost the entire programme of providing housing for the economically weaker sections, lower income groups and middle income groups, who were provided land and built houses at minimum, affordable cost throughout India has always been a welfare programme. Whole cities have developed because the State provided the development inputs to the cities. The present value of land in these cities and towns and of the land under the areas colonised for EWS, LIG, MIG beneficiaries would run into absolutely astronomical figures before which the estimates of CAG of losses in 2G Spectrum allocation and allotment of coal blocks would pale into insignificance. Are we to apply commercial norms to these welfare decisions of the Executive, ex post facto and to indict them for causing loss? Not if one looks at the duty of the Executive as one to promote welfare.

Let us take another example and that is industrial development. When the process of planning began one of the objectives of government was to create an environment and to provide the land and infrastructure which could promote the development of industry in India. Our major hydro electric and thermal power projects, the huge new capital industries of steel, aluminum, fertilisers, machine tools, etc, were heralded as the new temples of India. All over the world industrial area and estates were developed where land, power, water, roads and other infrastructures were provided to industry at highly subsidised rates. Prior to 1947 India had some industries but was not an industrial power. After 1951 there was no holding back of industry. Would that have been possible if the State had not provided? Would that have been possible had the State not formulated an appropriate policy and the Executive not provided the base on which industry grew?

Our great institutions of learning -- the Indian Institutes of Technology, Indian Institutes of Management, the Agriculture Universities, our magnificent Medical Colleges such as AIIMs, PGIEMR, Chandigarh and Pondicherry, the Indian Institutes of Information Technology, the Central Universities and the State Universities -- would not have come into being if the State had not invested in them and the Executive not created the necessary infrastructure. The intervention of the State and the process of Executive decision making have given India the foundations of a higher educational system which is as good as anything which can be found anywhere in the world. Commercially these decisions may not be viable but the national assets that we have created are beyond valuation.

Let us now go to the other end of the spectrum. Rural electrification by itself, especially in remote areas, is not a commercially viable proposition. However, rural electrification has certainly transformed the agricultural scene because with availability of power lift irrigation throughout the country has become both feasible and viable. Crores of pump sets are lifting water to bring irrigation to fields which would otherwise have remained dry. A subsidy is paid to the farmer by way of cheap power and the State is bearing the subsidy. Can such an Executive decision be faulted because it is probably costing State a great deal on a daily basis? What about the fundamental change which it has brought about in agriculture and the prosperity that it has extended to rural masses in far flung areas?

Very early under British rule, especially after the Crown took over the Government of India from the East India Company and assumed direct rule, it was decided that it was the duty of the government to look after the people in times of famine and scarcity. The Famine Code was drawn up sometime in the 1860s, to be succeeded by the Scarcity Manual which operates even today. The Collector of the District would do an annual or seasonal crop review and determine whether it was a year of scarcity or not. Thereafter relief works would be started and employment provided to indigent rural people. Today the programme is supplemented by such schemes as the National Rural Employment Guarantee Scheme, now renamed after Mahatma Gandhi, the Watershed Management Programme, the Integrated Rural Development Programme and other schemes aimed at improving the rural economy, providing better health care, promoting women and child development and various other schemes for the welfare of the people. These are all programmes mandated at the political level but implemented by the Executive. Are we to stop such programmes because the Executive thereby causes a drain of the public exchequer which is not recouped by commercial means? Even in a purely capitalist, free market economy such as the United States, when the economy began to collapse the government intervened and virtually nationalised banks, investment companies and various financial institutions in order to protect the people. The Executive will continue to take decisions and must continue to do so for promoting the welfare of the people even if it means that valuable land is virtually gifted away and budgetary support for welfare schemes is increased. To bring every decision of the Executive under the scanner of commercial viability is to sound the death knell of effective Executive government.

Even in the two worst cases for which government is facing so much opposition, the 2G Spectrum allocation and coal block allotment, we need to objectively bring the matter into a more balanced perspective. The argument that at a certain stage in the development of our telecommunication system allotment of spectrum without auction was appropriate because if that had not been done mobile telephony would not have achieved the present heights has validity. This issue needs to be looked at objectively and not necessarily through the prism of the audit report. If there is wrongdoing then let us punish the guilty, but let us not reject the policy without understanding all its implications. In the matter of coal block allotment two issues have to be separated. If it is decided to have coal based thermal power generation, then the proposed power station must have captive coal mines. Government through a transparent process can determine the tariff for coal, but no loss as such can be assumed merely because the mine was not auctioned. Without the coal power plants could not have been made operational at Sasan and Chittarangi and there is evidence to believe that these power plants will soon be operational. Every allotment made to a power company or an industry in which coal is an important input, in which the industry has taken all the necessary steps to go into production in the near future, should be deemed to be a valid allotment. Coal blocks allotted to dubious companies which have taken no obvious steps to activate the mine and to use the coal for productive purposes must be cancelled. In every single case where a coal block is allotted on political considerations the allotment should be cancelled. In every case where there is collusion punitive action must be taken, but if as a result of this government stops developing the coal sector it would be a tragedy.

The following lessons have to be learnt from the recent development in which CAG has been active, Parliament is not allowed to function, the press and electronic media have a field day and the Executive has become so scared of its own shadow that government has virtually ceased to function. That is what the Washington Post article literally states. Instead of being annoyed with a newspaper for writing something which is largely true the Government of India should now do a great deal of introspection and take all the necessary steps needed to activate the Executive and to make it function boldly but honestly. Let us cut all favouritism and nepotism out of the system and let the Executive perform its function of promoting welfare and governing firmly and purposefully.

Governance and The Prime Minister

Dr. M.N. Buch
Visiting Fellow, VIF

The whole theme of the Constitution of India is that this country must be governed and how this should be done is laid down in every Article of the Constitution and in particular in Chapter 1 of Part V of the of the Constitution for the Union and Chapters 1 and 2 of Part VI for the States.

The post of Prime Minister exists because Article 74 so mandates and it is he and his Council of Ministers who, in accordance with the Business Allocation Rules and the Rules of Business of the Executive Government framed under Article 77, will advise the President on how the executive functions of government will be conducted. In this there is no ambiguity and the Constitution and the Rules framed under it demand that the Prime Minister will in fact govern. The Constitution does not permit or forgive lack of governance and a Prime Minister who does not govern has no right to occupy that post. Of course as the person who, together with his Council of Ministers, enjoys the confidence of the House of the People he is the one required to initiate and pilot legislation and to carry out the wishes of the Legislature as stated through laws, the budget, debate and resolutions, etc. The Prime Minister, therefore, straddles the twin horses of the Executive and Legislature, both wings of the State being concerned with governance.

In order that a Prime Minister may govern there has to be an environment of government in which the Prime Minister can function effectively. It is for this reason that the Prime Minister enjoys and must enjoy a degree of independence in functioning in which, while discharging his responsibility to the House and to the electorate in general, the Prime Minister is not subjected to nagging, pettifogging complaints which prevent him from performing his fundamental duty of governance. Does such an environment exist in India? After independence at least till imposition of Emergency and its aftermaths such an environment did exist and though people such as Ram Manohar Lohia were the gadflies who tormented Jawaharlal Nehru for taking the decisions which a Prime Minister should, nor was he ever bogged down in controversies in which self-defence took precedence over governance. That was the period in which India took momentous decisions. We entered an era of planning and there was an immense thrust of building basic infrastructure so that the sinews of a modern industrial state were created. Whatever might be the complaints about adequacy and quality of electric power, the fact is that from a situation in which only five thousand towns and villages in India were electrified in 1947 when the British left, today we have one hundred percent electrification. Life expectancy has increased from twenty-seven years to sixty-three years, epidemics are under control, food production has increased dramatically and India is a major industrial power today. There were inefficiencies which have prevented India from achieving its full potential, but that does not detract from the magnitude of achievement during a period when India was actually governed. Not surprisingly this was also the period when corruption was at its lowest ebb, which proves that taking decisions leads to less corruption than dithering and then taking decisions in panic.

To whom should the Prime Minister be accountable? Obviously to Parliament and, by implication he should be accountable to the President. He is accountable to the electorate because every five years there is an election and the ruling party, if it wants another term in office, it has to convince the voters that its achievements in government have benefitted the average citizen and, therefore, it should get another term. If the ruling party fails to convince the electorate, then it loses power and the Prime Minister his office. We have seen this happen in India where a powerful Indira Gandhi was ousted at the polls, only to return to power at the next election. Atal Bihari Vajpayee won power and then lost it, just as the Congress under Rajiv Gandhi won power and subsequently lost it. This is normal in a democracy, but the lesson learnt from our elections is that a party and a Prime Minister whose conduct of government does not live up to the expectations of the people will lose power. In other words, what the people of India want is a firm government and not a government whose every step seems to be dictated by populism and immediate expediency. One wishes that this lesson is learnt by the present government and all governments to follow.

This background about governance has been sculpted because ever since Anna Hazare and his cohorts launched a movement for the enactment of a Lokpal Act drafted by them government has been on the defensive. That is not all. Various actors have come on the stage and encouraged by a complete collapse of executive government have begun enacting solo dramas of their own which do not necessarily combine to create a great play but individually lead to such chaos on stage that the audience cannot make head or tail of what is going on. The nearest resemblance in real life of what is happening in the world of government is a lunatic asylum at bedlam hour in which no one can make any sense of what people are saying or doing. This is made possible because in the manner in which coalition governments function in India no government can orchestrate a scenario of governance which makes any sense and, therefore, chaos reigns supreme.

This point needs to be illustrated or elaborated. The Constitution in Article 112 directs that the President will cause to be laid before both Houses of Parliament and an annual statement of the estimated receipts and expenditures of the Government of India. In popular parlance this is called the budget. Under Article 113 each item of expenditure as estimated which is not charged upon the Consolidated Fund of India is to be presented to the House of the People in the form of a demand for grants and the House may approve or disapprove a grant. The aggregate of the approved grants would be the final amount of expenditure agreed upon by the House of the People and this would take the form of an Appropriation Bill under Article 114. No expenditure can be incurred before the enactment of the Appropriation Act. This entire process is initiated by the Executive, discussed and voted upon by Parliament and then handed back to the Executive as the sanction on which it will operate in the matter of expenditure. This is purely a matter between Parliament and the Executive, with each Minister being accountable to Parliament on how the grants relating to his department have been spent.

In order that Parliament can judge whether the manner in which government has spent funds is according to what has been voted the Constitution, Part V, Chapter 5 provides for the office of the Comptroller and Auditor General of India. Under Articles 149 and 151 Comptroller and Auditor General audits the accounts of government and in the case of the Union Government he presents his audit report to the President and in the case of the States to the respective Governors, who is then required to present the report to the House of the People and the State Legislative Assembly, as the case may be. Till then these reports are not in the public domain and have to be kept between CAG and government. It is for Parliament then to decide whether it accepts the audit report and directs government to take action thereon, or that it rejects the report or only partially accepts it. The Comptroller and Auditor General, when auditing an office, can comment on the propriety and wisdom of expenditure, but it cannot do what the present CAG has been doing, that is, sitting in judgement over the decisions of the Executive and stating that had some other decision been taken there would have been accrual or a certain amount of gain to government and that failure to take such decision has resulted in loss. Such hypothetical questions and views come within the realm of speculation and not audit.

No one is denying that our system has been highly corrupted by the arbitrariness of political decision making and the complete and absolute surrender of the Civil Services to political bullying. This surrender has to a large extent been converted into a nexus between politicians and civil servants. That is another story. At the same time CAG is not competent to state that if at the time that spectrum was being made available to telecommunication firms, the auction route had been followed government would have gained Rs. 1,76,000 crores and, because this was not done, government has incurred this much of loss. What about the proposition that if the auction route had been followed initially there would not have been growth in the telecommunication sector? These are political and administrative issues and are not within the realm of audit, To assume corruption from such a defective audit report is a complete distortion of facts, but tragically this is what has led to the Anna Hazare movement which started with good intentions but which has now grown berserk and is threatening the very existence of meaningful executive government in India. Once again let me hasten to submit that this is not an apology for the wrongdoing of government under the guise of compulsions of coalition nor does it excuse government from taking a firm stand but always succumbing to the pressures of such puny partners as Mamata Banerjee or Karunanidhi. Any movement to curb corruption which also forces government to provide good government would be welcome, but unfortunately Anna Hazare’s movement is not the one which can do this.

More than Anna Hazare it is some of his more irresponsible associates such as Arvind Kejriwal and Prashant Bhushan whose voices, in ascending order of shrillness, have launched a most incontinent attack on the Prime Minister and his Ministers for taking decisions in cases where lack of decision making would have been fatal. Let us take the allocation of coal blocks. No decision of a Minister or the Prime Minister is open to question in this behalf unless it can be shown that there is some personal gain to the Minister concerned, which is not justified by law or the rules of financial propriety. Unless the decision has an element of criminality which could justify the registration of a First Information Report (FIR) no investigating agency with police functions can sit in judgement over such decisions. Increasingly CBI, which is accused by opposition parties of being a political handmaiden of government, is being involved in reviewing administrative decisions which it has neither the authority nor the competence to do. Legally CBI does not exist except as a government body constituted by executive order. The police is created by the Indian Police Act or the relevant State Acts and it operates according to the powers vested in it by the Code of Criminal Procedure in the matter of maintenance of public order, prevention of crime, investigation of offences and their subsequent prosecution. The Delhi Special Police Establishment, popularly known as CBI, is such a police force constituted under the Delhi Special Police Establishment Act, enjoying legal powers as conferred by the Act. CBI as such has no legal powers. It is not the administrative superior of government officers or ministers because the Rules of Business confer no such powers on it and it certainly does not have the competence to sit in judgement over the administrative decisions of senior officers and ministers. No investigating agency ever has such competence. Despite this, increasingly, CBI, through what are called preliminary enquiries, is interfering in the general administration, which it has no competence to do. It is still a mystery why when under Entry 8 of List 1 of the Seventh Schedule of the Constitution Parliament has the right to enact a law creating a Central Bureau of Investigation and conferring on it both functions and power, this has not been done and for which there does not seem to be any initiative on the part of government. It would be a sad day for our democracy if agencies like CBI begin sitting in judgement against the decisions of ministers.

In this behalf let me tell a true story. In 1977 when Indira Gandhi was ousted from power and the Janata Government was formed, in Madhya Pradesh also we had a Janata Government dominated by BJP. K.L. Pasricha, the then Chief Secretary, issued an order to all Secretaries of the State Government to review the orders of their ministers in the past five years and to bring to notice for action such cases where they felt that the minister’s order was wrong. My colleague, B.J. Hirjee and I independently wrote to the Chief Secretary that under the Rules of Business it was the job of the Secretary to ensure that if an order of his minister is contrary to rules or the law, or even the canons of propriety, he should advise the minister accordingly and if the minister did not agree, then to bring the matter to the notice of the Chief Minister through the Chief Secretary in a process called Coordination. If, therefore, the Minister had taken a decision and the Secretary had failed to advise him correctly, then he was equally responsible for the wrongdoing and would have to bear the brunt of consequences. He could not hide ex post facto under the excuse of wrongdoing by the Minister, thus sitting in judgement over his Minister. We both stated that allowing a Secretary to sit in judgement over his Minister’s orders ex post facto is not permissible in a democracy. The same applies to CBI or any other agency. Of course if they are investigating a criminal case duly registered under law, then it would be a different matter.

Our past experience of bringing government to a halt on account of allegations against the Prime Minister has been very unhappy. V.P. Singh, who went on to be Prime Minister, alleged that in the purchase of Bofors 155mm guns for the army illegal gratification had been paid. Rajiv Gandhi, then Prime Minister, first denied the allegations, then said neither he nor his dear ones had taken any bribe and became increasingly embroiled in an unseemly controversy in which the Indian Express came out with an expose. For the remaining years of his tenure Rajiv Gandhi was just defending himself and could be described as a lame duck Prime Minister. V.P. Singh neither provided clinching proof in the matter, nor withdrew the allegations and this, while creating an environment of distrust which has still not dissipated, brought government to a halt.

Contrast this with the case of Yoshihiro Tanaka, Prime Minister of Japan. It was alleged that he took a bribe of Dollar Two Million from Lockheed Corporation for purchase of aircraft. The complaint was registered as a criminal case, duly investigated, found proved. Tanaka was prosecuted, convicted, given a jail sentence and his party expelled him and he was removed as Prime Minister. A corrupt man was punished but the Prime Minister’s post was unscathed. In India we persecute but do not prosecute and this seriously harms the post.

If the Prime Minister is convinced that neither he nor his colleague did wrong then it is his duty to categorically state that neither CBI nor anyone else could inquire into their conduct and that under no circumstance would he concede what Arvind Kejriwal and Prashant Bhushan are demanding. Having said that the Prime Minister must resolve to govern firmly and justly and not be deviated from this path by the likes of his present detractors.