Communal Polarisation of Indian Politics: Role of Congress & SP

Dr M N Buch, 

Dean, Centre for Governance and Political Studies, VIF

Till the Constitution (42^nd Amendment) Act 1976 was enacted, the words ‘socialist’ and ‘secular’ did not form a part of the Preamble to the Constitution.Till the 42nd Amendment, the word ‘integrity’ did not form a part of the Preamble. However, when the Constitution is read as a whole, these three words are already a part of the foundation of the Constitution and their inclusion in the Preamble was really not called for. In fact, there is some doubt whether the Preamble can be amended at all because the opening words of the Preamble are, “We, the people of India …..” The people, as represented by the Constituent Assembly, adopted not only the Constitution but gave us the Preamble which precedes the Constitution. Under Article 368, Parliament can amend the Constitution except, as decided by the Supreme Court in the Kesavananda Bharati case, in a manner such that the basic features of the Constitution are amended. That power does not vest in Parliament. Similarly, the question arises whether a preamble can be amended at all.

As per the Chambers 21^st Century dictionary, preamble is defined as “an introduction or preface, e.g. to a speech or document, opening statement”. An opening statement cannot be considered to be a substantive part of the main document because it is an introduction, almost as if it is an explanatory statement to the effect that the main document is designed to fulfil the objectives laid down in the Preamble. If the Preamble, therefore, does not form a part of the substantive contents of the Constitution, how can it be amended under Article 368? That can only be done by the Constituent Assembly as and when it is convened. One, therefore, has strong reservations about the legality of that portion of the 76^th.

Actually Articles 25, 26, 27 and 28 which give freedom of conscience and free profession, practice and propagation of religion, freedom to manage religious affairs, freedom as to payment of taxes for promotion of any particular religion and freedom to attend or not attend religious instructions or worship in educational institutions, had already declared India to be a secular nation. Article 15 prohibits discrimination on grounds of religion, race, caste, sex or place of birth. Articles 29 and 30 provide for specific protection of the interests of minorities. In other words, the chapter on Fundamental Rights mandates the secular nature of the Indian State. When this is read with Article 38 which directs the State to secure a social order for the promotion of the welfare of the people, in effect, the Constitution directs that the State will be socialist in terms of ensuring equality and equity. The original Preamble promises justice, liberty, equality and fraternity to every Indian and in combination this means that India will be secular, nondiscriminatory and socialist in terms of promoting equity and equality. Articles 42, 43 and 44 direct the State to look after the interests of workers, which is what any socialist State would do. That is also the tenor of Article 14 which mandates equality before law.

This opening statement is made because in the democratic republic of India, where there is no State religion, no theocracy and complete equality before law, no practices can be permitted which communalise any situation in terms of religion, caste or region. That is why under Article 325, no person can be excluded from an electoral roll on grounds of religion, race, caste or sex. That is why under Article 326, elections to the House of People and the Legislative Assemblies of States will be held on the basis of adult suffrage in which every Indian citizen not less than eighteen years old will be entitled to vote. There are no separate electorates in India and this is the hallmark of a secular State. In a secular State, it is not permissible to communalise politics or seek votes on account of community, religion, caste, etc. In fact, under section 29(A) of the Representation of People Act, 1951, every political party, association or body, when applying for registration with the Election Commission, is required to state that it “shall bear true faith and allegiance to the Constitution of India as by law established and to the principles of socialism, secularism and democracy, and would uphold the sovereignty, unity and integrity of India”. The Representation of People Act (RPA), 1951 thus makes it mandatory for every party to accept secularism, which not only means separation of Church and State but also means that the party will shun communalism.

Let us look at the party scenario in India. There are two parties which specifically represent the interests of a particular religious group. The first is the Indian Union Muslim League (IUML) which is the successor to the pre partition Muslim League. By and large, this party has a significant presence only in Kerala. The other party which represents a particular religious group is the Shiromani Akali Dal which represents the Sikhs. There is a third party, The Majlis Ittehad-el Muslameen led by the Owaisis in Hyderabad, but it does have some Hindu members. Strictly speaking IUML and SAD should be considered communal parties, but SAD has Hindu members also and IUML, while promoting Muslim interests, does not project a blatantly religious image which calls for hostility against other communities. BJP is accused of being a party of the Hindus because it has the backing of RSS, but despite its support for the concept of Hindutva, BJP has kept its doors open to other communities and it has a number of Muslim, Christian and Sikh members. It also has India’s best known and most highly respected Jew, Lt. Gen. JFR Jacob, as a member. It, therefore, firmly and rightly rejects its identification by the Congress, Samajwadi Party, etc., as being a communal Hindu party. It must not be forgotten, however, that in the closing decades of the last century BJP did adopt the policy of promoting Hindutva and building the Ram Temple at Ayodhya. This was not appreciated by the Muslims but at no time did this represent a communal, religion based agenda, nor did it target a particular community.

The past as a means of understanding of the genesis the issues of today may be useful, but one has to move forward. For the elections of 2014, there is a systematic attempt to dub BJP as a communal party and its leader Narendra Modi as a man with Muslim blood on his hands. The merits of what happened in Gujarat in 2002 have been deliberately obfuscated by the shrill voice of those who in the name of secularism would in fact communalise politics. In this rhetoric of hate, facts are glossed over or even deliberately ignored. It is loudly acclaimed that Modi is a monster and must be kept out of office because with his coming to power every Muslim would be unsafe. Therefore, mobilise and polarise Muslim votes so that collectively they can keep BJP out of power. For this purpose have a pact with Syed Ahmed Bukhari, the Imam of Jama Masjid, who appears to be a complete Hindu baiter and has made a blatantly communal appeal to Muslims to vote for the Congress. Muslims, mind you, not citizens at large. The Congress, when appealing to the Muslims, has virtually stated that they should keep communal forces at bay by voting for the Congress. This means that all Muslims are secular and, ipso facto, all Hindus are communal. Add to this the kind of speeches being made by Congress candidate from Moradabad Imran Masood and Samajwadi Party leader Azam Khan in U.P. Khan has gone to the extent of saying that the victory in Kargil was won by Muslim soldiers and that Hindu elements of the Indian Army were not instrumental for it. The one institution which prides itself on being above politics, caste and creed is sought to be thrown into the cauldron of communalism. Does it matter whether it was Hindu or Muslim troops who saved Kargil? It is the Indian Army which shed its blood for the country and that is what counts.

Those who are trying to communalise politics by polarising Muslim votes must realise the disservice which they are doing to India. The Hindu vote is almost impossible to polarise, which BJP has found to its cost. The Hindu votes according to party ideology, caste, region, even language. Collectively the Hindus do not form a monolithic vote bank. The very heterogeneity of Hindu society makes it highly resistant to polarisation. There is, however, an exception to this. So long as Muslims vote anti BJP, the Hindu is prepared to live with this. Even in the heyday of Mahatma Gandhi, not more than five percent of Muslims have voted for Congress. However, if in Hindu perception, the Muslims are seen to be united against Hindus as such, we are in grave danger of seeing this resulting in polarisation of at least a section of Hindu votes. If twenty percent of the Hindu voters decide that they will polarise, then a party allegedly pro Hindu would sweep to power. The present effort at treating at least a section of Hindus as communal bigots who will destroy the minorities is likely to rebound in that it may lead to a certain amount of polarisation of Hindu votes. This would not be a happy situation. The one bright light in this murky scenario is BJP’s refusal to respond to provocation and to stick to development with equity as its election platform.

The legitimacy of the BJP seeking power comes from the Constitution which mandates free and fair elections. The Election Commission of India is armed with sufficient powers to ensure that the BJP fights the election with a secular orientation. However, if the Congress, Samajwadi Party, etc., try and polarise Muslim votes, then the possibility of an equivalent and opposite polarisation of Hindu votes cannot be ruled out. In other words, without anyone asking or advocating it, if a certain amount of polarisation of Hindu votes takes place, it will be the Congress and the Samajwadi Party which will be wholly responsible for this. One fervently hopes that these parties will return to their senses and let the election be based on principles, ideology and peace for all.

Time to Restore Civility in Political Debate

Dr M N Buch, 

Dean, Centre for Governance and Political Studies, VIF

For us Indians there are certain truths which we should take as immutable. The Constitution of India, the basic features of which have remained unchanged despite a number of amendments, is the document which prescribes how this country will be structured and governed. Article 1 categorically states that India is a Union of States, which means that it is a true federation in which the Union as an entity exists because of its constituent States. One without the other is incomplete and, therefore, whilst there can be debate on whether this federation needs a strong Central Government with viable and powerful States, or whether the States should enjoy the highest degree of autonomy with the Centre being the cementing force, India cannot convert itself into a Unitary State. The Qasi federal structure is here to stay.

The Preamble defines governance in this country in unambiguous terms. India is fully sovereign and this is non-negotiable. It is socialist in the sense that the Preamble itself mandates justice, liberty, equality and fraternity, which means that there is equality before law, there is freedom of thought and expression, every citizen has equality of status and opportunity and fraternity ensures that there will be a brotherhood of man in which no one is high and no one is low. The Preamble also states that India will be secular and, in the context of the partition in 1947, this was a very brave decision because whereas Pakistan chose the path of theocracy, we opted for a nation in which everyone was welcome, regardless of religion, caste and creed or, for that matter, place of birth. Secularism in this context is what makes all of us equal. The Preamble further states that India will be democratic and that it will be a republic. One has no alternative available whereby the republican form of government can be replaced by a hereditary monarchy, nor can the democratic process be replaced by authoritarian rule or totalitarianism.

The Constitution has adopted the Westminster form of democracy in which whilst there is separation of power between the Executive, the Legislature and the Judiciary, there is a coming together of the Executive and the Legislature through the Council of Ministers. The Prime Minister is appointed by the President, but because he has to enjoy the confidence of the House, to which he and his ministers are collectively responsible, obviously only that man would be appointed whose party or political group enjoys a majority in Parliament. This is an important point to be borne in mind because it determines the shape that our democracy will take in order to elect a government. Every five years a general election is called for electing members of the House of the People, that is, the Lower House of Parliament. Because India is a democracy in which Article 19 of the Constitution guarantees freedom of speech and association, it is obvious that there will be different streams of political thought and ideology, ranging from the extreme left to the extreme right. The bounds within which these thoughts will be expressed and ideologies expressed, are that the fundamentals of our Constitution, our sovereignty, socialist ideal, secularism, democracy, republican status and the Union of States cannot be questioned, nor their overthrow advocated. However, within these limitations every group of persons, every individual and every political party has the right to not only express itself but to propagate and promote its ideology. When there are different schools of thought prevailing in politics and the objective of every political party is to win favour with the electorate and thus aspire for power, there is bound to be debate. There is also bound to be dissent, internally within a party and externally between parties. The objective of debate is to convince people that a particular party, its ideology, programmes and practices is best suited to governing the country. For example, a party may profess dogmatic socialism and nationalisation of all industry and business as the best way forward for India. Another party may advocate capitalism, free enterprise and laissez faire as the best policy for the country. In between there may be many shades and nuances of political policy which different parties may advocate. This is perfectly legitimate and in fact desirable. It is then for the people to choose which party they will accept as best suited for government.

At a time when the Congress Party under Jawaharlal Nehru was virtually the uncrowned king of India and the Opposition was numerically very small, we still had stalwarts like Ram Manohar Lohia, S.A. Dange, Syama Prasad Mookerjee, Rajaji and other towering persons who were in political conflict with government and expressed views contrary to those held by Jawaharlal Nehru. However, they were heard with great respect and their words carried weight. There was a level of debate in Parliament and outside it which was so civilised, so serious, so ideology based that we could pride ourselves on traditions of parliamentary democracy perhaps not found even in Britain. Those were the golden days of Indian democracy and the Indian Parliament. Surprisingly this is also the period in which Nehru introduced the concept of planned economy, not of the Soviet model, but the uniquely Indian one in which justice and equality were more important than Marxian dialectics. The Indian model, recognising that capital formation through private enterprise was just not adequate to accelerate the Indian economy to a higher plane, decided to use the State and public enterprises for building the infrastructure and laying the base for a capital goods industry which could modernise the country. This was not a dictatorial decision but a democratic one in which critics and criticisms were heard, given due weightage and did influence decision making so that the planned economy did not transform itself into a bureaucratic dictatorship. The above example is given to support the thesis that civility of debate did exist in India, partly because of Gandhian traditions, partly because Nehru was a democrat, partly because his opponents were also democrats. Power was a means of service, not an instrument for self aggrandisement.

All that changed in 1967, when in some of the States outright bribery purchased Members of the State Legislature, defections were engineered and elected governments caused to fall through dubious means. Now power became a commodity which could be purchased, attaining of power became a goal in itself and the wholesale subversion of the State to convert it into a means of amassing wealth through which power could be purchased became a norm. All means, however foul and unfair, become legitimate in order to gain power and with this principles, ideology, consistent political thought, pragmatic programmes, all were thrown out of politics and the political process became totally corrupt, When a political system becomes corrupt there are evil consequences which flow from it. Corruption is not restricted to top levels, but soon permeates down to the lowest government functionary. If the guardians of democracy, the legislators and the ministers, become corrupt, they cannot occupy high moral ground when dealing with their subordinates, but they actually use their subordinates in order to garner money. The subordinates, in turn, have to prey upon the citizens to collect money and the rot sets in so deep that soon every point of contact between a citizen and a government functionary becomes a source of milking the citizen even for getting his legitimate work done. This is the state to which we have brought India and, perhaps, in a way the Anna Hazare movement was a citizen reaction to the systematic climate of corruption that we have created. Such a climate endangers democracy itself because if citizens lose faith in the system, then either there will be anarchy or there will be totalitarian rule and both would be highly undesirable.

One natural consequence of the loss of political innocence is that the level of political debate has hit rock bottom. The politicians, though having no specific ideology, philosophy or programme to offer, want to be elected so that they can enjoy power. They seem to have fine-tuned the old saying, “When in the right, fight like hell. When in the wrong, admit”. The new saying seems to be “Who says you have to be in the right. In any case, when in the wrong thump your opponents”. Carried further, the entire political scenario becomes one of just attacking one’s opponents, not for their policies, not for their performance but on totally personal grounds. The new form of debate is shrill, accusatory, perfectly comfortable with telling lies and happiest of all when heaping unprintable abuse on one’s opponent and accusing him of everything, including murder, sexual depravity and misbehaviour, corruption, even to question the legitimacy of his birth. However, under no circumstances tell the people what you have to offer them if you come to power because the fact is that you have nothing to offer and in any case you only consider them as a kind of voting machine which is to be milked in order to gain power. Ram Manohar Lohia was extremely critical of Nehru, but at no time did he intend to cause hurt and at no time did Nehru take umbrage at what Lohia was saying. There was never any intention to cause any bodily harm or any humiliation to one’s opponent and one admires how Morarji Desai ensured that Indira Gandhi was not victimized and Atal Bihari Vajpayee took care of the comfort and honour of Sonia Gandhi. There was at times acrimony but there was no vendetta. Certainly there was not the kind of churlishness exhibited by Mamata Banerjee towards the Left in West Bengal after she came to power. If one were to define the politics of those days one has to use the word “civilised”.

If one were to survey the political scene today what would one find? There is an enormous promotion of factors such as religion, caste, region, language, group animosities and hostilities, all in order to promote the narrow interests of a particular group or party. This inevitably leads to fuelling narrow religious considerations, generating communal animosity, promoting caste interests over national interests and regional interests over the wider interests of a State, violent manifestation of one’s prejudices, a weakening of the administration, thus endangering the safety of citizens and, perhaps, national security and certainly corruption on an unprecedented scale. All these are the antithesis of good government which, incidentally, has to be the objective of every political party. The Constitution gives them no alternative and the fact that they are doing the exact opposite shows that they have no respect for the Constitution.

May one suggest to all the political parties to read Part IV A of the Constitution which gives the fundamental duties of the citizens. Article 51 (A) states that it shall be the duty of every citizen of India (e) to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women” and (j) “to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher level of endeavour and achievements”. Can this be done if the level of political debate is reduced to a public brawl in which, whereas nothing positive is offered, the opponent is attacked, with no holds barred? Therefore, if democracy is to be saved, if the Constitution is to be respected, if the nation is to rise to new heights, it is absolutely vital that civility be restored. The dictionary meaning of civility as per Chambers Twenty-first Dictionary is “politeness”. Civilised, according to the same dictionary means agreeably refined, sophisticated or comfortable; socially, politically and technologically advanced. Civility in debate and civilised debate leads to civilization, defined by the dictionary as “a stage of development in human society that is socially, politically, culturally and technologically advanced”. Remove these three words, civility, civilised and civilization from the dictionary and we would have a nation of morons at constant war with each other. A constitution which mandates fraternity, assuring the dignity of the individual, gives to every citizen equality before law, calls upon him to strive towards excellence, has no place for lack of civility and civilised behaviour in the political process. The manner in which our politicians are behaving today shows that they not only have no respect for the Constitution, but rather that they hold it in contempt and are happy to violate it. More than good government, more than eradication of corruption, we need to restore to politics a standard of values and morality, we need to return to civilisational roots, we need to restore civility to debate.

The Politicisation of Criminal Justice

Dr M N Buch 

(Visiting Fellow, VIF)

Afzal Guru masterminded the attack on Parliament in 2001, which left nine security and parliament staff dead, with five attackers also being killed. He was arrested and tried for his crimes, sentenced to death by the Sessions Court and his conviction and sentence were upheld by the Delhi High Court and the Supreme Court. For several years after sentencing Afzal Guru’s fate hung in the balance because his mercy petition to the President remained pending. Government obviously hesitated to take a decision lest it trigger a violent reaction in the Kashmir Valley. All sorts of excuses were trotted out for the delay, including examination of the case by the NCT of Delhi Government, Home Ministry, Law Ministry, the President and so on. In 2009, the then Home Minister, P. Chidambaram, said publicly that there were a number of such petitions in the queue and Afzal Guru would have to await his turn. Even at a railway booking office a queue moves on as tickets are issued. In the MHA booking office obviously no tickets were being issued as the clerks either slept or dithered and the queue remained static.

In India all systems are selective in operation. At Tirumala-Tirupati there is a queue of devotees, but VIPs jump the queue. In crime, too, there seems to be a similar procedure, because suddenly Ajmal Kasab came on the scene and though he was at the bottom of the queue he was made to jump it and was hung before any one else. May be because he was a foreigner, a Pakistani, a different queue was formed for him as there is for foreigners at immigration counters. But surprise of surprises, the next was Afzal Guru, who happens to be Indian despite separatist efforts by the Hurriyat and its Indian quisling supporters to change the status of Kashmir. How has this happened and how does this reconcile with Chidambaram’s averment in 2009? The Congress spokesman, Abhishek Manu Singhvi, fields all questions on this by blaming BJP (NDA) for not hanging Afzal Guru when it was in power. Perhaps he has forgotten that by the time NDA demitted power in mid-2004 the entire legal process in the Afzal Guru case had not been exhausted. In any case BJP has been consistent in its demand that the sentence be carried out, not because Afzal Guru was Muslim but because the attack on Parliament was a vile crime. In Indian law, murder is the worst offence that can be committed because it deprives a person of his life and this is irreversible. Therefore, under section 302 IPC a person who commits a murder faces only one of two sentences, death or imprisonment for life. Under section 109 IPC if a person abets an offence he would be liable to the same penalty as is provided in the main office. If the offence is of murder then the abettor is liable to the same penalty of death or imprisonment for life as the person actually commits the offence. Under section 120B IPC if a person is part of a criminal conspiracy to commit an offence and that offence is punishable with death or imprisonment for life, then the conspirator is liable to the same penalty as the main offender. Under section 34 IPC if there is a common intention to commit an offence, then every person who does a criminal act in furtherance of the common intention is liable to the same penalty as if the act was done by him alone. Afzal Guru was part of a conspiracy to attack Parliament, which amounts to an offence under sections 121 and 121A IPC. Afzal Guru was part of a conspiracy, both to commit murder and to wage war against the Government of India and joined with others in the common intention of attacking parliamentarians and murdering them. Once the offence had been proved in a fair trial there is no sentence which could be awarded to him other than death because this case went beyond the rarest of rare cases and jeopardised the governance itself. Suppose the conspiracy had been successful and several hundreds of parliamentarians had been killed would the President have had any other option but to declare a state of Emergency under Article 352 of the Constitution, thus temporarily establishing authoritarian rule in the country in order to tide over the crisis?

The seriousness of the offence is such that for BJP to demand that the sentence of death be carried out without any delay is fully justified. If anything, it is the UPA government headed by the Congress Party, which could be accused of playing politics by delaying the decision on the mercy petition of Afzal Guru. Chapters XXVII and XXVIII, Cr.P.C. give trial courts the exclusive right to deliver judgment in a criminal trial and to the High Court to confirm a death sentence There is provision of appeal, remission and review, but that is all within the judicial system. Sections 432 and 435, Cr.P.C. give the State Governments and Central Government the power to suspend, remit or commute the sentence of a person convicted of an offence. In this, however, the opinion of the presiding judge of the court which convicted the offender should be sought, which means that the right of suspension, remission or commutation of sentence given to the appropriate government by Chapter. XXXII, Part E has to be exercised judiciously. Government cannot be capricious in this behalf. In addition to the provisions of the Code of Criminal Procedure we have Article 72 of the Constitution in which the President has the power to grant pardon and to suspend, remit or commute a sentence in certain cases. These relate to punishment awarded by a court martial, by a court in a case under a law relating to a matter to which the executive power of the Union extends and in all cases where the sentence is death. Under Article 161 the Governor of a State has similar powers in a matter to which the executive power of the State extends. Let it be clearly understood that this power, whether under the Code of Criminal Procedure or under the Constitution, would be in exercise of an executive function and not a judicial function, despite the fact that the power has to be exercised judiciously.

The scheme of the Indian Constitution clearly divides the State into three separate but equal constituents, the Executive, the Legislature and the Judiciary. Undoubtedly the Constitution also provides for the points of contact between the three organs of the State, but essentially the investigation of criminal offences is an executive function performed by the Police. The trial, conviction or acquittal which follows investigation are purely judicial functions. Chapter II, Cr.P.C. constitutes criminal courts in which under the High Court there are the courts of session and the courts of Judicial Magistrates. In addition there are the courts of Executive Magistrates. Under Chapter III, Cr. P.C. a court of session can try any class of cases and pass any sentence, including death, subject to confirmation of a death sentence by the High Court. A Judicial Magistrate, First Class can try a case and award a sentence of upto three years of imprisonment, with a Chief Judicial Magistrate or a Chief Metropolitan Magistrate having the power to pass a sentence upto seven years of imprisonment. No executive authority has the power to try cases which fall within the jurisdiction of the Judiciary. Functions exercisable by an Executive Magistrate are generally confined to administrative or executive matters, except in certain States and Union Territories in which the Act makes a special provision.

In the normal course of things it is for a judge or magistrate to decide whether the prosecution has succeeded in proving its case beyond any reasonable doubt that the accused has not been able to counter this and that on the basis of evidence the accused should be convicted and sentenced. In this the executive has no role to play and certainly the provisions of Cr.P.C. and the Constitution about remission, etc., of sentences have to be read in the context of the role of the judiciary in determining the guilt or otherwise of a person accused of a crime. I am prepared to concede, though reluctantly, that there may be some rare circumstances which could not be taken into consideration in a judicial trial but which may, at some later stage, merit an executive decision about holding a person prisoner or not, but that has to be truly rare, exceptional and based on arguments and evidence which both are irrefutable. A person convicted of a heinous offence and given the death penalty may have a commutation of sentence if, for example, government is contemplating legislation on the abolition of death penalty itself. Sometimes the relations between two sovereign States may call for reconsideration of a sentence awarded to a convicted person. Such instances, however, would be extraordinary and certainly the exercise of executive power in this behalf cannot be done in order to negate or reverse a judicial decision. Normally the decisions of the courts have to be considered as final and the executive should have nothing whatsoever to do with the quantum of punishment awarded by a court.

Neither the Code of Criminal Procedure nor the Constitution lay down any time limit for processing of a mercy petition. In fact under Chapter XXXII of Cr.P.C. the execution of a sentence is, in the case of sentence of death, the responsibility of the Court of Session which will issue a warrant of execution after all due process of law has been exhausted by the accused and the sentence is confirmed by the High Court and, if there is an appeal, by the Supreme Court. If there is levy of fine the court may issue a warrant to the Collector of the district, who will then be authorised to recover the fine as an arrear of land revenue. Under section 425 Cr.P.C. for every other sentence the warrant of execution will be issued by the judge or magistrate who passed the sentence. A convicted person may make an application under section 432 Cr.P.C. to the appropriate government for suspension or remission of sentence and the government will then by general rules or special orders deal with the matter. One presumes that a similar procedure would apply in the case of exercise the power by the President under Article 72 of the Constitution and by the Governor under Article 161.

Unfortunately at present there is no legal provision about the time limit within which any application made in this behalf may be disposed of, which is why government takes its own sweet time in deciding such matters. In the absence of general or special orders, or rules framed in this behalf, government can and does act arbitrarily in deciding such matters. This has been evidenced in the case of all those persons who face the death penalty, which has not been executed as yet. The entire process of trial is judicial and is prescribed by law. Should not a post trial power also be governed by law? Can a judicial process be reversed or adversely affected by executive action or lack thereof? These are very important questions of law and must be answered, perhaps by the Supreme Court.

The Eight Amendment of the Constitution of the United States reads as follows:- “ Excessive bail shall not be required, nor excessive fine imposed, nor cruel and unusual punishment inflicted”. This means that the medieval punishments of being sawn in half, impalement, being hung, drawn and quartered or being crushed beneath the foot of an elephant cannot be given in the United States. In India Article 21 of the Constitution which guarantees life and liberty except through due process of law can also be read as the equivalent of the Eighth Amendment of the American Constitution. The Preamble of the Constitution which calls upon our republic to secure for all citizen fraternity assuring the dignity of the individual also rules out all cruel or unusual punishment. But cruelty need not be only physical, because mental cruelty can sometimes be more harsh than the purely physical. Imagine how a person sentenced to death must feel when he is awaiting execution of sentence. Every day when he wakes up he must wonder whether he will see another day and in such conditions he must die a little every day. It is unfair to keep a person hanging under the sword of execution. Let the judicial process be totally fair, as it is in India, let the courts be extremely conservative in awarding the death penalty, but once it is awarded let the process of appeal be fast and if an executive decision is for commutation or pardon, let that come within the shortest time possible after the judicial process if completed. There is no reason why it should take more than three months for the President or Governor to receive the advice of the Council of Ministers and to take a decision in the matter. If a man is to die let him die quickly, if he is to live let this be communicated quickly. It is my submission that any delay in this matter is tantamount to cruelty. If a convicted criminal has the right to dignity as an individual he should not be mentally tortured when awaiting execution.

It is alleged and widely believed that Afzal Guru’s execution was delayed partly because there was fear of reaction in the Kashmir Valley, but partly because the ruling party was playing politics on whether Afzal Guru should live or die and what should be the appropriate time for taking a decision in this behalf. There is a school of thought that till the Congress Party saw the emerging and looming shadow of a revitalised BJP, which was demanding swift justice, it did not act. Perhaps the unfortunate remarks of the Home Minister about saffron terror caused some tremors in the Congress because it feared that this could have an electoral backlash because Hindus would be annoyed at such a tactless remark. Perhaps the ruling party thought that its anti terrorism credentials were under threat and that it should show itself as a strong party by executing Ajmal Kasab and Afzal Guru. This has only raised further questions about why the assassins of Rajiv Gandhi and of Beant Singh have not been executed. My unhappiness abut this whole episode is that Afzal Guru was a living human being and entitled to the dignity which the Preamble predicates. He did a criminal act of which he was found guilty and for which he has paid the ultimate price. The tragedy is that people feel that he was made a pawn on the chess board of politics as played by the Congress Party. No one, not even the worst of convicted criminals, can have his life depending upon what suits a party in power at a particular time. His conviction was justified, as was his death. What is not justified was the manner in which the execution was decided on, not because of his guilt but because it suited government to take action. This has left a dirty taste in one’s mouth.

Integrity and Ethics in the Civil Service

Dr M N Buch 

(Visiting Fellow, VIF)

In order to understand the topic of this paper perhaps it would be best to have clearly before us the definition of the issues we are addressing. For this purpose resort was had to the new Oxford Dictionary of English. There are four words whose definition I sought and they are ethics, integrity, honest and moral. The dictionary definitions are as under:

1. Ethics – Moral principles that govern a person’s behaviour or the conduct of an activity.
2. Integrity – The quality of being honest and having strong moral principles
3. Honest – Free of deceit and untruthfulness; sincere
4. Moral – Concerned with the principles of right and wrong behaviour

It might be noticed that none of these four words mention legal, lawful, according to rules, etc. All four relate to a person’s own principles, his respect for truth and his own innate judgment of his own conduct which keeps him on the path of right behaviour. He is expected to do this regardless of what the law says, out of his own conviction and free of the pressure of either his peers or his superiors watching him and then pulling him up for wrongful behaviour. Ethics and integrity, therefore, have to come from within and cannot be superimposed. To help a person to behave ethically we have laws, codes of conduct, systems of checks and a standard of what is acceptable to society, but these by themselves cannot create morality, uprightness, honesty or ethical behaviour. That has to come from within the individual.

In discovering ethics where does the theory of the Social Contract, whether as enunciated by Thomas Hobbes or proclaimed by Jean-Jacques Rousseau, stand? Is man by nature ethical or do circumstances make him ethical? Hobbes had a very poor opinion of the state of nature. According to Hobbes unless there was a coercive power to ensure the basic security upon which political, sociable, civilised life depends, there would be, “… no place for Industry…; no Navigation…; no Arts; no Letters; and which is worst of all, continual fear, and danger of violent death; And the life of man, solitary, poor, nasty, brutish, and short”. In other words, without strong government there would be virtually the law of the jungle and life would be worthless.

Rousseau, on the other hand, was a humanist. He recognised that man was no longer living in an absolute state of nature and, therefore, we do need civil society in order to create a social contract. This is how he puts it, “The passage from the state of nature to the civil state produces a very remarkable change in man, by substituting justice for instinct in his conduct and giving his actions the morality they had formerly lacked. Then only, when the voice of duty takes the place of physical impulses and right of appetite, does man, who so far had concerned only himself, find that he is forced to act on different principles and to consult his reason before listening to his inclinations”. (Discourses on the Arts and Sciences). This is followed up by his most famous pronouncement as given in his article, Discourse on Political Economy. The opening lines of the treatise are, “Man is born free and everywhere he is in chains. Those who think themselves the masters of others are indeed greater slaves than they”. Rousseau was the philosopher of the democratic state and Hobbes of the authoritarian state. In both, however, there is an underlying streak of similarity in that both recognise that orderliness in society is vital and the bounds which, by giving freedom of action and thought, also prescribe the limits whereby the exercise of one man’s freedom does not impinge on the freedom of someone else, are of the essence. This, then, is the real social contract and in a democracy this is the contract according to which the State must exist and its servants must function. In other words, together with ethics which guide the conduct of every civil servant there is also the social contract which binds civil society, of which the officials are both the servants and functionaries.

In 1957, that is, just ten years after India became independent I joined the Indian Administrative Service and became both a part of civil society and a functionary whose job was to ensure that society remained civil. If we adopt the reductio ad absurdum method of deducing what is expected of a civil servant we would come to the following conclusions.

1. An unrepentant and unreformed criminal cannot provide us with a crime free society.
2. We must have the Magistracy and the Police to ensure law and order, prevent, detect and prosecute crimes and to create an environment of security in which citizens can go about their lawful business peacefully.
3. If a criminal cannot ensure law and order and freedom from crime and this duty devolves on the Police, then by definition the Police has to be a servant of the law and because most laws are based on sound moral principles, a policeman cannot afford to behave dishonestly, immorally, without integrity and ethics which, therefore, are built into the police and into every individual policeman. Ethics and integrity, therefore, should be as natural to a policeman as is breathing.
4. A democratic state is required to function justly and to ensure to its citizens good government, equal protection of laws and to establish a social order which promotes their welfare. The Preamble to the Constitution which states that the republic will provide social, economic and political justice, the liberty of thought, expression, belief, faith and worship, equality of status and opportunity and promote fraternity mandates that the State and its functionaries will act with integrity and ethics because a dishonest or unethical State or civil servant cannot promote any of the basic principles laid down in the Preamble. Article 14 mandates equality before law and equal protection of laws within the territory of India. This equality is not restricted to Indian citizens only and would be enjoyed by every single person residing within the territory of India. How can an unethical State functionary ensure equality? Article 38 of the Constitution requires the State to secure a social order for the promotion of welfare of the people. Immoral behaviour by public servants will invariably be inimical to the welfare of the people and, therefore, Article 38 makes it mandatory for public servants to behave ethically. I have referred to these three provisions of the Constitution especially because according to me the Constitution demands that there will be ethical behaviour and total integrity on the part of public servants.

The scheme of government in India is that the Constitution provides for separation of the three constituents of the Indian State, the Executive, the Legislature and the Judiciary. These organs do not operate in a vacuum or in watertight compartments and obviously there is interaction at different levels. However, this is not an essay on separation of powers and I shall leave aside that argument here. The organ of the State which interacts on a day-today basis with the citizens is the Executive. There is the President in whom all executive powers vest, but who is required to exercise this power through officers subordinate to him and, in exercising these powers, he is constitutionally required to go by the aid and advice of the Council of Ministers. The Council of Ministers consists of Members of Parliament appointed by the President on the advice of the Prime Minister and constitutionally the Council is collectively responsible to the House of the People. India being a representative democracy, Parliament represents all the people of India and because the Council of Ministers is accountable to the House of the People its members are, through Parliament, accountable to all the citizens of India. In other words, the Ministers, too, are bound to respect the social contract in which civil society appoints them and they, in turn, serve the civil society with integrity. The civil servants, who help the President to exercise executive power on the aid and advice of the Council of Ministers, are also expected to adhere to the same code of ethics and of integrity as would be applicable to a Minister, only more so. The Council takes policy decisions on the basis of the mandate of the electorate, the ideology of the party to which its member belongs and the programme given by the party in its manifesto at the time of the election, subject to such decisions being within the framework of law. There will be political bias in such decision making, but that has to terminate at the level of policy. Implementation is the responsibility of the civil servants and they are totally precluded from allowing any political bias to qualify their judgement when implementing policy. Article 14 of the Constitution specifically prohibits civil servants from denying equality to any citizen and, therefore, in implementation of policy the civil servant is required to be totally fair and without prejudice. He will be guided by the policy, by the law, by the rules and by his much higher accountability to the principles of integrity and ethical behaviour.

I served the Indian Administrative Service for twenty-eight years and I left eight years before my date of superannuation. I left the Service on an issue where I totally disagreed with the Chief Minister because I was convinced that he wanted me to do something which was contrary to law and I, therefore, appreciate the kind of pressure put on civil servants to do things which a politician feels would be beneficial to him, even though it is ethically wrong and legally untenable. After all we are living in an environment in which after 1967 defections were engineered through bribery in order to gain power. This has corrupted our polity almost beyond repair, in which the politician tries to subvert the State in order to get the money to buy and retain power and, for this purpose, to tame the civil servants first into submission and then into acting as the provider of illicit funds. Civil servants who resist this are side-tracked, browbeaten, humiliated and worse and it becomes difficult for them to resist or to follow a higher code of ethics. Many civil servants have succumbed and there are several who have both become willing partners and the instigators of corrupt practices which would benefit both the politician and the civil servant. This is in an unenviable situation for civil servants who are under pressure to do things which are neither honest nor ethical. Prior to 1967 it was easy for us to practice both honesty and ethics because the politicians would not pressurise us to do something which they knew we would not do and had they done so, we ourselves would reject that which was unacceptable. After 1967 the politician has not listened to either to the voice of reason or to the voice of morality. Does that release civil servants from their bounden duty to follow the principles of integrity and ethics?

When I am in doubt I refer to the Constitution, a practice I would commend to all civil servants. Because Articles 53 and 154 vest the executive power of the Union and the States in the President and the Governor respectively because the power is required to be exercised by the officers subordinate to the President or the Governor and because these officers together constitute the Civil Service, the Executive is divided into two equal parts. The first consists of the Council of Ministers who are elected members of the Legislature and on whose aid and advice the President or Governor would be required to take executive decisions. This part of the Executive, the Council of Ministers, would be the elected executive. Because the elected Executive is required to function through civil servants the Civil Service would be the permanent part of the Executive. This part of the Executive does not exist at the mercy of the political executive. Part XIV of the Constitution provides for the Civil Services, including recruitment through the Public Service Commission, guarantees against arbitrariness under Article 311 and the very special provisions under Article 312 for All India Services appointed by the President, under the ultimate rule making control of the Central Government but constituted into State Cadres for serving both the Centre and the State at senior levels. The permanent part of the Executive, therefore, has an independent existence under constitutional guarantee and, therefore, the Civil Service is not permitted to quote the orders of superiors as an excuse for wrongdoing. After Second World War during the Nuremberg Trials the War Crimes Tribunal ruled that there was a higher ethical responsibility which required public servants to disobey orders which were crimes against humanity and, therefore, the orders of superiors could not be offered as justification for war crimes. This principle is actually enshrined in our Constitution because it is the only Constitution in the world which provides this kind of protection to the Civil Service. No other Constitution has the equivalent of Article 311, which provides almost total immunity against arbitrary behaviour of the political executive. The Civil Services in India can never be forgiven for unethical behaviour or for deviation from integrity because the constitutional guarantees presuppose that they will be honest. If they are not they cannot expect constitutional protection.

How has the system actually functioned? By and large where the Congress or the BJP have ruled or where the Left Front has been in power, the Civil Services have been under pressure but not of the type which would break their morale. Where governments have fallen through defection and where regional parties have ruled, the Civil Services have been under immense pressure, partially because politicians are corrupt and partially because they need to corrupt other politicians so that they themselves can retain power. There has also been an attempt to marginalise the Civil Service, not through legal devolution of powers to local government but through a method of working whereby the civil servants are humiliated, muzzled and prevented from doing their duty impartially. Because civil servants themselves are human many have succumbed to pressure, in clear violation of their duty under the Constitution and their accountability to a much higher code of integrity and ethical behaviour. The worst culprits are the All India Services which, despite the escape route available to them of central deputation or the ultimate protection of the Central government, have gone along with politicians who practice a very low kind of politics. How can such officials ever be forgiven? My personal view is that the All India Services have sunk to such a depth that we need drastic action in order to bring them back on the rails. I have expressed the view more than once that we need to publicly hang ten percent of the most corrupt IAS and IPS officers and dismiss another fifty percent of those who do not enjoy a well earned reputation for integrity. This would leave behind a Spartan elite who would together constitute the best Civil Service in the world. Somebody cynically pointed out to me that considering how the system works in India we would probably hang ten percent of the innocent, dismiss another fifty percent who are honest and what would be left would be a group of criminals who would govern this country. The fact remains, however, that laws, rules, the Constitution, peer pressure, fear of punishment apart, the Civil Service has to remind itself whether integrity and ethics should not govern its behaviour. Being ethical sometimes brings unpleasant moments, but the sheer sense of satisfaction and pride one gets on gaining a public reputation for integrity is compensation enough.

Perhaps I have excessively emphasised the negative aspects of integrity and ethics. There is a very positive side to it also. An officer’s reputation is made in the first two years of service if he shows himself to be keen to learn the nuts and bolts of his job, if he insists from the beginning on living within his means and not taking the petty favours that almost automatically come to government officers, if he is open and available to people, he is at all times polite but firm and if his attitude is one of helping people rather than obstructing them, he will be respected by the people. If he is even handed he will be looked upon as just. If he refuses to be swayed from the path of correctness politicians will also begin to respect him. They may not like him but they would also know that they cannot pressurise him. Every politician is not bad and since they all have to depend on grass-root support most of them do speak for their constituency and have a right to be heard positively. Let me give an example. In Ujjain where I was Collector forty-seven years ago, we had the only CPI (M) MLA in Madhya Pradesh, Bhairav Bharti. He was in opposition, he could be awkward and difficult, but he was dead honest and he knew his constituency like back of his hand. Despite being a gadfly for the administration I liked him and we had a cordial relationship. One day he came to me to report that there had been an incident in his village, Bhatisuda, in which nine people had been killed and sixteen were arrested. He wanted me to do something to restore normalcy. The next day I went to Bhatisuda with Bhairav Bharti and could sense the tense environment. I went to the site of the incident, which was located in some fields almost on the village boundary. It seems that the cattle of one party would go along the field bunds of the other party’s land in order to reach a pasture on the village boundary. The field owners objected to this because they felt that the cattle caused damage to the crops. The wajib-ul-arz, or the record of customary rights of the villagers, permitted people to use field bunds to move around. Therefore, when the field owners stopped the movement of cattle the cattle owners became annoyed, a fracas developed and nine of the field owners were killed. Sixteen of the cattle owners were in custody on a murder charge. I asked the villagers whether anyone could object to cattle coming up to where we stood and they said that because this is a village road no one could object. When I asked whether there would be any objection if the village road went up to the pasture at the village boundary, they said that this was perfectly in order because anyone could use a public road. I then ordered the Patwari to measure off a twenty feet width of land up to the village boundary and directed that the land stood acquired by the State. I then told the cattle owners to pay as compensation an amount, fixed by me then and there to the field owners whose land was being converted into a public road. This was done, the land records were amended and the cause of the quarrel eliminated. Suddenly the environment changed and Bhairav Bharti told me that I could not leave the village till I feasted with everyone and that so long as I headed the district he would never oppose me. He kept his word. I also persuaded the police to reduce the charge from murder to culpable homicide not amounting to murder, which meant that the arrested person could be bailed out by the Court of Session. Bhairav Bharti became a friend for life.

Another example is of the then Chief Minister Shyama Charan Shukla, wanting to extend nistar facilities (timber, bamboo, etc. given to villagers virtually free of cost as a matter of right) to the villagers in seventeen non forest districts where they were not so entitled. Because this would benefit the farmers I readily agreed in my capacity as Secretary of the Environment Group of Departments, which included Forests. He asked me how soon we could start supplying forest produce to these districts and I told him that our first lorries could move the next morning. It was my duty to implement this pro people policy of the Chief Minister and our first vehicles left our forest depots with material for these seventeen districts the next morning. I then sent a note to the Chief Minister through the Chief Secretary stating what action I had taken and requesting an appropriate change in the Nistar policy which would extend Nistar facilities to non forest districts, asking for a contingency fund advance of rupees five cores to cover initial costs and submitting that I could not immediately give a budget estimate for supplementary grants because that had to be worked out and that all this was being done without consulting the Finance Department. The Chief Secretary recommended my suspension for violating every norm of financial and official propriety and procedure. The file returned from the Chief Minister with the following remarks; “There is no question of suspending Buch for the initiative shown by him. In fact I want this file to be circulated to all Secretaries as a model of how a Secretary to Government should implement the welfare oriented orders of the Chief Minister. The Nistar policy is hereby amended as required by Buch, the contingency fund advance of rupees five crores is sanctioned, the Forest Department may submit a proposal for a supplementary grant in due course and all this is done in anticipation of orders in council”. I mention this case as a pointer to how a civil servant should work to promote welfare. Had Shyama Charan Shukla asked me to give a businessman or industrialist free timber I would not have obeyed him even if he had hung himself upside down. A civil servant, whilst adhering to the highest code of integrity and ethics, must still rapidly implement a welfare policy and not act as an obstructionist. Obstructionism is itself a deviation from both integrity and ethics because it prevents government from performing its primary task of delivering welfare to the people. Ultimately integrity, ethics, decisiveness all come from motivation and if an officer is correctly motivated to serve the people, then he is bound to be honest and ethical.

Let me end with a story. I spent the whole of 1980 without a post in Delhi after I had been thrown out of DDA. I very often went to the India International Centre, a haven for people who had temporarily fallen foul of government and desperately needed a place where one could think, discuss and write. I had illustrious companions such as Ved Marwah, Jagdish Jetli and Hari Pillai for company. One day I had walked to the Centre from my house in Teen Murti Lane and when I came out of the library to walk back home I found it was raining. At the gate was a Sikh auto rickshaw driver who agreed to take me home. He did not ask for and I did not tell him my destination but he still took me home to 18, Teen Murti Lane. He then refused to accept any fare from me. On being asked why he said, “You do not remember me but I had come to see you in DDA. I had registered for a house which I should have been allotted years ago but despite my wearing out several pairs of shoes I got no remedy. One day I came to Vikas Minar and found no guards, no security personnel. I entered the office building and asked someone where I could meet the Head. I was told to go to the fifth floor and your name plate was at the door. I asked the orderly how I could meet you and to my surprise he told me to open the door and walk in. You were doing some work and asked me to sit down. After you finished the file you asked me my problem. I, a mere auto rickshaw driver, was not only heard but the Housing Commissioner was sent for and two hours later I walked out with my allotment order and my occupation order. I can never forget my debt of gratitude to you and will never take any fare from you”. What had I actually done for this man except to hear him and give him what was due to him? His accolade was my Bharat Ratna. I narrate this story because if civil servants follow the path of integrity and ethics each one of them would earn a similar Bharat Ratna.