Nehru, The Public Sector And The Modern Economy

Dr M N Buch, 

Dean, Centre for Governance and Political Studies, VIF

When India became independent in 1947 it inherited a system of government which even today holds good. The basics of democracy and parliamentary government, separation of powers which gave the judiciary total autonomy in its own sphere, disciplined Armed Forces totally under civilian control, an organised and independent Civil Service and the rule of law are the positive legacy the British left us and it would be churlish not to acknowledge this. It would be equally silly on our part if we did not praise our leadership which readily accepted what was good and then nurtured these institutions. On the negative side, however, the British left us an economy which was quite rudimentary and where the infrastructure was almost infantile. Only about 5000 of our towns and villages were electrified, we had virtually no capital goods industry and in many ways we were a poor and primitive country.

Nehru was a man in a hurry to create the structure of a Modern State and a strong and forward looking economy. Power, transportation, healthcare, education, science and technology, our cultural heritage, participative rural development -- there was hardly any sector which Nehru did not cover. Parallel to the normal governmental administration was created a development administration to service the new Community Development Programme. The Civil Service was re-oriented to administer in the public interest rather than to merely rule. Nehru called for the building of the New Temples of a resurgent India, including huge dams for irrigation and hydel power, large thermal and hydro based power stations, steel plants, aluminium plants, copper and zinc plants, transportation systems, reinvigorated agriculture and educational institutions like the Indian Institutes of Technology, Indian Institutes of Management, the Indian School of Mines, massive Agriculture Universities, the All India Institute of Medical Sciences and the public sector which glavanised and synergised the economy.

Nehru was Prime Minister for seventeen years, a long tenure for the Prime Minister, but a very short episode in a country’s history. Twelve of these years can be called the core years because that is when the sinews of a strong economy and a modern nation were built. One can think of no comparable example, not even in the Soviet Union, of a country on the move in which Bhakra-Nangal, Hirakud, Chambal were built, Bhilai, Rourkela and Durgapur steel plants made operational, five IIsT and four IIsM, Punjab Agriculture University and the G. B. Pant Agriculture University were set up and India started making modern cars, aircraft and warships. If Modi can achieve even a fraction of this in the single matter of purifying the Ganga that would be praiseworthy. In the matter of Nehru’s achievements, I would rate them as miraculous.

Nehru is called a radical socialist whose development model was the Soviet system of planning. Nehru, by birth, was definitely upper class, apart from being a Brahmin who claimed to be agnostic, if not an atheist, but who retained his Brahmin intellectual mindset till the end. He was neither doctrinaire Marxist nor radical socialist. If anything he could be called a Fabian Socialist of the London School of Economics brand. He could never be a Stalinist dictator because he was a democrat who believed in the British style of parliamentary democracy. He opted for a planned economy not because he was a hardcore believer in dialectical materialism but because he had no other option. To modernise, India needed massive investment of capital. The private sector was not organised for this, did not have a scale large enough and in any case was too mercantile to believe in long term investment in long gestation projects. It is only the State which could encourage capital formation and, therefore, Nehru used the State to drive our economy. The private sector was not discouraged but it is the State which grabbed the initiative. The sheer speed of the transformation of the economy leaves us breathless even today.

The Nehruvian model can be tracked back even to the example of Japan at the time of the Meiji Revolution in the late nineteenth century. After Commodore Parry proved to Japan that a society mired in the science and technology of the medieval era was no match for a modern State, Japan decided to eliminate the Shogunate and go in for rapid modernisation. The State took the initiative in everything, including modernisation of the education system, the sending of young students abroad to learn modern science and technology, set up modern industry and build an economy which could catch up with the western world. The success of the modernisation drive can be gauged by the fact that in 1905 the Japanese Navy soundly defeated the dreadnoughts of the Imperial Russian Navy and proved that the new Japan was more than a match for any nation in the world.

The Japanese are a pragmatic people and they realised that having kick-started the economy the State could not be involved in micro managing it. The Japanese were fortunate to have great trading houses, the Zaibatsu, who could be brought in to take over the management of the newly established industries and then become the driving force of the economy as Japan jumped from the middle ages to the twentieth century. By the State intervening when it was necessary and pulling out when private enterprise could take over Japan became a great economic and military power. After Second World War Japan demilitarised itself, but it remained one of the most influential economic powers in the world, which it is even today. In India, unfortunately, after its initial virtual explosion of energy the public sector continued to dominate the economy, firstly because of its size, secondly because it was a part of the politico administrative system and thirdly because financial and other self interests, including patronage, became firmly entrenched and neither the politician, nor the bureaucrat, nor the public sector manager wanted the system to change. We blame Nehru for the inefficiency of the public sector, but we forget that Nehru died in 1964, at which time the public sector was still efficient. He chose his people carefully, including S.N. Mehta to build Bhilai, Harvey Slocum to build Bhakra-Nangal and P.N. Thapar and P.L. Verma to build Chandigarh. N. Dandekar created the Shipping Corporation of India and JRD Tata was persuaded to continue to head Air India even after it had been nationalised. The political rot which set in after Nehru’s death and the political takeover of the public sector as a source of patronage and corruption cannot be blamed on Nehru, which fact today’s Nehru bashers should keep in mind.

The highly westernised Kashmiri Pandit was the choice of that ascetic, Mahatma Gandhi, as the leader of independent India. The Mahatma recognised that if India was to retain and strengthen its secular democracy, if India was to modernise its economy, Nehru was the right choice as Prime Minister. People point to the 1962 Chinese invasion and the somewhat ill-advised offer of a plebiscite in Kashmir as two examples of Nehru’s weakness. Without going into the merit of this particular argument, can the trust reposed by a person in someone whom he considers a friend necessarily be a weakness? In any case if the Chinese had not invaded in 1962 Krishna Menon would have continued to be the Defence Minister, our armed forces would have been reduced to a laughing stock and we would have been hammered by Pakistan in 1965. The 1962 drubbing at the hands of the Chinese actually revived our armed forces, depoliticised them and made them a formidable fighting force. Anyway, trusting China and offering a plebiscite in Kashmir were Nehru’s weak spots, but the very fallibility of the man only strengthened his greatness as a person who could put India before his own self. Sometimes a weakness can also be a strength. Nehru was a total person and he has to be taken as a whole, individual mistakes notwithstanding, the subsequent degeneration of the public sector because of our own rigidities and cupidity of our leaders notwithstanding, Nehru followed the best path available to him to build India’s economy and he has to be given credit for the strengthening of our secular democracy and the modernisation of the Indian State.

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Published Date: 15^th April 2015, Image Source: http://www.walkthroughindia.com

The Governor, the Constitution and the Courts

Dr M N Buch 

(Visiting Fellow, VIF)

The Supreme Court of India, in a Division Bench consisting of Dr. Justice B.S. Chauhan and Mr. Justice Fakkir Mohammed Ibrahim Kalifulla, has disposed of a civil appeal filed by the State of GujaratVs. Hon’ble Justice R.A. Mehta on the question of appointment of the Lokayukta in the State of Gujarat. The sequence of events as narrated in the judgment is:-

Under the Gujarat Lokayukta Act 1986 the Governor appoints the Lokayukta as per the procedure given in the Act. As per the procedure, as stated by the Supreme Court, the Chief Minister, in consultation with the Chief Justice of the Gujarat High Court and the Leader of Opposition makes a recommendation to the Governor, on the basis of which the appointment is made.

The post fell vacant on 24.11.2003 and remained so for about three years. In August 2006 the Chief Minister wrote to the Chief Justice, suggesting the name of Justice K.R. Vyas. The Chief Justice concurred and the matter was sent to the Governor, who sat on it for the next three years.

In December 2009 the Secretary to the Governor requested the Registrar General of the High Court to obtain a panel of names from the Chief Justice for consideration of the Governor. About two months later the Chief Minister wrote a similar letter to the Chief Justice, who replied almost immediately suggesting the names of four retired judges.

The Chief Minister tried to consult the Leader of Opposition, who replied that the Chief Minister had no power to consult him, especially because the Governor had already initiated the process and the Chief Minister had no locus standi.

During this period the Gujarat Council of Ministers met and recommended the name of Justice J.R. Vora (retired) for appointment as Lokayukta. This suggestion was forwarded to the Governor, who again sat on it.

The Governor sought the opinion of the Attorney General about the process of consultation. He also wrote to the Chief Justice asking which of two retired judges, Justice R.P Dholakia and Justice J.R. Vora, the Chief Justice preferred.

The Attorney General opined that the Chief Justice need not suggest a panel but only one name. The Chief Justice communicated his preference for Justice R.P. Dholakia, but on the insistence of the Governor he recommended the name of Justice S.D.Dave (retired) because Justice J.R. Vora had been appointed elsewhere. Meanwhile the Chief Minister wrote to the Governor again stating that his recommendation about Justice JR Vora stood as the Hon’ble Judge had expressed willingness to be considered for the post of Lokayukta.

The Chief Justice now recommended the name of Justice R.A. Mehta (retired). The Chief Minister, on 16.6.2011, requested the Chief Justice to reconsider his recommendation because Justice Mehta was above seventy-five years of age and was also associated with NGOs and organisations known for antagonism against the State Government. The Chief Justice rejected this contention of the Chief Minister and again recommended the name of Justice R.A. Mehta. The Leader of Opposition said that he had been consulted by the Governor and approved the appointment of Justice R.A. Mehta. On 25.8.2011 the Governor issued the warrant of appointment.

I have narrated the sequence of events at length because this is a clear-cut case of all the players, but especially Governor of Gujarat, deliberately playing games according to their own set of rules and their own political agenda. For three years between 2003 and 2006 the State Government did not initiate the appointment of the successor of Justice S.M. Soni. Thereafter the Governor sat on the file for three whole years. The Governor then bypassed the Chief Minister and entered into direct correspondence with the Chief Justice and the Leader of Opposition. The Governor also chose to completely ignore the advice of the Council of Ministers and kept the Chief Minister out of the loop for appointment of the Lokayukta. The whole issue, therefore, boils down to whether the Constitution of India permits this and whether the Gujarat Lokayukta Act 1986 can permit the government to act otherwise than on the aid and advice of his Council of Ministers mandated by Article 163 of the Constitution.

In paragraph 74 of the judgment, which gives the conclusions, the Hon’ble Supreme Court has very rightly pointed out that for nine years the post of Lokayukta lay vacant because only half-hearted attempts were made to fill the post. Regarding the Governor, the Hon’ble Court has said, “The present Governor misjudged her role and has insisted that, under the Act, 1986, the Council of Ministers has no role to play in the appointment of the Lokayukta and that she could, therefore, fill it up in consultation with the Chief Justice of the Gujarat High Court and the Leader of Opposition. Such an attitude is not in conformity or in consonance with the democratic set up of government envisaged in our Constitution. Under the scheme of our Constitution the Governor is synonymous with the State Government and can take independent decisions upon his or her discretion only when he or she acts as a statutory authority under a particular Act, or under the exceptions provided in the Constitution itself. Therefore, the appointment of Lokayukta can be made by the Governor, as Head of State, only with the aid and advice of the Council of Ministers and not independently as a statutory authority”. This statement alone should have been enough for the Supreme Court to have accepted the appeal of the Government of Gujarat and set aside the appointment of Mr. Justice R.A. Mehta. However, the Supreme Court, in its wisdom, has chosen fit to rule that the Governor was wrongly advised that she could ignore the Council of Ministers, but because of the facts in this particular case, the Chief Minister was aware of the circumstances and, therefore, giving primacy to the opinion of the Chief Justice was perfectly in order. This meant that the process of consultation stood complete and the appointment of Justice R.A. Mehta could not be considered illegal.

Under Article 141 of the Constitution every judgment of the Supreme Court is a law declared by it and, therefore, is binding and must be respected by all. I accept this proposition and respect the decision of the Supreme Court in the instant case. The question remains whether this is the final say in the matter of the powers of the Governor and his constitutional position vis-à-vis the Council of Ministers. With utmost respect to the learned Hon’ble Judges who constituted the Bench, perhaps this matter should have gone to a larger Bench, preferably a Full Bench, not on facts but because a very important question of constitutional law was involved. In this behalf I would like to point out that the Gujarat Lokayukta Act 1986 is one of the worst drafted pieces of legislation it has been my misfortune to come across. Under section 3 the Governor is the appointing authority for appointment of the Lokayukta. Such appointment is to be made after consultation with the Chief Justice of the Gujarat High Court and the Leader of Opposition in the State Vidhan Sabha. In the entire Act the Chief Minister and the Council of Ministers and the Gujarat Government are not mentioned. Under these circumstances could it be interpreted that the Governor has to consult only the Chief Justice and the Leader of Opposition and that the Chief Minister has no role to play? For this purpose we shall have to go to the Constitution itself. Article 124 (2) reads, “Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years: Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted”. Under Article 217 these provisions apply mutatis mutandis to the appointment of Judges of a High Court. Can the President, in view of the wording of Article 124, ignore the Prime Minister and the Council of Ministers in the matter of appointment of Judges? Under Article 217 in the matter of appointment of a Judge of a High Court the President is required to consult the Governor of the State also. Can the Governor make a recommendation to the President without the aid and advice of his Council of Ministers?

In order to answer the above question recourse must be had to Articles 74 and 163 of the Constitution. Under Article 74 the President shall, in exercise of his functions, act in accordance with the advice of the Council of Ministers. The provisions of Article 163 are similar. Except only where the Constitution requires the Governor to perform his functions at his discretion he, too, is required to perform his functions on the aid and advice of the Council of Ministers. An Act of the Legislature, such as the Gujarat Lokayukta Act, cannot negate these provisions of the Constitution. Despite the fact that the Gujarat Lokayukta Act does not mention the government, the Chief Minister, or the Council of Ministers, the Governor cannot act otherwise than on the advice of the Council of Ministers unless the Constitution itself requires him to act independently.

In what cases can the Governor act at his own discretion? Under Article 75, whereas the Members of the Council of Ministers are appointed by the President on the advice of the Prime Minister, he has discretion in the matter of appointment of the Prime Minister. Article 164 has similar provisions regarding the Governor and the Chief Minister. However, because under Article 75 (3) and 163 (2) the Council of Ministers is collectively responsible to the House of the People and the Legislative Assembly respectively, the President or Governor would obviously invite only that person to be Prime Minister or Chief Minister who enjoys the confidence of the House. The only discretion that the President and Governor enjoy is in how best to determine who enjoys the confidence of the House. The President and the Governor having sworn an oath to preserve, protect and defend the Constitution, would obviously reject any advice from the Council of Ministers which calls upon them to act in an unconstitutional manner. I have not come across any instance of such advice having been given by any Council of Ministers in this country. It has been stated that Mr. Fakhruddin Ali Ahmed, the then President should not have approved the proclamation of Emergency under Article 352 because under Article 352 (3) unless the decision of the Union Cabinet, that is, the Council of Ministers consisting of the Prime Minster and other ministers of cabinet rank, has been communicated to him in writing he cannot issue the Proclamation. However, once the Cabinet gives its advice in writing the President has no discretion in this behalf.

Another set of circumstances under which perhaps the President and the Governor can return a matter to the Council of Ministers is if the Council is in violation of the Rules of Business framed under Articles 77 and 166. Of course the Council of Ministers can advise amendment of these Rules and the President or the Governor has to agree.

By stretching the interpretation of the Constitution a bit, which has been done both in the case of Parliament and the State Legislatures more than once, the President or the Governor need not dissolve the House of the People or the Legislative Assembly under Articles 85 and 172 respectively on the advice of the Prime Minister or Chief Minister who has been defeated in a no confidence motion or has otherwise lost the majority in the House. In Britain, however, the convention is that the monarch must accept the advice of the outgoing Prime Minister who may have lost his majority in the House if he asks for dissolution of the House and holding of elections. However, one has to accept that there is a difference of perception about this issue in Britain and India.

The Constitution itself provides for those matters in which the Governor may exercise discretion under Article 163. Under Article 371 in the matter of the Special Development Boards in Maharashtra and Gujarat the Constitution gives special responsibility to the Governor and here he may reject the advice of his Council of Ministers. Under Article 371 A, the Governor has special responsibility with respect to law and order. Under Article 371 C, the President may give special responsibility to the Governor of Manipur in order to procure the proper functioning of a committee of the Legislative Assembly consisting of Members of the Assembly elected from the hill areas of that State. Under Article 371 F, the Governor of Sikkim has special responsibility for peace and for equitable arrangement for ensuring the social, economical advancement of different sections of people of Sikkim. Under Article 371 H, the Governor of Arunachal Pradesh has special responsibility with respect to law and order in the State. He is required to consult his Council of Ministers, but he can exercise his individual judgment, differing from the advice given to him by the Council of Ministers. In all matters other than those specified by the Constitution, the Governor has no discretion to act otherwise than on the aid and advice of his Council of Ministers. With utmost respect to the Hon’ble Supreme Court I would submit that this is a true representation of the powers of the Governor, including in the case of appointment of the Lokayukta.

There are certain other issues in which we need an authoritative judgment from the Supreme Court sitting in a Constitutional Bench. I refer specifically to the provisions of Articles 111, 200 and 201 of the Constitution. Under Article 111 or 200 when a Bill is presented to the President or the Governor for signature after being passed by the Legislature, the President or Governor is required to give his assent or return the Bill for reconsideration or amendment. In Parliament both the Houses, as also in a bicameral State Legislature and the Legislative Assembly in a unicameral Legislature, will reconsider the Bill and if it is passed by the Houses or House with or without amendment neither the President nor the Governor may withhold assent. Under Article 1, section 7 of the Constitution of the United States of America the President has ten days time in which to either assent to a Bill or return it to the Congress. In case he does not return the Bill it is deemed as assented to and if he does return the Bill and the Congress once again approves it, then the Bill is deemed to have received the presidential assent. The difference between the United States and the Indian position is that in India no limitation of time is prescribed by the Constitution within which the President or the Governor is required to either assent to the Bill or to return it to reconsideration. When Giani Zail Singh was the President of India and Rajiv Gandhi was the Prime Minister, a Bill was sent to him for assent which would have virtually brought in postal censorship. Giani Zail Singh considered this as undemocratic, but he also knew that if he returned the Bill, Rajiv Gandhi had a massive majority in Parliament and would have been able to get the Bill passed a second time. Using the provisions of the Constitution which laid down no time limit in consideration of the Bill he argued that he was examining it, he neither assented nor returned the Bill and he sat on it till the term of the House of the People was over. It was dissolved and the Bill lapsed.

Governors have also played the same game, for example, in Gujarat to frustrate a BJP led government and in the case of Madhya Pradesh to frustrate first a Congress led government and a then BJP led government. The scheme of the Constitution is that the Legislature has competence to legislate. If a piece of legislation is unconstitutional, then the High Court or the Supreme Court has the power to strike it down. The President or the Governor may, in his or her wisdom, delay a Bill by sending it back to the Legislature but neither functionary can abort a Bill through delaying tactics. That flies in the face of the mandate given to the Legislature by the people to legislate on their behalf. I would most respectfully submit to the Hon’ble Supreme Court that at some stage it will have to define the words “as soon as possible after presentation to him of a Bill for assent” given in Articles 111 and 200. Even though the Constitution does not provide for a time limit should not the Supreme Court, in exercise of its powers under Article 141, define what “as soon as possible” means? The President or the Governor who sits unduly on a Bill is acting in violation of his oath to protect the Constitution and, therefore, either by a suitable amendment of the Constitution or an interpretation by the Constitutional Bench of the Supreme Court a time limit must be prescribed for giving of assent or denial of assent and return of the Bill to the Legislature for reconsideration.

JPCs must have The Power to Summon Ministers

A.Surya Prakash 

(Senior Fellow, VIF)

Archaic rules and deep divisions along political lines within the Joint Parliamentary Committee (JPC) probing the controversial 2G Spectrum sale has affected the efficacy and sanctity of parliamentary investigations. While the controversy over the committee’s right to summon ministers has raised the question as to whether there is a need for a re-look at parliamentary practice and procedure, there can be no easy solutions to the problem posed by the political divide.

The rules that govern the working of the Lok Sabha and the Rajya Sabha, which were constituted 60 years ago, have largely been taken from the British Parliament. Over the years, some changes have been made keeping in mind the Indian ethos, the peculiarity of

representational politics and the demands that constituents make on their MPs in this country. However, these changes have been ad-hoc. There has never been a comprehensive review of parliamentary practices. As a result, many rules that came into the book decades ago, still dictate the way things are done, although much has changed in the world over these years.

For example, the rules governing the working of parliamentary committees do not permit them to summon the Prime Minister. Even the summoning of ministers is not permitted. Some committees however have managed to record the evidence of ministers after obtaining special permission from the Speaker of the Lok Sabha. Given the times we live in, one would think that these are unwanted hurdles placed before committees. Since transparency and accountability are the buzz words in democracies around the world today, rules that bar parliamentary committees from summoning and questioning the Prime Minister or a member of his Cabinet, do not make much sense at all.

It is this disjunction between archaic rules and contemporary democratic needs that is at the heart of the current conflict between ruling and opposition MPs within the JPC. Members belonging to the Bharatiya Janata Party (BJP), which is in opposition, want  ministers to be summoned, while MPs from the ruling Congress Party oppose the idea. The Congress view is articulated by the JPC’s Chairman Mr. P.C.Chacko, who belongs to that party. He is of the view that the Prime Minister cannot be summoned by the JPC because “there is no precedent”. But, would this not be a changeless world if we did nothing that had no precedent? The other problem is the political divide within the committee. The Congress Party’s blind assertion of its majority in the JPC has put a question mark on the standing of parliamentary committees and struck a blow against the semblance of non-partisanship that characterised the work of these committees in the past.

The argument against summoning ministers is also not well founded. Parliament has had several JPCs in the past and there have been two such joint committees which have summoned ministers. For example, in 1992, parliament constituted a JPC to probe irregularities in securities and banking transactions. This committee, which was headed by Mr.Ram Niwas Mirdha, summoned many ministers and ex-ministers. It investigated irregularities and fraudulent manipulations in transactions relating to securities, shares, bonds and other financial instruments and the role of banks, stock exchanges, financial institutions and public sector undertakings in this scam. The committee also had to fix responsibility and to recommend safeguards to prevent such manipulation of the market in future. This JPC asked as many as ten ministers and ex-ministers to send in their responses to issues before the committee and this included Mr. Manmohan Singh and Mr. B.Shankaranand, ministers at that time and Mr. V.P.Singh, former Prime Minister and several former ministers - Yashwant Sinha, S.P.Malaviya, Madhu Dandavate, Chinta Mohan, Madhavrao Scindia, N.D.Tewari and P.Chidambaram. The committee also asked then Finance Minister Manmohan Singh and Health Minister B.Shankaranand to appear before it.

Again, in April, 2001 Parliament appointed another JPC to probe yet another stock market scam. It was asked to investigate market manipulations in all its ramifications including insider trading and to examine the role of banks, stock exchanges, brokers and promoters and regulatory authorities. The committee was expected to fix responsibility on individuals (and institutions) who had manipulated the market. The committee was also asked to suggest deterrent measures to punish wrong doers. This committee, headed by Mr.Prakash Mani Tripathi,  submitted its report in December, 2002. This committee too decided to seek written information from Mr. Jaswant Singh and Mr. Yashwant Sinha, who were then ministers for finance and external affairs. Thereafter, it felt that

there were some points on which ‘further clarification” was needed and called both the ministers to tender evidence before it. This JPC also summoned two former Finance Ministers – Mr. Manmohan Singh and Mr. Chidambaram.

Interestingly, the terms of reference of both these JPCs said that they were to function within the ambit of the Lok Sabha’s Rules of Procedure relating to parliamentary committees, subject to the rider that “if the need arises” they could adopt a different procedure with the concurrence of the Speaker.  When it comes to summoning ministers,

an impediment that is often cited is Direction 99 of the Directions of the Speaker which is  applicable to Financial Committees. This prohibits committees from calling ministers either to give evidence or for consultation. However, these two JPCs overcame this hurdle by seeking the Speaker’s permission to record the evidence of ministers.

This brings us to the question as to why parliamentary rules impede the summoning of ministers. Obviously, these rules were written in another age and time when ideas like transparency and accountability were unheard of. Should we persist with them in this day and age? Secondly, when the Constitution requires the Prime Minister to be responsible to the House of the People, why should he not be summoned by a committee of parliament?

The argument advanced by Mr. P.C.Chacko, Chairman of the JPC probing the 2G Spectrum Scam, that decisions have to be taken in the committee on the basis of majority vote, is equally preposterous. Barring exceptions, parliamentary committees have always functioned in a non-partisan environment. If committees work on the majority-minority principle, independent parliamentary investigations will become impossible, because the ruling coalition or party always commands a majority in a committee of parliament.

Over the years, because of the deterioration in the internal security environment, the Prime Minister is encircled by the Special Protection Group and completely cut off from the people. What these archaic rules of parliament are doing is to cut him off from parliament as well. Similarly, one wonders why the Finance Minister or any other minister needs to be shielded from scrutiny. Do they lack the gumption or the intellectual wherewithal to face a parliamentary committee and explain the decisions that they take? If indeed they lack the confidence, why do they continue in office? And, why should parliamentary rules go to their rescue?

There is another good reason why the Prime Minister and other ministers must pick up courage to face parliamentary committees – the proceedings are in camera. In India,    since parliamentary committees work within closed doors, away from the glare of publicity, there is no fear of the Prime Minister being subjected to cross examination under the harsh glare of television cameras. Even if that be so, why run away from it if you are confident of the manner in which you run the government? When American presidential hopefuls have face-to-face debates on all issues affecting the people, why do we need rules and norms to shield our prime minister from our MPs?

The reluctance of Mr. Manmohan Singh and Mr. Chidambaram to face the JPC probing the 2G Spectrum Scam is inexplicable for yet another reason, namely that they are in a sense, JPC experts in this government, having tendered evidence before the JPCs constituted in 1992 and 2001. These two JPCs not only recorded the evidence of ex-ministers but also of ministers in the Union Government at that time. But, now both of

them have developed cold feet.

In the light of this evidence, both the Prime Minister and Finance Minister ought to have volunteered to appear before the present JPC, rather than hide behind some antiquated rules and even jeopardize the committee’s working. But, we should not acquiesce in their reticence. The time has come from Parliament to take a fresh look at its rules and weed out all those provisions that militate against the principle of accountability.

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.