India’s present political plight is because the political class, lawyers and judges ignore the British Constitutional ethos on which Ambedkar modelled the Constitution. Three books that help us understand that ethos. By A.G. NOORANI
“IT would suit the conditions of this country better to adopt the parliamentary system of Constitution, the British type of Constitution with which we are familiar,” Vallabhbhai Patel said in the Constituent Assembly of India on July 15, 1947 (Constituent Assembly Debates (CAD); Volume 4, page 578). He was reporting on the conclusion arrived on June 7, 1947, at a joint meeting of the Provincial Constitution Committee, of which he was Chairman, and the Union Constitution Committee presided over by Jawaharlal Nehru.
A barrister himself, Patel overrode Gandhi’s objections and got Dr B.R. Ambedkar elected to the Constituent Assembly. This barrister of Gray’s Inn was steeped not only in British Constitutional Law and History, but, unlike other constitutional lawyers, was learned in Political Science as well. He was named Chairman of the Assembly’s Drafting Committee, in which capacity he constantly cited British precedents while explaining the provisions of the draft Constitution.
We have moved a long way since Prof. Myron Weiner wrote an essay on “India’s Two Political Cultures” in mid-1962. In his classification, “the first can be characterised as an emerging mass political culture and the second as an elite political culture” (Political Change in South Asia; Firma K.L. Mukhopadhyay, Calcutta, p. 114). Even 50 years ago, this was a bit of an oversimplification. Now, the two cultures have merged in essentials, while retaining differences in appearances.
The Centre has faithfully copied the States on defections, unprincipled coalitions, misbehaviour in the legislature, securing political support through bribery, coarse rhetoric and much else. Ambedkar’s devotees laud him for his contribution to the uplift of the downtrodden Dalits, the “untouchables” of his time. They are not alone in ignoring his profound insights into constitutionalism and constitutional values. Does Mayawati care for them? Why pick on her alone, when you have the likes of Mulayam Singh Yadav, who praised a person accused of a crime like murder because he had voted for him; the three Lals of Haryana—Bansi, Bhajan and Devi—Mamata Banerjee of West Bengal, and Lalu Prasad and his predecessors in Bihar? What about the regimes of defectors (Charan Singh and Chandra Shekhar), that of the prince of corruption and political dishonesty, P.V. Narasimha Rao, and the ramshackle coalitions of H.D. Deve Gowda, Inder Kumar Gujral, Atal Bihari Vajpayee and Manmohan Singh?
For the most part, our Presidents have been a pathetic lot. Rajendra Prasad and S. Radhakrishnan were ambitious usurpers of power whose games failed, as did those of Zail Singh. Fakhruddin Ali Ahmed was servile, N. Sanjiva Reddy was an intriguer, Pratibha Patil cut a sorry figure, A.P.J. Abdul Kalam was no stranger to intrigue. He was so ignorant of the Constitution as to ask Vajpayee to resign during the 2004 general election. He twice created crises, quite wantonly, which Manmohan Singh defused.
Ambedkar had foreseen these dangers. His comments in the Constituent Assembly on constitutional morality deserve quotation in extenso. On November 4, 1948, he quoted Grote, the historian of Greece, who held that “The diffusion of constitutional morality, not merely among the majority of any community but throughout the whole, is the indispensable condition of government at once free and peaceable; since even any powerful and obstinate minority may render the working of a free institution impracticable, without being strong enough to conquer ascendancy for themselves.” By constitutional morality Grote meant “a paramount reverence for the forms of the Constitution, enforcing obedience to authority acting under and within these forms yet combined with the habit of open speech, of action subject only to definite legal control, and unrestrained censure of those very authorities as to all their public acts combined too with a perfect confidence in the bosom of every citizen amidst the bitterness of party contest that the forms of the Constitution will not be less sacred in the eye of his opponents than in his own”.
Ambedkar remarked: “While everybody recognises the necessity of the diffusion of constitutional morality for the peaceful working of a democratic Constitution, there are two things interconnected with it which are not, unfortunately, generally recognised. One is that the form of administration has a close connection with the form of the Constitution. The form of the administration must be appropriate to and in the same sense as the form of the Constitution. The other is that it is perfectly possible to pervert the Constitution, without changing its form by merely changing the form of the administration and to make it inconsistent and opposed to the spirit of the
Constitution. It follows that it is only where people are saturated with constitutional morality such as the one described by Grote the historian that one can take the risk of omitting from the Constitution details of admission and leaving it for the legislature to prescribe them. The question is, can we presume such a diffusion of constitutional morality? Constitutional morality is not a natural sentiment. It has to be cultivated. We must realise that our people have yet to learn it. Democracy in India is only a top-dressing on an Indian soil, which is essentially undemocratic.
“In these circumstances it is wiser not to trust the legislature to prescribe forms of administration. This is the justification for incorporating them in the Constitution. Another criticism against the draft Constitution is that no part of it represents the ancient polity of India. It is said that the new Constitution should have been drafted on the ancient Hindu model of a state and that instead of incorporating Western theories the new Constitution should have been raised and built upon village panchayats and district panchayats.” He had no difficulty in refuting this (CAD; Vol. 7, p. 38). He concluded by saying “If things go wrong under the new Constitution, the reason will not be that we had a bad Constitution. What we will have to say is that Man was vile” (ibid., p.44; emphasis added throughout).
On November 25, 1949, while replying to the debate, as the Assembly was about to conclude its labours, Ambedkar warned: “However good a Constitution may be, it is sure to turn out bad because those who are called to work it happen to be a bad lot. However bad a Constitution may be, it may turn out to be good because of those who are called to work it happen to be a good lot. The working of a Constitution does not depend wholly upon the nature of the Constitution. The Constitution can provide only the organs of the state such as the legislature, the executive and the judiciary. The factors on which the working of these organs of the state depend are the people and the political parties they will set as their instruments to carry out their wishes and their politics. Who can say how the people of India and their parties will behave?” He added that it was “futile to pass any judgment upon the Constitution without reference to the part which the people and their parties are likely to play” (CAD; Vol. xi; p. 975).
There was, he pointed out on October 14, 1949, something else besides; as fundamental as the letter of the Constitution. “Every Constitution, so far as it relates to what we call parliament democracy, requires three different organs of the state, the executive, the judiciary and the legislature. I have not anywhere found in any Constitution a provision saying that the executive shall obey the legislature, nor have I found anywhere in any Constitution a provision that the executive shall obey the judiciary. Nowhere is such a provision to be found. That is because it is generally understood that the provisions of the Constitution are binding upon the different organs of the state. Consequently, it is to be presumed that those who work the Constitution, those who compose the legislature and those who compose the executive and the judiciary know their function, their limitations and their duties. It is therefore to be expected that if the executive is honest in working the Constitution, then the executive is bound to obey the legislature without any kind of compulsory obligation laid down in the Constitution.
“Similarly, if the executive is honest in working the Constitution, it must act in accordance with the judicial decisions given by the Supreme Court. Therefore my submission is that this is a matter of one organ of the state acting within its own limitations and obeying the supremacy of the other organs of the state. Insofar as the Constitution gives a supremacy to that is a matter of constitutional obligation which is implicit in the Constitution itself.
“No constitutional government can function in any country unless any particular constitutional authority remembers the fact that its authority is limited by the Constitution and that if there is any authority created by the Constitution which has to decide between that particular authority shall be binding upon any other organ. That is the sanction which this Constitution gives in order to see that the President shall follow the advice of his Ministers, that the executive authority is the law made by Parliament and that the executive shall not give its own interpretation of the law which is in conflict with the interpretation of the judicial organ created by the Constitution” (CAD; Vol. 10, p.269).
Ignoring British constitutional ethos
It is those “tacit assumptions” and conventions which make for the smooth functioning of a Constitution. In our case, it was the conventions of the British Constitution; and our present plight is due to the fact that Indian political class, lawyers, judges and academics wilfully ignore that British constitutional ethos in which the system works. Every time a problem arises, people behave as if there was no precedent to consult. Two Presidents, R. Venkataraman and Shankar Dayal Sharma, behaved as if their ipse dixitconstituted law as, indeed, do lawyers and other “experts” who perform on TV channels. Judges are no better.
Once at a seminar, a former bureaucrat who managed to rise to be a “Constitutional expert” asked why we needed to consult British texts at all. There is a rich lore of constitutional tradition in Britain, Canada and Australia, including their provinces, which one can consult with profit. They cover very many, indeed, most situations.
These three works of outstanding merit help to provide a corrective to any who care to learn. “Civil Procedure and Criminal Procedure Code Lawyers” know far less than they suspect even if they laboriously consult the texts. These three works show that much more needs to be learnt; the ambience in which constitutional values command respect, particularly. It is as old as the Greeks. Pericles’ remarks in the famous funeral oration on constitutional conventions are as relevant today as they were in his time.
Prof. Vernon Bogdanor is the foremost authority on the British Constitution. Prime Minister David Cameron was among his more distinguished pupils. The 11 essays collected in this festschrift prove the truth of Prof. Kevin Theads in his remark that “the new constitutional politics has spawned a new constitutional scholarship”. Bogdanor is the last in the line from Dicey, Anson, Bagenot, A.B. Keith (also a Sanskrit scholar) and Ivor Jennings. But he also broke new ground in his works.
Britain devolved power on Scotland and Wales, enacted the Human Rights Act, 1998, and formulated new norms for coalitions for the Conservatives and the Liberal Democrats to share power. It established in 2005 a Supreme Court to replace the House of Lords as the court of last resort by enacting the Constitutional Reform Act. Cabinet Secretaries produced manuals to guide Ministers on ethics and on hung Parliaments. The procedure for appointment of judges has been changed radically, as the editor notes in his essay: “The Constitutional Reform Act 2005 arguably goes beyond what is known from other established Constitutions. Comparative experts have pointed out that ‘in virtually all common law systems, elected politicians determine which justices get to serve on the courts.’ Outside the common law traditions, the same is true in Germany, where the Bundestag appoints half of the members of the Constitutional Court and the Bundesrat (the Second Chamber) selects the other half. In France, one third of the members of theConseil Constitutionnel are selected by the President, another third by the Senate and the last third is appointed by the Assemblee Nationale. In Britain, the elected politicians now have practically no role. Sections 26 to 31 of the 2005 Act set out the rules for the appointment of future members of the courts. A selection commission, consisting of the President and Deputy President of the Supreme Court, proposes a name to the Lord Chancellor, who can reject that name only once. In practice the appointment of judges has been removed from the political sphere.’’
Protecting citizens’ rights
One point deserves emphasis. In recent decades, the House of Lords and, later its successor, the Supreme Court, have been vastly more protective of citizens’ rights under legislation on security than the judges of the Supreme Court of India care to.
“In the United Kingdom the courts cannot, as we have seen, strike down Acts of Parliament; they merely can make declarations of incompatibility. What is remarkable is not only that the courts have used this power, but also that Parliament has felt bound to alter legislation that the courts have deemed to be in contravention of the Human Rights Act.
“In A and others v Secretary of State for the Home Department—also known as the ‘Belmarsh case’—the House of Lords declared that Section 23 of the Anti-terrorism, Crime and Security Act 2001 (on indefinite detention of foreign nationals) was incompatible with the European Convention on Human Rights. As a consequence, the House of Lords made a declaration of incompatibility under Section 4 of the Human Rights Act 1998. Parliament followed suit and enacted the Prevention of Terrorism Act 2005. In other words, and contrary to what we might expect according to the spatial models developed by Ferejohn, Rosenbluth and Shipan, Parliament moved its preferences closer to that of the courts, not the other way round.”
The other two volumes belong to the series Hart Studies in Constitutional Law. Their relevance to the Indian situation is even more direct.
Parliament and the Law discusses with a wealth of detail, in copious citations of legislation and cases, topics such as parliamentary privilege, touching as they do freedom of speech and criminal law; Parliament and the courts, and parliamentary accountability for the administration of justice. Of particular interest are the two Joint Committees of Parliament on Human Rights and on the Constitution. There is a thorough analysis of recent moves for codification of the privileges which were foiled because of “the decline in the public standing of Parliament in the wake of the expenses scandal”. The writer of this essay, Liam Lawrence Smyth, is the Clerk of the Journals in the House of Commons and Common Clerk of the Joint Committee on Parliamentary Privilege. His remark should be taken to heart by our MPs and MLAs: “A proper appreciation of the role of parliamentary privilege, not to confer special status or immunity upon MPs, but rather to protect the vital engine of democracy, could contribute to restoring the reputation of the political process.” Abuse of parliamentary privilege to assert exemption from the law of the land serves only to undermine the public’s respect for the legislature, for politicians and for politics itself.
The essays compiled by David Feldman in Law in Politics, Politics in Law touch on lawyer-politicians; the impact of legal change on politics, history of legislation on Parliament since 1911, and recent developments, such as the development of the laws on human rights, and “International Law and Great Power Politics” by a Geneva-based international lawyer, Mathew Parish. He opines: “At its worst, international law may lead to an intellectual hypocrisy; a belief that legal adjudication can solve perennial political problems of war and confrontation. Of this it is incapable; and should we hold too dear to the hypothesis that it can, we are in danger of overlooking the more effective weapons available in the armoury of the international community’s foreign policy to shape outcomes. Above all, international law must not become an excuse for failures of military intervention or diplomacy.
The International Criminal Tribunals for Yugoslavia and Rwanda were created amidst international community’s guilt for failure to save lives amidst atrocities. Those courts did not themselves save any lives, and we must not cling to the illusion that they heralded in some new international order that might do so. Finally, to think of international law by too strict an analogy with the high standards we in the West ascribe to domestic law, we may prove ourselves of guilty of falling into a fallacy of definition. The strengths of a robust system of domestic law cannot automatically be ascribed to the system of international law, and it remains far from clear that those strengths can ever become features of the global legal order.”
Nearer home is Ross Cranston’s warning that “Constitutional courts have power to thwart democratically elected governments. Consequently, they have had to grapple with the issue of how the exercise of that power is to be exercised (sic) explained and justified both to the politicians and the public. Historically, the Constitution of the United Kingdom has not conferred on the courts a comparable power. The growth of judicial review from the 1960s led to some discussion about the appropriate role for the courts in upsetting the plans of executive government. In his Hamlyn Lectures in 1990, Lord Woolf acknowledged the dangers which could result from an over-invasive use of judicial review, the need to strike a balance and the safeguards against abuse such as the flexible nature of the remedies. There has been a great deal of writing since about judicial deference to legislative and executive power.”
It is an acute, but not insoluble dilemma—how to reconcile democratic governance by elected leaders with judicial review by unelected judges—provided that the judges themselves are erudite in constitutional law, are men of dignity and reserve who shun popularism and popular applause and are truly honest and faithful to their oaths of office. This animal is not too conspicuous in our zoos.