Mainstream, VOL LII No 51, December 13, 2014
Indian Constitution — Some Creative Mutations Mooted / "Conflagration Nandigram": Letter to West Bengal Governor
Monday 15 December 2014, by
We offer our sincere homage to his abiding memory by reproducing two of his pieces that appeared in Mainstream—an article and an open letter—in 2007. We are also carrying two tributes from persons who knew him well.
Indian Constitution—Some Creative Mutations Mooted
V.K. KRISHNA IYER
More than a semi-centennial span has passed and several amendments inscribed making our long and complicated Constitution an arcane, logomachic and even obscurantist instrument. This supreme deed is now a lawyer’s bizarre paradise and judges’ interpretive and authoritarian pronouncement, alienating the people, including intellectuals, from its meaning. The investment of powers, fundamental values and vision are often a riddle for the common man facilitation arbitrary executive and legislative action.
Everything that could be thought of or raked up has been used to weaken confidence in the Government, has been used to prove that Ministers are incompetent and to weaken their confidence in themselves, to make the Army distrust the backing it is getting from the civil power, to make the workmen lose confidence in the weapons they are striving so hard to make, to present the Government as a set of nonentities over whom the Prime Minister towers, and then to undermine him in his own heart, and, if possible, before the eyes of the nation. All this poured out by cable and radio to all parts of the world, to the distress of all our friends and to the delight of all our foes! I am in favour of this freedom, which no other country would use, or dare to use in times of mortal peril such as those through which we are passing.
Arbitration by retired judges was statutorily conceived as a process of reducing court docket arrears which were shocking and dilatory. But the arbitral remedy aggravated the malady, the arbitrators arbitrarily charging Rs 10,000 to Rs 50,000 per day (of course with moderation in some cases), each day consisting of two or three hours, work and the proceedings being adjournment-merry to the lucrative pleasure of the participating judges and advocates. The judges formally retire but manage to occupy membership of strange commissions doing recommendations which are often ignored by government. We have even a superannuated judge for goonda commission and women’s commission, consumer commission plus plus benefiting none but depleting the public exchequer. The Law Commission is filled by favourites of those in political power who draft reports never implemented. The Bias Commission (I cannot sure of the exact name) where judges retired from every conceivable Commission occupy without limitation of time, drawing high salary and doing little work.
A judge, great while on the Bench and became a celebrity on retirement, making professional income by way of consultation from the party on retirement. He took fees for consultation and later became an arbitrator in the same matter, took fees and gave his verdict in favour of the same party! This is prima facie the limit of misconduct. But horrendous is the refusal of the Supreme Court which declined to hear the misconduct charge! Arbitration business needs new moral principles with statutory regulations and conciliation alternatives lest the people lose credibility in this quasi-judicial operation. Imagine how, some judges never wrote judgements or took years to produce one. Whom to blame when they are not accountable with punitive sanctions! Why judges only? MPs draw heavy TA, large salaries and perks and walk out under curious, eccentric pretexts! Constitutional instrumentalities are slowly suffering moral decadence.
The Founding Fathers had expressed certain domocratic views about the governance of the country. But in practice their perceptions and expression of principles have been ignored by the Executive and their ideology has been openly defied even by the judiciary. Their concept of representative Government has poor purchase and Nehru, Ambedkar, Rajendra Prasad, Patel and other leading cadres have ceased to possess relevance. The weak and the underprivileged, who had great expectations from swaraj, have no voice in the rule of the Republic. Winston Churchill, in the British House of Commons, opposing the basic of the Indian Independence Act, articulated his hostility to handing over power to rogues, rascals and freebooters. This was a vicious description of the patriotic Indian leaders, but today, sixty years after, skeptical nationalists with integrity and humanism wonder whether that description is being fulfilled by the present generation of Indians in power. The Preamble to the Constitution speaks of a Socialist, Secular, and Democratic Republic. Alas! Socialism has been burked and Yankee imperialism is alleged to influence our foreign policy and our internal administration and ‘Westoxicated’ our culture through exotic invest-ments by tycoons. The written text of the Founding Deed speaks of secularism and socio-economic justice to the masses and classes. But no more secular classes, only lunatic casteism and religious rivalry competitive pluralism. Democracy highlighted in the Preamble has been de facto liquidated and only the rich can afford to contest elections, only communal forces and corrupt methodologies can nominate candidates or shape policies. Rarely, if ever, has an elected candidate secured fiftyone per cent of the constituency’s voter totality. A small percentage of the people in the voter’s list can buy and become the winner candidate. Money matters in the elections and communalism too, making the vast majority in the constituency a mockery. Governance by a coalition renders the vice of the people a terrible travesty of Abraham Lincoln’s definition of Government, by the people, of the people and for the people. The judiciary has often denied the imperativeness of misplaced Article 32 as a fundamental right and the expression ‘class’ has been substituted by counterfeit caste. The poor have been denied human rights and India’s billions have suffered power eclipse. The billionaires, Indian and foreign, have control over the three instrumen-talities of Government. For fifty years or so the judiciary, which has great authority, used to be appointed by the President of India on the recommendation of the Prime Minister who ordinarily consults the Chief Justice of India. But now, in open defiance of Ambedkar’s views in the Constituent Assembly, a few judges of the Supreme Court, composing a Constitution Bench, by a majority seized power to appoint judges through a collegium without any warrant in the Constitution; a weak executive and a divided parliament have allowed this usurpation to pass muster. The performance of the allleged collegium is often extraordinarily inefficient on the administrative side.
Every generation is a new nation, said Ambedkar, quoting Jefferson, in the Constituent Assembly. Now let us see whether any substantial mutation may be mooted to make the Constitution truly socialist, secular and democratic.
Corruption, in its various dimensions, bas consumed the country’s integrity and ability. The Parliament with the exception of an excellent Speaker and exceedingly capable members and Ministers, only some of them, is a shameful picture of jungle behaviour and absence of dignity and high values or powerful debate. One wonders whether the berserk behaviour of Parliament exasperating even the Hon’ble Speaker, rarely discuss legislative bills of importance and issues of national concern. Oh! The pity of it. As we see the two Houses in functional futility we remember the great Churchill in the Commons.
Indeed, many members have criminal ante-cedents and even Ministers are not above board. But are they accountable to the people or is there a right of recall? The Cabinet, with its executive supremacy, is often incompetent to understand legislation or national inquest. Some MPs could be purchased with the result the rich dominate and the rule of unlaw, with undefined privileges, trample over the rule of life. The judiciary, which is the glory of the nation, is appointed on the fancy of a collegium. Some of them have a dubious background and it is openly discussed that a percentage of them, though small, is guilty of arrogance, incompetence and delinquency. For these reasons some fundamental changes are a must, if India is to be a brave new Bharat with swaraj secured under Mahatma Gandhi’s leadership is to survive.
(Mainstream, June 23, 2007)
Letter to West Bengal Governor
Venerable Gopal Gandhi,
I write this letter reluctantly but feel it my duty to request you, as the head of the State of West Bengal, to consider what measures, if any, may taken to see that the people of the State, particularly of Nandigram, enjoy security and liberty. Possession of property, without threat of deprivation in the guise of land acquisition for industrial development, and assuring peaceful co-existence of progressive agriculture and industry with promise of more employment is true rural-urban harmony. Perverted priority for advanced technology inhibiting the peasantry from their traditional agrarian operations is provocative of tension and show-down. Large investments with machine-oriented technology, offers little prospect of new employment. The rich become richer, the poor poorer. Nandigram is a traumatic mix of these confusing conflicts, maybe. This complexity of issues brings into focus the Gandhian vision of advanced agrarian India is the central object of modern development and the reverse reality of villages suffering a setback on account of an aggressive pressure of the technological illusion that foreign-funded profit-hungry, ‘Westoxicated’ Industrial Renaissance is the only salvation from privation for Indian humanity. A magnificient compromise between these two rival views is possible if state violence for land acquisition and terrorism of unruly hostile political elements taking the law into their hands are controlled with social justice as the goal. That is statesmanship through a creative policy revolution.
It is unfortunate that disproportionate emphasis on industrial progress and disorganised political conflict opposing even necessary industrialisation have given rise to human casualties and damage to property in Nandigram and other parts of India. Development is not of things but of Man, as the Cocoyoc Declaration by UN has defined it. The landless and the lawless create havoc in Nagaland making even use of country-bombs. Is bomb-making a cottage industry, menacing peaceful rural life and productive activity? Such a grave bedlam situation arose sometime ago in Nandigram which alerted political parties about escalating tension and terror and eventually generated restorative policies and humanist strategies. I thought, and there are many like me, that a positive resolution will come into play and Nandigram may emerge again as a symbol of developmental statesmanship and peaceful peasant-industrialist amity. That would be a tribute to the State’s political leadership and glory of governance. But alas! I have read in the New Indian Express of October 29, 2007, under the alarming heading “Killing Fields”, the report of a violent eruption in Nandigram resulting in loss of life and revival of political acrimony. Of course, media reports may not always be true or objective or may even be exaggerated and distorted. Nevertheless, media reports are an alarm signal and do demand urgent attention of the State agencies of development as well as of maintenance of law and order.
Responsible people have been upset by “Conflagration Nandigram” re-emerging as ‘survival after death’, as it were. The critical problem remains die-hard. Political polemics has the pollutive potential for creating chaos and letting loose anarchical forces lying latent in society. Whether the claims urged by politicians are just or not, resort to violence should never be even a last refuge. Even otherwise, incisive observers have described India as a functioning anarchy. All the more reason why traumatic tendencies injurious to peaceful public life, which make proclivities of tranquillity a lost cause, should be resisted by the State and sensitive parties and right-thinking people.
A constructive process of reconciliation between rival political groups, a humanist perspective which envisions a happy accommodation between industrial and agrarian sectors, and, above all, an awakened public opinion which frowns upon any form of violence in public life which mars activities in public institutions and social centres, and totally rejects bomb culture, the barbarity of explosives must be a unanimous conviction. Maybe, the beginning of a new Nandigram initiative for a brave patriotic Bharat is the desideratum of our time. A High Level Commission, with the co-operation of political parties, may be one method of establishing a democratic Gram Swaraj process. Maybe, there are other alternatives. This country’s politics and economy are not bankrupt yet and it is my conviction that West Bengal should blaze the trail consistently with the constitutional imperatives of a socialist, secular, democratic republic, truly non-aligned and independent of foreign investments and lobbies with imperial intentions. I submit to you, respected Governor, and, through you, the innovative Marxian Chief Minister, to command the resources of the people for constructive ends so as to redeem our historic ‘tryst with destiny’. We are no longer feudal or colonial and must generate a great drive in fulfillment of social justice and distributive development, which is the first promise of our Constitution and the paramount obligation of Swaraj.
With high regards,
October 31, 2007 V.R. Krishna Iyer
(Mainstream, November 10, 2007)