The Vice President of India Shri M. Hamid
Ansari has
said that the Citizens can legitimately enquire if those entrusted with the
daily assessment of the Executive have discharged their duties? Also, and
on an increasingly complex set of issues, have they legislated after due
deliberation and given themselves sufficient time to do so meaningfully?
Delivering Presidential address at the “Durga Das Basu Centenary celebrations”
here today, he has said that the Statistical data reveals a steady decline in
the annual number of sittings of Parliament and of state legislatures. As a
result, and in the view of many competent observers, the idealised view of
legislature as a deliberative body is a far cry from reality. Instead, the
legislature has in the public mind become ‘a site for adversarial combat rather
than of deliberative clarity’. Consequently, ‘disruptive adjournments have
become the main tool of parliamentary opposition rather than reasoned
argument’.
Shri Ansari has said that we must
recognise that the key to the problems and crises of governance relate to the
‘software of our democracy’–either a lack of awareness of the values and
morality of the constitution among citizenry and the polity or its deliberate
disavowal.
Following is the text of the Vice President’s Presidential
address :
“To venture into the realm of law, for someone untutored in
the discipline, can fairly be described as foolhardy. Greater, much greater, is
the quantum of folly when such a venture is in the field of constitutional law,
a calling located at the intersection of law, jurisprudence and political philosophy,
and dealing with the interpretation and implementation of the Constitution
itself and thereby touching upon the most fundamental relationships in society.
And yet, this is precisely the sin now
being committed by this speaker before this august and learned audience. Mia maxima culpa is easier said than
undone and the only mitigating factor to cite in defence is to submit that the
incitement to commit the wrong came from none other than a very high ranking
law officer of the Republic!
Since sins committed cannot be undone,
the remaining option is to seek forgiveness through penance and repentance.
Well endowed with human frailties, I can
only promise an honest try.
Durga Das Basu needs no introduction to
students of law and to all those who seek to further their understanding of the
robust text of our Constitution. His treatises on the subject, firmly
entrenched in voluminous case law, have become standard source of reference. A
celebratory exercise is thus very much in order.
Human history shows that legal codes are
either bestowed or made. Once in place, an understanding of the text, and the
context, requires comprehension of both. This takes the form of commentaries.
We do not know if such commentaries existed on the ancient texts of Hammurabi,
or Solon. We do know that Manusmrti attracted nine complete commentaries. We also know that medieval canonists in Europe or the faqihs in Muslim societies did dilate a
good deal on the intent and purpose of their respective codes.
In modern times the classic work, of
course, is Judge William Blackstone’s Commentaries
on the Laws of England published in 1776. More relevant for our endeavour
today is Joseph Story’s Commentaries on
the Constitution of the United States, published in 1833. The purpose of the
latter, in Judge Story’s own words, was to bring before the reader ‘the true
view of (the Constitution’s) powers as
seen by its founders ‘and confirmed and illustrated by the actual practice of
government’.
This practice, in no small measure,
included the interpretation of the constitution by the courts. It is true of
both the United States and
of India.
Both helped induce a spirit of constitutionalism amongst the citizens. Some
landmark judgments of our own Supreme Court testify to it.
It has been said by an eminent authority
on the working of our Constitution that the framers ‘spun a seamless web’ of
three strands focused on (a) protecting and enhancing national unity and
integrity, (b) establishing the institutions and spirit of democracy and (c) fostering
a social revolution to better the lot of the masses. The framers believed that
the three strands are mutually dependent and inextricably intertwined. The
efficacy of the functioning of each strand, and a harmonious relationship of
each with the other two, was considered by the founding fathers an essential
requirement.
Given the constraint of time, and at the
risk of selectivity, I would like to confine my remarks today to some aspects
of the second strand and think aloud about some features of democracy at work
in our society.
The concept of democracy has been dilated
upon down the ages. It is premised on the dignity and freedom of the
individual. To Aristotle, democracy meant the rule of ‘the poor and the
majority’; the preferred form, he opined, was one that upheld the supremacy of
the law. Rousseau, on the other hand, considered democracy so perfect a form as
to be fit only for ‘a nation of gods’. In modern times it is considered, as
political scientist David Held put it, ‘a universal formula for legitimation
for a broad range of radically different societies and their respective modes
of governance and political participation’
Whatever the form, an essential
ingredient of modern democracy is its participatory character through a set of
institutions agreed upon by the citizens and incorporated in laws, practices
and conventions. The efficacy of these institutions thus becomes the litmus
test for assessing the success of democratic practice.
This assessment is to be done in two
segments and relates to the ‘hardware’ and ‘software’ of democratic principle
and practice. Most observers agree that in the past six decades we have internalized
in some measure the ‘hardware of democracy’ – by this, I mean the mechanisms,
mechanics, institutions and procedures of our parliamentary democracy. Citizens
are cognizant of periodic elections to elect their representatives to the
Parliament, State Legislatures and Local Government. They remain acutely aware
of the Executive and the benefits and pitfalls of dealings with it. They are knowledgeable
in some measure of the judicial process.
This audience knows that parliamentary
democracy necessitates government that is Representative,
Responsible, and Responsive. The
first implies balanced representation of all segments of the body politic; the
second necessitates ministerial responsibility to the elected legislature; the
third makes incumbent responsiveness at various tiers of governance – national,
state and local – as well as transparency, accountability, public consultation
and citizen engagement with the political process.
While representative-ness and
responsiveness are important, allow me to dwell here on responsible-ness of the
Executive as its impact on the citizenry is direct and immediate.
One needs to begin at the beginning. I subscribe
to the view that the Constituent Assembly of India debates should be essential reading
for all those wishing to comprehend the intent and purpose of the founding
fathers who, despite political and ideological differences on some issues,
managed to reconcile them and arrive at workable formulations.
While introducing the Draft Constitution
in the Constituent Assembly in November 1948, Dr. B. R. Ambedkar outlined two
significant criteria that guided the Drafting Committee to suggest a
Parliamentary democracy. He said:
- A
democratic executive must satisfy two conditions - It must be a stable
executive and it must be a responsible executive.
- In
the Parliamentary system, the assessment of responsibility of the Executive
is both daily and periodic. The daily assessment is done by members of
Parliament, through questions, Resolutions, No-confidence motions,
Adjournment motions and Debates on Addresses. Periodic assessment is done
by the Electorate at the time of the election which may take place every
five years or earlier. The Daily assessment of responsibility is
far more effective than the periodic assessment and far more
necessary in a country like India. The Draft Constitution
in recommending the Parliamentary system of Executive has preferred more
responsibility to more stability.
Thus, and apart from law-making, assessing
the responsibility of the Executive on a daily and periodic basis constitutes
the single most important element of being a Parliamentary democracy.
Our record on periodic assessment is good
and universally acknowledged. Citizens can, however, legitimately enquire if
those entrusted with the daily assessment of the Executive have discharged
their duties? Also, and on an
increasingly complex set of issues, have they legislated after due deliberation
and given themselves sufficient time to do so meaningfully? Statistical data
reveals a steady decline in the annual number of sittings of Parliament and of
state legislatures.
As a result, and in the view of many
competent observers, the idealised view of legislature as a deliberative body
is a far cry from reality. Instead, the legislature has in the public mind
become ‘a site for adversarial combat rather than of deliberative clarity’.
Consequently, ‘disruptive adjournments have become the main tool of
parliamentary opposition rather than reasoned argument’.
The other element that deserves scrutiny
is the ‘software of democracy’. How many citizens are aware of the spirit and
the core values that inform the Constitution and the morality that guides it? How
well versed are the functionaries in the political system aware of the software
of our democracy?
The problem was recognised and addressed
by Dr. Ambedkar. He conceded that the new institution of democracy was only
‘top dressing on Indian soil that was essentially undemocratic’, adding that
our people have ‘yet to learn constitutional morality’. It is not a natural
sentiment but has to be cultivated. He therefore felt that the diffusion of
constitutional morality throughout the body politic was indispensable for the
peaceful working of a democratic Constitution, since any powerful and obstinate
minority may render its working impracticable, without being strong enough to
conquer ascendancy for themselves.
Ambedkar identified a few essential
ingredients of constitutional morality:
1. "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 eyes of his
opponents than in his own."
2. “Holding fast to
constitutional methods of achieving our social and economic objectives” and
“abandoning the bloody methods of revolution” and “the method of civil
disobedience, non-cooperation and satyagraha”. Where constitutional methods are
open, there can be no justification for such unconstitutional methods which are
“nothing but the Grammar of Anarchy”.
3. Eschewing “Bhakti or
hero-worship” in politics, which is a “sure road to degradation and to eventual
dictatorship”.
4. Ensuring that political
democracy is followed by social democracy, a way of life which recognizes
liberty, equality and fraternity as the principles of life forming “a union of
trinity” where to divorce one from the other is to defeat the very purpose of
democracy.
He also added a word of caution. It is
perfectly possible, he said, 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.
The experience of the last six decades,
ladies and gentlemen, demonstrates our success in widening and deepening the
mechanisms of democracy, both horizontally and vertically. We have transformed
our dual polity into a three-tiered one by giving constitutional status to
local government. In the process we have introduced many innovations including
decentralized planning, reservations for women, and establishment of state
election commissions and finance commissions. Democracy today touches the
remotest hamlet and the poorest citizen in its working.
At the same time, we must recognise that the
key to the problems and crises of governance relate to the ‘software of our
democracy’ – either a lack of awareness of the values and morality of the
constitution among citizenry and the polity or its deliberate disavowal.
What is the corrective? How, and where,
should it be initiated?
The corrective to bad governance is good
and responsive governance rooted in our constitutional values. It has to be
across the board and cover all the institutions of the state and all segments
of the body politic. It necessitates an ethical corrective, a rejuvenation of
the value system, a closing of the gap between public and private morality.
In the political realm, and
notwithstanding Edmond Burke’s classic exhortation to the electors of Bristol, the starting
point in today’s world should be the political parties. They are the
instruments of our people to implement their agenda and work in accordance with
their mandate. They provide the life blood of the Legislature and the Executive,
and constitute the best media of political and social change. They embody
within them the possibilities of realizing our constitutional vision, or of
sidestepping it.
Political parties are needed for more
than merely exercise of political power. Their credibility and representative-ness
are critical elements in bringing about stable polities that are essential for
socio-economic progress. They set examples of democratic practice, influence
the nature of political mobilization, alliance formation and societal
accommodation. By their actions, they can either spark societal conflict or
facilitate conflict management. Political parties lie at the root of any debate
on representative-ness, societal conciliation, and governance that is
accountable, stable and efficient.
The legal fraternity too has an important
role in spreading the message of constitutional morality and strengthening the
‘software’ of our democracy. It can perhaps do so with greater efficacy by
addressing what Upendra Baxi has called ‘its own pathologies’.
Before I conclude, allow me to go back to
Judge Joseph Story and cite an immortal passage that concluded his great work:
The structure has been erected by
architects of consummate skill and fidelity; its foundations are solid; its
compartments are beautiful, as well as useful; its arrangements are full of
wisdom and order; its defences are impregnable from without. It has been reared
for immortality, if the work of man may justly aspire to such a title. It may,
nevertheless, perish in an hour by the folly, or corruption, or negligence of
its only keepers, THE PEOPLE. Republics are created by the virtue, public
spirit, and intelligence of the citizens. They fall when the wise are banished
from the public councils, because they dare to be honest, and the profligate
are rewarded, because they flatter people, in order to betray them.
In a similar vein, Dr. Ambedkar too opined
that if things go wrong under the Constitution, ‘the reason will not be that we
had a bad constitution’ but because ‘Man was vile’!
I, for one, would unashamedly assert that
both hold good in equal measure for the edifice given to us by the founding
fathers of our own republic.
I thank Shri Gopal Subramanium and the
Durga Das Basu Centenary Celebration Committee for inviting me to preside over
today’s function.”
SK