READERS’ COLUMN CORRUPTION : A CONSTITUTIONAL ANALYSIS

We could not resist the temptation to publish in its entirety the following letter from one of our members because of the originality of his views on the root causes of the rampant corruption in our political system. He has analysed the problem from a novel frame of reference, challenging many a dictum sacred to our legal luminaries and constitutional experts.

- Editor

Sir,

1. I refer to the report ‘Anti-corruption Coalition’ published in October-December issue of the COMMON CAUSE journal. You deserve the gratitude of the entire country for taking the initiative to form a coalition for an all out war against corruption. I am not as knowledgeable as the eminent people who participated in the brainstorming session held on 09.08.2008, but please permit me to contribute some ‘noise-input’ to the discourse started by you.

2. The meeting of minds in the above session has undoubtedly thrown up some very good and practical suggestions. However, without meaning any disrespect to the learned participants, I regret that no effort seems to have been made to identify the viruses which are responsible for the spread of the contagious disease of corruption. I am afraid the remedies suggested without reference to the viruses may provide some relief by attacking the symptoms, but may not lead to eradication of the disease. Anti-corruption laws, vigilance apparatus, CVC, Lok Ayuktas etc. have been in existence for quite some time without making perceptible impact on the extent of corruption. The mighty river of corruption which is inundating the entire landscape is flowing with such fury and has acquired dimensions that damming it is not easy. Perhaps restraining its flow at the source might be a more practical proposition.

3. To begin with, let us take for granted that there is no society, nor has there been one, any where in the world and at any time in history which has been completely free of corruption. Causes like human greed, social inequities etc. will always tempt some people to resort to corrupt means. Thus, in every society there will always be some people (say 10% for the sake of argument) who are pathologically and incorrigibly dishonest. Similarly there will also be some people (say again 10%) who will not stray from straight path and are incorruptible. But the majority of the population (80%) consists of average people who react to environment. If the environment is controlled by the corrupt people, these 80% also tend to become corrupt, and vice versa. It is like in a family of ten children in which if one child goes astray, it could be due to bad company he might be keeping in the school or on the play ground, but if nine out of ten children turn rogues then there must be something wrong in the family environment, and the finger will be raised at the family seniors. The tragedy of India is that within a span of fifty years it has changed from a country in which the corrupt people could be counted on fingertips to a country where honest people are difficult to find. The obvious conclusion is that there is something in the system of governance chosen by us after independence which attracts unscrupulous characters to the public life and facilitates their rise to the positions of power. Our search for causes and remedies of wide spread corruption must therefore start with the identification and elimination of that ‘something’ in our system. We should look into our Constitution to find out whether, despite the fact that it was framed after three years of intensive deliberations by some of the best brains of the country, it is deficient, or we have deviated from its provisions while giving shape to our system of governance. Through this letter, I seek to draw your kind attention to three major distortions of our system which are the result of our deviating from the constitutional scheme and which are responsible for almost all maladies which are eating into the vitals of our society, including the demon of corruption. These three distortions are:

   (a) Concentration of power in the hands of politicians,

   (b) Constitutional role given to political parties, and,

   (c) Professionalisation of politics.

   Concentration of Power in the Hands of Politicians

4. The Constituent Assembly of India, in its wisdom, chose a three pillared structure based on separation of legislature, executive and judiciary, with a regime of mutual checks and balances of power among these three institutions, as a basic feature of our constitutional scheme. But in the system shaped by us, the leader of the legislature is also the Chief Executive, and for a long time (1950-1993) he was also the final authority in the matters of appointments, promotions and transfers in the higher judiciary. This happened because the first Attorney General of the Republic put into circulation a myth that our Constitution is a written version of the Westminster model ‘borrowed’ from a benevolent monarchy, that is, England. In the Westminster model all the powers- legislative, executive and judiciary- are constitutionally vested in the monarch, but in practice all the powers are exercised by the parliament. Even the highest seat of judiciary in England is the Uppar House of the parliament. Thus the myth of our system being based on the parliamentary form of governance has demolished our three pillared constitutional structure, and with it the regime of checks and balances of power. In the absence of even constitutional monarchy in India, the legislators, with all the powers concentrated in their hands, behave like kings. Engineers are murdered for donations to celebrate Queen’s birthday. Our existing system proves the efficacy of Lord Acton’s dictum, ‘Power corrupts and absolute power corrupts absolutely.’

5. The interference of politicians in the affairs of the judiciary was stopped by the Supreme Court through a verdict delivered in 1993. But even this verdict stopped short of resurrecting the three pillared constitutional structure. It merely marked out a corner of the kingdom as judiciary’s independent territory which would be henceforth out of bounds for the politicians. There is no wonder that the conflicts between the legislature and the judiciary are becoming more frequent and have started acquiring the features of tussle for supremacy between rulers of two adjacent territories. And there is also no wonder that the Supreme Court which took 43 years to discover that judiciary is an independent pillar of our three-pillared structure, is in no hurry to declare that the executive is the third independent pillar.

6. The executive powers of the Union are vested in the president by the following assertive language of Article 53 of the Constitution:- ‘The executive power of the Union SHALL be vested in the President and SHALL BE EXERCISED BY HIM either DIRECTLY or through officers subordinate to him in accordance with the constitution.’ (emphasis added). But in the existing system the President has been reduced to the status of a rubber stamp by slavish imitation of the British doctrine of binding ministerial advice which was not a part of our constitutional scheme till inserted by 42nd amendment in 1976. But right from the day the Constitution took effect, the executive powers have been exercised by a committee of legislators (council of ministers) headed by a legislator (the PM) and responsible to legislators (Lok Sabha).

7. It is this concentration of powers in the hands of the legislators which attracts selfish, dishonest and even criminal characters to electoral politics. They invest a lot of money and muscle power to win election. They know that after acquiring control of the governmental machinery and resources they will be able to recover their investment many times over, and the criminals who might be running from ordinary policemen will be saluted by DGPs and IGPs after winning election. Thus, the system has build in features which, on the one hand, engender evils like political corruption, criminalisation of politics and politician-criminal-police nexus and on the other hand discourages honest and good people from entering the public life. Voters are left with no alternative except to choose between bad and worse as their ‘rulers’. India is condemned to be ruled by villains so long as every election to the legislature is, in fact, a race for the EXECUTIVE chairs.

8. Incidentally, among the grounds on which COMMON CAUSE has challenged MPLADS are: (a) that these schemes militate against the principle of demarcation of responsibilities between the legislature and the executive, as they involve the legislators in the exercise of executive powers (para 10 of the written statement) (b) that these schemes seriously erode the notion of separation of powers, as the legislator directly becomes the executive (para 13 of the written statement) (c) that it erodes the system of checks and balances (Ground (i) for declaring MPLADS unconstitutional)

9. Frankly speaking, it will be a good idea if the District authorities are directed to take the aid and advice of the peoples’ representatives in all their development planning. Such a practice would deserve welcome, not challenge. What makes MPLADS objectionable is the binding nature of the MP’s advice in respect of the funds allotted under the scheme. Similarly, Article 74 of the Constitution providing for a council of ministers consisting of legislators and responsible to peoples’ representatives to aid and advise the President in the exercise of his functions was a beneficial feature of the Constitution. But imposition of the imported doctrine of binding ministerial advice in blind imitation of the British practice, which was not reflected in the Constitution till inserted by 42nd amendment in 1976, has made the entire system obnoxious. All the objections against MPLADS which are listed in para 8 above are equally applicable in respect of exercise of executive powers by the ministers. In fact, MPLADS involves limited funds and may corrupt a few MPs, but the existing system corrupts the entire polity and subjects the entire governmental machinery and resources to the possibility of misuse. Challenging the former while living with the letter is like treating a minor boil while ignoring the cancer.

   Constitutional Role Given to Political Parties

10. In democratic societies, political parties play an important role as platforms for public discourse to evolve and disseminate political ideologies, policies and programmes. They also seek to implement these policies and programmes by sponsoring candidates for election to the State institutions. The Constitution of India does not ban political parties, nor prevents them from sponsoring candidates. But a fact which seems to have escaped our attention is that the Constitution gives constitutional personality and role only to the winning candidates, and takes no cognizance of their sponsors, even if the sponsor is a political party. In fact, our longest and the most elaborate constitution of the world containing about 400 articles did not contain a single reference to political parties till these were given a back-door entry through 52nd amendment in 1985. Even the Representation of the People Act, 1951 took no cognizance of political parties till Section 29A was inserted in it in 1986. Evidently, the fathers of our Constitution intended the parties to be treated as extra-constitutional organizations. Even factually, many of the parties are pocket boroughs of single individuals or are controlled by single families by dynastic succession. But right from the day we became a Republic, we have been handing over the governance of the country to these private organizations on fiveyearly contracts. There is no wonder that they function as business establishments of power brokers, with little dedication to the professed political ideologies, policies and programmes which are used as shroud to conceal their profit earning motive. And because governments are formed by political parties, the shrouds acquire greater relevance in the eyes of the voters during elections than the quality of the candidates sponsored by them. This makes it easier for undesirable people to reach the positions of power. Disintegration of society into caste/community/region based vote banks is the part of the parties’ strategy to win the right to govern. Moreover, it creates the conditions for remote control of governments by party bosses, and for offer of hefty bribes to party bosses by arms dealers.

    Professionalisation of Politics

11. The Constitution of India starts with the declaration of India as a Republic. The defining feature of a Republic is that its sovereignty is vested in its people. The houses of legislature provide opportunity to the people to participate in the decision making process, but due to practical reasons this participation has to be through their elected representatives. Thus, MPs and MLAs participate in the decision making process on behalf of their entire constituency. But representing the fellow citizens in the houses of legislature is not of the same nature as the representation of a client’s case in the law courts by a lawyer for money. The latter is a professional activity while the former is a service rendered to the society and to the nation. Politics should never be seen as a profession. The primary objective of every profession is to earn money. Accepting politics as profession would provide justification to the politicians to use their political offices to maximize their earnings. Resort to corrupt means would be the natural consequences. Therefore, political corruption can only be checked by challenging those features of the system which make political work a profession. Today, even the houses of legislature are used to provide career opportunities to professional politicians and their near and dear ones. Is there any wonder that bundles of currency notes are waived on the floor of Lok Sabha?

    Road-blocks in putting the System Back on Rails

12. Having drawn your kind attention to the three systemic distortions which are the fountain source of corruption, I must admit that putting the system back on rails will not be easy. For example, people have been brainwashed for 60 years that the Constitution of India provides for parliamentary form of government. Telling them now that the system envisaged in our Constitution is the very antithesis of the Westminster model is like telling a 60 years old person that the people whom he always thought to be his parents were not his parents. Similarly, having always been told that political parties are essential requirement of democracy, they will not easily believe that political parties are not essential requirement but unavoidable by-product of democracy. We may have to live with them but not necessarily nurse them. As regards professional politicians, I have heard some well-meaning intellectuals, including High Court judges, pleading for more lucrative packages for MPs and MLAs. But the most unsurmountable roadblocks in nursing the system back to health are some Supreme Court judgments. Distortions have become entrenched in the system, and no way has been found to remove them because these stand approved by the apex court.

13. The parliamentary form of government received approval of Supreme Court in the following ruling given in the Samsher Singh vs State of Punjab (AIR 1974 SC 2192):-

    ‘It is the Prime Minister’s business, with the support of the Ministers, to rule the country, and the President may be permitted now and then to aid and advise the Council of Ministers.’ (conclusion drawn at the end of Para 111 of the verdict.)

    This ruling stands the scheme envisaged in Articles 53 ind 74 on its head. The contradiction between the two is justified by holding that the language of the Constitution is ‘terminological façade of euphemisms’ (para 96 of the judgment) and that the expressions used in it (‘aid and advise’) are terms of art. (paras 96 and 121 ibid). Thus, according to this judgement, the Constitution is not only a copy of Westminster model ‘borrowed’ from England but even the language of this fundamental law of the country, which is the touch-stone of the validity of all other laws, lacks the precision of legal language and is flavoured with euphemisms and terms of art: But this again, is justified by holding that the Constitution of India is not a compilation of laws but a declaration of articles of faith (para 127 ibid) and that cabinet form of government is its spiritual essence (para 117 ibid). Being a constituent (even if an insignificant one) of ‘We, the People of India’ who gave the Constitution to ourselves, I feel cheated by the view that the Constitution be treated like a book of ‘vedanta’ in which the spiritual essence as perceived by their Lordships should be considered more important than its text.

14. The political parties were given back-door entry into our Constitution by 52nd amendment popularly referred to as ‘Anti-defection Law’. It was based on the assumption that people vote for political parties and the political parties choose the candidates who shall represent the people. Even if it might be, by and large, true in a party-based system imposed on us, the assumption is not legally sustainable as it rubbishes the concept of ‘direct election’ envisaged in Articles 81 and 170 of the Constitution. The Supreme Court upheld this distortion of the Constitution in Kihota Holohan vs Zakilu & Others (AIR 1993 SC 412)

15. Professionalisation of politics has its genesis in the first two system distortions, namely, concentration of power in the hands of politicians and the constitutional role given to political parties. But there are some other features which consolidate the hold of professional politicians on the system. An expensive electoral system is one of them. The freedom to fight election in any constituency and in more than one constituency is to the advantage of professional politicians and is of no value for those who join politics to serve fellow citizens. This also violates Articles 81and 170 which require the legislators to be chosen FROM the constituencies and not merely BY the constituencies. This means that the representative of a constituency must belong to that constituency. This is proved by the fact that Articles 101 and 190 make no provision for vacation of seat by a person who is elected to two seats of Lok Sabha or to two seats of state assembly. But an impression that a constituency need not be necessarily represented by one of its own members but may be represented by a professional politician was created by Supreme Court judgement in Narayanaswamy vs Punnirselvam (AIR 1972 SC 2284).

16. From the above it is clear that eradicating the viruses which are responsible for our diseased system is not going to be easy because challenging some Supreme Court judgments through curative review petitions has to be apart of the curing process. I have carefully gone through all such judgments and find that sufficient grounds exist for review petitions. I have recounted these grounds in some detail in my Hindi book titled ‘Bharat ki Shasan Vyavastha:Punarmulyankan Aur Vikalp’ (Janvani Prakashan, Delhi, 1997). Being a retired person of advancing age, deteriorating health and failing vision, I have neither the physical capacity nor the resources to approach the Supreme Court or to engage Supreme Court lawyers. But I shall be happy to provide full details to any constitutional lawyer who volunteers to take this responsibility in national interest.

17. Sir, it would be naïve to expect the politicians to cleanse the system because they are the biggest beneficiaries of the corrupt system. Nor will it be possible for ordinary citizens to do any thing because the complexities of the constitutional law would be beyond their comprehension. Most of them, even the educated among them, might not have seen a copy of the Constitution, leave aside turning its pages. In my humble opinion the initiative has to come from:- (a) Constitutional lawyers who have the capacity to challenge the deviations from the Constitution. (b) Professors of Law and of Political Science who can highlight through lectures, writings and seminars, the dichotomy between the constitutional provisions and the existing system of governance. (c) The media which can create public opinion against the system distortions.

18. Perhaps persuading the leading lights in the above categories to do their duty to the nation could be included in the war against corruption.

    With warm regards,

    Yours sincerely,

    (H. P. Misra)