HVK Archives: Constituting a house of cads
Constituting a house of cads - The Telegraph
J. Sarma Sarkar
()
8 May 1997
Title : Constituting a house of cads
Author : J. Sarma Sarkar
Publication : The Telegraph
Date : May 8, 1997
The Indian Parliament has been empowered to pass necessary laws enjoined in the
Constitution - Article 11 - or the directive principles- Articles 38-50. But
Parliament has failed to follow up the law of citizenship as directed in Article
11, which has left the problem of refugees and infiltrators unsolved. The law of
citizenship is concomitant upon democracy. Increased representation signifies the
latter's growth. All Indian states beleaguered by the influx of refugees and
infiltrators Assam, West Bengal, Tripura, Punjab and so on - could have been
spared the accompanying political disturbances and electoral offences if a
citizenship act had been passed, making 1971 the cutoff year.
Parliament has over the years disregarded the directive principles, considered by
the Supreme Court as important as fundamental rights. Also, no effective laws
have been passed under Articles 14, 19 and 39A. Thus the safety of the common
man, as indeed of law itself has remained at a premium. This, while millions of
rupees are spent on the protection of VIPs and ex-VIPs. Indian legislators could
emulate Malaysia. When Malaysian authorities failed to curb terrorism, the
government passed a law making the possession of unlicensed arms punishable by
death.
Let us consider the problems of representation in election and service of
scheduled castes and tribes, under Articles 15,16 and 38. The Constitution did not
immediately grant reservations, granting instead a period of 10 years for the
backward segments to be absorbed into the mainstream of society. This did not
happen. But Parliament went ahead any-way, without taking adequate steps to
socially emancipate this segment. As a result, instead of a casteless society,
India has witnessed a deeper embedding of caste in the socio-political fabric. The
problem has been further compounded by the fact that India encompasses as many as
2,000 castes and subcastes and a similar number of tribes and subtribes, in
addition to half a dozen subcastes among minorities.
The Supreme Court directed the government to give effect to the uniform civil code
under Article 44. Most political parties disobeyed this for electoral gains.
Similarly the Supreme Court's desire to legalize the granting of maintenance to
divorced Muslim women under the Criminal Procedure Code too was disregard by
Parliament for fear of losing the Muslim vote. This was both unethical and
undemocratic.
It is therefore not surprising that the separation of the judiciary from the
executive, as per Article 50, was long delayed as the ruling parties did not want
to lose their control over criminal justice. Even now, investigations and
prosecutions in criminal cases are still controlled to a good part by the home
ministry. Ideally, such case should be under the jurisdiction of an independent
justice department, headed by an eminent jurist, who will also keep tabs over the
Central Bureau of Investigation and the state police forces.
Parliament has failed to pass other laws too. It has failed to gauge the
inadequacy - and outdatedness - of the present punishment methods as encompassed
in section 53 of the Indian Penal Code. Today there exists a host of modern crimes
related to the contamination of food and medicine, organized corruption and crime,
besides numerous economic crimes. Thus, punishments today should be harsher - 10
year imprisonment terms, cancellation of trade licences, forfeiture of property
and so on. New punishments like law induced social ostracism, house arrest or
night surveillance can be introduced for lesser crimes.
Additionally, Parliament has helped political parties become more autocratic both
in their aims and methods. Article 368 of the Constitution was amended, thus
enabling Parliament to effect constitutional changes without referring the matter
to the legislature. This, again, is unethical. More so, since there exists no
committee in India to study the situation and thrash out the implications of
passing bills, taking the views of the opposition and the general public into
consideration at the same time. The Anti-defection Act, for instance, has failed
to achieve its purpose. Disqualification from Parliament is against the spirit of
the Constitution and beyond the capacity of political parties which can only expel
the offending member from the party. Therefore, the anti-defection Law should make
provisions for expulsion from the party and for a bar on holding public office.
Moreover the frequent stoppages of parliamentary sessions send the wrong signals
to the public apart from costing the national exchequer dear. The interruptions of
the 1995 winter session of Parliament cost the nation Rs 60 million. These are
clear cases of contempt of Parliament and those responsible should be rightly
expelled or suspended. But very often steps are taken against opposition members
but very few or none against the ruling party which elects the speaker.
Similarly, the proposed bill for amending the conditions of judicial appointment,
transfer and promotion is unconstitutional. It should be remembered that the
judiciary decided to adopt an activist stance by the way, not unconstitutional -
only when the executive floundered, and systematically, in its duties. If the
Supreme Court has directed the Central Bureau of Investigation to report directly
to it, thus circumventing the executive, such a step is in the nation's best
interests. The cases under consideration will be free of political intervention
and judgments can be issued swiftly.
As far as appointment, transfer and promotion of judges are concerned, it is
proper the decision should lie with the chief justice of the Supreme Court in
conjunction with the 13 member bench of the apex court. Any attempt to change
this would be unconstitutional. A judiciary independent of the executive is part
of the basic structure of Indian democracy.
The executive's dithering with important legislations too is not surprising. The
lok pal bill, for example, was first floated as early as 1968. To this day it is
not a legislation. But the bill in its present form is not comprehensive enough.
The person in charge of vigilant cells can only make enquiry and at best sanction
prosecution. The loopholes, needless to say, can be taken advantage of. Political
manipulation can come in the way of such probes. Thus the bill is again
undemocratic as it may create a new privileged class.
Another bill knocking on the doors of legitimacy is the women's representation
bill. Parliamentary reservations for women may represent political correctness,
but will do little to alleviate the plight of the average woman. For that matter,
such a bill is likely to engender societal confrontations-along the lines of caste
and class. Reservations, however, can work in the local bodies, but on a
non-political basis.
This brings one to the issue of hung parliaments. It is the abuse of the party
system that ends in hung parliament and the abuse of Parliament that leads to
"hung" governments. Democratic governments work best when political parties aim
at the overall welfare of the nation. But most Indian political parties are only
interested in securing the vote of a particular caste, class or tribe, creating
distinctive identities on the grounds of language, religion and even region. Hung
parliaments are thus a logical consequence.
Under Articles 74 and 75, the prime minister is appointed by the president. There
is no mention of any political party. Nor is there any need for a parliamentary
vote in this matter as the prime minister does not necessarily need to be a member
of the house.
Ideally then, if there is no clear winner, Parliament itself should elect a
person, making an accrual of 50 per cent of votes mandatory. Then there need not
be any hung parliament at all. Also, in this way, a prime minister proves his
majority in the house before he is appointed. But if no candidate secures the
required number of votes, fresh elections becomes unavoidable.
Last, party sovereignty should be replaced by people's sovereignty. And party
rule by democracy.
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