Krishna K. Tummala is Professor and Director, Graduate Program in Public Administration, Kansas State University, Manhattan, KS, 66506-4030, USA. Apart from his several publications, he was Chair, Section on International and Comparative Administration (SICA) of the American Society for Pubic Administration (ASPA), Chair of the Kansas Chapter of ASPA, Senior Fulbright Fellow, and a Senior Research Fellow of the Indian Council of Social Science Research. He served on the Editorial Board of PAR. He won the first prize in an international essay contest on “Reservations in the Indian Public Service,” held by the Indian Institute of Public Administration, Government of India, and received the “Public Administrator of the year, 2001" award from the Kansas chapter of ASPA. He served as a member of the National Council of ASPA, and the Executive Council of the National Association of Schools of Public Affairs and Administration (NASPAA). He is Vice President (President-elect) of the Public Administration national honor society, Pi Alpha Alpha.
At a time of mounting criticism in the United States that post September 11 efforts at curbing terrorism such as the Patriot Act and its application, are in fact leading to the aggrandizement of executive power and the erosion of many a civil right, it would be of interest to see how other countries have tried to subvert the constitution for partisan reasons. The case of India is a prime example.
Much has been written on corruption in its transactional sense where money changes hands in anticipation of favors, or favors that have already been rendered. But not much attention is paid to the more insidious corruption: regime corruption. Defining a “regime” as the entire political and constitutive systems, this paper deals with this aspect of corruption where politicians use, or abuse, the political, legal and constitutional systems for partisan and personal gain. The blame is placed on the Hindu social system, transient governments, and the political parties and their leaders, thus demanding a clean sweep of things in the country.
The argument here is that a constitutional government is more preferable to popular government, as argued by the ancients such as Plato and as advocated by the modern day writers such as Chester Newland.
REGIME CORRUPTION IN INDIA “Constitutions do not ‘work,’ they are inert, dependent upon
being ‘worked’ by citizens and elected and appointed leaders. Granville Austin, 1999
Much has been written on corruption in India, and a great deal of energy is expended in discussing it.i Yet, little has been accomplished in reigning it in, much less in eradicating it. Transparency International in its 2003 Corruption Perception Index placed India 83 among the 133 nations that were studied.rd The Center for Public Integrity– a non-partisan Washington based group– placed India in the “weak” category in its study of 25 nations.ii In another survey, India is placed second among the most corrupt Asian nations (after Indonesia).iii While there are other Asian nations that do much worse,iv one must note that India is portrayed as the world’s largest working democracy. Hence its burden. This paper does not dwell on the ubiquitous transactional corruption where money changes hands for services rendered or in anticipation of favors, and its causes and consequences, as it was already discussed elsewhere.v Instead, a particularly sinister type of corruption – regime corruption – is discussed here, under the following format.
The first section defines a “regime”. The second examines the general constitutional issues. The third dwells on the particular concern with the (mis)use of the Emergency Powers. The fourth looks at the effort to undermine the Supreme Court of India. The fifth deals with the end-runs made by those outside of the constitution as well as those holding constitutional offices. And the final section draws some conclusions.
I. Defining a “regime”
A “regime” is defined here as the entire spectrum of the political system, in particular the constitutional provisions. Borrowing from Ken Jowett, regimes are corrupted when “the particular interests of the party members become confused with and practically indistinguishable from the party’s organizational and general interests.” As Jowett was dealing with only the Leninist parties, here the definition is enlarged to encompass the actions of the government in power, the members of the various parties (both inside and outside of the government), and other assorted individuals of influence. Interest here is in preserving the constitution as opposed to the promotion of popular governments. No doubt, constitutions as artefacts do, and shall, change as societies and times change. What is objectionable– the theme of this paper– is the practice of using or subverting them for partisan and personal gain, while in the process the constitution is often thrown to the winds
Even the ancient writers such as Plato and Aristotle were preoccupied wit the importance of creating and preserving constitutions and the rule by law. For Aristotle, a constitution is a way of organizing those living in a state. “Constitution is the arrangement which states adopt for the distribution of offices of power, and for the determination of sovereignty and of the end which the whole social complex in each case aims at realizing. Laws are distinguishable from description of constitutions in that they prescribe the rules by which the rulers shall rule and shall restrain those that transgress the laws.” Hence the admonition that laws are to fit the constitution and not the other way around.vi Earlier, Plato realized that states are not made of “oak and stock” but vary as human nature does.vii Among our contemporaries Chester Newland has been arguing for constitutional government for most of his academic life. In the recent past, fearing the unbridled growth of executive power under the threat of terrorism in the United States, he admonished thus: “Accountability of government to constitutional principles that assure human dignity and government under law is now challenged in efforts to deal with extreme complexities of terrorism and security. Such accountability may be especially threatened when the field of public administration neglects these principles by considering constitutional values and the basic responsibilities of civic duty and public service to be limited to citizens.”viii
II. Indian Constitution in general
The federal form that is provided by the Indian Constitution was characterized as sui generis.ix As the effort at large was to keep the nation together, the federal government itself has been called as “The Union.” Parliament at the Centre (as the federal government is commonly known) can change the boundaries of any State, or even dismember it altogether, by merging all or part of it into another State or with parts of other States (Article 3). The executive power of the States shall be so exercised as to ensure compliance with the laws passed by Parliament (Article 256), and not to impede or conflict with the executive power of the Centre (Article 257). Moreover, in pursuit of national interest, Parliament is empowered to legislate for one or more States for an year at a time, if the Rajya Sabha (the upper House) so passes a motion by a two-thirds majority (Article 249). While the legislative powers to be exercised are separated into three different Lists– federal, State and concurrent, with the last that can be exercised by both the federal and state governments– all residuary powers are left for the Centre (Article 248).
In 1975, using the Emergency Powers (see Section III, below) Prime Minister Indira Gandhi declared an “internal” emergency, and attempted serious tinkering with the Constitution for the first time since its adoption. Ever since taking over the party in 1969 after defeating the Congress party “syndicate,” and calling the party after her own self– Congress (I), “I” for Indira– she wanted to turn “democratic socialism” toward a more militant left. Some urgency to this was added when her election to the Parliament in 1971 was successfully challenged with the prospect of her being debarred from political life for six years under the law. As the Supreme Court was set to hear her appeal on August 11, 1975, she declared an “internal emergency” claiming that she wanted to ensure the nation’s internal security from a “conspiracy.”x There of course is no denying the fact that she intended to perpetuate herself in power. To this end, her efforts in meddling with the Constitution have been so far without parallel.
Commanding more than a two-thirds majority in Parliament, she set out to amend the Constitution to suite her needs. The first was the Thirty-ninth Amendment passed in August 1975 which modified Articles 71 and 329, in effect empowering the Parliament to entrust to a forum other than a court all matters relating to the election of the President, Vice-President, Prime Minister and the Speaker of Lok Sabha (the lower House of Parliament). Also the Ninth Schedule of the Constitution was amended to take several laws, (largely pertaining to estates and private property) out of the purview of judicial review (by placing them under Article 31 B).xi In November 1975 the Court upheld her election, and in December Indira Gandhi suspended several Fundamental Rights guaranteed under Article 19.xii
There had indeed been a contest going on for some time between the executive and the judiciary as the former felt that the latter (the Supreme Court) derailed some of the efforts of the government in its pursuit of militant socialism, as well as the right of Parliament to amend the Constitution, leading to what came to be known as a “judicial blockade.” Several Amendments, the Twenty-fourth, the Twenty-fifth and the Twenty-sixth– all in 1971– were passed to neutralize some of the decisions of the Court. But the Forty-second Amendment of 1976, ostensibly passed to herald a “socio-economic revolution” in the country, was the most sweeping and damaging as well. With over 59 clauses, this Amendment in effect re-wrote the Constitution. India was declared a “socialist secular” state (and continues to be so even after the 1990 New Economic Policy’s liberalization). National integration was emphasized. Primacy was given to Part IV of the Constitution (the “Directive Principles of State Policy” which thus far were simply guidelines to governments as the very title indicates, and could not be enforced by a court of law) over Part III guaranteeing Fundamental Rights (equality before, and protection under, law, per Article 14; freedom of speech, etc. under Article 19; and the Right to Property under Article 31). Thus, those Fundamental Rights that were thought to be obstacles in pursuit of Part IV were neutralized. A new clause asserting Fundamental Duties of citizens (such as upholding the Constitution, national integrity, etc.) was added.
A more serious provision of this Amendment was meant to curtail the jurisdiction of the Supreme Court and State High Courts. From now on, there would be no limit to the power of Parliament to amend the Constitution, and the Courts could not indulge in judicial review of the same. Even judicial review of ordinary laws was removed from the purview of the lower courts; only the Supreme Court with a two-thirds majority could rule on their constitutionality.
As most of these changes remained without much protest from the nation, Indira Gandhi surprised everyone by calling a general election in March 1977. That proved to be her Waterloo; she lost he election and was out of office. The succeeding Janata government set out to correct several of these aberrations. With the passage of the 1977 Forty-third Amendment, the Supreme Court was restored to its previous position. The 1978 Forty-fourth Amendment made property an ordinary right (no more a Fundamental Right) which cannot be deprived save by authority of law. It also deleted the protections accorded to legislation in pursuit of Part IV of the Constitution. Later, in the Minerva Mills decision of 1980, the Supreme Court, reiterating its previous position of 1973, curtailed the unbridled power of the Parliament to change the “basic character” of the Constitution through amendments.xiii The controversy over the power of Parliament to amend the Constitution is not new. In I. C. Golaknath v. Punjab (AIR 1967, SC 1643), the Supreme Court denied Parliament the power of amendment so as to subordinate Part III to Part IV of the Constitution. In 1973, in Keshavananda Bharati v. Kerala (AIR 1973 SC 1461), the Twenty-fourth Amendment which gave Parliament the power to amend the Constitution was challenged. The Court here ruled that the Golaknath decision prohibiting Parliament from amending the Constitution was wrong. However, the Court also stipulated that Parliament cannot destroy the “basic structure” of the Constitution (without defining what constitutes “basic structure”). In Waman Rao v. Union of India (AIR 1981 SC 271, para 15, p. 278), the Court clarified by saying that whether the basic structure of the Constitution is destroyed in a particular case depended upon “which Article of Part III is in issue and whether what is withdrawn is quintessential to the basic structure of the Constitution.” It also restored the primacy of Part III of the Constitution (Fundamental Rights) over Part IV (Directive Principles). Thus a balance was restored in tune with not only the desires of the founding fathers, but also in consonance with basic democratic norms.
III. Emergency Powers
Most federal Constitutions, with the notable exception of the United States of America, contain some provisions to contend with forces that might pull the nation apart under pressures from the federating units.xiv Independent India, in particular, had to contend with the trauma of partition and the myriad fissiparous tendencies due to language, regional and cultural differences. To that end, Part XVIII of the Constitution provided the “Emergency Provisions” (Articles 352-360).
Three types of Emergency were foreseen: due to war, external aggression or armed rebellion (Article 352); because of failure of constitutional machinery in the States (Article 356); and a financial emergency (Article 360). While there was no financial emergency so far, there were four national emergencies (under Article 352): 1962, 1964, 1972 and 1975. The first was due to a war with China, and the second and third were because of wars with Pakistan. The fourth was the internal emergency proclaimed by Indira Gandhi, as seen above.
It is, however, Article 356 that is significant in terms of its misuse by all governments, and the very continuation of a federal form itself. As this subject was dealt with elsewhere in greater detail, only a brief discussion ensues here with relevant contextual citations of previous writings.
Under this Article, if the President is “satisfied” on receipt of a report from the Governor of a State, "or otherwise", that a State government cannot be run in accordance with the Constitution, he may issue a Proclamation of Emergency. Such a Proclamation shall be laid before each House of Parliament and will cease to operate at the end of two months unless approved by both Houses before that time. If approved, it will be in operation for six months and may be renewed at six month intervals, but not to exceed a total of three years. The Parliament shall confer on the President the powers of the legislature of the State who in turn may delegate the same to any authority of choice. The elected legislative Assembly of the State in question can be dissolved, and the President may suspend the application of any or all parts of the Constitution (except those pertaining to the High Court of the State). In other words, a federal form of government can be transformed into a near unitary one, though temporarily, under Article 356.
Given such a critical power of the Centre, one would expect that Article 356 would be used sparingly and with great caution after considerable deliberation. But such has not been the experience. So far as over 100 majority governments and duly elected legislative Assemblies of States were dismissed by the Centre. Initially, this provision was so appropriately invoked to dismiss either unstable or corrupt governments that led M. V. Pylee, an authority on constitutional law, to conclude that “... in practice, the emergency provisions...have proved to be...a protective device for responsible government.”xv
The subsequent experience, however, proved beyond dispute that this process has been thoroughly politicized and perverted in that several State governments controlled by a party (or parties) opposed to the party/parties in power at the Centre were unjustly dismissed and Presidential rule imposed, thus arbitrarily taking over the duly elected State governments under virtual central control. In just a two year span during the Janata rule in 1977 and the succeeding Congress (I) government in 1980, in six out of nine cases, State governments which were duly elected to power and continued to enjoy majority support in their respective States were dismissed by central governments controlled by the Opposition. Or, to put it differently, the new government at the Centre had conveniently gotten rid of those State governments which were approved by the previous Opposition government at the Centre in what appears to be a political tit-for-tat move.xvi
Perhaps the most blatant abuse of this power occurred in 1992. The Congress (I) government at the Centre duly dismissed the Bharatiya Janata Party (BJP) government in Uttar Pradesh (UP) consequent to a serious law and order problem following the demolition of the Babri mosque in Ayodhya.xvii But the central government did not stop there. It dismissed three other State governments which had nothing to do with the demolition of the mosque, nor with any other law and order problem: Madhya Pradesh (MP), Rajasthan and Himachal Pradesh (HP). The only common thread was that they were all BJP governments. Not unexpectedly, the MP Chief Minister Sunderlal Patwa went to court challenging his dismissal. That State High Court ruled in his favor stating that “...the consequences which flow from the Proclamation under Article 356 are drastic,” and that “this extraordinary power should not be permitted to be used or abused to achieve political ends.”xviii (However, on appeal by the Central government, the Supreme Court upheld the dismissal stressing the secular nature of the country which they thought was threatened under the circumstances.)
Two more egregious examples in this context were the one under the United Front rule in 1997, and the other under the BJP rule in 1998-99, both by-products of coalition politics. The first was in UP and the second was in Bihar. Following up on an year of President’s rule, UP went to polls in 1996, and no party got the requisite majority to form a government though the BJP came out with the single largest plurality (174 seats out of a total of 425). However, contrary to parliamentary convention of calling the majority party to form the government, the Governor of the State did not invite the BJP, arguing that the combined opposition had more seats than the BJP. Instead, he recommended that under Article 356 President’s rule be imposed.xix The BJP challenged the Proclamation, and the Allahabad High Court ruled in its favor by quashing President’s rule. But the Supreme Court stayed that order, and said that the Assembly should not be dissolved so that a political solution could be found. Consequently a coalition government was cobbled together by the BJP and the Bahujan Samaj Party (BSP). Later, when this coalition was almost falling apart (with BSP pulling out), BJP Chief Minister Kalyan Singh engineered several cross-overs from other parties and proved a majority on the floor of the House. Yet the United Front government recommended President’s rule under Article 356. The President declined, and returned the recommendation for a re-appraisal by the United Front government. The government withdrew its recommendation, and Kalyan Sing continued as UP Chief Minister.
With the demise of the United Front coalition, a general election was called in 1998, and this time the BJP came to power at the Centre by forming a coalition government. And it was its turn. Bihar was under the rule of Rabri Devi of Rashtriya Janata Dal (RJD), who was anointed as Chief Minister by her husband Laloo Prasad Yadav. (He was himself the Chief Minister but had to resign under a plethora of corruption scandals which came up in the courts.xx) But knowing the pressures to invoke President’s rule, Rabri Devi in her turn, in a preemptive stroke, went to the legislative Assembly and won its confidence with 182 votes (in a House of 325). The BJP government at the Centre, however, under the pressure of one of its coalition partners, recommended the dismissal of her government in September 1998. Again, the President returned the recommendation for reconsideration, and the BJP government also backed down. But in February 1999, as the law and order problem got worse in the State what with the massacre of several backward class people, the BJP government recommended for a second time the dismissal of the Rabri Devi government, and the President obliged.
While the Proclamation was ratified by the Lok Sabha by a very thin margin on February 26, 1999, its fate in the Rajya Sabha (the upper House) was almost a foregone conclusion as the BJP had only 45 seats, while the opposition Congress (I) was in the majority with 64 seats (out of the total 245 seats). To avoid a loss of face, the BJP decided to revoke the Proclamation on February 9, 1999 – the first of such an experience in Indian history. Rabri Devi was restored to power.
At the time of this writing (summer of 2004), another drama was being enacted. In the State of Arunachal Pradesh, thirteen legislators, including eleven Ministers and a former Speaker, left the United Democratic Front government of Gegong Apang, and joined the Congress (I) party (which is leading the UPA government at the Centre). The Governor of the State, V. C. Pandey, had already recommended that the Centre take over the government of the State. The Chief Minister, while admitting that he would have early elections in the State and his government will run as a care-taker in the meanwhile, has claimed that the opposition had unfairly pressed the Governor to recommend President’s rule, and hoped that the Centre would not yield to these pressures. And the Congress (I) led UPA government of Manmohan Singh at the Centre is just waiting.
It is important to note that under Article 356, the President has to be “satisfied” that there is a failure of State machinery. What the content of the Governor's report is, or what prompted the Governor to report in the first place, and whether the President is truly “satisfied,” are major issues in this context. Whether these are subject to judicial review has been long disputed. Under Article 74 (2), no court can inquire into the advice given to the President by the Council of Ministers. Similarly, Article 361 (1) decrees that no court can question the action of the President in the exercise of his powers and duties; only the Parliament can under Article 61 (by impeaching the President).
The 1994 Bommai judgement of the Supreme Court is of importance in this context.xxi While admitting that Article 356 and other provisions in the Constitution do turn India into a “quasi-federal” government, the Court laid down the following norms: exercise of Emergency Powers is subject to judicial review, even after Parliamentary ratification; the President has to be “satisfied” that there is a breakdown of constitutional machinery, not necessarily based on the report of the Governor alone but also “otherwise”; his discretion to use these powers thus is not absolute but qualified in that grounds and reasons for reaching “satisfaction” supported with material, and the gist of events be provided; the Governor of a State must invoke Article 356 only as a last resort; the State legislature may not be dissolved until the Parliament ratifies the Proclamation; Parliamentary disapproval of a Proclamation of Emergency itself does not restore the dissolved Assembly, but a new election will (or, the Court may restore it); when a government enjoys the majority in the legislature, to impose President’s rule in a situation of mal-administration of the State will be construed as extraneous to the purpose of Article 356; and a central government, even if it is elected with a landslide majority, cannot dismiss a State government solely on the basis of the fact that it is of a different party so long as its ideology is in consonance with the Constitution. Contrarily, an Emergency may be declared when attempts to subvert the Constitution are noted even when the government in question were to profess to work under the Constitution.
As the above guidelines are not binding, not much attention was paid to them in practice. Gujarat is a case in point. This story starts on February 27, 2002 when a train load of Hindu devotees returning from Ayodhya were attacked and the train itself was set on fire by a Muslim mob in Godhra, killing 58 people. The communal tinder box was lit resulting in the death of nearly 700 people, mostly Muslims, and with around 56,000 said to have been displaced initially.xxii The greatest irony was that this had to happen in the State where the apostle of peace, Mahatma Gandhi, was born. Beyond the tragedy, the problem for the BJP (which led the coalition government of the National Democratic Alliance – NDA) was that the State’s Chief Minister, Narendra Modi, is its party man who was accused by the opposition of doing nothing to stop the carnage at best, and encouraging the Hindus against Muslims at worst. Whether there was any complicity of his government in this communal mayhem by fomenting the Hindu mobs is a matter yet to be judged. (That Modi used communal tensions for political advantage during his later successful election campaign during December 2002 is, however, beyond dispute (see below.) The National Human Rights Commission (NHRC) charged Mody with “comprehensive failure.”xxiii Consequently, even some of the members of the NDA, demanded that the Modi government be dismissed (under Article 356), but the Vajpayee government not only did not yield, but went on to absolve Modi of any responsibility. At the National Executive meet of the BJP on April 12, 2002, in Goa, Mody offered his resignation. But the party rejected it. Once more, partisan politics prevailed over Constitutional principles and good governance.xxiv
Given the controversy and the misuse of the Constitution, there have been several demands for the deletion of Article 356 from the Constitution altogether. In 1988 the Sarkaria Commission, while recommending the retention of Article 356, admonished that it be used very sparingly, only in extreme cases, and as a measure of last resort. On May 10, 1997, the Standing Committee of the Inter-State Council decided not to scrap Article 356, but to have ample safeguards against its misuse. They could not, however, agree what the safeguards should be. The Home Ministry of the Government of India in a note of January 1997, apparently taking a leaf or two out of the Bommai principles as seen above, proposed that a clause stipulating that the material and grounds on which the proclamation is issued for the dismissal of a State Government shall be specified. Another clause proposed that the President shall not dissolve an Assembly unless authorized by Parliament. The Constitutional Review Commission in 2003, while recommending that Article 356 be not deleted, cautioned that it be used sparingly and only as a lost resort. It also suggested that in case of a political breakdown, the State in question be given an opportunity to explain its position and try to redress the situation before invoking the dreaded Article.xxv Nothing came of these several recommendations. As of now, Article 356 stands in its original form, and the above examples prove its blatant misuse for partisan purposes, thus thoroughly corrupting the original intentions of the Constitution.