It is a special honour to be called upon to deliver the Tenth Prem Bhatia Memorial Lecture.
1.1 It is a double honour. Firstly, we have an opportunity to recall the remarkable person after whom the lectures are named And secondly, In being a successor to the distinguished line of speakers who have delivered the earlier lectures
1.2 Any discriminating reader of our press does not need an introduction to Prem Bhatia. He was a pre-eminent political journalist. In a career spanning six decades, he worked with Civil and Military Gazette, The Statesman, The Tribune, The Times of India, The Indian Express and The Guardian. His views as a commentator on domestic and international affairs were particularly respected because he was not a mere “Witness to History” but a participant in it as a diplomat in the Indian Embassy in Moscow and later as the High Commissioner to Kenya and Singapore More important than the positions that he occupied were the qualities he brought to bear on his professional work. He understood that the role of a responsible press is critical to the functioning of a democracy. Prem Bhatia was a man of unimpeachable integrity and this gave his writings greater credibility. And he wrote with a refreshing candour and honesty. As a friend described it, he had the felicity of calling a spade a spade with elegance! (He maintained the civility of not using the contemporary approach of calling it a bloody shovel.) But some of his later writings on the “Byzantine world of Indian politics” disclose his growing disillusionment with the erosion of values in our politics. He observed “While the politicians quarrel and count their profits and losses, institutional issues have been pushed into the background …There is no time in the eyes of our leaders for programmes, policies and principles. What matters just now is who the new rulers will be by whatever method they can be teamed up.”
1.3 It is right to pay heed to these concerns because he wrote from the perspective of a journalist who had worked through the independence movement, the partition of India and the establishment of our democratic republic. These are the very concerns that I want to share with you today.
II. ASPIRATIONS AND REALITY
2.1 The problem of dangers to democracy is a perennial one. Each free society has to balance constantly individual freedom and State Authority. Today, we can see this as a growing dilemma for older democracies besieged by terrorism. But we in India have to be far more concerned with the more serious issues of continuous debasement and the failure of institutions so carefully set up by the Constitution.
2.2 Although India has perhaps the longest continuous civilization in the world, the experiment of formulating a framework for a modern democratic state with full adult suffrage was a new one In the area of law and institutions. India has its own traditions. for instance has the oldest pedigree of any jurisprudence. However, the concept of an accountable. The Hindu law jurisprudence executive. a representative legislature and an independent judiciary which could invalidate laws were new for us.
2.3 When India framed its democratic Constitution, it had the Government of India Act, 1935 in operation. But the great effort was now to set up different institutions to further and protect our new independence as also to introduce the idea of fundamental rights which were not derogable. This was a concept not then prevailing in England. We, therefore, had to draw upon the experience of Constitutional democracies like France, Ireland and United States. The labours of the Constituent Assembly began well before independence on December 9, 1946 with proposals which would be alien to our secular republic like communal reservations. What is fascinating about the Constituent Assembly Debates are their quality and how members from different parties rose to the occasion In many ways, the discussions represent some aspects of “our enlightenment” like the French enlightenment. The great drive of the constitution makers was to establish a framework which would embody our aspirations, including establishing checks and balances between the executive, the legislature and the judiciary.
2.4 Were these institutions inflexible? The Constitution makers were not unaware that the institutions they were setting up were always subject to change. The Constitution is a living document and has to be interpreted according to the changing needs of time. Dr. Ambedkar expressed this idea by stating that ” the idea that institutions established for the use of the nation cannot be touched or modified, even to make them answer their end, because of rights gratuitously supposed in those employed to manage them in the trust for the public, may perhaps be a salutary provision against the abuses of a monarch, but is most absurd against the nation itself. Yet our lawyers and priests generally inculcate this doctrine….. ” But could the framers anticipated the nature of the transformation? Could they have dreamt that Ministers charged with serious offences against public order or corruption would continue to hold positions involving public trust or that the legislatures would be graced by men who like nimble trapeze artists in a circus could jump from party to party with perfect poise and without losing their smile, and become prosperous in the bargain.
2.5 Any political analysis has to steer clear of the problem of comparing the reality of a society against some ideals spun out of a specific political vision whether Utopian, Platonic or Marxist. Each society has its own traditions and approaches A realist like Kautilya or Machiavelli takes a view of the society as it is and not as it ought to be. Even while maintaining a middle path between the realist and the utopian view. anyone who is concerned with the working of our State for the last fifty years would wonder about the great gap between aspirations and reality. Many of those who man the institutions we have tried to set in place like civil servants legislators, judges, Speakers, Ministers, Governors and sometimes even the Prime Minister and the President have not always lived up to the expectations and the obligations enjoined by the Constitution One can analyze this debasement institution wise and narrate their growing failures But this would surely result in the familiar litany of grievances. It may perhaps be more useful to try to discern some characteristics of our society or what Walter Oakshott called its “political traditions.” What are the trends underlying our society that explain why the aspiration of the Constitution has yielded a very different result from what was contemplated?
2.6 We may not all agree as to what these tendencies are. But it is well worth trying to identify some of them Many of these attitudes are not articulated or even admitted They are not inflexible and hopefully, subject to change This approach may be more helpful than making a list of grievances and ending with recommendations for some more law or for one more Commission of Inquiry
II. LAW AS NORM AND NOT A COMMAND
3.1 When appearing in the Supreme Court, what lawyers and litigants see behind the dias of the Judge is the symbol of the Supreme Court with the epigraph Yato dharmah tato jayaha”. In Shanti Parva of Mahabharata, Bhishma describes dharma as that which sustains or keeps the society together Dharma is a noble concept and has many shades of meaning including tradition, duty, the law, religion and righteousness itself. These hold a society together But it is clear that the consequences of infraction of each nuance is different. This is a markedly different approach from the Western view of law where it is a command and any violation carries the peril of punishment I n fact, the maxim at Common Law is “fiat justitia, ruat coelum” -let the law prevail even if the heavens fall.
3.2 1n a way, all of us are affected by law because it governs us even before we are born and our estates even after we have shuffled off the mortal coil. Anyone who has to do with the working of the law in actual practice must wonder why we do not regard law in general as an inviolable command but rather as a norm which it is generally desirable to follow It is not that we are a lawless society and flout the law point am making is that that our approach to law is different. In fact we are very fond of making laws and trying to resolve all problems by legislation remember that in Maharashtra, the legislature even passed a law to abolish the term “famine” from all its statutes. Preamble of the Act optimistically stated that there is now no scope for famines to develop The problem. however. is the old one of obedience and enforcement, whether in routine matters like obeying traffic rules to far more serious issues like making candid statements to police or to court on oath The approach often is to do what is convenient in the hope that if it is in accordance with law. so much the better This is despite the protestations that we always follow the law. recall that at a discussion session, all participants agreed that the law should be implicitly obeyed. This was in the days when a person required a health certificate to leave India, after taking a cholera and typhoid shot now asked the Captains of industry present how many of them traveled after obtaining a genuine certificate. Only one or two of them in the seminar said they traveled after they had taken the shot. have no doubt the rest of their colleagues thought they were men without any influence.
3.3 There are several reasons for this approach I n the past, the law itself was not a uniform command Take penal law where stark uniformity would be expected Before the British. we had criminal laws -not a criminal law. These varied according to the community of the accuser and the accused In many areas, Muslims were governed by one Code and Hindus by another. Even among the Hindus, punishment depended on who did what and to whom. A Brahmin outraging a person of a lower caste was treated differently from a person of lower caste outraging a Brahmin. Kautilya has a well organized table in his section on Law and Justice. Like many ancient Indian texts which are full of lucid tables, Arthashastra meticulously provides separate punishments, for instance, for hitting below the navel, above the navel or on the head. But it is preceded by the note that the punishment may be doubled or halved depending on the castes of the accused and the victim. Now, of course, we have no such tables. But in practice, the Brahmin is replaced by the leaders of society as the elite group
3.4 This idea that law is not an inflexible command is well illustrated by the manner in which statements are made in investigation to the police or on oath in court. and then retracted with impunity. Consider the contrast. Witnesses and parties also lie on oath in other jurisdictions but the consequences are far more drastic. In America, the Attorney General, John Mitchell, and the Vice President, Spiro Agnew faced punishments for false statements on oath or during investigation. You will remember that the impeachment charge against President Clinton was founded not on his misconduct but for making a false statement. Jeffrey Archer in England had to undergo a jail sentence for perjury have found time and again that persons go back on solemn documents. make inaccurate statements on affidavits and the courts almost never invoke the power of punishing perjury.
3.5 Thirdly, there is also a VIP syndrome where persons who feel they are of importance -past, present or future -take it that the law must bend to their desires, shall illustrate this with a case with the rather peculiar title “In regarding Red Light on the Cars of the Hon’ble Judges of the Hiqh Court”. Judges had not been specified in the Motor Vehicles Act as dignitaries who could use red lights on their vehicles The High Court took cognizance of the fact that the vehicles of two judges were put to inconvenience at the hands of a constable who mindful of the law but unmindful of their eminence, questioned their using red lights In a detailed judgment, the learned Judges referred to the nobility of their office and observed -“the stream of administration of justice which is a sacred one like river Ganges emanates from the Constitution which unlike other rivers flowing from the same source has in itself a potentiality of cleansing mechanism not allowing pollution to overcome it, leading to stagnation of rule of law.” After paying this well deserved compliment to themselves, the learned Judges went on to say that although Judges were not mentioned, they were implicitly covered by the provision in the Motor Vehicles Act about the flashing red light as who could possibly doubt they were high dignitaries, specified or not Then they added that detaining or stopping of vehicles of a Judge might in given cases be contempt of court.
IV. OVERLAPPING CIRCLES OF LOY ALTY
4.1 The second characteristic which governs even our public conduct is what may term as overlapping circles of loyalty. In his private behavior, a person is bound to show concern for his family, his clan, his village or his community But very often this translates into the area of public conduct Our loyalty to caste or constituency transcends our obligations to law This was brought vividly to my attention when was dealing in court with a gentlemen who was vegetating in prison after having run down several large companies successfully by milking them dry, A keen observer of caste told me that whatever the findings of the High Court, his family would continue to be honoured and his children would be regarded as extremely eligible He explained how. before the collapse of his company, this gentlemen had returned all the deposits of the people of his village and from his community who in turn were extremely grateful for this noble gesture. Similarly we had a minister from a Northern State who was found padding his mattresses with currency notes running into crores but had provided his constituency with the facility of Inexpensive telephones. The fact that he helped his constituency prevailed over any handicap of corruption charges when he faced the electorate.
4.2 With the great diversity of India, there are so many different overlapping loyalties that honesty or competence are in danger of becoming a far less relevant issue than the family I the caste or the community. Some of the debates in the Constituent Assembly reflect the aspiration that with adult suffrage caste or communal factors will wither away. Exactly the opposite has happened. After independence, the call of caste or community has become stronger and more and more dubious gentlemen are finding their way to the legislature by direct elections irrespective of their misconduct in the world at large. Sometimes even the identity of the candidates is not relevant as much as the group to which he belongs. Today , the electorate does not even insist that all politicians should have integrity. We have perhaps attained the condition that we can now adopt the American definition of an honest politician, namely, that once he is bought he stays bought.
V. BHAKTI MARG IN POLITICS
5.1 In the matter of religion, the Indian concept of transcendence accepts the way of devotion (bhakti) as much as the way of work (karma) and the way of knowledge (gynana). The way of devotion involves surrender to God or the guru without questioning his decisions. But this is easily translated into politics and carries its own danger.. This was pointedly mentioned by Dr. Ambedkar in his concluding address to the Constituent Assembly when he adapted the caution given by John Stuart Mill to all who are interested in the maintenance of democracy, not “to lay their liberties at the feet of even a great man, or to trust him with powers which enable him to subvert their institutions”, Then he added his own perception’ caution is far more necessary in the case of India than in the case of any other country. For in India. Bhakti or what may be called the path of devotion or hero-worship, plays a part in its politics unequalled in magnitude by the part it plays in the politics of any other country in the world Bhakti in religion may be a road to the salvation of the soul. But in politics, Bhakti or hero-worship is a sure road to degradation and to eventual dictatorship.
5.2 This observation is of particular interest because in his contemporary writings on religion, Dr. Ambedkar as a Buddhist emphasized that beliefs in infallibility even of the books of dhamma is not dhamma, and cited the admonition of Buddha from Kalamsutta that the views attributed to a guru or even to the Buddha himself must not be accepted blindly but be tested.
5.3 Such cult of bhakti is not confined to any political party It breeds courtier politics where all the wisdom is attributed to the leader for the time being There is a Sanskrit verse that concludes that all the virtues reside in the person who owns gold (sarve guna) kanchanam ashrayante). It is preceded by the thought that the person who possesses gold is great in all his accomplishments, that is he is a great speaker as well as very pleasant to look at. This also applies to our leaders. If a Prime Minister writes a poem, it reminds his fawning critics of Keats and Shelly!
6.1 The other characteristic is that the need to win elections and to please the constituency is so critical that it is done at the cost of what is best for the State. This is what one can call populism where the interest of the society as a whole is abandoned in order to achieve the personal purpose of remaining in power. This is a recurrent theme in a large number of policy measures taken by the Government.
6.2 All town planning schemes which include open spaces or green belts are slowly sacrificed for bungalows of the rich who bring in money or unauthorized construction of slums which bring in votes. Similarly, parties compete to provide free electricity to farmers. If one party promises six free hours, the other excels it by promising eight free hours. This populism has resulted in a situation as in Maharashtra where continuous electricity is not available to farmers who are willing to pay because no system can function with such largesse.
6.3 Connected with this is the reluctance for leaders or opinion makers to articulate unpopular views. Take communal incidents. One would expect that the leaders of the community will speak up against communal incidents and against bigotry and fundamentalism. But to do so would be to forfeit their popularity amongst their own constituency. So such brave voices are few and far between Professions are not far behind. When advocates go on strike inconveniencing litigants and creating even further disruption in an already sluggish judicial process, senior advocates remain mute and unprotesting. At present, there is an order of the Supreme Court which requires that an Advocate who does not want to participate in court work must return his brief and not inconvenience the court This is regularly breached in practice by gentlemen of law and no action is taken for fear of unpopularity with the Bar
VII. NON-RECOGNITION OF PUBLIC PROPERTY OR OFFICE AS PUBLIC TRUST
7.1 Next is our attitude to regard public property as something that can be used or exploited by the party in power as it has popular sanction The concept that public property and indeed all public power is public trust is not accepted in practice. We often recite the noble maxim “Vasudhaiva Kutumbakam” -the whole world is my family. Gandhiji used to interpret this to the effect that all property is to be held in trust and even private property belonged to the world at large When in South Africa. he surrendered all his property to his ashram. When Kasturba asked “What about our children?”, his answer was that they would also own a portion (although infinitesimal) since the properiy now belonged to the world at large which included his children. The present interpretation of the maxim is the opposite, viz., that state property is also my property. This argument was advanced in Bombay when the Backbay Reclamation plots were sold at a gross undervalue. The State solemnly argued that just as private property can be sold at the price desired by the owner there was no reason why public property should not be so sold. and that no one could inquire into the price. Fortunately. the argument was rejected and the couris have since reiterated the obligation that public property should not be treated as private fiefdom, But in actual practice, electoral victory seems to mean the right to do what the ruling group for the moment would want to do. In several states, allotment of plots for land development are cancelled after each change of Government and the incoming leaders have to be suitably persuaded to sustain the old allotment. This always reminds me of the observation of Chengiz Khan when he conquered a great city: “What a wonderful place to loot!”.
7.2 The desire to exploit public property for personal ends reflects the larger concept of the non-recognition of the public trust that an elected office entails. The role that an elected representative is expected to exercise was well captured by Edmund Burke where he suggested that the duty of a Parliamentarian was to sacrifice his repose, his constituents pleasures and his satisfactions to that of contrast this conception with what was described to me recently by the Speaker of a Legislative Assembly in one of our largest States. He lamented that during a debate on a no confidence motion, MLAs had resorted to throwing chairs and microphones at each other and the House had to be adjourned on account of this lawless behaviour asked him how he had dealt with this problem. His prompt response was that before the next sitting, he had arranged to have the chairs and the microphones nailed to the floor so that they could not be pulled out and tossed around! While this of course addresses the immediate problem, it leaves open the larQer question of when elected representatives will recognize and respect the positions of public trust that they hold.
VIII. CRIMINALISA TION OF POLITICS
All these tendencies have led to serious distortion of our institutions and a growing gap between our past aspirations and the present reality One of the worrying consequences IS criminalization of politics. Even ordinary traditions of civility and responsibility are now abandoned. We see Gresham’s law that bad money drives out good money fully operational in politics Vohra Committee report In 1993 represented the first real admission by the Government of the alarming trend. This was a confidential report which was brought to light thanks to a public interest litigation. The candid conclusions of the Report bear Repetition.
(a) There has been a rapid spread and growth of criminal gangs, armed senas, drug mafias, smuggling gangs and drug peddlers which have, over the years, developed an extensive network of contacts with the bureaucrats functionaries, politicians and media persons. Some of these syndicates also have international linkages, including the foreign intelligence agencies.
(b) In certain States like Bihar, Haryana and U.P., these gangs enjoy the patronage of local-level politicians, cutting across party lines and the protection of governmental functionaries. Some political leaders become the leaders of these gangs, armed senas and over the years get themselves elected to local bodies, State Assemblies and the national Parliament. Resultantly, such elements have acquired considerable political clout jeopardizing the safety of life and property of the common man causing a sense of despair and alienation among the people.
(c) The cost of contesting elections has thrown the politician into the lap of these elements and led to a grave compromise by officials of the preventive/detective systems.
8.2 Twelve years have passed since the Vohra Committee Report. The Supreme Court has made an effort to empower institutions like the Central Vigilance Commission to oversee independent investigations and to support the efforts of a constitutional body like the Election Commission to cleanse our election system Can we really claim with any confidence that the situation has improved?
8.3 Let some facts speak for themselves. Based on the data furnished by candidates in the last general election, a study by the Bangalore based Public Affairs Center reports that nearly one in every four members elected to Parliament. that is almost 25% of Parliamentarians, has been charged with crimes that range from destruction of property to rape, kidnapping, murder and extortion, And this is our national Parliament! The statistics in certain State legislatures are too alarming to even contemplate.
8.4 To take actual instances, in a recent case in north India, a sitting MLA was killed, and his political opponent whom he had defeated in the election was accused of committing the murder One consequence of the murder was a by-election That opponent who is facing a charge of murder stood as a candidate and won the election from police custody defeating the widow of his former opponent. The incident is alarming for at least two reasons. incidents and occurrences are no longer isolated incidents secondly, because it is evidence that the new rules requiring candidates to declare the cases pending against them have not had the desired result -perhaps such candidates benefit by the increased disclosure of their criminal antecedents. One finds that very often there is inarticulate caste sanction for criminal activities so that a candidate accused of oppressing another caste is hailed and elected as a deserving Robin Hood
8.5 These incidents are not confined to anyone political party. This is the one issue that cuts across party lines, and perhaps there is an unspoken consensus on it. It is true that under the Representation of Peoples Act, a person is disqualified from standing as or continuing as a legislator if he is convicted of certain types of offences, and sentenced to a given term of imprisonment. But there is a clear difference between legality and propriety. Our Constitution could not envisage that Ministers facing charges involving destruction of places of worship or of corruption or even of murder can continue to hold office while facing a trial. We had the spectacle of Shri Shibu Soren, who as a Cabinet Minister could evade arrest on a serious charge for more than a week. It has now culminated in a classical sound byte by Shri Laloo Prasad Yadav, another Cabinet Minister -he says he cannot resign on being charged with corruption as there is no practice of resignations in this country! The scary thing is he is not altogether wrong! The uniform practice is of clinging to one’s seat despite any question of propriety.
IX. STANDARDS IN PUBLIC LIFE
9.1 What then is the way forward? have attempted to identify certain tendencies in our society, some innate and some which have become even more pronounced since we established ourselves as a democratic republic. Given such behaviour pattern, how do we address the increasing apathy of the people with the democratic process? One has to consider whether it is possible to work within the trends; to confine some of these tendencies hopefully to private lives and to assure that they do not affect governance. Perhaps it is important to set ourselves some standards in our public conduct.
9.2The question of standards in public life has been a matter of increasing concern in various democratic systems. I hope the tendencies to which have referred can be contained by greater transparency and accountability in the exercise of government power. Even under our system of governance, there is no reason why we cannot adopt the seven principles in public life of selflessness, integrity, objectivity accountability, openness, honesty and leadership. The principles have in fact been explained by Lord Nolan, an English Judge, encapsulating them in one sentence each
“The Seven Principles of Public Life
Holders of public office should take decisions solely in terms of the public interest. They should not do so in order to gain financial or other material benefits for themselves, their family, or their friends.
Holders of public office should not place themselves under any financial or other obligation to outside individuals or organizations that might influence them in the performance of their official duties.
3 . Objectivity
In carrying out public business, including making public appointments, awarding contracts, or recommending individuals for rewards and benefits, holders of public office should make choices on merit.
Holders of public office are accountable for their decisions and actions to the public and must submit themselves to whatever scrutiny is appropriate to their office.
Holders of public office should be as open as possible about all the decisions and actions that they take. They should give reasons for their decisions and restrict information only when the wider public interest clearly demands
Holders of public office have a duty to declare any private interests relating to their public duties and to take steps to resolve any conflicts arising in a way that protects the public interest.
Holders of public office Should promote and support these principles by leadership and example.”
9.3 In the Hawala case, the Supreme Court adverted to these and want on to observe “These principles of public life are of General application in every democracy and one is expected to bear them in mind while scrutinizing the conduct of every holder of a public office. It is trite that the holders of public offices are entrusted with certain powers to be exercised in public interest alone therefore, the office is held by them in trust for the people. Any deviation from the path of rectitude by any of them amounts to a breach of trust and must be severely dealt with instead of being pushed under the carpet.”
9.4 It may be mentioned that it was a result of this effort that the Central Vigilance Commission was given a statutory status. And the manner in which the Central Vigilance Commission and the Election Commission have functioned provides both the hope that we can achieve a higher level of probity in our public lives and also provides us with the method by which this can be achieved.
X. WHAT LIES IN THE FUTURE?
10.1 If there is to be hope for the future, it is necessary not to share the General
disillusionment about Governance. This is sometimes possible by considering what an outsider can observe about our society asked one of the earlier Attorneys General of Pakistan which of the Indian institutions he would like to replicate in his country. His answer was the Supreme Court, the Election Commission and the non political army When asked to explain, he mentioned that he admired the Supreme Court because it was not only an independent body but ensured that its orders were followed by the Government. The Election Commission was respected for conducting elections in a manner where the politicians were willing to follow some code of conduct at least formally during the elections. The non-political army was a particular view from Pakistan which has its own problems of civilian government. In fairness must also add as the fourth institution, the Fourth Estate -noisy, vibrant and often irresponsible but seeking accountability from the holders of public office.
10.2 Perhaps the solution can be summarized in the language of Dr. Rajendra Prasad on the last day of the debates of the Constituent Assembly over which he had presided. He observed
“Whatever the Constitution mayor may not provide, the welfare of the country will depend upon the way in which the country is administered. That will depend upon the men who administer it. country can have only the Government it deserves. If is a trite saying that a country can have only the Government it deserves. If the people who are elected are capable and men of character and integrity, they would be able to make the best even of a defective Constitution. If they are lacking in these, the Constitution cannot help the country. After all a Constitution like a machine is a lifeless thing. It acquires life because of the men who control it and operate it and India needs today nothing more than a set of honest men who will have the interest of the country before them
We have communal differences. caste differences. language differences, provincial differences and so forth. It requires men of strong character, men of vision, men who will not sacrifice the interest of the country at large for the sake of smaller groups and areas and who will rise over the prejudices which are born of these differences. We can only hope that the country will throw up such men in abundance. I can say this from the experience of the struggle that we have had during the period of the freedom movement that we have had during the period of the freedom movement that new occasions throw up new men…. I have no doubt that when the country needs men of character, they will be coming up and the masses will throw them up.”
10.3 To some this may sound hoping for too much. But I would like to end with my favourite quotation which Professor Kari Popper used to teach “Optimism is a moral duty.”