India After Independence: 1947-2000 (11 page)

The Constitution lays down that the system of government at the state level shall also be based on the parliamentary model with the chief
minister and his council of ministers exercising effective executive power while being responsible to the state legislature. The governor is meant to be a constitutional head like the President but with the very important difference that if the constitutional machinery breaks down and President’s Rule under Article 356 is imposed, then the governor as the President’s representative becomes the effective executive and runs the state with the help of advisers appointed by the Union Government.

The expectation at the time of the framing of the Constitution was that governors would be ‘people from outside—eminent people, sometimes people who have not taken too great a part in politics . . . an eminent educationist or a person eminent in other walks of life.’
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But this hope has been largely belied. Governors have over the years tended more and more to be active politicians many of whom have returned to full time politics (if they at all gave it up as governors!) once their terms are over. They have tended to carry out the directives of the party in power in New Delhi or the one that appointed them and have sometimes even become active conspirators in murky provincial toppling games. All parties are guilty of having furthered this trend of appointing pliant governors. The convention of consulting state chief ministers before appointing governors has also lapsed though demands for its revival are growing.

There are numerous examples of misuse of governors’ discretionary powers but the most notorious ones are the following. On 2 July 1984, Farooq Abdullah, the chief minister of Jammu and Kashmir, asked the governor, Jagmohan, to immediately call a session of the legislative assembly. He wanted to test his majority on the floor of the house as twelve members had deserted his party. The governor, however, dismissed his ministry from office and installed a new man, G.M. Shah, as chief minister. Abdullah campaigned against his dismissal all over the country. The incident was also cited as proof of the central government’s infringement of the autonomy of the state and was thus a handy tool for stoking secessionist fires.

In a similar fashion, in Andhra Pradesh, the governor, Ram Lal, instead of summoning the Assembly as desired by the chief minister, N.T. Rama Rao (whose Telugu Desam Party had suffered a split), so that he could test his majority on the floor of the House, dismissed the chief minister on 16 August 1984. N.T. Rama Rao had asked for only two days to prove his majority, his successor was given thirty days by the governor but still could not muster the strength. Indira Gandhi made a public statement that she had no prior knowledge of governor Ram Lal’s action, got him to resign, sent Shankar Dayal Sharma as the governor, and N.T. Rama Rao was again invited to form the government. In this process, however, the dignity of the governor’s office suffered a severe blow.

All states have legislative assemblies, which consist of not more than 500 and not less than 60 members. A few states also have second chambers or legislative councils. States have exclusive right to legislate on items in the State list. They can also legislate on items in the Concurrent List but if there is a law passed by the Union parliament which is different
from that passed by the state legislature, then the Union law stands.

There are also seven areas known as Union Territories, which are directly administered by Lieutenant-Governors appointed by the President. These territories can also have a legislature and a council of ministers, as in the case of Delhi and Pondicherry but their powers are more restricted than that of their counterparts in the states.

The Constitution did not contain provisions for the exact form that local government institutions were to take, but the Directive Principles specifically laid down that the states should take steps to organize village panchayats and endow them to function as units of self-government (Article 40). This was to allow the states the flexibility to devise forms most suited to their needs. Besides, the legacy of the freedom struggle, and especially of Gandhiji himself, who had made panchayats a part of his political programme since the Non-cooperation Movement of 1920-22, made it imperative that local self-governing bodies be set up.

However, not much progress was made in the early fifties. Central government had concentrated its efforts for local development on the Community Development programme, which took a block of about 100 villages as a unit for promoting developmental activities with the help of village level workers, social workers, agricultural experts, newly-appointed development officials, etc. Very high hopes had been pinned on the success of this effort, and when it became apparent that it was not making much headway, a high-level committee chaired by Balwantrai Mehta, a veteran Gandhian, was asked in 1956 to make recommendations for its improvement. The Mehta Committee diagnosed the lack of democratic local bodies with real powers as the major cause of the failure of Community Development program. The remedy suggested was the setting up of Panchayati Raj (PR) by instituting three levels of representative bodies. The gram panchayat at the village level was to be directly elected by all adult residents of the village, and the panchayat samiti at the block level and zilla parishad at the district level were to consist of members indirectly elected from the tier below as well as cooperative movement officials, parliamentarians and others co-opted to the body.

Between 1959 and 1962, state governments in all parts of the country introduced Panchayati Raj legislation. Over the years, however, the functioning of Panchayati Raj was not up to expectations, for various reasons. State governments, whose duty it was, did not often hold local elections on time, sometimes for many years at a time, if they feared an unfavourable result. Panchayats did not have enough resources to be innovative and independent. Local bigwigs dominated panchayats and cornered benefits. A number of committees made extensive studies and gave valuable suggestions—the Asoka Mehta Committee, 1978, the G.V.K. Rao Committee, 1985, and the L.M. Singhvi Committee, 1986.

A new initiative was taken under the leadership of Rajiv Gandhi in 1988, when a committee headed by P.K. Thungon recommended that Panchayati Raj bodies should be constitutionally recognized and the Constitution should have a provision to ensure timely and regular election to these bodies and their term should be five years. In 1989, the Constitution 64th Amendment Bill was introduced in parliament. The Congress did not, unfortunately, have a majority in the Rajya Sabha, and opposition parties, suspicious of Congress intentions that this was a new device for curbing the powers of the states, blocked its passage and prevented a good measure from becoming law. That there was no principled objection in mind became clear when the National Front government of V. P. Singh introduced the same bill with minor changes within a year of the old one being blocked. History has its ironies: V. P. Singh’s government collapsed before the bills could be passed and it fell to the Congress’s lot to Finally see through the Constitution 73rd and 74th Amendment Bills in 1993.

The 73rd Amendment provides for an elaborate system of establishing panchayats as units of self-government. For the first time in the constitutional history of India, the constitution of panchayats, the duration of their term, their membership, the constitution of a Finance Commission to review their financial position is detailed. It also adds a new Schedule to the Constitution, the Eleventh Schedule, which lists 29 subjects, which are to be handled by the panchayats. With this Amendment, Panchayati Raj institutions are as much a part of the structure of constitutional government in India as the Lok Sabha.

Articles 124-147 and 214-237 of the Constitution lay down the entire framework of the system of justice in India. The judiciary was to be the upholder of the Constitution, after all, and no detail was too small for ensuring its independence and effectivity. The method of appointment, the years of service, qualifying conditions, powers of each court, size of the bench, pay and perquisites, and much more, all was specified in the Constitution.

The Indian judicial system consists of a single hierarchy of courts with the Supreme Court at its apex. Before the Supreme Court came into being in January 1950, India had a Federal Court and further appeals lay with the Judicial Committee of the Privy Council in Britain. The jurisdiction of the Privy Council was abolished in October 1949 and the Federal Court was replaced by the Supreme Court of India in January 1950.

The Supreme Court consists of a chief justice and twenty-five other judges (seven in 1950, gradually increased by 1986 to twenty-five) appointed by the President after consultation with such of the judges of the Supreme Court and the High Courts as may be thought necessary. They hold office till the age of sixty-five. In the case of appointment of judges
other than the chief justice, the chief justice shall always be consulted (Article 124). By convention, the chief justice is always the seniormost judge of the Supreme Court. In 1973 and again in 1976, this convention was flouted by Indira Gandhi when the seniormost judges (three in 1973 and one in 1976) were superseded. This action was roundly condemned as an attack on the independence of the judiciary and no government since has dared to repeat the act.

The only way a Supreme Court judge can be removed from office is if each House of Parliament supported by a majority of the House as well as two-thirds of those present and voting pass a resolution in the same session and present an address to the President asking for removal on the ground of proven misbehaviour or incapacity [Article 124(4)1. To further ensure the independence of judges, there is a bar on their pleading before any court or authority in India after retirement [Article 124(7)].

The Supreme Court has original jurisdiction in case of appeals or writs relating to enforcement of Fundamental Rights, that is, a person can straightaway appeal to the Supreme Court without going through the normal layers of the judicial hierarchy [Article 32]. The Supreme Court has original jurisdiction also in all disputes between the Union and states as well as between states. It can transfer cases from lower courts to itself. It has appellate jurisdiction in constitutional, civil and criminal cases. It has also sanctioned the practice of public interest litigation wherein a person or an organization can appeal, to the highest court, even by means of an ordinary postcard, on an issue that does not affect him or her directly but about which there is reason for concern as a citizen. A more recent trend is of ‘judicial activism’ by which is meant judges intervening to force executive authorities to perform their duties such as collecting garbage, placing controls on vehicular pollution, etc. While there has been some, even justified criticism of this trend, it must be admitted that the judiciary was seen as the last refuge by a frustrated public unable to make its voice heard in other ways. The judiciary was effective precisely because of the power given to it by the Constitution that all authorities must implement its decisions and orders.

The Supreme Court has played a major role in interpreting the Constitution, especially with regard to the changing relationship between Fundamental Rights and Directive Principles, as discussed above. While it is limited in its powers in comparison to the US Supreme Court when it comes to declaring any law unconstitutional, since it does not have the clause of ‘due process of law’ or standards of natural justice, it has made up by evolving the doctrine of ‘Basic Features’, on the basis of which even an amendment to the Constitution can be declared invalid if it is destructive of the ‘Basic Features’ of the Constitution. It seems that Alladi Krishnaswami Ayyar, a leading member of the Drafting Committee of the Indian Constitution, was right in his prediction that:
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the future evolution of the Indian Constitution will thus depend to a large extent upon the Supreme Court and the direction given to
it by that Court. While its function may be one of interpreting the Constitution, it cannot . . . ignore the social, economic and political tendencies of the times . . . On certain occasions it may appear to strengthen the union at the expense of the units and at another time it may appear to champion the cause of provincial autonomy and regionalism. On one occasion it may appear to favour individual liberty as against social or state control and another time, it may appear to favour social or state control. It is the great tribunal which has to draw the line between liberty and social control.

The High Courts in the states have powers over all the subordinate courts in their jurisdiction. Their powers to issue writs or orders is wider than that of the Supreme Court as it is not restricted to cases of violation of Fundamental Rights. The High Courts have chief justices at their head and other judges as required. Their mode of appointment is similar to that of Supreme Court judges. Just as the law declared by the Supreme Court is binding on all courts in India, a law declared by a High Court is binding on all courts of that state.

The subordinate courts in each state are directly under the control of the High Court. District judges are appointed by the governor in consultation with the High Court. The lower judiciary is recruited via examinations from among those who have at least three years’ experience at the Bar. Sadly, corruption is quite common at the lower levels, but happily still not common, though not unknown, at the High Court level, and rare, if not absent, in the Supreme Court. A major problem is the enormous backlog of cases and it can often take ten or even twenty years for a case to be decided. Litigation is expensive and time-consuming; as a result common people hesitate to take recourse to the courts. The judiciary is also hemmed in by a plethora of outdated laws some more than a hundred years old. There is an urgent need for judicial reform but though subsequent chief justices of the Supreme Court have promised reform, yet not much has actually moved on the ground.