By Vivek Pattanayak*
India after achieving independence, adopted a constitution which as it stands today states in the preamble that it is a sovereign socialist secular democratic republic to secure to all its citizens justice, liberty, equality, fraternity, and unity and integrity of the nation. India is a union of states. Fundamental Rights and Directive Principles outline how justice, liberty, equality can be achieved. Provisions are there delineating the power of the centre and State. Emergency provisions exist for maintaining unity and integrity of the nation. Some provisions of Fundamental Rights protect secularism and some of provisions in Directive Principles aim at socialism.
Federalism in classical sense means a union of states. In the modern times, the best example of federalism is United States. It was a case when different colonies fought against the British successfully to gain independence. Thereafter, they formed a federation among themselves under a written constitution, delineating jurisdiction of states who constitute units of federation and the central authority. Since then, many federations have emerged based on varying historical circumstances. In India, new country was created out of the provinces under the British rule and princely states which were under the British paramountcy. The Constitution of India, which the constituent assembly adopted in 1949 authorised the Parliament to reorganize the territorial units. Since adoption of the constitution based on merger of princely states with the Indian union, which was nothing but a conglomeration of erstwhile British Indian provinces, Part A, B, C States were created. Since 1956, based on the recommendation of the State Reorganization Committee the States were reorganized into one category of State however, with a special status given to J&K based on instrument of accession. As the time elapsed with accession of Sikkim and creation of new States there was special status of varying degrees given to many States as adumbrated in Articles 371 A, B, C, D, E, F, G, and H. Under that new dispensation, there were territories under central administration called Union Territories.
Under Article 356, the President, which really meant the prime minister and his council of ministers enjoyed power of supersession of the State government, dissolution of the State legislature including the suspension of post of Speaker. Experience of use or misuse of this power is well known including interventions by the Apex court. Abrogation of Article 370 which gave special status to J&K and reducing its status to union territory after bifurcation of the entity is well known. The Supreme Court’s hesitancy to intervene or even take a view on the matter is in public knowledge.
In the traditional federal State, the judiciary has pivotal role when there is conflict between the State and Union (or Centre in India). From the above where India stands as a federal state in the classical sense can be easily fathomed. It is inconceivable in USA, an ideal model of federalism. It is not possible even in Canada and Australia which have federal constitution. It is not only the structure of fundamental law which guarantees federalism, but it depends on the people who hold key positions to ensure the practices are in consonance with law and its spirit.
From the federalism one can examine what is the state of liberal democracy as in many senses they are interconnected.
If one reads the constitution, a framework for liberal democracy exists. Periodic elections to constitute legislatures both at the federal and state level, collective responsibility of government to the legislature, framing of laws by legislature, deliberations in the legislature before budget is approved, constitutional protection to civil service to ensure its political neutrality, independent status of judiciary and Election Commission, Public Service Commission and Comptroller and Auditor General and fundamental rights which reflect universally acceptable human rights and free press even with constitutional recognition are provided under the basic law. Here comes the question whether holders of position of public office who matter a lot in governing democracy discharge duties and responsibilities faithfully with integrity and sincerity.
If disruptions and disturbances become common feature in the legislature what kind of democracy it is? If laws are passed without debate, without counting of hands and invariably by voice vote in din and uproarious scenes what is the difference between laws made by executive and laws made by legislature? If the ordinances are passed even after the summoning of legislature what respect the executive has for the elected legislative body?
If the elections are held on consideration of favouring the ruling dispensation either in the State or the Centre, what kind of democracy will it be?
If civil servants are appointed to various positions based on their loyalty to the political parties in power what sort of neutrality bureaucracy can show? If the Central Bureau of Investigation, Income Tax Department, Enforcement Director, and Narcotics Controller and police and vigilance in States who are creatures of civil service protected under the Constitution and law will conduct raids based on the instruction of political executives in power what will be security, dignity, and liberty of innocent common citizen? Everybody cannot engage expensive lawyers.
In the seventies and eighties, appointment of judges was an issue before public and some animated debates took place when the concept of committed judiciary was advocated. The Supreme Court intervened to set-up collegium system to insulate the judicial structure from the political influence and possible interference. Notwithstanding this epoch-making judge-made law like basic structure doctrine, we have examples in recent times of judges being appointed as Governors of the State, nominated to the upper house, and given positions like Chairman Human Rights Commission without any transparent public discussion. In USA, key positions can be filled up only after Senate hearing and approval.
If appointment is made to the positions of Election Commission, and CAG based on proximity to political power what can be expected during election or audit of public finance.
What happened during elections to four States in the middle of last year sparking the deadly second wave of delta variant of Covid 19 inviting caustic comments of a High Court reflect that glaring absence of regulatory neutrality expected of the Election Commission.
Although constitution provides for fundamental rights, but they could be smothered by declaration of emergency. Not that emergency had not been declared earlier but it is the emergency of 1975 which received condemnation within the country and outside. The purpose of emergency in 1962 and 1965 was so transparent there was no opposition but in 1975, objective was so self-centred it was defenceless.
Similarly, without declaring emergency the executive and its factotums can trample down rights by way arbitrary detention and arrests. It is not possible for every innocent citizen to approach high judicial level to get relief. If journalists and human rights activists languish in jails for months on trumped-up charge of sedition without immediate relief from courts, does it not look like dark age of suspension of fundamental rights? Justice delayed is justice denied. At least the emergency of 1975 was declared under the constitution however much it might have been a vicious colourable exercise of power.
If the State governments are superseded and legislatures dissolved purely on political consideration federalism is given a goodbye. In 1959, the Kerala government was dismissed although the chief minister had full majority in the legislature. Immediately after the Janata government came to power after the emergency, State governments ruled by opposition were dismissed by sweeping Presidential order and the same thing happened in 1980 when the Government changed at the Centre after mid-term election. This demonstrates how federalism can be compromised in absence of liberal democratic spirit.
Free press or media, famously called the Fourth Estate by Edmund Burke, is a fundamental pre-requisite of liberal democracy. If media is controlled overtly or covertly by carrot and stick policy, then liberal democracy is in danger. Experience during the emergency of pre-censorship of news should have reminded the union territory executive government in J&K directly under the Centre of what it did after revocation of Article 370.
Although some media is resolutely free of fear and stand out not looking for favour some look like mouthpiece of the political authority in power.
Vibrant civil society is an integral part of liberal democracy. Squeezing of funds of NGOs including those coming from foreign sources when political parties can merrily receive funds under electoral bond from abroad demonstrates how civil society activism can be choked.
What is secularism? This concept has historic origin from Europe. When the papal supremacy ended, and national States emerged, a doctrine was propounded that stated, “Render unto God what is God’s and render unto Caesar what is Caesar’s.” In other words, religion has nothing to do with State. Succinctly speaking, State has no religion. If one reads the constitution of India, the idea of secularism is ingrained in the structure starting from the Fundamental Rights. Insertion of the word secular in the Preamble by way of amendment in 1976-77 was only to re-emphasize the importance of the concept. Even if the word would not have been there, the State would have remained secular, constitution having recognized secularism. Due to paucity of space, one would not like to elucidate the theory of secularism. Practice will only reflect what is the status of secularism in the country. If men and women cannot have free inter-faith marriage, be prosecuted by police for marrying outside the religious community, if a person is lynched for having certain food at his fridge and the perpetrators of such crimes are eulogized by Ministers and legislators of the ruling dispensation what kind of image the nation would have in the world?
What is more glaring is the wanton destruction of Babri Masjid. Not only the site was not restored to the aggrieved community after judicial recognition of ignominious and flagrant violation of law, but no one was even punished for the heinous and dastardly crime. How does it show India as a secular state?
Pages can be written theorizing on socialism. Constitution unambiguously under the Directive Principles adumbrated what is socialism. To what extent socialism has been practiced healthy debates would reflect the true picture. Establishment of public sector undertakings in steel making, aluminium, and other metal, machine building, heavy engineering and nationalization of railways, airlines, construction of national highways by the government and its undertakings, nationalization of banks and insurance companies and public distribution system are clearly socialistic measures taken by government. In addition, abolition of estates, zamindary system and vesting of proprietary rights on tillers of soil and abolition of privy purses of princes are undoubtedly measures of socialism. In spite of all these measures inequality has increased, and poverty might have been reduced partially but presence of millions of poor people earning less than a dollar a day reflect India is far from achieving socialism.
To sum up, India is not a federal state in classical sense. Practice has made it a centralized political entity. As a liberal democracy it has failed the test. Secularism has received a severe beating. There is a yawning gap between reality in the country and socialism.
*The author is a former bureaucrat and held important positions in aviation and power regulatory body. He can be reached through e-mail at [email protected]
DISCLAIMER: The views expressed in the article are solely those of the author and do not in any way represent the views of Sambad English.