Decay of Parliamentary Institutions in India

Decay of Parliamentary Institutions in IndiaAuthor(s): P. A. SebastianSource: Economic and Political Weekly, Vol. 24, No. 31 (Aug. 5, 1989), pp. 1749-1750Published by: Economic and Political WeeklyStable URL: http://www.jstor.org/stable/4395165 .Accessed: 13/03/2014 08:31

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REPORTS

Decay of Parliamentary Institutions iin India P A Sebastian

A journalist's report on corruption in the secretariat of the Maharashtra legislature has been held to be a breach of privilege which lowers the prestige of the legislature. The episode is indicative of the rapidly deteriorating state of institutions of parliamentary democracy-legislatures, courts Of law, criminal investigation agencies, etc-in India.

IN July, 1987 N D Patil, an MLA of the Peasants and Workers Party and Digvijay Khanvilkar, an MLA of the Congress(I) accused each other on the floor of the Maharashtra Legislature of stealing a question belonging to the other. Intrigued by the allegation, Prakash Gupta, a reporter of Navshakti, investigated the matter and found to his consternation, that the staff in the secretariat-of the Maharashtra legislative assembly were steeped in corruption and some of the MLAs were accomplices in the racket.

Questions, half-an-hour discussions, calling attention motions and such like are the devices to bring people's problems before legislatures. They are first submitted to the secretariat of the legislature. It is alleged that the staff in the secretariat of the Maharashtra legislature manipulate such things when they are submitted by the MLAs who are not well known and not very vociferous. The MLAs ask the parties whose interests are involved in the matter to go and meet the staff concerned. If a deal is struck then the matter appears before the legislature. If not the matter may vanish into thin air. This was the burden of Gupta's article in Navshakti which appeared on July 20, 1987. On the same day a motion for breach of privilege was moved in the legislature against the reporter. The motion said that the article interfered with the functioning of the legislature and defamed the chairperson and the members of the legislature. The special privileges committee held that Gupta was guilty and punished him with thirty days' imprisonment which both the houses of the legislature commuted to a warning on April 26, 1989.

The episode is indicative of the decay of the institutions of parliamentary democracy in India such as the legislatures, the courts, the commissions of inquiry and criminal investigating agencies. The action of the legislature seems to suggest that corruption may not lower the prestige of the legislature, but its disclosure may. The legislature does not appear to be agitated over the sub- stantive issue and to have made an attempt to inquire into the charge of corruption and to have taken remedial measures, but it has

censured the one who reported it. This is indeed a strange concept of prestige. Can one demand prestige as a matter of right and enforce it at the pain of punishment?

The members of the 1imil Nadu assembly assaulted and molested each other. If one applies the logic of the Maharashtra legislature, it will mean that the mutual belabouring indulged in by the members did not taint the prestige of the TN legislature while reporting it in public did. Rajiv Gandhi treated the members of the parliament as less than honourable when he misled them by falsely claiming there was an SIT report which exonerated Dhawan of the charge of conspiracy to assassinate Indira Gandhi. But the parliament has not punished him for contempt of the house.

The other institutions of parliamentary democracy do not acquit themselves any better than the legislatures. The Supreme Court was supposed to decide the validity of the interim order in the Bhopal gas disaster case. Instead, the court transferred to itself all the cases, both civil and criminal, and quashed them in terms of an apocryphal settlement. This decision flew in the face of the laws and precedents. The court had struck down its own order in Antulay case whereby the corruption case against him had been transferred to the high court from the sessions court, because it discovered that it had no power to do so. From where did the court acquire the power now to do the same thing, which, it said, it did not have, not so long ago? Does the law vary in accordance with the colour and wealth of the litigant?

The government had assumed power to represent the gas hit under the Bhopal gas leak disaster (Processing of Claims) Act, 1985. Some of the gas hit had challenged in the Supreme Court the constitutional validity of this law. The court acted on the basis of a settlement signed by the govern- ment on behalf of the victims, whose power to do so was under legal challenge. The propriety and the judicial wisdom demanded that the court should have first decided the constitutional validity of the Act before it took such a momentous decision which affected thousands of people. A five-judge bench of the Supreme Court had held in the

Shriram case: "When an enterprise is engaged in a hazardous or inherently dangerous activity and harm results to anyone on account of an accident in the operation of such hazardous or inherently dangerous activity resulting, for example, in the escape of toxic gas, the enterprise is strictly and absolutely liable to compensate all those who are affected by the accident and such liability is not subject to any of the exceptions vis-a-vis the tortuous principle of strict liability. In such a case, the measure of compensation must be correlated to the magnitude and capacity of the enterprise because such compensation must have a deterrent effect. The larger and more prosperous the enterprise, the greater must be the amount of compensation payable by it for the harm caused on account of an accident in the carrying on of the hazardous or inherently dangerous activity by the enterprise' This was not a very revolutionary doctrine enunciated by the Supreme Court for the first time in its history. The privy council had said so about a hundred years ago. The absolute liability meant in the instant context that Union Carbide had to compensate fully fc the damages incurred by the victims, irrespective of whether the gas escaped because of its fault or not. But the court evaded, in the case of Carbide, a decision on this issue. Besides, there was the question of punitive damages for negligence which is an accepted principle in the US while it is in a nascent stage in India. The Carbide case gave the highest court an opportunity to take definitive decisions on all such vital issues which would have had a tremendous impact in the future.

The reason given for the court's refusal to determine such issues on the basis of principles was two-fold: (1) the case would have taken several years because of back-log of cases in Indian courts, and (2) there was no guarantee that the A?nerican judiciary would have accepted and implemented the decision of the Indian courts. Neither argument will stand the test of reason. Regarding the first argument, there was nothing to prevent the court from constituting a special bench to deal exclusively with the Carbide case. Anyway, the court has already spent about three months on this case now. And it may take several months more. If the court had decided to spend this much time at the first instance itself, it could have done so without getting involved in unseemly controversies and legal wrangles which may provide the US courts with a reason to say that the Indian courts have not complied with the due process of law. The second argument is equally untenable. The comity of nations would have entailed that the US courts enforced the Indian decisions.

When the highest court bungles such an important issue so badly, how can the courts command the respect of the poople-how can they maintain and enhance their own

Economic and Political Weekly August 5, 1989 1749

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prestige? Now, who has lowered the prestige of the courts and who has interfered with the course of justice-the people or the course themsel%es? In the history of indepen- dent India there is no other single incident which has mangled the Indian judicial edifice as badly as the performance of the Supreme Court in the Bhopal case. The cuts and tears are entirely self-inflicted. Rightly or wrongly, people today believe that the judges of the Supreme Court indulged in wheeling and dealing behind the curtain along with the officials of the Indian union and Union Carbide.

There are several instances in which the Indian courts have not crowned themselves with glory. E M S Namboodiripad was charged with contempt of court for a statement made when he was the chief minister of Kerala. Upholding the charge of contempt against Namboodiripad, the Supreme Court said in 1970: "When, therefore, a person charged the judiciary as 'an instrument of oppression' and the judges as 'guided and dominated by class hatred, class interests and class prejudices, instinc- tively favouring the rich against the poor', it is clearly an attack upon judges calculated to raise a sense of disrespect and distrust of all judicial decisions. It weakens the authority of law and law courts and the person is guilty of contempt of court. That the person did not intend any such result cannot serve as justification."

It is illuminating to contrast the judgment in Namboodiripad's case with the judgment in the Shivshankar's case delivered by the Supreme Court in 1988. P Shivshankar, the then minister for law and justice addressed a meeting of the Bar Council of Hyderabad on November 28, 1987 and said: "The supreme court composed of the elements from the elite class had their unconcealed sympathy for the haves, i e, the zamindars. As a result, they interpreted the word 'compensation' in Art 31 contrary to the spirit and the intendment of the constitution and ruled the compensation must represent the price which a willing seller is prepared to accept from a willing buyer. The entire programme of zamindari abolition suffered a setback..." He further stated: "The Maharajas and the Rajas were anachronistic in independent India. They had to be removed and yet the conservative elements in the ruling party gave them privy purses. When the privy purses were abolished, the Supreme Court, contrary to the whole national upsurge, held in favour of the Maharajas.' The minister also said: "Madhadhipatis like Keshavananda and zanindars like Golaknath evoked a sym- pathetic cord nowhere in the whole country except the Supreme Court of India. And the bank magnates, the representatives of the elitist culture of this country ably supported by industrialists, the beneficiaries of independence, got higher compensation by the intervention of the Supreme Court in the Cooper case.. Anti-social elements, ie, FERA violators, bride burners and a

whole horde of reactionaries have found their haven in the Supreme Court!'

Namboodiripad's critique of the judiciary was theoretical and ideological. It was only a reiteration of some of the basics of Marxism. And Marxist ideology has not been prescribed in India. But Shivshankar concretely charged the Supreme Court with bias and prejudice against the poor and instinctive favour for the rich.

Disposing of contempt proceedings against Shivshankar, the Supreme Court said: "While respectfully accepting the ratio and the observations of the learned chief justice made in that decision (Nambooc'ri- pad's case), we muist recognise that tines and clime have changed in the last two decades. There have been tremendous erosion of many values... " Strange logic indeed. The values have eroded, so Shivshankar could denigrate the judiciary with impunity! The court added: "After all in cannot be denied that the pre-disposition or subtle prejudice or what in Indian language is called sanskar are inarticulate major premises in decision- making process. That element in the decision-making process cannot be denied, it should be taken note of' And the court concluded: "If any one draws attention to this danger and aspect and measures an institution by the class content, he does not minimise its dignity or denigrate its authority... The minister's statement does not interfere with the administration of justice.. ." The retreat was complete.

The only difference between Namboodiri- pad and Shivshankar is that the former meant what he said about the class content and its bias whereas the latter only simulated. Can anyone blame people now, if they conclude that the courts have two measures in their shop of justice?

The commissions of enquiry were meant to deal with complex situations in which unlawful acts have been committed and the executive is not, or does not seem to be, fair and impartial. But this institution has been abused for mala fide and extraneous reasons, one need not dwell upon the past performance of such commissions as Bhargava commission to drive the point home. The recent examples will clinch the issue. The Misra commission came in handy to whitewash the crime of those who committed pogrom in the first week of November, 1984. One instance will suffice to make the point clear. An affidavit filed before the commission had two lists attached to it-one consisted of the names of very prominent Congressmen who are said to have instigated and mobilised the assailants and the other the names of some minor Congress functionaries. The commission totally ignored the first list as if it did not exist while it recommended action against the minor workers! The Thakkar Commis- sion broke all the norms and did a command performance. It is widely believed that Thakkar pointed 'the needle of suspicion' at Dhawan to suit the political requirements of a particular clique in the Congress Party.

The Thakkar-Natara;an commission is another instance. It went on a witch-hunting to censure the political opponents of the regime. Very often a commission of enquiry is appointed as an agency of political expediency to defuse the situation and thereby to sweep the ugly incidents under the carpet rather than to investigate and punish the guilty. In late 1982, there were wide- spread communal riots in Meerut, in which over a hundred and fifty people lost their lives. The Provincial Armed Constabulary of UP actively participated in the riots, it was alleged. The government appointed Justice C D Parikh as a one-person judicial commission to enquire into the riots. The commission was ultimately wound up in late 1988. It is not known what the outcome of the commission was.

Criminal investigatirg agencies are the bed-rock of criminal justice. They are meant to be scrupulously impartial and fair. But to-day we see an alarming spectacle of misuse of the investigating agencies. It is said that the murder of Syed Modi was used to 'fi'x' Sanjay Singh. Justice Thakkar pointed out R K Dhawan as the principal suspect on the basis of material produced by a special investigating team of the Delhi police. The same team had no compunction in 'exonerating' Dhawan when political expediency demanded it.

The institutions of parliamentary democracy in India have degenerated to such an extent that they are no longer effective instruments through which people can articulate their grivances and demands. The situation is comparable with that in China in a crucial aspect where the all- encompassing Communist Party became moribund and the people had to find new avenues outside the frame-work of the party. Probably the situation is ripe in India for a people's movement to break out of the existing framework, as is being witnessed in China today.

NOTICE CORRIGENDUM

Attention is drawn to our NotiO Publshd in Economic and Polical WeeY dated 22.7.89 under section 22 of the MRTP Act. 1969 tor establishing \ new unit for manufacture of ABS Resins. The following amendments may please be noted: Si. No. 9: Cost of the project - Instead of Rs. 496.2 million read 496.0 million. Si. No. 10: Scheme of finance indicating the amounts to be raised from each source: i) Issue of debentures/Rupee loans instead of Rs. 300 million read Rs. 299.1 million. ii) Instead of promoters' contnbution - Rs. W.8 million read Equity Cauital and preference shares on nght basis/intemal cash accruals - Rs. 99.5 million. Total instead ot Rs. 496.2 million read Rs. 496.0 mi6on. For RELIANCE PETROCHEMICALS

LIMITED Rohit Shah

(Assistant Company Secretary) Registered Office: Village Mora, Post Bhatha, Surat Hazira Road, Dist Surat 394 510. Dated: 2.8.1989

1750 Economic and Political Weekly August 5, 1989

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Article Contentsp. 1749p. 1750

Issue Table of ContentsEconomic and Political Weekly, Vol. 24, No. 31 (Aug. 5, 1989), pp. 1733-1796Front Matter [pp. 1733-1767]Letter to EditorNature of Indian Capitalism [p. 1734]

Political Winds [p. 1735]Fanning Communal Flames [p. 1736]Crude Censorship [p. 1736]No Jharkhand, No Elections [pp. 1736-1737]Labour Shortage and Immigrant Workers [p. 1737]Miners' Strike [pp. 1737-1738]Corrigendum [p. 1737]BusinessPrice Rise Stoked by Government [pp. 1738-1739]Troubled Brew [p. 1739]

Statistics [p. 1740]CompaniesRecovering from Setback [p. 1741]New Export Markets [pp. 1741-1742]Expansion Completed [p. 1742]

Calcutta Diary [pp. 1743-1744]Civil LibertiesDetention of Legislators [pp. 1745-1746]

Potomac MusingsCraving for the Philosopher's Stone [pp. 1746-1747]

Notice: Corrigendum [p. 1746]International AffairsParanoia in Beijing [p. 1748]

ReportsDecay of Parliamentary Institutions in India [pp. 1749-1750]

Notice: Corrigendum [p. 1750]ReportsPublic Health Services in a Mess [p. 1751]Scuttling Wardha's Steel Plant [pp. 1754-1755]Press under Pressure [pp. 1755-1756]Newcomers below the Poverty Line [p. 1756]Urban Housing [pp. 1757+1759]Pakistan: Dilemma of the Left [pp. 1759-1760]

PerspectivesWhat Is 'Socialist Freedom'? [pp. 1761-1763]

ReviewsReview: The Son, the Father, and the Holy Ghosts [pp. 1768-1769]Review: Regional Planning for Employment [pp. 1769-1770]Review: Women and Ecology [p. 1770]

Special ArticlesUnemployment, Technological Dynamism and Need for Government Intervention: A Closer Look at 1989-90 Budget [pp. 1771-1784]The Chinese Tragedy: Roots and Offshoots [pp. 1785-1790]

DiscussionMounting Antagonism towards Big Dams [p. 1791]

Back Matter [pp. 1792-1796]