Leading Indian businessmen are crawling out of the woodwork bleating that the government is harming business by moving too slowly. Mr. Azim Premji, Mr. Deepak Parekh, Mr. Adi Godrej, Mr. Ashok Hinduja and a host of big names are publicly expressing alarm. The latest to cry out is Mr. Mukesh Ambani. Speaking at the annual Economic Summit in Mumbai he said that the nation should move “from the 20th-century-delivery mindset to the 21st-century delivery mindset”. He said: “Both the central and state governments need to align and move a lot faster.” Mr. Ambani is right like the others to recognize paralysis in governance. He is horribly wrong like the rest to yearn for a 21st century model. What India needs is to return to the 1950 mindset of the framers of our Constitution. That would enable the central government and the state governments to align much more closely to deliver swifter governance. Our system is paralyzed because our Constitution was subverted from day one. Nothing illustrates better the legal knots into which our stupid politicians and dishonest jurists have tied the nation as the current Armed Forces Special Powers Act (AFSPA) controversy raging in Kashmir.
Demanding the withdrawal of AFSPA from parts of Kashmir, Chief Minister Mr. Omar Abdullah argued that since the State issued the notification for AFSPA the State can withdraw it. This is logical. But legal experts pointed out that under the structure of AFSPA the State is just a recommending agency. The final decision rests with the Centre and the Governor who is part of the State but is appointed by the Central Government. Noted lawyer Mr. Rajeev Dhavan told media: “The Act provides that the Centre or State Government has power to impose AFSPA. While the Centre need not consult the State Government to impose AFSPA, the same is not true for the State Government. Its power is exercised through the Governor in that State.”
Mr. Dhavan has bracketed the Governor with the Centre. But to which Centre is he alluding? In the Dr. Tilak Raj Case (1979) the Supreme Court ruled that in no manner was the Governor “subordinate or subservient” to the Union cabinet. Therefore replicating Mr. Abdullah’s perfectly reasonable logic, since the President appoints the Governor the latter must be accountable to the President. But according to the Supreme Court’s ruling in the Shamsher Singh versus the State of Punjab Case the President is a titular head and must abide by the advice of the Union cabinet. This ruling preceded the 43rd Amendment curtailing Presidential powers. The Honourable Supreme Court never explained from where it obtained this nugget of information. In India’s longest written Constitution of the world nowhere is it written that the President is a titular head or that India is committed to the Westminster model. And yet the Indian President has been reduced to the Union cabinet’s dummy to read out written scripts prepared by it and to take a salute annually at the Republic Day Parade. I have repeatedly pointed out that unless the President exercises the powers assigned to the post by the Constitution India will never get a cohesive administration capable of delivering good governance.
By our Constitution the President is the sole and final authority to protect Law and Constitution. Without directly participating in the execution of policy the President is empowered to advise the Union cabinet and Parliament on all matters of policy. The President is of course the Supreme Commander of the nation’s armed forces. The Governor as the agent of the President in all the States of the Union is expected to perform the same role in the State as the President does at the national level. It is for the Governor to ensure that the State government does not violate the Constitution or law. The Governor is fully accountable to the President. If the President exceeds or misuses authority, Parliament has the power to impeach the President. If such a state of affairs existed chief ministers would think twice before descending on police thanas to interfere with police action, or allow police to send a colleague exposing corruption to the mental asylum. Mr. Ambani’s distant hope of closer alignment between the centre and the states to deliver swifter governance could become reality.
It is good that big businessmen have started to squeal because their profits are starting to shrink. But apart from being able to make money they should spare a thought for the system which allows them to do so. They should take a closer look at the politicians they fund so generously for quick quid pro quo. For a change they should think of the nation apart from their own businesses. It is good that they are beginning to worry. Their worry may induce their political beneficiaries to also rethink. Indian politicians do not lack brains. But where are their brains located? For the most part they sit on them.