India’s System in Crisis!

Consider what is happening in India right now, as this is being written.

Law Minister Moily says that the existing laws are inadequate to deal with big national disasters like the one created by Bhopal gas leakage 26 years ago. So in consultation with experts he intends framing a new law and present it to parliament. Meanwhile, PM appoints a Group of Ministers to explore remedies.

 Members of the Jat community go on a rampage to choke off supply of water to Delhi in protest against their exclusion from caste based reservation of jobs in the government. The Jat leaders said that if the Gujjars could be given reservation, why should they be denied? Reservation on the basis of caste is explicitly disallowed by Article 16 (2) of the Constitution. However, the government to circumvent this law did verbal juggling and the Supreme Court in its supreme folly allowed it to do so. As a result the spirit of the Constitution was mangled beyond recognition. The law now promotes caste based reservation which continues to spread among the 3000 castes in India . The minorities understandably are attempting to similarly distort the Constitution to also obtain reservation.

In its national executive meeting being held in Patna the BJP complains that the central government is discriminating against state governments ruled by the opposition. The party complains that the central government continuously ignores norms by not consulting the state governments while appointing the Governor or the Chief Justice in opposition ruled states. This complaint by various opposition parties has long been festering. The Constitutional provision for setting up the Inter-State Council as a mechanism to resolve all differences between the Centre and the states has yet not been given teeth six decades after it was written. According to one Supreme Court judgment the union cabinet can exercise no control over the Governor. That leaves the President to exercise control. According to another Supreme Court judgment the President can only act under the advice of the union cabinet! The Supreme Court affirmed that the elected Indian President is a titular head like the British sovereign. Nowhere in the Indian Constitution is this written. India has the world’s longest written constitution. It is a mystery from where the Supreme Court got its divine inspiration to conclude this. 

Law Minister Moily says that the current system of appointing judges to the Supreme Court and High Courts by a collegium of judges is not satisfactory. He assures that the government is committed to the independence of the judiciary. The current system was determined by a Supreme Court advisory. According to the Constitution the judges of the Supreme Court and High Courts are appointed by the President after consulting the Chief Justice of India. By the present system there is no check on the decisions of the collegium regarding judicial appointments. To rectify this should a check be exercised by parliament or by the union cabinet? Or neither parliament nor the union cabinet should exercise check. Only the President as is written in the Constitution should exercise it. But --- oops! The Supreme Court has ruled that the President can never act without advice of the Union cabinet! 

Public demonstrations, stone throwing, and police reprisals are continuing in Kashmir against alleged high handedness of the army and police. This has continued for decades. Over 60,000 protesters have died in Kashmir . Four hundred thousand Kashmiri Hindus have been forced to flee their homes. During the last six decades the government has not once come up with any tangible proposal to address demands of the Kashmir protesters. It has not come up with one tangible proposal to rehabilitate the Kashmiri Pandits in their homeland. As this is being written the day’s newspaper carries an article by veteran journalist Inder Malhotra that describes how Junagadh became part of India after Independence . Princely states had the option to cede to India or Pakistan. Junagadh had a Hindu population ruled by a Muslim ruler. Junagadh’s accession to Pakistan became untenable because of its rebellious population. Therefore the state was compelled to cede to India after a referendum. Kashmir valley had a Muslim majority population ruled by a Hindu ruler. The Hindu ruler’s desire for independence was thwarted by Pakistan military action. Subsequently, too late Jinnah wanted a referendum in Kashmir too. Events disallowed that. On principle, should not Junagadh and Kashmir valley have been given similar treatment? Perhaps that was why Pandit Nehru while accepting Kashmir ’s instrument of accession said that it was subject to the approval of the people. Does not the status of Jammu and Kashmir deserve reappraisal in the light of history and the continuing unrest?

 A Group of Ministers is grappling with how to deal with Maoists. There is insufficient coordination between the centre and the states. There is no unified command structure or a single unified force to deal with any kind of terrorism. The proposal to create a federal force to counter all terrorism was aborted because the states feared that the centre would misuse it as it has been misusing the Central Bureau of Investigation (CBI). 

Meanwhile the CBI which has a deplorable record of securing convictions because of political interference has sought a new draft law whereby it could function more autonomously. It seeks to replace the Delhi Special Police Establishment Act under which it is presently governed …

All these and more similar events are occurring simultaneously on one single day. Do not these events indicate a most serious questioning of the system? Does this not call for a holistic reappraisal of the system? India has the world’s longest constitution. It has the greatest number of amendments of any constitution. The basic structure of the Constitution cannot be changed. It does not need to be changed. The system needs to be changed. For that the Constitution needs to be implemented in the manner in which its founding fathers conceived it. If necessary it can be amended. If that is not done now, when will it be done? Or do we await decline of our democratic system to reach the point of no return?   


More by :  Dr. Rajinder Puri

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