Checks and imbalances

How often can the president save us in these days of constitutional illiteracy?

President Kalam’s return of the Office of Profit Bill raises three questions. First, are his apprehensions justified? The answer is a categorical yes. The bill is a constitutional travesty that licensed and exonerated the flouting of law. Indeed, the degradation of our constitutional morality is now so deep that the bill did not even pretend otherwise. The only justification offered for it was to prevent a political crisis, as if a political crisis that arises from unlawful actions should be remedied by retrospectively changing the law. The bill also violated many canons of public reason: the list of offices included was done expressly to let current incumbents off the hook, not on any rational criterion. The president did not exercise due diligence in the Bihar case, and he is right to do so now.

Second, in enacting the bill, the government has conceded many legislators were violating the office of profit norms. But if that is the case, why has the EC not proceeded against them with the same alacrity that it showed in the Jaya Bachchan case? Independent constitutional agencies cannot be assertive selectively, and the EC’s backing off raises some concern.

But perhaps the most important question is this: why does the UPA government get into a constitutional embarrassment with alarming frequency? Perhaps this is the wrong question. The UPA’s problem in matters of constitutional morality is not that it does the wrong thing. It is far deeper: it has lost any sense of the distinction between the right and the wrong thing. No wonder it faces strictures from the court, skepticism from the president and the country is left at the mercy of non-elected institutions which are just about managing to plug the dike. Perhaps it is not an accident a government that routinely violates constitutional norms cannot understand even basic distinctions between enabling legislation and legislation that obliges you to do something.

This state of affairs calls for a deeper diagnosis, whose roots perhaps lie outside politics. The Congress spokesperson’s defence of the bill was revealing: Parliament had the right to do it, so it did it. But a constitutional morality requires the exercise of a right in this respect be justified, and the government seems immune to offering cogent justification. It thinks, perhaps in tune with the party’s own modus operandi, that will, not reason, makes law; reasoned justification be damned. But the crisis of constitutional norms has wider sources. Pramod Mahajan famously remarked once, “Most MPs see the Constitution for the first time when they take an oath on it.” The operative word is ‘see’, not ‘read’. There is a genuine crisis, especially among the educated, of what might broadly be called constitutional literacy, an understanding of what the Constitution is about. Understanding the Constitution does not always mean parties will honour it; but not understanding does mean that there is no line of resistance. When the legislator is ignorant of the principles of legislation, it is a short step to thinking that the letter of the law and the animating spirit behind it are irrelevant forms, to be twisted at will.

But this crisis extends beyond politicians, not to just citizens but professionals as well. Indian law schools banished or marginalised jurisprudence, an intimate supplement to constitutional law. The number of people who can contribute intellectually interesting but principled discussion of the law is small; I suspect even the tribe of great constitutional lawyers is diminishing. Our Constitution is, paradoxically, effective only in a fit of absentmindedness or if it can be put to strategic uses. We discover its clauses after the fact.

Although the Supreme Court has been a great custodian of constitutional values, it has, ironically, contributed to the decline of constitutionalism. Just as a coincidence I happened to be reading P.K. Tripathi’s great essay, ‘Mr Gajendragadkar and Constitutional Interpretation’. While positively evaluating Gajendragadkar’s legacy, he chastises him for two things. First, he takes him to task for decimating the sanctity of the constitutional text, albeit for good purposes. Once the judiciary decided that its uses of the Constitution were going to be purely instrumental, rather than disciplined by canons of interpretation, it was a short step to thinking that a constitution is purely instrumental. If it is purely instrumental, if words can be plucked out of thin air, if the judges define the content of the law, and if the meaning of the Constitution can be changed easily and at will, the text does not carry much authority. The only thing that matters is what you can get away with. We are in a situation where each institution, from the courts to Parliament, from the speaker’s office to the election commission, is jostling to see what it can get away with. This jostling produces a certain balance of power, which is still protecting our liberties, but it is not producing a constitutional culture. Second, as Tripathi presciently warned, a time may come when institutions will exercise more power over the Constitution than acknowledge its authority. In a way the ease with which Parliament amends the Constitution or the courts arbitrarily decide what it means are two sides of the same coin. The Constitution becomes nothing but a parchment when we all treat it as such.

The public debate has also contributed to this foot-looseness about the Constitution. Just think of how we have bought into the distinction between the PM’s office and the rest of the government, as if government as whole is not responsible for what it does. In a small way, this too is a sign of the decreasing hold of constitutional norms, where exonerating individuals has become more important than the principle of collective responsibility. It is important to grasp this point because it would be too easy to blame everything on the venality of the UPA, the incompetence of its legal advisors, and the intolerance of politicians. When the honourable Speaker of the House devotes energy to muzzling reasonable criticism outside the House, you know there is something awry about our constitutional culture. When the Constitution becomes too unimportant to be studied and too instrumental to be kicked around at will, the President, who should be a voice of last resort, becomes our only resort. But he cannot, like the courts, save us forever.

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