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POLITICS

Published: June 25, 2014 12:30 IST | Updated: June 25, 2014 12:45 ISTESSAY

Modifying democracy

To reduce the members of the Council of Ministers to ciphers is to subvert the Constitution. The trendhas been set afoot. By A.G. NOORANI

ON July 15, 1947, Vallabhbhai Patel informed the Constituent Assembly that they had opted for the parliamentary system of theConstitution, the British type of Constitution with which we are familiar(Constituent Assembly Debates; Volume 4; page 578). He

was reporting on the decision, on June 7, 1947, of the Joint Meeting of the Union and Provincial Constitution Committees. TheSupreme Court has ruled time and again that the Conventions of the British Constitution are relevant in interpreting the text of IndiasConstitution, which is very much based on those conventions.

However, the British Constitution presumes more boldly than any other, the good faith of those who work it(William EwartGladstone; Gleanings of Past Years(1879); Volume 1; page 245). And the architect of the Constitution, Dr B.R. Ambedkar,prophetically warned the Assembly, on November 4, 1948, that it is perfectly possible to pervert the Constitution, without changingits form, by merely changing the form of the administration and to make it inconsistent and opposed to the spirit of the Constitution.Constitutional morality is not a natural sentiment. It has to be cultivated. We must realise that our people have yet to learn it.Democracy in India is only a top-dressing on an Indian soil, which is undemocratic (CAD; Volume 7; page 38).

He was introducing the draft Constitution in the Constituent Assembly. A year later, on November 25, 1949, replying to the generaldebate in the Assembly before its adoption, he warned against hero worship. Bhakti in religion may be a road to the salvation of thesoul. But in politics, Bhakti or hero worship is a sure road to degradation and to eventual dictatorship (CAD; Volume 11; pages 978-9).Popular heroes such as Jawaharlal Nehru and Vallabhbhai Patel were present in the House when Ambedkar said these words.

India has witnessed the ravages to its parliamentary democracy when two Prime Ministers, each enjoying a massive majority in theLok Sabha, rode roughshod over the Cabinet, suborned the civil service and underlined parliamentary democracyIndira Gandhi in1971-1977 and 1980-1984, and Rajiv Gandhi in 1984-1989. Nor have some Chief Ministers in the States lagged behind in this. As ChiefMinister, Mayawati had no qualms about boasting my Ministers have no powersall the powers rest in me.In fact, Ive told the

Secretaries to keep an eye on the Ministers (India Today; July 1, 2002; emphasis added, throughout). Jayalalithaa is more

circumspect, but no less authoritarian. As, indeed, was Narendra Modi as Chief Minister of Gujarat. In all these cases, the Cabinet wasreduced to a naught.

One must not hastily and unfairly jump to the conclusion that as Prime Minister, Narendra Modi will replicate his much vauntedGujarat model in New Delhi. But some recent administrative measures which he has taken, at the very outset, and within days oftaking the oath of office on May 26, should arouse concern. They have serious constitutional and political implications and acquire agraver aspect when viewed in the context of the political ambience that he, his backers in the party, in the media, including somerecent and voluble converts, and in business and industry, have sedulously fostered. This is what Professor Anthony King calls theatreof celebrity in his thought-provoking work The British Constitution(Oxford University Press; 2007; page 319). Partymen believe thatthey owe their seats in Parliament and Cabinet to the celebrity vote-getter and the celebrity, aided by his coterie, encourages them inthis belief.

Margaret Thatcher and Tony Blair were artists in this. The party was in thrall. The Cabinet had lost its voice. Robin Cook told thescholar Peter Hennessy that by the time of the run-up to the Iraq war in 2003, most in the Cabinet had lost the habit of dissent.Prime Minister David Cameron told the Conservative Party Conference in October 2006: I will restore the proper process ofgovernment. I want to be Prime Minister of this country. Not a President (Peter Hennessy; From Blair to Brown: The Condition of

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British Government; The Political Quarterly; Volume 78; No. 3, July-September 2007; pages 344-351).

When in 1963 Richard Crossman argued in his introduction to the third edition of Walter Bagehots classic The English Constitutionthat Cabinet government had been transformed into Prime Ministerial Government, he invited a stinging rebuke from the formerPrime Minister Harold Wilson. No Prime Minister is more powerful than a couple of Ministers resolved to check him. Thatcher wassent packing after a Cabinet revolt. It is the state of politics which governs the relationship between the Prime Minister and theCabinet.

Thatis the worrisome aspect. Narendra Modi has reduced his party, the Bharatiya Janata Party (BJP), to serve as his praetorianguard. Its president, Rajnath Singh, is his Home Minister. Seniors such as L.K. Advani and Murli Manohar Joshi were ousted frompower because their shelf life75 years, which he had arbitrarily and uniquely prescribedhad expired. Advani was deniedspeakership of the Lok Sabha because he could not be trusted; rightly so, in view of his record in betrayal. The Rashtriya

Swayamsewak Sangh (RSS) is happy that its pracharak is Prime Minister. Most of the media eat out of his hands. Modi is a man with awill for power and a contempt for public opinion so long as his party backs him up.

Contrary to the common impression in the public mind, he has notbegun well at all. He appointed as Minister in his governmentSanjeev Baliyan, Member of Parliament from Muzaffarnagar, who is accused of a role in last years riots. A senior police officer saidBaliyan was charged with inciting mobs and making provocative speeches in the run-up to the riots in late August and early Septemberlast year. Baliyan had taken anticipatory bail from the High Court. Narendra Modi called my brother at 8-30 a.m. today [May 26] andasked him to rush to Gujarat Bhavan immediately, his brother Vivek told The Telegraph(May 27, 2014). G.L. Singhal, the policeofficer who was suspended after his arrest in February 2013 in the Ishrat Jahan case and was on bail, was reinstated by the Gujaratgovernment shortly after Modi became Prime Minister. This is what is called majoritarian democracy. Neither Indira Gandhi nor RajivGandhi had such an approach.

It is in this political context that the administrative measures must be viewed, singly and collectively.

1. On May 27, Modi identified all important policy issues as a portfolio subject within his remit in the allocation of Cabinetresponsibilities, lending to his office powers across Ministries to control and direct crucial policy matters.

The intention, sources said, is to focus policymaking in the PMO [Prime Ministers Office] and ensure that all Ministries obtain

approvals at the initial stages rather than start consultations by moving Cabinet notes or issue policy guidelines without priorconsent. In Gujarat, sources said, such a system had helped bring about predictability and uniformity in policy, particularly in theindustry sector. To those familiar with Modis governance style, this is the first step towards exercising control over Ministers andcreating the official basis for getting senior officials across Ministries to brief him directly on what he may define as an important

policy issue (Pranab Dhal Samanta, Indian Express; May 28). This was the first step towards clipping the Ministers wings andboosting their civil servants role and, of course, enhancing his own power.

2. On May 31, the Prime Minister issued orders abolishing all Groups of Ministers (GOMs) and Empowered Groups of Ministers(EGOMs) set up during the United Progressive Alliance (UPA) regime. The new National Democratic Alliance (NDA) governmentinherited 21 GOMs and nine EGOMs from the last regime. But, the end of the GOM system comes with a rider. Now, the PMO andthe Cabinet Secretary will act as facilitators as and when needed by any Ministry. On June 19, all four Standing Committees of theCabinet were discontinued, while some crucial Cabinet Committees were to be reconstituted, as part of the process of trimming. Thisis an ambiguous process. Not so ambiguous are some other steps, especially the one taken four days later.

3. On June 4, Prime Minister Modi met around 50 Secretaries to the Government of India. The Telegraph reported on June 5: Fromthe driblets of information seeping through, it is learnt that the Prime Ministers message was that in case of a conflict between the

top bureaucrat of Ministry and the Minister the official reported to, the matter should be brought to Modis notice immediately for aresolution. the official statement said Modi would be accessible to all the officers and added that he encouraged them toapproach him with their inputs and ideas. It said the Prime Minister empathised with the officials when they said they were notbeing able to realise their true potential because of circumstances. Hindustan Times reported (June 5): You can meet me at anytime. You can contact me on email or ring me up, Modi said while wrapping up the meeting. Have you ever heard of any Prime

Minister in any democracy in the world speak in these terms? It reflects a profound ignorance of the rules and an arrogant sense ofself-importance.

Read together, these measures spell (a) aggrandisement of the Prime Ministers power and authority; (b) diminution of Ministerspowers and authority and with them a loss of prestige and morale; (c) the civil servants loss of respect for their Ministers; and (d)altogether, a subversion of the Cabinet system adopted by the framers of our Constitution. What we are being treated to is not evenCrossmans prime ministerial government but a presidential government under the cloak of a Cabinet system. Even after Patelsdeath, Nehru had powerful Ministers such as C. Rajagopalachari, Maulana Abul Kalam Azad, later G.B. Pant and Morarji Desai.

Lal Bahadur Shastri, V.P. Singh, Dewe Gowda, I.K. Gujral and Manmohan Singh had powerful Ministers. So, remember, had AtalBihari Vajpayee. Modi has yes-men Beni Oui, Ouis as the French call them. Authorities on constitutional law have pronouncedstrongly against such measures.

This is what the great authority Ivor Jennings wrote: Cabinet government is not just government by a Cabinet; it is a wholescheme of government in which ultimate responsibility for political decisions is vested in the Cabinet. It is not enough to collect adozen gentlemen in a room, place an agenda before them, and tell them that their salaries depend on their reaching agreement.The Ministers are concerned with policy and not with administration. The Minister is responsible for what goes on in his Ministry,but he is responsible to and acts on behalf of the Cabinet. Collective responsibility means not only that the Cabinet is collectivelyresponsible for its decisions, but also that it is collectively responsible for ministerial decisions. There are, of course, limits to thisresponsibility, for the Minister, unlike the official, is not anonymous. On the contrary, he makes all the announcements ofgovernment policy relating to his own Department, whether they relate to his decisions or to Cabinet decisions. There are limitsbecause the Minister must be personally responsible for inefficiency or corruption, whether on his own account or on his

Departments account (The Hindus Republic Day Supplement, January 26, 1950, which it wisely reprinted on August 15, 2007).Ministers have a right to determine policy. They have done so for years; subject, of course, to the Cabinets veto and the PrimeMinisters veto if he disagrees. On major issues of policy the Prime Minister and the Cabinet decide, the Minister voicing his views.

In May 1992, British Prime Minister John Major published a hitherto secret manual by the Cabinet Office, a copy of which theCabinet Secretary gives to every new Minister. It was entitled Questions of Procedure for Ministers and was later renamed

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Ministerial Code: A Code of Conduct and Guidance on Procedures for Ministers. There also exists a Civil Service Code. Paragraph 1,effective from November 1996, says: Ministers are accountable to Parliament for the policies, decisions, and actions of theirdepartments and agencies. They are also responsible for what civil servants do in the course of their duties. All this would berendered meaningless if the Prime Minister alone were to decide policy and reaches out to Secretaries over the heads of theirimmediate superiors, the Ministers.

In Mainstream of May 18, 1985, its editor Nikhil Chakravarty published a Note by the famous British Cabinet Secretary Sir RobertArmstrong, dated February 25, 1985, with a pointed editorial comment on its relevance to India. This Note is regarded asauthoritative by authorities on the Constitution. It said: The duty of the individual civil servant is first and foremost to the Ministerof the Crown who is in charge of the Department in which he or she is serving. It is the Minister who is responsible, and answerablein Parliament, for the conduct of the Departments affairs and the management of its business. It is the duty of civil servants to servetheir Ministers with integrity and to the best of their ability. The determination of policy is the responsibility of the Minister

(within the convention of collective responsibility of the whole government for the decisions and actions of every member of it). Inthe determination of policy the civil servant has no constitutional responsibility or role, distinct from that of the Minister(paragraphs 3 and 5).

L.P. Singh, who served as Union Home Secretary and Governor, was a highly respected civil servant. He uttered a warning which isrelevant now, 27 years later. If the Prime Minister has been dealing directly with the Secretaries, inquisitorially or otherwise, it isviolative of the principle and practice of Cabinet governments. The Secretaries should be accountable primarily to their Ministersand only through them to the Prime Minister (Indian Express; January 30, 1987).

Cabinet Committees are an integral part of the Cabinet system and buttress its collegial spirit. Delays can be and must be curbed butyou do not throw away the baby with the bath water. Much of the work on government policy that was formerly the business of theCabinet is now carried out in Cabinet Committees (Ministerial committees of the Cabinet). Such committees have existed since theearly nineteenth century, but a fully organised committee system became established as a normal part of Cabinet government onlyafter the Second World War. Cabinet Committees deal with matters of continuing governmental concern such as economic policy,home and social affairs, defence and overseas policy, local government and the environment, and a new administration may retainmuch of the previous governments Standing Committee structure. Ad hoc committees are appointed to deal with specific and

immediate issues of policy and are wound up when the work entrusted to them has been completed. At any time there may be abouttwenty Standing Committees and a variable number of subcommittees and ad hoc committees. Under the Blair administrationsthere have been ad hoc committees on, for example, food safety, youth justice, animal rights activists and the Olympics.

The Prime Minister establishes and dissolves Cabinet Committees, appoints the chairman and members and specifies the terms ofreference. The Prime Minister ordinarily chairs a number of Cabinet Committees himself (Colin Turpin and Adam Tomkins; BritishGovernment and the Constitution, Cambridge University Press; 2007; pages 400-401). Ivor Jennings held the same view. Thecommittee system is now an essential part of the Cabinet procedure (Cabinet Government, page 255).

But all these authorities only elaborate on the rules embodied in the text, the very letter, of the Constitution of India Articles 74, 75and 78, read thus:

74. Council of Ministers to aid and advise President.(1) There shall be a Council of Ministers with the Prime Minister at the head toaid and advise the President who shall, in the exercise of his functions, act in accordance with such advice:

Provided that the President may require the Council of Ministers to reconsider such advice, either generally or otherwise, and thePresident shall act in accordance with the advice, and the President shall act in accordance with the advice tendered after suchreconsideration. The Council as a body, its head, the Prime Minister alone.

75. Other provisions as to Ministers(1) The Prime Minister shall be appointed by the President and the other Ministers shall beappointed by the President on the advice of the Prime Minister. (2) The Ministers shall hold office during the pleasure of the

President. (3) The Council of Ministers shall be collectively responsible to the House of the People.

78. Duties of Prime Minister as respects the furnishing of information to the President, etc.It shall be the duty of the PrimeMinister(a) to communicate to the President all decisions of the Council of Ministers relating to the administration of the affairs ofthe Union and proposals for legislation; (b) to furnish such information relating to the administration of the affairs of the Union and

proposals for legislation as the President may call for; and (c) if the President so requires, to submit for the consideration of theCouncil of Ministers any matter on which a decision has been taken by a Minister but which has not been considered by the Council.

To reduce the Council of Ministers and its members, the Ministers, themselves to ciphers is to subvert the Constitution. The trend hasbeen set afoot. The time to stop it is now.

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