The other day a friend asked me whether our Constitution permitted the state governments to organize strikes. This set me thinking about the familiarity of even men who once occupied senior positions with the provisions of the Constitution which, at least fictionally, we the people have given unto ourselves, The Constitution is a basic document which, apart from spelling out the dreams and directions of a country, broadly deals with the structure of the organs created by it was also the interrelationship with the various units. It is based on certain assumptions which are not necessarily spelt out but are considered axiomatic for the governance of a democracy. At least that is how the Indian Constitution has been framed.
Learning by experience, may be a future Constitution shall have to provide that the state shall not Organize strikes or indulge in terrorism. Unfortunately, both have become facts of life now.
‘What the Mulayam Singh Yadav government has done is nothing new. The precedent was set long ago by the United Front government in West Bengal, which in its initial euphoric days frequently used to organize strikes, at times aimed against the Center’s policies. Ms. Jayalalitha too has organized strikes, and no questions have been asked about the constitutionality of such actions.
There is something called constitutional morality and, over the years, it has been sharply on the decline, The rut really started with the throwing out of the communist government in Kerala and the introduction of President’s rule in the state on the spurious grounds that the Kerala government had lost the support of the people even though it had the requisite majority in the state legislature. Nehru ‘was the Prime Minister and his daughter, the Congress President. It is she who was primarily responsible for President’s rule in Kerala, but the fact that the great Nehru allowed himself to be hustled into it is significant. Since then one has virtually lost count of how many times President’s rule has been imposed in the states.
It was the West Bengal government too which started the process of making the police virtually subordinate to the party cadre. It distributed liberally arms to chosen people and spread party terror in the villages, at the same time it had the good sense to bring about land and other reforms which helped the people. It is now so well entrenched in the villages that the Congress finds it difficult to breach it. ‘The truth is that our Constitution: does not permit the state machinery to be used for party ends, but this has unashamedly been done irrespective of which party is in power. ‘The Congress has been the longest in power since independence both at the Center and in the states, though in the latter the profile has changed during the last 20 years or so. And each party has made unscrupulous use of the police in particular which has been encouraged to be no respecter of persons, institutions and the laws. The consequences are there for all to see.
The wanton attack on advocates of the Allahabad High Court on the day a bandh was organized by the government has to be seen in this light. The Constitution has gone to great lengths in ensuring the independence of the judiciary. Apart from the bifurcation of the executive and the judiciary, judges have been ensured security of tenure, so much so that it is virtually impossible to remove even a tainted judge as the Ram swami case has shown. What is more? the Constitution also provides that when President’s rule is declared, the executive functions can be taken over by the Governor, the legislative function can be made exercisable by Parliament but the power of the high court cannot be touched nor any provisions relating to it in the Constitution be suspended. The question is whether our policemen, especially at the bottom Tung, have ever been made familiar with the constitutional provisions. All they are taught is to wield the danda in favour of the ‘government when they are not busy extracting money from all and sundry. The result is that constables and inspectors think nothing of beating up a detainee in the precincts of even the Supreme Court, as it happened some time ago. Little wonder, they thought nothing of beating up the advocates of the Allahabad High Court and even firing at them. They either told or considered it their duty to make a success of the government organized bandh, If it meant use of force on the shopkeepers, well that had to be done and was in fact done, What did it matter if it meant entering the high court premises and beating up the advocates.
Our democratic governments are setting up one record or another of lawlessness. There has never been ‘an instance of a high court Chief Justice having to reach the Amy over the head of the administration and ask it to protect the institution from vandals. There is the provision for the arms coming to the aid of the civil authorities but this means that the invitation has to come from the civil government. There has been no occasion in the past for the judiciary to give such a call.
‘The apex court has reasons to be exercised over the issue; the letter of the high court Chief Justice to the Chief Justice of India speaks volumes. The state government counsel was made to read the letter aloud in the court. He has described how a group of outsiders led by the police entered the court premises and asked the lawyers, who had decided to ignore the bandh call, to get out. When the lawyers refused, their cars were damaged; when they tried to intervene they were beaten up and even fired upon by a constable in mufti. (Does it really matter that he does so from a private pistol?) The apex court has rightly suggested to the Supreme Court Bar Association President to investigate the conduct of the lawyers. Whatever the provocation, did they have the right to ransack the chamber of the Chief Justice who had to flee for his life?
‘The court has taken the unusual course of asking the CBI Director to act as commissioner and in: quire into the incident and submit a report within a week. It is only fair that the facts would be established first. And once this has been done, the guilty must take the consequences.
However, any inquiry by the CBI cannot go into the deep-rooted malaise itself, the flouting of the constitutional morality by the government, the tendency among the lawyers to strike at the slightest provocation and to take the law in their hands. It cannot deal with the increasing disregard by the police for the laws and the institutions, when it comes to serving the political masters. And until the problem is tackled at the root level the Supreme Court will be in for more and surprises, irrespective of what is done or not done about the Allahabad incident.
‘The expression of public regret by the UP Chief Minister on or of his respect for the judiciary is good as far it goes, SQ also the transfer or suspension of some policemen, However, it ignores the main problem.
Article extracted from this publication >> December 23, 1994
