Decay of Parliamentary Institutions in India

Author(s): P. A. Sebastian
Source: Economic and Political Weekly, Vol. 24, No. 31 (Aug. 5, 1989), pp. 1749-1750
Published by: Economic and Political Weekly
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REPORTS

Decay of Parliamentary Institutions

iin India
P A Sebastian

A journalist'sreport on corruptionin the secretariatof the

Maharashtralegislaturehas been held to be a breachof privilege
which lowers the prestige of the legislature.The episode is
indicativeof the rapidly deterioratingstate of institutions of
parliamentarydemocracy-legislatures,courts Of law, criminal
investigationagencies, etc-in India.
IN July, 1987 N D Patil, an MLA of the
Peasants and WorkersParty and Digvijay
Khanvilkar, an MLA of the Congress(I)
accused each other on the floor of the
Maharashtra Legislature of stealing a
question belonging to the other. Intrigued
by the allegation,PrakashGupta,a reporter
of Navshakti, investigatedthe matter and
found to his consternation,that the staff in
the secretariat-ofthe Maharashtralegislative
assembly were steeped in corruption and
some of the MLAs wereaccomplicesin the
racket.
Questions, half-an-hour discussions,
calling attention motions and such like are
the devicesto bringpeople'sproblemsbefore
legislatures.They are first submittedto the
secretariat of the legislature. It is alleged
that the staff in the secretariat of the
Maharashtra legislature manipulate such
thingswhen they aresubmittedby the MLAs
who are not well known and not very
vociferous.The MLAs ask the partieswhose
interests are involved in the matter to go
and meet the staff concerned. If a deal is
struck then the matter appears before the
legislature.If not the mattermay vanishinto
thin air. This was the burden of Gupta's
articlein Navshaktiwhich appearedon July
20, 1987. On the same day a motion for
breach of privilege was moved in the
legislatureagainst the reporter.The motion
said that the article interfered with the
functioning of the legislatureand defamed
the chairperson and the members of the
legislature.The special privilegescommittee
heldthat Guptawas guiltyand punishedhim
with thirty days' imprisonmentwhich both
the houses of the legislaturecommuted to
a warning on April 26, 1989.
The episode is indicative of the decay of
the institutionsof parliamentarydemocracy
in India such as the legislatures,the courts,
the commissions of inquiry and criminal
investigating agencies. The action of the
legislatureseems to suggest that corruption
may not lowerthe prestigeof the legislature,
but its disclosuremay. The legislaturedoes
not appear to be agitated over the substantiveissue and to have made an attempt
to inquireinto the chargeof corruptionand
to have taken remedialmeasures,but it has

censured the one who reported it. This is

indeed a strange concept of prestige. Can
one demandprestigeas a matterof rightand
enforce it at the pain of punishment?
The membersof the 1imil Naduassembly
assaulted and molested each other. If one
applies the logic of the Maharashtra
legislature, it will mean that the mutual
belabouringindulgedin by the membersdid
not taint the prestigeof the TN legislature
while reporting it in public did. Rajiv
Gandhi treated the members of the
parliamentas less than honourablewhen he
misled them by falsely claiming there was
an SIT reportwhich exoneratedDhawanof
the charge of conspiracy to assassinate
IndiraGandhi. But the parliamenthas not
punished him for contempt of the house.
The other institutions of parliamentary
democracy do not acquit themselves any
better than the legislatures. The Supreme
Court was supposed to decide the validity
of the interim order in the Bhopal gas
disastercase. Instead, the court transferred
to itself all the cases, both civil and criminal,
and quashedthem in termsof an apocryphal
settlement.This decision flew in the face of
the laws and precedents. The court had
struck down its own order in Antulay case
wherebythe corruptioncase againsthim had
been transferredto the high court from the
sessions court, because it discoveredthat it
had no powerto do so. From wheredid the
court acquirethe powernow to do the same
thing, which, it said, it did not have, not so
long ago? Does the law vary in accordance
with the colour and wealth of the litigant?
The governmenthad assumed power to
representthe gas hit under the Bhopal gas
leak disaster (Processing of Claims) Act,
1985.Some of the gas hit had challengedin
the Supreme Court the constitutional
validity of this law. The court acted on the
basis of a settlement signed by the government on behalf of the victims,whose power
to do so was under legal challenge. The
proprietyand thejudicialwisdomdemanded
that the court should have first decided the
constitutional validity of the Act before it
took such a momentous decision which
affected thousands of people. A five-judge
bench of the SupremeCourt had held in the

Shriram case: "When an enterprise is

engaged in a hazardous or inherently
dangerous activity and harm results to
anyone on account of an accident in the
operation of such hazardous or inherently
dangerousactivityresulting,for example,in
the escape of toxic gas, the enterprise is
strictlyand absolutelyliable to compensate
all those who are affected by the accident
and such liabilityis not subjectto any of the
exceptionsvis-a-visthe tortuousprincipleof
strict liability. In such a case, the measure
of compensation must be correlatedto the
magnitude and capacity of the enterprise
because such compensation must have a
deterrent effect. The larger and more
prosperousthe enterprise,the greatermust
be the amount of compensation payableby
it for the harm caused on account of an
accidentin the carryingon of the hazardous
or inherently dangerous activity by the
enterprise'This was not a veryrevolutionary
doctrine enunciated by the SupremeCourt
for the first time in its history. The privy
council had said so about a hundredyears
ago. The absolute liability meant in the
instant context that Union Carbide had to
compensate fully fc the damages incurred
by the victims, irrespectiveof whether the
gas escaped because of its fault or not. But
the court evaded, in the case of Carbide, a
decision on this issue. Besides,therewas the
questionof punitivedamagesfor negligence
which is an accepted principle in the US
while it is in a nascent stage in India. The
Carbide case gave the highest court an
opportunity to take definitive decisions on
all such vital issues which would have had
a tremendous impact in the future.
The reason given for the court's refusal
to determine such issues on the basis of
principles was two-fold: (1) the case would
havetakenseveralyearsbecauseof back-log
of cases in Indian courts, and (2) there was
no guarantee that the A?nericanjudiciary
would have accepted and implementedthe
decision of the Indian courts. Neither
argument will stand the test of reason.
Regarding the first argument, there was
nothing to prevent the court from
constituting a special bench to deal
exclusivelywith the Carbidecase. Anyway,
the court has already spent about three
months on this case now. And it may take
several months more. If the court had
decided to spend this much time at the first
instanceitself, it could havedone so without
getting involved in unseemly controversies
and legal wrangleswhich may provide the
US courts with a reason to say that the
Indian courts have not complied with the
due processof law. The second argumentis
equally untenable. The comity of nations
would have entailed that the US courts
enforced the Indian decisions.
When the highest court bungles such an
importantissueso badly,how canthe courts
command the respect of the poople-how
can they maintain and enhance their own

Economic and Political Weekly August 5, 1989

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All use subject to JSTOR Terms and Conditions

1749

prestige?Now, who has loweredthe prestige

of the courts and who has interferedwith
the course of justice-the people or the
In the historyof indepencoursethemsel%es?
dent India there is no other single incident
which has mangled the Indian judicial
edifice as badly as the performanceof the
SupremeCourt in the Bhopal case. The cuts
and tears are entirelyself-inflicted. Rightly
or wrongly, people today believe that the
judges of the Supreme Court indulged in
wheeling and dealing behind the curtain
along with the officials of the Indian union
and Union Carbide.
There are severalinstances in which the
Indian courts have not crownedthemselves
with glory. E M S Namboodiripad was
charged with contempt of court for a
statement made when he was the chief
ministerof Kerala.Upholding the chargeof
contempt against Namboodiripad, the
Supreme Court said in 1970: "When,
therefore,a person chargedthe judiciaryas
'an instrumentof oppression'and the judges
as 'guided and dominated by class hatred,
class interestsand class prejudices,instinctively favouring the rich against the poor',
it is clearlyan attackupon judgescalculated
to raise a sense of disrespectand distrustof
all judicial decisions. It weakens the
authority of law and law courts and the
person is guilty of contempt of court. That
the person did not intend any such result
cannot serve as justification."
It is illuminatingto contrastthe judgment
in Namboodiripad'scase with the judgment
in the Shivshankar'scase deliveredby the
SupremeCourt in 1988. P Shivshankar,the
then minister for law and justice addressed
a meetingof the Bar Council of Hyderabad
on November 28, 1987 and said: "The
supreme court composed of the elements
from the elite class had their unconcealed
sympathy for the haves, i e, the zamindars.
As a result, they interpreted the word
'compensation' in Art 31 contrary to the
spiritand the intendmentof the constitution
and ruled the compensation must represent
the price which a willing seller is prepared
to accept from a willing buyer. The entire
programmeof zamindariabolition suffered
a setback..." He further stated: "The
Maharajasand the Rajaswereanachronistic
in independent India. They had to be
removedand yet the conservativeelements
in the ruling party gave them privy purses.
When the privy purses were abolished, the
Supreme Court, contrary to the whole
national upsurge, held in favour of the
Maharajas.' The minister also said:
"Madhadhipatis like Keshavananda and
zanindars like Golaknath evoked a sympatheticcord nowherein the whole country
exceptthe SupremeCourt of India. And the
bank magnates, the representativesof the
elitist cultureof this countryably supported
by industrialists, the beneficiaries of
independence,got higher compensation by
the intervention of the Supreme Court in
the Cooper case.. Anti-social elements,
ie, FERA violators, bride burners and a
1750

whole horde of reactionaries have found

their haven in the Supreme Court!'
Namboodiripad'scritiqueof the judiciary
was theoreticaland ideological. It was only
a reiteration of some of the basics of
Marxism. And Marxist ideology has not
been prescribedin India. But Shivshankar
concretelychargedthe SupremeCourt with
bias and prejudice against the poor and
instinctive favour for the rich.
Disposing of contempt proceedings
against Shivshankar, the Supreme Court
said: "Whilerespectfullyacceptingthe ratio
and the observations of the learned chief
justice made in that decision (Nambooc'ripad'scase),we muistrecognisethat tines and
clime have changed in the last two decades.
There have been tremendous erosion of
many values... " Strangelogic indeed. The
values have eroded, so Shivshankarcould
denigratethe judiciary with impunity! The
court added: "Afterall in cannot be denied
that the pre-dispositionor subtle prejudice
or what in Indianlanguageis calledsanskar
are inarticulatemajor premisesin decisionmaking process. That element in the
decision-makingprocess cannot be denied,
it should be taken note of' And the court
concluded: "If any one drawsattention to
this danger and aspect and measures an
institutionby the class content, he does not
minimise its dignity or denigrate its
authority... The minister'sstatementdoes
not interfere with the administration of
justice.. ." The retreatwas complete.
The only differencebetweenNamboodiripad and Shivshankar is that the former
meant what he said about the class content
and its bias whereas the latter only
simulated. Can anyone blame people now,
if they conclude that the courts have two
measures in their shop of justice?
The commissions of enquiryweremeant
to deal with complex situations in which
unlawfulacts havebeen committedand the
executiveis not, or does not seem to be, fair
and impartial. But this institution has
been abused for mala fide and extraneous
reasons, one need not dwell upon the past
performance of such commissions as
Bhargava commission to drive the point
home. The recent exampleswill clinch the
issue.The Misracommissioncame in handy
to whitewash the crime of those who
committed pogrom in the first week of
November, 1984. One instance will suffice
to make the point clear. An affidavit filed
beforethe commissionhad two listsattached
to it-one consisted of the names of very
prominent Congressmen who are said to
haveinstigatedand mobilisedthe assailants
and the other the names of some minor
Congress functionaries. The commission
totally ignored the first list as if it did not
exist while it recommendedaction against
the minor workers!The ThakkarCommission brokeall the normsand did a command
performance. It is widely believed that
Thakkar pointed 'the needle of suspicion'
at Dhawanto suit the political requirements
of a particularclique in the CongressParty.

The Thakkar-Natara;an commission is

anotherinstance.It wenton a witch-hunting
to censure the political opponents of the
regime.Veryoften a commissionof enquiry
is appointed as an agency of political
expediency to defuse the situation and
therebyto sweepthe ugly incidentsunderthe
carpet ratherthan to investigateand punish
the guilty. In late 1982, there were widespreadcommunal riots in Meerut,in which
over a hundred and fifty people lost their
lives. The Provincial Armed Constabulary
of UP actively participatedin the riots, it
was alleged. The government appointed
JusticeC D Parikhas a one-personjudicial
commission to enquire into the riots. The
commissionwas ultimatelywoundup in late
1988. It is not known what the outcome of
the commission was.
Criminal investigatirg agencies are the
bed-rockof criminaljustice.Theyaremeant
to be scrupulously impartial and fair. But
to-day we see an alarming spectacle of
misuseof the investigatingagencies.It is said
that the murderof Syed Modi was used to
'fi'x'SanjaySingh. JusticeThakkarpointed
out R K Dhawanas the principalsuspecton
the basis of materialproducedby a special
investigating team of the Delhi police.
The same team had no compunction in
'exonerating' Dhawan when political
expediency demanded it.
The institutions of parliamentary
democracyin Indiahavedegeneratedto such
an extent that they are no longer effective
instruments through which people can
articulatetheirgrivances and demands.The
situation is comparablewith that in China
in a crucial aspect where the allencompassing Communist Party became
moribund and the people had to find new
avenuesoutsidethe frame-workof the party.
Probably the situation is ripe in India for
a people's movement to break out of the
existingframework,as is being witnessedin
China today.
NOTICE
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Economic and Political Weekly August 5, 1989

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