Constitutional review commission should be abolished

By Nalini J. Singh

The ongoing controversy on the need and rationale for the National Commission to review the Working of the Constitution by the BJP-led Government is a sign of the health of Indian democracy because both the supporters and opponents of a constitutional review have joined the public debate. That the Head of a State and Head of Government are actively participating on issues raised by the "Consultation Papers" issued by the commission should be welcomed.

The central issue raised by the President and the Prime Minister which has evinced conflicting responses concerns the stability of the Union Government. While the Prime Minister has attracted the nation's attention to the need for "political stability for good governance", the President has suggested that there is no need to overemphasise the importance of stability and uniformity. He has also pointed out that the founding fathers of our Constitution had the wisdom and foresight not to over-value stability and had preferred more responsibility.

There is actually no need for a review to ensure stability, because constitutional legality for a fixed term of five years can prove to be dangerous for the functioning of parliamentary democracy. The sources of political stability lie in the political process and correctives will also emerge only from the democratic-electoral process itself. Further, our fixation on political stability and instability of elected government is completely off the mark because in almost all states of India, elected Governments have continued to complete their full term.

Also, the present defenders of the need for political stability have been vocal critics and opponents of the forty years of the dominance of the Congress.

The main argument of anti-Congress political groups was that the culture of political corruption was born because of the Congress's monopoly of power. Congress Governments were castigated for every evil in the body politic and movements were launched to remove the Congress from power.

Jayaprakash Narayan launched movements in Gujarat and Bihar in 1974-75 on the issue of corruption in public life and the participants in the J.P. movement had demanded resignation of Congress ministers even before they completed their full terms.

The moral of this story is that stable Congress Governments were equated with corruption and it was felt that the people had to be saved from arrogant and corrupt politicians who misused and abused their power because they were in place for five years. A section of the Indian political class has always articulated the opinion that stability not only makes elected representatives corrupt but also desensitises them to the changing needs of society.

The opponents of Congress domination over were not far from the truth when they thought that political stability had given birth to corruption in public life. Further, the quality of governance does not depend on the stability of legislatures for five years.

Mr. Laloo Prasad Yadav of Bihar and his wife, Ms. Rabri Devi, have given great political stability to Bihar, along with "Goonda Raj". And is the BJP satisfied with the performance of its own State Government in Uttar Pradesh? They have had to try out three Chief Ministers during last four years.

Actually, a Government's stability is a "neutral factor" as far as quality of governance is concerned. Good governance is closely linked with a perspective on economic development. A stable government can be "status quo-ist" and socially regressive. At best, political stability may be necessary but it can never be a sufficient condition for good governance.

Moreover, the issue of "stability" cannot be delinked from the issues of politics which emerged in a big way in the 1990s. The implementation of the Mandal Commission recommendations by Mr. V.P. Singh in August 1990 came as a bombshell for the States in the Hindi belt where caste equations collapsed.

The backward castes emerged as a powerful force because Mr. V.P. Singh clearly recognised that the socially assertive backward castes would challenge the social power of the upper castes.

Caste politics gave birth to multiple political formations in Uttar Pradesh and Bihar because every sub-caste was led by its own leader. If Mr. Laloo Yadav emerged as a leader of the Yadavs, Kumis looked towards Mr. Nitish Kumar.

Many Janata Dals emerged in the 1990s because peasant castes can not create a cohesive social coalition for the simple reason that caste identities are divisive. It is very simplistic to suggest that Janata Dals have split because of the clash of personal ambitions.

Politics is reflective of social dynamics in the Hindi heartland where confrontational caste identities are determining electoral verdicts in a highly fragmented manner. This on-going process of social-caste fragmentation is the cause of the emergence of multiple groups in politics. Political competition in reality has become competition among castes and sub-castes and a constitutional review commission should not be allowed to suggest any legalistic remedies to deal with specific social processes generated in post-Mandal North India.

The BJP is finding it extremely difficult to combine its politics of Hindutva with the caste reality of Hindu society. Coalition Governments at the Centre are a consequence of the process of social change and NDA leaders are a product of this process. Illogically, the NDA wants stable government in a situation of socially unstable caste competition. It is possible that north India will settle down when caste fatigue sets in. Politics and real issues of development will then occupy the centrestage.

It is essential to allow caste politics to come to an end because only then will the masses and leaders realise the futility of using caste to mobilise. The upshot of the above description is that caste politics has to exhaust itself before the agenda of development again becomes the real concern of people, parties and leaders.

The voters should be allowed to learn through their own experience that neither the issues of caste nor the construction of a Ram Temple can provide answers to their basic needs and this new learning process is quite observable in North India.

Any artificial intervention to prevent this process of self-learning will be extremely counter-productive to the growth of Indian democracy because the major premise of democracy is that the people find their own answers through a process of trial and error.

The constitutional review commission should be abolished because answers to political questions will be found only through the political process of representative democracy. The politics of caste and religion will be weakened only when the politics of "rozi-roti" (jobs and bread) finds some serious takers. INAV

Lawyers strike, litigants suffer

By Tahir Khurshid Raina

Recently two judgements have come which have generated a heated debate regarding the strike by the lawyers. One is given by the Hon'ble Delhi High Court describing the strike as illegal followed by that of the apex court of the country in which it has been held that if an ex-parte decree is restored by the court subject to the payment of the cost by the litigant; the litigant will be in his right to realise that amount of the cost paid from the advocate concerned who did not appear in the case on the promise of the strike by the lawyers.

Though on the face of the things the judgements look very harsh, when seen through the eyes of a common litigant as well as of common man of the society, they look very touchy and appealing. There seems to be no plausible rhyme or reason that a litigant should suffer for such acts of an advocate for which he was not having any attorney of his client. A litigant comes in the court of law only when he feels or meets some injustice. Here he engages a counsel for getting the desired relief as early as possible. It is the psyche of a common litigant and is also in the interest and demand of justice that the issue gets sorted out by the court. We may have experienced that sometime even a little delay may cause irreparable loss to the litigant. Justice delayed is justice denied is a well known maxim of the legal world.

Then how it is morally, ethically, professionally or by any yard stick be correct on the part of the lawyers to abstain from the court rooms and suspend the work pursuant to strike calls particularly when they have been occasionally paid also for the job to perform and are in knowledge of the gravity of injustice which has been done to their clients. It is not the symbol of a healthy society. In fact, it is quite unbecoming on the part of the lawyers to go for strike and obstruct the process of administration of justice. Moreover, the right to speedy trial is recognised as the fundamental right and it should not get in fringed atleast by those who are recognised as the guardians of this right of the litigants. It is very obnoxious and harmful trend which halts the entire judicial system and thus weakens the basic pillar of the democracy. It is said ''Lawyers are the Priests in the temple of justice''. But this sacred and sacrosanct approach may get vanished if the review of the strike trend or culture will not be made.

However, at sometimes lawyers too have to show their solidarity with the people who protest against any injustice done to them. But there are other means also in such situations, to participate in the protest voice than to go on strike. This traditional way of protest is the province of someone else and lawyers should not land here unless extremely grave situation has arisen and warrants interference of the lawyers community as well. But even at this moment they may go for a token strike for some hours and it should not be extended for a day or days together. It is a very harsh step which may be resorted to in the rare case and that too when all other means of redressing the grievances have been fully exhausted.

The recently developed laudable concept of Public Interest Litigation (PIL) is one of the most formidable weapons to be used against any arbitrariness or injustice with the public at large. Legal means are the best and potent means to get relief than to observe strike and put the poor litigants to irreparable loss.

The first duty as per the code of professional ethics of an advocate is to uphold the constitution, help in the maintenance of the rule of law, promote the advancement of justice and assist in the enforcement of fundamental rights of the people. It is exclusively because of these roles to be played by an advocate he is held in esteem in the society and the profession he holds as the noble profession. The strike culture gives a very strong blow on the Yeoman's role of the lawyers and thus stigmatises their image in the society. Justice William has very significantly said about such actions: ''what ever tends to lower the standard of the profession, and impairs its dignity and usefulness is against public policy.''

Let's hope that the lawyers will take the ratio decendendi and obiterdicta of the afore-mentioned judgements as the expressions of the sentiments of the entire society particularly of the poor litigants and try their utmost in keeping intact the noble values and lofty standard of the legal profession.

(The author is an advocate in the Hon'ble High Court of J&K)