Constitutional morality is getting short shrift
DO our constitutional authorities believe in constitutional morality? Some perhaps don’t. Time and again, we learn of some unexpected and strange development at the instance of a constitutional authority. The trouble is that such developments are not confined to one or two constitutional authorities, but are more or less across the board and frequent. The question is: who will advise them? They damage the constitutional spirit and virtually mock at our Constitution framers and the faith they had in the character and integrity of our leaders of the future.
It could truly be said that in the past as well, our leaders abused the Constitution, but that cannot be reason or justification for the present-day abuse. The attempt should be to avoid a downward spiral rather than create a whirlpool. Constitutional morality requires the authorities to do the right thing rather than avoid it; it requires the authorities to adhere to the rule of law rather than circumvent it; it requires maintenance of high ethical standards rather than looking for the lowest common multiple. Let’s consider a few examples.
In Maharashtra, the state government advised the Governor to nominate members to the Legislative Council. The Governor took no action on the recommendations for as long as eight months — he neither rejected nor accepted them. He simply shelved the advice. This led to a public interest litigation in the Bombay High Court. While deciding the case, the high court made a public law declaration that the Constitution obliges the Governor to either accept or return the recommendations within a reasonable time and eight months is beyond reasonable. It was further held that to subserve the aims set by the Constitution, it would be eminently desirable if the obligation is duly discharged without undue delay. Guess what? The Governor still took no action. Was it the right thing to do? Subsequently, the government fell and the new government made different recommendations which were promptly accepted by the Governor. Constitutional morality had been thrown out of the window.
There are many such instances from the recent past and some are playing out even as you read this. Some of our Governors have delayed assent to Bills passed by the state legislature; others have unreasonably withheld assent for months and years, compelling at least two state governments to approach the Supreme Court to interpret the power of the Governor in such matters.
The Speaker of the Legislative Assembly in Manipur, also a constitutional authority, gave no importance to constitutional morality. He did not take any action for more than three years on alleged violations of the anti-defection law contained in the Tenth Schedule of the Constitution. One of the persons against whom the allegations were made was a minister in the Cabinet. The Speaker is expected to be non-partisan, but he took no decision, thereby favouring the minister. Could the Speaker indefinitely delay taking a decision? The Supreme Court answered it in the negative and required the Speaker to take a decision within a month, which the court thought was reasonable, considering the passage of time. The Speaker did not do so and asked for an extension of time; he later assured the court that a decision would be taken by a certain date. No decision was taken. Was it the right thing to do, especially after an assurance given to the apex court? In view of the extraordinary circumstances presented, the court was compelled to pass a direction preventing the minister concerned from entering the Legislative Assembly. That’s when matters came to a head. By the way, this Speaker is not alone in such a misadventure.
The Chief Minister of a certain state is also guilty of disregarding constitutional morality. In West Bengal, a minister continued to hold office despite having been arrested and put in jail. The CM did not sack him for three months. In Tamil Nadu, the CM did not sack a minister who was in jail for eight months. The minister eventually resigned a day before the issue was raised in the Madras High Court. In Delhi, the CM sacked a minister only after he had spent nine months in jail. Ironically, now the CM himself is in jail and has not resigned, unlike his counterpart in Jharkhand. These are some instances where constitutional morality has been disregarded. Is it good for our country? BR Ambedkar understood constitutional morality as “a paramount reverence for the forms of the Constitution”. Understandably so. The Constitution is not and cannot be in the nature of a standard operating procedure. If the forms of the Constitution are not treated as sacred, all will be lost. Perhaps that is why Rajendra Prasad said that our country needed leaders of character and integrity.
Constitutional morality is not only for our constitutional authorities and other leaders; it must pervade the entire community. Otherwise, an obstinate minority may stymie the working of an institution, even though it may not be strong enough to gain ascendancy. This can happen in any institution. As far as Parliament or state legislatures are concerned, constitutional morality does not permit a complete disruption of proceedings by a vocal minority. Such a disruption cannot be and should not be sanctified as legitimate parliamentary strategy, as canvassed by a former minister. It goes against the grain of constitutional morality. Similarly, calls for love jihad, land jihad and flood jihad are all constitutionally unacceptable transgressions. Garlanding rapists and murderers cannot be the right thing to do. We are passing through somewhat troubling and difficult times. We must respect our Constitution and its spirit and ethos as well as the rule of law. If we don’t, we will be creating that whirlpool that will take us to the depths of the Indian Ocean.
