Monday, November 26, 2012

CAG and The Indian Constitution

Prof. Makkhan Lal 
(Senior Fellow, VIF)

In India, it has become customary to abuse the Constitution and/or Constitutional Authority whenever a political party or a political leader is in trouble for its or his misdeeds. Let us not forget that this began with Jawaharlal Nehru himself and also that the very first constitutional amendment bill was introduced in the Parliament on 12thMay 1951(six months after the death of Sardar Patel) when the Part III of the Constitution, dealing with the Fundamental Rights, came in the way of certain ill-conceived and ill-timed actions of the then Government. The ultimate abuse of the Constitutional provisions was reflected in the imposition of Emergency on 26th June 1975. Even the most diehard supporters and part of the then regime had this to say:

B.K. Nehru (then High Commissioner to London and Mrs. Indira Gandhi’s cousin): “Jawaharlal Nehru and Shastri ‘knew what a constitution was… [its] checks and balances.’ But Indira Gandhi ‘in the effort to have a populist image…went on the concept of committed democracy, committed judiciary’.1
Romesh Thapar (for long, along with his wife Raj Thapar, a member of Mrs. Gandhi’s Kitchen Cabinet): “The suspension of democracy ‘was the culmination of a process of manipulative politics set in motion many years earlier, and very often the handiwork of supposedly democratic men.”2

We need not go on discussing the reasons for imposing the emergency and converting the country into a Middle Ages European fiefdom. But we need to remember what politicians do when they are in trouble on account of their misdeeds, corruptions, and so on.

What we have witnessed in the last three years (more precisely in the regime of UPA-II) is a large number of scams committed not by a Harshad Mehta or a Natwar Lal. But by the very same people who have been appointed to be its custodians. Commonwealth Games loot, 2G Scam, Coal Mines allotments, and Gas fields’ allotments are just the tip of iceberg. Let us remember that these scams have not been brought out by the investigative journalist like in the 1970s and 1980s but by the Government’s own watch-dog – the Comptroller and Auditor General – having been given the constitutional mandate to keep an eye on the Government’s function concerning the financial matters.

Once the Government was on the mat, its minions started the cacophony – CAG is an agent of opposition, it has not right to question the Government, it has no jurisdiction over the matter and indeed the CAG is incompetent and unqualified. These minions forget that the present CAG, Mr. Vinod Rai, is one of the most outstanding and upright officers of this country. The CAG’s expertise is globally recognized. It has been appointed as external auditor for the International Atomic Energy Agency, World Health Organisation, World Intellectual Property Organisation and several more such institutions based on open bids against competition from Sweden, Germany, France and the UK. We must appreciate that the CAG of India did not win solely on cost but also on technical considerations. Many of its bids were not the lowest.

Worst still for the critics, Mr. Vinod Rai, the CAG, was chosen and appointed by the very same Government which is in power today. But the insinuations and allegations have taken a serious turn and need to be taken note of especially when they emanate from the Cabinet and State Ministers of the Government.
Having being exposed the scam of several Lakhs Crores (it may not be possible even for a highly educated person to write these figures in digits) they have started propagating that one member CAG is no good enough and it needs to be made into multi-member body. For this, they cite the example of the Election Commission.

First, the Election Commission. In order to confuse and convince the laity it is being argued that like the Election Commission the CAG must also be made multi-member body. It appears very fine, attractive and convincing, but let us reflect on as to what are the Constitutional provisions? The provisions of Election Commission are dealt with in the Constitution in the Article 324. The Articles 324(2) and 324(3) say:

(2) The Election Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from time to time fix and the appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President.
(3) When any other Election Commissioner is so appointed the Chief Election Commissioner shall act as the Chairman of the Election Commission.

It can be seen that our Constitution Makers had provided with the single member or Multi-member Election Commission and indeed who shall be head of this body in case it is multi-member. Thus, the Government was within its Constitutional rights when on 16th October 1989 it appointed two additional Election Commissioners thinking that it will clip the wings of the then Chief Election Commissioner, Mr. T.N. Seshan. It is another matter that today politicians have come to fear it as Damocles sword – be it only for a brief period.

However, the Constitution has dealt with the Comptroller and Auditor General on a very different plane. It must be mentioned here that independent Auditor General has been there even before the independence and it was given independent status even in the Government of India Act 1935. The CAG is dealt with in the Article 148 (Chapter V) of the Constitution of India. Some of its provisions are:

Article 148 (Comptroller and Auditor-General of India)

(1) There shall be a Comptroller and Auditor-General of India who shall be appointed by the President by warrant under his hand and seal and shall only be removed from office in like manner and on the like grounds as a Judge of the Supreme Court.
(4) The Comptroller and Auditor-General shall not be eligible for further office either under the Government of India or under the Government of any State after he has ceased to hold his office.
(6) The administrative expenses of the office of the Comptroller and Auditor-General, including all salaries, allowances and pensions payable to or in respect of persons serving in that office, shall be charged upon the Consolidated Fund of India.

Article 149 (Duties and powers of the Comptroller and Auditor-General)

The Comptroller and Auditor-General shall perform such duties and exercise such powers in relation to the accounts of the Union and of the States and of any other authority or body as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, shall perform such duties and exercise such powers in relation to the accounts of the Union and of the States as were conferred on or exercisable by the Auditor-General of India immediately before the commencement of this Constitution in relation to the accounts of the Dominion of India and of the Provinces respectively.

Article 151 (Audit reports)

1. The reports of the Comptroller and Auditor-General of India relating to the accounts of the Union Shall be submitted to the President, who shall cause them to be laid before each House of Parliament.

2. The report of the Comptroller and Auditor-General of India relating to the accounts of a State shall be submitted to the Governor of the State, who shall cause them to be laid before the Legislature of the State.

From the above following points are crystal clear from the Constitution point of view:3
  1. The use of expression that “There shall be a Comptroller and Auditor-General of India” clearly shows that the founding father of our Constitution had envisaged CAG as a single person Constitutional Authority and not a Commission – be it of one member or multi-member.
  2. CAG is not appointed by the Government but by the President of India as per the provisions of the Constitution of India and he can be removed only in the manner and on the like grounds as a Supreme Court Judge.
  3. CAG is not an employee/officer of the Government of India. It is a Constitutional Authority and is answerable to the Parliament and the President of India.
  4. It is the duty of the CAG to Audit the Government accounts (including the accounts of the state governments) in India to audit all expenditure from the revenues of the union or state governments, whether incurred within India or outside. Specifically, audits include transactions relating to debt, deposits, remittances, trading, and manufacturing, profit and loss accounts, and balance sheets kept under the order of the President of India or the Governors of States. These were the exactly the duties and powers defined also in Government of India Act 1935.
  5. In order to save CAG from any pressure from any quarter the CAG is not allowed to hold any office after retirement and also all its expenses are met from the consolidated funds of India.

The Article(s) dealing with the Comptroller and Auditor General in the Constitution were debated and discussed threadbare.4 T.T. Krishnamachari, Biswanath Das, K.T. Shah, H.N. Kunzru, and P.S. Deshmukh were among those who participated in debate and moved amendments. Replying to the debate and amendments moved by the members of the Constituent Assembly Dr. B.R. Ambedkar, Chairman of the Drafting Committee, said:

“… (this) dignitary or officer is probably the most important officer in the Constitution of India. He is the man who is going to see that expenses voted by Parliament are not exceeded, or varied from what has been laid down by Parliament in what is called Appropriation Act. If this functionary is to carry out the duties – and his duties, I submit, are far more important than the duties of even of the judiciary – he should have been certainly as independent as the Judiciary. But, comparing the article about Supreme Court and the article relating to the Auditor-General, I cannot help saying that we have not been giving the same independence which we have given to the judiciary, although, I personally feel that he ought to have far greater independence than the judiciary itself.”5

It was unthinkable in the olden days to criticize CAG what to say of attributing motives and hurling invectives. While speaking about CAG Jawaharlal Nehru said in the Parliament:

“For the CAG to be criticized on the floor of the House would tend to undermine his special position under the Constitution and would make it difficult for him to discharge his duties without fear or favour”.

It is not for no reason that Supreme Court recently expressed its anguish in the following words:

"CAG is not a munimji or an accountant or something like that... He is a constitutional authority who can examine the revenue allocation and matters relating to the economy. CAG is the principal auditor whose function is to go into the economy, effectiveness and efficiency of the use of resources by the government. If the CAG will not do, then who else will do it"

It is now time that people in general take note of such utterances against the Constitutional Authorities and take appropriate measures to safeguard the Constitution.

Notes and References
  1. B.K. Nehru in Sunday Mail, 5 April, 1992; Quoted in Austin Granvuille, 1999, Working of Democratic Constitution: A History of Indian Experience, Oxford, p. 298.
  2. Romesh Thapar, 1977, The Rear Meat of Emergency, Economic and Political Weekly, April 2, 1997.
  3. See The Constitution of India, Articles 148-151.
  4. For details see Constituent Assembly Debate, Vol. VIII, pp. 403-415; Dr. S.C. Kashyap, 2004 (Second Revised Edition), The Framing of India’s Constitution: A Study, New Delhi. Pp. 412-17.
  5. Constituent Assembly Debate, Vol. III, pp. 407-8.
  6. Observation of a bench of Supreme Court of India while dismissing a petition challenging CAG reports on 2G spectrum, Coalgate, etc.

Wednesday, November 21, 2012

Grandma’s Remedies for Governance Issues

Dr M N Buch 
(Visiting Fellow, VIF)

I was a stripling short of twenty-three years when I joined as Assistant Collector at Morena after completing my training at the IAS Training School at Metcalfe House. Morena can be frightfully hot in the summer and my training required almost constant exposure to the sun. I developed a bad attack of prickly heat, which turned into an infection which spread through the hair roots and caused me to burst out in painful rashes. I was referred to the Medical College, Gwalior, where I was diagnosed as having a fungal infection for which the doctors prescribed medicines and subjected me to a course of superficial X-ray therapy. This only aggravated my problem, caused my hair to drop out and my skin to become brittle. So much for modern medicine.

One week end I came to Delhi to visit my mother, who saw my condition and advised me to meet an old family friend, a somewhat irascible colonel who had retired from the Indian Medical Service. Col. Kataria was an old fashioned doctor, a wonderful clinician who first diagnosed a disease and only then gave medicine. He had one look at me and wanted to know what I had done to myself. When I told him about the course of treatment I had undergone he shouted that the doctors who treated me were butchers, I did not have any fungal infection but had a relatively simple infection called seborrhoeic dermatitis, which is simply an aggravated form of prickly heat which affects the sebaceous glands. He gave me a cetrimide based shampoo, a lotion consisting of castor oil and lavender oil and an ointment which had both menthol and salicylic acid, which is the main ingredient of aspirin and told me to use these for one week. By the third day the infection began to recede and within one week I was fully cured. The sequence to this was in my next Sub division, Kannod. In the wild and woolly Bagli Tehsil of the Subdivision we had a doctor in charge of the primary health centre, called Dr. Joseph, who hailed from Kerala. When I told him my story he said that if I wanted to avoid any skin infection in the future I should prepare a decoction by boiling a handful of neem leaves, add a mug full to a bucket of water and bathe with it. I followed his advice and, touch wood, have never had a skin problem. I bless Dr. Kataria and Dr. Joseph for curing me with remedies which were virtually herbal. Unfortunately they could not restore the hair I had lost, thanks to the doctors at Gwalior.

One can wonder why I am telling stories about myself and referring to grandma’s recipes in an article aimed at addressing the extremely important issue of governance. Well, sometimes parables and fables convey a far more serious message than scholarly studies and long orations based on theories of politics and the philosophy of government. In other words, in the field of government there is room for grandma’s remedies, or tried and tested methods of administration. This paper attempts to explore these old, reliable systems to see whether we can find solutions for the myriad problems of governance we are facing.

It is the objective of every government to govern, that is, to control and direct the affairs of the country and for this purpose to deliver to the people that which would promote their welfare. Even the worst of dictators has not disagreed with this definition of government because I have yet to come across a dictator who states that he does not desire the welfare of the people. The difference between good government and bad government is a differential view of what constitutes welfare, but on paper at least the objective is to make the country strong, to give people pride, to make people prosperous. When Hitler destroyed the Weimar Republic this is precisely the agenda he placed before the German people and won their confidence adequately to win an election and come to power. What followed is perhaps the most unimaginable of horror stories in the history of the world, but the stated objective still remained the good of the people.

Let us return to India and see the situation here. I refer to the period from when the British took control of this country right up to the present day, when we became an independent, democratic republic. British rule (I refer here to the post 1857 direct rule of the British Government) was based on an understanding that India was a society of laws. British rule was designed to perpetuate, imperial power in India, but the manner of governance was law based and not arbitrary. Therefore, even during the independence movement the British were responsible for maintaining the empire, but always through laws, the enforcement of which also was according to law. Unlike the Gestapo and the Kampetai the police did not have the power of arbitrary arrest and arbitrary sentencing. The police could not hold anyone in custody for more than twenty-four hours without producing him before a Magistrate and the power for dispensing justice lay with Magistrates, Judges and the High Courts and Federal Court, which were not subordinate to the Executive from the sessions court level upwards. The Magistracy and the Police had the same powers then as they have today under the Police Act and the Code of Criminal Procedure in the maintenance of public order and the prevention of offences. The Thanedar and Tehsildar of British days virtually operated under the same laws as we do today, but they were much more effective in ensuring that society remained orderly and crime was controlled and prosecuted. In the matter of law and order every public servant knew where his duty lay and public disorder was dealt with sternly. No officer looked over his shoulder to find out what was expected of him by his official and political masters. If there was a situation to be dealt with the officer on the spot attended to this in the full confidence that he would be supported for his actions. This spilled over into the first twenty years of independence also.

Let me give a few examples. Ambah Tehsil of Morena District had a Tehsildar, P.N. Vats, an outstanding officer by any reckoning. Ambah was one of the worst dacoity affected Tehsils in the whole of India, with many of the gangs being created by issues relating to land disputes. Vats expedited hearing of revenue cases, he was a virtual scourge for his Patwaris if they failed their duty to maintain land records properly and he was extremely pro active in dealing with any case in which land was a bone of contention. He not only brought down pendency of litigation; his activist role actually brought peace to the Tehsil and drastically reduced the incidence of dacoity. He did not wait for orders from his Collector and he certainly did not heed or tolerate any undue political interference in his work. What he wanted was to be effective as an officer and provide good government to Ambah.

The second case is of Inspector Bitta Singh, who was Circle Inspector at Sheopur, then a sub-division of Morena. An extremely ugly dispute broke out over a temple and a mosque and the Hindu Mahasabha was up in arms against the Muslims. The situation was extremely volatile and could have resulted in a major communal riot, which would have spread to the entire region. This outstanding police officer, without waiting for orders from anyone, immediately intervened, arrested those who were trying to foment trouble, launched aggressive patrolling by the police and created an environment in which wrongdoers trembled, peace was maintained and there was no communal riot. The District Magistrate and the Superintendent of Police also played their role by fully supporting the man on the spot, with the administration at sub-division level achieving something which today several battalions of armed police are unable to do.

The third case is of Sub Inspector Maluk Singh, who was the Station Officer of the police station at Nagda. Nagda has a large industrial establishment based on GRASIM. There was trade union militancy which, unfortunately, was fragmented. Suddenly trouble flared up and before the district administration could be fully aware of what was going on the situation became really incendiary in Nagda. Maluk Singh did not have a large force available to him but he suddenly grew ten feet tall and by legal action, threat, persuasion and every other means which lay within law he was able to bring warring factions together, put the fear of God into them, force the management and workers to sit together for a negotiated settlement and he achieved within two days what today massive government intervention cannot do. Peace was maintained at Nagda because of the initiative of this fine young police officer. I am mentioning these three cases because I am witness to what happened both in Morena and in Ujjain, in the former as Assistant Collector under training and in the latter as Collector and District Magistrate. If the man on the spot is trusted and is empowered to act there is no situation in India which cannot be tackled.

There being continuity between the Government of India Act 1935 and the Constitution of India, the only real change which has come about between how the British governed us and how we govern ourselves is that under Government of India Act we were a limited democracy whereas under the Indian Constitution we are a fully democratic republic. In a democracy it is not the bureaucracy which rules but rather the elected representatives of the people who, as members of the Council of Ministers, take the policy decisions relating to government. Nevertheless we continue the old system where the Head of State exercises executive power through officers subordinate to him, the said powers being exercised on the aid and advice of the Council of Ministers. This, however, does not in any way change the old position about India being a country of laws, in which the laws are framed by the legislators but are implemented, within the policy approved by the Council of Ministers, by officers appointed by the President or the Governor as the case may be. The law vests certain powers in officers and these officers are required to exercise their powers freely, fairly, without interference and in accordance with the law. For example, Chapter X of Cr.P.C authorises an Executive Magistrate or a police officer to command an unlawful assembly to disperse and on its failure to do so, to take such necessary action to disperse it as may be called for, including the use of force, even lethal force. The Code of Criminal Procedure does not say that in exercising this power the Executive Magistrate or the police officer will seek the permission of a politician, a superior officer, or any other authority. He has the power, he is required to maintain order; he must ensure that there is public peace and, therefore, he is both free and duty bound to take all necessary action to maintain order.

How does the system actually work? In Bombay the Shiv Sena decides what is lawful and what is unlawful and the police station stands by as a spectator. Every riot is an offence and every mob which indulges in rioting is an unlawful assembly. When communal violence occurs why do police officers not take action as they are authorised to do by the Code of Criminal Procedure? It is not for want of legal authority but rather because the exercise of legal authority is now almost out of fashion. Every police officer, every magistrate knows that if he does take action he will not necessarily be supported, the press will probably come out with a biased view and political pressure will result in action against the officer rather than support for him. Therefore, Magistrates and police officer just do not act because in India acts of omission are still not really punished. It is now very rare to find a Bitta Singh or a Maluk Singh. Instead one finds officers of the type who now man the Maharashtra Police and allow Shiv Sainiks to disrupt the peace, but will not do their duty to prevent this in the interest of the citizen at large.

Law and order is only one aspect of government and at the top end of the administrative pyramid we have the Council of Ministers and the Secretaries to Government who are required to take decisions within the overall umbrella of the Rules of Business of the Executive Government. In Madhya Pradesh, for example, there are the Business Allocation Rules which allocate business between different departments and then there are the Rules of Business of the Executive Government whereby the Governor ordains how the business of government will be conducted. For example, in Madhya Pradesh, there are three categories of cases, those cases which are to be brought before the Council of Ministers, those cases in which before final orders are issued by a department the matter will be submitted in coordination to the Chief Minister and those cases which a department is competent to finally dispose of. Under Part V of the Rules of Business there is a procedure laid down whereby a Secretary or a Minister may dispose of a case. A Secretary is permitted to dispose of every case which is of a routine nature, or on which the question of policy has already been settled, as also of matters which the Chief Minister or the Minister in charge direct the Secretary to finally decide. In other words, in a matter in which there is no issue of policy of issue involved the Secretaries are fully empowered to dispose of the case. Unfortunately no Secretary now exercises this power and instead even minor, routine matters are put up before the Minister. Administratively, therefore, there is a form of paralysis in the higher echelons. As was amply proved in the 2G Spectrum allocation case and as is provided by Rule 48 of the Rules of Business of Madhya Pradesh, the Secretary of the Department is personally responsible for careful observance of the rules. This means that if there is a material departure from rules by anyone, including the Minister, the Secretary to Government is responsible to ensure that the matter is brought to the notice of the Minister concerned and, where necessary, to submit the case in coordination so that the Prime Minister or Chief Minister may be made aware of the deviation and give necessary instructions on the final disposal of the case. The question is, how many Secretaries do actually dispose of cases finally and how many Secretaries have the guts to put up a case in Coordination because the Minister and Secretary do not agree on how other matter should be decided.

There is corruption. Corruption is a criminal offence and under the Code of Criminal Procedure criminal offences shall be investigated by the police. Under section 154 the citizen is required to report the alleged commission of an offence to the police, which is required to treat this as the First Information about the crime and to record it in the specially prescribed FIR book. Once the FIR is recorded then under section 156 Cr.P.C. the officer in charge of a police station is bound to investigate the case and to do this he neither needs permission nor is authorised to abjure investigation. The wordings of section 154 and other provisions of Chapter XII are very clear. The police officer is bound to record a FIR , he is bound to investigate an offence, his investigation cannot be interfered by any authority, he must submit a challan to the court if there is a prima facie case and if no prima facie case is made out he is bound to report the matter to the court and obtain permission to close the case. For this he does not need anyone’s permission, nor can anyone either force him to investigate or refrain from investigating fully or in part. Here is the ultimate grandma’s remedy, contained in the Police Act which dates back to 1861 and the Code of Criminal Procedure which is only a modification of the Code of 1898. The power of the police to investigate is the same in 2012 as it was in 1898. Why, then, do we keep receiving complaints that the police does not act?

The most notorious police force in India is the CBI, which legally has no existence and whose legal avatar is the Delhi Special Police Establishment (DSPE). This force is notorious for acting with political bias, for holding preliminary enquiries prior to registration of the FIR and for acting in fits and starts in eminent cases according to what the political masters dictate. But this is not the scheme of policing in India and, therefore, what we need is not new Police Acts or new police arrangements but rather a reminder to the police that the existing law is complete in itself. It fully empowers the police and the police should not act as handmaidens of individual politicians but rather go back to the old practice of policing according to law.

In every aspect of governance the right way is already prescribed and we do not need new laws in this behalf. For example, tender procedures are fully prescribed in existing PWD manuals. Despite this officers quite often bypass tender procedures, either under pressure of money or the pressure of politics and this has always resulted in cost overruns, poor quality work, non adherence to schedule and generally unsatisfactory execution of the sanctioned work. Why do we need new laws here? What we need is a firm decision both by government and the officers concerned that they will not deviate from established norms, or established rules. For example, The Directorate of Town and Country Planning will not change land use except by due process, for good reason and within the overall scheme of the Development Plan of the city. This does not call for new rules, it calls for the personal integrity and morality of the officer concerned who deals with a situation according to rules and laws and does not succumb to any blandishment or threat or pressure from his superiors. Is that too much to expect?

I am not suggesting that radical surgery or fourth generation drugs should never be resorted to. But if an old fashioned carminative mixture relieves a stomach ache, why should there by resort to expensive antibiotics? Why go to anti allergens and cortico-steroids to deal with an insect bite when in the garden itself there are plants a poultice of which will be enough to deal with the toxic effect of that bite. If by educating officers on what their legal powers are and then encouraging them to take suitable action we can provide good government to this country, why do we need Kejriwal and Prashant Bhushan’s remedies? I would only end by saying that what we need in this country is that officials at every level begin to be aware of their legal powers, the mandate given to them by government and the expectations of the people regarding what government will deliver. We need to empower our officials by assuring them that if they operate within what they are authorised to do, they will be fully supported, if they do not do their duty they will be punished and if they take decisions at the behest of others they will be removed from service. Once this happens and the bureaucracy begins to function effectively all the old remedies of grandmother will flood back and the administration will return to a level of efficiency which it enjoyed in the past. It is then and then alone that we should assess what reforms are needed to carry government to the next level of administrative elevation and for this purpose reform the present structure of government and the network of laws.

India’s Role in the Current Century

Kanwal Sibal
(Advisory Board, VIF)

The title of Shashi Tharoor’s new book, Pax Indica: India and the World of the 21st Century, can mislead an unwary reader. The book does not offer a blueprint for India’s rise to imperial status in the current century. A more modest role is envisaged for India, that of helping to define the norms of tomorrow’s new networked world, write the rules and have a voice in their application. But the book is not really about this either. It is more an overview of India’s relations with its neighbours, South- East Asia, China, the US, the Arab countries, Africa, Europe, and Latin America, with separate chapters on India and the UN and Soft Power and Public Diplomacy, and a final chapter on Multi-Alignment as a “Grand Strategy” for India in the decades ahead.

The new norms and rules that India would work on, how they would be different from the ones that the West considers universal, and the means India will deploy to achieve success are not spelt out in the book. In actual fact, the author believes that the world having been made “safe of democracy”, India’s vocation should be the promotion of democracy and human rights worldwide along with “major allies” like the US. This suggests adjusting to Western norms more than redefining them, which is in fact what the West expects of others.

The reader would have greater than usual interest in Tharoor’s latest book because he would be writing from a double perspective – that of his long experience in international diplomacy as a UN civil servant and a brief exposure at the political level to India’s foreign-policymaking as a junior Minister in the Ministry of External Affairs (MEA). However, rather than this double experience combining to give more cohesion to his analysis of India’s foreign policy in the current century, it produces some inconsistencies.

An instance of this is the disproportionate attention given to groups such as BIMSTEC (Bay of Bengal Initiative for Multi-Sectoral Technical and Economic Cooperation) and the IOC-ARC (the Indian Ocean Rim Association for Regional Cooperation) and the exaggerated enthusiasm with which their potential is described. The eight pages devoted to BIMSTEC contrast with one paragraph each that Japan and South Korea merit, and the less than three pages of superficial treatment of Russia. While Europe gets the same space as BIMSTEC, the author considers the continent irrelevant to India’s strategic interests. He claims that “there’s nothing like the IOC-ARC in the annals of global diplomacy” and rhapsodizes thus in UN-speak:

When the IOC-ARC meets, new windows are opened between countries separated by distance as well as politics. Malaysians talk with Mauritians, Arabs with Australians, South Africans with Sri Lankans, Iranians with Indonesians. The India Ocean serves as both a sea separating them and a bridge binding them together.
Doesn’t the UN at New York do all this too?

Some other inconsistencies in the book probably derive from the author’s reluctance as a former Minister and Congress Member of Parliament to criticize the government’s policies. Tharoor’s analysis of the roots of Pakistan’s deep-seated hostility towards India is most perspicacious and hard-headed, but even as the reader is being convinced that Pakistan cannot be trusted and dialoguing with it would not be productive, the author dutifully purveys all the contestable arguments of the government to justify resuming the dialogue, adding some jejune ones of his own, such as “what we say when we talk that will make the difference” and that a dialogue allows India to make clear to Pakistan “its bottom lines and minimum standards of civilized conduct”. He is very dismissive about the India-Pakistan Track-2 dialogues, but slips into candlelight phraseology in advocating a show of “magnanimity and generosity of spirit that in itself stands an outside chance of persuading Pakistanis to rethink their attitude to us”. Homilies such as “To acknowledge that trust does not exist right now, however, is not to suggest that trust can never be built” and that “The time has come ... for the victims of geography to make history” cannot be the basis of serious policy. He does not explain how but wants “New Delhi to do its best to ensure that the Islamabad establishment abandons the conviction that terrorism is the only effective instrument that obliges India to sit up and pay attention to Pakistan and engage with its interests”. Rather surprisingly for a UN hand, he believes India can have sanctions imposed on Pakistan under UN Chapter VII resolutions on terrorism, overlooking that the US, despite serious Pakistani provocations, has not used this instrument against Pakistan and any action in the UN Security Council will need US and Chinese assent.

The author is right to affirm that India is no longer in the same league as China economically, but some of his other views on India-China relations are debatable. He seems to believe, without any apparent basis, that India has a genuine strategic partnership with China and that this relationship has broadened to include “the wider civil society in both nations”. His view that Chinese and Indian economies are complementary will be contested by those who argue that the relationship has become colonial-like in structure – export of raw materials versus import of manufactured goods. He visualizes India- China cooperation on nuclear disarmament when China refuses to hold nuclear parleys with India because it does not consider the latter a nuclear power. His repeated assertions that China and India have a common interest in keeping sea lanes open overlook India’s strategic concerns about China’s increased presence in the Indian Ocean and the South China Sea imbroglio. The author is absolutely right about enhancing relations between India and Taiwan.

The chapter on the US is a mixture of several sharp insights and questionable assumptions. At one point the author notes Obama’s “substantive assurance” of support for India’s permanent membership of the Security Council and at another he characterizes it as “largely symbolic” and a “rhetorical flourish”. (In the chapter on the UN and global commons he gives an excellent analysis of the issues involved in expanding the Security Council in both permanent and non-permanent categories.) How the two countries can cooperate to counter nuclear proliferation is not explained. To say that there is no real clash between India and the US on “geopolitical fundamentals” is exaggerating the degree of convergence. It is debatable whether the relationship with India is going to be as important to American security as that with Europe once was. India and the US, the author says, “share a responsibility for preserving a rule-based open and democratic order” and the global commons, without clarifying the nature of this responsibility and who would define it because India itself has not done it so far. His belief that India and the US as the two principal democracies have special interests and responsibilities exaggerates India’s willingness to assume such a global role and overlooks the United States’ historical and continuing courting of authoritarian states in its larger national interest.

Tharoor rightly underlines the importance of India’s relations with the Arab world because of critical energy, trade, human resources and remittance links. But to say that the centuries-old India-Arab links have given the peoples on the two sides “a similarity of perceptions and cultural mores” is an obvious exaggeration, as is the assertion that “our geopolitical aspirations are entirely compatible”. On Iran, the Shia-Sunni issue, and the role of Saudi Arabia and Qatar in Libya and Syria this is not true. That Iran has been a “kindred spirit of India” on Pakistan, that it is a “friend at Court” in the Islamic world and that it considers India a useful source of “high technology” is not supported by facts.

Africa and Latin America get the requisite attention in the book. While the overview is informative, India’s sentiments towards Africa are expressed in extraordinarily mushy language:

India and Africa have been close to each other for so many centuries that our relationship is not one of immediate give and take but has been that of a family where each one provides the best advice, the best support and the best sharing of experience, so that when we walk the same path, we learn from each other and do not make the same mistakes.

Tharoor exaggerates the impact of India’s soft power on the current century, using mellifluous prose to make his point. While India’s democracy and pluralism, its composite culture, management of diversity, Bollywood et al. earn it respect, how can India be the “land of the better story” globally with its dysfunctional democracy, poor governance, abysmal levels of poverty, low human welfare indices, urban decay, lack of sanitation, etc.? On page 410 he himself lists India’s dramatic underperformance in many areas. Tharoor ignores the hard-power foundation of soft power acknowledged by Robert Nye, the originator of the concept of “soft power”.

The author’s views on the MEA, which he mockingly calls the Ministry of Eternal Affairs, are unflattering. The well-known shortcomings of the Ministry which he lists – to which international attention has been drawn by a US researcher – cannot be denied. While the Ministry is manifestly understaffed, mid-level lateral entry on a large scale is not an answer. Where will competent mid-level recruits come from? A successful remodelling of the MEA has to be part of an overall administrative services reform. The author explains well the ineffectual role of Parliament in foreign affairs and he is right about the centralization of foreign policy decisions on important issues in the PMO.

Not surprisingly, Tharoor deplores the non-aligned phase of India’s foreign policy. In his view, Indian diplomacy is concerned more with principles than interests, privileging intellect over interest and process over outcome, but he does not give any example to sustain this sweeping generalization. He wants India to adopt a gentler and more accommodative tone on the multilateral high table, an advice that would not appeal to those who recall the hectoring of India during the CTBT negotiations and have heard the rantings of some Ambassadors in the Security Council on Libya, Iran and Syria.

Tharoor’s version of India’s “grand strategy” would see us in the US-led camp of liberal democracies besieged by Islamist terrorism and Chinese authoritarianism, forgetting that it is the US that has propped Islamism and China in the first place. He wants India to “be true to its soul in the multilateral arena” and espouse vigorously the “Community of Democracies”, though this would require reconciliation with the rationale of India’s adherence to political groups like RIC (Russia-India-China) and BRICS. Tharoor is wary of multipolarity; but multi-alignment, which he strongly recommends as the axis of India’s future foreign policy, presupposes a diffusion of power within the international system and recognition that in the absence of an international consensus on the promotion of the Western agenda of democracy and human rights, which many countries see as selective and geopolitically driven, India has to maintain a balance between different approaches to such fundamental issues as respect for sovereignty, non-interference in internal affairs, regime change policies and concepts like the right to intervene and protect.

Tharoor decries the fact that India’s “old obsession with strategic autonomy remains”. In his view, “strategic autonomy is all very well, but it cannot be the be-all and end-all of India’s attitude to the world”. While he cautions against antagonizing the US for maintaining energy supplies from Iran, he affirms somewhat inconsistently that “no power on earth can presume to dictate to India on any international issue”. India has “more in common with the countries of the North than the global South”, he says, contradicting his own paeans to BIMSTEC, IOR-ARC, IBSA and relations with Africa, the Arab world, Latin America, India’s neighbours, and, to boot, East Timor.

In virtually every chapter Tharoor quotes extensively David Malone (seventeen times), a former Canadian envoy to India, to buttress his views. His “internationalism” probably explains the need for such external endorsement of his thinking on key facets of India’s foreign policy.

Tuesday, November 20, 2012

Special Laws to Counter Terrorism in India: A Reality Check

Dr N Manoharan 
(Senior Fellow, VIF)

A National Convention held recently in New Delhi on ‘Politics of Terror’ has brought to focus the need to re-look into provisions of special laws that are currently in use to counter terrorism.

When confronted with armed militancy, democracies face what is known as “democratic dilemma”. On the one hand, they have to protect the territorial integrity, sovereignty and security of their people from the arbitrary violence by militants; if they fail, their authority and credibility are undermined. On the other hand, in the process of combating militancy, if they slip into repression and authoritarianism, they end-up alienating the population and lose legitimacy. To maintain the equilibrium, use of legal framework, otherwise called as ‘criminal justice model’, is therefore suggested.
The use of special/security laws is justified on the grounds that the existing criminal laws are not adequate to deal with the militancy that is “well-armed, far more dangerous and modernised”. Since what is at stake is not just law and order but the very existence of state and society, there is a need to have special laws with far higher deterrence value. Introduction of special laws are also justified citing prevailing international environment and obligations as in the case of POTA after 9/11 attack and UN Resolution 1373.
India has long tradition of special/security laws dating back to its pre-independence years. These laws have been enacted, repealed and re-enacted periodically since independence. Such special laws fall under four categories:

  1. Exclusive laws against terrorism like POTA.
  2. Security forces empowerment laws that give immunity and additional special powers to the security forces like the Armed Forces Special Powers Act.
  3. Laws of proscription that criminalises terrorist groups and a range of undesirable activities like the Unlawful Activities Prevention Act (UAPA).
  4. Other exclusive laws on control of finances, money laundering, drug-trafficking, cyber warfare and so on.
However, how far these extra-ordinary laws have been successful in preventing, deterring and correcting militants and, in turn, enhance security? The answer is mixed. Some of the main reasons for the ineffectiveness of special laws are as follows:
  • Over-reaction to the threat posed and far more drastic measures than necessary. .
  • Hasty enactment without giving much room for public debate or judicial scrutiny. .
  • Overly broad and ambiguous definitions of terrorism and penal provisions that fail to satisfy the principle of legality.
  • Pretrial investigation and detention procedures that infringe upon due process and personal liberty. And the number of cases that finally end in convictions is low. .
  • Lack of sufficient oversight mechanisms. .
  • Space to settle political scores. .
  • Weak witness protection provisions. .
  • The provision of the use of special courts attracting undue political interference in the judicial process and maximises potential bias.
Yet, this does not mean that special laws are totally redundant. They serve the purpose if all the above identified issues are addressed. What is required is not “a new law for every new crime” but fewer and effective laws. The guiding principle should be, as William Ewart Gladstone observed, “Good laws make it easier to do right and harder to do wrong.” An ideal legal framework should comprise three elements – prevention, deterrence, and rehabilitation – in right proportion. Presently, Indian special laws are biased towards ‘deterrence’. The proportion depends on the character of the militancy and the environment in which it is taking place. One size does not fit all. The frame work should not fail to take into account human rights concerns. There have to be proper safeguards against any misuse/abuse. To put in simple terms, as Lydia Maria Child observed, “Law is not law, if it violates the principles of eternal justice.” There has to be clear cut definitions of crimes and penal provisions to avoid excessive discretionary powers. Enactment of special laws should not be in haste; for greater awareness and acceptance, the process has to be transparent and should be subject to public debate and judicial scrutiny.

What is also required is political consensus on the issue at two levels: at the national level among all parties and between the Center and its federal units. Special laws should possess review mechanisms and ‘sun-set’ clauses for periodic assessments. “The law must be stable, but it must not stand still.” Reforms in criminal justice system – investigation, prosecution and adjudication – are the need of the hour. Role of civil society is vital in moderating the role of special laws in counter-terrorism. Media, especially, has to understand the aspect of legal framework rightly, avoid sensationalism, educate people, and at the same time support the government of the day in its fight against terrorism.

At the Army’s Helm: A General Speaks

Brig (retd) Gurmeet Kanwal 
(Visiting Fellow, VIF)

The battle hardened Indian army, the fourth largest in the world, has been led by many able Chiefs, but few of them have made the effort to record their experiences for posterity. Nor have many naval and air force chiefs done so. As a result, the shortcomings in the national security decision making process at the apex level and the state of civil-military relations – often precarious – have gone mostly unreported. In fact, it is apparent from the spate of writings in the media on the 50th anniversary of India’s war with China in 1962 that many of the importance lessons of that fateful campaign remain unlearnt. General J.J. Singh’s admirably written autobiography A Soldier’s General is a refreshing change and a welcome addition to the writings of the former armed forces Chiefs that are available today.

General J.J. Singh, a third generation soldier, comes from a family with a rich tradition of military service. The first half of the book tells the story of the General’s early life as a young officer in a battalion of the Maratha Light Infantry and his ‘bond of blood’ with his soldiers; his service in India’s border areas during his formative years; the very successful command of a battalion of the Marathas; an eventful tenure as a brigade commander, including sustaining a wound in combat, during the early years of the insurgency in Kashmir; the importance training courses attended by him; his experience as a Military Attaché in the Indian embassy in Algeria; his rapid rise through the military ranks to flag rank on the strength of a brilliant career backed by dedication and hard work; his handling of the Siachen dispute and Pakistan’s misadventure during the conflict in Kargil in 1999 as an Additional Director General in the Military Operations Directorate at the Army HQ; his participation in Operation Parakram as a Corps Commander; and, his two tenures as a Commander-in-Chief, first of the Army Training Command and then the prestigious Western Command.

The penultimate part of the book records General J.J. Singh’s experience as the Chief of the Army Staff (COAS) – the Jangi Laat, as Army Chiefs were called in earlier times – and his contribution as the Governor of Arunachal Pradesh. From an analyst’s perspective, this chapter is perhaps the most enlightening and noteworthy. As the COAS, the General had to provide directional guidance to the army’s varied operational commitments for border management and internal security duties. It is not usually realised that the Indian army has been continuously deployed for border management along many of India’s land borders, particularly along the LoC in Jammu and Kashmir (J&K). It is also heavily committed in counter-insurgency operations since the late 1950s in the north-eastern states and since 1989-90 in J&K. This situation has been aptly described as ‘nation at peace, army at war’. As the chief operational commander, the COAS spends a great deal of his time in giving directional thrust to operational planning, while also visiting the areas where the army is deployed for active operations. The finer nuances of these operations have been very well captured in the book. The General’s direction to the army to deal with the insurgents with ‘an iron fist in a velvet glove’, that is, firmly but fairly, while simultaneously waging a battle to win hearts and minds of the local population, was very well received.

The author has written extensively about the shortcomings in India’s higher defence management system and made many recommendations to improve the systems. He suggests ‘inclusive and substantive’ integration between the armed forces HQ and the Ministry of Defence with cross postings and officers working together as teams ‘on the same lines as is the practice in other major democracies’. He advocates creation of the post of the Chief of Defence Staff (CDS) of five star rank ‘who should be vested with operational command of the three services’. The recommendation made for the post of permanent chairman of the CoSC by the Naresh Chandra committee recently has fallen well short of the requirement of a five star CDS that has been suggested by the former army Chief and is endorsed by most members of the strategic community. It is time the government appoints a CDS to provide single-point military advice to the PM and the Cabinet Committee on Security. The government will have to follow a top down approach as the Indian air force continues to oppose this key reform in the management of higher defence.

As the Chairman, CoSC, the author dealt with issues concerning India’s nuclear forces and was part of the defence diplomacy efforts made to enhance the country’s foreign policy objectives. He also grappled with the fallout of the recommendations made by the 6th Pay Commission and the implementation of Part II of the report of the Ajay Vikram Singh Committee. All of these find mention in the book. The author also states his vision for the future Indian army and the modernisation that must be undertaken. He comments at length on his command and leadership experience and lays down pointers for future commanders to excel. He pays his own personal tribute to the fighting soldier – the man behind the machine – and spells out the initiatives taken for him.

A Soldier’s General is a well rounded autobiography by an accomplished soldier. It is the story of a life well lived; it is a tale that is simply told. It captures the essence of army life in battalions and higher formation HQ skilfully and with great feeling. It also provides glimpses into decision making at the higher levels of the services HQ and the national level. The Marshal of the Air Force, Arjan Singh, said during the launch of the book in New Delhi, "I have no hesitation in saying it is a must read for all personnel of the armed forces, particularly the younger ones." It must also be read by all those who are involved in national security decision making and policy analysis as well as academics and scholars.

Monday, November 19, 2012

Constitutionalism Versus Adventurism

Dr M N Buch 
(Visiting Fellow, VIF)

The Constitution of India, despite the amendments which have been introduced from time to time, has a high degree of immutability, partly because its basic structure is sound, partly because it establishes a balance between public good and the constituent organs of the State, the Executive, the Legislature and the Judiciary, partly because amendment of the Constitution cannot be done whimsically because both Houses of Parliament have a role to play and this provides a check against arbitrariness and partly because there are certain inbuilt constitutional structures and organisations which in a way stand outside the normal executive, legislative or judicial structures, but which nevertheless give an independent voice and opinion to issues of national importance concerning governance. The immutability of the Constitution also rests on the Preamble which has been amended only once on 3.1.1977 and that, too, for the better. The immutability of the Constitution is further strengthened by Part III which contains the Fundamental Rights and, according to me, equally importantly through Part IV which contains the Directive Principles of State Policy, which has increasingly been used by the Supreme Court to remind the State from time to time of its basic duties towards the citizens.

An immutable constitution is not a static constitution and this has been reinforced by some fairly sensible amendments which pushed the frontiers of fundamental rights, fine-tuned and enhanced the meaning of words such as justice and equality by conferring on the underprivileged and the voiceless a whole set of rights and by the proactive role of the Supreme Court, the Comptroller and Auditor General and the Election Commission. In many ways these institutions, through interpretation, pronouncement, by public reporting have furthered the cause of constitutionalism beyond the mere letter of the law and have reinforced and strengthened the basic structure of the Constitution. I do not comment at length in this paper on the Supreme Court and High Courts which are part of the judicial components of the Indian State, except to state that through its pronouncements the Supreme Court has given a new meaning to Article 141 which says that a law declared by the Supreme Court is binding. Article 141 does not confer the power to legislate on the Supreme Court, but by interpretation of law the Supreme Court has given a whole series of judgments which to an extent do create a new legal environment, if not a new enactment. Instead, I would like to comment on four different constitutional authorities which are creatures of the Constitution and have a vital role to play in constitutionalism.

In this context the word ‘constitution’ is narrowly constructed by me as per one of the definitions given in the Twenty-first Century Chambers Dictionary, which reads, “Constitution:- the supreme laws and rights upon which the country or state is founded, especially when it is seen as embodying the rights of its people”. The four authorities to whom I refer are the Attorney General of India appointed under Article 76, together with the Advocate General of each State appointed under Article 165, the Comptroller and Auditor General of India as appointed under Article 148, the Union Public Service Commission and the State Public Service Commission appointed under Article 315 and the Election Commission of India appointed under 324 of the Constitution. Whereas there are a number of commissions, such as the National Human Rights Commission and tribunals such as the Central Administrative Tribunal, which are created under the relevant provisions of the Constitution, they are not an integral part of the Constitution and are, therefore, the creatures of law. In a way they come one step below the organs of the State which are an integral part of the Constitution itself.

Let us begin with the Attorney General of India and in this I shall include, mutatis mutandis, the Advocate General of each State, both officers being responsible for giving advice on legal matters to the Government of India and the Government of a State as the case may be. Though the Attorney General holds office during the pleasure of the President and is appointed by the President on the advice of his Council of Ministers, he is expected to be nonpartisan in the rendering of legal advice and performing the legal duties assigned to him. It is for this reason that the Attorney General has the right of audience in all courts in India and, under Article 88, has the right to speak or otherwise participate in the proceedings of either House of Parliament or any committee of Parliament. The legal advice given by the Attorney General and the Advocate Generals has to be based directly on law and the constitutional implications of the issue on which advice is required to be rendered and, therefore, such advice has to transcend the narrow confines of politics. We have had great Attorney Generals in the past who have fulfilled this role admirably and we have had a few whose conduct has been suspicious and whose advice has been tainted by politics. Constitutionalism requires the Attorney General and the Advocate General to be completely free of such bias and to the extent that he performs his duties according to the Constitution, the Attorney General, standing outside the three organs of the State, still performs the vital function of protecting the interests of the people of India by advising the State to act according to the Constitution.

In a parliamentary democracy or, for that matter, in the American pattern of democracy, one of the functions of the Legislature which cannot be tampered with by any one is its control over public funds. Britain was pushed towards a constitutional monarchy by the fact that the purse strings are controlled by Parliament and without parliamentary sanction the Crown cannot spend even a penny from the exchequer. This role of Parliament and of the State Legislature is enshrined in the Constitution in Articles 112, 113, 114,115 and 116 in the case of the Union and Article 202, 203,204,205 and 206 in the case of the States. It is Parliament and the State Legislature which alone can permit withdrawal of funds from the Consolidated Fund of India and that of the State concerned, which means that without the approval of the annual financial statement of receipts and expenditure, the assent of the Legislature to a demand for grants, enactment of the Appropriation Bill, sanction of supplementary, additional or excess grants or a vote of account on exceptional grants, government may not spend anything from the Consolidated Fund. In order to ensure that government is functioning strictly in accordance with what has been sanctioned for it by the Legislatures. Parliament and the State Legislatures through discussions, deliberations of committees such as the Public Accounts Committee and the Estimates Committee and other procedures which have been adopted from time to time, call government to account, which acts as a very healthy check on the executive. It is to help Parliament and State Legislatures to fulfill this role that the Constitution provides for the Comptroller and Auditor General with wide ranging authority. The CAG, constitutionally, determines the manner and form in which the accounts of the Union and of the States will be maintained, he has overriding powers to audit all expenditure directly from the Consolidated Fund or indirectly on the basis of grants, etc., and he has the constitutional authority under Article 151 to present his audit report to the President or the Governor as the case may be, who will then cause such report to be laid before Parliament or the State Legislature. In a way the CAG is the chief police authority and investigating agency in all matters relating to public revenues and expenditure and to that extent, whilst standing outside the Legislature, he still is the public instrument to help the Legislature in determining whether government has acted strictly according to the approved budget. By doing his duty CAG adds to constitutionality because he forces the Executive to render accounts and to face the consequences for wrongdoing. Public funds are involved in all state expenditure and this constitutional authority helps to ensure that the funds are spent wisely.

Articles 53 and 154 vest the Executive power of the Union and the States in the President and the Governors respectively and such powers are to be exercised by officers subordinate to the President or the Governor. Because the Preamble mandates justice and equality and Article 14 further mandates equality before law, the officers who help the President or Governor in exercising his powers have to ensure that whereas the aid and advice given to the President or Governor by the Council of Ministers may be and will be based on the political agenda of the party in power, the decisions taken thereon will be implemented totally impartially and without any form of political bias. For this we need independent Civil Services and, therefore, we have Chapter 1 of Part XIV of the Constitution. That recruitment to the Services should also be impartial and based on merit, under Chapter 2 of Part XIV there is a constitutional provision for setting up Public Service Commissions for the Union and the States. Whereas UPSC members are appointed by the President and State PSC members by the Governor under Article 316, in the matter of removal of the Chairman or a member of any Public Service Commission, Union or State, this can only be done by an order of the President and that, too, after an enquiry by the Supreme Court conducted as per provisions of Article 145 of the Constitution. Further, to ensure that members of Public Service Commissions remain independent and are not amenable to government pressure, under Article 319 a member of a Public Service Commission who ceases to hold office is not eligible for any further employment under the Government of India or of a State. The idea is to immunise the Services from undue blandishment right from the time of recruitment up to the time of retirement by giving independent Public Service Commissions the key role in this behalf. This is another example of constitutionalism in India.

In a democracy it is through elections that one constitutes the Legislature which, in turn, causes the government to be formed. In this behalf we have Part XV of the Constitution which governs elections and provides for an Election Commission which has superintendence, direction and control over elections to Parliament and State Legislatures. The Commission enjoys sweeping powers in this behalf, partly under the Constitution, partly under the Representation Of the People Act, but very largely through the manner in which successive Chief Election Commissioners have enhanced their own role in conducting free and fair elections and bring the entire machinery of the State under the control of the Commission for the duration of the election process. Whatever else works in India or not, certainly the Election Commission of India has won universal recognition and admiration for the manner in which democratic elections are conducted in this country. The apex of constitutionalism, therefore, can rightly be considered to lie in the Election Commission.

This paper is not only on constitutionalism but it is also on political adventurism. In this behalf, unfortunately, the Congress Party has played a most unwanted role in that whenever any of the constitutional authorities have been inconvenient to it the party has tried to bring about constitutional amendment which could curb constitutionalism. Of this the Forty-Second Amendment of the Constitution was the most notorious because through it Parliament tried to give a special status to the Prime Minister in matters of election, it tried to reduce the role of the Supreme Court, it tried to restrict the powers of superintendence of the High Courts under Article 227, it tried to constitute tribunals under Part XIV –A which would not be under the High Courts and it used Emergency provisions under Part XVIII in a manner redolent of wanting to impose authoritarianism on India. Fortunately the Forty-Second Amendment was negated by the Forty-Fourth Amendment of the Constitution, but on the horizon could be seen the danger of political adventurism. It is here that the Supreme Court, in the Keshwanand Bharti case, defining what constitutes the basic features of the Constitution, ruled what lay outside the purview of Parliament in the matter of amendment of the Constitution and laid down the vital legal principle that the amending powers of Parliament did have limitations and Parliament could not, therefore, negate what was provided by the Constitution as a part of its basic structure. The present Comptroller and Auditor General, by his own interpretation of his role, has also enhanced constitutionalism, though there is a political move to reduce the role of CAG, first by trying to set up a multi-member audit organisation and then by trying to see how legally CAG’s independence can be curbed. One sincerely hopes that these efforts come to naught because in the present state of political flux India needs constitutional activism of its constitutional authorities. In particular, Parliament must also realise that in India it is the people, collectively, as represented by constitutional authorities and institutions, who are sovereign and that the organs of the State are restricted to the role assigned to them the people. This would be the most effective curb on political adventurism of the 1975 mould, as now articulated by a junior minister in the Prime Minister’s Office.