Threat to Democracy & Constitutionalism

Our Indian Democracy is the world’s largest Democracy . Our Constitution is the World’s  Best Constitution which have included the Sprite of True Democracy & Supremacy of Constitution .

 Our Constitution has very clearly divided The Power among Different organs . Legislative Power under Parliament , Judicial & Constitutional Interpretative Power under Supreme Court , Executive Power to Govt . ( Govern by Council of Ministers)  .

 Our democracy is running in accordance with the Sprite of Constitution , which is a Mile Stone in World regarding Democracy . Because , We have one of the Best Constitution .

 1^st  Constitutional Amendment Act – Regarding Reservation of SC/ST . In Sankari Prasad Case 1952 , This Constitutional Amendment Act was challenged in Supreme Court on the Basis of Article 13 ( No New Law shall Violate the Fundamental Rights ) . Supreme Court said – Article 13 is for Ordinary Laws while 1^st  Constitutional Amendment Act is an Constitutional law & Article 368 permits the Parliament to Amend the Constitution including Fundamental Rights .

 In Sajjan Singh Case 1965 , Supreme Court Repeated its Judgment Once Again .

 That  was a Time of Pt. Neharu , When Act of Parliament , Amendment in Constitution , Execution of Power were done in very fair & fine manner . Regarding any Act or Amendment  , Pt. Neharu used to say “ Let us ask the Parliament “ . This showed that Pt. Neharu was enough to take decision regarding  Act of Parliament , Amendment in Constitution . This has two reason . One , He has a Tremendous Support of People & Leaders of India also . Second , His aim was to Serve the People & Country in all Aspects . Which makes Him Powerful . Sprite of Democracy is vest in the Representatives of People & Fundamental Rights with other Human Rights of People . All the Welfare was done with selfishness less ie Only to Serve The Country & Her People .  At this time The Parliament was on the Peak .

During Pt. Neharu , Parliament has enjoyed its Power Because of Selfishness less , Accountable , Transparent form of Government towards Parliament . Pt. Neharu has Majority and also have Confidence of Opposition . So , All those were very easy for him to Make Act of Parliament & Amendment in Constitution etc . That was the Time When Parliament Session has worked for the country with its full Sprite . This period ( from Independence to 1967 ) can be Termed as Golden Era of Parliament .

 After the Death of Pt. Neharu , Parliament started falling . Different type of People has came but They Never got that Support which Neharu had .

 After , that , Indira Gandhi has came in High Light . During Her time India Fought war and Win that . She was given the title of Iron Lady . From Here , Indira Gandhi had started exercising her executive power . There was some type of Clash between Parliament & Judiciary regarding the Power of Each Others .

In Golaknath Case 1967 , Supreme Court had said – Parliament has no Power to Amend the Fundamental Rights . This Judgment has curtail down the Amending Power of Parliament .

  But when in 1971 , Ms. Indira Gandhi has came in Power , Her Govt. has came with the 24^th Constitutional Amendment Act . According to 24^th Constitutional Amendment Act , Article 13 is No Limitation for the Power of Parliament to Amend Fundamental Rights under Article 368 . By 24^th Constitutional Amendment Act , Parliament has Restored its Own Amending Power .

 In Keshava Nand Bharti Case 1973 , Supreme Court has accepted the 24^th Constitutional Amendment Act . But Supreme Court said -  Legislative Power of Parliament is Limited  . Parliament can not touch the Basic Structure of Constitution . 

Basic Structure , which is a Limitation on Parliament on its Amending Power , This insures the Supremacy of Constitution .

But Ms Gandhi has made 42^nd Constitutional Amendment Act , which says – There is No Limitation on Parliament , No Basic Structure & No Judicial Review . This was the Time of Emergency .

The Time of Ms. Indira Gandhi was the Period of Executive . During that Time executive had exercised its Power in its Own way . In general , We can say that from 1967 to 1989 was the Golden Era of Executive .

 After Indira Gandhi & Rajiv Gandhi , No one has came in Power like them . So , that was the Era of Executive which got ended due to Coalition Form of Government .

42^nd Constitutional Amendment Act 1976 , was challenged in Minarwa Mills Case 1980 . Supreme Court stuck down that 42^nd Constitutional Amendment Act 1976 regarding Amending Power . And , Judicial Review was Declared as basic Structure of Constitution .

After 1989 , Judicial Review is a part of Basic Structure , After the Coalition form of Government , Parliament has become weak to take any Decision regarding any Policy , Act of Parliament or any Amendment in Constitution . The Weakness of Parliament has given a golden chance to Judiciary to take the Charge of Supremacy on The Name of Justice and Constitution . Weak Parliament has made a Weak Executive . Due to Weak Executive , The Power of Appointment of Judges in Higher Courts is taken away by Supreme Court  . Which is under control of Supreme Court with out any Transparency , Accountability & Answerability . Supreme Court has started to Legislate the laws . Event on The Name of Justice , Judiciary has started to execution of Investigation under its own Control etc . So This can be Termed as Golden Era of Judiciary ( 1989 to till now ) .

 But What is This ? All these are the Result of a Weak Parliament &  Democracy .

 Our Parliament is not functioning because of Drama made by Opposition , Mamata Banergee , Karunanidhi Company ect . Is it Sprite of Parliament ?  Each & Everyone is going only for political gain , only . Where is democracy ? NDA govt. started FDI but when UPA is going to implement it , NDA itself is opposing . CPI is crying on other hand . Why ? If anyone has problem , then He must come with well established Procedure of Parliament . All the Conduct must come through Parliamentary Procedure . But Legislators are making joke inside the Parliament . Opposition is opposing not for the welfare of State or People . But Opposition is Opposing for the sake of Opposing . This is the result of Weak Parliament , Weak or Coalition Govt. which is Dangerous for Democracy .

 Today , On the name of Corruption Anna like Incurable Threats has evolved . Which is Acting like a Government . Anna , Who does not Know – What is Democracy ? What is Constitution ?, wants to frame Law . Anna , Who , even , does not know - What is FDI ? but still Opposing FDI . That Anna is going to run the system ?

I am not getting - What type of Constitutional Right Anna has ? Anna is like a Empty Vessel  which was filled by Frustrated Thoughts of Frustrated Persons like Kajariwal , Kiran Bedi , Shashi & Prasant Bhushan etc . All the Frustrated Associates of Anna are frustrated with system not due to corruption . But their personal interest is there .

Kajariwal is frustrated from system & resigned . He has different type of Income Tax Charges . Kiran Bedi is also frustrated with UPA Govt. because She was not appointed as Commissioner of Delhi Police . Then , She also resigned . One or other hand Bhusahn & Sons also have different type of controversy  .

Few days before , There was case in Bombay High Court against Anna & Frustrated Company regarding the Management of Money (which is donated by mainly Middle Class Innocent People of India , who do not know any thing about the Autocratic Legislation of Mr. Anaa & his Frustrated Company ) . If Anna & Company is itself is Not Neat & Clean , then How can They put Finger on others ?

Mr. M K Gandhi used to follow himself first before giving advice to others . I have read a story – In which , a Mother came to Gandhi with her Son . Lady said to him – Baba My Sun used to take too much  Gud (Sugar) , Please do something . Then Gandhi told her – come in Next Month . When Lady came to him with her Son in next month . Gandhi told to boy – Son , Do not take too much Gud (Sugar ) . It is harmful for you . Then lady asked him – if you want to tell only these words , you can say all these on that day also . Gandhi replied – On those days , I also  used to take too much Gud (Sugar) . Then , How can I tell him ? But what is Anna & Company doing ? Anna & Company are only interested to giving advise rather self reform .

On the other hand , When Sharad pawar was slapped . Hazare remarked – only one slap ? Anna is says -  He is following Gandhian Principle . What type of Gandhigiri is it ?

Anna is man , who do not know any thing . Anna is just like a Empty Vessel which got filled with some frustrated thoughts by frustrated people . If Anna & Company  want to make reform , then he should come in politics . But they do not do so . Because they only want to rule in an indirect way . They are exploiting the People of India ( Mainly Innocent Middle Class People ) on the Name of Corruption .

 All the people , who are supporting Anna , are Middle class innocent people . These Innocent People do not know any thing . Many Anna’s  ( “ I am Anna “  Type People ) do not use to pay Electricity Bill , Income Tax on time  . These Anna’s do Not Take Bill from shopkeeper only to save just some money . Even 85% follower of Baba have not use to cast their Vote . And These Anna’s are telling - System is Corrupt . First of all , All Anna’s need to reform themselves , Then Talk about Govt. These type of Crowd want to make law . How sad for India ? They are impressed by Fasting of Baba only . These People are thinking that – Baba is going to die for him . But reality is totally different . He just want to become 2^nd Gandhi . Which will not possible by means of undemocratic way  .

 Corruption is Big problem but this can not be tackle in those way in which Anna wants . Anna want to create an Autocratic Institution , which is dangerous for Democracy . If Anna really want the welfare of Country &  People then He should work in the field of Social work like Awareness of RTI , Awareness of Health , Awareness of Education , Awareness of Moral & Ethical Education , Women Empowerment  rather running a Parallel govt. , acting like Parliament with Kajariwal , Kiran Bedi , Bushan Company as MP and Anna as Supreme Court for Interpretation of Lokpal & other laws like Right to Recall , Right to Reject , Gram Sabha above Parliament etc  .

 Legislation , Constitutional Interpretation and Execution of Power & Governance must be left upon respective Organs of State .

Remember , When Parliament become weak these type of threats will evolve on the Name of Welfare . Problem is not in our Constitution or in Governance . Problem is in the Mindset of Indians . Constitution has given you The Power to Vote . Then , it is responsibility of People to select Better Representative . Any type of law is not Sufficient to minimize the corruption . Corruption is in the Blood of People which can not be removed by any type of Law . Corruption can Only be eliminated by Moral & Ethical Education , Awareness among People regarding their Rights , Fast court activity and Most Importantly Public will .

 If Public is corrupt , then how can our system will be free from corruption . First we have to reform our self , then System will automatically will become Fair & Fine .

I am not Opposing Anna but I am Opposing his Undemocratic & Unconstitutional way of Anna & His Frustrated Team which is a tremendous threat to Democracy & Constitutionalism .

We have not to Reform our Constitution and Constitutional establishment but to our Mindset of People by Moral & Ethical Education & Awareness about our Rights . We must fight for our Right but in the way of Constitutional establishment . Regarding the Corruption if Govt . of India want to make any Legislation then Govt. of India may go for the establishment of  Selection Commission of India on the basis of Election Commission of India .

Father of Indian Constitution Honourable Dr.  B. R. Ambedakar had said “ A Worst Constitution will become Best if The People are of Good Sprite . A Best Constitution will become Worst if The People are of Worst Sprite . “

So Remember , “ Whenever Parliament will become weak , Threat to Democracy will evolve to hamper the Sprite of Democracy & Constitutionalism on the Name of Welfare . Which is not going to violate the Law in appearance but will be a Tremendous Threat to Democracy & Constitutionalism .”

Rajani Kant Indra

Faculty of Law, Lucknow University, Lucknow

(January 30, 2012)

Does, really, India need Lokpal ?

In these days , The Political and Civil society is undergoing in a very hot and revolutionary debate regarding corruption . Anna and his associates have made the compulsion upon Govt. of India to frame a Bill as Lokpal to tackle the problem of Corruption . Due to public pressure Govt. of India has taken some step & Framed a Bill which got passed in Lok Sabha but hanged in Rajya Sabha .

Now , Here , Question arise that India really needs a Lokpal or Not ? Think , India has so many Regulatory Bodies in different field of governance . But still dragon of Corruption is running in parallel to governance . Why ?

Even Constitutional Bodies like Supreme Court , Different High Courts have , also , allegations . Advocate Shashi Bhusan has said about Corruption in Supreme Court . A Supreme Court Judge have said that there was something rotten in Allahabad High Court . Other examples are Dinakaran , Ramaswamy , Sabbarwal etc .We have seen case regarding District Courts for example Noida in case of Land Scam etc .

Our many Representative have got punishment in different cases as Murder , Rape other type of Scams . Raja , Kalmani , Sukhram like other MPs & MLA have already punished . Many are under Trail . Our Representative are corrupt because of People of India . In 21^st century , Our India is living under the banner of  Caste ism  & Racism like evils .

Our Executive is corrupt because of mainly Politicians & lake of public awareness . There are different cases when  Bureaucrats are jailed for corruption with our politicians .  Bureaucrats have got power to make scam only due to our Corrupt Politicians , lake of public awareness and corrupt top governance .

Our Governance System have too many regulatory bodies in Different fields . For example CBI ,CVC ,  NIA , SEBI , TRAI , NHRC , NCW etc . These are Constitutional & Statuary like bodies . But , Think , Are these working fairly ?

Why are these bodies not effective and efficient ? If so many Constitutional Bodies are not able to tackle the corruption then How can You imagine that Lokpal will become effective ?

Team Anna want to make a political game ? Team Anna want to enter in Jurisdiction of Parliament . What type of Constitutional Right have Anna Team to frame a Law . They can suggest to Govt. but not Frame a Law . Anna is running a Parallel Govt. which is the violation of Constitution . People of India have sent their Representative  to frame Law . If Anna is so concern about all that then he should join politics . But he is not doing so . Why ?

Anna just want to became Second Gandhi of India by using the weapon of Fasting . He want to do every thing without any Accountability , Answerability and Transparency . Some days before there was case filed in Bombay High Court regarding regulation of Fund donated by People to Anna’s Association . If Anna & his Team is so Neat & Clean , then why  , these type of cases are coming before court .

The creation of Lokpal is not going to reduce corruption at any point . Because Corruption will  find an other way ? If Anna is really want to tackle the Corruption then he must leave the Weapon of Fast & Start to Make Awareness among People of India , Regarding RTE Act RTI Act etc , with his associates .

Corruption is a real Problem which has in root of System and in Mind of People . Govt. should not go for too many Regulatory Bodies rather Govt. of India must overhaul the System . Too Many Regolatory Bodies will create only Complexity . Governance Must be Easy and Convenient rather Complex . Govt. of India should go for some Modification according to Need of Good Governance as like .

(1)    CVC & CBI like bodies must be made like ECI & CAG

(2)    Enlargement of ECI Jurisdiction & Power

(3)    Electoral Reform

(4)    Awareness about RTI among people

(5)    Citizen Charter

(6)    Judicial Reform

(7)    More attention over ethical & moral education

(8)   Establishment of Selection Commission of India , like ECI , to select the top Authorities of Different wings of Administration , Supreme Court & High Court Judges , ECI , CVC , CBI , CAG ect.

(9)  Selection Commission in States to appoint top authorities of States and Transfer and Promotion of State Administrative Officers etc .

In crowd of so many regulatory bodies , Lokpal is not going make any type of reform in system  . If Govt . of India will make above reform then surely corruption will get reduced . I do not think that Lokpal is going to make any difference . In reality , There is no need of any new regulatory body but reform in existing bodies.

  

Rajani Kant Singh Indra