Propriety? Come again...

The age of propriety is well and truly gone. Today, we are slowly and surely getting into the times of "anything goes" with scant respect towards propriety and fear of setting unhealthy precedents. In judicial language, whenever a prayer is made to the honorable court, the learned judge asks for precedents before granting the prayer. This means, whenever Supreme court or the High courts read a particular law, they are conscious of setting a precedent that will be quoted in the future while determining similar cases. The knowledge of which, makes them that much more careful about setting wrong precedents for others to follow. What is expected of judiciary should also hold for other organs of the constitution. However, the sad reality is that day after day, they are setting unhealthy precedents while trying to look for narrow short-term gains rather than thinking of what precedents they are setting for the future.



To begin, there was a time when the entire union cabinet and no just the Prime Minister had to be above board on public perception (like Cesar's wife). The levels of propriety were so high that the position of any union minister would become untenable the moment an allegation (of any form) was made on the concerned minister. People respected the institution of Prime Minister, President and the Chief Justice of India and people holding these positions were revered for their upright behaviour and clean public perception. There was never a loose canon mouthed opposition leader who would demand the resignation of no less than a Prime Minister for a lapse on the part of a police constable, let alone a District magistrate. In those days, personal integrity was so high that a resignation was tendered the moment it was demanded stating personal propriety and the Government was truly the holder of "societal trust". People in high offices were always mindful of setting wrong precedents and took the option of demitting office rather than sticking on to chair of power. Those were the days when the union cabinet truly enjoyed confidence of the House of People.



Then came the era of might is right. During the late 60s and early 70s, the number of people supporting you became an indicator of whether you had the right to govern. It was a turbulent time which saw 3 major wars and one cannot be sure if it was constant war scenario or simply belligerence on part of the union cabinet, but this period saw maximum number of state governments being dismissed by the union government. Every time there was a disagreement between the state government and the federal government, the state government was not mollified, it was dismissed on flimsy grounds because the federal government had the might to do so. The persons occupying high offices in those times were either fearful of federalism making India weak during times of constant wars or wanted a unitary power centre at New Delhi with states merely carrying out orders. The persons occupying high offices were unmindful of the fact that by constantly dismissing lawfully elected governments at the state, they were setting wrong precedents of being "disrespectful to people's wishes" and following the adage "might is right". Consequently, Indian polity began to move to multiparty polity with each state mushrooming a political outfit to take on the might of the centre and carve a space for itself. Over the years, it has been successfully proved that this lack of judgement by the leaders of 60s and 70s have pushed India into co-olation era with federal government so weak that for every small decision it has to look for support from regional parties.



The high office of the President and the Governors were basically created in the constitution to have uniformity in the definition of the "Head of the state" both at the centre as well as the states. It was deemed fit that people occupying these high offices would not be of any political color and would rather be eminent people from the society executing the office within the framework of the constitution and making sure that the executive respects the boundaries of constitution and works within these boundaries. It was impossible according to the constitution for a executive to exist in absence of the "pleasure" of the head of the state and hence the constitution never went into details about what if there is a confrontation between the two. People occupying these offices should have respected that spirit and should have worked accordingly. However, the office of President and Governor became a post retirement benefit for aging politicians and this set unhealthy precedents of constant confrontation between the executive and the head of the state. So much so, the Supreme court had to intervene and lay down the law by validating the stand that the head of state had to execute his office on the advice of the cabinet and not in absence of advice. This judgement set right a wrong precedence of might is right set in the 60s and 70s by the federal government and distributed the powers equitably. Even today, due to lack of propriety, we have constantly have executives attacking the head of state with absolute impunity stating the mandate of people. No one is mindful of constitutional propriety and spirit with which they much execute their office. Its a recipe for disaster as there will come a time that state's rights will take precedence over the rights of the union and bring the existence of "union of states" under question.



The judiciary is the upholder of justice in a democratic setup and the only enforcer of the constitution both in letter and in spirit in cases where the executive or the legislature crosses the line of propriety. However, in the past few years and more, successive Chief Justices of the Supreme Court have been caught with their hand in the cookie-jar. There have been far too many cases where justice has been denied to complainants because we have the wrong set of people occupying the chair of a judge. There was a time when some states were infamous for getting a judgement "fixed" in the personal chambers of a sitting judge rather than in the courtroom. There was a shield of invincibility protecting the judges and anyone who questioned them were hauled up for "contempt of court". Gladly, despite all the corruption in the lower courts, some very good and honest judges have occupied the high chairs in the high courts and Supreme court keeping the hopes of getting justice alive for the rest of us. Still, I would appreciate the learned judges more if they had spent more time setting their own houses right before going in for "judicial over-reach". There has hardly been a time in the last 10 years or so, that the high court or supreme court asked a complainant to petition the executive or the legislature as certain activities fall within the purview of these arms of the constitution. Instead, these courts have gone about issuing writs left, right and centre against other arms of the constitution and by doing so have got the people believe that the courts run this nation. I would not go as far as to question the motive, because in all cases the motive has been to provide relief to the complainant; however, the learned judges should have shown some imagination and put moral pressure on the executive and legislature to take corrective steps rather than step in and issue writs. Today, everybody is of the opinion that if you cannot win an election fairly, you can keep petitioning the courts and get writs passed against the executive and bleed them with a thousand cuts. The courts are unknowingly falling in to this political trap and setting wrong precedence for future. Refer to the case where John Kerry did not file a suit against President Bush for election malpractice, even though it was common knowledge that the President's campaigners had preempted the election results of Florida to declare victory for President Bush. To avoid all future elections being challenged in the court and to avoid setting wrong precedence about court choosing winners rather than people, John Kerry gave up his claim on the election and stepped aside for President Bush to be declared victorious in 2004. This is the kind of lack of imagination that the superior courts are showing today in India.



Recently, the armed forces were in the news for all the wrong reasons too. It was the Chief of Army staff (COAS) filing a suit against the ministry of defense (MoD) for some minor issue. Even though we all believe that there is more than what meets the eye, the prospect if COAS suing his Government is preposterous. Indian Army operates on the principle of command and honor above life. Orders are not questioned even to the perils of one's life. If the COAS wants Army as an institution to believe in the doctrine of command, how can he sue his own Government while still holding the chair of COAS. This will set wrong precedent for all incoming COAS and there will be a time in future, when some COAS will sue or worse go against the command of the government he is supposed to serve - without questions. For personal honor, is it worth risking setting up wrong precedents? It is a question best left to the present COAS to answer ( without questioning his motives).



Summarising the above, we started on the right footing in 1947 and were holding propriety of office above personal ambitions. Somewhere in the 70s we lost track and moved to the doctrine of "everything goes" and ever since have been setting wrong precedents one after other. Its time people occupying high offices take a step back and redefine their roles. Do we want various arms of the constitution at loggerheads with each other or do we want them to compliment each other in serving the greater good of the people of India- to whom they are all accountable. Its time people stop transgressing their roles defined in the constitution and abuse the powers granted to them under constitution to usurp the powers of other constitutional posts. Its time we stop setting dangerous precedents for future generations and stick to rule of propriety that our founding fathers so cherished.



So long...