Tuesday, April 8, 2008

Implications of the M.S. Gill precedent statecraft

Implications of the M.S. Gill precedent statecraft

Harish Khare


The former Chief Election Commissioner’s appointment as Minister cannot sit easily with serious students of constitutional correctness.


The appointment of M.S. Gill to the Union Council of Ministers represents, at best, a rather unorthodox choice and, at worst, a regrettable departure from the spirit of constitutional wholesomeness. It need be remembered that Dr. Gill was Chief Election Commissioner, a constitutional office carrying with it an obligation of neutrality and the expectation of detachment. The spirit of that obligation stands compromised.

As it is, Dr. Gill’s election to the Rajya Sabha as a Congress candidate earlier left an unhappy taste in the mouth of all those who take a conventional view of how the constitutional functionaries ought to function — in office and, equally important, after they demit the office. Now his appointment as a Minister cannot sit easily with serious students of constitutional correctness.

It is by no means being suggested that Dr. Gill lacks the qualifications or the enthusiasm or the attitude required of his new ministerial charge; nor is it implied that during his years in the Nirvachan Sadan, he acted in a way that was at odds with the requirements of his high constitutional office. But his acceptance of a ministerial job does advertise, in a rather grating tone, his current linkages and political leanings. And that ought to trouble the purist.

It may also be noted that a controversy has erupted around one of the current Election Commissioners, Navin Chawla. The Bharatiya Janata Party, the principal opposition party, has knocked at the door of the President and has also sought to inveigle the Supreme Court in its campaign against Mr. Chawla. It has sought his removal from the Commission on the baseless and specious charge that since he was “associated” with some Congress leaders before he began his Nirvachan Sadan innings he could not possibly be expected to remain unbiased and disinterested in performing his new constitutional role.

To be fair to Dr. Gill, he is not the first former Chief Election Commissioner to reveal his political colours. T.N. Seshan, who quite unexpectedly transformed an otherwise compliant Election Commission into a creative and vigorous watchdog constitutional body, disappointed his admirers when he became a Shiv Sena presidential candidate and subsequently allowed himself to be drafted in as a Congress candidate against L.K. Advani in the Gandhinagar Lok Sabha constituency in 1999. But, then, one unhappy precedent cannot be a justification for another.

The M.S. Gill precedent and its implications go beyond one individual. The issue is one of an evolving equation between constitutional institutions and those who get to preside over them. The wholesomeness — or lack of it — of such an equation defines the depth of democratic institutions. As a polity we have travelled quite a distance from the old days of one party’s hegemonic dominance when every constitutional functionary was crowded out of his autonomous institutional space. In recent years, we have dramatically redefined the constitutional architecture, questioning any exercise of arbitrary power or abuse of authority. The President, the Supreme Court, the Election Commission, the Central Vigilance Commission, the National Human Rights Commission, a tenured Director of the Central Bureau of Investigation, among others, have combined — though independently of one another — to craft a new grammar of democratic accountability and political fairness. At times, these seemingly autonomous institutional islands tend to render an already fragile governing arrangement even more cumbersome and brittle. But the overall democratic balance-sheet gives us a happy bottom-line, affording welcome protection to citizens against an over-reaching state or a wayward political dispensation.

If this new institutional architecture of responsibility, restraints, and transparency has to establish itself as a creative and constructive arrangement, then it becomes incumbent to devise a healthy protocol for those who are called upon to man or woman these democratic institutions.

The strength and vitality of an institution depend on the ability, integrity and moral values of men and women who preside over it. By now, it is widely recognised by students of good governance that the first requirement is that the appointment to independent constitutional offices must be insulated against partisan considerations. High constitutional offices cannot be allowed to be packed with political or personal cronies. Once the appointment process is fire-walled against crude political preferences, the second battle zeroes in on ensuring that the constitutional functionary discharges his or her duties impartially and honestly. For instance, we frown upon any kind of social interaction between the judges and the bar or the political crowd. It is equally important that once they complete their term, these constitutional functionaries conduct themselves becomingly.

Understandably, the post-retirement behaviour of constitutional functionaries has increasingly come under close scrutiny. It is rather elementary. A government — and that means the ruling party of the day — can easily suborn a constitutional functionary by dangling the carrot of a post-retirement “accommodation.” In some cases, the expectation is written in stone. For instance, the Constitution specifically proscribes in Article 148(4) the Comptroller and Auditor-General of India from accepting any office under the Government of India or a State government “after he has ceased to hold his office.”

A somewhat similar principle is invoked in the case of the higher judiciary. Article 124(7) says Supreme Court judges, after retirement, shall not “plead or act in any court or before any authority within the territory of India.” As the judiciary has asserted itself aggressively against a weak executive and a stalemated legislature, democratic opinion has come to expect that once they leave the bench the judges would be able to resist the temptations any executive can offer. Conventions about post-retirement judicial behaviour are far from settled. A former Chief Justice, J.S. Verma, has asked for a debate on the post-bench activities of the judges.

An unsettled question

A key unsettled question is whether a constitutional functionary — a higher court judge or a Chief Election Commissioner — ought to be deemed to be permanently debarred from holding any political office even after he or she has finished batting. The Constitution is silent; but it stands to reason, common sense and fair play that even after retirement a constitutional functionary ought to refrain from blatant political partisanship.

Much to the disappointment of many jurists and constitutional experts, a sitting Chief Justice of India accepted in 1967 an invitation to become the opposition parties’ presidential candidate. Again, in the early 1980s, a judge of a High Court was given a Rajya Sabha seat within days of his resigning after he gave a verdict in favour of a Congress Chief Minister. Many constitutional purists found it amiss that T.N. Chaturvedi should have signed up as a BJP activist after his CAG tenure, especially when he had managed to embarrass the government politically on defence deals. Regrettably, it is now somewhat common for retired High Court judges to participate in the Lok Sabha and Assembly elections as candidates.

There is an expectation of a certain kind of professional and personal conduct that will not distract or lower the reputation or esteem of a constitutional institution. How, for example, will we react if a former President were to decide to align himself formally with a BJP think-tank or become an adviser, say, to the Samajwadi Party president? There is nothing in the Constitution that bars a former President from forging partisan linkages. But then we do know there are no free lunches and no free political associations.

We live in an age of consuming political partisanship. We have settled for a political culture of accusation and political discourse of suspicion. Various constitutional functionaries are called upon to make difficult choices in this ambience of partisanship, keeping up the public faith that they have not been contaminated by the allurement of post-retirement arrangements.

Constitutional functionaries are like monks, making lifelong commitments of moral virtue and personal self-negation. Those who seek to serve the nation in high positions owe it to themselves — as also to the democratic expectation — to remain above the fray. Surely, there must be many ways of contributing to and enriching public life without cutting a deal with a political operative. At stake are the reputation, credibility and popular acceptability of these very institutions.

© Copyright 2000 - 2008 The Hindu

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THE HINDU

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