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Mainstream, Vol XLVI, No 13

My Lords, the Fundamentals are Missing

Sunday 16 March 2008, by P.B. Sawant

The following write up is a follow-up of the author’s earlier sequel to our statement on the nuclear deal with the US. [“Do We Have Democracy?”, Mainstream, February 9, 2008] At that time, it was not known that while dismissing the petition challenging the action of the Central Government in entering into the deal without even its reference to Parliament, an observation was made by the judges that there was no provision in the Constitution which required the executive to take approval of Parliament for such a deal. This observation not being a part of the dismissal order, is not even an obiter-dicta. However, this observation is played up by a section of the media and also by the pro-deal political section, to spread the impression that in law the approval of Parliament is not necessary for the deal. Hence the occasion for the following rejoinder.

The missing fundamentals are democracy and the underlying rule of law. In a democracy, people are sovereign and all power vests in them. In a representative democracy, the same power vests in the legislature, it being the representative of the people. When therefore a power is not specifically mentioned in the Constitution as being vested in any of the organs of the state, it is deemed to be vested in the people and therefore in its representative, the legislature. The legislature may exercise its power by enacting a law or by passing a resolution. Our Constitution vests all power in the people and therefore in the legislature. Its power cannot be usurped by the Cabinet which is only its small committee appointed for discharging the assigned duty for a limited period of time. The central legislature, namely, Parliament, which also has all the residual power, is concerned with the present subject. When, therefore, no provision in the Constitution vests a specific power in any organ of the state, it is legitimately to be presumed to vest in Parliament, which is the repository of all residuary power. The question to be asked in such circumstances is not what provision of the Constitution vests the relevant power in Parliament, but what provision vests it in any organ other than Parliament. This is elementary. Even the UN Declaration of Human Rights (1948) in its Article 21 (3) states among other things that “the will of the people shall be the basis of the authority of government”.

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THE observation made by the judges seeks to redefine democracy as a government of, for and by the executive. That destroys democracy in our country at one stroke, equating it with the authoritative regime of a bunch of Ministers. Worse still, it opens the doors for roughshod exercise of undefined and untrammelled power by the executive. We have been patting ourselves on account of the praise showered on us by others as the largest stable democracy of the world, little realising the inroads we have been permitting into our democratic base, namely, the power of the people, from various quarters. The overbearing nuclear deal is one such instance of it. Unfortunately, neither the political parties nor the legal luminaries have paid any attention to this phenomenon so far. Even the presumptuous nuclear deal has not evoked any reaction as to its unconstitutionality from these circles. This raises a wider and frightening question: have we surrendered ourselves and our democracy to the arrogant superpower or are we so mesmerised by it as to forget even the basics of our legal system? It must be either, else our otherwise vocal section would not allow such flagrant violation of our Constitution to go unnoticed.

What amazes one is the casual and flippant manner in which such profound questions of the constitutional validity of the executive actions, which have also portentous effects on the country, are tackled or are sidetracked. The illegal usurpation of power by the executive confronts us everyday with ‘emergency’. Vigilance, it is rightly said, is the price of liberty. What price, democracy?

Justice Sawant, a retired judge of the Supreme Court, is a former Chairman of the Press Council of India.

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