This book is class, if not a classic. India's Constitutional philosophy pervades the book like a brooding omnipresence and the Preface captures the author's dissatisfaction: "The entire country is submerged in a tidal wave of corruption".
Not surprisingly, two out of six chapters deal with corruption. In chapter V, the author laments: "It was in 1993 that corruption got institutionalised in Indian politics". He was referring to the bribery scandal involving the Jharkhand Mukti Morcha (JMM) that was linked to the no-confidence motion that Prime Minister P V Narasimha Rao's government survived. As the author points out, the bribe takers (sitting Members of Parliament) were let off by the judiciary - only the bribe-givers were booked! That free India's "shameless sons" would sell votes could never have been anticipated by the founding fathers of the Constitution, he writes. He also refers to Bangaru Laxman being caught on camera taking bribes in a fictitious defence deal, the pendency of his appeal in the high court and his release on bail. The author laments the collapse of the Jain hawala group of cases of political corruption since the Supreme Court failed to "go the whole hog" in ensuring the outcome of its "continuing mandamus" when investigators were "dragging their feet".
The author has a strong message for judges: "There is no half-way house". If a writ court considers it absolutely necessary in the special circumstances of a given case, it must go the whole hog and arrogate to itself the task of full and complete investigation to be conducted as the court directs. A "mid-way" solution is self-defeating.
The author criticises the collegium system of appointing judges, particularly in the context of the unanimous recommendation for Justice Dinakaran's elevation to the Supreme Court. The collegium refused to even hear the views of responsible sections of the bar. The author regrets the fact that a former Chief Justice of India (CJI), during his brief, three-week tenure, inappropriately dealt with illegal palm oil imports, only to be corrected by the succeeding Chief Justice Kania, who reviewed the case and ensured that nothing was done to "defile" the temple of justice. The author also describes how another former CJI's official residence address was used by his sons to run commercial companies. He expresses surprise that the judiciary gagged the media on a subject involving a retired judge for "scandalising the court".
The author has also been critical of the Supreme Court's wisdom to appeal to itself against a Delhi High Court verdict, directing the CPIO of the Supreme Court to release information pertaining to assets of Judges to an RTI activist. In this context he quotes former CJI M N Venkatachaliah: "Sunlight is the best disinfectant and electric light is the best policeman". It will take us long to get rid of corruption in the higher judiciary, in the author's view.
The first two chapters of the book deal with India's Constitution and constitutional history. The author has meticulously described the daunting task the Constituent Assembly faced. The author's complete mastery over the evolution of the Constitution makes fascinating reading. Chapter II must be read by every Indian who wants to understand the importance of the Constitution and how this sacred document has been valiantly protecting India from various fissiparous tendencies, intertwined with the Supreme Court's creative interpretation. But the author has also criticised the Supreme Court for not observing the mandate of Article 145 (3) that stipulates that the "minimum number of judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of the Constitution…shall be five".
Chapter III critically analyses the concept of federalism. From the American Constitution the author switches to India's "asymmetric" federalism. He notes that Article 3 enables Parliament to virtually extinguish a state without its consent, contrary to the concept of federalism. The political sovereignty of states seems to be a teasing illusion in the context of invoking Article 356 of the Constitution to impose President's rule. The author regrets that the powers of the Governor have been enlarged by judicial fiat, in transgression of constitutional provisions. Thus, he believes that the apex court's decision in S R Bommai's case, holding that federalism is a basic feature of our Constitution, is erroneous. The author desires "new judicial thinking" on India's federalism.
Chapter IV deals with "We the people", the common man. The author writes that we have not had the will to implement the Directive Principles of State Policy. As a result, "we face the problem of a second partition": the very affluent and the very poor. All the financial wizardry in India, he writes, has not been able to find acceptable solutions for the poor and hungry masses. Our Constitution cannot survive long if we pay lip service to the Directive Principles of State Policy. In his opinion, this is the greatest threat to India's survival as a nation.
The book has touched on the social, religious, cultural, political, educational and legal aspects of governance in India. What is missing is the economic sphere, and the current state of the nation has changed vastly on the economic front. But that seems to be the only gap in a book that must be read by anyone who really wants to know India.
The reviewer is a Senior Advocate, Supreme Court, and former Additional Solicitor General of India
THE STATE OF THE NATION
Fali S Nariman
Hay House
415 pages; Rs 599
