NEED FOR CHECKS AND BALANCES

NEED FOR CHECKS AND  BALANCES
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Article on Linguistic States

From: The Times of India, dated 23^rd April, 1953

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The British who ruled India for more than 150 years never thought of creating linguistic States although the problem was always there. They were more interested in creating a stable administration and maintaining law and order throughout the country than in catering to the cultural craving of people in multi-lingual areas. It is quite true that towards the end of their career they did realise that the administrative set-up which they had built required some adjustment from the point of view of linguistic considerations, at any rate in cases where the conglomeration was very glaring. For instance, they did create Bengal, Bihar and Orissa as linguistic States before they left. It is difficult to say whether if they had continued to rule, they would have followed the path of forming linguistic States to its logical conclusion.

But long before the British thought of creating linguistic provinces the Congress under the aegis of Mr. Gandhi had already in the year 1920 framed a constitution for itself on the basis of linguistic provinces. Whether the ideology underlying the constitution of the Congress as framed in 1920 was a well thought out ideology or whether it was a sop to draw people inside the Congress fold, one need not now stop to speculate. There is, however, no doubt about it that the British did realise that linguistic considerations were important and they did give effect to them to a limited extent.

Opposition

Upto the year 1945, the Congress was, of course, not called upon to face the responsibility which it had created for itself by its constitution of 1920. It was only in the year 1945 when it assumed office that this responsibility dawned upon the Congress. Looking into the recent history of the subject the necessary momentum to the issue was given by a member of Parliament by moving a resolution for the creation of linguistic provinces in India.

The duty of answering on behalf of the Government to the debate fell on me. Naturally I took the matter to the higher authorities in order to ascertain what exactly their point of view was. Strange as it may appear, it became clear to me that the High Command was totally opposed to the creation of linguistic provinces. In these circumstances, the solution that was found was that the responsibility to answer the debate had better be taken over by the Prime Minister. The Prime Minister in reply to the debate made statement promising the creation of an Andhra State immediately. On the basis of the statement made by the Prime Minister, the resolution was withdrawn. The matter rested there.

Second Time

As Chairman of the Drafting Committee, I had to deal with the matter a second time. When the draft Constitution was completed, I wrote a letter to the Prime Minister asking him whether I could include Andhra as a separate State in Part A States of the Constitution in view of what he had said in the course of the debate on the Resolution. I have nothing with me here to refresh my memory as to what exactly happened. But the President of the Constituent Assembly, Dr. Rajendra Prasad, appointed a Committee to investigate into the formation of linguistic States, under the Chairmanship of Mr. Dhar, a lawyer from U.P.

People will remember the Dhar Committee for one thing if not for any other. The Committee said that under no circumstances should Bombay City be included in Maharashtra if Maharashtra was made a linguistic State. That report was then considered by the Jaipur session of the Congress. The Jaipur Congress appointed a Three-Man Committee consisting of the Prime Minister, Mr. Vallabhbhai Patel and Dr. Pattabhi Sitaramayya. They produced a report, the gist of which was that an Andhra province should be created immediately but the city of Madras should remain with the Tamils. A committee was appointed to go into the details. It produced a more or less unanimous report. But the report was opposed by substantial elements among the Andhras including Mr. Prakasam who were not prepared to relinquish their claim to Madras, and the thing lay dormant there.

After that comes the incident of Shri Potti Sriramulu who had to sacrifice his life for the sake of an Andhra province. It is a sad commentary on the ruling party that Mr. Sriramulu should have had to die for a cause the validity of which was accepted by all Congressmen. The creation of a new Andhra province now being thought of is only a pindadan to the departed soul of Mr. Sriramulu by the Prime Minister. Whether such action on the part of the Government would have been tolerated in any other country is a matter on which there is no use speculating.

There are, in my opinion, three conditions which must be satisfied before a linguistic State is brought into being. The first condition is that it must be a viable State. This rule was accepted as absolute when the question of the merger of the Indian States was under consideration during the making of the Constitution. Only those Indian States which were viable were allowed to remain as independent States. All others were merged into the neighbouring States.

A Sahara ?

Is the proposed Andhra State a viable State ? Mr. Justice Wanchoo had very candidly admitted that the annual revenue deficit of the proposed Andhra State will be of the magnitude of Rs. 5 crores. It is possible for the proposed Andhra State to reduce this gap either by increase of taxation or decrease in expenditure? The Andhras must face this question. Is the Centre going to take the responsibility of meeting this deficit ? If so, will this responsibility be confined to the proposed Andhra State or will it be extended to all similar cases ? These are questions which are to be considered.

The new Andhra State has no fixed capital. I might incidentally say that I have never heard of the creation of a State without a capital. Mr. Rajagopalachari (the staunchest Tamilian tribesman) will not show the Government of the proposed Andhra State the courtesy of allowing it to stay in Madras city even for one night—courtesy which is prescribed by the Hindu Dharma on all Hindus for an atithi. The new Government is left to choose its own habitat and construct thereon its own hutments to transact its business. What place can it choose ? With what can it construct its hutments ? Andhra is Sahara and there are no oases in it. If it chooses some place in this Sahara it is bound to shift its quarters to a more salubrious place, and the money spent on this temporary headquarters would be all a waste. Has the Government considered this aspect of the case ? Why not right now give them a place which has the possibility of becoming their permanent capital.

It seems to me that Warangal is best suited from this point of view. It is the ancient capital of the Andhras. It is a railway junction. It has got quite a large number of buildings. It is true that it lies within that part of Andhra which is part of Hyderabad State. As a matter of principle Hyderabad State which is a monstrosity should have been broken up and a complete Andhra State might have been created. But if the Prime Minister has some conscientious objection to the proposal, can he not create an enclave in the Andhra part of Hyderabad and join it to the new Andhra State and make a way to Warangal ? An enclave is not a new thing in India. But the Prime Minister wants to work against the will of God in Hyderabad as well as in Kashmir. I am sure he will very soon learn the consequences of it.

First Condition

This is just incidental. My main point is that a linguistic State must be viable. This is the first consideration in the creation of a linguistic State. The second consideration is to note what is likely to happen within a linguistic State. Unfortunately no student has devoted himself to a demographic survey of the population of India. We only know from our census reports how many are Hindus, how many are Muslims, how many Jews, how many Christians and how many untouchables. Except for the knowledge we get as to how many religions there are this information is of no value. What we want to know is the distribution of castes in different linguistic areas. On this we have very little information. One has to depend on one's own knowledge and information. I don't think it would be contradicted if it is said that the caste set-up within the linguistic area is generally such that it contains one or two major castes large in number and a few minor castes living in subordinate dependence on the major castes.

Communal Set-up

Let me give a few illustrations. Take the Punjab of PEPSU. The Jats dominate the whole area. The untouchables live in subordinate dependence on them. Take Andhra—there are two or three major communities spread over the linguistic area. They are either the Reddis or the Kammas and the Kappus. They hold all the land, all the offices, all the business. The untouchables live in subordinate dependence on them. Take Maharashtra. The Marathas are a huge majority in every village in Maharashtra. The Brahmins, the Gujars, the Kolis and the untouchables live in subordinate co-operation. There was a time when the Brahmins and the banias lived without fear. But times have changed. After the murder of Mr. Gandhi, the Brahmins and the banias got such a hiding from the Marathas that they have run away to the towns as safety centres. Only the wretched untouchables, the Kolis and the Malis have remained in the villages to bear the tyranny of the Maratha communal majority. Anyone who forgets this communal set-up will do so at his peril.

In a linguistic State what would remain for the smaller communities to look to ? Can they hope to be elected to the Legislature ? Can they hope to maintain a place in the State service? Can they expect any attention to their economic betterment ? In these circumstances, the creation of a linguistic State means the handing over of Swaraj to a communal majority. What an end to Mr. Gandhi's Swaraj ! Those who cannot understand this aspect of the problem would understand it better if instead of speaking in terms of linguistic State we spoke of a Jat State, a Reddy State or a Maratha State.

Third Issue

The third problem which calls for consideration is whether the creation of linguistic States should take the form of consolidation of the people speaking one language into one State. Should all Maharashtrians be collected together into one Maharashtra State ? Should all Andhra area be put into one Andhra State ? This question of consolidation does not merely relate to new units. It relates also to the existing linguistic provinces such as U.P, Bihar and West Bengal. Why should all Hindi-speaking people be consolidated into one State as has happened in U.P. ? Those who ask for consolidation must be asked whether they want to go to war against other States. If consolidation creates a separate consciousness we will have in course of time an India very much like what it was after the break-up of Maurya Empire. Is destiny moving us towards it ?

This does not mean that there is no case for linguistic provinces. What it means is that there must be definite checks and balances to see that a communal majority does not abuse its power under the garb of a linguistic State.

The Structure of the Federation

(a)  The Federal Legislature

The Federal Legislature is a bicameral legislature. There is a Lower House which is spoken of as the Legislative Assembly and there is an Upper House which is called the Council of State. The composition of the two Chambers is a noteworthy feature. They are very small Chambers compared with other legislatures having regard to the population and the area as the total membership of the Federal Assembly is 375 and of the Council of State 260. These seats are divided in a certain proportion between British India and the Indian States. Of the 375 seats in the Federal Assembly 250 are allotted to British India and 125 to the Indian States. In the Council of State, out of the 260 seats, 156 are allotted to British India and 104 to the Indian States. It may be noticed that distribution between British India and the Indian States is not based upon an equalitarian principle. It is possible to take the population as the basis of representation. It is also possible to take the revenue as the basis of representation. But neither of these has been taken as the basis of distribution of seats. Whether you take population as the basis or whether you take revenue as the basis, you will find that British India has been under-represented, while the Indian States have been over-represented in the two Chambers. The method of filling the seats is also noteworthy. The representatives of the British India in both the Chambers will be elected. The representatives of the Indian States, on the other hand, are to be appointed i.e., nominated, by the Rulers of the States. It is open to a Ruler to provide that the representatives of his State, though appointed by him, may be chosen by his subjects but this is a matter which is left to his discretion. He may appoint a person who is chosen by his people or he may, if he pleases, do both, choose and appoint. In the final result a State's representative is to be appointed by the Ruler as distinguished from being elected by the people. In the case of British India, the representatives are to be elected, but here again there is a peculiarity which may be noticed. In the case of allbi-cameral Legislatures the Lower House being a popular house is always elected directly by the people, while the Upper House being a revising Chamber is elected by indirect election. In the case of the Indian Federation this process is reversed. The Upper Chamber will be elected by direct election by the people and it is the Lower Chamber which is going to be elected indirectly by the Provincial Legislatures. The life of the Federal Assembly is fixed for a term of five years, although it may be dissolved sooner. The Council of State on the other hand is a permanent body not liable to dissolution. It is a body which lives by renewal of a third part of its membership every three years.

Now the authority of the two Chambers to pass laws and to sanction expenditure may be noted. With regard to the authority to pass laws some constitutions make a distinction between money bills and other bills and provide that with regard to money bills the Upper Chamber shall not have the power to initiate such a bill, and also that the Upper Chamber shall not have the authority to reject it. It is given the power only to suspend the passing of the bill for a stated period. The Indian constitution makes no such distinction at all. The money bills and other bills are treated on the same footing and require the assent of both the Chambers before they can become law. The only distinction is that while according to section 30(7) a bill which is not a money bill may originate in either Chamber, a money bill, according to section 37, shall not originate in the Upper Chamber. But according to section 3(2) a money bill needs the assent of the Upper Chamber as much as any other bill.

With regard to the authority to sanction expenditure: here again there is a departure made in the accepted principles of distributing authority between the two Chambers when a Legislature is bi-cameral.

According to section 31(7) the Annual Financial Statement of estimated receipts and expenditure shall be laid before both Chambers of the Federal Legislature and shall, of course, be open to discussion in. both the Chambers. Not only are they open to discussion in both the Chambers, they are also subject to the vote of both the Chambers. Section 34(2) requires that the expenditure shall be submitted in the form of demands for grants to the Federal Assembly and thereafter to the Council of State and either Chamber shall have the power to assent to or refuse any demand, or to assent to any demand subject to a reduction of the amount specified therein.

It will thus be seen that the two Chambers are co-equal in authority, both in the matter of their authority to pass laws and in the matter of sanctioning expenditure. A conflict between the two Chambers cannot end by one Chamber yielding to the other if that Chamber does not wish so to yield. The procedure adopted for the resolving of differences between the two Chambers is the method of joint sessions. Section 31 (1) deals with the procedure with regard to joint sessions where the convict relates to a bill. Section 34(3) relates to the procedure where the conflict relates to the differences with regard to sanctioning of expenditure.

(b)  The Federal Executive

The constitution of the Federal Executive is described in section 7(1). According to this section the executive Authority of the Federation is handed over to the Governor-General. It is he who is the Executive Authority for the Federation. The first thing to note about this Federal Executive is that it is a unitary executive and not a corporate body. In India ever since the British took up the civil and military government of the country, the executive has never been unitary in composition. The executive was a compositeexecutive. ie the Provinces it was known as the Governor-in-Council. At the Centre it was known as the Governor-General-in-Council. The civil and military government of the Provinces as well as of India was not vested either in the Governor or in the Governor-General. The body in which it was vested was the Governor with his Councillors. The Councillors were appointed by the King and did not derive their authority from the Governor-General. They derived their authority from the Crown and possessed co-equalauthority with the Governor and the Governor-General and, barring questions where the peace and tranquillity of the territory was concerned, the Governor and the Governor-General were bound by the decision of the majority. The constitution, therefore, makes a departure from the established system. I am not saying that this departure is unsound in principle or it is not justified by precedent or by the circumstances arising out of the necessities of a federal constitution. All I want you to note is that this is a very significant change.

The next thing to note about the Federal Executive is that although the Governor-General is the Executive Authority for the Federation, there are conditions laid down for the exercise of his powers as the Federal Executive. The constitution divides the matters falling within his executive authority into four classes and prescribes how he is to exercise his executive authority in respect of each of these four classes. In certain matters the Governor-General (1) is to act in his own discretion; (2) In certain matters he is to act on the advice of his Ministers; (3) in certain matters he is to act after consultation with his Ministers, arid (4) in certain matters he is to act according to his individual judgment. A word may be said as to the de jure connotation that underlies these four cases of the exercise of the executive authority by the Governor-General. The best way to begin to explain this de jure connotation is to begin by explaining what is meant by "acting on the advice of his ministers." This means, in those matters the government is really carried on, on the authority of the Ministers and only in the name of the Governor-General. To put the same thing differently, the advice of the Ministers is binding on the Governor-General and he cannot differ from their advice. With regard to the matters where the Governor-General is allowed, " to act in his discretion " what is meant is that the Government is not only carried on in the name of the Governor-General, but is also carried on the authority of the Governor-General. That means that there can be no intervention or interference by the Ministers at any stage. The Ministers have no right to tender any advice and the Governor-General is not bound to seek their advice; or to make it concrete, the files with regard to these matters need not go to the Ministers at all. "Acting in his individual judgment" means that while the matter is within the advisory jurisdiction of the Minister, the Minister has no final authority to decide. The final authority to decide is the Governor-General. The distinction between "in his discretion" and "in his individual judgment" is this that while in regard to matters falling "in his discretion" the Ministers have no right to tender advice to the Governor-General the Ministers have a right to tender advice when the matter is one which falls under " his individual judgment ". To put it differently in regard to matters which are subject to his individual judgment the Governor-General is bound to receive advice from his ministers but is not bound to follow their advice. He may consider their advice, but may act otherwise and differently from the advice given by the Ministers. But in respect of matters which are subject to his discretion he is not bound even to receive the advice of his Ministers. The phrase " after consultation " is a mere matter of procedure. The authority in such matter vests in the Governor-General. All that is required is that he should take into account the wishes of the Ministers. Cases relating to "acting after consultation " may be distinguished from cases relating to " individual judgment " in this way. In cases relating to " individual judgment" the authority vests in the Ministers. The Governor-General has the power to superintend and, if necessary, overrule. In the cases falling under " after consultation ", the authority belongs to the Governor-General and the Ministers have the liberty to say what they wish should be done.

(c)  The Federal Judiciary

The Government of India Act provides for the constitution of a Federal Court as part of the Federal Constitution. The Federal Court is to consist of a Chief Justice and such Puisne Judges as His Majesty thinks necessary, their number not to exceed six until an address is presented by the Legislature asking for an increase. The Federal Judiciary has original as well as appellate jurisdiction. Section 204, which speaks of the Original Jurisdiction of the Federal Court, prescribes that, that Court shall have exclusive Original Jurisdiction in any dispute between the Federation, the Provinces and the federated States which involves any question of law or fact on which the existence or extent of a legal right depends. This section, however, provides that if a State is party then the dispute must concern the interpretation of the Act or an Order in Council thereunder, or the extent of the legislative or executive authority vested in the Federation by the Instrument of Accession or arise under an Agreement under Part VI of the Act for the administration of a federal law in the States, or otherwise concern some matter in which the Federal Legislature has power to legislate for the States or arise under an agreement made after federation with the approval of the Representative of the Crown between the States and the Federation or a Province, and includes provision for such jurisdiction. Even this limited jurisdiction of the Federal Court over the States is further limited by the proviso that no dispute is justifiable if it arises under an agreement expressly excluding such jurisdiction.

The appellate jurisdiction of the Federal Court is regulated by section 205 and section 207. Section 205 says that an appeal shall lie to the Federal Court from any judgment, decree or final order of a High Court in British India if the High Court certified that the case involves a substantial question of law as to the interpretation of this Act or an Order in Council made thereunder. Section 207 relates to appeal from decision of Courts of the Federated States. It says that an appeal shall be to the Federal Court from a Court in a federated State on the ground that a question of law has been wrongly decided, being a question which concerns the interpretation of this Act or of any Order in Council made thereunder or the extent of the legislative or executive authority vested in the Federation by virtue of the Instrument of Accession of that State or arises under an Agreement made under Part VI of this Act in relation to the administration in that State of a law of the Federal Legislature ; but sub-section (2) to section 207 provides that an appeal under this section shall be by way of a special case to be stated for the opinion of the Federal Court by a High Court, and the Federal Court may require a case to be so stated.

Two further points with regard to the Federal Judiciary may be noted. The first is the power of the Federal Court to execute its own orders. The Federal Court has no machinery of its own to enforce its orders. Section 210 provides that the orders of the Federal Court shall be enforceable by all courts and authorities in every part of British India or of any Federated State as if they were orders duly made by the highest court exercising civil or criminal jurisdiction as the case may be in that part. The instrumentality, therefore, which the Federal Court can use for the enforcement of its own orders consists of the administrative machinery of the units of the Federation. The units of the Federation are bound to act in aid of the Federal Court. This is different to what prevails for instance, in the United States of America, where the Supreme Court has its own machinery for enforcing its own orders.

The second point to note with regard to the Federal Court is the question of the powers of the Executive to remove the judges and the power of the Legislature to discuss their conduct. In this respect also the Federal Court stands on a different footing from the Federal Courts in other Federations. The Constitution does not give the Governor-General the power to suspend a Judge of the Federal Court. It forbids any discussion of a judge's judicial conduct by the Legislature. This. no doubt, gives the judge of the Federal Court the greatest fixity of tenure and immunity from interference by the Executive or by the Legislature. To remove the Judiciary from the control of the Executive it has been found necessary that the tenure of a judge must not be subject to the pleasure of the Executive. All constitutions, therefore, provide that the tenure of a judge shall be during good behaviour and that a judge shall be removable only if address is presented by the Legislature pronouncing that he is not of good behaviour. Some such authority must be vested in somebody which should have the power to pronounce upon the good behaviour of a judge. This provision is absent in the Federal Constitution, so that a Judge of the Federal Court once appointed is irremovable from his place till retirement, no matter what his conduct during that period may be. Instead of this power is given to His Majesty under section 200(2)(b) to remove a Judge of the Federal Court on the ground of misbehaviour or infirmity of body or mind it the Judicial Committee of the Privy Council reports that he may be removed on any such ground.