Purshottam Lal, IPS, Punjab
Article on Editorial page – Daily Post, October 24, 2015
The will of the people
According to the Preamble of The Constitution of India, the people of this country adopted, enacted and gave to themselves the Constitution on twenty-sixth day of November, 1949 in the Constituent Assembly. The same came into force on January 26, 1950.
While striking down the 99th Constitutional amendment and the National Judicial Appointments Commission Act, 2014 on 16 October, 2015, which laid down the procedure for appointment of judges to the Supreme Court and the High Courts, a five-member Constitution Bench of the Supreme Court laid much emphasis on the ‘will of the people’ as expressed in the Constitution, as opposed to the will of the ‘majority’ of the people only as expressed in legislations passed by the Parliament. Justice Adarsh Kumar Goel, one of the five judges on the bench, wrote: “The will of the people is the Constitution, while Parliament represents the will of the majority at a given point of time which is subordinate to the Constitution, that is, the will of the people.”
It will, therefore, be insightful to examine how far the Constituent Assembly which enacted and adopted the Constitution could be said to represent the will of the people.
It is common knowledge that the members of the Constituent Assembly were not directly elected by the people of India, much less for the purpose of enacting and adopting a Constitution.
The Constituent Assembly was set up in 1946 according to the Cabinet Mission Plan. At that time, it was not a sovereign body. It was the The Indian Independence Act, 1947 enacted by the British parliament which established the sovereign character of the Constituent Assembly.
When the Labour Party came to power in England on 19 February, 1946, it was announced that a Mission of three Cabinet Ministers would be sent to India to explore the possibility of a settlement of the Indian problem. The Mission came to India in March of that year. It held discussions with various groups and political parties. As no consensus could be reached with the two principal political parties i.e. the Congress and the Muslim League, the Mission unilaterally announced its decisions on 16 May, 1946.
In regard to the election of the members of the proposed Constituent Assembly, the decision was as follows:
“The members of each Provincial Assembly were to be divided into two groups, General and Muslim, except in the Punjab where they were to be divided into three groups, General, Muslim and Sikh. Each group was to elect its own representatives to the Constituent Assembly by the method of proportional representation with single transferable vote. The number of representatives allotted to each Province and community was proportional to its population, in the ratio of one to a million. The total number of representatives from the Governor’s Provinces was to be 292. To these 292 members were to be added 4 members to represent the Chief Commissioner’s Provinces (Delhi, Ajmer-Mewar, Coorg, and British Baluchistan), and not more than 93 members from the Indian States. The method of election of the members from the Indian States was left to be by consultation.”
It is worth mentioning that elections to the Provincial assemblies had already been held in January 1946. According to the provisions of the Government of India Act 1935 which applied to these elections, provinces were divided into territorial constituencies for the election of persons to fill the general seats, Sikh seats, if any, Muhammadan seats, Anglo-Indian seats, if any etc.
In this fashion, the 389 members of the Constituent Assembly were elected/chosen by a process of indirect election from the Governor’s Provinces (292), and 93 members from Indian States, by selection by consultation.
The break-up of seats among political groups was as follows: Indian National Congress-208; All India Muslim League-73; Others- 15; Princely States- 93
The elections for the 292 seats from Governor’s Provinces were in this way completed by August, 1946. The Muslim League, thereafter, refused to cooperate with the Congress; they demanded a separate Constituent Assembly for Muslims in India.
The Interim Government of India was formed on September 2, 1946 from the newly elected Constituent Assembly.
On June 3, 1947, Lord Mountbatten, the last British Governor-General of India, announced his plan declaring the partition of India and leading to the enactment of the Indian Independence Act in July,1947 by the British Parliament which led to the partition of the country.
The Constituent Assembly, elected for an undivided India, met for the first time on December 9, 1946, and reassembling thereafter on August 14, 1947 as a sovereign body. As a result of the partition of the country, a separate Constituent Assembly was established for Pakistan on June 3, 1947. The representatives of the areas to form Pakistan ceased to be members of the Constituent Assembly of India.
Thus, the number of members in the Constituent Assembly of India remained 389 from December 1946 to June 1947, and 299 from June 1947 to January 1950.
The Constituent Assembly, so constituted, proceeded to appoint different committees to deal with different aspects of the constitutional issues. After deliberating upon their reports, the final form was approved in the Constituent Assembly on November 26, 1949. It was declared in the Preamble that the people of India gave this Constitution to themselves.
It is thus evident that the Hon’ble members of the Constituent Assembly which passed the Constitution were not elected directly by the people. Majority of them were rather elected indirectly from provincial assemblies. A large number of them from princely states were chosen by consultation. Moreover, the electorate which voted for members of provincial assemblies in January 1946 did not vote them for the purpose of making a Constitution. In fact, the people, at that time, had no knowledge that any exercise for making a Constitution would be taken up in future. Also, the provinces, for the purposes of election, were divided into territorial constituencies termed as general seats, Sikh seats, Muhammadan seats, Anglo-Indian seats etc. Therefore, it can be said that the Constituent Assembly far less represented the people’s will then than the subsequent Parliaments the lower house of which (Lok Sabha) is made up of members directly elected by the people on the basis of the universal adult suffrage.
Article: The Tribune, June 27, 1998 – Saturday Plus
This much and no more
Ask any police officer about the intricacies of the ‘third degree’, and if he has confidence in you, the chances are that he would tell you stories of his exploits in this field for hours together. But, ask him about the ‘first and the second degree’, and he would look askance. He has never heard of them before. It hardly occurs to him that ‘sweating it out’, which is plain hard work of knowing all the facets of the case before going in for interrogation, would qualify for the ‘first degree’, and ‘confrontation’, which is confronting the suspect with ‘facts’ and eliciting his response thereto, for the ‘second degree’. In fact, the first degree and the second degree go hand-in-hand, and stop short of the third degree.
Sigmund Freud said that “all actions of men spring from two fundamental motives, that of sex and that of self”. The instinct for self-preservation, which is referable to the latter, gives rise to the ‘fight or flight’ syndrome when one is faced with danger. A suspect, facing an interrogator, sees the danger of the consequences of his confession if he makes one (presuming that he is guilty). Since he cannot run away from the interrogator, and, naturally, cannot fight him in the physical sense, he fights him mentally and may, therefore, resort to lies.
Falsehood and lies from a person accused of an offense or a misdemeanor are, therefore, natural, and a police officer need not resent these. Instead of bashing up the suspect and subjecting him to the brutalities and indignities of the ‘third degree’, he would rather fight him mentally, too. But that requires him to ‘sweat’, for he has to put in real hard work by way of investigation and preparation, and he has to have a good grounding in the techniques of interrogation, and a sound belief in the goodness of things lawful.
Historically, however, police forces all over the world have been brutal and cruel. And so, have been the laws governing the conduct of men in societies. Thus, Hammurabi, the greatest king of the first dynasty of Babylon who reigned from 1791 to 1749 B.C., prescribed a uniform code of laws for the whole empire, which laid down ‘an eye for an eye and tooth for a tooth’.(This was also part of the criminal law of the Hebrews as enjoined by Moses).If a surgeon operated on a patient’s eye with a copper lancet and, as a result, he lost his eye, the surgeon’s eye was removed with the same lancet. And, if a man struck his father, his hands were chopped off. When Assyrians ruled over the Babylon in the 11th and 12th century B.C., prostitutes were not allowed to wear veils to cover their faces. Should a person see one veiled, he was to bring her to the palace gate where an ‘Assyrian policeman’ would beat her with 50 strokes of the rod. And should a man see such a prostitute veiled and not arrest her, he was awarded 50 stokes by the ‘policeman’.
In Egypt, Rameses III (1198-1166 B.C.) invested the police with authority. He was able to establish complete peace and announced in Amen’s temple, “Now, women can go about without a veil, without fear, for no one can dare molest any”. His police delivered instant justice and that too, in public. Thieves were put to death. A citizen was obliged to prevent murder and one failing to do so was killed by no one else but the police.
Even on the walls of the tombs, the work of the police was portrayed. On the walls of one of the tombs at Beni Hassan, east of the Nile in the Minia governorate, in a scene, the culprit is shown lying prostrate on the ground with his two legs firmly gripped by two policemen, a third is applying the stick and an officer is watching the procedure.
The Hindu law-giver Manu, inter alia, ordained the chopping off of the offending foot by the appropriate ‘police authority’ if a person from a lower caste kicked another belonging to the higher caste.
In one of the books of the Old Testament, Exodus, it is laid down that ‘he that curseth his father, or his mother, shall surely be put to death’, and that ‘he that stealeth a man and selleth him, or if he be found in his hand, he shall surely be put to death’.
In more recent times, after the Norman conquest of Britain in 1066, William, the Conqueror, apportioned vast tracts of the country to his soldiers who exercised absolute powers over their retainers and serfs and inflicted cruel and savage punishments on the subject.
In 1252, Henry III appointed ‘Petty Constables’ in towns. The term ‘constable’ was derived from the Latin Comes-stabuli, meaning ‘master of the horse’, and was borrowed by the Normans from the name of the Byzantine official who looked after the imperial stables. These ‘petty constables’ continued to be the source of much tyranny and torture for the British people for a very long time.
Before 1829, the police in Britain were generally described as ‘illiterate, incompetent and brute’. They were not paid for, for the ‘services’ rendered. Punishments prescribed even for petty crimes were savage. For stealing a few shillings, men, women and children could be hanged or transported to the colonies for life.
It was only in 1829 that the foundations of a people-friendly police were laid in Britain, when Sir Robert Peel managed to secure the approval by an apprehensive English Parliament of his Bill for metropolitan police for London, members of which later came to be known as world famous Peelers or Bobbies. Peel enunciated the nine principles of law enforcement which, for the first time, gave a place of importance to the ordinary citizen in police functioning.
Today, the British police is looked upon as one of the best, even better than that of the USA in terms of efficiency, integrity, effectiveness, politeness and a people-friendly approach. A British Bobby would address even the meekest and the weakest as “Sir”, would keep his cool under the gravest provocation, and would eschew the ‘third degree’ under all circumstances. Padding and cooking up of the evidence, preparation of false and inaccurate records and deposing falsely before a law court are an anathema to him.
In 1986, a group of police officers from India were on a study tour to Northern Ireland (a part of the United Kingdom) where the worst form of IRA-inspired terrorism had been witnessed since 1925.They asked a Senior Assistant Chief Constable as to whether they, too, killed terrorists in ‘encounters. He took some time to understand the question, and then replied: “Gentlemen, had we been doing that, the Crown would have lost Northern Ireland long time back!”
Though the Americans have copied much from the British police, it is often accused of brutality and bias, specially by the blacks. The National Advisory Commission on Civil Disorders (popularly known as the Kerner Commission, after its Chairman) reported in 1967 that “the atmosphere of hostility and cynicism is reinforced by a widespread belief among Blacks in the existence of police brutality and in double standards of justice and protection-one for Blacks and one for Whites”. The Press and the public, in America, are so very zealous in exposing the misdeeds of public authorities that the slightest aberration on the part of a police officer gets wide publicity.
Tortures and indignities, therefore, of the type which are inflicted on the hapless citizens of India by its police are unknown among the people and the police of the USA. Even calling a Black names would tantamount to brutality with the potential of causing riots, and disturbing life for days together.
Back in India, the problem has been compounded by the fact that people who matter and who can bring about the changes, in view of the requirement of ‘a civilised police in a civilised society governed by the rule of law’, feel helpless. They are prisoners of a system which does not allow for change in the character and composition of the police force. Their handicap is that the law does not respond effectively to organised and foreign-inspired crimes against the society and the state, such as terrorism, secessionism and insurgency. These crimes are distinct from crimes against the individual such as murder, theft and rape. A rising crime graph, for whatever reasons, may not only unsettle the career of many a police officer but may also bring the curtain down on the government of the day by inviting a Presidential proclamation under Article 356 of the Constitution.
So, everybody wants to keep the curve of the crime graph ‘down’, and law and order under ‘firm control’, by means fair or foul.
How and when the police in India would then be like the London Bobby? There is no set answer. Perhaps, when a Mahatma is born within the force or outside it who, with the sheer force of his moral authority, would bring about changes in the attitude of the police and the people. Perhaps, when the people realise that it is not only for the police to control the crime, for it only performs extended role of every citizen. Perhaps, when organised crime would be dealt with by the means of appropriate laws and when ‘acceptable levels of terrorism’ and ‘acceptable levels of crime’ find place in the state lexicon, as in Northern Ireland, for no amount of police action or even military action can wipe them out. Perhaps, when the police is made responsible for upholding the law and law alone, the law which is simple and easily understandable without the need of it being given complex interpretations by the High Courts and the Supreme Court and when simultaneously, the police is made truly accountable to the government of the day for the purpose of upholding the law, and for no other purpose. And, perhaps, when each policeman looks within himself and says, “This much and no more”.