FALLING SHORT ON THE SPIRIT OF THE LAW
Idon’t think Pertie realised how close he was to the truth. As events unfolded in Arunachal Pradesh last week, he suddenly said: “You know our problem? We claim to follow the letter of the law whilst blithely violating its spirit. And what’s worse is often we don’t even realise this.” Of course, he meant this as a casual throwaway remark. It was an instant response to something on TV. But as I pondered over it I discovered it had the ring of truth.
There are myriad examples that prove Pertie’s point but let’s stick to the context in which he made it. The way successive governments have abused Article 356 is a perfect illustration. Both in Arunachal and, earlier, Uttarakhand there is no doubt that the government of the day had lost its majority and, therefore, the right to continue in office. The possibility that the BJP had lured away its MLAs explains how this happened without questioning the conclusion. The real question was: What now needed to be done?
The answer was clear and simple: both in Uttarakhand and Arunachal the chief minister should have been asked to prove his majority on the floor of the House. That was the proper constitutional thing to do. Instead, decisions were taken in Raj Bhavans or even Race Course Road to circumvent this critical step.
The concerned authorities — i.e. the governors, home minister and the Prime Minister — thought they had fulfilled the letter of the law but, in fact, they ended up violating its spirit. What they overlooked is that the law has to not just be observed and followed but seen to be so. That didn’t happen. It would have happened if the Rawat and Tuki governments had been defeated by a vote of no confidence. Instead, they were undermined by constitutional misinterpretations coming on top of the machinations of their opponents.
Finally, when the vote did happen, the governments survived. That probably wouldn’t have happened if the vote had been held at the outset. I’d say that’s the delicious irony of the outcome!
However, don’t fool yourself into believing that what Mr Modi did was unique or even exceptional. I believe Article 356 has been imposed 126 times, 88 of those under Congress rule. In fact, in Bihar, in 2005, Dr Manmohan Singh made the President sign the proclamation by fax from Moscow! The worst abuser was Indira Gandhi. She dismissed 50 state governments in 15 years. However, fortune was on her side. The Supreme Court didn’t embarrass her as it has twice shamed the Modi government.
What Pertie didn’t add — but I’m sure he would agree with — is that we follow a very mechanical interpretation of the law. We don’t understand its intentions and, therefore, we don’t care about its spirit. Thus in claiming to follow the Constitution we often — at times deliberately but, occasionally, ironically — actually violate it.
To understand why this happens I would go one step further: We understand the power element of law but not its moral dimension. We address the question ‘has the time come to use a law’ but never reflect on the more important issue ‘is it right to use it’? Just because a law exists and only because the circumstances permit its use doesn’t mean it’s best to invoke it. It also has to be the right thing to do. That’s where the spirit as opposed to the letter becomes important. Unfortunately, that’s where we fall short and fail.