BORIS Johnson has, by his gross misconduct and his untruths, done enormous harm to his country. In all parliamentary democracies, especially those of the Commonwealth, British practice and conventions were cited as models to emulate. He was caught red-handed on two acts of misconduct — he broke the rules and he lied to the public and parliament. Worse, he continued to sit in the House of Commons. In contrast, John Profumo not only resigned as member of the House of Commons and as minister but banished himself from politics. He devoted himself to rigorous public service all his life.
In South Asia, our leaders of the earlier generation, very many of them whom were barristers, looked up to British precedents and conventions for guidance. Dr Hugh Dalton promptly resigned as chancellor of the exchequer because, on his way to the House of Commons, his gregarious soul revealed to a questioning journalist a minor tax his budget proposed to impose.
In India, precedents reveal Prime Minister Jawaharlal Nehru’s sorry record on resignation by favourites like T.T. Krishnamachari his finance minister and Partap Singh Kairon, chief minister of Punjab. His successor Lal Bahadur Shastri showed the door to both. That was the stuff he was made of.
Sadly, Indian practice has varied depending on political considerations. “The most elementary qualification demanded of a minister is honesty and incorruptibility. It is, however, necessary not only that he should possess the qualification, but also that he should appear to possess it,” Ivor Jennings said in his authoritative Cabinet Government. It follows inexorably from this that if this truly ‘elementary’ qualification comes under a cloud, the minister ought to resign. Yet, one Union minister, B. Shankaranand stayed put despite the findings of the joint parliamentary committee report on the banks scam — a triumph of politics over propriety.
Public opinion is the real force which demands resignation.
Two events illustrate the political factor. The Haryana Public Works Department minister, Anand Singh Dangi, resigned following the censures of the Indian Supreme Court on the irregularities in the appointment of tax inspectors in 1991 when Dangi was chairman of the selection board. But the chief minister of Orissa, Biju Patnaik, refused to quit despite the censures of a division bench of the Orissa High Court, for his “vindictive and biased” order demoting the managing director of the Orissa Mining Corporation, Narayan Chandra Das. In similar circumstances, N. Sanjiva Reddy resigned as chief minister of Andhra Pradesh in the wake of the supreme court’s strictures against him in 1964 in the Kurnool road transport case.
Ministerial responsibility is of two kinds — when a minister himself says or does something wrong or when his senior civil servant acts wrongly in pursuance of policy. In both cases the minister is responsible and must resign.
Two conditions need to be fulfilled for a resignation to occur — serious fault and absence of political compulsion to save the delinquent. “The fact that resignations are in fact a product of political considerations does not devalue their constitutional significance. Neither does the motivation or public explanation or rationale of a resignation after its constitutional credentials.”
This is the crux of the matter. Public opinion is the master — the real force which demands resignation or protects the wrongdoer. But public opinion very much applauds and honours the man who resigns a well-paid judicial post which offers him security because on some issue he feels that he cannot continue in the judiciary any longer.
There have been many instances of such resignations. The point is this, the chief justice must see to it that the government does not drive a judge to the extreme course. Indeed, the chief justice acts as a protective barrier between the executive of the day and his own colleagues on the bench. It is his duty to tell the government that the course it proposes to take will not be acceptable to his colleagues. And there have been instances known to the Bar but unknown to the public in which such deadlocks have been resolved. For it is the essence of the relationship between the state and the judiciary that disputes are resolved secretly to the satisfaction of both sides.
Unfortunately, in our times, both the ministers and the government and a certain kind of judge believe in off-the-record briefings to their favourites in the press. Needless to add, the pact is often broken by the correspondent. He has a fine story to publish and to get credit for it. And it is a temptation which he cannot resist. It is the judiciary which suffers by self-publicity. And it is therefore essential that there should be a confidential channel between the chief justice and the law minister or the chief minister, if not indeed the prime minister himself.
The writer is an author and lawyer based in Mumbai.
Published in Dawn, August 13th, 2022