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| Feb 14, 2000 | ||
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| THE CONSTITUTION Review Rift The decision to set up a panel to review the Constitution invites the wrath of the Opposition which calls it an attempt to saffronise the statute By Sumit Mitra and Farzand Ahmed with Javed M.Ansari
Fifty years after the Indian Constitution was adopted, the National Democratic Alliance (NDA) of 22 parties is putting these words of Ambedkar to test. Last week, the NDA Government headed by Prime Minister Atal Bihari Vajpayee announced that a national commission, headed by former chief justice M.N. Venkatachelliah was being set up to review the working of the Constitution. The commission would, as a government spokesman put it, "examine in the light of the experience of the last 50 years as to how best the Constitution can respond to the changing needs of an efficient, smooth and effective system ... within the framework of parliamentary democracy and without interfering with its (the Constitution's) basic structures and features". The news was anticipated for quite some time and had electrified the political classes on both sides of the picket fence of governance. A few days earlier, President K.R. Narayanan had, at a function held in Parliament's Central Hall to commemorate the 50th anniversary of the Republic, voiced his misgivings about the Government's move to review the Constitution. "We have to consider whether it is the Constitution that has failed us or whether it is we who have failed the Constitution." Then, alluding to the BJP's avowed preference for a switchover to the presidential form of government, Narayanan warned: "We should avoid too much rigidity in our system of government as, in a very rigid system (presidential form), there is a danger of major explosions in the society." While the Congress -- a bit slow on the uptake after its disastrous performance in last year's mid-term poll -- is struggling to pick up the political cue from the President's speech, the fact the Opposition has ignored is the simmering demand for changes in the agenda of the Republic. Unlike a religious dictum, or the laws of the universe, the constitution of a people changes course with its destiny. Like the constitution of Britain which kept pace with the changing equation between the people and the monarch, or that of France which responded to rebellion, dictatorship and reassertion of the people's rights in the 18th and the 19th centuries.
However, nobody is certain yet about which are the areas in the Constitution, contained in its 395 articles and 12 schedules, that are likely to be selected for change. Law Minister Ram Jethmalani confessed that he didn't know which were the specific areas of the Constitution that the commission would try and remould. "It is up to the commission," he said. However, sources in the government point at five possible approach routes to reform (see box): Decentralisation of Power: The Seventh Schedule provides the lists of matters divided under the Union list, the state list and the concurrent list. The 97 items under the Union list (compared to 66 under the state list) put too much power and responsibility in the hands of the Centre. All infrastructure facilities -- railways, telecom, port, airlines -- are on the Union list though the states' fortunes depend on their workings. In this era of liberalisation, it is ironical the Centre retains its hold over, among all things, "the stock exchanges and future markets". The reform may give a new federal twist to the entire Constitution. Stability at the Centre: Article 75(3) says that the Council of Ministers shall be collectively responsible to the House of the People (Lok Sabha). But there are not enough safeguards in the Tenth Schedule, also known as the Anti-Defection Act, against horse-trading of legislators, sudden or irrational switching of loyalty, and the consequent dismissal of the cabinet, causing cumbersome and expensive mid-term polls. In the past 10 years, there have been seven changes in government. Such instability at the Centre takes a huge toll on the smaller and regional parties who are made to bend over backwards to find the resources for facing frequent elections. The reform may address this problem, perhaps by introducing the German system in which no confidence vote is entertained unless those who want to pull down the government are ready with an alternative leadership. Judicial Accountability: Article 124(2) says that every judge of the Supreme Court shall be appointed by the President, meaning the executive. The wording of the subsequent lines -- and a series of judgements of the Supreme Court -- have turned the judiciary into a self-appointing community. During four decades of almost uninterrupted Congress hegemony, the executive held the key to judicial appointments and transfers. The coalition politicians of today cannot accept an outright change in the power balance with the judiciary now. The commission may consider the prospect of changing the provision and make room for a National Judicial Commission for transfer and appointment of Supreme Court and high court judges in which the political executive also has a role. The Centre's Power to Dismiss State Governments: Article 356 is a much disabused provision which enables the Centre to dismiss the state governments on the plea of breakdown of the constitutional machinery in the concerned states. To reform Article 356 is a constant refrain of the BJP's partners in the NDA, many of whom have the experience of being its victim, particularly when the Congress was all powerful. Financial Autonomy to the States: Article 265 to 293 dealing with the distribution of financial assets including tax revenues between the Centre and the States has become a bone of contention in Centre-state relations. The Sarkaria Commission called for certain changes which have not been brought about. The devolution of funds through the Finance Commission has a touch of the mansabdari system of the Mughal period, with the Centre acting as the benevolent parent in doling out shares of tax revenues. The system cries for change. Mercifully, the commission for Constitutional reform will be anything but a political cabal. The shortlist prepared by Government so far includes constitutional experts like Fali Nariman and Ashok Desai, former Lok Sabha secretary-general Subash Kashyap, former solicitor-general K. Parasaran, ex- home secretary Madhav Godbole, former justice R.S. Sarkaria of Sarkaria Commission fame, former Speaker P.A. Sangma, lawyer Anil Diwan, journalist C.R. Irani, justice (retired) B.P. Jeevan Reddy of the Law Commission and Attorney-General Soli Sorabjee. The body will in all certainty not carry the extra baggage of politicians. But the Congress and the Left have found themselves in a double bind as a result of the move. While they must oppose it for the sake of opposition, issues involved in the review are sure to touch a raw nerve even among the future alliance of the Congress. The Left, for that matter, traditionally clamoured for more power to the states. Congress Rajya Sabha member Kapil Sibal says his party is not opposed to reform but "we're afraid of the BJP's hidden agenda". What could the agenda be? As it is obvious, no major change in the Constitution is possible in the present Parliament, with its different arithmetic in the two Houses. The debate will thus linger on, giving the BJP a prize issue to overshadow all conventional measuring sticks of performance in the next elections. |
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