Title: A Futile Exercise
Author: Virendra Parekh
Publication: The Observer
Of Business and Politics
Date: February 4, 2000
Vajpayee government's
foray into a review of the Constitution promises to be highly educative:
It will tell us a lot not only about the Constitution and the political
system but also about the people who run it. Whether it will be anything
else remains to be seen. Brushing aside the reservations and vocal opposition
from several quarters, the government has decided to set up an 11-member
national commission to 'review the working of the Constitution within the
framework of parliamentary democracy'. The fact that it does not have the
requisite majority in Parliament and state assemblies to carry out any
Constitutional amendment has not deterred it.
The educative process
has already begun and we know a little more about our President, the main
opposition party and, of course, the ruling coalition.
The first salvo was fired
by none other than President Narayanan himself who said: "One has to make
sure whether the Constitution has failed us or have we failed the Constitution".
He pointed out that any number of reviews and amendments cannot make up
for the lack of character and integrity of those in power.
Ironically, some of his
own actions are of doubtful constitutional propriety. Last year, he forced
the Vajpayee government to obtain a vote of confidence although the Constitution
knows no such vote and the Opposition would have had any number of opportunities
for voting out the government during discussions on the budget. Then ponder
the constitutional propriety of the President formally opposing a measure
which the elected government had promised in its election manifesto. In
our constitutional setup, the President and the government normally speak
and act for and on behalf of each other, rather than against each other.
Some comic relief in
this drama was provided by the Congress party's sudden discovery of the
sacrosanct nature of basic features of the Constitution. A party which
still swears by Indira Gandhi has conveniently forgotten what Indira did
to the Constitution through the notorious 42nd Amendment during an equally
notorious emergency. Sonia Gandhi knows nothing about India but her minions
must be thoroughly shameless if they feign to forget this recent past.
The 42nd amendment, for
which Congress had no mandate, was pushed through Parliament when the democratic
process was suspended, opposition leaders and thousands of others were
languishing in jails without any charges or trials.
In contrast, the BJP
and its allies have always expressed the need for a review of the Constitution.
Their common manifesto mentions it in unambiguous terms and they are going
about it in a frank and democratic manner. And Congressmen are charging
them for trying to subvert the Constitution! If anything, BJP and its allies
should be charged with not going far enough. The BJP has conceded the political
and ideological battle even before joining it. That is the meaning of the
twin restrictions 'within the parliamentary democracy' and 'without interfering
with its (ie Constitution's) basic features'.
A switch-over to a presidential
form of government has been ruled out officially and categorically. The
commission will, therefore, be left with nothing more than tinkering with
the present system. It can consider two constitutional changes to ensure
the stability of the government and accountability of politicians. Both
have already been widely discussed by many constitutional experts and political
commentators and found wanting.
The commission can consider,
for example, a fixed five-year term for all legislatures. This would spare
the country frequent mid-term polls but will not ensure stability of the
government.
In fact, going by the
character of present MPs and MLAS, a fixed term of Lok Sabha or state assemblies
would only make the government more unstable. Secure in the knowledge that
the House will not be dissolved prematurely, they will pursue their favourite
pastime of permutations and combinations with greater vigour, making and
breaking governments at the drop of a Gandhi cap.
Another important amendment
that could be considered is a partial or full switch-over to proportional
representation. In an election under it, parties get seats in proportion
to the votes polled by them. Such a system works best in a country with
a few well-established parties run on democratic lines. How it would fare
with our party system is anybody's guess.
The recent political
instability is a result of political fragmentation which, in turn, is a
reflection of social fragmentation. Society is fragmented horizontally
and vertically as the traditional bond provided by Hinduism has weakened
and there is no idea or ideal that can enable the people to overcome their
narrower identities and unite in a common national endeavour. Constitutional
amendment cannot address t his basic malady.
The commission can certainly
look afresh at Central-State relations and recommend more powers to State.
But it does not need a full-fledged commission to review the entire Constitution.
The real capitulation has been on the so-called basic structure of the
Constitution. No law or court judgement has defined it so far. Over the
years, several distortions have come to be looked upon as among its basic
features.
The issues involved are
highly complex, politically sensitive and can only be mentioned here in
passing. It may sound blasphemous to say that India's Constitution is neither
democratic nor secular. However, a democratic state is founded on individuals,
not groups and certainly not caste or religious groups. Caste-based reservations
in employment and education are a negation of democracy. In any case, their
original ten-year tenure expired long ago. A secular state cannot recognise
any religious minority or majority; only citizens. The articles on minority
rights in the Constitution, therefore, compromise its secular character.
Article 370, which the Constitution itself describes as transitory, has
come to be regarded as a basic feature. The incorporation of these provisions
represented hangover of partition days and incomplete nature of India's
independence. This hangover prevented recognition by the Constitution that
the Indian State is a political embodiment of Hindu civilisation.
It is this aspect of
the working of the Constitution that needs a hard second look and remedial
action. BJP can be forgiven for not possessing the necessary political
backing to carry out such an action. But it cannot be forgiven for refusing
even to undertake such a task, after making such a fuss about it.
