Title: Tale of two reviews:
secrecy vs transparency
Author: Surya Prakash/New
Delhi
Publication: The Pioneer
Date: February 25, 2000
In 1976, when India was
groaning under the impact of Indira Gandhi's dictatorship, the Congress
appointed a committee headed by Swaran Singh to review the Constitution.
The committee worked at great speed, consulted party MPs, party Chief Ministers
and Pradesh Congress chiefs and came up with a horrendous list of amendments
to cripple the judiciary, destroy the federal character of the Constitution
and to give Parliament untrammeled power to alter this document.
The Swaran Singh report
set the tone for the infamous 42nd Amendment that destroyed the very soul
of the Constitution. While all this was on, citizens were barred from holding
meetings to discuss the proposed amendments and the media was prohibited
from criticising the proposals.
As against this, the
National Democratic Alliance(NDA) that is now in power has appointed a
national commission of jurists and other eminent persons to review the
Constitution. While the Swaran Singh panel worked in fear and secrecy,
this commission will work under the glare of publicity and possibly take
a lot of flak for what it does or does not do.
This is one of the reasons
why the Congress' present stand vis-a-vis constitutional review sounds
hollow. A second reason is the party's sustained assault on the doctrine
of basic structure propounded by a full bench of the Supreme Court in the
Keshavananda Case in 1973. In this case, the court held that while amendments
could be made to any part of the Constitution, they would have to be made
within the broad contours of the Preamble. The basic foundation and structure
of the Constitution should remain untouched, it said.
Judges sitting on this
13-member Constitutional Bench explained the doctrine in different ways.
According to Durga Das Basu ("Shorter Constitution of India" ), the following
elements constitute the building blocks of this doctrine: Supremacy of
the Constitution, Secular Character of the Constitution, Federal character
of the Constitution, Separation of powers between the legislature, the
executive and the judiciary and the republican and democratic form of government.
Soon after the Keshavananda
Case, Congressmen began the chant for a "committed judiciary". They argued
that a judiciary that worked at cross purposes with the government would
be damaging to the country. Side by side, they launched a tirade against
the Supreme Court for enunciating the doctrine of basic structure and argued
that the judges were exceeding their brief. Bolstered by this show of sycophancy
by her partymen, Indira Gandhi imposed an emergency, suspended fundamental
rights, jailed opposition leaders and imposed press censorship. Having
snuffed out free speech, she appointed the Swaran Singh Committee to review
the Constitution. This committee held discussions with Congress MPs and
other partymen between May 10 and 20, 1976 and came up with recommendations
which sought to change the character of the Constitution.
A major recommendation
of the Swaran Singh committee was that "the constituent power of Parliament
to amend the Constitution as provided in Article 368 should not be open
to question or challenge". In order to achieve this, the committee said
Article 368 should be amended to categorically prohibit judicial review.
Further, the High Courts should be barred from entertaining writ petitions
challenging the constitutional validity of a Central law "and any rule,
regulation and byelaw made thereunder".
Even in the Supreme Court,
when the constitutional vailidity of a Central law is challenged, the matter
should be heard by not less than seven judges and a judgement declaring
a law as invalid must have the support of two-thirds of the judges constituting
the bench.
It also suggested a significant
change in Article 226 to cripple the writ jurisdiction of High Courts.
Further, there was a clear attempt by the committee to strengthen the Union
Government and weaken the States. The committee said education should be
moved to the Concurrent List in the Seventh Schedule, but the most invidious
suggestion in this area was that relating to police deployment.
Over the years, the states
had zealously guarded their exclusive right to maintain law and order within
their territories. The Swaran Singh committee sought to intrude into this
area by saying that when states seek central help to meet law and order
problems " it (the Centre) should have the power to deploy police and other
similar forces under its own superintendence and control in any state".
In short, the Swaran
Singh committee was hitting at the very foundations of the Constitution
by suggesting measures to weaken the judiciary and to alter the federal
features in the Constitution. Armed with such dangerous recommendations
from a party committee that was deliberating the issue when Indira Gandhi's
dictatorship was at its worst, the Congress government led by her pushed
through the 42 Amendment Act that virtually sanctified authoritarian rule
and knocked the bottom out of India's democratic Constitution.
Younger members of the
Congress party would be surprised to know the contents of this black law
and the views of their senior colleagues on the basic structure on the
Constitution when Parliament passed this amendment Bill in 1976. But that
will have to wait until tomorrow.