HVK Archives: Why we need a change
Why we need a change - The Sunday Observer
Posted By Krishnakant Udavant (kkant@bom2.vsnl.net.in)
May 17-23, 1998
Title: Why we need a change
Author:
Publication: The Sunday Observer
Date: May 17-23, 1998
Does India require a presidential form of government and
subsequent constitutional review? The old debate came alive when
the BJP-led coalition proposed both in its National Agenda for
Governance. And now Union Home Minister L K Advani has added a
new dimension to the issue by forcefully favouring the idea in a
public speech. On 26 April, for the first time, the nation heard
someone of his official stature openly advocating constitutional
modifications in favour of the presidential format. The Sunday
Observer is publishing the crucial opus - the second Thakur
Prasad Memorial Lecture delivered by Advani in Patna - and
invites opinion from its readers. We would be glad to publish
your response to Advani's proposition to enrich the ongoing
debate on the issue.
No other issue of long-range consequence to India's polity and
society has so stirred the national mind in recent times as the
proposal for a comprehensive review of the Constitution mooted by
the Atal Behari Vajpayee government. The National Agenda for
Governance adopted by the constituents of the ruling BJP-led
alliance says: "We will appoint a commission to review the
Constitution of India in the light of the experience of the past
50 years and to make suitable recommendations."
Disinformation is being spread in some quarters as to what this
promise implies. It is said that this government wishes to scrap
the Ambedkar Constitution and adopt an entirely different
Constitution. In specific terms. it is being alleged, mainly by
spokesmen of the Communist parties. that the government harbours
a desire to throw secularism overboard and also to scrap the
policy of reservations.
Both these allegations are utterly baseless and politically
motivated.
I would like at the very outset to affirm with all the emphasis
at my command that the Commission for Constitutional Review
contemplated by the present government will be required not to
tinker with the essential ingredients of the present
Constitution. Further, I would like to categorically aver that
both secularism as well as the scheme of reservations for the
scheduled castes, scheduled tribes, and backward classes are such
essential ingredients, which cannot be, and will not be, tampered
with in any way.
On both issues, my party and government have a principled
approach. In the context of secularism, the BJP would like the
country to ponder why India has a secular Constitution in the
first place. India became independent in 1947. But its freedom
was accompanied by Partition. And the basis of Partition was
religion. The Muslim-majority areas became Pakistan and the Hindu-
majority areas became India. The princely states were allowed to
make their own choice.
The architects of Pakistan's constitution opted for theocracy and
declared their country an Islamic state. If our Constituent
Assembly had done something similar, perhaps the world could not
have blamed us. If, nevertheless, the Constituent Assembly drew
up a secular Constitution under which all citizens, irrespective
of their faith, are equal, it is essentially because theocracy is
alien to India's history, tradition, and culture. The concept of
Sarva Panth Samabhaav (equal respect for all faiths) has always
been regarded as an essential attribute of the state and
stagecraft in our country.
So ingrained is the Indian concept of secularism in our national
culture that. it did not even occur to the architects of the
Constitution that they should specially mention it as one of its
preambular principles. It is only during the anti-democratic
Emergency rule imposed by Shrimati Indira Gandhi (1975-77) that
this secularism found a place in the Constitution through the
route of amendment.
Article 368 of the Constitution is the provision which lays down
how the Indian Constitution can be amended. The history of the
enactment of this provision, and of its varying interpretations
>from time to time, is really fascinating.
Commending this provision to the Constituent Assembly, Dr B R
Ambedkar quoted at some length Thomas Jefferson, the great
American statesman who had played a key role In the framing of
the American Constitution. Ambedkar cited two quotations from
Jefferson:
"We may consider each generation as a distinct nation, with a
right, by the will of the majority, to bind themselves, but none
to bind the succeeding generation,. more than the inhabitants of
another country."
"The idea that institutions established for the use of the nation
cannot be touched or modified, even to make them answer their
end, because of rights gratuitously supposed in those employed to
manage them In the trust for the public, may perhaps be a
salutary provision against the abuses of monarch, but is most
absurd against the nation itself. Yet our lawyers and priests
generally inculcate this doctrine and suppose that preceding
generations held the earth more freely than we do: had a right to
impose laws on us, unalterable by ourselves, and that we, in the
like manner, can make laws and Impose burdens on future
generations. which they will have no right to alter: in fine,
that the earth belongs to the dead and not the living."
Dr Ambedkar went to add: "What Jefferson has said is not merely
true, but is absolutely true... The [Constituent] Assembly has
not only refrained from putting a seal of finality and
Infallibility upon this Constitution, but has provided a most
facile procedure for amending it" (emphasis mine). He also
explained how much more difficult it was in the USA or in
Australia or in Canada to amend the Constitution.
Those who try to propagate these days that the present Government
of India is seeking to undo the good work done by Dr Ambedkar
would do well to study Dr Ambedkar's own views in this regard.
Until 1967, the Supreme Court had consistently held that any
provision of the Constitution could be amended or even scrapped
by Parliament if the procedural requirements of Article 368 were
fulfilled. But in the famous Golak Nath case, the Supreme Court
held that the provision of fundamental rights was unamendable,
and if Parliament wanted to amend any such provisions a new
Constituent Assembly had to be convened.
The Golak Nath decision was superseded in 1971 by the
Constitution (24th Amendment) Act, 1971. This law provided that
the validity of a constitutional amendment shall not be open to
question on the ground that it takes away or affects a
fundamental right.
In 1973, however, the Golak Nath decision was judicially
overruled. The Supreme Court delivered a landmark judgement, now
known as the Keshavanand Bharati judgement. In this, the court
held that though no specific provision (not even one relating to
fundamental rights) was unamendable, the "basic features" of the
Constitution could not be altered. Justice H R Khanna said the
"basic structure" of the Constitution could not be changed.
The Keshavanand judgement is voluminous. The basic and
unalterable features identified by the apex court can be listed
as follows.
* Supremacy of the Constitution
* Rule of law
* The sovereign, democratic and republican structure of India
* Judicial review 0 Unity and integrity of the nation
* Federalism
* Secularism and
* Free and fair elections.
This "basic structure" doctrine propounded by the Supreme Court
in the Keshavanand Bharati case has been a major bulwark against
attempts to defile and distort the Constitution.
When, during the Emergency, the government of the day introduced
the 44th Amendment Bill, 1976 (this later became the 42nd
Amendment Act), I, then one of the hundreds of political
prisoners, had occasion to prepare a pamphlet for the anti-
Emergency underground movement with the caption "Not an
Amendment, it's a New Constitution". Summing up this 20-page
tract which analysed the 42nd Amendment, I wrote: "It is quite
clear then that the Constitution (44th Amendment) Bill, 1976,
offers to the country not a new amendment, but a new
constitution. The balanced democratic Constitution we have had
till now is to be replaced by an executive, authoritarian set-up.
That Parliament and the courts will still continue is neither
here nor there.
When in 1933, Adolf Hitler made the German Reichstag pass the
Enabling Act transferring its legislative authority to Hitler's
cabinet, one of the clauses of the act ironically read: "No law
shall be enacted that affects the position of the Reichstag." Let
the Indian Parliament, if it may, indulge in similar delusions
about its own position: the people can have no such illusions. If
Parliament does pass this Bill, the Constitution which they, the
people of India. gave unto themselves on 26, January 1950, would
have been buried fathoms deep. A new Constitution will usurp its
place."
That, indeed, was an attempt to subvert the Ambedkar
Constitution. When, after the Emergency, the Janata government
came to power, the 44th Amendment was enacted and the distortions
made were substantially undone.
That the Congress fully participated in this task of effacing the
42nd Amendment was in itself evidence that they realized and
admitted that what had been done during the Emergency was wrong.
We in the BJP-led alliance believe that the problems which this
country faces today poverty, unemployment, illiteracy, poor
health, under-development - cannot be attributed to the
Constitution. Dr Rajendra Prasad as chairman of the Constituent
Assembly had rightly observed:
"If the people who are elected are capable, and men of character
and integrity, they would be able to make the best even of a
defective Constitution. If they are lacking in these, the
Constitution cannot help the country. After all, the
Constitution, like a machine, is a lifeless thing. It acquires
life because of the men who control it and operate it and India
needs today nothing more than a set of honest men who will have
the interest of the country before them."
But this should not mean that we should not learn from
experience. As Pandit Nehru observed in the Constituent
Assembly, hile we want this Constitution to be as solid and
permanent as we can make it, there is no permanence in
Constitutions. There should be a certain flexibility. If you make
anything rigid and permanent, you stop the nation's growth, the
growth of a living vital organic people (emphasis mine).
On 15 August this year the country will be completing 51 years of
Independence. In these five decades, while no one has questioned
the wisdom of India having accepted democracy, or republicanism,
or federalism, or secularism, at various points of time, several
other pertinent questions have been raised, and by very eminent
thinkers, whose patriotism and concern for national interest and
the people's welfare is unquestionable. Some of these questions
are: - Should the Indian political system be as centralized as it
is now, or should a process of decentralization be consciously
undertaken so that much greater power and resources become
devolved on the states and local self-government bodies than the
Constitution conceives at present?
While opting for democracy, India's Constitution-makers chose the
parliamentary system of governance and not the presidential
system. It is universally acknowledged that both systems have
their respective pluses and minuses. The question often posed is
this: "At the present stage of India's development, which of
these systems would serve us better? Should the country review
the choice made by our Constitution-makers?"
I may mention here that while the Supreme Court identified
democracy, free and fair elections as "a basic feature", the
basic structure doctrine does not bind us to parliamentary
democracy.
While adopting Part XV of the Constitution relating to elections,
the Constituent Assembly had in mind the first-past-the-post
system of elections prevalent in the United Kingdom. Most
democracies of Europe have their legislatures elected by the list
system. Some like Germany have accepted a mixed system. Should
India, too, after the experience of 12 general elections, have a
second look at its electoral system?
I have cited three questions above which could be considered in
depth by the proposed commission. These do cover a wide yield,
but essentially they are illustrative, not exhaustive. And as
anyone can see, even if the country agrees to make far-reaching
changes in the areas touched by these questions, the basic
structure of the Constitution will remain unaltered.
In conclusion, let me say that the debate on the need for a
comprehensive review of the Constitution demands more light than
heat. As for the heat sought to be generated by those who are
experiencing the chill of popular rejection in recent elections,
their motivated attempts to mislead the people. with lies and
fibs will certainly come to naught.
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