More ideas for debate

The second set of consultation papers released recently by the National Commission to Review the Working of the Constitution contains some radical ideas.

THE National Commission to Review the Working of the Constitution (NCRWC) is allergic to being called a Constitution Review Commission, though people in general tend to refer to it so. The subtle distinction between reviewing the Constitution and reviewing its working is sought to be made out in order to answer the criticism that only Parliament is competent to "review" the Constitution through its power to make amendments, and the Commission, which lacks legislative sanction, cannot legitimately carry out that exercise. The emphasis on reviewing how the Constitution works also stemmed from the general perception that the Commission was set up in order to review the "basic features" of the Constitution, held by the Supreme Court as being sacrosanct and beyond even Parliament's amending powers.

Such a subtle distinction became unsustainable when the Commission released in January a set of consultation papers and questionnaires that contained some controversial suggestions. (Frontline, February 2, 2001). The response to the ideas generated by those consultation papers were generally hostile. They even invited sharp criticism from President K.R. Narayanan, who in the course of his Republic Day-eve address to the nation cautioned against invoking in the name of Mahatma Gandhi "the shades of the political ideas of Field Marshal Ayub Khan, the father of military rule in Pakistan" (Frontline, February 16.) In that set of papers the Commission had circulated the proposal for indirect elections to State Assemblies and Parliament and called it a Gandhian idea.

Constituted on February 22, 2000, the NCRWC's term was initially one year, but was extended to October 31, 2001. The Commission's second set of four consultation papers, released on May 11, contain many radical ideas, perhaps intended to refurbish its image. While analysing these ideas, it has to be borne in mind that these are not the Commission's proposals and that the Commission is free to reject or modify them in its final recommendations to the government. Therefore it would be naive to infer that some of these proposals are intended to frustrate the National Democratic Alliance (NDA) government's hidden agenda in constituting the Commission. While it could be certainly suggested that shades of the Sangh Parivar's ideology are evident in the first set of consultation papers, whether the Parivar has managed to push its agenda through the Commission or not can be answered only when the Commission makes its final recommendations.

The paper on "enlargement of fundamental rights", prepared by Soli Sorabjee, Attorney-General and member in charge of the subject, makes several far-reaching suggestions. One of them is the expansion of Articles 15 and 16 of the Constitution. Article 15 deals with the prohibition of discrimination on grounds of religion, race, caste, sex or place of birth, while Article 16 provides equality of opportunity in matters of public employment, by stating that no citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or, any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.

The paper proposes to include ethnic or social origin, colour, age, language, political or other opinion, property and birth among the prohibited heads of discrimination in Articles 15 and 16. In order to give it wide operation, the paper proposes that discrimination should include any distinction, exclusion, restriction or preference based on the above categories, which has the purpose or effect of nullifying or impairing the enjoyment or exercise on an equal footing of rights, benefits and entitlements in the political, economic, social, cultural or any other field of public life.

The paper draws these additional categories from the Constitution of the Republic of South Africa 1996 (Section 9(3)) and from the International Covenant on Civil and Political Rights 1966, (ICCPR (Article 26), which India has ratified.

No doubt, the inclusive and pluralistic character of the proposed enlargement of the prohibited heads of discrimination is at variance with the exclusivist and sectarian agenda of the Hindutva combine. But it will be premature to believe that the proposed inclusion of "ethnic or social origin, and birth" among the prohibited heads of discrimination would make it difficult for the NDA government to pursue the promise made in the National Agenda of Governance, that is, to enact legislation to provide an eligibility criterion that the high offices of state - legislative, executive and judicial - are held only by naturally born Indian citizens.

If the Commission's intention was to thwart any such move by the Centre, it could have easily borrowed Article 26 of the ICCPR in its entirety. The ICCPR provision calls for legal prohibition of any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. The omission of "national or social origin" in the paper's proposal is significant.

Former Speaker of the Lok Sabha and one of the members of the Commission, P.A. Sangma, who quit the Congress(I) protesting against Sonia Gandhi staking her claim to the prime ministership, had submitted to the chairperson a proposal to restrict high constitutional posts to natural-born citizens. Sangma, who was away in Assam for election campaign, pleaded ignorance of the new set of consultation papers and said he was not aware of the fate of his own proposal.

One of the consultation papers proposes the incorporation of certain judicially deduced fundamental rights in Part III of the Constitution in order to consolidate and impart finality to the beneficial interpretation of the highest court in the land. These include freedom of the Press, freedom of information, prohibition of torture and cruel, inhuman or degrading treatment or punishment, the right to travel abroad and return to one's country, the right to remedy for violation of Article 21 (Protection of Life and Personal liberty), the right to privacy, the right to free elementary education up to the age of 14, right to a clean and healthy environment, and the right to have access to courts and legal aid.

On the face of it, there could be little dispute about these additions to Part III. However, if as judicially deduced rights these rights have not been enforceable, would a mere mention in Part III make them sacrosanct? The paper has proposed that where the deprivation of property takes place because of acquisition of agricultural and homestead lands, the persons so deprived of their lands, if they belong to the weaker sections, shall be provided with quality lands at least equal to the lands they previously occupied or otherwise adequately rehabilitated.

Although this is significant in the context of the agitation by the Narmada Bachao Andolan for proper resettlement and rehabilitation measures for the project-affected persons, it offers little hope to those project-affected families who feel cheated by the Supreme Court judgment on the Sardar Sarovar dam, which in their perception ignored the recognised norms for rehabilitation and resettlement. The Commission could as well elaborate this proposal and indicate whether it is unhappy with the Supreme Court judgment.

The Commission also released consultation papers on the institution of Governor and Article 356 of the Constitution, on which various ideas have been expressed from time to time, depending on the issues thrown by certain political events. The paper suggests that Governors be chosen by a broad-based selection panel that shall include the Prime Minister, the Home Minister, the Speaker of the Lok Sabha and the Chief Minister of the State concerned. Its suggestion that Governors could be impeached by the State legislature misses the point that unlike the President, who is indirectly elected, Governors are appointed by the President on the advice of the Union Cabinet. Hence empowering State legislatures to remove recalcitrant Governors would introduce fresh tensions in the federal relations. On Article 356, the Commission suggests a few safeguards to prevent its misuse.

The fourth consultation paper on the pace of socio-economic change under the Constitution reviews the nation's progress during the last 50 years in various areas, and highlights important factors that constrained the pace of progress. This paper has very little to contribute in terms of proposed amendments to the Constitution but would be of interest to those wanting to know the problems in implementing the Directive Principles of State Policy.