For amendment, not overhaul

Print edition : September 01, 2001

Of Indian constitutional reforms. Why now? What are the objectives of and objections to the exercise? By whom are the reforms to be implemented?

WE often refer to U.S. Supreme Court Chief Justice John Marshall's great observation when discussion turns to the Constitution and its interpretation. He said: "But a constitution is framed for ages to come, and is designed to approach immortality as nearly as human constitutions can approach it. Its course cannot always be tranquil and, consequently, to be adapted to, the various crises of human affairs." So we, in India, solemnly revere our Constitution with his cautionary diction: "We must never forget that it is a constitution we are expounding."

These awesome ideas apart, a Constitution is neither immortal nor inalterable. Change is the rule of life and so it is that Chief Justice Marshall, in the same case, observed: "The people made the Constitution, and the people can unmake it. It is the creature of their own will, and lives only by their will." Did not Oliver Wendell Holmes rule wisely: "But the provisions of the Constitution are not mathematical formulas having their essence in their form; they are organic living institutions transplanted from English soil. Their significance is vital not formal; it is to be gathered not simply by taking the words and a dictionary, but by considering their origin and the line of their growth."

To my mind, the progressive amendments needed by contemporary environs are surely permissible, but not overhauls wholesale. A mutation which will be an incarnation with a new identity and ideology, a radical transformation with a different personality altogether - that is an invasion of the nation's very foundational values inscribed in its Constitution, a treachery, a witchery, a casuistry with a collective haberdasher performing functionally as a reform commission. That is the bete noire for any jurist with commitment to the cornerstone of the nation.

Our founding fathers had a glorious vision of the Constitution. Conditioned by the Westminster operations and Washington D.C. interpretations, they did fashion a constitutional head and included a Bill of Rights, absent in Britain, but which illumined the Constitution of the United States. Eclectic borrowings like from the Irish had, in some measure, influenced our framers, and so we had a versatile instrument producing, on the whole, one of the finest jural creations congenial to the Indian ethos.

So great has been the final shape, so long has been the noetic exchanges and so diverse the discussions, that one could proudly claim that the Constitution of India has been reflective of the heritage, ethos and realities of a nation with so much complexity, cultural vintage, religious pluralism and regional divergences that every Indian can feel a sense of pride in this supreme expression of the will of the people. Conceding infirmities and deficiencies and colonial survivals still haunting the otherwise politico-legal wonder, the governance of India, is in law and generally in principle, a federal democracy with a crimson hue.

AMENDMENTS have been made on several occasions, changes have been wrought and dictated by different pressures, but the basic structure has remained inviolable. The new millennium moves on and the judicial institutions also must move forward lest they lag behind as endangered species. Never forget that there are diamond-hard features too basic to be bent or broken. They constitute the great identity of the Constitution and must remain until a revolution scuttles the ship. U.S. Chief Justice Earl Warren did strike the right note when he said: "Our courts must advance with the times. They must adjust to the setting in which they function. They must fashion new tools to repair the dislocations of a changing, burgeoning and increasingly complicated social order. The techniques of a more leisurely past are not adequate to the future or even to the present."

A Constitution Reform Commission has been appointed by the Cabinet of A.D. 2000 vintage. Whatever the verbal claims made by the government or luminous explanations offered by the Chairman of the Commission, the humble fact remains that the collective of 10 members confabulating to reform the Constitution have no paramount roots any more than a mere executive fiat. So stupendous a task, so nationally vast a function as a review of the Constitution, so challenging an adventure as affects an extraordinary instrument completed by long years of labour by great minds and conflicting interests could be entrusted to just 10 citizens, some of whom have had large judicial experience and others who have distinguished themselves in their limited walks of life is a myopic perspective of the grand mission and its epic prospect where supreme statesmanship, historic vision and leading participation in people's struggles is a sine qua non. It is narrow noetic grasp of the great project to commit a Himalayan operation to a bunch of bright judicial, legal, political and other professionals, however prodigious their attainments may be. The inadequate credentials of the Commission, whose talents may be tall, to fulfil a macro-revolutionary office of such Olympian magnitude as is implied in an overhaul of the Constitution must never be overlooked. The ipse dixits of a few dozen versatile wonders are a good exercise, not more.

The Commission must realise its grave limitations sans even a parliamentary authorisation. The country must be on its guard against egregious blunders and xenophilic temptations under the guise of reform wonders. This caveat should not be misunderstood as diminishing the worth of the noble individuals who constitute the Commission. I know many of them, sterling souls, vibrant, progressive and valiant talents, patriotically passionate in their human rights commitments. But any 'Westoxicated' globalisation and obliteration of our humanist values, fabian goals or secular democracy, bigoted banishment of the cherished writ into the existing Constitution shall not be attempted since such a crypto-imperial cunning, misguided by the triune treachery of 'globalisation, liberalisation and privatisation', in their Orwellian newspeak, implies fathomless reversals of our fundamentals. To reform is not to ruin; to revise is not to wreck. The present Commission is too great to be so goofy, too seasoned in wisdom to be tripped or trapped or toppled.

Having said this, I must make my position clear. I have been a critic of this Commission process by a political cabal or Cabinet conglomerate. My chairpersonship of the Fundamental Rights Committee set up by the Commission may be treated as dubiety or duplicity. My confutation continues vis-a-vis the creation of the Commission, without even a parliamentary resolution. But, without jettison of my dissent, I regard my act right. Why? I am not for untouchability of the Constitution or the Commission. The people entrusted with the job are not a motley crowd, or a tessellated collective, a black stone here and a white stone there, in which each member or each group is a law unto himself and the final edifice a colonial construct with a yankee yen. That potential of manipulated subversion can be reduced by the Commission's composition being sensibly and sensitively chosen so that they are aware of what they are expected to do and too good to use the opportunity to operate a coup on the glorious Constitution we already have.

A reform, as expressed in the constitutional context, must be taken with its semantic limitation. At the same time, it is not fair to argue that the old order should remain unchanged for ever, even if it is the Constitution of the country.

Dr. B.R. Ambedkar asserted in the Constituent Assembly: "Jefferson, the great American statesman, who played so great a part in the making of the American Constitution, has expressed some very weighty views which makers of constitutions can never afford to ignore. In one place, he has said: '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.' In another place, he has said: '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 a 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'."

TO sum up, reformatory exercises without violation of the basic structure of the organic document which governs the nation are occasionally permissible, rationally flexible and realistically necessary. At the same time, constant vigilance unlimited is imperative to ensure that we need avant garde watchdogs within, so that a congruent Commission may not scuttle the concerns for the plebeian and placate the creamy layer, slur over social justice which is the locomotive of a better future inscribed in and blazoning the original tryst with destiny when India became free.

The attitude of those in power, without exception of any party, appears to be: dogs may bark but the caravan will pass. It is far better, if your intention is clear in preventing dangerous amendments and promoting urgently necessary changes like for example the requirement of ratification of international treaties by Parliament, that you should work against any hidden agenda, pushed by globally strong multinational corporations (MNCs) with vested interests contrary to our national interests. An insider with people-oriented passion is in a better position to accomplish progressive changes and inhibit harmful mutations with grave implications.

Justice M.N. Venkatachaliah, the Chairman of the Commission, commanded my presence to chair an important Committee in flattering phrases and ringing sincerity:

"An important area of inquiry is as to the extent to which the Fundamental Rights in Part-III of the Constitution have been realised over the 50 years of working of the Constitution and whether these constitutional pledges have been redeemed. The examination involves, inter alia, inquiry into the related question as to the need to expand the amplitude and content of the Rights in the light of judicial pronouncements and of the expanding horizons of International Human Rights norms. The issues whether Freedom of the Press (which is now held to be implicit in or an emanation of the Freedom of Speech) needs a distinct identity and whether Right to education, Right to information, etc., need to be expressly provided. These are just illustrative of the scope of the inquiry.

"The Commission is of the view - and I share it fully - that the benefit of the advice and guidance from men of your eminence, learning, experience and public stature would be of particular value to the Commission in its work. Posterity will gratefully remember your contribution in rendering the constitutional document more meaningful in their lives."

How could I say no to such a fervent appeal with the assurance that the proceedings would be transparent, scientific and professional beyond political or economic clout or compulsion. So I agreed, aware of my grave limitations and the Promethean undertaking.

The Constituent Assembly of India first met on December 9, 1946 and continued till January 24, 1950. The Constitution of India was finally adopted on November 26, 1949 and signed by the Members of the Assembly on January 24, 1950. Thereafter, the Constituent Assembly, having accomplished the task of framing the Constitution assigned to it, adjourned sine die and became functus officio.

This majestic charter is the grand odyssey we call the Constitution, the product of turbulent debates, tidal waves of conflicting voices, logomachic battles and constructive conclusions. Dr. Ambedkar, the chairman of the drafting committee and outstanding spokesman who blitzed through the controversies with superb statesmanship and was unfazed by thunder and lightning in the House where illustrious jurists and tall statesmen contributed with passion and patriotism, poured erudition and experience and rose above political pettifogging. Dr. Ambedkar made what is unquestionably a luminous proposition: "The Constitution is a fundamental document. It is a document which defines the position and power of the three organs of the state - the executive, the judiciary and the legislature. It also defines the powers of the executive and the powers of the legislature as against the citizens, as we have done in our chapter dealing with Fundamental Rights. In fact, the purpose of a Constitution is not merely to create the organs of the state but to limit their authority, because, if no limitation was imposed upon the authority of the organs, there will be complete tyranny and complete oppression. The legislature may be free to frame any law; the executive may be free to give any interpretation of the law. It would result in utter chaos." This is a caveat to the present Commission.

Many of the amendments were necessitated by judicial aberrations of authoritarians on the bench, elderly 'lordships' 'elevated' with alien attire - not radical jurisprudents nor human rights battlers but upholders of the Emergency and the Terrorist and Disruptive Activities (Prevention) Act (TADA) and allergic to bank nationalisation, agrarian reforms and the abolition of privy purses. Reform you may, transform the social order you must, but everything we do must bear true faith and allegiance to the dawn and the destiny.

The foremost restraint is to forbid violation of the basic structure of the Constitution. Invigilation, pragmatic and perennial, is the price of liberty and the Commission and the committees thereunder must have a patriotic verve and role, never retreating from the call of swaraj and ever reinforcing the national mansion's human rights foundation.

INDIA belongs to "We, the People" but who are the 'the people' and who the 'unpeople' who do not matter, have no worth and are not 'persons'? This gravely meaningful interrogation has a decisive bearing on the Commission's challenging mission.

A true transformation in some key areas is an urgent desideratum. The enlargement of Fundamental Rights in tune with human rights jurisprudence sanctioned by the United Nations, without reservations, is a priority. The defence of our economic fortress against transnational corporate invasion, infiltration and intimidation needs new ramparts. International treaties must be subject to parliamentary ratification and approval of affected states. Corruption, now creeping ubiquitously, summons extensive and aggressive counter-attack. Rackets in the field of people's justice, docket delays, unconscionable fees and other venial vices demand constitutional concern. There is chaos even in the judicial cosmos and compassion has suffered forensic alienation. Appointments, transfers, promotions, good behaviour and other 'robed' delinquencies cry for a national judicial commission with cleansing and corrective authority. The grammar of justice, justices and justicing with remedies for maladies needs constitutional review if credibility is to be commanded and politicisation is to be jettisoned. It is apt to recall a New York Times report about the U.S. Supreme Court by a sitting judge of that court: "Justice John Paul Stevens said the Court's action 'can only lend credence to the most cynical appraisal of the work of judges throughout the land'. His dissenting opinion, also signed by Justices Breyer and Ruth Ginsburg, added: 'It is confidence in the men and women who administer the judicial system that is the true back-bone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today's decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year's presidential election, the identity of the loser is perfectly clear. It is the nation's confidence in the judge as an impartial guardian of the rule of law'." (Gore vs Bush)

Looney savagery by state and oppressive private agencies and mafia, linguistic and religious minorities under communally chauvinist attack, socio-economic subversion and the culture of torture are escalating. Dalits, indigenous people and other marginalised groups are in despair. Will the Constitution liquidate their consternation? So much so, we wonder whether the rule of law is a rope of sand and the right to die is the only egalite. Every thinking human, if he reflects over the current totalitarian trends, feels the plea for constitutional transformation necessitous. Will the Commission face the obligation unfazed or surrender to the proprietariat and suppress the proletariat? That is the historic challenge.

Change, even of the Constitution, may be compelled by experience because the founding fathers' vision is not infinite or infallible. There were divergent views in the Constituent Assembly as to converting some of the Directive Principles into Fundamental Rights. But, eventually, Part IV, although declared fundamental in the governance of the country, has remained non-justiciable. The courts have sometimes downgraded the values of Part IV. Speaking with a sense of profound sincerity, I hold the view that quite a few of the provisions in Part IV must be transferred to Part III and transform into Fundamental Rights.

Ecology and environment have gained great significance after the Stockholm and Rio summits. Every river, every urban land and rural field and air everywhere is polluted and pesticides and fertilizers and other poisons have made 'innocent' vegetables impossible to get. In fact, environmental jurisprudence has to receive the highest priority for national survival, even as tobacco has become a monster of cancer massacre. Unfortunately, Article 39(A) is in Part IV and Article 51(A) is a duty, not a right. The courts have struggled to invigorate environmental protection by enlarging the amplitude of Article 21 and hermaneutically making new semantic sense out of Article 51(A). These anfractuosities can be avoided by simplifying their introduction into Part III. I stand for this transmutation, call it reform or radical revision.

Constitutional statesmen, critical jurists, leading lights in all walks of life, the responsible media and the alert intelligentsia must watch out lest the influential operators of the World Bank and the International Monetary Fund and corporate intriguers rob the secularism and plant rabid communalism, download socialism and capitulate subterraneanly to capitalist ethos. Popular struggles and academic uprising are the sanction against such subversion, if experimented with. Beware.

To give up the basic structure of our sovereign Constitution, to break faith with our preambular pledge, on the specious alibi that the world has changed and we must run after the globomanic 'golden deer' mirage, betraying the last and the least Indian and his birth right of swaraj and embrace Videsh Raj is a crime the Reform Commission shall, I hope, resist. Dr. Ambedkar's last exhortation on November 25, 1949 rings with pain and pride. "We must be determined to defend our Independence with the last drop of our blood." Recolonisation and GATTastrophe are the requiem of free India. The Commission's mission, I plead, must be to recommend how to win back the reality of the 'do or die' demand in the name of the have-nots for whom the Constitution's bells toll.

V.R. Krishna Iyer is a former Judge of the Supreme Court.

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