An exercise to watch

Print edition : March 04, 2000

The composition of the National Commission to Review the Working of the Constitution leaves questions about the National Democratic Alliance Government's agenda on this front.

THE much-awaited "academic" review of the working of the Constitution by an 11-member high-profile commission will begin shortly. A seemingly harmless exercise, the review has become controversial ever since the Government announced the composition of th e Commission.

Justice M.N. Venkatachaliah, who heads the National Commission to Review the Working of the Constitution.-T.L. PRABHAKAR

The members of the Commission, headed by former Chief Justice of India M.N. Venkatachaliah, are Law Commission chairman B.P. Jeevan Reddy, Attorney-General Soli Sorabjee, former Supreme Court Judge who headed a Commission on Centre-State relations R.S. S arkaria, former Attorney -General K. Parasaran, former Speaker of the Lok Sabha P.A. Sangma, former Andhra Pradesh High Court Judge Kondapalli Punniah, former Secretary-General of the Lok Sabha Subhash Kashyap, Editor-in-Chief of The Statesman C. R.Irani, former Ambassador to the United States Abid Hussain, and Mahatma Gandhi's grand-daughter and former member of Parliament Sumitra Kulkarni.

The name of the Law Secretary of the Legislative Department, Raghubir Singh, is being considered for appointment as the Secretary of the Commission. The Secretary will look after the administrative work of the Commission. There will be no member-secretar y, as announced earlier.

Described in official circles widely as Union Home Minister L.K. Advani's "baby" (as it was he who conceived the idea and nurtured it after the NDA formed the Government at the Centre), the Commission took some time to start functioning as its powers and funding were yet to be defined. The Finance Ministry studied the financial implications and apparently approved an annual expenditure of Rs.1 crore towards members' salaries and allowances, besides administrative expenses. The Home Ministry apparently v etted the proposed powers and functions of the Commission before the Law Ministry issued a formal notification setting it up.

It appears that when President K.R. Narayanan cautioned the government against "revising" the Constitution, or the parliamentary form of government, it was Advani who prevailed on the Prime Minister to issue the necessary clarification, after a Cabinet m eeting, that the proposed review would be within the framework of parliamentary form of government and that the basic features of the Constitution would be out of its purview.

Advani is credited with the argument that the landmark judgment in the Keshavanand Bharati case in 1973 did not mention parliamentary form of government as a feature of the basic democratic structure of the Constitution and that the consideration of the presidential system would be perfectly in order even in the light of the Keshavanand Bharati judgment. It is true that the judgment did not specifically mention parliamentary form of government. (It had listed six features as the basic elements of the co nstitutional structure that no amendment could alter.) Advani, however, had conveniently ignored the other aspect of the judgment, which clearly said that these basic features were only "illustrative", meaning that the list was not exhaustive.

Thus, the government's announcement that the review would take place within the framework of parliamentary form of government is intended to allay any misgivings that Advani's close association with the review project could have created. Ironically, how ever, the clarification has repudiated the Prime Minister's own formulation that the review was necessary to impart "stability" to the system. Observers suggest that parliamentary form of government would necessarily rule out any fixed term for the Lower House, to which the government would be accountable. This could restrict the Commission from considering "proposals to ensure a stable government at the Centre".

However, the joint-general secretary of the Rashtriya Swayamsevak Sangh (RSS), K.S.Sudarshan, has made it clear in a media interview that the Commission will examine how far Westminster type of parliamentary democracy has been beneficial to India and whe ther it needs any change. The RSS attempt to distinguish between the Indian and Westminster types of parliamentary democracy is significant and it sounds ominous, when seen in the context of the attack on President K.R. Narayanan by the RSS' mouthpiece, Organiser, for expressing his disagreement with the government on the question of reviewing the Constitution.

Whatever the scope of the Commission's powers and specific terms of reference, it is clear that the government has failed to ensure political consensus while carrying out one of the crucial electoral promises of the ruling coalition. The government sough t to invest its move with some amount of credibility by choosing Venkatachaliah, who had held the offices of the CJI and the Chairman of National Human Rights Commission, for the chairmanship of the Review Commission. However, the move failed to carry po litical conviction. Although Venkatachaliah has no pronounced political leanings, some of his judgments as the CJI, particularly on the Babri Masjid demolition case, were not quite encouraging for secularists. He let the then Chief Minister of Uttar Prad esh, Kalyan Singh, who was an accused in the demolition case, escape with a token punishment as conviction for contempt of court (for violation of the Supreme Court order of November 25, 1991 and the Allahabad High Court order of July 15, 1992) a day bef ore he retired as the CJI in October 1994.

Jeevan Reddy, who headed a seven-member Bench of the Supreme Court, which included Venkatachaliah, had given the historic judgment that all reservations put together in educational institutions should not exceed 50 per cent of the total seats. This has c onsiderably angered the social justice groups which have been clamouring for a constitutional amendment to remove this cap. The Bench had also ruled against reservations for Scheduled Castes and Tribes in promotions, and debarred the "creamy layer" among the Other Backward Castes (OBCs) from enjoying the fruits of reservations. The champions of Dalits and OBCs have been opposing this judgment as being discriminatory.

Among the other legal luminaries, who are to be part of the panel, the 85-year-old Sarkaria is unhappy that his landmark report on Centre-States relations is still gathering dust in North Block. Initially reluctant to join the Commission, Sarkaria was ap parently persuaded to accept the government's invitation by the Prime Minister and the Attorney-General.

Another stalwart in the Commission, K. Parasaran, also belongs to a bygone era, having served as Attorney-General during Rajiv Gandhi's rule. The only Dalit member, Kondapalli Punniah, was apparently included at the instance of the Telugu Desam Party, a principal ally of the ruling NDA. Punniah's daughter, Pratibha Bharati, is the Speaker of the Andhra Pradesh Assembly.

Subhash C. Kashyap, another member, is known for his prolific writings on constitutional issues. Kashyap has been defending the need for a review of the Constitution, apart from supporting the BJP's stand on many issues, such as plugging the loopholes in the Anti-Defection Act, introducing the German system of seeking a constructive vote of no-confidence in the government in the Lower House of the legislature, and the need to ban persons of foreign origin from occupying high constitutional posts.

The outspoken journalist, C.R.Irani, who is known for his "Caveat" columns on the front page of The Statesman and for his crusade against corruption in high places, is a surprise inclusion in that he had often sought to expose scandals in the Vajp ayee Government as well. However, he had also been taking a consistent stand against Sonia Gandhi's bid for Prime Ministership.

The most controversial member of the Commission is, of course, Sangma. He is the only active politician on the panel. Samgma's inclusion surprised even his party, the Nationalist Congress Party (NCP). Some NCP leaders opposed his joining the Commission, which, they said, was pursuing a hidden agenda. NCP leader Sharad Pawar who met Sangma, however, endorsed Sangma's decision later, as he could keep a check on the Commission's agenda. Although Sangma was ostensibly included for his non-partisan role as S peaker of the Lok Sabha and his northeastern origins, the Congress(I) alleged that the government wanted him on the panel for his pro-RSS stand on many issues as also his anti-Sonia Gandhi utterances. Sangma has averred that he would bring in the issue o f banning persons of foreign origin from occupying high constitutional posts such as President and Prime Minister.

The inclusion of the former bureaucrat and Ambassador, Abid Hussain, who is closely associated with the Rajiv Gandhi Foundation and Sonia Gandhi, in the Commission is the only indication of the government's balancing exercise. The only woman member, Sumi tra Kulkarni, had earlier backed Vajpayee's claim to be invited to form the Government when the 1998 Lok Sabha elections had produced a hung Parliament. Kulkarni's inclusion was also favoured by the RSS, which evidently hopes that it would help lessen th e stigma of having associated itself with the killers of Mahatma Gandhi.

The "National Commission to Review the Working of the Constitution" was formally set up with the issuance of a notification by the Centre on February 22. Under the terms of the notification, it has been made clear that the Commission will review the work ing of the Constitution, that is, the way it is enforced, rather than the specific constitutional provisions. The semantics over the name of the Commission is perhaps intended to allay any misgivings that might have been caused by the government's initia l announcement and the President's reservations against attempts to revise the Constitution.

The President's address on February 23 to the joint session of Parliament, usually an expression of the policy statement of the government, but vetted by him, makes the point succinctly: Complimenting the Constitution by stating that it has "served us we ll", he said it had been a reliable guarantor of parliamentary democracy, secularism and fundamental rights which all of us cherish. The Constitution has also inspired the spread of democratic consciousness in our society, empowering Dalits, Adivasis, ba ckward classes and women, making our system of governance more participative and progressive, he said.

The President, however, justified the review as it has become necessary to examine the experience of the past 50 years while keeping the Constitution's basic structure inviolate. The intention of the government's decision, he clarified, was to "better ac hieve the ideals enshrined in the Constitution". He made it clear that the recommendations of the Commission would be placed before Parliament, which is "the supreme decision-making body in Indian democracy".

The notification entrusts the Commission with due powers to decide its own procedure. It could hear all persons, and entertain representations and communications, which in the opinion of the Commission shall facilitate its work and final recommendations.

Although the Commission's term is only one year, sources in the Law Ministry said that it could last for two years, considering the enormous scope of the terms of reference, which were yet to be finalised.

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