A controversial review

Prime Minister A.B. Vajpayee has stated that the proposed review is not meant to tinker with the basic features of the Constitution, but doubts persist in the wake of opinions aired by other BJP leaders.

EVEN as the echoes of the conflicting perceptions of President K.R. Narayanan and Prime Minister Atal Behari Vajpayee on the need for a "review" of the Constitution rang out, the Bharatiya Janata Party-led government announced on February 1 the formation of a National Commission to review the working of the Constitution. The Union Cabinet went a step further by resolving the same day to frame the terms of reference of the commission.

Taking its cue from the President's warning against any tinkering with the parliamentary system, the Government made it clear that the commission would function within the framework of parliamentary democracy. Parliamentary Affairs Minister Pramod Mahaja n outlined its terms of reference as follows: "To examine in the light of the experience of the past 50 years as to how best the Constitution can respond to the changing needs of an efficient, smooth and effective system of governance and socio-economic development of a modern India within the framework of the parliamentary democracy, and to recommend changes, if any, that are required, in the Constitution without interfering with its basic structure or features."

These terms of reference marked an improvement over indications given earlier by Union Law Minister Ram Jethmalani. Jethmalani had claimed that the commission would be free to consider proposals for a presidential system, even though the Government was c ommitted to defending the basic structure of the Constitution as enunciated by the Supreme Court in the Keshavananda Bharati case. The parliamentary system form of government is an essential component of the basic structure doctrine, the other fea tures being an independent judiciary, separation of powers among the executive, the legislature and the judiciary, and vital concerns such as secularism and fundamental rights.

Although the Prime Minister promised that the proposed review was not meant to tinker with the basic features, doubts persisted in the wake of other BJP leaders airing their opinion. Union Home Minister L.K. Advani, for instance, suggested that the presi dential system would better suit India, which has been plagued by political instability in recent years. Sections of the Sangh Parivar, particularly the Rashtriya Swayamsewak Sangh and the Vishwa Hindu Parishad, called for changes in the Constitution to make it more representative of the Indian ethos, though they have refrained from making any specific demands so far.

In order to strengthen its alliance with its partners in the National Democratic Alliance, the BJP has agreed to shelve its three major demands, namely, abrogation of Article 370 which confers special status on Jammu and Kashmir, enactment of a uniform c ivil code, and the building of a Ram mandir at the site of the Babri Masjid in Ayodhya. The BJP adopted the National Agenda for Governance in lieu of its own manifesto on the eve of the Lok Sabha elections, but there is renewed fear that these contentiou s issues will be revived under the guise of a review of the Constitution.

Although the BJP no longer advocates the abrogation of Article 370, senior vice-president Jana Krishnamurthy expressed the hope that the Article would become a "dead letter" as a result of the way in which the NDA Government was dealing with the Kashmir issue. He reiterated the BJP's "belief" that no State, including Jammu and Kashmir, should be given any special privilege. It is unlikely that its coalition partners will place any restriction on the BJP expressing its views on this issue and its other p et themes such as uniform civil code and secularism. Jethmalani has said that there is a need to look at the Supreme Court's Bommai judgment which justified the dismissal of the BJP Governments in Madhya Pradesh, Himachal Pradesh and Rajasthan on the grounds of threat to secularism, following the demolition of Babri Masjid. Besides, the issue of barring persons of foreign origin from occupying high constitutional posts is also expected to come up before the commission.

Although former President R. Venkataraman was widely tipped to head the commission, the Government hesitated on choosing him because of reservations expressed in some quarters. It is known that Venkataraman favours the presidential system. The Dravida Mu nnetra Kazhagam (DMK), an ally of the BJP, opposed Venkataraman's choice for its own reason: it is displeased with the former President for his role in the dismissal of the DMK Government in Tamil Nadu in 1991. Another BJP ally, the Telugu Desam Party, q uestioned the propriety of establishing such a commission without consulting all political parties.

These objections put Vajpayee, and Advani, who had apparently extended an invitation to Venkataraman, in an embarrassing position; they even considered putting off the entire exercise for the time being. However, they veered round to the view that the co mmission could be formed with apolitical persons, especially jurists are known for their neutrality and integrity.

That is how the Government approached Justice M.N. Venkatachaliah, former Chairperson of the National Human Rights Commission and former Chief Justice of India with the request to head the commission. Lest it should be construed as just a post-retirement job for persons who served on the Bench, Venkatachaliah made it clear to the Government that he would accept the post in his own terms. His conditions included the acceptance of the inviolability of the basic structure doctrine, including the parliament ary system, and the choice of other members of the commission, after his due concurrence.

Venkatachaliah then agreed to head the commission, which, besides the Chairman, will have a member-secretary and not more than nine members, who would be eminent persons from different spheres and would include persons from the underprivileged sections. The commission is expected to complete its work within a year, and its recommendations would be placed before Parliament.

POLITICAL reaction to the formation of the commission hinged on what the Government proposed to review. Broadly, however, the Congress(I), which had formed a similar commission under Swaran Singh during the Emergency, presented a picture of confusion. Th e Swaran Singh Committee had recommended the inclusion of terms such as "socialism" and "secularism" in the Preamble to the Constitution, and this was implemented as the Congress(I) had a clear majority in both Houses of Parliament.

While the Congress(I) opposed the "review", it urged the Government to hold talks with all political parties on the commission's proposed terms of reference. The party also said that it would back any amendment in the interests of the socially and econom ically backward sections. The party urged a clear definition of the basic features of the Constitution.

The Polit Bureau of the Communist Party of India (Marxist) remarked that "an executive decision will have no legitimacy, as only Parliament is competent to undertake such a review". The CPI(M) made a distinction between specific amendments by Parliament and a roving review, which it said was unwarranted. The CPI demanded that the move be put off and Parliament be taken into confidence. The party's Central Secretariat alleged that the objective of the BJP-led government clearly was to tamper with the Con stitution and create an atmosphere of doubt about its republican character.

Former Prime Minister V.P. Singh, while referring to Vajpayee's view that even the strongest fort needed repairs, said that "in the name of repairs, there should be no rebuilding. Sometimes, tenants go for rebuilding in the name of repairs." He said tha t it was wrong to link political instability to provisions of the Constitution. "Inequity is the root cause of instability", he argued.

Another former Prime Minister, I.K. Gujral, warned against vague and free-fishing attempts to review the Constitution. He called for more urgent legislative measures, such as electoral reforms.

Considering that the Government is going ahead with the setting up of the commission despite the lack of political consensus on its terms of reference and composition of the commission, it may be heading for trouble when Parliament convenes for the Budge t session.