A cautious exercise

The National Commission to Review the Working of the Constitution, which has submitted its report to the Central government, has taken care to steer clear of controversial issues.

WHEN the Union Ministry of Law, Justice and Company Affairs constituted through an executive resolution in February 2000 the 11-member National Commission to review the working of the Constitution, it invited intense opposition from both the political class and civil society, mainly for two reasons. First, it was pointed out that the Commission lacked the legitimacy to perform that exercise because it neither had Parliament's sanction nor had political consensus in its favour with regard to its terms of reference and composition. Secondly, it was believed that the move smacked of ulterior motives on the part of the Government; there was a fear that it sought to effect changes in the Constitution to serve its own interests. Some people feared, perhaps rightly in retrospect, that there could be attempts to tamper with secularism, one of the basic features of the Constitution, or even an overhaul rather than a review of the Constitution. President K.R. Narayanan echoed some of these fears when he said in the Central Hall of Parliament on the occasion of the celebration of 50 years of the Constitution on January 27, 2000: "Today, when there is so much talk about revising the Constitution or even writing a new Constitution, we have to consider whether it is the Constitution that has failed us or whether it is we who have failed the Constitution."

So, when the Commission submitted its report to Union Minister for Law and Justice Arun Jaitley on March 31 in New Delhi, some of these fears returned to haunt the nation. Three extensions had brought the term of the Commission to over two years, but as committee member Dr. Subhash C. Kashyap revealed, the actual time spent on the task was hardly three months. In his notes appended to the report he has claimed that only three meetings, held between November 2001 and January 2002, were devoted to any substantive discussion on the working of the Constitution. The Commission held a total of 16 meetings.

However, the significance of the Commission's work perhaps lies in two other factors: first, the amount of background work it did to collect material and obtain suggestions from the public and interested groups and, second, its efforts to steer clear of the controversies that its creation had generated. In the chapter "Basic Approach and Perspective" in the report, the Commission's chairperson, former Chief Justice of India Justice M.N. Venkatachaliah, seeks to allay the fears that the Commission's creation had engendered.

The Commission agrees that a Constitution, however lofty its exhortations and sentiments be, is not a self-executing document; it requires the aid of a human agency to implement its provisions. "The political traditions of the people and the spirit of constitutionalism are what make a Constitution work. Its essence is its practice," the Commission says. Justice Venkatachaliah has maintained his position that the Commission was intended only as an academic exercise, to suggest amendments to the Constitution and certain legal and executive measures meant to strengthen constitutional provisions. Making no claims to legitimacy at all, the Commission has left it to Parliament and the States to decide which of its 249 recommendations are implementable.

However, the Commission has defended its work from its critics mainly on the basis of the contribution it could make to educating the citizens. "Citizen demand, and only citizen demand, eventually overcomes the interests standing in opposition to change. Great economic, social and political pressure is required to overcome entrenched interests and citizen inertia," the report says. Although the Commission had made it clear that its task was not to rewrite the Constitution but to review its working, it notes that there have always been powerful forces at work to oppose any extensive constitutional revision because they might lose in power, prestige, economic position or legal status if a Constitution is substantially rewritten.

Of the 249 recommendations that the Commission has made, 58 involve amendments to the Constitution, 86 involve legislative measures and the rest involve executive action. Opinion could differ as to whether these recommendations constitute an attempt to rewrite the Constitution substantially or would only mean superficial changes.

Four members of the Commission, Justice B.P. Jeevan Reddy, Subhash Kashyap, C.R. Irani and Sumitra G. Kulkarni, have appended separate additional notes to the report. Justice Jeevan Reddy's note is one of dissent: he has said that there was no material before the Commission that justified a change in the existing constitutional scheme regarding the appointment of High Court and Supreme Court Judges. The Commission has recommended for this purpose the constitution of a National Judicial Commission (NJC) with the Chief Justice of India as its chairman, and two seniormost Judges of the Supreme Court, the Union Minister for Law and Justice, and one eminent person nominated by the President in consultation with the Chief Justice of India as members. Justice Jeevan Reddy said that although the majority of the members (six to four) had decided at the Commission's 15th meeting that no change was called for in the existing procedure, the issue was unnecessarily reopened at the 16th meeting, held in February 2002, when some members changed their opinion.

Kashyap, however, disapproved of the recommendation for such an NJC as that would amount to Judges selecting their own colleagues. He says that it would strike at the legitimate power of the executive and Parliament and disturb the delicate balance in the polity. Others, however, find the Commission's recommendation that an NJC committee consisting of the CJI and two seniormost Judges of the Supreme Court be empowered to examine complaints of deviant behaviour of all kinds against the Judges as an improvement over the current lack of any procedure to ensure judicial accountability.

Irani's note is seen as one that reveals a far more serious attempt to tamper with secularism. Irani claims that all members had agreed to delete a recommendation to extend Articles 29 and 30 of the Constitution to all religious and linguistic groups without any discrimination so that each could exercise the right to establish and administer educational institutions of its choice, but it reappeared in the draft summary of recommendations. (It does not, however, find a place in the final report.) While Article 29, guaranteeing cultural and educational rights, applies to both majority and minority communities, Article 30 deals only with the rights of minorities to establish and administer educational institutions.

Irani says in his note: "We had no opportunity to examine the whole of the revised final draft thoroughly because of time constraints. I cannot be sure if another incident of this nature has not disfigured our work in some other part." Irani objects to this mischievous recommendation because the Commission had committed itself to leaving existing rights inviolate and see whether it could enlarge and strengthen them. Kashyap, however, argues that this recommendation, even though it failed to make it to the report, does not adversely affect the existing rights of minorities.

Indeed, Kashyap's lengthy note - even though he chaired the drafting and editorial committee - amounts to questioning the exclusion of some recommendations, apparently because of lack of majority support within the Commission. Thus it appears that Kashyap's recommendation to deprive Parliament of its power to extend the reservation for the Scheduled Castes and the Scheduled Tribes did not find favour with other members. His plea was that Dr. B.R. Ambedkar, revered by all Dalits, would have liked the reservation system to stay for 40 years and not beyond. Ambedkar was opposed to reservations for the Scheduled Castes remaining in perpetuity and he did not like stigma attached to the Dalit class to be a permanent feature of Indian society, Kashyap writes.

Kashyap's other grievance is that the Commission rejected the recommendation to extend the right to vote by proxy to personnel of the armed forces (now they have the right to vote through postal ballot), without assigning any reason. Kashyap also finds fault with the Commission's recommendation to extend the fundamental right to education of children from six to 18 years in the case of girls and members of the S.C. and S.T. communities. The 93rd Constitution Amendment Bill, 2001, grants this right to children from six to 14 years universally. Kashyap wonders whether the actual cost of providing free and compulsory education to half of India's population up to 18 years of age had been worked out.

THE last chapter, on the pace of socio-economic change and development, is virtually a reiteration of some of the principles laid down at the Bhopal conference on Charting a New Course for Dalits in the 21st Century (Frontline, February 15, 2002), and this will be widely appreciated by those interested in the emancipation of Dalits. The recommendations made in this chapter include: preparing a Citizens' Charter that would enumerate the entitlements of deprived sections such as Dalits; setting up tribunals to adjudicate disputes pertaining to reservation; ensuring that reservation continues without change in public sector undertakings that have been privatised or in whose case disinvestment has been resorted to; ensuring reservations in the matter of allotment of shops under the public distribution system (PDS) and other allotments such as petrol stations, gas agencies and so on; and creating support mechanisms to help entrepreneurs from the deprived sections of society to set up business ventures.

However, such far-reaching recommendations have failed to enthuse Kashyap, who thinks they are ill-conceived, and are as likely to cause "tremendous damage" to the social fabric and the unity of the nation.

The Commission has made a significant contribution to the enlargement of fundamental rights by suggesting major changes to amplify certain aspects, which were so far only implied in the provisions. In Articles 15 and 16, it has suggested that the prohibition of discrimination be extended to include "ethnic or social origin; political or other opinion; property or birth". Freedom of expression under Article 19(1)(a), it has recommended, should include freedom of the press and other media, the freedom to hold opinions and to seek, receive and impart information and ideas.

It has recommended a significant proviso to Article 19(2), dealing with reasonable restrictions on the freedom of expression. The proviso says that in matters of contempt of court, it will be left to the court to permit a defence of justification by truth on satisfaction as to the bona fides of the plea and it being in the public interest.

Though the Commission has refrained from recommending a fixed tenure for the State Legislative Assemblies and the Lok Sabha, it seeks to tackle the problem of political instability by suggesting a provision in the Rules of Procedure of the Legislatures and the Lok Sabha for the election of the Leader of the House, along with that of the Speaker. The person so elected may be appointed Prime Minister or Chief Minister, it recommends. Similarly, it has recommended an amendment in the Rules of Procedure of the Legislatures for the adoption of a system of constructive vote of no-confidence: it states that for a motion of no-confidence to be admitted against a government, at least 20 per cent of the total number of members of the House should give notice and it should be accompanied by the proposal of an alternative leader, to be voted on simultaneously with the no-confidence motion.

The Commission has consciously avoided any recommendation on the issue of the eligibility of non-Indian born citizens to hold high office. The proposal, initiated by the former Lok Sabha Speaker and member of the Commission P.A. Sangma, secured the support of five members of the Commission. The Chair- person did not exercise his casting vote, and thus the Commission refrained from taking a stand on the issue. Sangma resigned from the Commission in protest much before it completed its work. The Commission, however, suggested that the issue be examined in depth through a political process preceded by a national dialogue. Irani says in his note: "The Commission's decision ought not to be influenced by possible or even probable reactions. The issue is important. We do not need to wait for a Fujimori case to arise before deciding that the safeguards in the American Constitution deserve a fuller and more public debate."

The Commission's concern seemed to be that its impartiality would be doubted if it took a stand on the issue, considering that Sangma's stand on the issue was born out of his opposition to Congress(I)) president Sonia Gandhi assuming the office of Prime Minister in the event of her party gaining majority support in the Lok Sabha. Sonia Gandhi, who was born in Italy, has acquired Indian citizenship.

The Commission's recommendations are bound to provoke a nationwide debate in the coming weeks, when the government tables the report in Parliament and circulates it among the States for their opinion.