President K.R. Narayanan's cautionary words on the proposal to review the Constitution put the Bharatiya Janata Party-led government on the defensive.
SUKUMAR MURALIDHARAN V. VENKATESANIRONICALLY enough, the proposal to "review" the Constitution forced itself into public focus as the country celebrated the golden jubilee of its basic document of laws and citizens' rights and duties. Not for many years has there been such a clear expres sion of divergence of opinions between the President and the Prime Minister, as was witnessed at the special function in the Central Hall of Parliament on January 27. Although spokespersons for the government have since been diligently seeking to dispel any notion of a rift on fundamental matters of principle, the intervention by President K.R. Narayanan has drawn clear attention to a deep-seated ambivalence in current political thinking.
The proposition advanced by the President was simple. Infirmities of the political dispensation could not be attributed to the Constitution. Rather, they could be more appropriately blamed on the character and commitment of the men who have been working the political system. The President said: "(T)oday 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 th e Constitution."
That this presidential intervention followed a fairly clear-cut articulation by the Prime Minister of an intent to review the Constitution lent it added piquancy. And it has necessitated a thorough excavation of the origins of the idea in order to unrave l the agendas that may be hidden behind the innocuous notion of a review of the basic law.
Election manifestoes often have a quality of empty ritualism about them in the manner they choose to affirm traditional and well-respected political verities. Core areas of divergence between political parties lie in details which are generally left out of manifestoes. On occasion, though, the preambles, which set out the general ambience of a party's political philosophy, could be crucial to understanding its wider purposes.
Although it may have been broached on occasion in the past, the notion of a thorough review of the Constitution perhaps entered the political discourse for the first time in the Bharatiya Janata Party's election manifesto of 1998. This document begins wi th the invocation of an eternal Indian mind that has found its expression in the Indian nation. "It is this ancient Indian mind that formulated the Constitution of India," says the maniifesto, and "it is not the Constitution that shaped the Indian mind."
This is by any standard of evaluation a rather curious locution. As against the decidedly modern values that the Constitution seeks to enshrine - equality, the rule of law, secularism, the separation of powers - the BJP was seeking to invoke a primeval i nspiration for the Indian polity and its system of laws. This rather backward-looking perspective endowed the BJP's subsequent promise, to "review the Constitution of India, in the light of the experience of the past 50 years", with a certain ominous qua lity.
The BJP was until recently a staunch advocate of a presidential system of government, which presumably would eliminate the multiple sources of uncertainty and instability that parliamentary democracy is prone to. It found little purchase for this idea, s ince the dominant sentiment in political quarters was that the presidential system tilts too strongly towards a variety of political absolutism that a fledgling democracy cannot afford. In 1998, the promise to "review" the Constitution was read as an eff ort to recycle this old proposal and seek more far-reaching changes in the system of governance.
The idea nevertheless found its way subsequently into the BJP-led coalition's National Agenda for Governance in 1999. Although stripped of its metaphysical content by this time, the notion could not be viewed in neutral terms, simply because of the circu mstances of its origin. The golden jubilee of the Indian republic has provided the Atal Behari Vajpayee Government with the occasion to begin the process of implementing this election commitment. There is currently a search under way for suitable persons to serve on the proposed review committee.
According to the Union Law Ministry's background note on the issue, an Overview Committee, consisting of Prof. Mool Chand Sharma, R.K.P. Shankardass, Seita Vaidialingam, and Prof. Ghanshyam Singh, has identified many areas that need evaluation. These inc lude the fundamental rights, the directive principles of State policy, and fundamental duties. These apart, several Articles of the Constitution have been identified as reflecting areas of ambiguity. These relate, among other things, to the choice of Pri me Minister, assessment of the confidence of the Lower House of Parliament, and the determination of the "pleasure" of the President or (in the case of a State) a Governor.
Such a committee is also expected to examine the method and mechanism to be followed before an invitation to form a government can be extended, especially in situations where legislative majorities prove elusive. In this respect, the committee will have to examine all the key questions that have emerged over the last decade of instability in the Indian polity: whether it is the single largest group or party that should enjoy priority, whether a pre-election alliance should be given the first claim as ag ainst a post-poll coalition, and related matters. Other issues which are expected to be taken up are the powers and role of the Speaker under the Anti-Defection Act, the function of Governors, and the application of Article 356 to dismiss a State governm ent.
A gamut of other issues, such as electoral reforms, judicial appointments, corruption and political accountability, minority rights, federal fiscal relations, inter-State disputes, reorganisation of States, reservations and affirmative action, economic r eforms, and the role of a neutral bureaucracy, would also conceivably be examined by the committee, which would be expected to hear all interested parties and groups.
A point on which the BJP has shown particular eagerness would also come up - on the feasibility of incorporating a provision analogous to the German system of a constructive vote of no-confidence. Such a provision would ensure that a motion of no-confide nce would only be admitted on condition that the political party initiating it had the legislative resources to form an alternative government. It would ostensibly ensure that a duly elected Lower House would complete its full five-year term of office, s ays the concept note prepared by the Ministry of Law. The note calls the conduct of three parliamentary elections in just three years as an aberration that calls out for correction.
Critics of the government's intent insist that on all these questions, there exist a sufficient weight or precedent and judicial rulings that can through political dialogue and consensus be operationalised within the Constitution. They believe that the B JP's ultimate purpose is to graft an artificial notion of political stability on to the basic law, which could prove harmful to the more valuable notion of accountability.
THESE were the concerns that the President forcefully articulated in his address of January 27. He took his cue from the following characterisation of the Constitution by Dr. B.R. Ambedkar, its principal author: "It is workable, it is flexible and it is strong enough to hold the country together both in peace time and in war time. Indeed, if I may say so, if things go wrong under the new Constitution, the reason will not be that we had a bad Constitution. What we will have to say is that man is vile."
The President also quoted Dr. Rajendra Prasad, who as the President of the Constituent Assembly, had said: "If the people who are elected are capable men of character and integrity, they should be able to make the best of a defective Constitution. If the y are lacking in these, the Constitution cannot help the country."
Inherent in the President's intervention was a resounding reproach. If politics becomes the domain of the self-seeker, then the character of the law that they are required to work would be immaterial. If they should then arrogate to themselves the freedo m to alter the basic law, they are likely to do more harm than good.
The President was at pains to point out that great thought and deliberation had gone into the choice of the appropriate form of government for the country. Ambedkar, he reminded the audience, had explicitly drawn attention to the polarity between the not ions of stability and responsibility, and emphasised that he preferred to keep his faith with the latter: "In the Constituent Assembly Dr. Ambedkar explained that the Drafting Committee in choosing the parliamentary system for India, preferred more respo nsibility to more stability, a system under which the government will be on the anvil every day... The Constituent Assembly... chose this system because they preferred more responsibility to stability, which could slip into authoritarian exercises of pow er. Another factor to be borne in mind is the immensity of India, the perplexing variety and the diversity of the country, the very size of its population and the complexity of its social and developmental problems. In such a predicament, described by on e writer as one of 'a million mutinies', there must be in the body politic a vent for discontents and frustrations to express themselves in order to forestall and prevent major explosions in society. The parliamentary system provides this vent more than a system which prefers stability to responsibility and accountability."
The value of this system was not in any way diminished by the recent experience of instability in government, said the President: "In my opinion we should avoid too much rigidity in our system of government as in a very rigid system there is the danger o f major explosions in society taking place. The possibility and the facility of a change in government is itself a factor in the stability of the political system in the long term because then the people will be more inclined to tolerate a political situ ation they do not approve of or find difficult to cope with for long."
Prime Minister Vajpayee had earlier spelt out his perceptions on the issue by drawing attention to the "acutely" felt need for stability both at the Centre and in the States, to ensure faster socio-economic development. The Constitution, he said, was not immutable, since "even in the mightiest fort one has to repair the parapet from time to time. One has to clean the moat and check the banisters... the same is true of our Constitution." While the Constitution has stood the test of time, five decades aft er its adoption India was faced with a "new situation", the Prime Minister suggested.
The Prime Minister reiterated his full and unreserved acceptance of the validity of the basic structure doctrine, as enunciated in the Keshavananda Bharati case by the Supreme Court. Nobody in the BJP has yet spoken openly in terms of abrogating t he parliamentary system of governance in preference to the presidential system, although Law Minister Ram Jethmalani did, in a subsequent intervention, say that the review committee would be free to consider proposals to this effect.
The President did not take a position on the proposal to adopt the German system of constructive motions of no-confidence. But several observers question the wisdom of such a move, since it would incorporate a number of rigidities into the parliamentary system. The notion that once a government is in place it should not be subject to repeated demands to prove that it enjoys the confidence of Parliament is quite a distinct one, which could conceivably be achieved through a simple amendment in the rules o f procedure of the Lok Sabha.
In a hastily convened press conference the following day, Ram Jethmalani denied that there was any conflict between the views of the President and of the Government. Jethmalani interpreted the President's address to mean that he approved of the process o f keeping the Constitution under review and making changes where necessary. Whatever the recommendations of the review committee, they can only be brought into effect by the procedure enshrined in the Constitution, which is by a two-thirds majority in bo th Houses of Parliament. And since the BJP-led alliance lacks even a simple majority in the Rajya Sabha, it is effectively prevented from introducing any whimsical or arbitrary changes.
President Narayanan did in point of fact underline the need for changes in the basic law in a different context: "The founding fathers deliberately made the amendment process of the Constitution easy so that shortcomings or lacunae in the Constitution ca n be rectified by the Parliament without too much difficulty. There are other changes that can be brought about, like changes in the electoral law or the functioning of the political parties. Whatever we may do, and we have a right to bring about necessa ry changes in the political and economic system, we should ensure that the basic philosophy behind the Constitution and the fundamental socio-economic soul of the Constitution remain sacrosanct. We should not throw out the baby with the bath water..."
Taking his cue from this reference, Jethmalani insisted that if the President was opposed to "amendment per se, he would have been highly critical of what has been done to the Constitution almost 80 times in a span of 50 years."
STIRRING at the roots of this divergence are contrasting approaches to the task of improving the quality of governance and ensuring political accountability. The President evidently believes that the institutions and the enabling powers already exist to permit an enlightened debate on the experience of the last 50 years. The Government, in contrast, thinks that a new institution should be created to raise the level of debate. Opposition parties, however, believe that in the process of choosing a committ ee, the Government can also determine the nature of the outcome of its deliberations.
In subsequent statements, the BJP echoed the Prime Minister's view that there was no question of tinkering with the basic structure of the Constitution. Party general secretary M. Venkaiah Naidu, however, underlined the need for amendments to plug loopho les. He gave a technical justification on the basis of the President's address to the joint session of Parliament on October 25, 1999, which mentioned the Government's intention to appoint a review committee. In having adopted the motion of thanks for th e President's address, Parliament sealed its approval of this proposal, he claimed. Union Home Minister L.K. Advani again sought to characterise the review as a "periodic health check-up".
The Congress(I) welcomed the President's cautionary words and virtually adopted them as its own. The party views the Constitution as an embodiment of the values of the freedom movement, which has stood the test and scrutiny of time. Party spokesperson Aj it Jogi expressed the fear that in the guise of a review, the government was seeking to put into effect its own sectarian agenda.
Devendra Dwivedi of the Nationalist Congress Party thought the President's intervention was in complete consonance with the oath he took on assuming office, to preserve, protect and defend the Constitution.
Communist Party of India (Marxist) Polit Bureau member Prakash Karat was in complete agreement with the views expressed by the President. Changes, he said, can be made within the existing framework, but there should be no question of allowing any tinkeri ng with the basic values enshrined in the Constitution. Similarly, the Communist Party of India alleged that the BJP had been campaigning for a review to bring in changes that would cripple the parliamentary system and reduce accountability in Government . The President has put forward timely and cogent arguments against such attempts, it said. The party was opposed to a "roving review" as it would amount to putting a question mark on the Constitution itself.
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