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With a partisan motive

Print edition : Feb 19, 2000 T+T-

The timing of the BJP-led Government's move for constitutional review, a move marked by tearing hurry and lack of candour, reveals an intent to deceive.

A.G. NOORANI

"THE Constituent Assembly in making a Constitution has no partisan motive... The future Parliament, if it met as a Constituent Assembly, its members will be acting as partisans seeking to carry amendments to the Constitution to facilitate to (sic) the pa ssing of party measures which they have failed to get through Parliament by reason of some Article of the Constitution which has acted as an obstacle in their way. Parliament has an axe to grind while the Constituent Assembly has none." B.R. Ambedkar's r emarks, made as he introduced the Draft Constitution in the Assembly on November 4, 1948, prophetically described the moves being made by the Bharatiya Janata Party-led Government to "review" the Constitution.

No other political party in the country has shown the same ardour for its revision as the BJP has, with increasing insistence in the last decade. No other party prides itself on being different from the rest and flaunts its triple demands which none else accepts - Ram temple at Ayodhya, uniform civil code and repeal of Article 370 of the Constitution (special status of Kashmir). It lacks the requisite two-thirds majority in the Lok Sabha, despite its allies, and even a simple majority in the Rajya Sabha . Yet, it flatly refused to consult the other parties either on the terms of reference or the composition of the Commission it set up on February 1 to review the Constitution. The Hindu's Special Correspondent reported (February 5) that the BJP ha s rejected the demand of the Opposition that the Government evolve a political consensus on the terms of reference and members of the Commission.

That was the prerogative of the executive, it claimed. As for political consensus, "without that no change could be made in the Constitution for it would require approval by at least two-thirds of members of Parliament." But that would be an ineluctable necessity. Given the numbers, the BJP knows that the fait accompli of a tailored report would be rejected. It would be used to serve as its own election plank.

There is no rational explanation why at a time when there is dire need for a national consensus on the pressing problems that face the nation, the BJP-led regime is out to break it and go it alone. Has it the ace of a dissolution of the Lok Sabha up its sleeve in order to discard allies one day? The timing, the tearing hurry and the utter lack of candour reveal an intent to deceive. Nothing is being done about electoral or other reforms which are urgently needed and on which proposals and drafts are rea dy. Constitutional revision is a national undertaking in which all should be on board at the time of the take-off.

Determined to accomplish partisan ends, the BJP is utterly clueless about the nature of the process and gives contradictory explanations. No government would promote labour legislation without consulting trade unions and major firms or amendments to the Companies Act without similar consultation. All the major parties were represented on the Goswami Committee on electoral reforms. But we are promised a Committee of "experts" uncontaminated by the presence of the major elements who will work the Constitu tion - political parties. On January 19, Law Minister Ram Jethmalani said, "the committee would be given six months' time to review all aspects of the Constitution. The founding fathers took three years to frame the Constitution and its review should not take more than six months." The Sarkaria Commission on Centre-State relations took nearly five years. Will his "experts" invite memoranda and hear others? Jethmalani added that the committee will "comprise experts from all fields and most political p arties will be represented" (The Telegraph, January 20) (emphasis added throughout).

It was a premature, if not irresponsible, announcement. For, only a few days later when the Government announced the setting up of its committee, it became known that "the opposition has refused to nominate representatives to the panel" and that it would have a one-year term (The Telegraph, February 2)

That the former Chief Justice of India, Justice M.N. Venkatachaliah, has been handpicked to preside over the body is perfectly understandable. In an interview to Press Trust of India on October 31, 1994, only a week after he retired, he made a remark whi ch bared his outlook: "In my opinion, secularism cannot mean anti-majority". None in his senses ever said that it did. But that was the very formulation of the Sangh Parivar to cover Hindutva under the cloak its brand of "secularism". Hence the cries for "redefining" the concept while dubbing the accepted meaning of the concept as "pseudo-secularism".

It was unwise of him to defend his judgment in the Ayodhya case in a press interview. The remark was made in a specific context - a laboured and utterly disingenuous argument which PTI reported thus: To stop the "limited" worship going on since January 1 9, 1993 at the make-shift temple set up the moment the Babri Masjid was demolished, "would have meant taking away the undisputed (sic) right of the majority of Hindus who were not parties to the 'despicable' act of demolition". The fruits of crime must b e preserved and protected.

He exulted in his conviction of the Chief Minister of Uttar Pradesh, Kalyan Singh, for contempt of court on October 24, a day before he retired, for violation of the Supreme Court order of November 25, 1991 and of the Allahabad High Court order of July 1 5, 1992. The Bench over which he presided with Justice G.N. Ray was seized of petitions for contempt for violations of these orders for over two years, but did not punish him earlier. Had it done so in time, Kalyan Singh would not, could not, have demolished the Babri mosque on December 6, 1992 - a contempt for which he is yet to be punished. In a three-part article in The Statesman (January 18-20, 1995) entitled "CJI & Ayodhya" this writer has traced in detail the indulgence Venkatachaliah gave despite warnings of imminent danger from the Attorney-General (A.G.), Milon Bannerjee. On November 25, 1992, he asked the A.G., "have you facts to show that the situation is deteriorating"? He held that "preparation is not an offence ." Venkatachaliah had before him the experts' report of August 1992 showing Kalyan Singh's violations of his undertakings to the court. On December 1, the A.G. warned that the consequence of the Court's inaction "may be too hideous to contemplate."

On December 4, only two days before the demolition, Venkatachaliah expressed his concern for the health of, and sanitation facilities for, the kar sevaks - the hoodlums who perpetrated the crime.

VENKATACHALIAH is, therefore, ideally suited for the job. His press interviews are noteworthy in the context of the famous speeches made by President K.R. Narayanan and Prime Minister Atal Behari Vajpayee on January 27. The President made three points, i n the main. First, "we have to consider whether it is the Constitution that has failed us or whether it is we who have failed the Constitution". Secondly, he stressed the merits of the parliamentary as opposed to the presidential system. Lastly, he asked that it be ensured that "the basic philosophy behind the Constitution and the fundamental socio-economic soul of the Constitution remain sacrosanct." He had no objection to amendments to remove "shortcomings or lacunae". L.K. Advani's claim to Organi ser (February 6) that "even the President of India had suggested the setting up of a review committee" is a falsehood.

On the first point, the role of the political parties, the Prime Minister not only agreed with the President's view but quoted in its support Ambedkar's historic speech on November 25, 1949, as the Assembly was about to end its task: "However good a Cons titution may be, it is sure to turn out bad because those who are called to work it happen to be a bad lot. However bad a Constitution may be, it may turn out to be good if those who are called to work it happen to be a good lot... it is futile to pass a ny judgment upon the Constitution without reference to the part which the people and their parties are likely to play." Vajpayee accepted that "there is one great test for a Constitution, for any system of governance. It must deliver and it must be durab le. Our Constitution has stood this test."

Why then the review? He cited two reasons. First, because we are "faced with a new situation. The need for stability, both at the Centre and in the States, has been felt acutely." Is this due to any lacuna in the Constitution or to our volatile po litics in which, bar the Left and the Hindutva Right, the centrists are not only rudderless but have torn apart? A limited amendment providing for a constructive vote of confidence, on which there is substantial consensus, will help. But nothing will wor k well unless the centrists learn to behave themselves.

Vajpayee's second reason is, likewise, based on policy failures, not constitutional defects. It bears quotation in extenso: "The people are impatient for faster socio-economic development. The country is also faced with a pressing challenge to qui ckly remove regional and social imbalances by reorienting the development process to benefit the poorest and the weakest."

"This is the purpose for which a commission to review the Constitution is proposed to be set up. The basic structure and the core ideals of our Constitution, however, will remain inviolate. Let us not forget that in the end a Constitution is only as good as the ones who work the institutions which it has set up." Precisely.

It is no consolation that the "basic structure" of the Constitution will not be disturbed. It cannot be even by unanimous votes of both Houses of Parliament and endorsement by the State legislatures, thanks to a series of rulings of the Supreme Court sin ce 1973. But Vajpayee's averment, immediately after his reference to removal of imbalances - "that is the purpose for which a commission to review the Constitution is proposed to be set up" - suggests that he does not realise that no Constitution can acc omplish that goal. It can be realised only through policies pursued by men who work the Constitution. The misconception is common. A singularly obstreperous "expert" angrily asked at a seminar whether, after 50 years, the Constitution had "abolished pove rty." He has a deserved place on the commission, judging by the press reports.

Venkatachaliah is as clueless. He was asked: "Why did you decide to take up the assignment to head the Constitution review panel?" He replied: "It was a difficult decision. But then if India is to join the new world order under the World Trade Organisati on (WTO) dispensation, we have to be prepared and be competitive. It is important to find out how we have fared in the past 50 years and assess why we have not been able to develop an egalitarian society. Are we sliding rapidly? These are matters of nati onal concern." And also, a provocation for constitutional revision!

He added, very significantly, "we have to examine if our achievements are consistent in (sic) a parliamentary form of democracy. Crucial areas where the socio-economic reforms have not had its impact need serious thought. The quality of education, banking system, the necessity for constitutional watchdogs, marginalised segments of society, electoral system and economic federalism are all areas which need to be looked at. We have also to find out if the systems incorporated in the constitutional m echanism can cope with the process of globalisation. Then, we also have to ascertain whether there should be constitutional limits on public expenditure. If there is disenchantment, it is necessary to find out why" (Outlook, February 14).

That he is very much at sea is evident from another press interview also: "There is a vast array of issues that may need to be looked into, such as the electoral system, administration of justice, economic development and social opportunity, environmenta l safeguards, sustainable development" (The Hindustan Times, February 6). Every thing except the kitchen sink. So far removed is he from the realities that in the case concerning the validity of the anti-defection law, the Tenth Schedule to the Co nstitution, he upheld the Speakers' status as judges in disputes in his majority judgment (3-2) certifying their impartiality with great enthusiasm despite 10 years of Balram Jakhar as Speaker of the Lok Sabha and decades of other performers.

In the last decade, every single Lok Sabha election manifesto of the BJP has repeated the obnoxious triple demands coupled with the pledges for constitutional revision in varying forms. The one for 1989 asked for "a commission to examine the Constitution of India for making it an effective instrument for containing centrifugal tendencies". It was then an avowedly centrist party which believed that "the Indian Constitution is quasi-federal" - not federal. In 1991, it promised to implement the Sark aria report on Centre-State relations. The three controversial pledges were repeated but there was a variation of the pledge for constitutional review. The commission would study "whether the presidential system of government will give us a more stable g overnment than the present parliamentary system." This explains the implications underlying pleas for "stability." In 1996, the three controversial demands remained. The plank on constitutional review was dropped, only to be revived in 1998: "The BJP wil l appoint a commission to comprehensively review the Constitution of India, in the light of the experience of the past 50 years and make suitable recommendations. The commission will comprise constitutional experts and eminent parliamentarians." A s in the past, the three controversial pledges remained.

They were omitted in the National Agenda for Governance it adopted along with its allies in the Government on March 18, 1998, while the pledge for a review of the Constitution was taken over almost in identical terms from the BJP's manifesto.

The BJP did not issue an election manifesto for the 1999 Lok Sabha elections. Only the National Democratic Alliance did, omitting, as before,the BJP's three controversial demands but repeating the pledge for "a Commission to review the Constitution of In dia in the light of experience since Independence."

The Sangh Parivar has never been comfortable with the Constitution or, indeed, with Indian democracy and its secular credo. Remember the White Paper on New Year's Day 1983 on The Present Constitution by Swami Muktanand Saraswati. His complaint was that it was an Indian, not a Hindu Constitution (see this writer's article, "Targeting the Constit-ution", Frontline, May 7, 1993, reproducing large extracts from the pamphlet).

What was the reaction of the Rashtriya Swayamsevak Sangh (RSS) and the BJP to the pamphlet? The Parivar came out of the closet and declared in clearest terms its resolve to wreck the Constitution. Fittingly enough, the mother of the Parivar, the RSS, was the first to speak. Indian Express of January 14, 1993 published an article by the RSS supremo, Rajendra Singh. One has only to compare his formulations with those of the pamphlet, and the design stands exposed. They are so strikingly alike.

Rajendra Singh wrote: "The present conflict can be partially attributed to the inadequacies of our system in responding to the needs of the essential India, its tradition, values and ethos. At the time of Independence, the 1935 model was adopted wholesal e with some modifications here and there. Scores of amendments to the Constitution that have been enacted point to the need for change.

"Certain specialities of this country should be reflected in the Constitution. In place of 'India that is Bharat', we should have said 'Bharat that is Hindustan'. Official documents refer to the 'composite culture', but ours is certainly not a composite culture. Culture is not wearing of clothes or speaking languages. In a very fundamental sense, this country has a unique cultural oneness. No country, if it has to survive, can have compartments. All this shows that changes are needed in the Constitution . A Constitution more suited to the ethos and genius of this country should be adopted in the future". The plea for "changes" is swiftly altered to one for a new Constitution, suited to "the ethos and genius" of the RSS, no doubt.

The then BJP president, Murli Manohar Joshi, did not lag behind, either. On January 24, 1993 at Anantapur, Andhra Pradesh, he said the present situation was owing to the neglect of Hindutva. Indian Express reported (January 25) that "he harked bac k to what he said was the glory of India during the Vedic period and said that the need of the hour was to 'revive that glory'. Joshi reiterated the demand for a fresh look at the Constitution."

On May 17, 1996, even in the brief uncertain days in office, Law Minister Jethmalani "initiated an exercise to ascertain the research work done by the Ministry on the feasibility of a uniform civil code", PTI reported (The Statesman, May 18, 1996) . In 1998, no sooner did he become Home Minister, Advani selected as the topic for the Thakur Prasad Memorial Lecture at Patna on April 26 "Need for a Commission to review the Constitution." He said in so many words that "the basic structure doctrine does not bind us to parliamentary democracy". (The Hindu, April 27, 1996). What, then, is the worth of the assurances of today that "the basic structure" would not be disturbed?

The current debate began last month when it became known that the Law Ministry had prepared a background paper. R. Venkatraman of The Telegraph had a copy and revealed its contents in the issue of January 6. The Committee would "scrutinise almost all its (the Constitution's) contours" the powers of the President included. It proposed two alternatives - a committee with a judge at its head or a parliamentary committee. The background paper has not been published by the Government. It railed against the "increasing pro-active judiciary". Was a copy furnished at least to the leaders of the Opposition parties? Article 370 as well as a uniform civil code were also covered (The Telegraph, January 20).

Jethmalani's remarks on January 28 are noteworthy because they came a day after speeches by the President and the Prime Minister. The Supreme Court's notions of "misguided secularism" as the basis for imposition of President's Rule (in the aftermath of t he demolition of the Babri mosque) needed to be "reviewed" (The Hindu, January 29). His remarks on secularism and on the President's powers are noteworthy (The Statesman, January 29). Whether it was meant as a jibe or not, he made a puerile comment: "If the President was opposed to any amendment of the Constitution 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". K.R. Narayanan was in Foreign Service for mos t of his life. For all his quibble about "uniform justice" it is a uniform civil code that Jethmalani is clearly after as also a "redefinition" of secularism. (The Telegraph, January 29). Elected on the Shiv Sena ticket, he wants "the correct pers pective of true secularism."

The Statesman reported (January 30) that the Law Ministry's note was based on a "background paper" drafted by "a committee with 'a saffron complexion', as a Ministry official put it." (Their names were also mentioned). It covered the presidential system as well as a uniform civil code.

The committee's terms of reference are vague enough to include them. "To examine in the light of the experience of past 50 years as to how best the Constitution can respond to the changing needs of efficient, smooth and effective system of governance and socio-economic development of modern India within the framework of parliamentary democracy and to recommend changes, if any are required, without interfering with its basic structure or feature."

Official sources said religious practices "perceived to come in the path of the working of the Constitution would certainly be examined." (The Telegraph, February 2; see also The Statesman, February 2). They exclude, apparently, the preside ntial system; but, neither repeal of Article 370 nor adoption of the uniform civil code, nor a redefinition of secularism to which Murli Manohar Joshi is committed (The Statesman, February 3).

Meanwhile, the Constitution is being "amended" in actual practice. "It is perfectly possible to pervert the Constitution, without changing its form, by merely changing the form of the administration and to (sic) make it inconsistent and opposed to the sp irit of the Constitution." Ambedkar's prescient words in the Assembly on November 4, 1948 are being proved right. It was Advani's letter of July 13, 1999 which gave Gujarat the green signal for inducting the RSS into the civil service. He and Vajpayee ha ve cocked a snook at the President and the nation. The well-meaning ones and others not so well-meaning who have gone on board the ship of constitutional revision will find that it had sprung a leak before it left port.

THE impression that the Commission will be free to review Article 370 as well as a uniform civil code is confirmed by Law Minister Ram Jethmalani's interview to the Press Trust of India on February 11. "As far as our government is concerned, a review of Article 370 is not on the agenda."

Indeed it is not, but see how he brings it in through the back door. "However, if any person represents the commission on the issue, the same could be considered by the expert body." The cat is out of the bag. The commission will be free to go into the i ssues which were formerly out of the government's agenda, but the review commission is an instrument for implementing the BJP's hidden agenda.