'There are some things of eternal verity'

Justice M.N. Venkatachaliah, former Chief Justice of the Supreme Court and former Chairman of the National Commission on Human Rights, who has been asked by the government to head the commission to review the Constitution, spoke to Parvathi Men on on various issues that a review Commission could address in respect of the working of the Constitution. Excerpts from the interview:

After your name was proposed as chairperson of the commission to review the Constitution, you were quoted in the media as having said that you would accept this on two conditions, the first that the basic features of the Constitution would not come u nder review, and second that the system of parliamentary democracy would remain untouched. What in your view constitute the basic features of the Constitution, and is there a legal consensus on this?

At the outset I must tell you that I did not stipulate any conditions. I said that if I know the terms of reference it will be easier for me to make up my mind, and I wanted to know whether the terms of reference included a discussion on the basic featur es of the Indian Constitution. I also thought that I may as well know with whom I am working. These are not conditions, but things that would enable me to make up my mind.

So far as the basic features are concerned, the Supreme Court in the Keshavananda case, while dealing with what matters are amenable to the amending process under the Constitution, and what matters are not amenable to the amending process under th e Constitution, held certain constitutional fundamentals of the Indian Constitution as immutable in relation to the power of Parliament to change the Constitution. For example, we have republicanism, we have secularism, we have independence of the judici ary, the rule of law, judicial review, and certain values of the Constitution which form the substratum of the constitutional edifice. These are some of the things which are of eternal verity, some things we can't debate. Every civilised country has to h ave these values. Therefore some of these things are not open to debate, and naturally, if you want to amend the Constitution, you can't take up things that you can't amend at all.

Was the Keshavananda ruling the only one that defined the basic features or were there other rulings?

Quite true. But there are certain things that are clearly not basic features which can be amended. For example, adult franchise is a basic feature, but how you regulate the constituencies is not. Today the working of the Constitution is the issue. How ha ve we worked the Constitution? There are matters which can acquire the complexion of basic features, there are matters which cannot obviously acquire the complexion of basic features, for example, say, matters of procedure. I don't think there is a grey area here. There is a potential area depending upon the way we work the Constitution. The courts might say you can't lay down everything exhaustively, enumerate everything once and for all. In this context we confine normally to what the courts have alre ady said are the basic features, that is the point. If we are suggesting an amendment then it must be amenable to the amendment. If it is not amenable to the amendment because it is a basic feature, then where is the question of the Commission discussing it?

There are two clear views on the question of a constitutional review. One which says that for a variety of reasons (including the need for political "stability" at the Centre) the Constitution needs to be reviewed - the view articulated by the Prime Minister who talked of the need to "repair the mighty fort". The other view is that it is not the Constitution which has failed us, but we who have failed the Constitution, and that there is no need for a comprehensive review. What are your views on this ?

I think that there is some substance to both views. Speaking personally and not as chairman-designate of this Commission, what I would wish to say is that we have failed the Constitution in a substantial measure in working the Constitution, our whole app roach to administration and governance. We have never thought that we are discharging our constitutional obligations and duties, and responding to the constitutional rights of people. That kind of mindset - that the Constitution is our fundamental law an d all that we do must comport with the constitutional aspirations of the people - has not yet come in.

There are some spectacular achievements the Indian democratic polity has brought about. Life expectancy at birth was 27 years when we got Independence. Today it is 74 years for women in Kerala. We had 1,362 MW of power in 1947, we have more than 90,000 M W of power today. Our literacy was 10 per cent when the British left us, today it is 60 per cent. Our infant mortality used to be 160-170 per thousand live child births, today it is 65. But all these benefits are neutralised as a result of the explosion in the population. And I think we have failed in controlling this problem. I feel that the one route to control the population was the literacy route, as Kerala has demonstrated. Literacy, education of the child, particularly the girl child, would be the surest way of empowering civil society and making it strong enough to demand and exact its entitlements of the political society.

So there are areas in which we have enormously failed. It is true that the philosophical foundations of the Constitution are sound, its mechanisms are sound. But maybe as the new South African Constitution has demonstrated, there are not enough watchdog mechanisms built into the Constitution which will oversee and enforce the performance of translation of constitutional phrases into constitutional realities. Therefore an examination of how the Constitution has worked over the last 50 years may indicate whether there are areas where the Constitution also needs to be supplemented. For example, women and child care, population control, all these mechanisms require specific constitutional controls and devices and mechanisms to achieve the result. That is o nly an example.

Will you have a say in the selection of the other members of the Commission?

Strictly speaking, it is the prerogative of the government to make nominations to the Commission. I expect as a person who is supposed to work with them, to be told who the members would be so that the common purpose of both the government and mine would be ensured, so that the composition reflects in a substantial measure, the ethnic, religious, linguistic and cultural diversity of Indian polity and its pluralist society.

The Constitution was drafted by the Constituent Assembly which was a very representative body. This is the first time that the Constitution is sought to be subjected to a comprehensive review. How representative do you think this Commission is of Ind ia's pluralist society and its requirements?

Your question presupposes that the work of this Commission is equivalent to the work of the Constituent Assembly. This Commission is to review substantially the way the Constitution has worked. It can only give a feedback from the civil society. It acts as a conduit or a channel to formulate the experience of the civil society in the working of the Constitution - its hopes, despairs and disenchantments - and pass it on to the political society. And these 11 members are not the ones alone who will do it. They will go to the society, collect statistics, have research backup on socio-economic progress and what was absolutely necessary to have been achieved, whether those benchmarks have been reached, and then say why in their opinion, aided by experts who se help they would take for their research backup, whether any of the failures are attributable to the absence of constitutional support.

This is essentially an academic exercise. It is some kind of a feedback to the powers-that-be to deal with the matter. It is not a body which is empowered to alter the Constitution. It does not have the capacity, the competence, the sanction or the legit imacy to go into that aspect of making amendments. During the bicentennial of the American Constitution a committee went into it and there are excellent articles written on how and whether the blessings of the Constitution have reached the populace. This is the example. To mistake it is to equate its work with that of a Constituent Assembly.

What is not clear is whether the Commission is merely reviewing the working of the Constitution or reviewing it with a view to amending it.

As I understand (of course you must make it very clear that I have repeatedly said that it is for the Commission as and when it is constituted to understand the dimensions of the task. I am only anticipating as I have got to answer your question) the Com mission is to review the working of the Constitution in key social and economic areas, and key areas of public welfare, and whether even a modicum of the constitutional expectations of large masses of people have been fulfilled or not.

Today we have the dismal situation of a social infrastructure where 670 million people in this country don't have basic sanitary facilities, and 260 million don't have potable water. Forty per cent of the world's tuberculosis patients are in India, 25 pe r cent of the world's blind are in India. Fifty per cent of the world's illiterates are in India. Fifty per cent of the world's leprosy afflicted are in India. So can you say that this kind of thing could have been managed (or mismanaged) better? This is the basic thing. This is an introspection through a body of experts. And experts who as far as possible represent the diverse composition of Indian society. These 11 people in turn depend on society at large... there must be research backup and interact ion with society. Then there is the issue of the enormous corruption in public life, electoral malpractices, the tyranny of wealth, and the insolence of authority. They have all made the life of the common man one of disenchantment with the institutions of democracy.

Since parliamentary democracy is seen as one of the basic features of the Constitution, do you think that there should have been a consensus in Parliament on the need to set up such a review commission?

Parliament is supreme and it could have done it. But today we are considering whether the existing government wanted to educate itself on this issue and how valid or how legitimate that exercise is. You must test it on the merits of that issue. This to m e appears to be an academic exercise, I don't want to be drawn into the ideological or political differences aired about it. I am looking at it as a citizen and as a judge.

Will the terms of reference of the Commission not merely indicate its aims and objectives but also indicate what is not negotiable?

Quite right. I told somebody that in specifying a legal requirement you must specify it with such degree of precision that not only those who read in good faith must understand but also those who read in bad faith don't misunderstand! So if you read it < I>bona fide, it gives obviously certain meanings. If you want to read it in bad faith it may mean many things. It is for the Commission ultimately to understand the contours of the reference.

In one of the interviews you gave you said that you would get a feedback from various sections of society by the circulation of a comprehensive questionnaire.

Well, that is my idea, not the Commission's idea, please make that clear. This is one of the methodologies by which a small 11-member group can get feedback from trade unions, panchayati raj institutions, minorities, backward people, and other affected i nterests in society; how they visualise the 50 years of their lives under the Constitution. To get that and collate it, that is my idea and not the Commission's idea because at this stage I am not competent to speak on behalf of the Commission which is n ot yet constituted. In my view this is only a concomitant of my observation that we must act as a connecting car between political society and the civil society.

It is a feedback from civil society as to the degree of success of the working of the Constitution, and also the areas where we have failed, and ascertain and interpret why such failures have occurred. Is anything attributable to the absence or inadequac y of constitutional supports, then formulate your recommendations which eventually will have to go through the fire of a parliamentary debate.

Do you think that the directive principles should become justiciable?

I think it is time that some of the directive principles became directly justiciable. In fact it was again in the Keshavananda case that the great contribution was made that the concept of mere non-justiciability of directive principles was not accepted but they were taken as important principles in the governance of the country, and therefore they should necessarily influence the interpretation of the fundamental rights themselves. They should supply the content, pour meaning into the fundamental right s. This was the great contribution of the Supreme Court which synthesised the non-justiciable directive principles and fused them with the fundamental rights, bringing about law and justice, constitutionality and justice, on speaking terms. That was the most fundamental contribution of the Supreme Court.

In fact, the Supreme Court itself elevated universal compulsory primary education to the level of fundamental rights. You must realise that in the draft Constitution the obligation for primary education was in the fundamental rights chapter and inequalit y clause was in the directive principles chapter.

One of the government's stated reasons for the review was the need to bring stability into the political system... the need to prevent a situation where a government does not fall on one vote and without a viable alternative. Would you allow for tink ering with the system of parliamentary democracy to bring in short term stability?

The Commission is not committed to, I'm sure, any pre-set ideas or ideology of any particular party. Nobody says that stability is an undesirable quality. Nobody says that the price you must pay for stability is democracy itself. Therefore in between the two perhaps there may be many ideas that experts and political scientists will offer as to how to work the system with reasonable stability without sacrificing the fundamental democratic principles. This is a matter which if it comes up - I can't say if it will or not - I have my own notions which are not binding on the Commission. I am discussing this at a stage that is perhaps premature, please make the point that whatever I have said is absolutely premature.