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THE Indian Constitution is more than a historical compact. True, it does not have a life of its own; it does not work but has to be worked. It sets both the goals we as a people aspire towards as also the rules and procedures by which we may engage in the exercise of transformation. As legal scholar S.P. Sathe observes, ‘The Constitution has become the authentic reference scale for political behaviour.’ It is, in other words, akin to a new Dharmashastra for public life.

It is also, as constitutional historian Granville Austin repeatedly stresses in his massive tome, Working a Democratic Constitution, a seamless web, providing a structure to reconcile and work the triple objectives of ‘unity-integrity, democracy and social revolution.’ It has also been subjected to close to 80 amendments and at least five major reviews. This is why caution and temperance rather than contingent needs, often expedient and populist, should mark the demands for a fresh review.

It can be no one’s case that compacts – goals, rules, procedures – be treated as a given. Contexts change, as do demands and aspirations. In itself thus, no objection can be taken to the call for a fresh review. And the Golden Jubilee of the Constitution is as good a time as any to engage in an exercise of assessment and introspection.

However, as constitutional experts, including the President, caution, many of the earlier amendments and reviews were subsequently discovered to be partially flawed. In some cases, as for instance with the 44th amendment, the objective was in the main to undo what was done with the fundamentally flawed and undemocratic 42nd amendment.

One is here not referring to the first amendment in 1951 which brought in the Ninth Schedule, placing specific laws (mainly those concerning land ceilings and tenurial arrangements in the countryside) beyond judicial review, but specious efforts at extending the life of Parliament, placing high political functionaries beyond scrutiny, curbing fundamental freedoms by raising imaginary scares about dangers to national unity and integrity, and bypassing due process requirements of common law by invoking the need for social revolution.

The current calls for exploring the possibility of a Presidential system, of giving the Parliament a fixed term of life, of bringing in proportional representation, reducing the number of political parties in Parliament, or introducing the German practice of a constructive vote of no confidence – seem more designed to reduce the spectre of instability faced by the regime in power. As such, like the Emergency provisions referred to earlier, they become both suspect and divisive. One only wishes that Messrs Vajpayee and company recall their own arguments of a quarter century back before seeking to occupy the high moral ground. Similarly the main opposition, the Congress (I), as also the Left, should not operate on the premise of a short public memory when vociferously underscoring their faith in the Constitution.

The one merit of our fractious public discourse has been to force the proposed constitutional review exercise on the backfoot. There was hope that the designation of Justice Venkatachalliah as Chairman of the review committee, his clarification that the basic structure of the Constitution (including the parliamentary framework) was outside the terms of reference, and his insistence that membership should draw upon acknowledged experts, would help allay current fears. But the refusal of Fali S. Nariman, though nominated by the current regime to membership of the Rajya Sabha, to be part of a review initiated by government rather than Parliament, speaks volumes about the legitimacy, as also significance, of the exercise. As does the final composition now in place.

Maybe what one should instead focus on is giving substance to a variety of recommendations made by previous commissions, in particular the Sarkaria Commission. Why not take up the now forgotten recommendations of the Dinesh Goswami committee for political reforms, or draw upon the labours of the expert group set up by Ramakrishna Hegde? Or is it that our political class, whatever its public pronouncements and internal differences, is in unanimity about not legislating any curbs on itself as a welcome first step towards evolving a healthy norm based polity.

It is well known that the greatest strains in our system have arisen from our inability to acquire clarity about the role and limits of the legislative, executive and judicial wings. Given Keshvanand Bharati and the arithmetic needed for amendments – simple or two-thirds majority in Parliament, approval from the states, and judicial scrutiny – what the NDA needs is both internal consensus and taking the opposition along. Only reasoned discourse rather than partisan polemic can infuse meaning into what otherwise will be a fruitless engagement.

 

Harsh Sethi