TIME FOR ANOTHER LOOK 

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By BY N.R. MADHAVA MENON
  • Published 12.02.00
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There have been at least three kinds of reactions to the proposed constitutional review. One set of reactions almost blindly opposed the move largely on the assumption that nothing good could happen from a Bharatiya Janata Party led government initiating the reform process. All right-thinking people would probably dismiss this approach with the contempt it deserves. The second category of reactions may be characterized as ill-informed, misconceived or motivated opposition, mainly coming from opposition political parties and select minority groups apprehending some invidious prospect of restricting their respective spaces for socio-political manoeuvreability. A section of the media played up this view and almost killed the initiative, aggravating the suspicion and apprehensions. The third is a sober concern of informed sections of the people which the president in his address to Parliament spoke about. The terms of reference which ultimately emerged - excluding basic features and parliamentary democracy from the scope of the proposed commission - is a statesmanlike response from the government, which is to be welcomed by all citizens. After all, it is only a review to diagnose constitutional reasons, if any, for the prevailing bad governance in the country which the citizens are entitled to know. If there is nothing wrong with the instruments, as some contend, people can now put the blame squarely on the politicians and civil servants and do something to extract greater accountability from them. Looked at from this perspective, a review of the non-basic features of the Constitution is to be welcomed, whichever government is in power at the Centre or in the states. It is to be remembered that review or reform has been proposed time and again with regard to different aspects of constitutional governance, not only by experts but also by politicians of different hues and political parties of all shades. The Sarkaria commission did its work mainly in one area, namely Centre-state relations; and that too, two decades ago. The 79 amendments already made and several others proposed on different occasions indicate the widespread perception of the malaise and the commonly held belief that at least some aspects of it are curable by appropriate constitutional amendments. The liberalization of the economy in the context of globalization, the advent of another tier of governance at the grassroots through panchayat raj institutions, and continuing demands for higher levels of human rights compliance and accountability from institutions of governance have brought about a situation in which Constitution review has become a necessity. Review is not reform; it is only the first step towards deciding whether to reform or not. Therefore all the media hype we have had recently has not been in the right spirit. The burden is on those who are dissatisfied with the state of affairs and still contend that review is mischievous and unwarranted. The presidential remarks do raise an important issue for the review commission to address and that is the plight of half of Indian humanity which has not been able to achieve the fruits of freedom even after half a century of democratic governance. To my mind the commission should give priority to the implementation of the directive principles of state policy which Article 37 declares as fundamental in the governance of the country. For almost three decades, the governments both at the Centre and in the states got away by avoiding independent review of their actions in this regard on the ground that the directive priniciples are not judicially enforceable and, as such, left entirely to the executive to decide. When the judiciary interpreted the fundamental right under Article 21 (right to life) as comprehending some of the directive principles (like free and compulsory education for all children up to 14 years), some politicians even spoke against the judiciary as usurping the legislative and executive domain and sought constitutional amendme'nt to "discipline the judges". Obviously, basic needs regarding health, education, employment and environment cannot any more be left to the political convenience of governments but must be fulfilled with the priority they deserve. If non-enforceability is the cover under which they escape accountability, it is time to review the constitutional provisions to ensure compliance to those principles "fundamental in the governance of the country" and on which depend the survival of the teeming millions about whom the president lamented. To my mind, making them judicially enforceable is not perhaps the only choice or the desirable course of action. Nor is the deletion of the word "socialism" in the context of the new economic policy, as the Union law minister suggested, the solution. It is my view that the Indian Constitution in its basic features is socialist in structure and content, if not in methods and policies. So long as equality informs all actions, directive principles illuminate all policies and "We the people of India" remain in command of the processes of governance, the soul and spirit of the Constitution will remain socialist whatever changes the economy may assume. Furthermore, in the context of the decentralized, participatory panchayat raj administration, development is no more a question of Centre-state relations but a complicated system of three tier democracy with its attendant administrative and financial arrangements. The Sarkaria commission report could not obviously advert to this democratic revolution which was brought about much later. This cannot to my mind be adequately addressed by legislative and administrative measures alone. They require a reexamination of the distribution of powers among the three tiers of government, a change in the structure of decisionmaking and a commitment to fulfil basic needs of people with constitutional compulsions. Again, sometime ago, the president expressed his displeasure with the system of judicial appointments in which social justice considerations seem to have been ignored or not given adequate weightage. Others have criticized the way the judiciary has interpreted and reinterpreted the consultation requirements under constitutional provisions, excluded executive involvement and monopolized all authority for higher judicial appointments. It is only on a constitutional review and mature reflection on comparative experiences that one can decide whether the object of judicial independence can be achieved by leaving the process as it is or by amending the relevant constitutional provisions to strike a constitutional balance and democratic accountability. Much of the Indian Constitution is nothing more than ordinary law amendable by Parliament at will in exercise of its constituent powers according to the procedures laid down in the Constitution itself. They are expected to be changed as often as necessary in the interest of good governance in changed circumstances. In fact, these are the provisions which require review and reform. These precisely are provisions which have been changed time and again in the majority of constitutional amendments in 79 occasions in the past. They relate to the distribution of powers, the checks and balances in the system and the management of power relations in the democratic spirit. I think nobody familiar with Indian constitutional law and the problems the country is facing today in respect of democratic governance would argue that these non-basic organizational aspects of the Constitution do not require a review and revision. After all a constitution, from the legal point of view, is an instrument of governance, nothing more, nothing less. For the people it is a social document reflecting their will and aspirations. It is this part which the Supreme Court rightly declared as "basic features" and therefore unamendable by Parliament excepting through extraordinary processes like perhaps a revolution or a referendum. What the review commission is being asked to do is to reexamine, in the light of experience, those non-basic aspects of governmental organization at the Central, state and local levels. In doing so, the commission is bound to review the process of appointment of governors, their role in relation to Article 356 and legislative powers of the state, and so on, the arrangements regarding the collection and devolution of Central taxes, the role of the planning commission, the case of all India services, the executive powers of the Central government to direct states to do or refrain from doing certain things. Perhaps a total revision of the three lists in the light of experience and in the context of panchayat raj is also called for. A similar issue which may require even constitutional amendment is in respect of political parties, political defections and the need for stability of elected governments. Many changes in the Constitution did not succeed in bringing about the minimum required level of public morality in our political class. Political parties seem to have no constitutional accountability as they are not discussed in the document. Constitutional conventions have been conveniently and selectively abandoned by all parties making constitutional government extremely difficult even for the courts to organize. Therefore, while recommending electoral reforms, some constitutional amendments have been proposed by responsible bodies, including the law commission. The review commission may have to give serious thought to this subject without which the Constitution, whatever be its character, will not be able to deliver good governance. Finally, a constitutional culture has to be developed among rulers and the citizenry to enable good governance under the Constitution. This requires appropriate institutional mechanisms to instil constitutional values in all constitutional functionaries and to implement fundamental duties in a manner envisaged by the Constitution. The review commission will be well advised to look into this vexed question as well. The author is vice-chancellor, West Bengal University of Juridical Sciences, Calcutta