Reforming the Constitution 9788185674537, 8185674531

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Reforming the____ __ Constitution

REFORMING THE CONSTITUTION

REFORMING THE CONSTITUTION

Edited by SUBHASH C. KASHYAP

UBSPD UBS Publishers Distributors Ltd. New Delhi • Bombay • Bangalore • Madras Calcutta • Patna • Kanpur • London

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© Dr. Subhash C. Kashyap First Published 1992

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Foreword years since we adopted our Constitution on 26th January T he195042 have seen far reaching changes in the political, econo­ mic, social and intellectual life of this great country. The fact that we have worked a vibrant and dynamic democratic system with­ out any major breakdown for over four decades is itself a tremendous achievement, particularly when we compare it to the experience of other nations that achieved their independence during this period and which have fallen under non-democratic rule. Despite the great achievements of our democracy, however, it is now quite clear that our polity has come under tremendous pressure. The growing dout of money power and mafia power in elections; the escalating level of violence in many areas of public life; the widespread growth of corruption in all sections of our society; the recrudescence of social strife based on religion and caste factors; the imbalances that have developed in the functioning of our federal system; the severe problems being faced in the functioning of parliament and state legislatures; the erosion of the judicial system and many other negative factors have emerged which, taken together, represent a massive challenge to our constitutional and democratic structure. The Indian Constitution is the longest in the world, and it has already undergone 69 amendments. However, there is now a growing feeling that what is needed is a wide-ranging re­ appraisal of the entire situation in this country, and a study in depth of what changes need to be made in the Constitution to overcome the difficulties that we are facing and thus strengthen the foundations and the future of democracy in India. This could be likened to mid-course corrections in a flight schedule where the destination remains the same but adjustments have to be made in the light of the prevailing weather conditions. Dr. Subhash C Kashyap, who retired recently as Secretary-

vi Foreword General of the Lok Sabha, has devoted a good deal of time and energy towards the study of the Constitution. He is at present directing a Project undertaken by the India International Centre which has set up a Committee on the Constitution of India for this very purpose of looking into the whole spectrum of legal and constitutional reforms. In this volume, Dr. Kashyap has brought together a number of significant contributions by distinguished citizens who have brought their vast and varied experience to bear upon the area of constitutional reforms. I have pleasure in commending this volume to the interested public as part of the wider national debate that is such an important part of a democratic system. August 15, 1992

Karan Singh

Preface those who have given some thought to the Constitution of A llIndia and the way it has worked during the last forty-two

years generally agree ¿hat there is a need for review. Differences arise only when we come to detail and discuss the quantum, variety and direction of the changes that may be necessary and the mechanism that may be found feasible for bringing about the desired changes. Inasmuch as the constitution is a living, growing and ever evolving organism, it has been constantly under review ever since it was enacted. The first amendment came in 1951. By now, there have been as many as 69 amendments. On an average, the constitution has been amended once in every seven months, and every amendment has been an occasion for or the result of a review. There need therefore be no cause for raising eyebrows on a call for a review of or a re-look at the constitution. In fact, it has been very well said by one of the perceptive contributors that a re-look at the constitution may give to the new generation a much needed sense of participation and the thrill of democracy that has been lost in the cynical exercise of power. If we agree to review the constitution without any preconditions, to examine all demands on merits and to give up the puerile insistence on talking only within the contours of the existing constitutional provisions, it may be entirely possible to bring the agitating elements in Punjab, Jammu and Kashmir and elsewhere into the national mainstream. After all, constitution is not an end in itself but a means to serve the people. It is not immutable. If it could be amended to bring about the linguistic reorganization of States and again and again to implement the agreements in regard to Nagaland, Sikkim etc., there is no reason why it cannot be amended again to accommodate the genuine and legitimate aspirations of the people of Punjab, J & K etc. in the best interest of the nation. India and its constitution belong to them as much as to any other Indian and they are as much

viii Preface interested in the welfare of the people and in a bright future for the country as anyone else. It is sometimes said that it is not the constitution that has failed but the people or the politicians who have failed the constitution. Dr. Rajendra Prasad and Dr. B.R. Ambedkar are often quoted to make the point that there is nothing wrong with the constitution. If the men who are called upon to work the constitution are bad and dishonest and lack character, no constitution, howsoever good, can help. If the constitution fails, men must be vile. This may be true. Our leaders who have been charged with the responsibility of working the constitution may be as vile, wicked and dishonest as most of us are. But, are they not the products of the system? Has it not been the most perennial concern of Political Science right from the days of Veda Vyasa's Mahabharata and Kautilya's Arthashastra, and Plato's Republic and Aristotle's Politics as to how to find the best system that will give us the right kind of rulers? If the men are good, yes, they would make even a bad constitution work. But, should we keep waiting passively for good men to be bom or for angels to descend from heaven to make our constitution work or we should get on the job of reforming the constitution to suit our people and their needs. To me, the case for a review and reform appears not only unassailable but a categorical imperative in the present situation. We must act now and before it is too late. Almost the first necessary step may be the setting up of a Constitution Commission. As a student of Political Science and Constitutional Law, I have been writing and speaking at different fora on the theme of the present volume for at least a quarter of a centuiy now. In recent years, I have done so rather more extensively and freely and published many papers and articles in national dailies and magazines and spoken at institutes, universities, seminars, citizen's gatherings etc. in different parts of the country. The present work for the first time brings together valuable contributions from some of the most eminent Indians—scholars, jurists, journalists, administrators, diplomats and public men— who have been thinking on the theme of the working of the constitution and the need and the mechanism for reforms. Most of the papers included in the volume have been specially written by the distinguished authors at my personal request as a contribution to thought process and to debate on this theme of great national concern. All of them have taken

Preface ix pains to give a frank and succint exposition of their beliefs and conclusions in their own inimitable ways. I am deeply beholden to all these friends. I know they are among the few who are still moved by patriotic fervour and commitmentto ihe future wellbeing of this nation. The articles from the pens of Zail Singh, Lai Narain Sinha, Soli J. Sorabjee, B.G. Verghese and Lt. Gen. S.K. Sinha were originally written for a similar volume that S. Sahay had planned earlier. These have been received through his good offices and I am thankful to him. I must say, in all humility, that to edit a work like this—on such an important and hot theme and with such outstanding contributors—is more strenuous, difficult and delicate a task than to write one's own book. Nevertheless, it has been a pleasure to correspond and otherwise communicate with the distinguished contributors, put together their valuable papers and to edit this volume. For the facility of quick reference by the readers, I have added at the beginning of each paper a short abstract thereof. All the abstracts have been done by me and I alone am fully responsible for any inadequacies therein. Also, the abstracts are no substitutes for the original articles. They are meant not to dissuade but to persuade the readers and to whet their appetites to read the originals in full. In my anxiety to bring out the book by August 15 and before a National Seminar on the theme scheduled in August, 1992, I found that there was no time to refer the abstracts or the edited versions of the articles to the contributors for their approval. I know I can count on the indulgence of the contributors and the readers. I am deeply indebted to Dr. Karan Singhji, the distinguished scholar statesman, for a very illuminating Foreword. I hope the book will be received well and would hopefully start a wider national debate on the theme. For, to acquire greater legitimacy, suggestions for constitutional reforms and precise contours of proposed changes should result from the largest possible participation of the citizens. In all humility, personally it seems to me that the most difficult problem is that of the citizens wresting the initiative from the hands of the political parties and professional politicians who in their short-sightedness have developed a vested interest in status quo, in not solving problems, in keeping the people illiterate, backward and poor and divided and fragmented. How to replace this new breed of selfish, power-hungry, dishonest

x Preface politicians with decent men of honour and merit? Does the system play any role in producing the kind of representatives and leaders that are increasingly coming to the fore? Can something be done? Articles by distinguished authors included in this volume seek to answer inter alia some of these questions. Writing articles for this volume has been a labour of love for all the contributors and proceeds from the royalties of the book, with the kind consent of all contributors, shall be assigned to an institute or organisation devoted to the national cause of reviewing the constitution. July 1992

Subhash C. Kashyap

Contents Foreword by Dr. Karan Singh Preface PART I : INTRODUCTION 1.

The Constitution, Its Working and Need for Reforms Subhash C. Kashyap PART n : CONSTITUTION AT WORK

2. 3. 4. 5. 6. 7. 8. 9. 10. 11.

What Ails the System Zm I Singh Some Mutational Reflections on the Constitution V.R. Krishna Iyer Constitutional Aspirations and Directions— The Preamble and Directive Principles B.G. Verghese Freedom of the Press in the Constitution Soli J. Sorabjee Constitution and Federalism C.P. Bhambhri The Constitution and Reservation in Services U.C. Agarwal The Constitution and the Army S.K. Sinha The Amending Power—Legitimacy of Political Parties Lai Narain Sinha Constitution and Political Parties— In Defence of a Regulated Party System J.C. Johari Have We Failed? Sheila Dixit

xii Contents PART m : NEED AND MECHANISM FOR CHANGE 12. 13. 14. 15.

16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28.

Case for Fundamental Changes K. Brakmananda Reddy A Fresh Look at the Constitution B.K. Nehru Democratic Decentralisation—Need for Constitutional Reforms Vasant Sathe Inadequacy and Impracticability of the Present Constitution—Case for Major Amendments Dharma Vira Constitutional Changes and the Presidential System N.A. Palkhivala Case for a Constituent Assembly S.P. Malaoiya Towards Changes in Our Constitution— A Few Reflections Kireet Joshi Constitution of India—The Case for Reform Ramashray Ray A Constitution under Strain B.S. Raghavan Time for a Second Republic Hari faisingh Time for a Second Look S. Sahay The Imperative of Reform Vir Chopra Why Not a New Constitution? R. Ramachandran Plea for a New Constitution S. Ramachandra Rao Reconstitution of Indian Polity P.R. Dubhashi Constitutional Culture and Democratic Ethos as Ingredients of Constitutional Reform G.R.S. Rao Constitutional Reforms S.D. Bali

117 128 148

157 164 170 175 197 208 217 228 234 261 269 274 286 297

Contents

•••

Xlll

The Tenth Schedule of the Constitution V.S. Rama Devi Market Economy and Need for Constitutional Change Y.C. Halan Need for Electoral Reforms G.S. Rajhans Need for a Rational Constitution Dyal Singh Sodhi Is Restructuring Government Institutions Enough? G.P. Srivastava Urgent Need for Amendments—Plea for Constitution Reforms Commission P.G. Mavaiankar New Directions in the Emerging Scenario S.R. Mohnot Amending the Indian Constitution: Some Macro Considerations Iqbal Narain

301

Contributors

361

307 313 318 322 332 340 356

íPart I

Introduction

1

Constitution, Its Working and Need for Reforms SUBHASH C. KASHYAP onstitutionalism stands for a system of limited government and rule of law. It is opposed to any exercise of arbitrary or totalitarian power by the rulers and to any attempts at political change through violent means by the ruled. Its fundamental assumption is that sovereignty belongs to the people at large. But, sovereignty in the hands of the people is merely an abstraction. It is only in a primordial or revolutionary situation that the people may be said to be directly exercising their sovereign powers. Then, far from constitutionalism, it is the proverbial law of the jungle that prevails. In order to become exercisable, sovereignty has to be institutionalised. In the process of being vested in an institution or a governmental organ, it also gets limited and regulated. The powers of the rulers or of any organs of government are therefore limited by what is conceded or entrusted to them by the people. Sovereign power in the raw, in the hands of the people— unrestricted and unregulated—Can also be most dangerous. It is like a wild mountainous river, full of fury and tremendous power, causing massive destruction all the way down. In order to be used for development and human welfare, the river has to be tamed, the power has to be harnessed by building a dam over it, producing usable and safe energy and distributing it to the consumers in limited and controlled doses at every point. Constitutions are those dams by which the people tame and channelise their sovereign power. Constitution of a country seeks to lay down the political structure under which a nation is to be governed. It establishes the basic organs of the State—the legislature, the executive and

C

4 Reforming the Constitution the judiciary—and defines and delimits their powers and relationships inter se and with the people. Constitution is the foundational law which ordains the fundamentals of the polity. The legitimacy of all laws and all executive action has to be tested with reference to the constitutional provisions. But, constitution is much more than a mere inert document. It is a living organism of functioning institutional structures. Also, every constitution is an act of faith on the part of the people, embodies the vision of its founding fathers and reflects the objective values and aspirations of society. Making of the Constitution The Constitution of India had had an organic growth. It was being made all through the period of our national struggle for independence. It evolved through successive stages of the struggle—various resolutions and demands pressed through mass agitations—and small doses of constitutional reforms grudgingly conceded by the British rulers from time to time. Howsoever rudimentary in form in the early stages, the process of political institution building in the modem sense of the term can be gauged from as early as the late nineteen-twenties onwards. In fact, some of the provisions of the constitution can be traced back to the beginning of the British rule and the East India Company in India. It is a myth that along with the transfer of power on 14-15 August, 1947 the British were also transferring to India their institutions. As a matter of fact, the institutions continued by us after independence and/or embodied in the constitution were those which had grown and developed on the Indian soil itself, even though only partly on Indian demands and largely by British design. To say that the constitution was made by the Constituent Assembly which met during 1946-1949 would be both fallacious and misleading and at best a half-truth. It was not as if the Constituent Assembly was writing on a tabula rasa. From the point of constitutional system and structure also, the Drafting Committee or the various other committees and the Constituent Assembly itself were not engaged in the task of making an entirely original or new constitution or creating novel political institutions for India. The founding fathers had taken a conscious decision

Reforming the Constitution 5 not to put the past completely behind with a vengeance and start anew on a clean slate. Instead, they chose to build further on the foundations of the old, on the institutions which had already grown and which they had known, become familiar with and worked, despite all the limitations and fetters. The constitution rejected British rule, but not the institutions that had developed during the period of British rule. Thus the constitution did not represent a complete break with the colonial past. Also, constitution making and institution building being a living, growing, dynamic process, it did not come to a stop on 26 November, 1949 when the Teople of India' in their Constituent Assembly, were said to have "adopted, enacted and given" to themselves a constitution. Even after its commencement on 26 January, 1950, Constitution of India was being further made through its actual working, judicial interpretations and Constitutional Amendments. The story continued. The consti­ tution kept growing for better or worse and acquired newer and newer meanings by the manner in which and the men by whom it was worked from time to time. The concept of a Constituent Assembly implied the inherent and inalienable right of the people to determine their own future and decide the nature and type of the polity under which they liked to live and to give to themselves a constitution which would be most suited to their genius, ethos and aspirations and which would, according to their own perception, serve their best interests. But the Constituent Assembly of India was not the result of a violent revolution. It was not set up by the people of India on their own initiative. It was not elected by them either. It was set up under the terms of the British Cabinet Mission proposals. Its members were indirectly elected by the Provincial Assemblies which were themselves elected under the Government of India Act, 1935 on a highly restricted franchise covering hardly 11 per cent of the population of British India and the surrogates of the Princes, but not at all the people of princely states. Also, the Assembly was enjoined to draft a constitution within the terms of the basic framework spelt out by the Cabinet Mission. Speaking at the AICC on 7 July, 1946 Nehru had said "I do think that some time or other in the future we may have to summon our own revolutionary Constituent Assembly." Again on the eve of the opening of the Assembly on 8 December, 1946, he said: "It is true that the Constituent Assembly is not the result of a revolution although there were good many revolutionary

6 Reforming the Constitution influences at work for years.. .The Constituent Assembly in which we are going is not a revolutionary body. It is obvious that a revolutionary body cannot be brought into existence by the Viceroy or come as a gift from the Cabinet mission. Its greatest merit was that although it will be brought into existence by the British Government, they will have nothing to do with it after it has been set into motion."

It was only after the Partition and Independence of India on 14-15 August 1947 that the Constituent Assembly could be said to have become free from the fetters of the Mission Plan, but that too only under an Act—the Indian Independence Act, 1947— passed by the British Parliament. The Constituent Assembly consisted of some of the wisest men and women—great jurists, patriots and freedom fighters. But the fact remains that it was an elitist body of the chosen and not an assembly of representatives of the people. Many of the leaders of the Assembly belonged to landed aristocracy and the propertied classes. They were foreign-educated, western-oriented men who were nurtured in British concepts and culture and most fascinated by British institutions. Neither the ethos and genius of India nor the vision and views of Gandhi or JP seemed to influence them much. A slave looks to his master as the model and the ideal. He is anxious to copy. It was natural that we looked up to the system and the institutions of our rulers as the best. Even during the early days of the freedom struggle, one of the nationalists' chief demands used to be that the British should concede to their Indian subjects the same institutions and freedoms that they themselves enjoyed back home. The seeds of the colonial model of the parliamentary system in India can be traced back to this demand. Thus, when in the wake of a relentless campaign waged by the Congress for greater and more effective representation in running the affairs of the country, the Morley-Minto reform proposals provided, inter alia, for the expansion of legislative councils, Surendranath Banerjee said that the reforms were the "growing triumph of constitutional agitation" and that Morley could be regarded as the "author of Parliament in India". It is not surprising, therefore, that the constitution of free India reproduced large parts of the Government of India Act, 1935, which was the British Parliament's blueprint and charter for dividing India. The Indian National Congress itself had rejected it and decided to wreck it. The unfortunate facts were

Reforming the Constitution 7 that Indian independence was accepted in great haste on British terms and under duress and that Indians were being prepared for a long time to choose the form of government that they did. As K.M. Munshi put it: "We must not forget a very important fact that during the last hundred years, Indian public life has largely drawn upon the traditions of British Constitutional Law. Most of us have looked up to the British model as the best. For the last thirty or forty years, some kind of responsibility has been introduced in the governance of this country. Our constitutional traditions have become Parliamentary. After this experience, why should we go back upon the tradition that has been built for over a hundred years and buy a novel experience?"

Replying to criticism in the Constituent Assembly, Dr. Ambedkar similarly said: "As to the accusation that the Draft Constitution has produced a good part of the provisions of the Government of India Act, 1935, I make no apologies. There is nothing to be ashamed of in borrowing. It involves no plagiarism. Nobody holds any patent rights in the fundamental ideas of a Constitution "

The Vision of the Founding Fathers and Fundamental Values of the Constitution When the founding fathers sat down in the Constituent Assembly to frame a Constitution for India—"the high adventure of giving shape, in the printed and written word, to a nation's dream and aspiration"—they realised that first and foremost it was essential for them to tell the people what they stood for and what they wanted the nation to be. For this purpose they had to devise a word-picture which could serve as an inspiration for future generations just as the famous words of the American Constitution had done. This was achieved by the historic objectives Resolution moved in the Constituent Assembly by Nehru, on 13 December, 1946. The beautifully worded resolution cast the horoscope, so to say, of the Sovereign Democratic Republic that India was to be and it was this resolution on aims and objects that was transformed and incorporated into the constitution as the Preamble. The Preamble, as originally worded, speaks of "We, the People of India" constituting India into a "Sovereign Democratic Republic" securing for all its citizens justice, liberty

8 Reforming the Constitution and equality and promoting among them fraternity. Justice is further defined as social, economic and political. Liberty includes liberty of thought, expression, belief, faith and worship and equality means equality of status and of opportunity. Fraternity is important for "assuring the dignity of the individual and unity of the nation." These then are the fundamental values in which the founding fathers believed and which they wanted to foster among the people of the Republic and which they hoped would guide all those who, from generation to generation, were called upon to work the constitution. These values are further elaborated in the Fundamental Rights and Directive Principles of State Policy. The rights of the individual against the state are sought to be protected by an independent judiciary, provision of judicial review of legislation and making the validity of all laws subject to fundamental rights and according to the individual the right to move the highest court for the protection of his constitutional rights contained in the Fundamental Rights. The constitutional values of the Preamble, Fundamental Rights and the Directive Principles are supposed to permeate the entire constitution. Parliamentary democracy, adult franchise, independent judiciary, single citizenship, distribution of powers between the Union of the States, all flow from the Preamble. In fact, the whole edifice of the constitution and the structure of the political system were meant to protect and promote the constitutional values embodied in the Preamble. During the Emergency, by the Forty-second amendment of 1976, the words "socialist", "secular"and "integrity of the nation" were added to the Preamble along with a new article on Fundamental Duties. Our supreme constitutional values, therefore, may be said to be: • • • • • • • • • •

Sovereignty Socialism Secularism Democracy Justice Liberty Equality Fraternity Individual dignity, and Unity and integrity of the nation

Reforming the Constitution 9 All very noble words indeed embodying some of the highest values that human ingenuity and experience have been able to devise thus far. It was, however, perhaps the class character and the elitist composition of the Constituent Assembly that was responsible for distribution of basic human rights into the enforceable fundamental rights and non-enforceable directive principles of state policy. The poor, illiterate, hungry masses had no use for most of the rights like the right to property, freedom of thought and expression, equality of opportunity in matters of public employment etc. In any case, they were in no position to claim any benefit from these rights. The rights they needed were those of freedom from hunger, right to education, right to a living wage etc. All these were relegated to the non-enforceable principles. Constitution at Work The high principles and values embodied in the Preamble and Directive Principles of State Policy have largely remained mere words on paper and have not been followed or fulfilled in practice. The eminent jurist, Dr. L.M. Singhvi has spoken at length on how the task has remained unfinished. Socialism and Justice: Almost the highest pride of place in the Preamble is given to the term 'socialist'. It is mentioned next only to 'Sovereign'. Again, "Justice, social, economic and political" has been put higher than 'Liberty' etc. The Preamble also records the resolve of securing to all citizens "equality of status and opportunity". The Directive Principles specifically speak of the State securing a social order in which 'justice, social, economic and political' shall inform all institutions of the national life, striving to minimise inequalities in income, ensuring distribution of ownership and control of material resources, preventing concentration of wealth and means of production, providing equal wages for equal work, providing for right to work and education and such other principles from the book of "Socialism". The founding fathers were conscious of the fact that mere political democracy, i.e. getting the right to vote once in five years or so was meaningless unless it was accompanied by social and economic democracy. Political equality was not possible unless men were made equal on the social and economic plane as well. Right to vote for a hungry and illiterate man without clothing and shelter meant little. Dr. Ambedkar had said: "We do not want merely to lay down a mechanism to enable

10 Reforming the Constitution people to come and capture power. The constitution also wishes to lay down an ideal before those who would be forming the government. That ideal is of economic democracy."

Constitution was viewed by its makers basically as an instrument of social engineering, for bringing about, along with political rights, socio-economic justice under which the basic needs of the common man were fulfilled, where all without any discrimination could enjoy fundamental human freedoms and equality of opportunity. Gandhiji had hoped to wipe every tear from every eye. Nehru had vowed that so long as there were tears and suffering, the work would not be over. He had told the Constituent Assembly that its first task was "to free India through a new constitution, to feed the starving people, and to clothe the naked masses, and to give to every Indian the fullest opportunity to develop himself according to his capacity." The constitution was relevant only as an instrument of social change. A constitution which was not able to solve the problem of 'the poor and the starving' was merely a 'a paper constitution—useless and purposeless/ But, what is the track record? 'Socialism', 'Garibi Hatao' etc. were merely political party slogans without any content. They were symbols of populism and hypocrisy in our public life. Despite all these slogans and programmes and plans, nearly forty per cent of our population today is living below poverty line. Instead of inequalities being reduced, we see the gap between the rich and the poor has widened. According to the latest Times of India survey (TOI 13 July 1992): "India's poor, the officially acknowledged 254 million of them, have never had it so bad. Rising prices, falling employment, a general recession and savage cuts in the government's social sector spending over the past year have all conspired to give poverty a particularly gruesome face across the length and breadth of the country."

Even today, 45 years after independence, our basic problems are those of poverty, illiteracy, backwardness, overpopulation shortage of food and drinking water etc. Still there are nearly a lakh of villages in India which have no drinking water. Lakhs of children of tender age are subjected to high levels of pollution and to work in sub-human conditions. Unemployment has assumed alarming proportions. In absolute terms, the number of illiterates has increased since the commencement of the constitution. Thomas Jefferson once remarked, "If a nation expects

Reforming the Constitution 11 to be ignorant and free, it expects what never was and never will be." And, as a nation, today we have the dubious distinction of having the largest number of illiterates in the world. Soon, by the end of the century, unless the trend is reversed, we would be having in India the majority of the world's illiterate population. In the words of Jawaharlal Nehru: "We can hardly have a political democracy without mass education. In other countries full-blooded political democracy camc after education had spread a good deal as a result of the economic revolution which had prepared the ground for it. But in most Asain countries, certainly in India, we have taken a huge jump to hundred per cent political democracy without the wherewithal to supply the demands which a politically conscious electorate makes."

The latest economic policy of the government has been widely hailed and is considered by the articulate sections of the people to be the best thing to have happened to India in a long time. That it represents a total about turn of the so-called "socialistic" policies and of the values of socio-economic justice etc. enshrined in the constitution does not seem to bother them. The happiest have been the big business houses and the industrial lobbies. The stock market was in raptures till the bubble burst and the scam made big news. Even though 'socialism' like 'democracy7 is a much abused word and cannot be said to have any one definite connotation, he would indeed be a very bold man who can assert that the new economic policy is in keeping with any principles of socialism or that free market economy is compatible with a 'Socialist7Republic. It should not be difficult to appreciate whether or not the new liberalisation policies do or do not militate against the basic values enshrined in the Constitution of India. Dictionary meaning of 'socialism' would imply, in full or in part, placing means of production and distribution in public hands or under public control. In whatever manner we define 'socialism' and whatever possible meaning we assign to this term, in all honesty, it must be admitted—and hopefully even the Finance Minister who has a background of 'progressive' views would readily admit—that the openly pro-private sector policies of liberalisation, deregulation and privatisation cannot be considered 'socialist7 or directed towards securing to all citizens economic justice. Democracy and socialism can coexist but not socialism and a free market economy7.

12 Reforming the Constitution Whatever else it may or may not be, the new economic policy is an admission of the fact that socialism—even our brand of democratic socialism or socialist democracy—has failed, that the policy of the public sector enjoying the commanding heights of national economy or of public control of means of production and of equitable distribution of income, was ill-conceived or in any case, was no more relevant or valid in the changed circumstances. Mountebanks may coin terms like market socialism, but can there really be any marriage between free play of market forces and concepts of social planning, social engineering and public control of the means of production and distribution? Could a more flagrant violation of the basic elements or fundamental values of the constitution be even imagined until recently? If we are really serious and honest about our new economic policies and ending the license-permit raj and the inefficiency and wasteful expenditure of the public sector—and much can be said in favour—it is time we give up all hypocrisy and efforts at make-believe regarding our having made no departure from the constitutional principles or Nehruvian model etc. We must openly accept and declare the hard fact that the system has failed and that fundamental changes in the constitution like changing the preamble, giving up the socialist jargon, restoring the fundamental right to property etc. are called for. Secularism: The Constitution of India as given to us by the founding fathers did not recognize any State religion. It embodied the principles of non-discrimination on grounds of religion among the fundamental rights vide articles 14,15,16 and 19. By article 25 it guaranteed that all persons were "equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion. Every religious denomination was free to manage its religious affairs (art. 26). No one could be compelled to pay for promotion or maintenance of any religion or to take part in any religious instruction; wholly state-funded educational institutions were barred from imparting any religious instruction (arts. 27 & 28). The language, script and culture of minorities were protected and no citizen was to be denied admission to any educational institution on the ground only of religion etc. (art. 29). Also art. 30 ensured the right of minorities to establish and administer their own educational institutions. Thus, the Constitution could be said to have sought to establish a secular order under which the dominant religion or

Reforming the Constitution 13 the majority of the population did not enjoy any special privileges or preferential treatment at the hands of the State and the religious rights of the minorities were protected in different ways. But, what has happened during the last 42 years is different and far from the intentions of the founding fathers. The constitution has been amended to allow discrimination on communal/caste grounds and religious minorities and religious majority have been converted into political minority and political majority. We are still plagued by the virus of communalism. Communal riots continue. Discriminations on communal grounds are common. Why does it happen, who is responsible and who can really help? Every party accuses the others of being communal or pseudo-secular and every party considers itself to be genuinely secular. Just as Hinduism, Islam, Sikhism or different caste, linguistic, tribal or other affiliations and identities are used to build vote banks, the slogan of secularism is also used for the same purpose and unfortunately more in a negative sense. What is involved is not any high principle but sheer political convenience. People are fooled in the name of mosque or temple, religion or secularism. The ruling party and the parties in opposition all understand each other and the constraints and compulsions faced by each other. Also, they accommodate each other. There is almost a conspiracy among politicians of different hues to fool the people—whether Hindus or Muslims or others. What we witness is a drama for public consumption only. Dictionaries define 'secular' as pertaining to this world or to things "not spiritual", "not concerned with religion", "irreligious", "keeping State and education independent of religion" etc. On the other hand, speaking in the Constituent Assembly on the National Rag, Nehru of all persons said that a nation does not live merely by material things, "especially a nation like India with an immemorial past, lives by other things also, the things of the spirit". Dr. Radhakrishnan spoke of the Ashoka's Wheel in the middle of the Rag as the Wheel of Dharrna and said truth can be gained only by the pursuit of the path of Dharma. 'Truth—Satya, virtue—Dharma, these ought to be the controlling principles of all those who work under this Flag". Md. Saadulla, who was later a member of the Constitution Drafting Committee said: "India is very well noted for her spiritual attainments. Everywhere it is admitted that India has got a great spiritual message to send

14 Reforming the Constitution out to the different countries of the world. The saffron, as is well known, is the colour of all those people who live the spiritual life not only among Hindus but also among Muslims. Therefore, the saffron colour should remind us that we should keep ourselves on that high place of renunciation which has been the realm of Sadhus and saints, Pirs and Pandits . . . (By the Dharma Chakra) we should be reminded at all times that we are here not only for our material prosperity but also for our spiritual advancement. This Chakra was a religious emblem and we cannot dissociate our social life from our religious environments(emphasis added.)

If this is the importance of the Dharma Chakra in our National Flag, if this is how the founding fathers viewed religion and matters of the spirit, and if secularism means what the dictionaries say it means, can we honestly say that secularism was visualized as a basic feature of our constitution. Is it not true that we are changing our definitions of secularism etc. to suit compulsions of power politics and vote mathematics? Now and then, a proposal to ban 'communal parties' is mooted. But there is nothing new about it either. Such a proposal was first made by Ananthasayanam Ayyan&ar in a resolution in the Constituent Assembly (legislative) on 3rd April, 1948. He said that time had come to separate religion from politics, that for the proper functioning of democracy and for national unity and integrity, it was essential to root out communalism from the body politic of India. Any political party, the membership of which was dependent on religion, caste etc. could not be allowed to engage itself in any activities except those connected with the religious, cultural, social and educational needs of the community. The resolution which was duly passed by general acclaim, ordained the State to take all the necessary legislative and administrative steps in the direction. Shyama Prasad Mookherjee was of the view that if commu­ nalism was really to be ended, it was of the utmost importance that it did not find any place anywhere in the constitution. It cannot be that on the one hand we provide for the reservations on grounds of religion and caste and on the other propose ending of communal parties. Several members in the Constituent Assembly made the point that the reservations were communal in nature. Syed Karimmuddin warned the minorities that if they wanted to continue communal approach and activities they should be aware that it would not be possible to prevent the majority community from propagating majority communalism.

Reforming the Constitution 15 Prime Minister Nehru expressing the official approach to the proposal said that he was prepared to take all the possible steps with all the energy at his command to fulfill the objectives of the Resolution. It is surprising that even after 44 years of the passing of this resolution and the Prime Minister's assurance on the floor of the House, nothing has been done in the direction of banning communal activities or parties. We do hear, now and then, whenever it suits the demands of partisan politics, voices against the so-called virus of communalism. On the other hand, we also find the same parties that shout the loudest in denouncing communalism aligning themselves most closely with such communal parties and taking their support for getting to power or retaining power. If we are really serious about rooting out communalism from our body politic then along with 'secular' and 'secularism' wp would have to define in the constitution the terms 'communalism' and 'communal' as well. For example, if we go strictly by the definition given in the 1948 resolution, the BJP would not be covered as a communal party because no one is made a member merely on the ground of his religion and no one is denied membership merely on that ground. And, if we consider all those parties communal that contest elections on the basis of caste and communal affinities, probably all the parties would be covered by the definition. The hard facts are that we are all communal and casteist in politics but under the hypocrisy and masks of public service we have made communalism a dirty word. No party is willing to accept the 'communal' label. Congress, Janata Dal etc. call BJP communal while BJP regards itself as the most patriotic, genuinely secular and truly nationalist party. The BJP is critical of the Congress for its pseudo-secularism, minoritism and appeasement policies. In BJP's perception Congress is the largest communal party inasmuch as it has always depended upon its vote banks ~ of Muslims and other minorities to capture power and retain it. In fact, the slogans both of religion and of secularism are not matters of genuine faith or commitment for any major party. These are mere battle cries for winning votes. As for the concept of secularism in the constitution, at least twice in the Constituent Assembly, efforts were made through amendments to make a specific mention of the principle of secularism in the constitution. For example, amendment had sought to ensure that no law could be made which discriminates

16 Reforming the Constitution between man and man on the basis of religion, or applies to adherents of any one religion and leaves others untocuhed. All such amendments were summarily rejected by Dr. Ambedkar. Later, while speaking on the Hindu Code Bill in Parliament, he made it amply clear that he did not believe that our Constitution was secular because it allowed different treatment to various communities and the legislatures could frame separate laws for different communities. It was later in 1977, during the promulgation of Emergency that the word secular inter-alia was added to the Preamble. A new definition of secularism was talked about to mean equal respect to all religions—Sarva Dharma Samabhava. Under official definitions, secularism would mean that the State has no religion of its own, that it does not specially encourage or promote any religion and that religion should be considered a purely personal matter and should not be allowed to interfere in public life or in matters of State. But then, the constitution recognizes various religions and religious organisations. Also, it can extend financial assistance to religious institutions, change, regulate and end certain religious practices. It legitimatizes distinctions on the basis of community and caste in the matter of services under the State and allows public celebration of religious functions of various religions. The holders of highest offices of the State and the tallest political dignitaries make it a point to publicly participate in religious festivals, to visit religious places and pay obesiance and make a demonstration thereof, honour religious leaders—Imams, Bishops, Munie, Sadhus and Swamis—at open public gatherings. Judged by all this demonstration of religiosity, are we not one of the most religious State on the globe or does 'secularism' mean for us something entirely different from what all dictionaries say it means? Are we really trying to keep religion and politics apart or have they become more interlocked than ever before? Which party does not look at the caste and community composition of constituencies while giving tickets for elections? We all claim to be secular but our political and social behaviour is coloured by communal and caste conside-ration in almost all parties. Can we still say that we regard religion as a private affair of a relationship between the individual and his God? Can we honestly affirm that behind all this demonstration of religiosity, the real motivations are not those of the mathematics and the politics of vote merchants?

Reforming the Constitution 17 Where there is discrimination between man and man on the grounds of religion, where governors, ambassadors, Ministers and other high functionaries are appointed or not appointed because of the community or caste to which they happen to belong by the accident of birth, where even for the highest office of the Head of the State caste and communal considerations are seriously and shamelessly discussed, where there are separate laws and codes for different communities, where the admini-stration of places of worship can be entrusted to Government Officers, where under a 1925 Sikh Gurudwara Act, the State Government spends lakhs of rupees for conducting elections to the Shromani Gurudwara Prabandhak Committee and this Committee controls the huge gurudwara funds and runs the Akali politics, where no government has thè courage to enforce the laws in regard to misuse of religion during elections, where parties with communal denominations not only exist but participate in elections, where even fundamental rights are demanded and conceded on grounds of communities, it is a cruel joke to talk of secularism. The simple point is that religion should not be made an electoral issue and similarly the slogan of secularism should also not be allowed to be used to woo the votes of minorities, backward castes, tribes etc. in the struggle for political power. Unless the fundamental premises of representative principles and models and the electoral system are changed and the role of vote banks in the political power struggle is eliminated or considerably reduced, we cannot hope to root out communalism from our body politic. Fraternity: Fraternity, which is a much wider and more positive concept than secularism, has been largely ignored. In fact, according to the vision of the Founding Fathers, the values of justice, liberty and equality were particularly important for promoting among all the citizens a feeling of common brotherhood, for building an all pervasive Indian fraternity and for developing a pride in Indian identity. Fraternity itself was intended as an assurance of our dignity as individuals and of our unity as a nation. Unity and Integrity of the nation: The highest value in the minds of the framers of the constitution was to build a united India and an integrated nation from a highly heterogenous, widely segmented and fragmented society with many diverse pulls of various sorts.

18 Reforming the Constitution Concept of a nation is not fixed. It is fluid and changing. The consciousness of India as a geographical and cultural entity goes back to some five thousand years. But the concept of a nation state, i.e. nation as a sovereign political unit, with a single system of government, is of very recent origin, even in the West. Integration is the coming together, or fusion of diverse elements or different entities into one recongisable identity. Historically and conceptually, a nation slate is bom as a result of the disintegration of an Empire—as in the case of the Holy Roman Empire, the British Empire or the USSR—or through a process of integration of different values, cultural strains, social groups, tribes, races etc. into one people under a single entity. In either case, disintegration or integration must precede the emergence of the nation-state. Unless diverse elements are integrated into one whole, there is no nation. Also, integration into one whole does not imply an annihilation of various identities. It only means their getting subsumed into or under a higher unity. Western scholars who are more used to unilinear historical iiiodels of homogeneity, find it very difficult to appreciate the most characteristic Indian reality which has been that of a special pluralism situation leading to unity and strength—rich variety of hues blending homogenously into one whole. Through the ages, culture has been the greatest integrating force while politics has tehded more to divide. It was so in the past. It is no different today. By all the time talking of 'national integration, we seem to emphasize the fact that we are not a nation but are only struggling to become one. Also, the much flaunted cliche of unity in diversity has done tremendous damage to our national psyche. We want integration, but unfortunately emphasize diversity. If we look at the official TV ads for national integration, the image projected is more of our being dissimilar to each other than of being one people. If four Indians are shown, each is different from th ith e r in his dress, face and appearance. Yet, we want to be considered a nation and seek to project the image of unity through such ads. If we want unity, all diversity has to be shown as being within the unity and not the other way round. The constitution speaks of the Union of India, but we all the time talk of a Centre, Central Government etc.—terms which are a hangover from the 1919 Government of India Act and have done incalculable damage to the psyche of the people and the States by projecting a very distorted image of the Union-State relations and their respective roles.

Reforming the Constitution 19 We all know that today we as a people, as a nation, are more divided than ever before. The dreams of the founding fathers have been sadly belied. Emotional divisions—differences in the hearts and minds of men—are much more powerful and dangerous than the dividing lines on maps. Instead of coming together as members of the Indian fraternity, we have become more and more separated from our fellow countrymen, from our neighbours and friends on grounds of narrow religious, linguistic, caste and other loyalties. We are all anxious to find and strengthen identities other than the national. The smallest minority in the country today is 'Indian'. Democratic Polity. The founding fathers adopted the West­ minster system of democracy presumably because they were familiar with it and had had some experience of its working. Also, because of the background of the freedom struggle, they were particular about the accountability of the government to elected representatives of the people. Assured of their safe majorities in the foreseeable future, they seemed to have no worries about the stability aspects. Introduction of adult franchise without any literacy or other qualifications was an act of courage and faith on their part. Perhaps, before extending the franchise, they should have had a ten-year time table of compulsory education. People would have then better understood the value of education and of their right to vote. The oft-repeated populist jargon would like us to believe that our people though illiterate are politically wise and mature enough to exercise their right to vote, intelligently, freely and with a sense of responsibility. This is all nonsense, so much poppycock. It is a hypothesis worth testing and documenting whether the sudden introduction of adult franchise without literacy or other qualifications and the electoral system give a fresh lease of life to communalism, casteism regionalism and various other divisive forces and quests for separate identities? The present scenario is not very exhilarating. We are every day confronted with the general decline of values in every sphere—the communalisation and criminalisation of politics, the much talked of dominant role of money and muscle power, rampant violence and terror in several parts of the country, attempts to build power bases and vote banks by dividing the people into narrow groups on the basis of religion, caste, region, language and the like. Earlier, we could blame the British for their policy of 'Divide and Rule', but now, after independence why are our politicians doing the same?

20 Reforming the Constitution Perhaps, there is fundamental conflict between the needs of nation building and the polity established by the constitution. For nation building, we need unity and a general agreement at least on some fundamental national issues. On the other hand, for the power merchants the highest value is vote mathematics. Religion, caste, sub-caste, language, region, etc. come handy to divide the people, to create vested interests in their separate parochial identities and build vote banks. All this seems to have become essential for successful participation in the democratic process. Or, perhaps there is a fundamental dichotomy between the constitutional values and the super structure of the political system. The latter is not oriented or suited to protecting these values and time has come to consider whether we were wrong in trying to copy the western models and the Westminster system of parliamentary polity. The British Parliamentary system evolved through a long struggle between a hereditary monarchy and feudal lords in a small island with a large overseas empire. It is not easy to transplant foreign institutions on native soil. Also, it is not necessary that a system that succeeds in one country would succeed in another as well. For the success of the representative parliamentary democracy of the British type, there are certain essential pre-requisites like (a) the people should have become a nation, (b) there must be a general commonality of interests and agreement on fundamental national issues, (c) some economic stability and a certain level of prosperity must have been achieved already, (d) there must be relative absence of social tensions and an atmosphere of reasonable peace, (e) there must exist some democratic traditions, a more or less homogenous population and political consciousness among the people at large, (f) there should be a well-organised ideologically oriented, fairly stable system of two major national parties. Unfortunately, none of these pre-requisites existed in India at the time of the commencement of the constitution. They do not exist today either. India had not become a nation when the system of parliamentary democracy was imposed. We are still struggling to become one. Even today, unity of the nation and national integration and an Indian identity are merely cliches or slogans for speeches from public platforms. It is difficult to pinpoint any issues on which there is national unanimity or consensus. A healthy two party system has not developed thus

Reforming the Constitution 21 far. As for economic stability and prosperity, we have dismal poverty and are once again seen with a begging bowl. The leadership seems to have developed a vested interest in keeping the people poor, illiterate and backward. Unless the common man is provided economic security, right to vote is meaningless. Those who are educationally and socially backward and economically dependant, how can they be politically free or equal. In such a situation, representation goes to various vested interests, group and gang leaders only. When voters cannot understand the value of their votes and cannot appreciate national problems, to talk of representative parliamentary democracy is a farce. Questions about the suitability of the parliamentary system of the British type for India are being raised right from the times of the Constituent Assembly and the commencement of the constitution. Some members of the Constituent Assembly had expressed fears that the constitution they had framed might give rise to a new class of professional politicians which could be its undoing in as much as these people tend to become parasites on society and begin to live on their ministerships, memberships of legislatures etc. with nothing else to fall back upon. Adult suffrage may prove to be a monstrous experiment if it unleashes forces which work in favour of sectional interests instead of working for national good. Still earlier, no less a person than Gandhiji himself had this to say (as dted in Times of India, 20 December, 1990) about the British parliamentary system: "Parliament is without a real master. Under the Prime Minister, its movement is not steady but is buffeted about like a prostitute. The Prime Minister is more concerned about his power than about the welfare of Parliament. His energy is concentrated upon securing the success of his party. His care is not always that Parliament shall do right. Prime Ministers are known to have made Parliament do things merely for party advantage. All this is worth thinking over. I can have nothing against Prime Ministers, but what I have seen leads me to think that they cannot be considered really patriotic. If they are to be considered honest because they do not take what are generally known as bribes, let them be so considered, but they are open to subtler influences. In order to gain their ends, they certainly bribe people with honours. I do not hesitate to say that they have neither real honesty nor a living conscience."

In the years 1956 and 1957, two national seminars were held on the theme of the Future of Parliamentary Democracy in India. Several distinguished statesmen and national leaders—

22 Reforming the Constitution among them Jawaharlal Nehru himself—participated. From the discussions at these seminars it appeared to be clear that the road chosen by us was very unlikely to lead to the destination. Nehru himself was not free from doubts. Thus, referring to the growing complexities of administration, he said: "The problems of government have grown so enormously that sometimes one begins to doubt whether the normal parliamentary procedures are adequate to deal with them. I remember reading discussions about the growing difficulty in the British Parliament thirty years ago. They were not finding time to deal with these problems in detail and suggestions had been made from time to time for powers to be transferred to large committees of Parliament which could deal with legislation in detail and finalize it once the principle had been laid down by Parliament. That is one way of getting over the difficulty, but I do not know whe^Tfir any satisfactory solution has been found. Parliament nowadays have to work much harder than they used to. Members of Parliament get a vast number of papers to study which they can hardly read . . .. The business of government and the business of Parliament become more and more complicated and it becomes a little doubtful how far parliamentary democracy can carry on its work and solve such problems. Some kind of a division of authority may become necessary; otherwise problems might remain unsolved, unsolved problems are dangerous.... How far can parliamentary democracy be adapoted to meet these new burdens and functions of government satisfactorily, effectively and in time?"

Even today, after 42 years of the commencement of the constitution, we are facing the same stupendous problems of nation building and economic development with which the founding fathers had to grapple with. If anything, the problems have become more acute. The tall leadership of that generation is no more around and we are scattered from within. It has come to be believed widely that the system has led to and nurtured an axis between the businessman, the politician, the civil servant, the police and the criminal? For the new breed of professional politicians, national interest is the last priority. Power for its own sake or for personal ends has become the supreme value. They are more concerned with somehow getting to power and retaining it. Those in government remain so occupied in the struggle for sheer survival that they have no time for serving the people. Populism has acquired respectability and hypocrisy and sycophancy have attained the status of national characteristics. In this atmosphere, there seems to be no escape

Reforming the Constitution 23 from admitting that the system has failed to deliver the goods and meet the needs of the nation and satisfy the urges and aspirations of the people and that, therefore, a comprehensive review of political structures and functions is urgently called for. The position may be summed up through four simple propositions: 1. The vision of the founding fathers was that of building a united nation, an integrated society, removing poverty, backwardness and illiteracy and ensuring human dignity and an Indian fraternity. The constitution failed to achieve any of these aims. We failed to fulfil any of those aspirations. 2. The makers of the constitution believed that the Westminster system of parliamentary democracy would be the most suited to meet our needs. Perhaps, they were wrong. A truly democratic system suited to a country must evolve from within itself, with the free will of its people and on the basis of its own cultural values, background, genius and ethos. 3. The prerequisites essential for the success of the British type of parliamentary democracy do not exist in India. 4. In the context of our present day needs also, it is extremely doubtful whether the existing system can deliver the goods without being considerably reformed. Suggestions for Reform The constitution has been constantly under review ever since it was enacted. The first amendment came in 1951. By now, there have been as many as 69 amendments. The Constitution of India is perhaps the most amended constitution of the world. Upendra Buxi refers to the cartoon in which when asked for a copy of the Constitution of India, the bookseller tells the customer "Sorry, we do not sell periodicals here." Also, judged from the frequency of the use of article 356, it has been officially admitted, on an average roughly twice every year, that the constitutional machinery has failed. With so many amendments and so many cases of failure of constitutional machinery, it should not be surprising that a very large number of suggestions for reform have been made by scholars, jurists and public men. Some have, however, emphatically made the point that the constitution has not failed the people, but the politicians have failed both the

24 Reforming the Constitution people and the constitution. The point ignores the fact that the politicians are also part of the people and come from the same social milieu. In any case, the type of politicians who have more and more come to the fore after 1950 are very largely the products of the system established by the constitution, its demands, constraints and compulsions. Also, whether the constitution has proved unworthy of the people or the people have proved unworthy of the constitution, the inference would be the same— need for reforms. Some of the suggestions—many of them naturally opposed to each other—may be summarised below. Preamble and Fundamental Rights The Preamble may be restored to its original position particularly omitting the words 'secular' and 'socialist'. Article 31—The property clause—should be restored to its original position as a fundamental right. The Fundamental Duties and Directive Principles provisions may be omitted. Right to work, shelter, education and medicare should be made enforceable fundamental rights. Without these, rights to freedom of thought and expression etc. are meaningless. Not only untouchability but castes as such should be abolished by a constitutional provision. Articles 15(4), 25(2) and 30 which allow special provisions on caste or religious basis should be omitted. It should be the duty of the State to inculcate citizenship values. Government Parliamentary system is not suited to heterogenous societies. It is divisive and should be substituted by the Presidential system of the U.S. type or by a mix of the Presidential and Parliamentary systems, combining the elements of stability of the Executive with accountability to the Legislature as in France or by the German system of a constructive vote of no-confidence whereby in effect the Prime Minister is chosen by the whole House and continues as such unless a successor is chosen by the House. President should be free to appoint Ministers from among non-members or half of the ministers should be from outside parliament or no member should be a minister and anyone so appointed should resign his seat in the legislature.

Reforming the Constitution 25 President should have more discretion in the appointment of persons to constitutional offices like governors, C & AG, CEC, Judges etc. President should be directly elected by the people and should have one fixed term of 5 or 7 years. There should be provision for President's rule at the Centre with the Vice-President heading the Government. A mix of a Swiss system of statutory coalition with ministerial responsibility and a single executive may be suitable in our conditions. Prime Ministership may be rotated between the four regions of the country. All Ministers must file an open annual return of assets and income. The size of the Council of Ministers should be limited to l/10th of the total membership of the popular House and members should not be appointed to any other office with the minister's status. No one should be allowed to hold any public office for more than 2 or 3 terms. Membership of legislature of Ministership should not become a life long profession for anyone. Basic educational and other qualifications must be laid down for contesting election to legislatures. Union-State Relations There is a case for a wholesale review of Union-State relations. More powers—political, administrative, economic and financial— must be transferred to the States. There is no contradiction between strong states and strong Centre. India should be described as a Federal Nation State or as a Federation of States. There should be a general decentralization of powers down to the lowest grassroots levels. The governors should be elected but should have no power to issue ordinances. Development Planning process should be decentralized. No central planning is necessary. Planning Commission should be given constitutional status by being mentioned in the constitution. President's powers under article 356 to impose President's rule should be taken away. Centre should have no power to remove a duly elected State Government.

26 Reforming the Constitution Only eminent men and women should be appointed Governors. A new States Reorganisation Commission should be appointed. Kashmir model of federation as in article 370 may be considered for all the States. Elections and Parties Political power must be used for public service and not for party or personal ends. It is the responsibility of parties to unite the people on the basis of ideologies and to create harmony between social groups. Parties should be influences for modernization and politicization and should not be allowed to become forces for division on caste, communal or other parochial lines. Under Section 153A I.P.C., producing disharmony on grounds of religion etc. is prohibited and the candidate indulging in doing so can be disqualified. Such provisions of law must be strictly enforced. A party must be at least two years old before it can contest elections. Those guilty of electoral offences should be debarred from contesting elections for a period of 10 years. All political parties must be organised on democratic lines, must have regular elections, be registered compulsorily, have accounts audited and reveal sources of their funds. Company donation to parties should be banned. Total election time should be reduced to 15 days. No one should be declared elected unless he secures more than 50 per cent of the votes cast. No one should be allowed to contest election from more than one constituency. Election expenses should be drastically reduced and limits strictly enforced. These should cover expenses by candidates, their friends, parties etc. There must be State funding of electoral expenses. In every elective body, half of the seats should be filled by proportional representation. The role of parties in elections should be reduced. Negative vote should be provided for. During general elections, there should be provision for President's rule at the Union level. Electronic voting machines and identity cards for all citizens/voters must be introduced.

Reforming the Constitution

27

Defectors should invariably lose their membership and they should be debarred from all public offices unless they receive a fresh mandate. All Legislators must make a public declaration of their assets each year. Reservations Reservations were intended for a limited and temporary period only. Basic aim of the constitution was to strengthen fraternity and not separatism or discord. It would not be politically feasible to discontinue reservations on caste basis all at once, there must be an exit policy with planned and gradual dereservation to be completed by 2015. Thereafter, reservations should be allowed only on the basis of economic criteria. Amendability of the Constitution Not all the changes or reforms suggested require constitutional amendment. Many of these can be effected through ordinary laws, rules, regulations and orders or by establishing healthy conventions. Some can be brought about by moral persuasion and social pressure. The more fundamental suggestions, however would require amending the constitution in a smaller or bigger measure. Thomas Jefferson, one of the makers of the constitution of the United States had said: "Some men look at constitutions with sanctimonious reverence and deem them like the Ark of the Covenant too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human and suppose what they did to be beyond amendment. . . laws and institutions must go hand in hand with the progress of human mind . . . . As new discoveries are made, new truths discovered and manners and opinions change with the change of circumstances, institutions must advance also and keep pace with the times."

Jefferson believed that each generation could be considered a separate nation, "with a right, by the will of the majority to bind themselves, but none to bind the succeeding generation, more than the inhabitants of another country." Our founding fathers similarly were conscious of the fact that no constitution, howsoever good, could bind the succeeding

28 Reforming the Constitution generations. Nehru had said that there was no permanence in constitutions, that Independent India might not like the constitution framed by the Constituent Assembly, that another Constituent Assembly might be necessary and that the constitution, therefore, should be flexible and amenable to change and easy adaptation to changing conditions. The Constitution of India presents a mix of rigidity and flexibility in its amending procedures. While some of the provisions can be amended veiy easily, others require a special procedure. There are actually four ways in which the existing position under the constitution can be modified or altered: • Many articles of the constitution prefix the provision by words like 'unless (or until) Parliament by law provides otherwise', 'subject to any law that may be made by Parliament' or 'until provision is made by Parliament'. In all these cases, the founding fathers wanted the Parliament to lay down the law through normal legislation and were only making a temporary provision to take care of the interim period. Thus, by passing ordinary laws Parliament could in effect change the position under these articles of the constitution without actually changing a word of the constitution. • Certain constitutional provisions can be amended by legislation passed by Parliament by a simple majority. For example, new States may be established or admitted into the Union; area, boundary or name of any State may be altered and Schedules I and IV of the constitution modified (under articles 2, 3 and 4) by ordinary law after giving an opportunity to concerned States to express their views. Legislative Councils in the States may be established or abolished by Parliament by law on the recommendation of the Legislative Assembly of the State concerned (under article 169) and relevant provisions of the constitution amended accordingly. Similarly, Schedules V and VI regarding administration of Scheduled Areas and Tribes etc. may be amended by law. All these laws amended the provisions of the constitution but it is specifically laid down that they are not to be regarded as amendments for purposes of article 368 of the constitution which lays down the power and procedure for amendment of the constitution.

Reforming the Constitution 29 • Most articles of the constitution can be amended by Parliament under article 368 by a special majority of twothirds of the members of each House present and voting and a majority of the total membership of each House. • A few articles mentioned in the proviso to article 368 affecting the rights of the States or the position of the Judiciary require a further ratification by the legislatures of not less than one-half of the States. In the Shankari Prasad and Sajjan Singh cases in 1951 and 1965 the Supreme Court had held that under article 368 any part of the constitution could be amended and no constitutional amendment could be challenged under article 13(2) because that article applied only to ordinary laws, rules and regulations made in exercise of the ordinary legislative powers and did not cover constitutional amendments passed in exercise of constituent powers of Parliament. In the Golak Nath case (1967) the Supreme Court reversed its earlier stand and held that Constitutional Amendment Acts were also laws under article 13(2) and therefore if they "take away or abridge" any of the fundamental rights, they would be held invalid and ultra vires to that extent. This was the beginning of a battle between the Supreme Court and the Parliament. By the 24th Amendment (1971) Parliament amended the constitution to provide clearly that Parliament had the power to amend any part of the constitution including Fundamental Rights. In Kesavananda Bharti case (1973), the Supreme Court upheld the validity of the 24th Amendment but held by majority view that under article 368 Parliament could not alter the basic structure of the constitution. The theory was reiterated in Indira Gandhi vs. Raj Narain (1975) and Minerva Mills case (1980). In the latter the court further held: "Since the constitution had conferred a limited amending power on the Parliament, the Parliament cannot under the exercise of that limited power enlarge that very power into an absolute power. Indeed, a limited amending power is one of the basic features of our constitution and, therefore, the limitations on that power cannot be destroyed. In other words, Parliament cannot, under Article 368, expand its amending power so as to acquire for itself the right to repeal or abrogate the Constitution or to destroy its basic and essential features. The donee of a limited power cannot by the exercise of that power convert the limited power into an unlimited one."

30 Reforming the Constitution Thus, the present position under the law of the land as declared by the Supreme Court is that all articles of the constitution are amendable in accordance with the provisions of the constitution but any amendment which seeks to alter the basic structure, framework or features of the constitution would not be permissible. The court has not so far laid down what precisely constitutes the basic structure, framework or features of the constitution. According to one view, fundamental changes in basic features etc. can be brought about through the mechanism of a referendum or a Constituent Assembly. But then, if that were the intention of the founding fathers they could have provided for it in the constitution. Normally where a special procedure for amendment of the constitution is provided, there are no limits placed on the amending power. There may, therefore, be every case for challenging the theory of the basic structure before the Supreme Court and having it reversed. Mechanism for Change Once the political will is there, Parliament can go ahead with the desired fundamental changes in structures and institutional functions and then fight it out in the Supreme Court to get the theory of basic structure reversed. In the alternative, the proposed reforms could be placed before the nation for being approved or rejected in a referendum, or a new Constituent Assembly could be set up to frame a new constitution or re-form the existing one. It has also been suggested that there should be some provision for a constitutional review every twenty-five years or that there should be a National Assembly for Constitutional Review. For the methodology of setting up the Constituent Assembly various alternatives are suggested: (a) the present Parliament can convert itself into a Constituent Assembly. (b) Constituent Assembly may be elected by the present Parliament and State Assemblies. (c) Constituent Assembly may be elected directly by the people on the basis of universal adult franchise. (d) the next general elections may be treated as elections to the Constituent Assembly. Summing up and Conclusion I believe the case for an immediate need for constitutional reforms

Reforming the Constitution 31 is unassailable. The changing perception of our supreme constitutional values and of our needs and aspirations, the compulsions of the technological revolution and the changes in social and economic thinking all over the world and in India make it imperative. In fact, an early initiative in the matter may be of immense help in transforming the present national climate of doom, despondency and terror. Governments are run on the basis of confidence and with the consent of the people. The basic problem today is that of restoring the confidence of the people in the government, in the leadership and in the system. The mere announcement of a sincere willingness to immediately set up some appropriate machinery for all the necessary constitutional reforms, without any preconditions, would greatly reduce tension all around, mollify all hurt sentiments, hopefully bring the alienated to the national mainstream, and provide a peaceful, constitutional mechanism for achieving all the legitimate aspirations of different sections of the people and various regions of the country. I would suggest a few propositions for priority consideration of any machinery that is finally set up: 1. The constitution should be very small and should be confined to the fundamentals of the structure. Details should be left for consideration and regulation by legislation at various levels of Panchayat, Zila, State or Federal Legislatures. 2. The chief concern of the constitution should be to try to evolve a polity which would attract better quality of persons to public service and enable them to assume political responsibility and leadership roles at various levels. They should sacrifice their normal vocations for short and fixed periods to serve the people and discharge their duties as citizens. The system should be purged of the wholetime professional politicians who have no other vocation and no known sources of making a living. 3. Religion and politics must be honestly separated and caste and community made irrelevant in national politics. 4. We should stop the fruitless and largely irrelevant debates on various western models, on Presidential v. Parlia­ mentary, strong Centre v. States' rights, accountability v. stability and the like. We need to look at our own historical and cultural background and our experience of working various institutions and then decide upon the most suitable

Reforming the Constitution structures that would best meet our needs and fulfil our aspirations. As Sri Aurobindo has shown, the underlying principle of the Indian politico-social system right from the most ancient times has been that of a synthesis of autonomies of the village, of the town, of the local or regional, territorial or other administrative units. The kingdom or confederated republic was often a means of holding together and synthesizing a free and living organic system of autonomies. The same spirit was inherent in the concept of a Chakravarti. He sought to unite without destroying the autonomy of the units. Dharma did not allow the dethronement of the ruler of the unit or change of his officers, governors etc. The only function of the uniting agency was to establish suzerain power or a sort of overlordship. The chief aim in every case was that of strengthening the system of security against external enemies and ensuring peace and oneness among the participating autonomies. Indian polity even in the most glorious periods of her history had always been (if we must use the modem terminology) a sort of federal or confederal one. And, for us, there is none more suited. The earlier it is realized the better. 5. What we need above all is a decentralization and deprivatization of all political power. It must reach the lowest grassroots levels in full measure so that the people can really feel the glow of freedom and transfer of power to their hands. A three or four tier system of governance can be thought of with direct elections on the basis of adult franchise being held only for the village Panchayats. The Panchayats may elect the Zila Parishad. An electoral college of Panchayat and Zila Parishad members may elect the State legislature. An electoral college of Panchayat, Zila Parishad and State Legislature Members may elect the Governor of the State and Members of Parliament from the State. President of India may be elected by a still larger electoral college which should include the members of Parliament also. The Prime Minister may be elected by the members of Parliament and may continue unless a successor is similarly elected. There need be no bicameral legislatures. A proportion of professional and functional representation may be provided at every level. 6. Country may be divided into 50 to 60 States of almost

Reforming the Constitution 33 equal size with equal representation in Parliament. This would lead to greater stability, more accountability, stronger Union and better administered and more developed or fast-developing States. 7. Economic process and development planning should be completely debureaucratized. It should proceed from the grassroots level upwards. Economic, financial and adminis­ trative powers may be completely decentralised with the Centre being entrusted with the minimum necessary ones. 8. Constitution must provide a machinery for arriving at a compulsory consensus on some fundamental national issues like, for example, family planning, so that no party is able to take political advantage by inciting the masses or sections thereof against the larger interests of the nation. The country was never so badly divided as it is today. For those who are willing to see beyond today and beyond their sordid self-interests, the dangers were never so grave as they are today. Patriotism and politics for service appear to be characters from history. Every one is for himself. Public opinion all over the country is anxious for a change in the system. But nothing is being done because many influential sections of the people have come to have strong vested interests in the status quo. If the . scenario has to be changed, we must agree to make a beginning by appointing an official or unofficial Constitution Reforms Commission which would examine in depth all the problem areas, recommend reforms and also suggest the most appropriate mechanism for bringing about the recommended changes.

(Part II

Constitution at Worfç^

What Ails the System ZAIL SINGH POLITICAL party leaders adopt different attitudes towards dissent and agitations depending upon whether they are in power or opposition. In a democracy, Government must accept the demands of the people in a spirit of humility. Handled properly, troubles can be nipped in the bud. The system of elections must be changed to provide that no one can be declared elected unless he secures a majority of total number of votes, i.e., more than 50 per cent. Under the Anti-defection law, party leaders should not be allowed to become despots vis-a-vis legislators elected on their party tickets. Misuse of judiciary creates a crisis of confidence. Record of some senior members of the judiciary has not been above board. Two other problems needing priority attention are galloping rate of population growth and the poor status of women. Greater attention should be paid to the rights of women and children.

Independence I was brought into the vortex of politics A fter and along with it came the administrative responsibility.

With the culmination of freedom struggle of Praja Mandal in the erstwhile princely States of Punjab and the formation of PEPSU, I was directly involved in the administration of the newly-formed States Union as a minister and office bearer. The process continued upto 1982, when I was Home Minister in Mrs. Indira Gandhi's Central cabinet, till I was inducted as the President. The period of Presidency can be described as supra-administrative and suprapolitical, as the President has to be above direct administrative and political processes. He is administered an oath to preserve,

38 Reforming the Constitution protect and defend the constitution and the law. The ministers hold office during the pleasure of the President. The constitution reposes so much faith and trust in the President that he is not required to take an oath of secrecy. He is supposed to be the custodian of the constitution. Democracy is the main characteristic of our constitution. Our democracy is based on party system, which envisages opposition party (parties) apart from a ruling party (parties). Dissent is inherent in a democratic system, which can be expressed, besides legislatures, in public life. It can take the form of meetings, processions, demonstrations, agitations, strikes, lock-outs and hunger-strikes. Our leaders often adopt different attitudes to such demonstrations and other means of protest while out of power and in power. While out of power or in opposition, they try to assert their right to dissent in all its strength, but when they assume power, they question the right of others to express their disenchantment of the powers that be and attribute motives to the sincerity of the agitators. Due regard is not paid to the basic tenets of living in a free society, which confers privileges, and, of course, certain duties, on the citizens. Some stalwarts of our freedom struggle occupied positions of power in independent India, but there was a marked difference in their approach towards demonstrations and agitations after they assumed responsibility to administer the country. Ironically they tried to imitate the foreign rulers in dealing with popular dissent. During colonial rule the main focus of agitations was on gaining freedom, but after attainment of independence, many economic issues surfaced, social tensions grew, regional aspirations found articulation and with these, parties, groups, associations, fronts and Dais proliferated. These forces tried to find legitimacy in democracy, as people at large tasted power to discard governments found wanting in performance or whose policies failed to provide satisfaction to popular will, at the battle of hustings, but not all forces believed in silent persuasion and peaceful conversion of convictions. The more volatile or enthusiastic of them preferred agitational approach aimed at reaping quicker harvest and it is there that they provided pretence to the administrators for using the State machinery to coercive or hammer-sledge treatment. As a freedom fighter I was in the thick of the battle in a princely State, where weapons of repression were always kept

Reforming the Constitution 39 sharp and shining. I had ample doses of State violence and repression. On assuming responsibility of government, I vowed not to practise, what I loathed. I was dear in my mind that undue repression of agitations would deviate from the principles of democracy. The Constitution of India is an admirable document. If those in power abide by it in letter and spirit and remain steadfast in its true imple-mentation, our democracy can flourish in its glory and all our institutions can thrive fully. If agitations are handled with empathy and tact, lots of tensions and disaffection can be avoided and energies saved from dissipation. As per my experience, agitations grow out of legitimate aspirations and if steps are taken to meet fair demands of a section of the society, in all probability an agitation will die down. Fair play and sympathetic response from the rulers arouse appreciation and cooperation among the people. Inept handling can fan the flames of anger. In a democracy the rulers are in fact servants of the people and they have to act in a spirit of solicitude and humility. Without standing on false prestige, they ought to accept the legitimate demands of people because force often results in injury and loss of life. Such situations further inflame the minds and cause greater disaffection. Intransigence sets in leading to further violation of authority. That incites the administrators to take harsher measures causing a spiral of violence and vengeance. And that vitiates the whole body politic causing great social and psychological fissures. Suppression of acceptable demands, therefore, does not go hand in hand with prudent administration. A good administrator in a democratic set-up takes black-flag demonstrations, slogan shouting and strikes in his stride. When these forms of protest pose threat to public order or become catalytic to social harm, these have to be tackled with firmness, but tact. No impression should be imparted of official arrogance or vindictiveness, nor of apathy or weakness. No one respects a weak and ineffective administrator, nor someone takes kindly to an unduly harsh official machinery. Bullet is certainly not the answer to slogan-shouting. On the other hand if an agitated crowd is allowed to exhaust its steam by shouting slogans, it is helpful and healthy. It provides them with a degree of satisfaction that they were successful in putting across their point of view effectively. If circumstances so warrant, resort can be taken to temporary arrests and teargassing.

40 Reforming the Constitution In recent years some difficult situations developed in our country which caused considerable strain to our constitutional structure. A number of examples can be cited. Let us take the agitation for Gorkhaland and the Assam problem. At one stage the Gorkhaland issue became quite explosive. It was obviously not handled properly at initial stages resulting in a lot of acrimony and illwill. Later good sense prevailed and the issue could be resolved. I have a strong feeling that an earlier initiative in this matter could have avoided the bloodshed and loss of life and limb. The situation in Assam would not have been as it is, if more tact and foresight had been displayed. Deaths leave deep scars on the psyche of people and everything possible should be done to avoid unnecessary loss of life. We have been resorting to too many constitutional amendments. Since its promulgation in 1950, we have amended the constitution 69 times. Too many amendments detract from the sanctity of the constitution. Some of these amendments could have been avoided. Our democratic polity is a boon of the constitution and our constitution is a product of democracy. Both are sacred to us, because our democratic institutions are a guarantee to our freedom The long procession of events in history have proved beyond doubt that though democratic system is not without flaws and defects, yet it is best for the evolution of society. No other system has proved better than democracy so far. A democratic system may have many manifestations e.g. parliamentary system under monarchy or under an elected head,

Presidential system, indirect democracy and so on. Some nations call themselves democratic under one-party rule, but the spirit of a nation can better flourish in a multi-party democracy. One big flaw in our system is that a candidate who has secured a higher number of votes than his rivals, though the percentage of votes obtained by him is less than 50 of the total number of votes in that constituency is declared elected. Some parties though they secure a lesser percentage of total votes in the country or in a particular State, bag a larger number of seats. On the other hand, a party which might have polled a higher percentage of total votes might win lesser number of seats. To my mind, a candidate should be declared elected only if he has secured more than 50% votes in a particular constituency. If the

Reforming the Constitution 41 result is not clear, there should be repolling the next day after eliminating the candidates having lost their security deposits. No new candidate should be allowed to enter the fray. If on first repoll a decisive result does not emerge, a second repoll may be resorted to. This would in all probability throw up a candidate who has confidence of a majority of the electorate in his constituency. But if the result is still not decisive, more fixed time may be allowed to let the electors make up their minds to return an acceptable candidate with at least 50 per cent choice in his favour. As regards Anti-defection law, it is necessary to have it to prevent horse-trading. No legislator should be allowed to ditch a party on whose ticket he fought and won the election. But if he is absent from the House after issue of a whip, he should not be disqualified. A party leader should not be transformed into a dictator, representative of the people ought not to be allowed to assume the position of a despot. A legislator may not be left to wilter under the crack of a whip. Though such a system does not bear the nomenclature of dictatorship, it takes away the sheen of democracy. Judiciary has not so far been able to give a clear verdict on this anomaly. I hope it will rise to the occasion, clear the mist and strengthen the spirit of democracy. Whereas some politicians have been found lacking in the performance of their tasks, the Judiciary has also displayed certain weaknesses. During the past few years instances have come to tight when certain senior members of the Judiciary made Chairmen of Commissions of Inquiry have churned out Reports as per commands of the persons in power. And such legal personages have been rewarded after their retirement. This has caused damage to the system as it has to some extent been responsible for the erosion of faith of the people in our set-up. If a party in power uses judiciary for its selfish ends, it only depresses the minds of the people, who lose respect not only for the judiciary but for the whole system. It creates a crisis of confidence. A government resorting to such methods may comer some advantage, but in the long run it demoralises the masses, who are thrown in utter confusion about the institutions by the name of which they swear and hold sacrosant to their hearts. I feel very strongly about two areas i.e., galloping rate of population and the status of women. The government and also

42 Reforming the Constitution our legislators seem to have developed permanent pusilanimity in enforcing family planning in the country. Sanjay Gandhi, though he was not in government had taken some initiative in this field, but due to over-enthusiasm in implementation, things went awry. It caused a lot of stress and distress. But it does not mean that the bigger issue of family planning and checking the fast growing rate of population should not be tackled as a matter of national policy. People from all religions, states, sub-cultures and all strata of society should be brought together to deliberate and adopt agreed measures to tackle this problem in national interest. If the present generation overlooks this issue, we shall be leaving a very difficult legacy to the next generation, who would not know what to do. The laws relating to women and children are not being enforced strictly. Women form half of our population and children below 14 form a sizable segment of our populaee. A majority of our population comprises people below 35. The administrators have not treated the issue of exploitation, disabilities, discriminations and miseries to women and the under-privileged children with seriousness these deserve. My feeling is that a much higher priority should be assigned to the amelioration of the lot of women and much more should be done to enforce the rights of children in our society.

3 Some Mutational Reflections on the Constitution V. R. KRISHNA IYER EXPERIENCE of working the constitution has revealed many shortcomings which call for reforms. President’s rule over a state should be imposed only after a resolution to that effect passed by both Houses by a majority of all members and two thirds of those present. Articles 356 and 357 may be omitted. Similarly articles 200 and 110 providing for the Governor's and President's assent to Bills are not necesary. Speaker's certification of the Bill as passed should be enough.

efferson, the great statesman, was cited by Dr. Ambedkar in the Constituent Assembly for the proposition: "we may consider each generation as a distinct nation, with a right, by the will of the majority, to bind themselves, but none to bind the succeeding generation, more than the inhabitants of another country". Inevitably, it follows that the present generation must have the authority to shape and, if need be, to jettison existing provisions so as to advance the basic purposes of people's power through a system of decen-tralised democracy. Viewed in this perspective, one of the much abused provisions which must be removed is article 356. Another such otiose article is article 200; (and, in a similar vein, article 111 may also be excised). Though there are other grave shortcomings in the constitution, as nearly half a century of experience has revealed, I shall confine myself to the above two infirmities. No constitution is too sacred to be touched. Human limit-

J

44 Reforming the Constitution ations apply to our founding fathers. As new discoveries are made and new truths disclosed and new opinions jell, the laws must keep pace with the times. Law is for man, not man for Law. The federal essence of the Indian polity and the delicate balance of the relations between the Union and the States, if rudely shaken, will destabilize the political order and kindle disruptive forces armed with legitimate demands for autonomy free from Central tyranny. To suppress a people's puissant urges for change is to hasten disintegration, and the path of imaginative patriotism lies in accommodative mutations, not diehard obduracy. Taking a futuristic view, taking creative cognisance of the pernicious misuse in the past of constitutional power, I plead for a more honest federal system, not a mongrel pattern of quasi­ federalism, as we have now. A dialectically informed direction in decentralised democracy is a constitutional imperative. In this background, let us consider the implications of article 356 which, if the text be read literally, is a provision calculated to take care of the failure of the constitutional machinery at the State level, a situation of emergency designed to salvage democracy derailed by unconstitutional developments. Un­ doubtedly, the collective statesmanship of the constitutionframers did its best to preserve the federal structure and democratic texture except in exceptional cases where the breakdown of the constitutional machinery constrained the intervention of Central power for the limited purpose of rehabilitation of popular rule, and Presidential Administration in the interregnum only as a step in aid of re-installation of elected government. This deviation from the normal regime at the State level is fraught with danger because authoritarian motivation on the part of the Union Prime Minister may spell ruination through abuses and excesses indulged in utter irrespon-sibility. The jeopardy is all the greater when the Central Cabinet, through its own party or vicariously through a supportive coalition making up a parliamentary majority, commands control over the only watchdog, the two Houses. The protean potential of article 356 has often lent itself to consummate appetite in the hands of political pettifoggers in the Moghul mansions in Delhi, abetted by 'boneless wonders' in Raj Bhavans. Alas, custom reconciles us to 'everything', and little

Reforming the Constitution 45 minds with large powers are a self-righteous menace, especially when parliamentary checks are but the noisy motions of conditioned numbers! Although the safeguard of parliamentary ratification has been built into the provision, there has hardly been a single case where this vigilant sentinel has voided even the most blatantly mischievous misuse. The shocking instance of nine State Governments and legislatures being subverted by the Janata Government (1972) followed by an equal number of reckless Presidential coups by the Congress when it returned to power (1988), demonstrated the utter futility of parliamentary supervision and even judicial invigilation. A constitution is what a constitution does and when legis-lative and judicial instru­ mentalities remain illusory checks, people's poll upsurges become the only guarantee of self-government at any level. Our tragic times bear testimony to ballot baloney and booth robbery, with the result that the only residuary sanction for the preservation of government by the people is the militantly perennial and politically independent initiatives of the alert, aware and irrepressible public opinion, media crusade and sharp mass action on sheer Gandhian lines of strategy. Mobilisation of the democratic forces against malafide Presidential intervention, whatever the Parties and Coalitions, for reasons of expediency, is the categorical imperative of people's power at State tier. Article 356, experience teaches, is a remedy that aggravates the malady. I must clarify that there may be—why, there are—ministries in the States (as also in the Union) reeking with corruption, authoritarian excess or other vices and misuses but these gravely ubiquitous infirmities, which have shamed and shocked our Republic both in Delhi and State capitals, call for immediate, effective remedies. The soul of India is suffering asphyxiation; but President's rule, opportunistically operated, only aggravates the agony. Article 356 cannot be converted into constitutional terrorism or political nostrum for resolving other problems. Even some Union Ministers are allegedly corrupt, now and then, a pathology which has slowly infected even the judiciary. Some more glimpses of history vis a vis President's Rule. This Emergency Power is reduced to a comedy and a tragedy making constitutional democracy a mockery and a perennial menace to State-level popular government, whichever the party

46 Reforming the Constitution in provincial power. That great judge of the U S Supreme Court, Justice Douglas, has said: 'There is no such reservoir of emergency power in the Federal Government of the United States" (From Marshall to Mukherjee, p. 20). Governors usually have an important role since their reports are the first steps for the Centre to act. The article, of course, is wider but ordinarily Governors are obliging enough to furnish the required basis. Although independent advice should be tendered by Governors they have often functionally genuflected or played secret politics. This President's Rule syndrome applies not merely to the Congress Party but also to others who have tasted power at the Centre. Even when Governors decline to recommend President's rule, if the political party at the Centre wants to get rid of a different party in power at the State level, the Prime Minister disregards the Governor's advice and imposes President's rule under article 356. This was brought out when Karunanidhi's Government was thrown out by the Chandrasekhar regime. So also when Dr. Thomas declined to carry out the political strategy of the Congress (I). In my view, article 356 'red in tooth and claw' must be abolished and an alternative provision found for

the check on the powers of the State Government when it runs berserk and turns constitutionally vicious. A tentative thought: President's Rule may be imposed if, as a condition precedent a resolution is passed by both Houses, commanding the majority of the members of the Houses and two-thirds majority of the members present demanding President's rule. This will be a serious check on misuse of power under article 356 and, at the same time, will take care of extra-ordinary situations where intervention becomes necessary in national interest. The recent constitutional outrage committed by the Home Ministry in Nagaland is warning enough for the country, not to trust the Cabinet and the Houses too much. Dr. M M Thomas, Governor of Nagaland, declined to oblige the Centre and was dismissed from his high office uncere-moniously. Dr. Thomas claimed that his action in dissolving the Assembly on the advice of the Chief Minister was "in the true spirit of the federal structure of our constitution". Many vital issues challenge our attention regarding the role of Governors. But I would better focus attention in this paper on the constitutional chemistry of suspension of State autonomy under article 356.

Reforming the Constitution 47 During the days of the British Empire we had provision for Governor's rule because the British would not trust Indians. Today North Block acts like White Hall, and upsets elected State Ministries, if it is politically allergic to the Chief Minister of the Party in Power. The Sarkaria Commission has elaborately discussed the constellation of constitutional clauses (article 355, 356 and 357) and set out the gross abuse of article 356 in the past. One need hardly say that, imaginatively interpreted and wisely exercised, article 355 and 365 are more than adequate to safeguard State administrations from being derailed or contra-constitutionally run. Without elaborating this point I may state with emphasis that article 356 and the dependent article 357 are sinister supererogations and their continuance is fraught with grave mischief. Kindly read Sarkaria: "6.6.30—President's Rule was imposed in 13 cases even though the Ministry enjoyed a majority support in the Legislative Assembly. These cover instances where provisions of article 356 were invoked to deal with intra-party problems or for consider­ ations not relevant for the purpose of that article. The proclamation of President's Rule in Punjab in June, 1951 and in Andhra Pradesh in January, 1973 are instances of the use of article 356 for sorting out intra-party disputes. The imposition of President's rule in Tamil Nadu in 1976 and in Manipur in 1979, were on the consideration that there was maladministration in these States." [Page 177]

A sober sympathiser with the constitutional status quo like Justice Sarkaria observes in his Report: "6.322—Imposition of President's Rule thus brings to an end, for the time being, a government in the State responsible to the State Legislature. Indeed, this is a very drastic power. Exercised correctly, it may operate as a safety mechanism for the system. Abused or misused, it can destroy the constitutional equilibrium between the Union and the States." {Page 171)

Parliamentary ratification is an ex post facto futility. The Sarkaria Report States: "6.6.11—Be that as it may, Rajasthan case is important in as much as it highlighted the inadequacy of the two checks explicitly or implicitly recognised by the constitution against the capricious use of this extra-ordinary power. Firstly, it exposed the utter inefficacy of the control of each House of Parliament as a safeguard

48 Reforming the Constitution provided in clause (3) of article 356. The court found that, for two months from its issue, a proclamation under clause (1) of the article remains in full force and effect, irrespective of any approval or onapproval of parliament. If, within these two months, on the basis of that Proclamation and irrevocable order, such as dissolution of the State Legislative Assembly, is passed, either House of Parliament cannot, when the proclamation is laid before them as enjoined by clause (3), undo the same. In our opinion, it is high time that this loophole is plugged and the control of parliament over the exercise of the drastic power in article 356(1) made more effective." [Page 175]

The recommendations in the Report which is gathering dust have been 'more honoured in the breach than the observance'. I would regard it necessary, having regard to the fact that article 356 is the comucopea of capricious constitutional terrorism, that the provision be scuttled or handcuffed by the prior approval of a higher parliamentary majority. The retention of the President's Rule provision, with its blitz-krieg potential, is a temptation and a threat of Central tyranny. It is right to conclude this part with the caution of M C Setalvad: "What is needed, however, is the realisation of the true purpose of such provisions and a deep and anxious sense of responsibility in the exercise of the power. If the Centre repeatedly supersedes and takes over the administration of States from Ministries formed by parties different from the ruling party at the Centre in the name of the breakdown of the constitutional machinery in the State but really to promote the interests of the ruling party, the country would be heading towards a totalitarian democracy controlled by one party."

Article 200 There is a somewhat obnoxious provision detracting from the Houses plenary power to pass bills into law. The constitution makes the Governor a component part of the State Legislature (Article 168) although he is not a member of the legislature. However, no bill becomes law without the assent of the Governor. He may assent or withhold assent or reserve the Bill for the President's consideration. Very often when governments at the State level are formed by parties which are different from or

Reforming the Constitution 49 hostile to the Party in Central Power, Governors have a tendency to play politics with the power to assent. Indeed, it is an infraction of the legislators' plenary capacity to make laws. This is a simian imitation at once unnecessary and obstructive. Many State Governments have suffered humiliation on account of this provision, especially because the Governors, indifferent to their constitutional obligations, behave as instruments of the Centre. This question, when it arose in the Constituent Assembly, was answered on the assumption that there would hardly be any occasion for the Governor to exercise these powers irrespective of the advice of his ministers. But I know that the Kerala Education Bill was one where Central politics dominated the Governors discretion, although the Supreme Court eventually upheld virtually all the provisions of the Bill. In my humble view, article 200 is a slight on the dignity and authority of the Houses. The Sarkaria Report, while criticising the defects, concludes: "5.6.06—We are of the opinion that article 200 does not invest the Governor, expressly or by unnecessary implication, with a general discretion in the performance of his functions thereunder, including reservation of a Bill for the consideration of the President." [Page 148]

When a Bill is passed by the Assembly unconstitutionally the Court will take care of its ultra vires nature when challenged. Indeed, assent or no assent, ultimately it is the judicial pronouncement that concludes the validity of an impugned legislation. Parliament does not always face this situation because article 110 compels the President to sign the bill. "If he declines to give assent and recommends, through a message, 'reconsider­ ation' and the House, with or without amendment, passes the Bill again, "the President shall not withhold assent". In short, except as a constant irritant and authoritarian politicking, nothing is gained by keeping article 200—even article 110—in the constitution. The Speaker's certification of the Bill as passed and its due notification in the Gazette are sufficient. The power of the people's surrogates is the final touchstone of statutory enactment. As the Administrative Reforms Commission pointed out, the indiscriminate exercise of the assent power by the Governor may strike a blow at the federal spirit of the Constitution. Even Justice Sarkaria has opined that "in dealing with a State Bill presented to him under article 200, the Governor should not act contrary to

50 Reforming the Constitution the advice of his Council of Ministers merely because, personally, he does not like the policy embodied in ¿he Bill. The simplest and perhaps, the most straightforward answer to the problem of assent is the surgical process of excising the constitutional provision; otherwise it may paralyse the processes of the legislative instrumentality. Many substantial changes are necessary to strengthen the deep concerns and great commitments enshrined in the constitution in the light of four decades of experience. All these aspects cannot be covered in one paper. Only some have been touched upon. We have to wait for another day for fuller treatment; but we cannot blink at them, lest convulsions should overwhelm us all. Wisdom lies in radically guiding creative changes, rather than repressively driving them underground. Said Macaulay: "Agitations of the public mind, so deep and long continued as those which we have witnessed, do not end in nothing. In peace or in convulsion, by the law or in spite of the law, through Parliament, or over the Parliament, Reform must be carried. Therefore be content to guide the movement which you cannot stop".

4 Constitutional Aspirations and Directions The Preamble and Directive Principles B. G. VERGHESE THE preamble describes the ideals and aspirations of the Constitution while the Directive Principles and Fundamental Rights are the conscience of the constitution. The Directive of free and compulsory education for all upto the age of 14 has been neglected most shamefully. The Directive on public health has been similarly ignored. The result has been phenomenal population growth. Little hawbeen done to bring about real Panchayati Raj as the MLA and others are afraid of power and patronage slipping from their hands. Decentralization of power and major structural change in the polity and economy are essential if the term fraternity has to be respected. An optional uniform civil code will win ever-increasing adherents with the spread of education. It should not be imposed.

//TAT e, the people of India ... do hereby ... give to ourselves VV this Constitution." Thus reads the preamble. Forty-two years ago we were some 350 million; today we are 850 million. When Republic Day was first celebrated, "we", politically and socially conscious Indians, constituted perhaps no more than 40 per cent of the population. "They", the voiceless, made up the rest—an inert vote bank at best. Only 45.7 per cent of the electorate voted in 1952. By 1984 the voting percentage had risen to 64.1 per cent; but many of the rest were political persons with a mind

52 Reforming the Constitution and opinion of their own and even more so in 1990. So there has been a distinct quantitative and qualitative increase in "We, the People". This factor is of the greatest importance in considering both aspirations and directions. The preamble originally spoke of a Sovereign Democratic Republic promising justice, social, economic and political; liberty of thought, expression, belief and worship; equality of status and of opportunity; and fraternity, assuring the dignity of the individual. The underlying postulate favoured a liberal, democratic society, egalitarian in aspiration and plural in thought, belief, ethnicity and culture. The word secularism did not figure. Fraternity, a larger and, in many ways, richer expression subsumed the more narrowly-defined concept of Indian secularism which has been taken to mean equal respect or opportunity for adherents of all faiths and, up to a point, separation of church from state and school from church. It was in 1977 that Mrs Gandhi added "Secular" to the preambular definition of the State as well as "Socialist". The purpose of this was never clear, though some would suggest that the intention was to preclude any future declaration of Hindu Rashtra. It added nothing but circumscribed the content of fraternity which, however, has sadly remained a lost word and a forgotten constitutional attribute by one and all. The Courts too have time and again recalled liberty and equality but seldom, if ever, fraternity. "Socialist'' too was a misplaced intrusion into the preamble since India is not an ideological state and one of the fundamental rights guarantees all citizens the right "to practise any profession, or carry on any occupation, trade or business". The object was perhaps to put a gloss on the emergency. If so, this self-serving ploy deceived nobody. The character of the Republic as defined in the preamble and amplified in article 1(1) was also altered from a federated Union of States to a Confederation with the induction of Sikkim as an Associated State in 1974 until it was fully absorbed into the Union some months later. This very major Constitutional (35th) Amendment, changing the character of the Indian State, was adopted and rescinded with a hasty nonchalance that was quite breathtaking. It however introduced an innovative principle of political engineering into the constitutional scheme.

Reforming the Constitution 53 If the preamble defines the ideals and aspirations of the Indian people, the Directive Principles along with Fundamental Rights have been described as the conscience of the constitution. Fundamental Rights are the means whereby to attain the ends set out in the Directive Principles though these latter are nonjusticiable. Nevertheless, the Principles as stated in Article 37 are "fundamental in the governance of the country" and "it shall be the duty of the State to apply these principles in making laws". Thus even though a "fundamental" "duty", the Directive Principles stand on a somewhat different footing from the Fundamental Duties prescribed under the new Article 51A inserted by the 42nd Amendment in 1976. There was an abortive effort during Mrs Gandhi's "socialist" era to try and place clauses (b) and (c) of article 39 above Fundamental Rights. These sections prescribe "that the ownership and control of the material resources of the community are so distributed as best to subserve the common good" and "that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment". That was a period of competitive radicalism when rival leaders awarded themselves high marks for perfervid rhetoric. If there is one Directive Principle which should have been regarded as a fundamental duty in view of its overriding importance in upholding an egalitarian, libertarian, just and fraternal society, it was and remains article 45. This lays down that "the State shall endeavour to provide, within a period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years". Neglect and failure here has been studied and monumental. Thirty years after the constitutional deadline of 1960 we are still more than a decade away, perhaps two, from attaining this seminal objective while accumulating far and away the most shamefully large number of adult illiterates in the world. Second only to the failure in education is the failure in respecting another Directive Principle, article 47, which, in part, places "improvement of public health" among the primary duties of the State. This article also refers to raising nutritional levels and living standards and to prohibiting intoxicants injurious to health. For long years prohibition enjoyed a higher political

54 Reforming the Constitution priority than health which, in turn, was subordinated to curative medicine and hospitalisation when the emphasis should have been on public health and preventive medicine. The failure in primary education, especially of girls and disadvantaged communities, and of public and preventive health has aggravated runaway population growth which has undermined absolutely every other hope or objective. Another principle contained in article 40 regarding organising panchayats and endowing them "with such powers and authority as may be necessary to enable them to function as units of self-government" has also fallen by the wayside, tokenism apart. This Directive was something of an afterthought in the process of constitution-making and included as a sop to Gandhiji. The introduction of Panchayati Raj in 1959 was half-hearted and its partial success in States Uke Maharashtra resulted in its being emasculated by MLAs and others fearful of power and patronage passing to the grassroots. Decentralisation today remains the unfinished part of an eroding federalism and a major requirement for structural change in the polity and economy to delegate responsibility and accountability, ensure access and participation and provide emerging social identities a place in the sun. This has to be the wave of the future if the people at all levels are truly to become masters of their own destiny and if the awakening diversity of Ii *' is to be accommodated. This is what fraternity is about— and what the term secularism does not comprehend. That is why Uie preamble refers to securing to all citizens "fraternity, assuring the dignity of the individual and the unity and integrity of the nation". Respect for diversity alone can cement national unity. The talk of "mainstream" indigenes and Hindu Rastra in that context is therefore deeply divisive and runs counter to building fraternity, Hindu being here defined as a politico-religious entity and not in its original geo-cultural sense. Article 44 calls for "a uniform civil code throughout the territory of India". An optional civil code such as the Special Marriage Act, extending over the whole field of personal law should be unexceptionable and is overdue. A uniform code implies uniform principles or values of "liberty, equality and social justice" and not necessarily uniformity of law as such, mandatorUy imposed on all, ignoring religious, social and cultural

Reforming the Constitution 55 diversity. Hence the need to codify the personal law of all religious groups in India, distil the best in them and put together a uniform civil code which would be optional. Given education and time, a good uniform civil code will win ever-increasing adherents. But an imposed uniformity of law would be like imposing uniformity of dress, food, language or other aspects of culture in India. Such a diktat would serve little purpose and, far from promoting fraternity, would engender resentment and conflict. Unfortunately, the concept of secularism officially adopted has militated against religious reform, with the State siding with orthodoxy against reformist groups in the name of "secularism" and maintenance of the peace. Thus the State has repeatedly backed down from efforts to legislate a simple law of adoption which by its very nature is optional. On the other hand, Mr Rajiv Gandhi legislated the Muslim Women's Bill as it is popularly known, following the Shah Bano case. The whole issue was needlessly politicised. Incidentally, Goa has a uniform civil code which all comm­ unities.. Hindus, Christians and Muslims alike, have cheerfully accepted. Several of the Directive Principles have been implemented to some degree. Legal aid for the poor; schemes of public assistance; efforts to ensure just and humane conditions of work and maternity relief, a living wage for workers; promotion of the educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections; improving nutrition; modernisation of agriculture and, in a related Directive, prohibition of cow slaughter—through the latter has proved controversial in principle and application; protection of monuments; separation of the judiciary from the executive; and the promotion of international peace and security. Latterly, the duty to protect the environment, forests and wild life has been added. In some instances, certain Directive Principles have tended to become springboards for populism. Thus the National Front government proposed that the Principle of the right to work "within the limits of (the State's) economic capacity and development" be made a fundamental right. This is simply not practicable and has rightly been discarded by the successor Janata Dal (S) administration. Full employment is obviously a most

56 Reforming the Constitution desirable goal and all efforts should properly be directed to that end. But a justiciable right to work makes little sense. Likewise, if workers' participation in management implies joint management councils and other forms of consultation, none can object. But attempts to make this a statutory requirement by having workers, howsoever defined, elect one or more representatives to the board of directors of the enterprise or corporate group simply have not worked. Worker-Directors all too often tend to become Trade Union Directors and are unable to overcome the in-built conflict of interest. Indian industiy and trade unionism have yet to mature to the point when a worker feels he can comfortably play a role in higher management on the Board without being suspect if he does not use the forum to promote trade union interests. The key words in the preamble such as liberty, equality and fraternity cannot be narrowly circumscribed but will acquire width and depth as society develops. The courts have enlarged the meaning of many constitutional terms and provisions and thereby enriched and enlarged fundamental rights. Society too will reinterpret certain concepts in a wider context with progress and the passage of time. Thus liberty (or freedom) of (speech and) expression carries a larger connotation today than it did 40 years ago. The right to information is being bruited. It must come, as also the long-sought autonomy for broadcasting which all parties have conspired to retain as a tightly-held Central monopoly to the common detriment. The Preamble and Directive Principles are not mere goals but ideals which must stretch us and draw us ever onward and upward.

5 Freedom of the Press in the Constitution SOU J. SORABJEE FREEDOM of the Press is not specifically mentioned as a fundamental right. It has been held to be covered by the freedom of thought and expression. But, there is a view that it should be independently incorporated in the Constitution. Freedom of the Press, like other freedoms, is subject to reasonable restrictions by law, in the interest of the security of the State etc. vide art. 19(2). Reasonableness of a law is justiciable. Freedom of the Press includes a variety of rights. Actually, it is the right of the public to know without which Government accountability is not possible. Press can play an important role in the area of protection of human rights. The seed of freedom of information judicially planted has to be carefully nurtured.

ur founding fathers attached great importance to the freedom of speech and expression, and the freedom of the Press. Their experience of waves of repressive measures during the colonial British rule, when the Press was bludgeoned by sedition trials and forfeiture of security deposits convinced them of the immense value of this right in a sovereign democratic republic which India was to be under its Constitution. They knew that when avenues of expression are closed, government by consent of the governed would soon be foreclosed. Members of the Constituent Assembly hailed the guarantee of free speech and the freedom of the Press as the 'most important', 'the charter of liberties', 'the crux of fundamental rights', etc.

58 Reforming the Constitution Yet it is one of the curiosities of the Indian Constitution that the Freedom of the Press—"one of the pillars of democracy"—is not mentioned and guaranteed as such in the chapter on Funda­ mental Rights. At first blush this appears to be incongruous. During the framing of the constitution, questions were raised about incorporating freedom of the Press as a distinct fundamental right. According to the Constitutional Adviser, Dr. B.N. Rau, it was hardly necessary to provide for it specifically, because freedom of expression would include freedom of the Press. In the course of the Constituent Assembly debates, Dr. Ambedkar expressed the same view, and thought that "no special mention is necessaiy of the freedom of the Press at all." In a series of decisions, the Supreme Court has ruled that freedom of the Press is implicit in the guarantee of freedom of speech and expression, because it partakes of the same basic nature and character. The legal consequence is that freedom of the Press is one of the fundamental rights guaranteed in our Constitution. Yet one can appreciate the sentiment that urges its specific incorporation as a fundamental right in its own independent right, rather than depend upon judicial interpretation. Our founding fathers did not accept the doctrine about the absoluteness of any fundamental right including the freedom of the Press. Whilst recognizing that without a free Press there can be no free society, they realized that freedom of the Press was not an end in itself—but a means to the end of a free society. Freedom of the Press under our constitution can be restricted provided three distinct and independent prerequisites are satisfied: (i) The restriction imposed must have the authority of law to support it. Fundamental Rights cannot be restricted by a mere executive order or an adminis-trative instruction which lacks statutory basis. (ii) The law must fall squarely within one or more heads provided in article 19[2], namely, the security of the State, sovereignty and integrity of India, friendly relations with foreign States, public order, decency or morality, contempt of court, defamation or incitement to an offence. The only restriction which may be imposed are on heads covered by clause [2] of article 19, and none other.

Reforming the Constitution 59 (iii) The restriction must be reasonable; it must not be excessive or disproportionate. Legislation which arbitrarily or excessively invades a fundamental right cannot be said to be reasonable. The procedure and the manner of imposition of the restriction also be must be fair and reasonable. Reasonableness of the restrictions imposed by a law is justiciable. Courts in India exercising the power of judicial review may declare a law which does not satisfy the above requirements to be unconstitutional and strike it down. Does freedom of the Press occupy a preferred position in our constitutional scheme? In the view of some American jurists and judges, freedom of the Press, freedom of speech and freedom of religion are in a preferred position. This doctrine has not found favour with our Supreme Court. Under our Constitution no fundamental right can be said to be superior to another and there is no hierarchy of rights having preference for one freedom over another. Nonetheless, freedom of the Press has been accorded a high place, and there are dicta of the Supreme Court describing this freedom as the "most cherished and valued freedom in a democracy", "the Ark of the Covenant of Democracy", "the most precious of all the freedoms guaranteed by our Constitution. Moreover freedom of the Press has received generous support from the judiciary and a categorical assurance that as long as "this Court sits'' newspapermen need not have the fear of their freedom being curtailed by unconstitutional means. The Supreme Court has ruled that the right to Freedom of Press includes the right of free propagation and free circulation without any previous restraint on publication. Freedom of circulation is essential to the effective exercise of the Freedom of Press. Indeed without circulation publication would be of little value. Freedom of Press is not confined to newspapers and periodicals but includes pamphlets, leaflets, hand-bills and every sort of publication affording a vehicle of information and opinion. Newspapers have to be left free to determine their pages, their circulation and the new editions which they can bring out within the quota of news print allotted to them. A restraint on the number of pages, a restraint on circulation and a restraint on advertisements would adversely affect Press freedom.

60 Reforming the Constitution Any provision or measure which requires newspapers to reduce their size would be compelling them to restrict their dissemination of news and views and thus directly affect freedom of the Press and unless the restriction can be justified on the grounds mentioned in Art 19(2) and no other, it would be unconstitutional. In the celebrated case of Bennett Coleman, the Supreme Court ruled that a newsprint policy under the Import and Export Control Act cannot under the garb of distribution of newsprint, control the growth and circulation of newspapers. In that case the court also recognised that advertisements are not only a main source of revenue, but also one of the factors for circulation, and the loss of advertisements inevitably affects the circulation of a newspaper. Thus a restraint on advertisements infringes the freedom of the Press. An interesting case arose in Andhra Pradesh. The proprietor of a Telugu daily, Eenadu, complained that government had withdrawn advertisements from its paper on account of extraneous reasons, and this had adversely affected the revenue and circulation of the paper. This action of the government was challenged as unconstitutional. The High Court did not accept the contention that any newspaper had a constitutional right to obtain advertise-ments from the government It however ruled that the government cannot exercise this power or privilege "to favour one set of newspapers or to show its displeasure against another section of the Press. It should not use the power over such large funds in its hands to muzzle the Press, or as a weapon to punish newspapers which criticize its policies and actions. It has to use the funds in a reasonable manner consistently with the object of the advertisement, viz. to educate and inform the public about the activities of the government." The Press is not immune from the ordinary forms of taxation for support of the government nor from the application of the general laws relating to industrial relations. A liberal note however was struck by the court in its recent judgement in the newsprint case in which the Court observed that whilst newspapers did not enjoy any immunity from payment of taxes and other fiscal burdens, the imposition of a tax such as customs duty on newsprint is an imposition on knowledge. The court accepted the plea that a fiscal levy on newsprint would be subject to judicial

Reforming the Constitution 61 review because "In the case of ordinary taxing statutes, the laws may be questioned only if they are openly confiscatory or a colourable device to confiscate. On the other hand, in the case of a tax on newsprint, it may be sufficient to show a distinct and noticeable burdensomeness dearly and directly attributable to the tax." The court did not strike down the levy because all the relevant materials were not placed before i t The government was directed to reconsider the matter afresh and fix die import duty on newsprint in the light of the principles enunciated in the judgement. A fresh exercise was made by the government but that did not result in any substantial reduction in the impact on import duty on newsprint. What is the reason for the judicial soft spot for Freedom of the Press? Does a media person belong to a special class or enjoy a special privilege? Certainly not. As far back as 1914 in Arnold's case, the Privy Council declared that the freedom of the journalist is an ordinary part of the freedom of the subject, and no privilege attaches to his position. Our Supreme Court endorsed this position in 1959 and there has been no change since then. A dose analysis would indicate that one of the reasons for the judicial solicitude for the Freedom of the Press, is that it embraces a variety of rights. The right guaranteed is not merely the individual right of the proprietor of the newspaper, or the editor or the journalist It includes within its compass the collective right of the community: the right of dtizens to read and to be informed, to impart and receive information. In essence, it is the right of the public to know. The true rationale of the freedom of the Press is not merely to enable the Press to make profits, not to set newsmen apart as a favoured dass, but to bring fulfillment to the right of the people of India to know about the functioning of government and the working of public institutions. No democratic government can survive without account­ ability and the basic postulate of accountability is that the people should have information about the functioning of the government. Consequently, they must have access to information about every public act that is done in a public way by their public functionaries. This is necessary to form informed and intelligent d ecisio n s and for holding the institutions of governm ent accountable. Today a dtizen is largely dependent on the Press for the

62 Reforming the Constitution quality and the extent of news. He can seldom obtain for himself the information needed for the intelligent discharge of his political responsibilities. In seeking out the news, the Press therefore acts as the representative or, more appropriately, as the custodian and trustee of the public. The crux of the matter is that the constitutional guarantee of freedom of the Press is not so much for the benefit of individual press persons as it is for the benefit of the public. The true rationale and the sustaining vitality of the freedom of the Press lies in its ability and willingness to effectively perform its societal role of ensuring that public discussion of governmental affairs is informed. Informed public opinion is one of the most potent checks on maladministration. Thus the concept of freedom of the Press has a dimension and range that is vastly different from the ambit and content of other individual freedoms. It embodies the democratic principle of accountability, and is an instrument of democratic control. If we have not grasped this fundamental principle, then the freedom of the Press is a hollow slogan, a narrow self-serving concept, and the judicial encomiums showered on it are undeserved rhetorical flourishes. The Press, to the extent that it promotes expression of opinion in all its phases, and disseminates news from different sources, serves its purpose as the mighty "pillar of democracy". It serves public interest by throwing up a broad spectrum of views. It fulfills the individual interest of the citizen also if it enables virtually everyone—especially the inarticulate ones who are generally ignored—to find some place for the expression of their opinions in the letters column if nowhere else. Unfortunately most newspapers do not take this matter seriously and the problem of access to this communication medium is a real one. Should the Press fail to play its societal role, can it legitimately or morally invoke the benefit and protection of the constitutional guarantee of Freedom of the Press? A national daily which systematically and intentionally suppresses information or unjustifiably restricts its content and denies its accessibility to the public who are its readers, forfeits its trust as the national trustee of a vital public resource. It is no longer the educator of the public, and has ceased to be its watchdog and sentinel. Such a newspaper may yet claim the fundamental right to carry on

Reforming the Constitution 63 trade and business in which case the scope for imposition of restriction on its activities is wider. But it is not inarguable that in such a case it cannot invoke the guarantee of freedom of speech and expression which can be restricted only on limited grounds unlike in case of the fundamental right of trade and business. The problem however is who is to determine whether the newspaper in question has so disentitled itself. Obviously courts of law which are approached by the newspaper for the protection of its fundamental right But perceptions of judges can sharply differ in these matters. On the balance, it would be better to console ourselves with Madison's conclusion, "that it is better to leave a few of its noxious branches to their luxuriant growth, than, by pruning them away, to injure the vigour of those yielding the proper fruits. Can the Press freedom be subjected to precensorship? Barely four months after India became an independent Republic, the Supreme Court of India in May, 1950 had to resolve this question in Brij Bhusan v. State of Delhi. The court declared the statutory provision in question unconstitutional inasmuch as the restrictions imposed by it were outside the purview of article 19(2) as it then stood. It is important to note that the court did not lay down that prior censorship is per se unconstitutional. Indeed in 1957, the court upheld precensorship imposed for a temporary duration and which provided for a right of representation to the government under the Punjab Special Powers (Press) Act, 1956. The court was much influenced by the tension that had arisen between the Hindus and the Akalis over the question of the partition of the State of Punjab and which "might flare up into communal frenzy and faction fight disturbing the public order of' the State which is on the border of a foreign State." It is noteworthy that another statutory provision imposing precensorship but without providing any time limit or a right of representation was struck down by the court by the same judgement delivered on the same day. The question of the constitutionality of precensorship of cinematograph films arose squarely in 1970 in the case of K.A. Abbas v. Union of India. The Supreme Court upheld prior restraint on exhibition of motion pictures on the ground that "... it has been almost universally recognised that the treatment of motion pictures must be different from that of other forms of art

64 Reforming the Constitution and expression. This arises from the instant appeal of the motion picture ..." The court however emphasised the necessity for a corrective machinery, an independent tribunal and also a reasonable time limit for the decision of the censoring authorities. In laying down certain guidelines for the censor, the court emphasised that the "standards must be so framed that we are not reduced to a level where the protection of the least capable and the most depraved amongst us determines what the morally healthy cannot view or read. The standards that we set for ourselves must make a substantial allowance in favour of freedom." India's worst brush with censorship occurred during the Emergency declared by Mrs Gandhi's government on 25 June, 1975. Pre-censorship of the Press was imposed for the first time by promulgating the Central Censorship Order, dated 26 June, 1975. A host of repressive measures followed in the form of executive non-statutory guidelines and instructions issued by the censor to the Press. One of the instructions issued was 'Nothing is to be published that is likely to convey the impression of a protest or disapproval of a governmental measure/ Consequently anything that smacked of criticism of governmental measures or actions was almost invariably banned, even if the criticism was sober and moderate. The censor's scissors were applied arbitrarily and in a few cases its decisions bordered on the farcical. Quotations from Mahatma Gandhi, Tagore and Nehru were banned. A statement by the Chairman of the Monopolies and Restrictive Trade Practices Commission criticising the working of public sector undertakings was blacked out. Some of the censor's directives were more sinister, like the ones prohibiting any reference to the transfer of State High Court Judges, ban on publication of judgements of High Courts which were against the censor, and "killing" news of the opposition of certain State governments to proposed constitutional amendments. The Indian judiciary and, especially the State High Courts, displayed commendable courage and independence in striking down the censor's orders and upheld the right of dissent even during emergency. The High Court of Bombay in the landmark judgement of Binod Rao v. Masani delivered on 10 February 1976 declared:

Reforming the Constitution 65 "... It is not the function of the censor acting under the Censorship Order to make all newspapers and periodicals trim their sails to one wind or to tow along in a single file or to speak in chorus with one voice. It is not for him to exercise his statutoiy powers to force public opinion into a single mould or to turn the Press into an instrument for brainwashing the public ... Merely because dissent, disapproval or criticism is expressed in strong language is no ground for banning its publication ..."

The court, however, cautioned that the voice of dissent cannot take the form of incitement to revolutionary or subversive activities, for then instead of serving democracy it would subvert it. The State High Court of Gujarat in its judgement dated 22nd March 1976 in C Vaidya v. U Penha castigated the censorship directives for imposing upon the people *a mask of suffocation and strangulation'. In construing the expression 'prejudicial report', the court observed: "To peacefully protest against any governmental action with the immediate object of educating public opinion and the ultimate object of getting the ruling party voted out o f power at the next general elections is not a prejudicial report at a ll Such a public education is the primary need of every democracy." (Emphasis supplied).

These judgements were delivered at a time when "incon­ venient" judges were transferred from one State to another in India. Notwithstanding this, the courts rose to the occasion. Indeed it was their finest hour. At present, the scope and opportunity for the Press to perform its societal role are tremendous. One of the significant ways in which it can assist is the protection and promotion of human rights. The final Report of the International Commission for the Study of Communication Problems, presided over by Sean MacBride, emphasises that defence of human rights is one of the media's most vital tasks. The contribution of the media should be to expose by constant publicity all infringements, wherever they occur, and to support those whose rights have been neglected or violated. Specific cases of individual violations should be followed up as also cases of persons whose human rights have been grandiloquently upheld by courts but who have not yet secured any real and lasting benefits. The Supreme Court by a generous interpretation of the

66 Reforming the Constitution guarantee of the freedom of speech and expression has elevated the right to know and the right to access to information to the status of fundamental rights on the principle that certain unarticulated rights are implicit in the enumerated guarantees. In the words of Justice Bhagwati, "The concept of an open government is the direct emanation from the right to know which seems to be implicit in the right of free speech and expression guaranteed under article 19(1 )[a]". The seed of freedom of information has been judicially planted; it has to be nurtured carefully, with tact and discretion so that it may attain full and sturdy growth. In that important role, the Press has an awesome responsibility in ensuring that the right to know becomes an effective instrument of democratic control. Indeed it is then that it can be truly called "the Ark of the Covenant of Democracy".

6 Constitution and Federalism CP. BHAMBHRI

ONLY under accommodative and pluralist nationalism, multiple diversities of India can grow in a spirit of healthy co-existence and cooperation. The task is to build secular and modem identities by eliminating the negativism of local, parochial and exclusive social assertions. All India unity can be maintained by a strong central government because only it can protect the legitimate interests and aspirations of diverse social groups. Refederalisation of India with more adequate economic and financial powers to the States is necessary, but it does not mean a crippled Central Government. There is every case for harmonising a strong Central Government with strong State Governments.

he Constitution of India laid down the foundations of a unique federal system and in this effort the constitution makers had to grapple with complex conceptual, historical and political dimensions of the federal problem. A detailed institutional arrangement for federal governance of India was evolved by the constitution makers to reconcile many complex and contradictory aspects of inherited history. During the last four decades of its actual functioning, the Indian federal system has given rise to many critiques of the philosophy underlying the constitution. The essential characteristic of India lies in its unity in diversity. The process of formation of Indian nation has gone through a long historical development and through this process of evolution has emerged the concept of Indian nation. This

T

68 Reforming the Constitution definition of Indian nation is reflective of all the elements of diversity under the umbrella of an all-India consciousness. Many western scholars have recognised different models of nation-state. Barry Buzan observes: "A pure model of the nation-state would require that the nation precede the state, and in a sense give rise to it, as in the case of Japan, Germany, Poland, Switzerland and others. But it is obvious from a quick survey of the company of states that very few of them fit this model".

He further elaborates: "Many nations are divided into more than one state, like the Koreans, the Germans, the Irish, the Bengalis and the Chinese. And some states contain several nations, like India Yugoslavia, the Soviet Union, Nigeria and Britain".1

It is not only the Western scholars but many Indians also conceptualise that India is a multinational state. This conceptualis­ ation is in conflict with tfie historical understanding of the constitution makers who believed in unity in diversity and they rejected the idea of a multinational state because its basic premise did not accept unambiguously die unifying forces of Indian nation. The image of Indian nation in the minds of the constitution makers was based on die reality of unifying role of the Indian National Movement for independence. The leaders of Indian National Movement struggled against British imperialism by unifying all cultural and social groups of India. During this struggle, the masses evolved an all-India consciousness and this is the foundation of the idea of nation. Hence it is not an accident that the constitution established "India, that is Bharat, shall be a Union of States” This central idea i.e. "India, that is Bharat," was the guiding factor for the constitution makers who evolved a complex scheme of balance of power to promote unity by fully protecting the rich cultural diversities of India. Many special provisions were incorporated in the Indian Constitution to protect cultural diversities. First, article 370 of the constitution provides for special treatment for the state of Jammu and Kashmir. Second, Part XXI of the constitution is based on "Temporary, 1 Barry Buzan, People ,States and Fear, Colarado, Lynne Reinner Publisher, 1991 (2nd Ed.) p. 71.

Reforming the Constitution 69 Transitional and Special Provisions" which are meant for the State of Nagaland, the State of Assam, the State of Manipur, the State of Sikkim, the State of Mizoram, and the State of Arunachal Pradesh. Articles 370,371-A to 371-H are special provisions based on the recognition of specificities of different regions and many of these specificities were provided special protection by the constitution. Under such provisions of the constitution, fifty-third Amendment Act of 1986 mentions special provision with respect to the State of Mizoram (artide 371-G). The amended article reads; "Notwithstanding anything in this Constitution, "(a) no Act of Parliament in respect of— (i) religious or social practices of the Mizos, (ii) Mizo customary law and procedure, (ni) administration of dvil and criminal justice involving decisions according to Mizo customary law, (iv) ownership and transfer of land. Shall apply to the State of Mizoram unless the Legis­ lative Assembly of the State of Mizoram by a resolution so deddes;..." Such specific provisions are as significant as the unifying structures evolved by the constitution. Third, Part XVI of the constitution is concerned with "Special Provisions Relating to Certain Classes" like the Scheduled Castes, Scheduled Tribes and the Backward classes. Fourth, language and cultural identities of multiple linguistic groups of India have been fully recognized, promoted and protected by the constitution. The sum and substance of the detailed provisions of the constitution reveals the effort of the constitution makers to reconcile the needs of unity in diversity by accommo-dating cultural and social spedfirities with general system of federal governance. It makes D.D. Basu to observe: "In fine, it may be reiterated that the Constitution of India is neither purely federal nor purely unitary but is a combination of both. It is a Union or Composite State of novel type. It enshrines the principle that "inspite of federalism, the national interest ought to be paramount."2 2 Durga Das Basu, Introduction to the Constitution of India, New Ddhi, Prentice Hall, 1989 (Thirteenth Ed.), p. 62.

70 Reforming the Constitution Achievements of Unifying Federalism India inherited all the contradictions and distortions of a colonial economy. During the last four decades, the initiatives and interventions of the Central Government of India have succeeded in destroying the inherited colonial distortions and the country has achieved a level of capitalist modernisation along with a national market. The Planning Commission of India, the Finance Commission of India and many all-India federal institutions have played an important role in evolving an integrated economic development. The policy of location of public sector enterprises of the Central Government has facilitated tackling of some critical aspects of regional imbalance in the economy. Any effort to deal with the challenges of colonial inheritance could not have succeeded without the leadership of the Central Government and an active participation of the State governments. In actual practice, cooperative federalism in India has been a mixed story of achievements and failures. But, it must be clearly stated that an all-India market and important all-India institutions of national economic development have emerged as a reality because the Central Government was in the drivers' seat. Regional diversities and imbalances would have otherwise become quite sharp. Where do We Go From Here? Every constitution is based on certain assumptions and an understanding of social reality. But, the logic of social reality keeps on changing and the levels of aspirations of social groups also undergo transformations. The democratic political process in India has played a revolutionary role in transforming the levels of political consciousness of the people and many new democratic assertions are taking place in the country. The Jharkhand Movement reveals tribal assertions, and many cultural groups like the Tamils, the Telugus or the Assamese are making new demands on the basis of their cultural identities.3 Further, an important contradiction has developed between the logic of an all-India market and the promoters of the "sons of the soil" theory. 3See Myron Weiner and Mary Katzenstein, India's Preferential Policies: Migrants, the Middle Classes, and Ethnic Equality, Chicago, Chicago University Press, 1981.

Reforming the Constitution 71 Another important contradiction has emerged between the politics of ballot and the politics of bullet and many insurgency and terrorist movements have emerged for secession from India.4 The actual functioning of the federal system and the model of economic planning has sometimes failed to respond positively to regional aspirations which has led to the feeling of regional neglect and alienation. Many real and imaginary grievances have accumulated in parts of the country and a powerful view has developed that the centralised federal system created by the constitution is the real villian of the piece. An argument has been advanced that ethnic social groups are highly dissatisfied with the federal arrangement and the constitution should be drastically rewritten to refederalise the country. It has led Paul Brass to observe: "Ethnicity is to ethnic category what class consciousness is to class".5 This formulation should be rejected for many reasons. First, India's demographic composition shows mixed social relations because India is a country of migrants and such migration is a continuing reality which has been further facilitated by the emergence of an allIndia national market. Second, ethnicity always leads to social collision because if it is encouraged, its claimants stress pure ethnic identity. The Shiva Sena Movement of Bal Thackarey was not just a "sons of the soil" movement, it was an assertion of pure ethnicism. India will witness brutal civil wars and forced transfer of populations within the country if ethnicism is encouraged against pluralist and accommodative Indian nationalism. Third, ethnicity in India can be easily linked with religion and religio-ethnic groups will be and have been practitioners of communalism and religio-fasdsm in the country. Fourth, any exclusive social and cultural identity in any part of India will generate inter-ethnic, inter-religious, inter-caste and insider-outsider conflicts. This is the grass root reality of India. It is only under accommodative and pluralist nationalism, multiple diversities of India can grow in a spirit of healthy co-existence KSee C.P. Bhambhri, Politics in India: 1947-1987, Vikas, Delhi, 1988; Political Process in India: 1947-1991, Vikas, Delhi, 1992; Elections:1991, An Analysis, D.K. Publishers, Delhi, 1991; Politics in India: 1991-1992, Shipra, Delhi, 1992. 5 Paul R. Brass, Ethnicity and Nationalism: Theory and Comparison, New Delhi, Sage Publications, 1991, p. 19.

72 Reforming the Constitution and cooperation. The task is to build secular and modem identities by eliminating the negativism of local, parochial and exclusive social assertions. Strong Centre and Strong Stales It has been fully validated that a strong central government has shown capacity to accommodate cultural diversities and confront local and ethnic chauvinism. The linguistic aspirations of multiple social groups have been protected and promoted by the constitution and the actual practice of federalism during the last four decades. The peculiar history of North-East Indian States was tackled with firmness and democratic accommodation.6 How could insurgents be confronted without the power of the Central Government? The essential point is that an all-India unity can be maintained by a strong Central Government because only it can protect the legitimate interests and aspirations of the diverse social groups. If the terrorists in Punjab had not been confronted by the Central Government, Punjab would have witnessed large scale transfer of population and it would have set in motion a tragic chain reaction. The intervention of the Central Government legitimised the reality of Punjab where socio-cultural boundaries between the Sikhs and the Hindus are not based on mutual exclusion but this social reality needed to be protected against the assaults of the terrorists. How could a weak Central Government with minimum powers intervene in Punjab? This is the reason which stands against every version of the Anandpur Sahib Resolution of the Akali Dal. Refederalisation of India does not mean a crippled Central Government wjuch cannot protect Indians against the assaults of the terrorists and the practitioners of caste war or inter-religious wars or inter-cultural wars. Local and regional chauvinism is a reality of India and a distinction has to be maintained between the legitimate local aspirations and hegemonising tendencies of the local exclusive groups. Should Bal Thackarey be allowed to drive out non-Maharashtrians from Maharashtra? Should the Cauveiy River Water Dispute be allowed to drive out Tamilians from a 6See V.K. Nayar, Threat From Yfithin: India's Internal Security Environ­ ment, New Delhi, Lancer Publishers, 1992.

Reforming the Constitution 73 part of Karnataka? Should not the Central Government intervene effectively against excesses of local chauvinism because the local political leaders are a party to local negativism? A democratically constituted Central Government has the capability to look at thé problems from an all-India perspective and rise above local social and political linkages with castes and communities. It does not mean that India can be properly governed by a strong Central Government based on weak and helpless State governments. Many crucial areas of economic development of India demand an active involvement of the State governments. The State governments should have adequate economic and financial powers to respond to the specifics of economic tasks of specific situations. The successive Five Year Plans have played an important role in the economic development of the country, but its logic has left out many essentials of the specifics of the States. India has inter-regional imbalances and national resources are unevenly distributed among the regions. How can Assam accept the logic of underdevelopment alongwithlresources of oil, tea, and forests? The effort of establishing an all-India market is bound to fail if important regions suffer from economic neglect and under-development. This can be corrected by restructuring the constitutional scheme of resource allocation and distribution between the Central and the State governments. A distinction should W made between the wood and the trees and the essentials of federal governance of India cannot be ignored under the pressures of bullets of the terrorists or the insurgents. A complex and contradictory reality of India can be grappled by recognising that the all-India national consciousness is built on the foundations of multiple historical experiences and loyalties. An all-India loyalty is not in contradiction with plural cultural loyalties of groups based on democratic processes of participation in politics. India cannot have smooth governance either with authoritarian Central Government or with the practitioners of cultural intolerance. Federations have to balance contradictory demands and pulls and pressures. Indian federation is not an exception to this rule. The constitution recognised this basic problem of federal systems but every constitution is a living document The political reality of last four decades has revealed many new trends and these are challenges for the future. Will India surrender to local chauvinisms or successfully harmonise strong Central Government with strong State Governments.

7 The Constitution and Reservation in Services U.C. AGARWAL THE intention of the constitution-makers was to make reservation in services for backward class of citizens not adequately represented in services. It was to be only for a minority of seats and for a limited period. Any large-scale caste-based reservations, as suggested by the Mandai Commission, were against the intentions of the constitutionmakers who wanted to establish equality and fraternity and not separatism and discord. Not castes but poor and disadvantaged families should receive benefits of reservation. Advanced families among backward classes should compete with others in the general category. Under an exit policy, there should be progressive dereservation beginning with 1/2 per cent each year and ending all reservations by 2015. Also, there should be no reservation in promotion to higher posts. Since reservation issue has become highly politicized, no political party can oppose it openly, Constitution must, therefore, lay down a reservation policy and process. Article 16(4) should be amended.

constitutional provision has been so much misapplied N oandothermisinterpreted as the one relating to reservation in

public services. Clause (4) of article 16 allows reservation in public services under the State (i.e. Central and State Governments) for certain classes of citizens. This clause, in its present form was. incorporated only by way of an exception to the general provision

Reforming the Constitution 75 of equality of opportunity to all citizens contained in article 16(1) which reads: 16(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. Article 16(4) reads as follows: 16(4) Nothing in this article shall prevent the State from making any provision for the reservation of appoint­ ments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State. Thus, special treatment by way of reservation is meant for only "any backward class of citizens" who are "not adequately represented in the services under the State/' In the draft constitution, article 16(4) figured as article 10(3). Many members of the Constituent Assembly criticised the use of the word "backward" as it appeared to them to be vague and undefined and one that could lead to litigation later. When some members wanted to know if the word "backward" included the Scheduled Castes, Dr. K.M. Munshi replied that he could not "imagine a time when there is any backward class in India which does not include the Scheduled Castes". Hirday Nath Kunzru pointed out: "In the first place the word 'backward' is not defined anywhere in the constitution. There is another article in the constitution, namely Article 301 (which subsequently became 340) that provided for the appointment of a Commission to enquire into the condition of the backward classes. But, it is stated there that only those classes will come within the purview of the enquiry that are educationally or socially backward. There too there is no enumeration of the classes to which the enquiry will refer.... It is therefore, our duty to define the term 'backward' so that there may be no dispute in the future about its meaning". "Sir, I submit that toe should have a system that ivould not encourage

fissiparous tendencies and under which it will not be to the interest of any class to claim that it is backward, (emphasis added) It is desirable, therefore, to limit the operation of any special protection that we may grant—protection of whatever kind—that its duration should be limited, so that the legislature may from time to time be able to

76 Reforming the Constitution see how it has worked and how the State has discharged its duty toward the protected classes."

Considering the importance of the article and the doubts raised by many members, Dr. Ambedkar, the then Union Law Minister and the main architect of the draft constitution made a lucid speech to justify its need. He said that the Drafting Committee had to reconcile the views of those who stood for unqualified equality of opportunity for all without any reservations for anyone and the demands of communities who had remained outside the public services. If the demands were conceded in full, Dr. Ambedkar said, "we shall be completely destroying the first proposition upon which we are all agreed namely, that there shall be an equality of opportunity". By way of an illustration, he added: "Supposing for instance reservations were made for a community or a collection of communities, the total of which came to something like 70 per cent of the total posts under the State and only 30 per cent are retained as the unreserved, could anybody say that the reservation of 30 per cent as open to general competition would be satisfactoryTrom the point of view of giving effect to the first principle, namely that there shall be equality of opportunity. It cannot be in my judgement. Therefore, the seats to be reserved if the reservation is to be consistent with sub-clause (1) of Article 10, must be confined to a minority of seats. (Emphasis added). It is then only that the first principle could find its place in the constitution and be effective in operation. If honourable Members understand this position that we have to safeguard two things, namely, the principle of equality of opportunity and at the same time satisfy the demand of communities which have not had so far representation in the State, then, I am sure they will agree that unless you use some such qualifying phrase as 'backward" the exception made in favour of reservation will ultimately eat up the rule altogether. (Emphasis added) Nothing of the rule will remain."

In the original draft of article 10(3) reservation was allowed for "any class of citizens" who in the opinion of the State were not adequately represented in the services of the State. The word "backward" was added by the Drafting Committee to ensure that the size of reservation was kept small and they were not accused of producing a draft "in which the exception was so large, that it left no room for the rule to operate." Dr. Ambedkar also made it quite clear by emphasising repeatedly that the intention was to

Reforming the Constitution 77 limit reservation for "a minority of seats". He categorically said that the extent of reservation must not be so large that it left no room for the general rule of equality of opportunity to operate. The use of the word "class" and not "caste" clearly implied that people were not to be treated as "backward" on the basis of any caste origin. So far as the SC/ST sections of the "backward classes" were concerned (as was clarified by Dr. Munshi they were included in the words "any backward class of citizens"), article 335 specifically provided that their claims to services and posts shall be taken into consideration. It said: 'The claims of the members of the Scheduled Castes and Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection wit!» the affairs of the Union or of a State." Here, also reservation provision was not unconditional but "consistent with maintenance of efficiency of admini-stration". In fact, reservation for the SCs (then known as "depressed classes") was in vogue even prior to indepen-dence, being 8 .V 3 per cent in 1943 and raised to 12 V 2 per cent in June, 1946. This position continued even after the constitution came into force. For the first time, STs got 5 per cent reservation in 1950. Earlier, the STs were categorised as "primitive tribes". After the 1961 census, the reservation percentages were raised to 15 per cent for the SCs and 7.1/2 per cent for the STs. These were nearly in proportion to their respective populations in the total population of the country. Thus, the total reservation for SCs/STs on population basis came to 22.1/2% and was not considered to be too large to adversely affect administrative efficiency. These reservation percentages have remained unchanged. In addition to article 335, article 16(4) also gave constitutional protection to the policy of reservation already in vogue for the SCs/STs. Later in 1970 onwards the benefit of reservation in promotion was also introduced for different classes of services in stages for the SC/ST. Now it is in vogue for all promotions upto the lowest rung of Class A services. For higher level promotions within Class A, relaxed standards are applied to the SC/ST candidates so that no one is denied promotion in his turn unless he is graded as positively unfit. Reservation in promotions, after

78 Reforming the Constitution applying relaxed standards and even relaxation of qualifying experience has, however, led to inequities and a good measure of demoralisation among the general category employees. While reservation for initial recruitment of SCs/STs was not adversely viewed reservation in promotions has been a matter of resentment The constitution makers perhaps did not feel the urgency of deciding the question of reservation for "backward classes" other than the SCs/STs. They left it open. They were not quite clear as to who else would come within its scope. It may be seen that article 16(4) talked about "any backward class of citizens", but article 15(4) permitted special provisions for the advancement of "any socially and educationally backward classes" of citizens inclusive of the SCs/STs. However, this clause of article 15, was introduced by way of an amendment in 1951. Infact, this was the very first amendment to the constitution. The main article 15 prohibited discrimination between citizens "on grounds only of religion, race, caste, sex, place of birth or any of them". Prior to the commencement of the constitution, in some States like Tamil Nadu, seats in medical and engineering colleges were distributed among different communities on caste and communal basis. Candidates could compete only for their communal quotas. This position was challenged in the Supreme Court under articles 15 and 29(2) as being discriminatory and ultra vires of the constitution. The 1927 order of Tamil Nadu (then Madras) Government popularly known as the Communal G.O. was struck down by the Supreme Court in 1951. Since the relevant order was meant to protect the interests of the "socially and educationally backward" communities it became necessary to amend article 15 by providing an exception under clause (4) of article 15. The new clause provided that "special provision for the advancement of any socially and educationally backward classes of citizens or for the SCs/STs" would be permissible. The language of this new clause was similar to the language used in article 340 which empowered the President to appoint a Commission "to investigate the conditions of socially and educationally backward classes" and to recommend improvement measures. The first Backward Casses Commission was appointed in 1953 under the Chairmanship of Kaka Kalelkar, which submitted its report in March 1955. The Commission was required under its

Reforming the Constitution

79

terms of reference to identify "socially and educationally backward classes" and suggest measures for their advancement. The Commission took the view that "backwardness" was related to caste ranking in the traditional social hierarchy of the Hindu society. It did not go any deeper into any other important causes of backwardness. On the basis of their occupations only, held to be somewhat lower in social estimation, the Commission listed 2399 castes covering over 50 per cent of the Indian population as socially and educationally backward and suggested reservations in Government services for them to the extent of 25 per cent in Class 1, 33.V 3per cent in Class II and 40% in Class III and IV to improve their social standing. The report was however, not unanimous as 5 of the 11 members did not accept caste to be the sole cause of backwardness. Even the Chairman of the Commission in his letter forwarding the Report to the President did not support reservation in public services as a remedy to backwardness. He mentioned that several million people of the inter-mediate castes like Cowherds (Yadavs), Carpenters, Telis, Kumbhars, Goldsmiths etc. treated as "backward" did not suffer humiliating social handicaps like the SCs. If they did not go in for education, the fault was their own. Society itself did not hold them back as it had done in the case of the SCs. Any reservation by way of special consideration to these intermediate castes, according to Kaka Kalelkar, was uncalled for. He stated: "I am definitely against reservation in Government Service for any community for the simple reason that the services are not meant for the servants but they are meant for the service of society as a whole."

Government finally did not accept the report on the grounds that first, it had assumed "caste" as the sole basis for identifying backward communities and secondly, far too many castes (2399) covering a very large population of the country had been included for special treatment. Rejecting the recommendations, the Government order stated: "It cannot be denied that the caste system is the greatest hindrance in the way of our progress towards an egalitarian society, and the recognition of the specified castes as backward may serve to maintain and even perpetuate the existing distinctions on the basis of caste.... If the entire community, barring a few exceptions, has thus to be regarded as backward, the really needy would be

80 Reforming the Constitution swamped by the multitude and hardly receive any special attention or adequate assistance, nor would such dispensation fulfil the conditions laid down in article 340 of the Constitution".

Government felt that the best way to deal with the problem of backwardness would be to improve economic conditions through the planning process for educational and economic development of the backward classes. Government of India, accordingly while intimating the States regarding rejection of the Backward Classes Commission Report stated: "They (Government of India) also consider that while the State Government have the discretion to choose their own criteria for defining backwardness, in the view of the Government of India it would be better to apply economic tests than to go by Caste."

After the Kaka Kalelkar Commission's Report was rejected by the Central Government and the field was left free to the State Governments to devise their own ways to classify communities as "backward", some of the southern States where backward classes were agitating for reser-vations allowed this rather liberally by favourable interpretation of the recommendations of the enquiry commissions set-up by them. In some States, for example Karnataka, the reservation percentages were very large and far too many castes were treated as "backward". These reservations as anticipated led to litigation in the High Courts and even in the Supreme Court. In one famous case known as Balaji vs. State of Mysore, the Supreme Court decided some important points relating to backward class reservations. In this particular case the dispute arose as reservation of seats in the medical and engineering colleges of the State was raised to 68 per cent (50 per cent for OBCs and 18 per cent for SCs/STs) and the reservation was caste-based. The Supreme Court observed: "the concept of 'backwardness' is not intended to be relative in the sense that any classes who are backward in relation to most advanced classes of the society should be included in the list of backward classes. Also, backwardness under Article 15(4) must be social and educational, and not either social or educational"

Regarding the quantum of reservation, the court held that the interests of the weaker sections of the society had to be adjusted with the interests of the community as a whole. Therefore, "speaking generally and in a broad way, a special

Reforming the Constitution 81 provision should be less than 50 per cent, how much less than 50 per cent would depend upon the relevant prevailing circum­ stances in each case." Accordingly, reservation of 68 per cent for backward classes, Scheduled Castes and Scheduled Tribes was considered excessive and declared unconstitutional. After the above decision of the Supreme Court, the States wrongly assumed that reservation percentages in all cases could go up to 50 per cent. This was, however, not the intention of the Supreme Court. It was to be "less than 50 per cent" and how much less was to be determined in each case on the basis of "circumstances". Obviously, it implied that reservation should be for "minority of seats" as had been indicated by Dr. Ambedkar. In 1979, during the Janata regime at the centre, another Backward Classes Commission under the Chairmanship of Shri B.P. Mandal was appointed under article 340. All the members of the Commission were, however, from the backward classes except Shri L.R. Naik who was from the SCs. The Commission submitted its report in December, 1980—with a dissenting note from Shri Naik, the only non-OBC member. His objection was that the Commission had wrongly categorised many undeserving castes as backward for reservation purposes. Since the Commission was not broad-based, it committed the faults of the earlier Backward Classes Commission on a bigger scale. It classified as many as 3743 castes as backward with a population of 52 per cent of the total Indian population. Among Hindus all castes except SCs/STs, Brahmins, Vaishyas, Kshatriyas, Rajputs, Jats, Kayasthas and Marhattas were classified as backward. As a measure of window-dressing, various other criteria of backwardness were claimed to have been applied but the results revealed that the classification was simply caste-based. If to a 52 per cent population of "Other Backward Classes" 22l/ 2 per cent of SC/ST population was added, 74V 2 per cent of the Indian population came under the category of backward classes. This might be found to be true from economic and educational angles but obviously for such a large percentage of the people special attention by way of reservations in government services would be of doubtful merit and utility. Any special treatment could be meaningful only for a small section who were not able to compete on equal footing with the larger groups. Again, if the total percentage 6f reservation becomes very large it would defeat the

82 Reforming the Constitution main provision of equality of opportunity as had been clarified by Dr. Ambedkar in the Constituent Assembly. The Mandal Commission had recommended 27% reservation for the OBCs in addition to 22l / 2 per cent for SC/ST already in vogue. The exceptional treatment was meant for a small genuinely backward class of people and for a "minority of seats" as stated by Dr. Ambedkar himself. The reservation provisions moreover were not absolute or unqualified or related to caste populations. Under article 335, reservation was intended to be consistent "with the maintenance of efficiency of administration". Under article 16(4) it was meant for only the "backward classes" so that the target group was kept small and it could get some real help. If the genuinely deserving and needy ones were swamped or drowned by the more affluent, more advanced, and otherwise influential categories, the very purpose of clause 4 of article 16 would be defeated. The vacancies of a couple of thousand posts filled up every year by the Central and State Governments would be cornered by the more advanced groups of the so called "backward classes" as 52 per cent of the total population or more than 400 million people could not be uniformly backward. If even 40 to 50 millions of them were nearly as advanced as the "forward classes" (i.e., Brahmins, Kshatriyas, Vaisayas, Jats, Rajputs, Marathas and Kayasthas as opined by the Mandal Commission—page 56 of its report) they would eat up all the vacancies reserved for the "Other Backward Classes". That would be no "Social Justice"—the plea invoked for accepting the Mandal Report. In fact it would only encourage to raise demands to further sub-divide the reserved quota among other caste groups who continue to be deprived of the benefit of reservation. That would further lower scientific, technical and administrative standards. India would then surely slide down rapidly in qualitative terms as a reservoir of technical man-power and would be depriving its talented citizens to serve the country due to its own narrow caste policies. The Mandal Commission Report after it was thought-lessly accepted in its totality by the Janata Government of Shri V.P. Singh led to large-scale violence in the country and many young lives were lost due to self-immolation etc. Cold political calculations rather than any sense of "social justice" had prompted the faction-ridden Janata Government to accept the Report. Any

Reforming the Constitution 83 sensible guardians of the Indian State could have seen that largescale caste-based reservations in public services were against the intentions of the constitution makers. They had wished to establish the ideals of equality and fraternity and not separatism and discord among the citizens. That was one of the important considerations in rejecting the Kaka Kalelkar Report by the Central Government headed by Pandit Nehru. Central Government Orders based on Mandal Report have been challenged before the Supreme Court. These are now under judicial scrutiny. The Supreme Court may lay down necessary guidelines for their proper implementation keeping in mind the just claims of the OBCs and the larger interests of the country in the light of the constitutional provisions. The important questions that deserve consideration are: • How to classify "backwardness" for reservation purposes? • Is reservation in public services the only remedy to remove backwardness? • Has reservation to be proportionate to population? • What should be the upper limits for reservation? • Has reservation to be uniformly applied for higher and lower, technical and non-technical services? • What should be the exit policy to terminate reservations after a given period? • Is reservation in promotion desirable and if so upto what level? All these questions need careful consideration in the larger national interest. "Social Justice" must conform to "justice" and remain above political calculations. Caste prejudices and political calculations must be kept out to make reservation policy just and proper. The extent of reservation must be such that it causes least social tension. Briefly, for purposes of reservation, not caste and comm­ unities in their totality but individual families who are poor and disadvantaged among them should merit special consideration. Families of any caste (even if categorised as socially and educationally backward) who have already come up in life and have acquired adequate political or economic standing have to be excluded from special consideration for public services for faithful application of article 16(4). Such "advanced families" of

84 Reforming the Constitution backward classes should compete with others of the general category. In such "advanced families* would come: (a) families assessed to Income Tax for atleast 5 years; (b) families of Qass-I Officers, Ministers, MPs and MLAs who have held their respective positions for a total period of 5 years or more; (c) families owning agricultural lands generating annual income of Rs. 25,000 or more. Children of such families should not receive the benefit of reservation in public services. The upper limit of reservation for all categories put together should not exceed 30 per cent of the total vacancies and should be unrelated to population percentages of any caste or community except for SCs/STs who are already getting this benefit on population basis. Since reservation implies recruitment of candidates of lower merit, Le., those who cannot stand general competition, in the interest of maintaining administrative and technical standards the uppér limit of 30 per cent is necessary. For, if the number of less meritorious recruits go beyond 30per cent, it may seriously undermine the general efficiency levels apart from causing social tension. Infact for technical posts and services, e.g. Doctors, Engineers, Scientists, Research and other technical personnel, the reservation percentage should not exceed 25per cent as in these categories scope for dilution of standards is much less to avoid serious risks and other damages. Highly technical and scientific posts in the areas of atomic energy, electronics, space, etc. may even be kept outside the purview of reservations. Reservation in promotion, particularly to Class A and above posts needs to be reviewed to bring down demoralisation in public services and fall in general standards of efficiency. There has to be a sound exit policy to end reservations so that vested interests do not make this a permanent feature. If that happens, India's unity and integrity will suffer due to caste rivalries, jealousies and low levels of technical and administrative performance. However, since reservations cannot be ended at one go or in the immediate future, and to be fair to the deserving backward classes of people the process of dereservation has to be gradual. The SCs/STs no doubt require longer time frame to come up to the level of the other classes. They have suffered longer at the hands of sodety and

Reforming the Constitution 85 therefore fully deserve special care for a much longer period. Whatever has been done for them is wholly justified on grounds of equity and soda! justice. Fortunately, there is little disagreement to continue reservation for them except in the areas of higher promotion and in the scientific fields. Dereservation process in their cases may therefore be spread over a period of not less than 20 years commencing from 1995. Each year the reservation percentage may be reduced by l /2 per cent for the first few years and 1 per cent thereafter so that by 2015 there is 'nil' reservation for the SCs. Similar policy may be adopted for the STs also ending reservation for them as well by 2015 since they have been generally dubbed with the SCs for special treatment. In case of reservation for the OBCs, much will depend what the Supreme Court finally deddes on the Government Orders based on the Mandal Report. Assuming that the reservation percentage for them is kept around 20 to 25 per cent by the Supreme Court (since Dr. Ambedkar had mentioned that reservation was to be for "minority of seats" it should end by 2005. Annual reduction in reservation percentage for them may be around 2 per cent or more commendng three years after its implementation at the Centre. The States should also be asked to apply the reverse gear to end reservations for the OBCs by 2005. Some reservation not exceeding 5 per cent may be kept for the economically poor upto 2015. Since the reservation issue has become highly political, it is unlikely for any political party to support its termination at any time openly. Constitutional remedies are therefore needed to by down a gradual dereservation process. In fact, these issues were very much in the minds of the Members of the Constituent Assembly. They, however, thought that mere insertion of the word "backward" will limit the total size of the reservation to "minority of seats". They also hoped that every community will progress fairly well after the country had popular Governments. Unfortunately, these hopes have been rudely belied. India today is a picture of a house divided—socially and politically. Policy of reservation has aggravated this division by bringing to life caste feelings and divisions. Every section, community and caste is claiming to be "backward" to get the benefit of reservation. 'Caste' which was a dying institution due to urbanisation, industrialisation and western influence at the

86 Reforming the Constitution time of Independence has been revived as an important weapon for political parties to fight electoral battles. They are adding fuel to divisive caste fire by supporting caste-based reservations in the public services. There is, therefore, need to have a fresh look at the relevant constitutional provisions to remove doubts and vagueness. It is also necessary to provide more stringent checks on the spread of casteism like communalism and regionalism. The individual may lose his dignity and identity and the country its unity and integrity if caste and communal considerations alone are counted for public services and higher public offices. In that unfortunate eventuality Government of the country would pass into the hands of caste over-lords making our democracy a caste oligarchy. Any long term arrangements where advancement of an individual in life is blocked due to his birth in one caste or the other, even if he has the required merit and talent may not be conducive to peace and tranquility. Such unjust arrangements ultimately end in chaos and catastrophy. Since Clause 4 of article 16 has unintentionally led to excessive caste based reservations without any time limit, it is necessary to amend this clause suitably. In continuation of the clause, the following words could be added to end the mischief and to bring out more clearly the main intention behind it: 'The upper limit of reservations for all classes be notmore than 30 per cent of the vacancies and such reservations would be phased out wholly by the year 2015. In the matter of promotion to Class 'A' and above posts no special consideration need be shown to any class of public servants."

8 The Constitution and the Army S.K.SINHA EVERY soldier takes a pledge of allegiance to the constitution. While constitutions of several countries have suffered at the hands of their armies, Indian army has scrupulously maintained the tradition of remaining apolitical and willingly accepted the supremacy of civil authority. Also, it is difficult for a country of India's size and diversity to be subjected to a military coup. But, frequent use of armed forces to combat internal violence shows collapse of civil authority and its credibility and sends wrong signals to the soldier. The soldier may be tempted to develop political ambitions. This will be too dangerous for survival of a democratic constitution. The crises facing the nation and the politicians exploiting these for their short-term gains pose a threat to our constitution and to our survival as a nation.

e, the people of India, gave unto ourselves a constitution which was promulgated on 26 January 1950. At special parades on that day in every cantonment and every unit of the Army, all serving soldiers solemnly swore allegiance to the constitution. Thereafter, every soldier on enlistment in the Army solemnly and ceremoniously has been taking this pledge. Like the national flag which is much more than a piece of cloth, the constitution is much more than a written document for the soldier. Swearing of allegiance to the constitution requires the soldier to loyally carry out the orders of the Government to defend the country against external and internal threats. Over four decades after the constitution came into force, we may examine the extent

88 Reforming the Constitution to which the Army has been acting in accordance with the pledge which soldiers have been taking. The President of India is also the Supreme Commander of the country's Defence Forces. As the constitutional Head of the State, he has this additional responsibility. He exercises control over the Defence Forces through the Cabinet, acting on the advice of the latter. The constitution does not define the role or function of the Army as such. However, the government has done so. It is to defend the country against external aggression and render assistance to the civil authority, when called upon to do so. The constitution confers fundamental rights to the people but under the provisions of Article 33, these rights can get abridged or abrogated in respect of the Army, for proper discharge of duties and the maintenance of discipline. Necessary provisions in this regard have been duly made in Army Act 1950 passed by the Parliament and Army Rules 1954 formulated thereunder by the government. There are no other provisions in the constitution defining the functioning of the Army. Although the constitution does not provide for the promulgation of martial law, it does provide for the Parliament to indemnify individuals acting in performance of their duties, when martial law has been in force. The constitutions of several Third World countries have suffered at the hands of the Armies of those countries. India has been a shining exception in this regard. Unlike even some Weston countries, no Cromwell or Bonaparte has risen from the ranks of Indian Army to usurp political power. In the last thousands of years of our history, the only instance of a military coup was in 185 B.C. Pushyamitra, the Commander-in-Chief of the Mauryan Army assassinated Bridharta, the last Mauryan Emperor, and seized power. In this respect, the Indian tradition has been singularly different from that of the countries of West Asia where Generals have repeatedly overthrown their rulers and taken over power. The origin of the present Indian Army goes back to British rule over India. When the British started laying the foundations of their rule over India, democracy had made considerable progress in their country but they were still haunted by the ghost of Cromwell stalking the corridors of power. They did not want a man on horseback to rule over them. They took pains to ensure that their Army remained insulated from politics^ In India, the Army lived in the isolation of its cantonments. Army officers

Reforming the Constitution 89 were forbidden even to discuss politics amongst themselves. The need for keeping the Army apolitical got accentuated when Indians entered the officer cadre of the Indian Army. This broadly coincided with the beginning of the Independence movement under the leadership of Mahatma Gandhi. Thus at the time of Independence, India inherited an Army which had scrupulously remained apolitical for the previous two centuries. This outlook was also fully in conformity with our long historical tradition. After Independence certain important factors have further contributed to the Army remaining apolitical. There \/as great political stability in the country for the first couple of decades after Independence under the towering leadership of Jawaharlal Nehru. Democracy gained firm roots in the country. The Army very willingly accepted the concept of the supremacy of the civil over the military, a fundamental requirement of a functioning democracy. The second contributoiy factor has been that India is a country of continental dimension with wide ethnic, linguistic and religious disparities among her people. This is also duly reflected in the composition of the Army, particularly after Independence, when a decision was taken to discard the martial race theory and broadbase recruitment to all parts of the country. It is difficult for a country of the size and diversity of India to be subjected to a military coup. Thirdly, although in the early years after Independence there were some sporadic and insignificant attempts by certain political dements to subvert the loyalty of the Army, all political parties in this country have shown maturity in not politidsing the Army. However, kickbacks in purchase of weapons or interference in Army promotions for political reasons can have adverse effect. The uproar in the country against such instances has helped to ensure that these are kept under control in the future. Lastly, it is a truism that if mutinies are the handiwork of soldiers, coups are brought about by officers. An enlightened and educated officer corps is a good safety valve against a military coup. The officer corps of the Indian Army has lived up to its responsibility in this regard and has shown a high standard of disdpline. Notwithstanding military coup being foreign to our genius and the various factors operating against such a possibility in our setting, there have been unfounded fears in this regard. There has been at least one occasion when the Intelligence Bureau

90 Reforming the Constitution working overtime has cried wolf. In May 1964 an artillery brigade was moving from Ambala to Delhi for routine firing on the Tughlakabad Ranges. This move happened to coincide with the passing away of Jawaharlal Nehru. It was misinterpreted as a move towards military take over at Delhi. The move had to be called off for some time. During the early stages of the rapid expansion of para military forces under Ministry of Home Affairs the aim appeared to have been as much to relieve the Army from internal security duties as to provide a counterpoise to the Army. The isolation of the Defence Services from the process of decision making on matters relating to Defence and continuing with the present irrational higher defence organisation, have been motivated by the same consideration. During the Emergency some people were plagued with serious doubts. They drew a parallel with the Emergency imposed by Hitler that ultimately led to the scrapping of the constitution of the Weimar Republic. The German Army had sworn allegiance to the Weimar Constitution. It chose to remain a silent spectator and some elements of it even welcomed the change. This had disastrous results for both Germany and the world. A question often asked at that time was whether history would repeat itself in India? Luckily matters got resolved within 19 months and the threat to the constitution was removed. Democracy was put back on rails. It must also be added that throughout the Emergency, the Army remained scrupulously apolitical. It never bent to promote the interests of the ruling party or the ruling dynasty. No allegation was made against the Army before the Shah Commission. Several government institutions were castigated by that Commission but it had nothing adverse to say about the Army. It needs to be noted that in the four decades after Independence the Nation has faced several crises, both from across the border and internally, but at no time has any stress developed in civil and military relationship. The equation between the two as enshrined in our constitution has never been questioned, leave alone any attempt made to disturb it. The Army has not only never been a threat to the constitution, it has always remained steadfastly loyal to it. The raison-d'tre for having an Army is to defend the country against external aggression. In this context, the country and the constitution become synonymous. Within weeks of India attaining Independence, the Army had to face the onslaught from Pakistan

Reforming the Constitution 91 in Kashmir. It rose to the occasion, splendidly defending and liberating over two third of Jammu and Kashmir. The first external aggression against India after the constitution conning into force took place in 1962. We suffered a debacle in the Himalayas and a national humiliation. This war needs to be viewed in its correct perspective. Less than 10 per cent of the then strength of the Indian Army got involved in this war. The remaining 90 per cent was totally unaffected by it. The Chinese had shot their bolt and were hardly in a position to conduct military operations on the plains of Assam. They neither had tanks nor heavy artillery which are so important for such operations. Further, with the advent of winter, the Himalayan passes were getting blocked with snow denying them the capability to sustain operations during winter in that region. In the circumstances, the Chinese found it very convenient to declare an unilateral cease fire and withdraw to their positions North of the MacMohan Line, a line which they have not to this day recognised. India's acquiscence to the cease fire was unfortunate. It deprived the Army of an opportunity to wash off the ignominy of defeat in the Himalayas. In infinitely much worse circumstances when the entire field force of the British Army had got destroyed at Dunkirk in 1940, and when Britain stood alone without any allies, Churchill had thundered that they would fight on the beaches, on the streets and in their houses till they had destroyed the menace of Nazism. In our case the bulk of our Army was intact, the West had instantly come out in our support and the Chinese were at a great disadvantage. Yet Nehru not only accepted the cease fire but had earlier made a sentimental broadcast saying that his heart went out to the people of Assam. Despite all his greatness and his great attainments, he was found very wanting as a war leader. However, in 1965 when another war was thrust on the Nation, the Army retrieved the honour of its arms. Despite Pakistan's more modem tanks and guns and despite near parity in numerical strength between the opposing armies because of Indian Army's commitment in the North against China, the war was fought to a successful conclusion. For some time Pakistani propaganda tried to cover up their failure. The lid has now been removed and the present Chief of the Pakistan Army, General Aslam Beg, has admitted that Pakistan had lost the war in 1965. Six years later in 1971 the results of the war were not left in doubt. Pakistan got

92 Reforming the Constitution dismembered and a new Nation State was bom, putting paid to Jinnah's two nation theory. There has been ever increasing internal violence within our society calling for the frequent use of the Army to combat the evil and restore order. In the last decade, the Army was out aiding the civil power twice every week in some part of the country or the other. Such frequent use of the Army in this role has obvious drawbacks. It adversely affects the Army's training for war and operational preparedness. Such deployment, if prolonged, imposes strains on the discipline of the soldier. The deterrent effect of the employment of the Army gets lost calling for greater use of force to deal with the situation. Most importantly, if the civil administration is seen to collapse so often and is seen incapable of functioning without using the Army as a crutch, its credibility and moral authority gets seriously eroded. This sends wrong signals both to the people and the soldier. The people may begin to consider it normal for the Army to replace the civil administration and the soldier may be tempted to develop political ambitions. This will be too dangerous for the survival of a democratic constitution. It is imperative that the Army should be used to carry out civilian tasks as sparingly as possible and only as a last resort. No doubt in the case of large scale violence or insurgency, the use of the Army in this role becomes unavoidable. Despite all the drawbacks, the employment of the Army under these conditions has to be accepted. In Nagaland and Mizoram, the Army was able to bring about a favourable climate in which a political solution became possible. The current situation in Kashmir, Punjab and Assam appear to be of similar dimensions. There is a crying need to work out a politico-military solution to these festering problems, as soon as possible. It has to be noted that so far in spite of all the violence, there has been no occasion to impose martial law in the country after Independence. Hitherto, the Army has been a strong pillar supporting our constitution. It has been successfully defending it against violence, both external and internal. So long as the Army retains its apolitical, professional and disciplined character, it will always remain a great national asset, upholding the constitution. The political economic and social crises facing the Nation and attempts by some unscrupulous politicians to exploit these for their short term narrow gains at the expense of national interests, pose a

Reforming the Constitution 93 threat to our constitution and to our survival as a Nation. Let us hope that within the framework of the constitution we are able to resolve the macro problems, facing us, with the Army remaining in the background. The Army is the ultimate weapon of the Nation to be used only when all other means have failed. When diplomats fail to preserve peace, the Army has to go to war to restore peace, and when the civil administration is not able to maintain order, the Army is called out to restore order. The Army has to be prepared at all times to carry out its role. This requires that it must always remain highly professional, completely disciplined and totally apolitical. Thus it will succeed in imposing the Nation's will and never impose its will on the Nation. That is the only right way for the Army to act to redeem its pledge of loyalty to the constitution. However, in the event of total political instability, grave anarchy and national disintegr­ ation, the unthinkable may unfortunately become thinkable and the very remote possibility may become something inevitable. Let us earnestly hope and strive that these fears may always remain unfounded and we as the largest democracy with immense potentiality attain and retain our rightful place within the comity of Nations.

9 The Amending Power Legitimacy of Political Parties LAI NARAIN SINHA DEMOCRACY and secularism are basic features of the constitution and no constitutional amendment can dilute or take away these principles. But every political party today is competing with all others in trying to capture sectional votes by arousing narrow passions based on divisive forces of religion, caste, etc. Time has come to consider seriously the legitimacy and eligibility of these parties. They seem bent upon breaking the country which every one of them wants to rule. If one goes by constitutional principles, none of them can contest elections or take part in voting for none of them is really secular or democratic.

and secularism are basic features of the constitution. Democracy This has been finally and conclusively settled by the decision of the thirteen judges' Bench of the Supreme Court in Kesavananda's case (1973 S.C. Supplement 1). To quote the words of Justice Khanna from his leading judgement in that case, the following passage states the position in clear terms: "The words 'amendment of the Constitution', with all their wide sweep and amplitude, cannot have the effect of destroying or abrogating the basic structure or framework of the Constitution. It would not be competent under the garb of amendment, for instance, to change the democratic government into dictatorship or hereditary monarchy, nor would it be permissible to abolish the Lok Sabha and the Rajya Sabha. The secular character of the

Reforming the Constitution 95 State according to which the State shall not discriminate against any citizen on the ground of religion only cannot likewise be done away with."

One may enquire why the constitution incorporated some inbuilt limitations on the amending power. The reason is not far to seek. The British had, in a very planned manner, to secure the dominance over India by adopting the policy of 'divide and rule'. The upheaval of 1857 had exhibited solidarity between the Hindus and the Muslims. The British, therefore, studied- the diversity existing in the country on the basis of religion, race, caste etc. and they utilised these diversities to create a feeling of separateness and hostility between groups based on these classifications. Mr. Archbole, Principal of Aligarh College, ledAdeputation from U.P. describing themselves "We, the nobF#-Jagirdars, Talukdars, Zamindars, Lawyers and Merchants, subjects of his Majesty the King Emperor in different parts of India" and waited on the Viceroy. They were promised separate electorate at the earliest stage when an element of election was being introduced in the governance of the country. This led to the birth of the Muslim League "to foster a sense of loyalty to the British Emperor amongst the Muslims of India." When the Satyagraha movement of Mahatma caused alarm to the British rulers, a confidential communication from the Governor of U.P. to the Viceroy ran as follows: "I feel frightened lest the lawyer parties, mainly consisting of young and irresponsible persons, should attain predominant position in the League, and that they might at some time coalesce with the advanced Hindu politicians against the government on one or more questions." (The political System of Pakistan, Oxford 1967, by Khalid Bin Sayeed.)

When the movement gained more momentum, Sir Theodore Morrison published an essay from which the following is worth quoting: "The Hindus and Muslims were two distinct nations as different from each other as the two European nations; Muslim civilisation could not survive under an alien government especially a democratic government which tended towards standardisation of citizens; the Muslims should be rest assured that they were not alone in their concern for the preservation of their characteristic civilisation."

96 Reforming the Constitution Further to weaken and balkanise India in the event of the Britishers leaving the country, they replaced the unitary constitution by a Federal Constitution known as the Government of India Act, 1935. The Act was so designed that the Federation could never take effect because it involved on the part of the Indian princes their voluntarily acceding to the Federation surrendering part of their autocratic powers. When the Britishers had ultimately to leave India, by the terms of the Indian Independence Act of 1947 passed by the British Parliament, British India was broken up into two dominions of India and Pakistan with undefined boundaries and the princes were released of their paramountcy to the British Crown leaving it to them either to accede or not to accede. Thes^problems posed a serious threat to the integration of the preserifr-day India and to the preservation of its integrity. In their attempt to sterilize all these divisive forces, the constitution-framers, inter alia provided for a constitution the identity of which was outside the amending power. The basic features included democracy and secularism. The constitution provides by articles 3 and 4 the powers to parliament by mere majority of votes to re-form the existing States by altering their areas, boundaries or even changing their names. The constitution (a) establishes a single citizenship for the whole country without reference to any of those divisive forces, (b) constitutes India into a single economic unit by part XIII ensuring freedom of trade, commerce, and intercourse within the territory of India, (c) limits the right to freedom of religion to the pursuit for spiritual development of all persons of all religions, (d) in granting the basic rights of freedom by article 19 and providing for various protections by articles 20 to 24, makes no distinction on the basis of religion, race, or caste etc. The democratic character was being secured by articles 325 and 326 granting the right to vote to every adult citizen, irrespective of his "religion, race, caste, sex or any of them" In imposing the obligations, for instance, article 23(2) imposing compulsory service, including conscription, no discrimination on grounds of religion, race, caste or class or any of them was permitted. By articles 15(1) and 16(2) discrimination on the basis of religion, race, caste etc. was forbidden. Consistent with the provisions of the constitution, the

Reforming the Constitution 97 Representation of the People Act, 1951 has provided for invalidation of elections, if they are vitiated by corrupt practices. A person will be disqualified to stand as a candidate if, inter alia he has been found guilty of an offence under section 153A of the Indian Penal Code which runs as follows: "153-A. Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language etc. and doing acts prejudicial to maintenance of harmony— (1) Whoever— (a) by words, either spoken or written, or by signs or by viable representations or otherwise, promotes, or attempts to promote on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities, or (b) commits any act which is prejudicial to the maintenance of harmony between different religious, racial, language or regional groups or castes or communities and which disturbs or is likely to disturb the public tranquility, shall be punished with imprisonment which may extend to three years or with fine, or with both, or (c) organizes any exercise, movement, drill or other similar activity intending that the participants in such activity shall use or be trained to use criminal force or violence or knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence, against any religious, racial, language or regional group or caste likely to cause fear or alarm or a feeling of insecurity amongst members of such religious, racial, language or regional group or caste or community. (2) Offence committed in the place of worship etc.—whoever commits an offence specified in sub-section (1) in any place of worship or in any assembly engaged in the performance of religious worship or religious ceremonies, shall be punished with imprisonment which may extend to five years and shall also be liable to fine."

"Corrupt practices" have been set out in section 123, inter alia, by sub-sections (3) and (3A) (3) "The appeal by a candidate or his agent or by any other person

98 Reforming the Constitution with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to religious symbols or the use of, or appeal to, national symbols, such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate; Provided that no symbol allotted under this Act to a candidate shall be deemed to be a religious symbol or a national symbol for the purposes of this clause. (3A) The promotion of, or attempt to promote, feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community or language, by a candidate or his agent or any other person with the consent of a candidate or his election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate ..."

Having regard to these provisions, time has arrived to consider seriously the legitimacy and eligibility of the present political parties who seem to be bent upon breaking the country which everyone of them wants to rule. No individual or political party, while merely pretending to conform to the constitutional norms but by practising deception, will be really eligible either to exercise their right of vote or to stand as a candidate. Either to exercise the right of vote or to stand as a candidate, it will be necessary that the person must be a citizen. The concept of citizenship was best stated in the classical passage of Chief Justice Waite of the U.S.A. in the following words: "There cannot be a Nation without a people. The very idea of a political community what a Nation is implies an association of persons for the promotion of their general welfare. Each one of the persons associated becomes the member of the Nation formed by the association. He owes allegiance and is entitled to its protection. Allegiance and protection in this connection are reciprocal obligations. One is compensation for the other; allegiance for protection and protection for allegiance for convenience. It has been found necessary to give a name to this membership. The object is to designate by a title the person and the relationship he bears to the Nation ..."

The Indian Constitution has, by Part IVA, article 51 A, defined the fundamental duties of a citizen, which, in particular, include

Reforming the Constitution 99 "(a) to abide by the constitution and respect its ideals and institutions, the National Flag and the National Anthem; (c) to uphold and protect the sovereignty, unity and integrity of India; (d) to defend the country and render national service when called upon to do so; (e) to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women."

Nobody can repudiate the obligations attached to the status of citizenship and yet claim the benefits which flow from it. The concept of secularism is made manifest by the constitution by elimination of religion, caste etc. in every public affair emphasising the same by article 25 which makes religious freedom subordinate, inter alia, to article 16(1) and clause (2) of the very article 25. For the sake of clarity in the matter of laws relative to economic, financial, political or other secular activity even though they may be associated with religious practices, religion will be irrelevant, so much so that by article 44, read with entry 5 of the Concurrent List (List No. Ill) of the Seventh Schedule of the constitution the entire personal laws of the parties are within the legislative competence of the Legislature. A fundamental principle in the governance of the country which has so far been ignored and violated, requires the State to endeavour to "secure for the citizens a uniform civil code throughout the territory of India". In other words, there should have been not a separate Hindu Marriage Act providing for monogamy and controlling divorce, but there should have been a common Marriage Act governing all. Things have gone so far that even a common civil code contained in section 125 of the Code of Criminal Procedure has been sought by a Parliamentary enactment to be made inapplicable to Muslim women in the teeth of article 15(1). Every political party seems to be running a race for capturing sectional votes by arousing narrow passions based on the self­ same divisive forces which had been adopted by the Britishers. Article 324 of the constitution vests the superintendence, direction and control of elections in the Election Commission and secures to it independence similar to that available to the Judges of the Supreme Court. This is vital to ensure fairness of

100 Reforming the Constitution elections. The State's administration is naturally interested in the result of elections, and if it were to have any control over the agencies involved in the conduct of elections, there will be a clear conflict between interest and duty. Having regard to the very jurisdiction, coupled with the obligations, the Election Commission must, as a matter of principle, have large powers. In the case of Income-tax Officer vs. M i. Kunhi, (1969) 2 SCR 65, the Supreme Court adopted the enunciation of law from Maxwel on Inter-pretation of Statutes, 11th edition. The following passage is relevant: "Where an Act confers a jurisdiction it impliedly also grants the power of doing all such acts or employing such means as are essentially necessary for its execution."

An onerous duty is cast on the Election Commission in the particular perilous situation of the country to publicly enlighten one and all concerned citizens and the political parties of the correct constitution and legal conditions of eligibility for the exercise of right of vote or to stand as a candidate. The non-secular nature of a political organization is sometimes manifest from the very name. The factors which disqualify a person from standing as a candidate or the factors which vitiate his election after he has been elected are not merely factors which have a formal application during the period when the election process has started. That those are relevant considerations from before the election process, during the election process and after the elections are held is clear from the provisions of section 8 of the Representation of the People Act which takes into account the antecedent factors for permitting a candidate to stand as a candidate and they are taken note of during the functioning of the member by article 102 of the constitution under the laws made by Parliament under clause (l)(e). It must never be forgotten that sovereignty rests in the people and those who are elected are the agents of the constituencies which elect them consisting of persons of different religions, races, castes etc. They get elected on the basis of the oath that they take and the oath has been specifically set out in the Schedule of the constitution. This oath is to bind them after they have been elected.

10 Constitution and Political Parties In Defence of a Regulated Party System J.C. JOHARI POLITICS is no longer meant for social service. It has been perverted and criminalised by the role of party leaders. The constitution and the laws need to be amended to lay down basic qualifications for being candidates to membership of any legislature. Also, elected members should undergo a training course in constitutional and parliamentary procedures. All registered parties should include staff only from amongst persons selected by an institution like the Legislative Service Commission. Accounts of political parties should be subject to public audit. Expenses of parties should be subsidised by the State. No one should be allowed to be a legislator or a minister or both for more than 3 terms. A defector should not be entitled to any office for 2-3 years. Total strength of any Ministry should not exceed l/10th of the membership of the House. Legislators and ministers should be obliged to declare their assets and liabilities annually. Parties indulging in terrorism, communalism, violence etc. should be put under a ban. Those guilty of serious electoral offences should be debarred from elections for 10 years. No one should be able to contest from more than one constituency. The anti-defection law should be amended to plug loopholes. Strict rules should govern membership of parties and inner party democracy must be assured. A party system so regulated may lead to 'reinstitutionalisation'.

102 Reforming the Constitution ne of the salient features of the Indian Constitution is its bulky character. Its detailed provisions supplemented with numerous sections and sub-sections and qualifying clauses and sub-clauses make it the lengthiest constitution in the world. It covers many subjects (as citizenship, public services, official language, elections etc.) which could have been covered by means of ordinary legislation or administrative action. But it does not cover party system which has emerged like an extra-constitutional development without its rules and regulations and which has assumed formidable proportions in the absence of healthy traditions. The constitution of India in its original form did not incorporate the term 'political part/. It is said to have been covered by art. 19(l)(c) which guarantees freedom to form associations and unions.1 The proposed 32nd Amendment (1973) made the first attempt to incorporate the term' 'political part/

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1 But this freedom, like other freedoms, is subject to reasonable restrictions imposed by the State in the interests of public order, morality, and the sovereignty and territorial integrity of India. Thus, this freedom will not entitle any group of individuals to enter into a criminal conspiracy to form any association dangerous to the public peace or to make illegal strikes or to commit a public disorder, or to undermine the sovereignty or integrity of India." D.D. Basu, Introduction to the Constitution of India, Ed. XII of 1989, p. 97. It is for this reason that on some occasions ban has been imposed on some political organisations so as to put an effective check on the activities of terrorism and disruption. In July, 1975 as many as 26 political groups were banned chief among them were Anand Marg, Proutist Block of India, Communist Party of India— Marxist Leninist (Charu Majumdar group of Lin Piao faction), Unity Centre of Indian Communists, Jamaat-i-Islami and Rashtriya Swayam Sewak Sangh. The ban was lifted in March, 1977. On 26 October, 1979 the Government of India declared Meiti extremist organisations operating in the State of Manipur as 'unlawful'. It also banned several other local political organisations operating in the north-eastern parts of India. A political party of the Mizos called Mizo National Front remained under ban for some time. Some outfits of the Akali Dal and of the militants operating in Jammu-Kashmir are still under ban.

Reforming the Constitution 103 and to define it in loose terms. This attempt failed.2 Now the 52nd Amendment (Schedule X of the Constitution), also known as anti­ defection law, has incorporated the term 'political party' without giving its precise definition. Sec. 1 of this Act defines political party as "a group consisting of all the members of that House for the time being belonging to that political party." However, a proper definition of the term 'political party' has been avoided and the Election Commission has been given the power to recognise or derecognise a political party according to the rules in force.3 We may here refer to an important change made in the Representation of the People Act, 1951 in 1988. It requires that a political party seeking its registration with the Election Commission must submit a copy of its constitution expressing its faith in and commitment to Democracy, Secularism and Socialism. One may wonder whether such an attempt has yielded any positive result so far. The political parties have revised their constitutions so as to meet this formality, but all has happened 2 With a view to implement the recommendations of the Chavan Committee, though with certain modifications, the Government introduced in the Lok Sabha on 16 May, 1973 an anti-defection bill in the form of 32nd Constitution Amendment Bill. The term 'political party', as defined in this Bill, meant (i) a political party classified as a recognised political party under any law or any rule, regulation, order or notification having force of law with respect to matters relating to or in connection with elections to either House of Parliament, (ii) any other political party which is recognised by the Chairman or, as the case may be, by the Speaker of such House as a political party and which on the basis of such recognition consists of not less than one-fifteenth of the total number of members of such House." 3 The Election Commission of India has the power to recognise and derecognise a political party vide Election Symbols (Reservation and Allotment) Order, 1968. Under the existing rules, a political party is entitled to be recognised as a State Party if (i) it secures at least 4 per cent of the total valid votes polled at the Parliamentary or Assembly general elections in a State or Union Territory, or (ii) it returns at least one member to the Lok Sabha for every 25 members or any fraction of that number elected from that State, or (iii) it returns at least one member to the Legislative Assembly of that State for every 30 members of that Assembly or any fraction of that number. A party so recognised in four or more States or Union Territories is recognised as a National Party.

104 Reforming the Constitution in name only. The Election Commission has formulated its own rules to recognise/derecognise a political party on the basis of its performance in the elections to Union and State legislatives which has nothing to do with its behaviour being consistent with the norms of Democracy, Secularism and Socialism or not. The Election Commission has very cautiously avoided to open Pandora's box on this count and, for this reason, some political parties (as Muslim League, Shiva Sena, Jharkhand Mukti Morcha and some outfits of the Akali Dal) have not been derecognised by the Election Commission in spite of the dubious nature of their democratic and secular credentials. Since political parties work in alliance with numerous organised groups, the association of some recognised political parties with certain communal and terrorist organisations is a matter of patent reality and yet the Election Commission has not sought to question the identity of such political parties and organisations in the light of the above requirement. The 52nd Amendment has, however, yielded some positive results in curbing the evil of political defections. It is the only part of the constitution where the term 'political party' has been used. Surprisingly, Sec. 1 of this Act containing 'interpretations7 of all important terms used in this Act does not cover political party and, for this reason, it provides no solution to some problems that have arisen in course of time. For instance, it does not make it clear whether any political outfit having the name of a Manch (Forum) or Morcha (Front) can be taken as a political party or not. We may refer to the Rashtriya Morcha of V.P. Singh, Haryana Vikas Manch of Bansi Lai and Bihar Vikas Manch of Dr. JJM. Mishra in this regard. Herein lies a clear opening and a shrewd politician may take advantage of saving himself from the penalty clause of the anti-defection law while being as well as not being in an organisation, by all means a political party in the absence of an authentic definition of the term, other than one what this law calls the 'original party7 or a party on whose ticket a person is elected to any House of Union or State legislature. The legislator may also take advantage of a situation in which he is expelled from the party and then becomes an 'unattached' member of the House. In such an event also the penalty clause of this law shall not apply. Such an opening is not provided by the law nor by the rules framed under it, and yet it has occurred

Reforming the Constitution 105 in the past confirming the fact of no limit to man's political ingenuity. The anti-defection law provides that an action would not attract the penalty clause if at least one-third members of a * legislature party leave it as a group. It would constitute an event of 'split'. But another opening has been discovered. The bosses of a political party may forestall such an eventuality by expelling some leading figures of a group of apprehended defectors so as to frighten their followers and also to frus-trate the possibility of a split by cutting the size of 1/3 legis-lators required for making a split in the ranks of the parlia-mentaiy party. "This almost suggests that the party consti-tution provides a legitimate methodology for doing so.4 The crucial problem of the Indian party system lies in its dysfunctional role owing to low level of the political culture of the country.5 Not that the voters in general are influenced by the charisma of a particular leader, or they are swayed by the orations of the demogogues, the painful fact stands out that their religious, casteist, racial, clannish, tribal and communitarian attachments can be easily exploited by the crafty politicians. The 'vote bank' consists mostly of the socially and educationally backward people of the country whose 'will' can be purchased at a very low price, or who can be easily coaxed and cajoled by the charm of petty material temptations, or coerced by the fear of intimidation and violence. Frequently we hear about the events of large-scale 4 Subhash C. Kashyap, "Anti-Defection Law Does not Apply". The Times of India, New Delhi, 7 November, 1990, p. 6. 5 A political culture is composed of the attitudes, beliefs, emotions and values of society that relate to the political system and to political issues. G.A. Almond and G.B. Powell define it as "the pattern of individual attitudes and orientations towards politics among the members of a political system." (Comparative Politics: A Development Approach, p. 50). The people of a society share a common human nature like emotional drives, intellectual capacities and moral perspectives. The common human nature expresses itself in the form of certain values, beliefs and emotional attitudes which are transmitted from one generation to another, though with greater or lesser modifications, and thus constitute the general culture of that society. So Lucian W. Pye holds: "Certain aspects of the general culture of a society are especially concerned with how government ought to be conducted and what it shall try to do. This sector of culture we call political culture." (Aspects of Political Development, p. 104).

106 Reforming the Constitution rigging, booth-capturing and violence which may be taken as serious symptoms of a disease afflicting the democratic system of our countiy. All possible attempts are made to win election by hook or by crook and surprisingly the parties have no reservation in fielding certain notorious figures as their worthy candidates. The result is that some anti-social and anti-national elements manage to hold the levers of power. Persons with bad records and their cronies manage to place a heavy hand on the local administration as a result of which murders, extortions, robberies, abductions and the like occur. As a result of this, politics no longer remains the way of rendering social service as said by Gandhiji; it becomes perverted and criminalised by the role of party leaders. Then, what is the way out? We may advance a number of suggestions in the light of which the constitutional/legal system of our country should be reformed. While the right to vote should remain available to every adult citizen, right to fight elections should not be the privilege of all. Since administrative system requires recruitment of the experts and since this rule is invariably followed in the sphere of administrative and judicial departments, legislature should be no exception to it. That is, those who desire to be the members of the rule-making department of the State should know about the operation of the legislative system of their country. Hence, right to fight elections should be given to those who have at least an elementary knowledge of reading and writing. More than this, those who win election must undergo a training for a period of about six months so that they acquire first-hand knowledge of the constitution as well as of parliamentary procedure and conduct of business. For this purpose, a high-powered body like a Legislative Service Commission should be set up to hold preliminary tests from time to time and those who qualify be permitted to file their nomination papers at the time of elections. That is, nobody should be allowed to seek election unless he obtains a certificate of eligibility from the Commission. As its adjunct, an Institute of Parliamentary Work should also be set up for imparting training to the new recruits and also for arranging refresher courses for the new and old legislators from time to time. Every political party has a staff of its own whose members

Reforming the Constitution 107 are recruited on the baas of 'spoils system'. The 'favourites' of the great leaders are inducted to carry on party work and who, in most of the cases, have hardly any merit equal to the task assigned to them. Their terms of service are not specified; their salaries and allowances are also not mentioned in clear terms. In spite of all this, people accept a job in the party office with certain ulterior motives. By getting close to the levers of power, they enhance their social status and then by resorting to unethical and undesirable practices they manage to make hay even when there is no sunshine. Hence, this point should be repeated that all registered political parties should recruit staff from amongst persons selected by a statutory body like the Legislative Service Commission and so their service conditions be governed by the statutes of the country. Besides reforming the working of political parties in an appreciable measure, it shall also solve the problem of unemployment to some extent. The accounts of political parties should be subject to public audit. Black money generated by the people is partially donated to party funds, or the parties manage to collect hush money from big business houses and other unknown sources. This money is spent, rather squandered, according to the whims and caprices of the few leaders. Facts reveal this unfortunate fact that no party desires to spend any amount of money on the maintenance of a good library or a reading room or a centre of advanced study and research, while it may easily and promptly spend a big chunk of its funds on taking out a procession, organising a mela (fair), holding a convention, according reception to its supremos and the like. To a certain extent the expenses of the parties should be subsidised by the State on the basis of their election results as we find in the case of Germany. Power is the source of attraction. A seat in the legislature has its own charm; the office of a minister has a greater attraction. The party leaders and their zealous followers have their eyes set on the legislative and ministerial berths without paying any regard to this maxim: 'first deserve, then desire7. There should be specific rules that a person cannot avail more than two or three terms as a legislator or as a minister or both; that a defector shall not be entitled for any post unless he completes a probation period of at least two or three years; that the total strength of the ministry should not be more than 1/10 of the total strength of the House

108 Reforming the Constitution or Houses of Legislature; that a person should not be given such a post unless he emerges innocent in civil and criminal proceedings if going on against him in the courts of the country; that the sons and daughters of the legislators/ministers should not be allowed to have a seat along with their parents; that the legislators/ministers should be required to declare their assets and liabilities annually in their income tax returns. A democratic system is also known by the name of what Dicey called, the 'rule of law' which is the anti-thesis of the rule of lawlessness. As such, any party indulging in acts of violence and terrorism of any kind should be placed under an effective ban. There should be a high-powered statutory body to examine the democratic and secular credentials of a political party and necessaiy action should be taken by the Government in the light of the findings and observations of this autonomous authority. It should also be entrusted with the task of looking into all sorts of irregularities and those found guilty on a serious count should not be allowed to fight elections for a period of about 10 years. The rules relating to recognition and derecognition of political parties should also be revised in a way that right to fight elections should be available only to political parties recognised by the Election Commission. No party should be allowed to seek its registration with the Election Commission,unless it has a standing of at least three years. One person should be allowed to fight election from one constituency at a time. The codefcf conduct issued by the Election Commission should b6 binding on all parties. The evil of political defections should be curbed in all possible respects. The present anti-defection law»has some loopholes which should be covered. For instance, no office should be given to a defector unless he has a standing in some other party for at least two years; an independent member of the House, whether elected or nominated, should not be allowed.to join any other party; the phrase 'violation of the whip' (as used in this context and on the basis of which the presiding officer may disqualify a person from the membership of the House) should be defined in clear terms. The membership of a political party should be given on the basis of some well-defined rules and regulations. It should not be like a privilege to be conferred in a quick and reckless manner.

Reforming the Constitution 109 The applicant should be placed on a term of probation for some time so that he may acquaint himself with the ideology and working of the party. Elections to various posts should also be held as provided in its constitution so as to do away with the practice of sheer ad hocism. There should be inner-party democracy. The working of the parties should be reviewed from time to time by the Election Commission or some other statutory body meant for this purpose. It should also study the annual report of the activities of all recognised and unrecognised parties and then it should submit its own report and observations to the head of the state for any necessary follow-up action. The requirement that a political party seeking registration with the Election Commission should express its faith in Socialism be removed in view of the fact that 'Socialism' lacks a precise connotation and that it has unfortunately become an instrument of political blackmail at the hands of party politicians. It should be substituted by a better term 'social justice'. In order to keep the government and the party as two distinct entities, it would be better if persons holding ministerial positions are not allowed to hold offices in the party organisation. The suggestions are illustrative, by no means exhaustive, and many more constructive suggestions may be added. Some of the objectives may be realised by the growth of healthy conventions. In the absence of such a situation, however, statutory arrangements are called for. The provisions of the constitution should be revised or reformed and a statutory mechanism be also evolved to supplement them if the experiment of parliamentary democracy is to be made successful in our country. A critic may burst out that some of the suggestions, listed above, are either utopian or fantastic having no place in the advanced democratic systems of the world. But a suitable reply to such a criticism would be that even in the advanced democratic countries party system is regulated by some kind of statutory mechanism that is supplemented with a large number of conventions sustained by the high level of political culture of the people. Democracy is an ideal to be pursued and realised in degrees and for this sake every country should strive in its own way keeping in view its social setting and political milieu. So is the case with our country. A party system regulated in accordance with the proposals given above, would certainly yield the desired

110 Reforming the Constitution results. Hopefully, it would signify a movement from 'de­ institutionalisation' to 're-institutionalisation' of party system in our country.6

6 Lloyd I. Rudolph and Susanne H. Rudolph have sought to hold Mrs. Indira Gandhi and her younger son Sanjay Gandhi guilty for causing 'de-institutionalisation' of the Indian National Congress. (In Pursuit of Laksmi: The Political Economy of Indian State, p. 144.) Such a view may be correct to some extent, but other parties and their leaders also share the blame in varying measures. What Norman D. Palmer said some thirty years back still holds good that "the general outlines of the party system in India are relatively clear, although they present some very contradictory tendencies." (Indian Political System).

11 Have We Failed? SHEILA DIXIT CONSTITUTION was built on high principles, but we have not fully succeeded in realising the dreams of the founding fathers. There is cause for concern particularly in the context of the vast political and economic changes all over the world. True democracy is beginning to crack up in India in the face of money and muscle power during elections. If the decent and respectable withdraw, what will happen? For removal of disparities, socialism is good, but true socialism is possible only with more production, more wealth to distribute. Reforms for economic growth are necessary, but we have to be wary of economic dependence which may mean loss of sovereignty. The need is to rededicate ourselves to the goals of the constitution.

he Constitution of India was adopted forty-two years ago in an atmosphere surcharged with joy at the birth of a nation, the euphoria of victory. It was written by men of vast and lofty visiotn and great juridical prudence. It Is not merely a document which gives the mode of governance to a nation. Its beautiful preamble gives to the people of India the resolve to create not just a 'sovereign socialist secular democratic republic', but also security of justice, liberty, equality and fraternity. To the words "sovereign" and "democratic", the words "secular" and "socialist" were added in 1977 to further reiterate, reinforce and spell the concepts of the basic constitutional framework. The word "socialist" gave economic content to justice, liberty, equality and fraternity and the word "secular" further affirmed the resolve of non-discrimination on grounds of religion. Have we failed to live upto these classical hypotheses of

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112 Reforming the Constitution the preamble? Do we live in the true spirit of secularism, socialism, democracy? Are we really and truly sovereign or are we trapped? Is there real justice and equality for all? Are the poor of the land and the meek really liberated from hunger and want and have equal opportunity? Is there real fraternity? It is difficult to accept and believe that there is no cause for concern. We need to ponder. We need to reflect. We need to pause. Whither are we going? And is the course satisfactory? We are a free, independent, self-determining republic and in the course of over four decades of our independence, we have kept our integrity, our sovereignty, our republic in tact. In fact, our freedom compelled the imperialist nations to grant freedom to other territories under their bondage. Our peaceful struggle against the mighty British empire inspired other bonded nations to demand freedom. India led the struggle of subjugated nations to sovereignty and the right of their peoples to self-determination and self-governance. We must also bear in mind that India's long history is replete with sovereign States in the sub-continent warring with each other. There have been times when a strong and powerful monarchy or government has brought India under one rule but these moments have been rare and quite uncommon. Independent India freed of Britain that awoke to emancipation in 1947 was the entire sub-continent barring West and East Pakistan. It is with the above background that we have to view our present. We cannot ignore that India is living in a world increasingly influenced by ethnic and religious groups struggling to find their own place within their own identity. Borders are changing, old concepts and nations are giving place to new nations and nationalities. Within the past very few years the old order has changed. A new world order is emerging. What its shape, its new look will be is difficult to guess. It is still developing. In such a volatile and uncertain world situation, how will India retain its present integrity and identity? That is the test Then, there is the new economic order with nations that have been the "haves" arraigned against the struggling nations who have traditionally been seen as the "have-nots." Market economies are dominant, and constitute the new catchwords of economic progress and success. The role of communism and the State have for the present failed. The compulsions of keeping pace with these changes and also meet the rising aspirations of

Reforming the Constitution 113 the peoples of lesser developed countries in the quickest possible time, is the real challenge. How much to compromise, how much to give into in the name of progress? For, too much of economic dependence may also mean loss of sovereignty. A nation's real independence is judged both by its political stability and economic strength. India has not only several ethnic groups and over two dozen languages. It also has large religious groups which go by the name of minorities. We have a historical tradition of absorption, going back hundreds of years. The constitution makers, realising the existence of religious diversity gave to us a secular government, a practical and thoughtful and undeniably far-sighted provision. But our "secularism" and its concept are loosening and both our understanding and adherence thereto are becoming dimmer and dimmer in spirit. Secular forces, though vocal, are political loosers. Political parties covertly, and in many cases overtly, have used "religion" to gather votes and even win elections. The open advocacy of "Hindutva" is a case in point. Can anyone deny that religious emotions have been whipped for votes and political power? I would go further to state that even the whipping up of caste divisions goes against the spirit of a truly "secular state". If religion can disunite and divide society and the nation, so can caste. We have to be wary of both in equal measure. If the strength of India, its rightful place in the comity of nations is dependent on its unity, then all the aspects of its diversity are to be preserved and respected. Are we honestly doing this? I am afraid that we have also to very carefully watch our "democracy"—the form of government which independent India's founding fathers gave. We have been hailed as not only the world's largest democracy but also as a truly functional democracy. The smooth and timely functioning of democracy in India has also been acclaimed as a miracle for no-one expected it to succeed in a fledgling nation of illiterates required to make their own decision. It was specially surprising because in none of the other newly independent states far less complicated and far smaller than India did true democracy succeed. But in India it did and the will of the people truly prevailed. Sadly and painfully, this too is beginning to crack up. Areas where art individual is not allowed to freely cast his or her vote, where ballots are seized by money and the might of the muscle, where ballot boxes are snatched, where malpractices succeed are becoming more and more common. The right to vote and for whom is increasingly

114 Reforming the Constitution with the mighty, with the bayonet. Alarm bells ring! Will India really and truly have a democracy? Will the decent and respectable withdraw and retreat. Then what will happen? Socialism is the vehicle of more equitable distribution, of elimination of gross and vulgar inequalities in income, status and standards of our people. A socialist pattern of society means not just equal opportunity, but also the possibility for everyone to live a good life. It is for the removal of disparities. But how is this to be achieved? Not by rhetoric, not by dogma but by production— the production of wealth. The debate on socialism has been a long and arduous one. Captalist and market forces saw in it merely the spreading of poverty. Its advocates passionately opposed private individuals and saw in them the enemies of the people. So we had both a free economy and a public sector with its commanding heights - supporting economic growth and also stultifying our production, our efficiency and our progress. Not for a moment is it my attempt to undermine the important role of the public sector. But we have to be practical and we cannot live in cocoons, in a world that has discarded those very cocoons. Removal of poverty and a more equitable distribution of wealth will come with more production. True "Socialism" is possible only if we create the wherewithal, the wealth to distribute. Justice, liberty, equality and fraternity are the magic words which create a noble utopia. These words thrill, they inspire. They conjure a world where human beings live in peace and harmony for they have justice. These words echo the acme of civilization—what a truly civilized nation is all about All this our constitution enshrines. This was the vision. This was the dream This was the poetic aspiration. Alas where are we? Have we given justice, liberty and equality to one and all fairly—to each according to his need at least, if not according to his work and merit? Have we provided equal opportunity without favour and patronage? These are the questions that we have to seriously answer. We have progressed, we have done well. We can feed our burdgeoning population and we have the capacity to produce every thing upto space rockets within ourselves. We are very proud of being Indians—proud of our contribution to world detente and peace. But could we not have done much better? Could we not do as well as Indians do when they do not reside in India? Should we not again redeem our pledge to the preamble of the Constitution and rededicate ourselves to the goals it has solemnly set for us—the people of India.

Tart III

9{eecC and Mechanism fo r Change

12 Case for Fundamental Changes K. BRAHMANANDA REDDY A SECOND look at the constitution is called for. In the context of the moral climate, fundamental remedies are needed. A new Constituent Assembly elected by the present Parliament and State Legislatures may be convened. This may even provide an opportunity to bring States like Punjab and Kashmir back into the mainstream. The new constitution should be brief omitting unnecessary details. Decentralisation of powers is necessary. Centre should retain only subjects like Defence, Foreign Affairs, etc. A radical redistribution of political power is necessary and local self-governments down to the Panchayats must be strengthened. Basic electoral reforms are needed providing for a negative vote, minimum votes required for victory being 51 per cent, registration of parties and audit of their accounts being compulsory, ban on company donations to parties, reduction of election time to 15 days, heavy deposits etc. President should have more powers particularly in the matter of appointment to constitutional offices like Governors, Judges, C & AG, CEC etc. A new Federal Constitutional Court should be created as the apex court, judicial reforms should include drastic reduction of courts' powers to grant stays. The exercise of a re-look at the constitution may give to the new generation a much needed sense of participation and the thrill of democracy lost in the cynical exercise of power.

constitution of a country necessarily reflects the social, T hepolitical and economic conditions of that country. Never­ theless, if a constitution is to be a more stable institution than the

118 Reforming the Constitution ordinary laws of the country, it must reflect certain objective values and aspirations of the given society which by general consensus are expected to prevail for a longer historical period than the passing political developments in the society. The makers of our constitution were the stalwarts of our freedom movement and were not only aware of the circumstances of our country but also reflected, in their lives, the higher aspirations of our people. They were, therefore, well suited to formulate a constitution that would have a reasonable tenure and stability. Nevertheless the fact remains that our constitution has been amended "on an average once every seven months during the last 42 years". Dr. Ambedkar had said that ''however good a constitution may be, it is sure to turn out bad because those who are called upon to work it happen to be a bad lo t... who can say how the people of India and their parties will behave?" In a similar vein Dr. Rajendra Prasad had said: "if the people who are elected are capable and men of character and integrity they would be able to make the best even of a defective constitution. If they are lacking in these, the constitution cannot help the country ... India needs today nothing more than a set o f honest men who will have the interest o f the country before them. There is a fissiparous tendency arising out of various elements in our life. We have communal differences, caste differences, language differences, provincial differences and so forth. It requires men of strong character, men of vision, men who will not sacrifice the interests of the country at large for the sake of smaller groups and areas and who will rise above the prejudices which are bom of these differences. We can only hope that the country till throw up such men in abundance."

To what extent, then, is the inadequacy of the constitution, as reflected in the need for its frequent amending, due to the objective circumstances having been different from what the constitution makers imagined than to be? Or to what extent can it be said to have been a failure on the part of subsequent generations? Or is it because the constitution makers themselves did not sufficiently anticipate the developments in free India? One obvious reason for the amendments has been the size of, and the details incorporated in our constitution. Some other constitutions have been amended less frequently not because Jthey did not need amending but because their brevity left a great deal

Reforming the Constitution 119 to legislative discretion and judicial interpretation. In our case, the desire to make the constitution comprehensive might have resulted in the need to amend it frequently. One aspect, therefore, that we have to bear in mind whenever we take a second look at the constitution is to resist the temptation of incorporating in it too many details which our present prejudices may incline us to include. The major issue on which the constitution is coming under a strain is that of Centre-State Relations. According to Dr. Ambedkar "The constitution establishes a dual polity with the Union at the Centre and the States at the periphery, each endowed with sovereign power to be exercised in the field assigned to them respectively by the constitution. The Union is not a league of States, united in a loose relationship nor the States the agencies of the Union deriving powers from it. Both the Union and States are created by the constitution; both derive their respective authorities from the constitution. The one is not subordinate to the other in its own field; the authority of one is coordinate with the other."

Our constitution makers were aware that, in a polyglot polity, a balanced division of powers and responsibilities between the apex and the constituent units was crucial to their functioning, each within its allotted sphere, in a smooth and effective manner. The members recognised the fact that the States were closer to the people and, true to the Gandhian philosophy and policy of decentralisation and devolution of powers, they recognised that there should be sufficient autonomy and authority to reinforce the units of self-government. The constitution makers were expected to entrust to the Union only such powers as were essential to discharge its obligations of overriding national importance for example, in defence, foreign affairs, currency, customs, transport and communications etc. However, their views in this regard seem to have undergone a drastic change as a result of the unavoidable partition of the country. From being constitution makers of a united India they became constitution makers for what was left of India. They, therefore, veered round to the view that what was left should not be subjected again to similar fissiparous tendencies and they, therefore, imparted a strong unitary tone to the constitution. Despite this, however, strains have appeared within our

120 Reforming the Constitution body politic. These strains are not necessarily those that we see in Punjab and Kashmir or Assam. The sentiments that have assumed the present proportions in these States were originally much milder and such sentiments are there today in all other States also. This has nothing to do with the political affiliation of the different State Governments. When I was Chief Minister and was attending the National Development Council in that capacity, there were times when the political complexion of different States and of the Centre was the same except in one or two cases. Yet on most issues concerning Centre-State relations, the sentiments expressed by the Congress Chief Ministers were the same as those expressed by other Chief Ministers in the States in which different political parties have held power at the State level. If you see the views expressed by the Chief Ministers in the National Development Council, you will find that in many cases they are very similar despite the fact that the successive Chief Ministers in some States belonged to different political parties from time to time. This genuine concern on the part of the States in regard to the increasing agrandisement of constitutional power by the Centre must be recognised. In the light of the experience of the last four decades, there is now need to reconsider many of the provisions of the constitution. Normally this could have been done by the process of constitutional amendment but since the Supreme Court has held that this process cannot change the basic structure of the constitution, it may well be necessary to look at the entire constitution afresh. This would also provide an opportunity of bringing States like Kashmir and Punjab back into the mainstream since they should have no objection to joining a process of such a full scale review of the constitution. It would not be advisable to have an election to the Constituent Assembly throughout the country because these elections themselves will give rise to more dangerous trends than the process of constitutional review. We can, therefore, have a Constituent Assembly elected by the existing Members of the Legislatures and Parliament rather than by direct election from the people. There is no need to have apprehensions that this process may let loose fissiparous or centrifugal tendencies in the country. After all, even without any such process such tendencies have already arisen in the country. On the other hand, such a process will provide an opportunity for these forces to express them­

Reforming the Constitution 121 selves in an orderly fashion instead of through violence and terrorism. Certain specific aspects in regard to which the present provisions of the constitution need to be fundamentally reconsidered are discussed in the paras that follow. Electoral Reforms The first such issue is elections. Electoral malpractices and the influence of money power have increased to the extent of subverting the veiy process in some cases. This has also resulted in loss of faith in the process as reflected in smaller voter turnout. To revive voter interest in elections, two basic reforms are required. The first is a provision for a negative vote. What is happening is that sometimes all the parties are putting up equally undesirable candidates. This tendency has been encouraged by the fact that, in many constituencies any party that wants to have a reasonable chance of success has necessarily to put up a candidate from the community or caste that happens to be predominent in that area. Very often poor voter turnout is because the voters are equally disillusioned about all the candidates. The principle of a negative vote is that in every election the voter is given not merely the right to vote for one of the candidates but also the right to reject all the candidates. For this purpose there will be a provision on the ballot for the voter to vote not only for the candidates but also for "None of the above candidates". If the number of votes cast for the rejection of all are in the majority, the election will have to be held again. It is hoped that this will bring to the polling booths a large number of those voters who are today keeping away in desperation. The objection to this system can be that it may lead to too many rounds of elections. This objection can be got over by giving the negative vote only in the first round. The candidates so rejected will not be eligible to stand for the same election in the second round but in the second round there will be no further opportunity for a negative vote. The other reform is to provide that a candidate to be dedared elected should secure at least 51 per cent of the votes polled. In the present system of First-Past-The-Post a candidate can get elected even on a minority of the votes polled. The provision of

122 Reforming the Constitution 51 per cent would rectify this anomaly. H oe again in the first round if no candidate gets 51 per cent of the votes polled, the two candidates who poll the maximum number of votes will be subjected to a second run-of election. Since in the second round there will be only two candidates, the winner is bound to get more than 51 per cent of the votes. In addition to the above major suggestions, the following reforms in regard to elections may also be considered: (a) The political parties must be registered and their accounts made subject to audit; (b) Subscriptions and donations from industrial houses must be banned; (c) The total election time must be reduced to fifteen days— three days for nomination, one day for scrutiny and withdrawal and ten days for election meetings; (d) Heavy deposits must be taken to avoid flippant candidates. Powers of the President While prescribing the powers of the President, our constitution makers must have borne in mind the prerogatives of the Crown in the United Kingdom and the role that the viceroys played in British India. Against this background they circumscribed the powers of the President on the ground that the elected Government headed by the Prime Minister ought to exercise the sum and substance of power. In this process, sufficient importance was not given to the fact that our President himself is an elected official and his electorate is in a sense more broad-based than that of the Prime Minister. If the Prime Minister has to enjoy the confidence of the Lok Sabha, the President is elected by the Parliament as a whole as well as by the Legislators of all the States. There is no reason, therefore, why a dignitary elected by so broad-based an electorate, and one who is aloof from day-today administration, should not have been given the prerogative of overruling the government, at least in respect of certain basic constitutional duties and appointments. One of the results of the President not having this power is that constitutional appoint­ ments have become the subject matter of political controversy and, as a result, important constitutional posts, whose authority

Reforming the Constitution 123 is crucial to the proper functioning of the constitution and to earning and retaining the consent and respect of the people, have lost that authority. It is now necessary that the President should be given certain powers particularly in regard to certain constitutional appointments. For instance, the President should have the power to exercise his independent discretion in (1) the appointment or removal of Governors; (2) the appointment of Judges of the High Court and the Supreme Court; (3) the appointment of the Election Commissioner, and the Comptroller and Auditor General. The President should also have a right to exercise similar independent judgement in agreeing or disagreeing with the recommendations of the government for the removal of any State Government. Judiciary The provisions in the constitution in regard to judiciary require to be looked at completely afresh. We should have a Federal Constitutional Court which will deal with all matters arising out of the constitution. The present provisions with regard to the appointment and removal of Judges of the Supreme Court should apply only for Judges of this Court. We should then have a separate Federal Appeals Court which will deal with all appeals from the judgements of the High Courts. The appointment of Judges of the Federal Appeals Court and the States' High Courts will be done according to the procedure now prescribed for the Judges of the High Court but the provision for the removal of the Judges of these courts should be considerably simpler than the present procedure of impeachment. These judicial officers should be subjected to the vigilance mechanisms like other high dignitaries and the procedure for taking action against them in cases of corruption should be similar to those applicable to such dignitaries. The special safeguard of an impeachment should apply only to the Judges of the proposed Federal Constitutional Court. This Court will be the head of the entire judiciary and will, therefore, be the highest administrative body for the entire Judiciary. The constitution should be considerably simplified and should include a lesser range of subjects than the present constitu tion . This m ight have the effect o f increasing the

124 Reforming the Constitution jurisdiction of the judiciary in the interpretation of the constitution. But this will be taken care of by having a Fédéral Constitution Bench. There must be a restricted portion of the constitution which alone cannot be ordinarily amended and the infringement of which will be subject to the interpretations of the Constitutional Court In all other matters the supremacy of the Parliament to amend the Constitution through suitable procedures must be recognised. One of the reasons both for corruption as well as for the delays in the Judiciary is the ease with which stay orders are obtained from the courts. Thereafter the cases take so long for disposal that the stay becomes the effective relief for one of the parties. In fact, in a number of cases the parties are interested only in obtaining the stay and are not interested in the case at all. Where the state happens to be the other party in the case there is no anxiety shown on the part of the State to pursue the case. The stay then becomes the effective remedy and the status quo continues. It is, therefore, necessary to severely curtail the powers of the courts to grant stays. Even where such a power is given, it should be prescribed in the constitution itself that no Stay can operate for more than a period of three months. If this is done, the onus of getting the case disposed of or the stay extended, shifts to the party obtaining the Stay rather than the other way about as is the case now. This will considerably reduce corruption in these cases. Decentralisation of Power A process of decentralisation of power is necessary for the restoration of the moral climate in the country. Corruption has reached alarming proportions. If absolute power corrupts absolutely one of the ways of reducing corruption is to decentralise this power. The centralisation of power has led to the centralisation of corruption which has encou-raged its criminalisation. In a moral sense there may be no difference between centralised corruption and petty corruption, but in a real sense it is easier to deal with petty corruption and remove the causes for it rather than to deal with centralised corruption. Just as an insoluble solid can be dissolved or made a colloidal solution by breaking it down into small particles, so also

Reforming the Constitution 125 corruption can be better tackled when it is broken down in its size and compass. The politicisation of corruption and the corruption of politics will both go down only when power as a source of corruption is removed or at least reduced. The present economic reforms by reducing the power of the State will at least reduce official corruption. It may take other forms in the private sector but that is another matter. The corruption that arises out of human cupidity will always remain as a moral or religious problem. But the corruption that arises out of the exercise of political power is a political problem and can be removed only by political devices, one of which is the decentralisation of political power. As power gets more centralised, corruption becomes more malignant. The Union Government is talking only of economic liberalisation. Why liberate only the private sector? The State Governments, the Panchayati Raj Institutions and the people also need to be liberated. All bureaucracy needs to be slimmed down. The constitution has a provision for a limit on borrowing. We should have a similar limit on the percentage of the revenues that can be spent on pay and allowances. For all this a radical redistribution of political power within our constitution is necessary. It is taking place today all over the world, in some places through constitutional means, in others through revolution. Let us, therefore, begin the process here through constitutional means. This cannot, however, be confined to District bodies only as in the proposed Panchayati Raj Amendment to the constitution. It must begin with the Centre. The amendments to the constitution which reduced the powers of the States should be annulled. The States must be strengthened. Simul-taneously, however, local self government also shall be strengthened. To strengthen Panchayati Raj there must be another Schedule of the Powers vested in Panchayati Raj institutions in addition to the Union, State and Concurrent Lists. There must be a provision in the constitution that there shall be a Panchayati Raj institution at the village level and at one other level at or below the District. All subjects relating to the welfare of the people in the local area such as Water Supply, Sanitation, Village Roads, Elementary and Secondary Education, Primary Health Care, Family Planning etc., should be within the jurisdiction of these bodies and there should be a Panchayati Raj Finance Commission which will ensure that these bodies are given the necessary finance for discharging the responsibilities vested in them.

126 Reforming the Constitution Committee System for Legislatures The functioning of the Legislatures, whether in the States or of the Parliament itself at the Centre, has of late left much to be desired. On most days when these bodies are in Session, some current issue or the other is raised by the Hon'ble Members during Zero hour or by way of adjournment motions and the normal business of the House does not get done. The Legislative business, including the passing of the Budget, which is the constitutional function of these Bodies is relegated to the last position and compressed in a few days while most of the time is spent on current issues. Some arrangement is, therefore, necessary whereby, these bodies revert to attending to their normal constitutional functions viz. the deliberation on legislation. In the case of the Budget, which is one of the most important functions of these Bodies, there has been a convention in the British Parliament of the House constituting itself into a Committee so that the Budget can be discussed less formally than when the House sits in its formal role. Some of our Legislatures have experimented with remitting the Budget to different Committees/or different Departments. In these Committees, any proposal to change allocations, including reducing them, need not be considered as cut motions. A similar procedure should be followed in the Parliament also. The provision for this can be done by the Rules of the House, but we should consider whether it is now necessary to incorporate this provision in the constitution itself. This will enable the serious Business of the House to be done in the various Committees. The House itself will then meet in full Session for shorter periods and if what happens now continues to happen in these Sessions not much harm will be done to Legislative Business. The constitution of such formally endowed Committees will also give the Members a sense of greater participation than they now have in the full Sessions of the House. Conclusion The moral climate in the countiy and the moral fibre of our people have considerably deteriorated. The constitution formulated by our elders could not take this factor into account. We have now to deal with an entirely different situation where

Reforming the Constitution 127 motivations that prevail are mercenary and not moral. It is not my intention to say that the responsibility for the moral decline rests with those who came after us. If a tree withers it can be said that those who came after did not water it property; but if weeds arise in the field, the blame must rest with those who first sowed the seed because, unless that seed was itself adulterated or the soil was already infected, the weeds could not have arisen. Therefore, those of us who started this process and the society in which all of us live must both bear the responsibility for the evil manifestations that we see around us today. The task, however, is not one of apportioning blame or tracing culpability. The task is of finding the remedy today and that remedy needs to be a fundamental one. A process, such as a re-look at the constitution, may not only help remove some of the structural defects and imbalances but it may give the present generation the sense of participation and the thrill of democracy in the making which the original freedom fighters and constitution makers had and which was lost in the cynical exercise of power subsequently. My suggestion, therefore, is made in the hope that this may revive the constructive, creative impulses of our people by providing them an opportunity of active political participation in the remaking of the system by which they wish to be governed. Mere elections are no longer giving this thrill or sense of participation. Let us take up a basic restructuring that will lead to real self government and good government—Parivarthanam, Swarajyam, Swacharajyam.

13 A Fresh Look at the Constitution BJC. NEHRU THE present constitutional system has bred instability and brought undesirable elements to power. It needs to be changed. Separation of executive and legislative powers, Rule of Law and neutrality of services have to be ensured. The President and Governors should be elected by electoral colleges consisting of members of Village Panchayats upwards. They should have only one fixed term of 7 and 5 years. The present day legislators are not truly representative. The high cost of elections are at the root of corruption. It may be most advisable to confine direct elections to local bodies like Village Panchayats and Municipalities only. Central planning should be abandoned. There should be decentralisation of power down to the lowest panchayat levels. All local problems should be locally handled by local bodies.

very first objective of any proposal for constitutional T hereform must be to ensure that the system provides a stable

government both at the Centre and in the States. I rate stability high in the factors required for good government; instability leads to weakness and weak government leads to chaos. We have been fortunate that since independence we have had only two periods of instability at the Centre—1977 to 1979 and 1989 to 1991. This relative stability is not a product of our constitutional system; it is the product of history on the one hand and accident on the other. The long continued struggle for independence with the Congress as its leader gave it a loyalty throughout the country

Reforming the Constitution 129 which took some time to wear off. The accident was that we had two powerful personalities almost succeeding each other in the office of Prime Minister so that it was the personality rather than the institution which caused the stability. The States have not been so fortunate. The historical role of Congress was forgotten earlier there than at the Centre. As the towering personalities of the pre-independence period who ruled the States disappeared one by one and were replaced by ordinary politicians, the instability inherent in the system became apparent. Even since the elections of 1967, there has been more or less instability in the governments of most of the States of India. Even when a party has come to power with a substantial majority, there is no assurance of stability. For not only is it the constant effort of the opposition to topple the government but an opposition to the Chief Minister develops within the party by those who feel they have not had their fair share of the loaves and fishes of office. The day after a Chief Minister is sworn in, there develops a group of dissidents who, if the party in power is an all-India party, are running constantly to Delhi to complain to the High Command about his misdeeds and asking for his removal. The result is that most of the time of the Chief Minister, which should be devoted to the good governance of his State, is taken away in fighting off the intrigues of his opponents. There is a story that Jawaharlal Nehru once upbraided a Chief Minister for not doing enough for the benefit of his people. The Chief Minister's reply was revealing. He said, "Panditji, both my hands are fully occupied in holding on to my chair; with which hand can I work?" It is hardly necessary to point out the dangers of instability particularly at the Centre. No concerted policy can be followed nor can any policy be implemented, for the entire effort of government is devoted to keeping itself in the seats of power. The situation that we are faced with in Kashmir, the Punjab and Assam is in no small measure due to a lack of policy and a lack of the persistence in pursuing any policy to deal with the discontents that were manifesting themselves. The economic mess in which we now are, which has made us dependent on outside authority and unable to resist its demands, is once again due to the total absence of the will to take hard and unpopular decisions. A strong government taking action two years ago to correct a

130 Reforming the Constitution situation that anybody could see was fast developing would have prevented our country from having the kind of economic set back we are now facing and the political set back that our total dependence on the foreigner has caused. My second objective is to improve the quality of the men and women who govern us. It is sometimes said that there is nothing wrong with the constitution, what is wrong is only with the people who exercise power. The trouble is that the constitution is such that it must almost inevitably and increasingly catapult into the seats of power the more undesirable elements in our society. The proportion of criminals and history sheeters in the legislative assemblies of the country has been increasing from election to election. There have been instances in which criminal charges have actually been pending against Chief or other Ministers in office. There is no shortage of decent, honourable, honest, public-spirited and highly competent people in the country; but the constitutional system is such that it makes it almost impossible for them to enter political life. I should like at this point to pay my tribute to that group of people who have all these qualities and have nevertheless had the courage to overcome the hurdles in their way. Without them our political life would have deteriorated even faster than it has. And from the many critical remarks I shall make about politicians as a class this category must be rigidly excluded. The third objective is to ensure that the executive government is strong enough and willing and capable enough to address itself to solving the major problems of this country even though the measures required for their solution may, for the time being, be unpopular. The basic problem in India, of which almost all the troubles that manifest themselves from day today are the facets, is the growth of our population. Even when we became independent, the population-resource ratio was less favourable in India than in many countries of the world. The population since then has more than doubled; by the end of the century it will have tripled. The population-resource ratio is, therefore, very much worse and is worsening every day. True it is that as a result of better technology, we have been able to increase production from our limited resources slightly faster than the rate at which the population has grown. Prosperity has, therefore, increased and poverty decreased. But the rate of

Reforming the Constitution 131 economic growth has been much tower than the rate of the growth of expectations. If the former has to be increased to approach the latter, the measures required, both in regard to population and in the economic field will, in their immediate consequences, be highly unpopular. The present system makes it impossible to take any unpopular decision, for the vote has become our God. In fact, political decisions are taken which are quite clearly contrary to the national interest because the ruling party of the moment thinks that by taking them it will be returned to power at the next election or that it will help in getting it more votes at the next by-election. The fourth objective is to reestablish the Rule of Law. There is no shortage of laws in this country. Every session of Parliament adds a dozen or more to them. The British Government in India passed no more than a little over 400 laws in the 90 years of their rule between 1857 and 1947. The independent Government of India has passed in the 44 years since Independence almost 5,000 Acts at the Centre alone; it is only a minority of them that is actually implemented. Every single one of the British laws was implemented; one of the major considerations in enacting a piece of legislation was whether it was possible, given the limitations of the administrative apparatus, to enforce it. If a proposal for legislation was such that it would be impossible to enforce it, it was considered preferable not to have it, no matter how desirable, than to bring the whole system of law into disrepute by laws being violated with inpunity. Laws today are passed without adequate thought and almost without any discussion. The Prime Minister or the Chief Minister of the day, gets a brain-wave one day that a certain law is desirable. It is drafted the next day, is passed by the State Assembly or by both Houses of Parliament on the third day and sent up to the Head of State for assent. Furthermore, when legislative business is before the House, there is hardly ever any quorum; legislators who are supposed to have been elected to legislate have no interest in legislation. The reason why they have no such interest is that they know very well that the law does not matter. Increasingly, the will of the Chief Minister, of the individual Minister and of the local MLA is being substituted for the laws of the land. The Civil Services, whose duty it is to implement the law and not the will

132 Reforming the Constitution or the whim of Ministers or legislators, have been subjected to such enormous pressures that they have no alternative but to forget the law and carry out these wishes. The fifth objective is to ensure that the elected represen­ tatives of the people who make the laws actually represent the people. The MLA or MP should represent every section and every interest of the electorate; under our present system of first-pastthe-post elections, the legislature does not reflect the real wishes of the people. The Congress Party, which has been governing us for most of our Independent existence, has not, except on two occasions, had the support of more than half the electors. The number of votes in the country opposed to the policies of the Congress has, for most of these 44 years, been larger than the number of people who support those policies. But under our system, the views of these people are not represented in Parliament as adequately as they should be. The consequence is that instead of disputes and differences being settled through debate and compromise in Parliament, which is the democratic method, they are taken into the streets with increasingly more violence. The sixth objective is to ensure that local problems are settled and local development takes place, not in accordance with the wishes of the State legislature or even Parliament itself, but according to the wishes of the people of the locality, insofar naturally as their wishes, desires and actions do not come into conflict with the interests of the people of other localities. The system today is of power concentrated in the hands of the State Assembly or in Parliament The local.bodies, the municipalities, the zila parishads, the village panchayats etc. exist almost at the will of the State Government. They do not have enough resources to meet their obligations and, what is very much worse, if they take actions which the party in power at the State level does not like, the local body is suspended or superseded. This is true not only of territorial bodies such as those I have mentioned but the craze for power is such, and the safeguards against that power being misused so few, that nominally autonomous bodies such as universities, cooperative societies and the like are infiltrated and dominated, much to their detriment, by appointees of political parties. Finally, the objective is to reduce the ever-rising tide of

Reforming the Constitution 133 corruption which threatens not only to overwhelm the administr­ ation, which is serious enough, but what is even more serious, to destroy the moral fibre of the country. Eleven years ago I made a speech in Madras which attracted considerable attention in which I traced the roots of corruption to the enormous sums of money required for an election under our present constitutional system. The amounts have grown since then; they were then, and are now, so large that there is no possible honest method by which that kind of money can be raised. Political parties and individual legislators are compelled to raise that money; the only way they can reimburse themselves or their financiers is to extract that money, with usurious interest, from the administrative system. Corruption is, therefore, not only encouraged but the honest officer is virtually compelled both by peer pressure and by the pressure of the bosses to become as corrupt as they are. My proposals for constitutional reform are based on the essentiality of the separation of powers. It has now for several hundred years been a well-recognised principle of democracy that the three powers of the State, the Executive, the Legislative and the Judicial, should be kept entirely separate from each other. This separation is necessary because each of the three branches of government serves as a check on the others leading to a balance in the final direction in which government moves. In the parliamentary system there is a confusion between the Legislative and Executive powers. The Chief Minister or the Prime Minister must be a legislator, and so must all the Ministers in his Council of Ministers. In all parliamentary systems, the extent of the confusion is limited to the Ministers being members of the legislature and so is it theoretically in our constitution. Article 102 of the constitution in regard to the Centre and Article 191 in regard to the States says that "a person shall be disqualified for being chosen as, and for being, a member of" either the Central or the State legislatures, "if he holds any office of profit under the Government of India or the Government of any State." Unfortunately, the same sentence goes on to say "other than an office declared by" the legislature concerned "by law not to disqualify its holders." Both the Central legislature as well as every single State legislature has an enormous list of offices, every single one of which is "under the Government" and is not only of legal profit but often of great illegal profit, to the holder, as

134 Reforming Ihe Constitution being an office which does not disqualify him from the membership of the legislature. In the case of the Mother of Parliaments, whose rules and conventions we think we follow, it took the representatives of the people almost 200 years to get rid of what are known as the "King's Men", whose loyalty had been bought by the Crown by giving them all kinds of offices. We have at one stroke destroyed that essential safeguard of democracy. Once a Chief Minister is appointed, all that he has to do to keep himself in office is to give an office of profit to every single member of his party. Whence it is, that the number of Ministers goes on forever shamelessly increasing. The result is that subjects which should be, and were, dealt with by Under Secretaries now have a full Minister to take the same decisions as the Under Secretary used to take. When this sub-division of subjects goes so far as to pass the point of absurdity in that further sub-division is impossible, those left out of the ministerial list are made into Chairmen of Public Sector Corporations or Commissions. If there are not enough corporations in existence to satisfy officeless legislators, more corporations are created overnight. In fact it is becoming increasingly clear that our great devotion to socialism is based not on any understanding of, or commitment to, socialism, which we never had, but on the fact that under our system it produces enormous profits for legislators no matter what losses it produces for the tax-payer. If unfortunately even this shameless creation of offices is not enough, the legislators still left out are kept happy with being given government contracts. The life of the Chief Minister is thus ensured for the statutory term of the legislature. The price of stability in our system seems to be the transformation of a democracy into a kleptocracy. The only danger that remains is that important legislators may be dissatisfied because they have not been rewarded with a "lucrative" enough portfolio. The term "lucrative portfolio" now current in our political parlance is our contribution to the theory of democracy! Here fortunately the Anti-Defection Law stands in the way but careful Chief Ministers take out an even better insurance policy. They grant to every single member of the legislature, irrespective of party, the right to transfer a given number of officials from place to place within his constituency. What happens to law and order, to education, to development, and to the numerous other

Reforming the Constitution 135 services that government is supposed to provide to the people is nobody's concern. Furthermore, ruling party legislators are permitted, encouraged and indeed expected, to issue orders to the district administration. If they are disobeyed, the official is subject to the dire wrath of the minister. The confusion between the legislative and executive powers is complete; the casualties are the Rule of Law and good administration. My first proposal is, therefore, to separate entirely the legislative from the executive function by making it impossible for any member of the legislature to hold any office of profit under the Government, including a Ministership. The Chief Executive of the country or the State, i.e. the President or the Governor as I would prefer to call them, will be elected separately and will appoint such Ministers as he may wish from outside the legislature. There will be no authority under the constitution to give anybody the right to waive this prohibition. The effect of this will be immediately and automatically to reduce drastically the attraction of becoming a legislator. The scores of thousands of people who seek tickets from the party they believe most likely to win do so not because they are interested in legislating but because they are interested in governing. If a member of the legislature cannot exercise any executive power, the only people who will stand for election to a legislature whose only function is to legislate, will be those who are interested in making good laws. This will automatically raise the quality of the persons wanting to be Members of Parliament or of the local Assemblies and improve the quality of legislation by having greater attention paid to it by men and women interested in legislation and having the competence to legislate. It will secondly, and very importantly, improve the quality of the Ministers because the chief executive will be able to recruit the best men for the job irrespective of whether or not he has the capacity to wheedle votes out of an ill-informed electorate. My second proposal is that the President or the Governor will hold office for a fixed term of years without any possibility of his removal during that term—except by impeachment for acts of moral delinquency. Not being dependent from day to day for his own existence on a whole horde of rapacious legislators he will be able to propose unpopular policies and take unpopular

136 Reforming the Constitution actions in the interest of the country. He should have a tenure long enough to be able to give effect to the policies which he considers desirable, say seven years in the case of the President and five years in the case of the Governor but, very importantly, he should be limited to a single term of office. This limitation is essential because otherwise he will fall a prey to the same temptation as our present politicians, of seeking popularity in order to remain perennially in office and in following more and more populist policies which give immediate pleasure to the voter but harm the long-term interests of the country. The fixed term of the Chief Executive ensures stability in the executive government. The President or the Governor does not have to waste any time at all in placating the desires for power and pelf of the members of the legislature. They can be discontented with him, they can abuse him, they can run to the High Command complaining against him, but all this will have no effect. He will continue to remain in power till the earth has completed the prescribed number of orbits round the sun. The futility of these efforts will soon become apparent and the enormous amount of time and energy wasted in the effort will hopefully be put to better use. Theoretically the best way to elect the President or the Governor would be to have him directly elected by all the adult population of the country or the State. But our country is so vast and the population so great that the expenditure involved for any candidate would become colossal. Once again this would lead exactly to that corruption which it is one of our objectives to eliminate. The next best alternative is for the President or the Governor to be elected by a college of electors who them-selves represent the people. It is the general belief that the President of the United States is elected by the direct vote of the people. But this belief is legally and constitutionally wrong. The people vote to elect members of the College of Electors; it is this College which elects the President. The founding fathers of the American constitution prescribed this indirect method because they felt, rightly, that so important a decision should not be taken by the vast number of people who could be swayed by emotion or a populist appeal or election gimmickry; it should be taken by a very small group of people who, while being representative of their communities,

Reforming the Constitution 137 were relatively immune to these unworthy influences and could act in the best interest of the nation. Theoretically members of the College of Electors were not bound by the wishes of the people who elect them to that College. They could theoretically totally disregard those wishes and vote for the person who they thought would be best for the country irrespective of who their electors wanted. The conventions that have, however, developed and have probably by now assumed a legal form debar such a practice. There is nothing new about the proposal that the Chief Executive should be elected by a College of Electors for the President today is also so elected, the College of Electors being the members of Parliament and the State legislatures. And indeed the Prime Minister and the Chief Ministers are once again elected by a narrow and small College of Electors, that is to say, the members of the majority party in the Lok Sabha or thè lower house of the State legislatures. The College of Electors I propose is much wider consisting of not only the Members of Parliament and the Members of the State legislatures but also of the members of all local bodies down perhaps to the Panchayat level. The electorate will be wide enough to ensure that it reflects the wishes of the people; it will be small enough not to require much expenditure of money to enable it to get to know the qualities and the merits and the policies of the various candidates for the office. This was the method that was adopted in the constitution of the Fifth Republic of France originally. It is only later that France changed to a two-stage direct election. But France is smaller than our larger States and France is infinitely richer than India. It is, therefore, easier for them to expand the constituency of the President than it would be for us. There is one specific provision regarding the election of the President, which should find a place in the Indian constitution. India has a peculiar problem, shared by Pakistan and Nigeria as also, in another way, by Canada. It is that there is one region of the country with a distinct linguistic and cultural identity which is so large as to dominate the rest of the country. In Canada, the English speaking part dominates Quebec, in Pakistan, the Punjab has more population and more wealth than the rest of the country put together. In Nigeria, the area which used to be the Northern Province is larger than all the other provinces combined. In India,

138 Reforming the Constitution it is the Hindi-speaking belt, undoubtedly more backward than the rest of the country but more populous, which has since Independence tended to dominate the governance of the country particularly in the matter of the choice of the Prime Minister. In 44 years, we have had only two Prime Ministers who have not belonged to Uttar Pradesh. Given the fact that some of these seven occupants of the Prime Ministerial office would have occupied it in any case because of their outstanding merit no matter which part of the country they came from, it is nevertheless true that this large mass of northern India enjoys an unfair advantage over the rest of the country. The dissatisfaction that arises from this kind of imbalance without adequate safeguards in the constitution to protect the rights of the other States are clearly visible in Canada and Pakistan. The only country which has recognised the problem in its constitution is Nigeria and I would suggest that we take a cue from what that country has done. In our conditions, I would notionally divide the country into four zones—east, west, south and north—and would require a successful candidate for the Presidency not only to get an overall majority of the votes cast throughout the country but also a specified, relatively small, percentage of votes in all the zones, before he can be declared elected. This is to ensure that we do not get a President whose knowledge of the rest of India is so confined as to think of everyone coming from the south of the Vindhyas as a Madarsi! The proposals I wish to make about the powers of the legislatures and the methods of their election are so inter-linked with the question of the devolution of power that it would be preferable if I discuss that first before proposing the mechanism of election. The States in general are forever wanting more autonomy. The discontents in the Punjab, Assam and to some extent even in Kashmir are traceable to a certain extent to the lack of autonomy. This question has been gone into very thoroughly by Mr. Justice Sarkaria and his Commission. I would agree with his findings that, bearing in mind the interests of the country as a whole, the powers and responsibilities that have been allocated to the Centre and the States under our constitution do not require any radical change. There may be some adjustments here and there which may be of benefit but these are marginal.

Reforming the Constitution 139 What has harmed and indeed, to a certain extent destroyed, the autonomy of the States are three factors. The moment the country, with general consent, adopted central planning for economic development, it followed that certain powers which the constitution gave to the States would have to be vested in the Centre. To take but one example, industry under the constitution is a State subject. But economic planning for India as a whole cannot be done without central control of industrial policy; control over industry was, therefore, transferred to the Centre by the willing consent of the States. But the most important factor in the destruction of the autonomy of the States has been the extra-constitutional authority that is exercised by the all-India political parties. Under the constitution, it is for the people of the State freely to choose and elect their own candidates to the legislature and for the members of the legislature to choose the person they like best as their Chief Minister. The Chief Minister then chooses his Ministers and the Head of the State, who is above all political conflict, swears them in. There is no room in the constitution for any outside interference. However, the existence of all-India parties has resulted in the destruction of this freedom of advice. The Congress gets the principal blame for thife for the simple reason that it has been in power-for the longest period of time. But the guilt is as much that of all other all-India political parties; the Janata Dal or the BJP act exactly in'the same manner. The interference goes to such an extent that even the list of party candidates to the local legislature has to be approved by the central organisation, the Chief Minister to be elected has to be its nominee, the Ministers he chooses and even the portfolios that he gives them are dictated to him by the same authority. One of the great appeals of regional parties is that there is no such interference with them from outside; regional parties in power consequently enjoy much greater freedom than governments belonging to all-India parties. No constitutional provision can be devised to prevent this kind of unconstitutional interference based as it is on the free will of the people; the remedy for restoring the autonomy that the constitution guarantees to the States lies in their own hands. The third factor that has operated to weaken the autonomy of the States is the misuse of the institution of the Governor. Tt was

140 Reforming the Constitution the clear intention of the founding fathers that that office should be totally above the political fray and that its occupants would in no way be interested in furthering any political party. In order to ensure that the Governor would not be subjected to the pressure of the Central Government he was given a fixed term of office of five years. The oath of office of the Governor is clear. It says that he will, to the best of his ability, preserve, protect an defend the constitution and the law and that he will devote himself to the service and well-being of the people of the State. This would involve, as the Sarkaria Commission has pointed out, the appointment of individuals as Governors who have achieved eminence in fields of activity other than politics or who, though they may have started as politicians have no further political ambitions or role. However, over the years this concept of an independent and impartial Governor has increasingly become unacceptable to the Central Government. The day after the Sarkaria Commission report was made public, seven appointments of Governors were made of whom six were active politicians belonging to the party in power at the Centre. The concept seems increasingly to be that the Governor is no more than a representative of the Government of India subject to its orders whose function is to serve the interests of the party ruling at the Centre. This concept has been accepted to such a point that the Cabinet of India advised the President to dismiss all the Governors who were in office when they themselves came to power and the President accepted this advice. There could have been no clear demonstration of the changed character of the Governorship; the Governor had become a political hack not to hold office for the five years which the constitution required but only till the Government at the Centre changed its colour. My proposal has the inestimable advantage of abolishing the institution of the Governor as it at present exists thereby removing all threats presented by that office to the autonomy of the State. The new Governor freely elected by the people of the State can cock a snook at the Central Government and tell them to mind their own business. Whether or not he obeys the orders of an all-India political party will depend on him and the wishes of his electors. If, in addition, central planning is abandoned as it is likely gradually to be, the autonomy of the States will be restored to its original position.

Reforming the Constitution 141 But the devolution of power that I seek is not from the Centre to the States but from the States to its local bodies i.e. the municipalities, the town area committees, the district boards, the village panchayats and the like, which are much closer to the people than the MLAs sitting in the State capitals. All these bodies now exist but none of them has constitutional protection. What I would want is that their rights, their obligations, their powers, their resources, their method of election and organisation should all be given constitutional protection without the right of any authority whether State Government or Centre to supersede or suspend them. If the State Government or any other authority had any objection to any of their actions, it would be for the courts to decide whether the action was intra or ultra vires. I would hold direct elections only to the primary legislative body, i.e. the village panchayats in the rural areas or the town area committee or municipal committee in the urban areas. These elections should be held with proportional representation on the basis of a single transferable vote in multi-member constituencies so that every caste, creed, trade or calling or other interest would have a fair and equal chance of representation. A village is a small body of people who inevitably know each other intimately. They know who is good and who is bad; they know who is competent and who is incompetent; they know who works for the public good and who is a self-seeker. They can be trusted to elect to their panchayats the best people in the village. It is often said that giving additional powers to a village panchayat would only mean giving powers to the local strong arm Chaudhri. This may be true in present conditions. But if the panchayat is given constitutional recognition and its elections conducted under the same safeguards as those to Parliament, I do not see why the panchayat cannot be as true a reflection of the will of the people as it is humanly possible for any elected body to be. The primary body, i.e. the village panchayat or the town area or the municipal committee would be in my scheme of things the base on which further representative bodies would be built. The next tier of local-self government, would be the district board—unless local conditions require yet another intermediate body. This would be elected not directly but by a college of electors. This college could consist of the members of all the

142 Reforming the Constitution primary local bodies in the district. For the next stage of government, namely, the State legislature, there again should be no direct elections, the college of electors being members of the district boards of the States. The final stage would be the election to the Central Parliament for which the college of electors should be the members of the State legislatures. All these elections should be on the basis of proportional representation on the basis of the single transferable vote. The system of the single transferable vote has been in practice in our country since the beginning of our constitution for elections to the members of the Rajya Sabha. It is by no means unknown to us and should easily be practicable even at the lower levels of elections. It is by far the fairest way of electing a body or an individual which or who reflects in themselves or himself the totality of the interests of the electors. The first-past-the-post system as I have earlier pointed out completely distorts the will of the people and is, to that extent, undemocratic. This system is prevalent only in the UAited Kingdom and in the countries which at one time were part oQ he British Empire. In all other democracies, some form of proportional representation is practised. For some reason, the only other form of proportional representation known in India is the German system of list voting. In that system for half the seats in the legislature the people vote not for individuals but for political parties. The number of seats of a political party depends on the proportion of votes it gets. Which individual actually gets elected depends on the position his name occupies in the party list. This is a method that takes away the power of election from the individual voter and transfers it to the party bosses. In Indian conditions where the party bosses in general have no elective authority, this system would be absolutely disastrous. The merits of the proposals I make are first that the electorate at every stage is limited to electing the people who are to decide on the issues which are of the most direct consequence to them. The normal villager in an Indian village has neither any concern with nor any knowledge of abstruse subjects such as foreign policy on which, under the present system, he is supposed to vote. He is concerned as a villager with the supply of drinking water or proper working of the school or the establishment of a hospital or a dispensary, the timely supply of seeds and fertilizers

Reforming the Constitution 143 and irrigation water. He could not care less about whether India followed a policy of alignment or non-alignment. Further, he knows personally the people who want his vote; whether they stand on the symbol of one party or another is irrelevant to him. He will choose the man who in his opinion is the best man and in whom he has the greatest faith. Similarly at the next tier of government, the likelihood is that the voter would have sophistication enough, knowledge enough and interest enough, to be concerned with the affairs which are the responsibility of the next tier which are wider than the village or the town area. He would in addition be more personally knowledgeable about the individuals who are wanting his vote than would be the general elector. As this process proceeds, the expectation is reasonable that the level of sophistication, knowledge, and interest will increase. What happens at the moment is quite the reverse. A blitzkrieg overtakes a village or a town at enormous expense asking the voter to vote for the Hand or the Lotus or whatever. All that he may know is the name of the leader of the party and the vote that he gives represents his confidence in that leader rather than in the individual for whom he is voting. • Lastly, but very definitely not least importantly, I.deal with the services whose position I feel should be specifically and clearly defined in the constitution. Whereas in the classical theory of the separation of powers, the Executive is regarded as one undifferentiated whole, modem political theory tends increasingly to divide the executive power also into two separate branches. There is the political executive whose function it is to direct policy and in the classical words of Harold Laski "to inject a current of tendency into the stream of affairs". These policies, in order to be effective, have to be given shape into laws which have to be approved by the second branch of government, namely, the Legislative. The application of the law in particular cases is not, however, the function of the political executive; it is the function of the permanent civil service. This group of people are entrusted with the implementation of the law. The Income Tax Act, the contents of which are a matter of policy, does not vest in the Minister of Finance any powers at all; the persons in whom various powers are vested are the Income Tax Officer, the Commissioner of Income Tax etc. etc. Similarly, no Minister has

144 Reforming the Constitution any function at all under the Criminal Procedure Code; the people who are entrusted with functions under that Code are the District Magistrates, the Superintendents of Police and the like. There is no law, whether in India or in any other democracy which empowers a Minister to decide an individual case; Ministers are merely advisers to the President or the Governor; those whose duty it is to cany out the orders which the Ministers have advised the President to give are the servants of the President which Ministers are not. The reason why India is increasingly becoming a lawless country is that those to whom the law entrusts its enforcement are not allowed to exercise their powers. The law is replaced by the will of the Ministers and, indeed, often by the will of individual MLAs. The law says that the police must take cognizance of a murder, investigate it, and proceed to prosecute the party or parties which it considers guilty. The Minister, on the other hand, says that if the murder has been committed by his henchmen, the case has either not to be registered at all or not investigated or investigated improperly or the post mortem report has to be cooked or other steps taken to ensure that the guilty party gets away scot-free. Not only that but there have been well-known instances where the Chief Minister has used the police force as his own private army virtually converting it into a gang of outlaws committing murder and rapine. To collect money for his own private purse through the agency of the police force is something that unfortunately is by no means now unknown in our country. We have gotten to a point at which many parts of the country—and I do not refer to Assam, the Punjab or Kashmir which are special cases—have no law and order. The only persons whose life and property can be regarded as safe are those who are the political bosses connected with the party in power at the moment or those who are fortunate enough to enjoy their favours. How is it then that the permanent civil services have abdicated the functions entrusted to them by law? The constitution has provisions which show clearly that the permanent services were supposed to be independent of the political executive and not to be swayed by the political bias of whoever happened to occupy the seats of power for the time being. The Public Service Commissions which were supposed to be completely impartial

Reforming the Constitution 145 and independent were to recruit the personnel of the services; under article 311 of the constitution the public servants once recruited were given special protection; they could not be dismissed or demoted or other disciplinary action taken against them without an elaborate inquiry. But the provisions of the constitution did not specifically prevent the Minister from transferring, denying promotion or suspending an officer who was not pliable and performed his duties without fear or favour as he was expected to do. It is these three powers of transfer, denial of promotion and suspension that have been ruthlessly used completely to demoralise the services. In a country where jobs are not easily available, it is not surprising, though it is tragic, that a larger number of civil servants, including the corps d'elite of the all-India services, namely, the IAS and the IPS should not have been able to live up to the great traditions of independence and impartiality which they inherited. In virtually all well-run democracies, the civil services have, mostly by convention, a special position which excludes the kind of pressure that is applied against them in India. In the United Kingdom—and this is true mutatis mutandis of all European demo­ cracies—recruitment is made by Public Service Commissions which are truly independent and immune from political influences. Appointments, postings, transfers, promotions or denial thereof, are all decided not by Ministers but by a group of senior civil servants themselves. As the civil servant's future does not depend on whether or not he has been able to please his political master but whether or not he has been successful in implementing the law, it is the law and not the ministerial whim which gets obeyed. The idea that the civil services should have autonomy is, of course, anathema to politicians of all kinds and of all parties. The Indian tradition of governance is not through the Rule of Law; the law in our tradition is what the ruler wishes. It is not understood that in a proper democracy there is no ruler in the sense that we have understood the term but that every functionary of government from the highest to the lowest has a strictly limited task to perform. That task is defined by the constitution and the laws; the will of any individual no matter how highly placed, cannot prevail against the law. Even if it is the President who

146 Reforming the Constitution breaks the law, he is liable to impeachment. We are all aware that Richard Nixon who had authorised a kind of house breaking and larceny had to abdicate what is, perhaps the most powerful office in the world, the Presidency of the United States as he found himself defenceless against the threat of impeachment. In India even a minor Minister can authorise and does authorise that kind of action without the slightest fear that any authority would take any action against him. Indeed, extortion, bribery, unlawful detention, assault and even murder seem in our political consciousness to be the legitimate rights of the person who regards himself and is often regarded as the Ruler. I suggest that if we do not want to descend into chaos, a major change in our constitution will have to be to define the respective and distinct functions of the permanent and political parts of the Executive branch of government. The conventions on which we were relying for good government under the constitution have all been broken; they have, therefore, to be replaced by law. I have attempted to sketch the outlines of a constitution which, in my view, should replace the present one if we are again to become a peaceful, honest, just and progressive nation. Each one of the specific proposals I have made requires to be greatly elaborated after mature thought and wide discussion. I do not for a moment claim a monopoly of wisdom; what I would like to suggest is that these ideas of mine should be discussed for what they are worth more objectively than has hitherto been the case. The objection that is often raised even to the discussion of this kind of basic constitutional reform is that it is so radical that it is never likely to be accepted by the only people who can change the constitution, namely the politicians themselves whose present access to power and pelf it will totally eliminate. That is true in normal circumstances. But the body politic is deteriorating at so rapid a pace that it is just possible that within a foreseable future an abnormal set of circumstances will arise where the present day politician will not have the last word in determining the future of our country. Who would have thought only a couple of years ago that the Soviet Union would collapse and be replaced by something so entirely different. The conventional wisdom was that the power of the rulers of the Union was so formidably

Reforming the Constitution 147 entrenched that nobody could ever challenge it But circumstances are not bodies; it was the force of circumstance, the economic collapse of the system which forced the change. All that I urge is that at least the intelligentsia should discuss these matters and come to some kind of consensus on the shape that we would like the constitutional reforms to take so that when the irresistible force of circumstance compels the change, we should not face the kind of chaos that has replaced the breakdown of the old system in the Soviet Union.

The article is an adaptation of the address at the IIC on 12 January,

1992.

14 Democratic Decentralisation Need for Constitutional Reforms VASANT SATHE

One of the most important aspects of decentralisation of our democratic system is to strengthen it at the grass-roots. In the process we can ensure both dispersed and balanced economic development as well as political and fiscal decentralisation of power. But, merely providing for elected Panchayats and making periodic elections compulsory will not bring Gram Swaraj as envisaged by Gandhiji and Vinoba. It will be necessary to revive the system of self-reliant village economy with the modification that the best decentralised unit for economic growth would be the district. Through the institution of Zila Parishads consisting of elected representatives from the village panchayats, the districts could also be the centralised unit of democratic adminis­ tration in the new polity.

we discuss the larger question of revival of the B efore Panchayati Raj system, it is necessary to understand its origin and the reason for its survival and prevalence over a long period in the history of our country. Panchayati Raj essentially means a body of five (punch) members who were elected or chosen by the people in the villages and were accepted as the leaders who would guide all socio-economic activities of the village and would also be the arbitrators and a judicial tribunal in matters of any dispute among the members of the community. In short, the Panchayat became the democratic self-governing institution of a village. Normally the learned and experienced members of the

Reforming the Constitution 149 society were chosen and accepted as the punches of the Panc-hayat. It held a sway on almost all secular matters, although in religious or temporal matters every individual was governed by the rules of the religion to which he belonged. Even when disputes arose and the question of imposing any penalty for temporal violation came up, the matter was referred to the Panchayat. Thus, for all practical purposes, the Panchayat was a body that regulated the life of the community living in a village. In the economic structure of the village, there was a homogenous and harmonious self-sufficiency in-built in the economic structure. Traditionally a community acquired the character of a village only when it had all the facilities or most of them necessary for a stable rural life available in the village itself. For example, although production of foodgrains was the basic avocation, simultaneously there had to be avocations such as those of weavers of cloth, potters, iron smiths, carpenters, oil crushers, milkmen, tailors, washermen, goldsmiths, cobblers, artistes and priests and similar other categories of people working in different avocations required by the society. As a matter of fact, over a period of thousands of years, these avocations which developed specialisation and as the knowledge was passed on into families from parents to their children, these avocations were recognised as what came to be established as castes. But the fact remains that to complete the economic stability of a village the existence of people belonging to most of these avocations was an essential factor and the economy of a village was traditionally dependent on a system of barter where goods and services were exchanged among all these avocations. As stated above, this brought about a self-reliant economy in a village and its stability was ensured by the existence of the institution of Panchayat, where the Panchas guided the entire affairs of that society. Simultaneously, however, a feudal system of landlords, patels, zamindars and rajas developed over a period of centuries, who dominated the socio-economic life and there used to be either benevolent or oppressive effects of their rule, depending upon the manner in which these authorities would exploit the people living in the villages. The life was disturbed whenever there were wars between the rulers but, by and large, the land remained and around it the self-reliant, self-supporting economy of the villages also continued in a stable, undisturbed manner from generation to generation.

150 Reforming the Constitution It is only with the advent of an industrial society that things have started changing. The effect has been both in the economic field and also in the political field. Economically, although production of agriculture and agricultural produce has still continued to be based on land spread out in the villages of the country, production of other consumer articles which were originally done by the people in different avocations in the village itself, slowly but steadily and surely, came to get divested from rural economy and got centralised into urban pockets where manufacturing units and factories were established on the basis of what is called large-scale economies and these consumer goods were then supplied to the consumers spread out all over the country. It is very essential to remember this economic factor where production of cloth, iron and steel articles, copper and brassware, leather goods, edible oils and many other consumer items which were originally produced in the village by the people belonging to the traditional avocations got centralised in the factories of urban areas and the people in the villages practising these avocations were systematically deprived of the source of their livelihood. What has happened in the villages over this period of past more than one hundred years of industrial era is the fact that while the population dependent on these traditional avocations has been deprived of the source of their livelihood, they had no other alternative avocations provided by the industrial society in the rural area itself. Therefore, they were forced either to migrate or to become landless labourers perpetually dependent on agricultural work provided by the land­ owners. But here also, with the growth of population, land holdings in families got fragmented from generation to generation and majority of landholders started having small or marginal land holdings, the effect of such fragmentation was drastic on those who already had small holdings initially. Thus, people who traditionally lived on the main agricultural avocation of production of foodgrains, also were reduced to become agricultural labourers as they knew no other avocation. It is a fact that after independence, with the abolition of zamindari system and introduction of land ceiling laws, large landholdings held by few rich rajas and zamindars were abolished and majority of landholders held land within the limits of the ceiling. It is true that some people have managed to hold larger landholdings in

Reforming the Constitution 151 a clandestine manner, but this is only in violation of the laws and not as a legitimate system. Even then It is a fact that more than 70 per cent of the land still continues to be held by less than 20 per cent of the people who were landholders in rural areas. Thus, a majority of landholders, as stated above, are small or marginal landholders, who for a substantial period in the year have also to work as agricultural labourers. Thus, the picture of an agricultural society where 80 per cent of India's population still lives, is a picture of what one can call an "economic earthquake", which has uprooted the traditional self-reliant economies of villages and has reduced majority of the population living in villages to only one class, namely, of landless labourers. With the passing of every generation and the resultant growth in the number of families, the small and even medium landholdings got further fragmented and more and more people in the rural areas joined this vast ocean of landless labourers. Along with this total change in the economic life in villages, there has been a simultaneous change in the political life as well. The old rulers, the zamindars, the rajas and other feudal elements disappeared even during the colonial period and progressively a new administrative and political structure in tune with the industrial society came to be established particularly after independence. A new political system of political parties elected to the democratic institutions of Parliament and assemblies at the Central and State levels came into being. The whole administrative structure, right upto the district level, was altered and placed under the authority of a dvil administration run from national and state levels. The entire cadre of administrative officers, both for maintenance of law and order as well as for collection of revenue and other welfare activities, was conducted through these authorities. Thus, the old feudal system was replaced by a new centralised administrative system of the industrial era. Another outcome of industrial era was the coming into existence of a new class which dominated the economic scene. This was the class of the capitalist who controlled the industries as well as the trade and business dealing with the industrial produce. They in fact replaced the erstwhile feudal landlords who dominate the economic and social life. This new class of industrialists and capitalists, for all practical purposes, started

152 Reforming the Constitution controlling and moulding the living conditions and life-style of the new society. Along with it automatically developed a centralised work force in the organised sector. This gave rise to organised labour unions and a new political force in the form of trade union movement of this organised labour came into existence With the industrial society also grew a new force of well-educated citizens, educated in science, technology, literature, the arts, on the basis of large-scale education through schools and colleges and other institutions. Thus, a major force of middleclass educated elite also came into existence. It is this class which, in essence, led the social and political movements and provided the political and economic structure for the new industrial society. It is this class that was at the helm of political movement during the freedom struggle and it is again this class which has provided the entire cadre for governmental, administrative as well as for political institutions like the Parliament, assemblies, etc. It is from this class that captains and managers as well as technical people were obtained, both for the centralised industries as well as for business and trade. Thus, as a result of industrial revolution a whole new class of urbanised society came into being controlling both production of infrastructure and even consumer goods, and also, for all practical purposes, controlling and guiding the political life of the country. Further, it is pertinent to note that if production of foodgrains and other agricultural produce was not still required to come from the land, even these would have got centralised. Fortunately, that has still remained land-based and it is because of this that majority of our population still continues to be stuck with agricultural operations and surviving on the rural economy. But the tragic effects have already started becoming apparent. Having been deprived of traditional avocations in the rural areas and progressively being denied work even in agricultural operations perse, a large work force of these unemployed people in the rural areas is forced unwillingly to migrate to the urban areas where they can at least eke out a living. Entire families today are flooding in to these major urban pockets, particularly of the metropolitan cities. They are virtually living in the slums, gutters and footpaths. The magnitude of this will be obvious when we consider the fact that more than 2 to 3 lakh people each migrate into the cities of Delhi, Bombay and Calcutta every year

Reforming the Constitution 153 and today nearly 40 per cent of the population of a dty like Delhi or Bombay live# in these slums. If timely measures for preventing this distress migration are not taken, slowly a stage will come when the major portion of the population of these urban pockets would be of slum dwellers. It is a tragedy that short-sighted politicians, economists and planners resort to the expedient measure of creating more and more industries in these urban pockets themselves, hoping to provide employment to these incoming, ever-growing teeming millions. In this process they generate greater concentration and congestion in these small islands of metropolitan cities, creating along with them unhygienic living conditions, problem of transportation, housing, drinking water, medical facilities and other amenities. This, in short, is the scenario of today's economic structure of the entire Indian society. It is only in this background that we can think of the structure of our village societies and consider the question of revival of the institution of Panchayat which was an essential feature of a self-reliant village economy and mutually dependent social structure. When we think of Panchayati Raj today, we are superficially thinking only of giving political power, meaning thereby, that we want fie Panchas of the Panchayat to be elected by the people in the village so that the people of the village as a whole may have a voice in the affairs of the Panchayat. Earlier, traditionally what were known as elders from different sections of the society constituted the Panchayat. It is possible to replace them through elected representatives. To that extent it will become more democratic. But the pertinent question will be as to what power will these Panchas exercise in the day-to-day socio-economic life of the people or the community living in these villages. Unless this becomes clear, in our scheme of revival of the Panchayat system, mere revival of the institution would not help and it would be a superficial and redundant exercise. The issue is so basic and big that the very magnitude of the problem scares the planners, economists and administrators and they want to skirt it and circumvent it by avoiding the issue. The tendency is just to think superficially and simplistically of providing an elected institution and making elections mandatory to these panchayats under a central law. The fact that Panchayat system has not succeeded and survived mainly because of its having become irrelevant to the socio-economic Ufe of the village

154 Reforming the Constitution is conveniently ignored and it is being felt that merely by providing an elective institution, the problems of people living in villages can be solved. I would like to quote here the observations of Pandit Jawaharlal Nehru. In his speech entitled "Crossing the barrier of poverty" delivered in 1958, he said: "If left to normal forces under the capitalist system, the poor will get poorer and a handful of rich richer. It is true that the state will intervene. From the riches of the rich it will provide the poor with education, health, housing and other amenities. But such interference does not solve the basic difficulty of a system which widens the gap".

He further stated that the role of planning was "essentially a process whereby we stop these cumulative forces at work which make the poor poorer and start a new series of cumulative forces which make them get over that difficulty. We have to stop the cumulative forces which make rich richer and we have to start the cumulative forces which make the poor to get over the barrier of poverty". In other words, a programme of alleviating poverty of the people at the grass-root level cannot be effective unless measures are taken to stop the accumulation of wealth in the highest class of the society. Thus, while it should be clear to all concerned that in the revival of the Panchayat Raj system it will be imperative to think in terms of reviving the economic system of self-reliance in the rural areas, we can still think in terms of providing a structure of administration, which indeed would provide and facilitate the revival of such a self-reliant economic and social polity in the rural areas themselves. In modem industrial society, it would not be possible to make the village as an economic unit of selfreliance based on traditional avocations. We will have to think of a larger unit and the best decentralised unit for economic growth would be a district in today's political and administrative context. The idea of Panchayati Raj essentially is based on the principle of involving the people themselves directly in the management of their affairs because it is the people who know best what their problems are, what their priorities are and what could be the best solutions to suit their requirements. If we make the district as a centralised unit of democratic self-administration by creating the institution of Zilla Parishad through elected representatives from village panchayat's, then village panchayat as a basic unit

Reforming the Constitution 155 will become a reality. This Zilla Parishad at the district level should, for all practical purposes, have all the powers of a district government, both for economic development of the entire area in the district and also for political and administrative governance. Modem technology and scientific development make it possible to establish industrial units to produce practically all essential consumer requirements in the district itself. We will have to take a calculated and positive policy decision nationally as a government to ensure that all consumer goods which are capable of being produced in a decentralised and labour-intensive smallscale basis, must essentially be produced in this manner and all production of such articles on centralised basis will have to be deliberately banned. It is a fallacy to think that goods cannot be produced on decentralised basis. Modem technology make it possible to produce practically every consumer article of high standard in industries run on small-scale sector. It is possible to have machines and tools operated with electrical power to produce all these articles, even on decentralised basis. The idea must be to provide employment for productive purposes of producing goods and services required in the rural areas themselves. It is only such productive work that can provide the purchasing power to the people in the rural areas and can thereby create an economic market for the vast population living in rural areas. When this demand is generated for this economic market, production should also take place in the rural areas themselves to meet this demand. It is only then that a decentralised and balanced growth of our entire population will take place. Then alone will political decentralisation at the district level and further down to the panchayat level will become a reality. It should be possible, as a matter of national planning, to decide that industries like production of infrastructure inputs such as, steel, heavy equipment and machines for plants, fertiliser, cement, aluminium, construction of power houses and dams or production of railway engines, automobiles, ships, heavy earthmoving equipments like bulldozers, tractors, cranes, and aeroplanes, defence equipments such as tanks, and such other articles, by their very nature have to be produced in factories set up on the basis of economy of scale but very large number of consumer items which are required for day-to-day living, to provide the necessities and to improve the quality of life of the

156 Reforming the Constitution people, can and must be produced only on labour-intensive, decentralised basis, particularly for a country which has such a large population spread over the entire area of its land mass. Such a decentralised dispersal in consumer industrial sector can also help the growth of agro-industries which by their very nature can be best located in the rural areas and can help in augmenting the production of consumer food articles, such as, dairy products, poultry, fishery, horticultural products, vegetables and other items like bee-keeping, sericulture, medicinal herbs, etc. Thus the entire quality of life in our rural areas can be changed. Decongestion of our urban centres can and will have to be taken up as a positive measure. This will not only ensure a balanced growth of our nation, but will also prevent the growth of a highly distorted and exploitative socio-economic system, which today is threatening not only economic but also our social and political life, and in turn, the very integrity and unity of our country.

15 Inadequacy and Impracticability of the Present Constitution Case for Major Amendments DHARMAVRA THE present constitution has proved to be inadequate and impractical. Time has come for a serious review. Greater freedom—social and economic—should be given to various areas to solve their problems in their own way. Power to impose President's rule in the States needs to be reduced. Governors should be appointed on merits and not on political considerations. Also, they should not be subject to removal at the will of the Centre. Some minimum qualification and qualities should be prescribed for the legislators. It should not be necessary to select Ministers only from among the Members of he Legislature. Wholesale change of the system may not be necessary, but major amendments are called for.

I

t is nearly half a century since we achieved independence. At that time the country was steeped in poverty, illiteracy and other evils, because of a hundred and more years of exploitation by a foreign country. The new government, which was actuated by the desire to remove all the social and economic difficulties of the people, set about creating a constitution for thè country. In the Directive Principles of the constitution through Article 37 it described various objectives as fundamental in the governance of the country. These cast a duty on the State to apply them in making laws. These Directive Principles included amongst others national unity, a social order in which justice, social, economic

158 Reforming the Constitution and political, will apply to all the institutions of national life, equality of citizenship, secularism, ending of exploitation in any form, eradication of poverty, prevention of concentration of wealth and means of production in the hands of the few, equity in distribution and empowerment of those who have remained weak or neglected through the ages. These were all excellent resolves, but in executing them in the making of laws of the land, the State has produced very little impact and has fallen far short of what was required. It is therefore about time that some thought was given to India's political structure and reflections on the next phase. Since the constitution was framed, tremendous changes have come about the world's social and economic thinking. The Soviet system of Marxism has been abandoned even by its most ardent followers in the erstwhile Soviet Union and its allied States. With the exception of China, which too has moved a considerable distance from Marxism as established by Lenin and Stalin, there is hardly any area where Marxism is now practised. In India, though the CPI(M) and CPI are in existence, they have also, to a great extent, moderated their views in regard to Marxism and controlled economy. More and more States all over the world are demanding independent existence and with the exception of defence and to a certain extent common currency, every body is claiming independence in all matters relating to the economy as well as social administration of their respective areas. India cannot remain unaffected by these changes and it is already facing problems in J & K, Punjab, Assam, North East frontier areas and in the tribal areas in Bihar, MP and Bengal. So is the case with the other States in the country. They are all demanding larger self-governance and much greater freedom to administer their own areas according to their requirements. They are rebelling against controlled economy, as has been practised in the past through the Planning Commission in our country, and are demanding greater freedom in running their affairs. The Sarkaria Commission, which was set up to examine Centre-State relations, submitted a massive report but it has not been followed up so far, for reasons not quite clear except that the Centre, which has become monolithic, is averse to loosening its control over the States. When India became a federation nobody envisaged that the Centre will become so monolithic. It is true that for ensuring

Reforming the Constitution 159 the unity of the country the Centre should be strong, but it was never envisaged this should mean weak States. The States are the powerful arms of the country and if we weaken the States it would result in the weakening of the Centre as well. Therefore it is necessary that economic and social planning as provided in the concurrent list should be re-examined quickly with a view to giving to the States freedom in the development of industries, in the regulation of mineral development and in respect of constitutional inconsistencies between laws made by Parliament and laws made by the States. There are, however, some areas which should exclusively be the responsibility of the Centre xriz. the defence of the country internally as well as externally, common currency and safe-guarding of the economic strength of the country by adequate control on expenditures involving foreign exchange. We have also been facing all these years small and big quarrels between States on territorial adjustments as well as regulation in development of interstate rivers and river valleys. These disputes have gone on for years with no permanent solution, and, are unnecessarily generating ill-will between States and the people belonging to those areas. There is also the problem of people from other areas, in large numbers, coming and settling in the States specially in Assam and in the North Eastern areas. The residents of these areas are naturally strongly averse to the populations in their respective areas being affected adversely through these immigrants and outsiders in their areas. In Assam, this has led to violent arisings and in the other areas also there is considerable apprehension and to some extent growth of violence. In Tripura, the entire complexion of the State has been changed through immigrants from East Pakistan and Bangladesh and today the original residents of Tripura are in an absolute minority as compared to immigrants from outside. The same is the danger in Assam The Centre has been trying, in a half-hearted manner to deal with problems arising out of mass immigration in various areas but has not yet taken positive and effective steps to prevent mass immigration and to deal with the discontent of the people in the affected areas. In J & K, when that State agreed to join India, a section viz. article 370, to prevent acquisition of properties by people resident in other areas, was introduced. This was mainly to ensure that a

160 Reforming the Constitution small ethnic area, such as J & K, does not get adversely affected by laige-scale immigration of outsiders. Now there is a demand by certain political parties that article 370 in relation to J & K should be removed from the constitution. But I wonder whether an article which was an act of faith between India and J & K when the State acceded to India can be abolished in a summary manner. The people of J & K are certainly greatly interested in their ethnic identity and any step taken to abolish this understanding would be certainly not an act of faith. In our country large areas, particularly in MP, Bihar, Bengal and Ladakh, are populated by tribes and backward classes. These tribes and backward classes have been unhappy with the steps taken by the respective States in which they are living, to improve their social and economic conditions. They feel that the only way in which social and economic conditions in their areas can be remedied is through self-governance, within the Constitution of India, to enable them to work out their own schemes to improve the social and economic conditions of their masses. It is a legitimate demand because during nearly half century of our independence very little has been done to improve conditions in these areas and the tribes as well as backward classes living there continue to be exploited by people coming from other areas. So far as the States are concerned, in Punjab the problem started with the Anandpur Sahib resolution demanding greater power for the State to manage its own affairs. Nothing was done and now we are facing violent militancy in the area, which has moved on from the Anandpur Sahib resolution to demands for total independence. In J & K, whilst the Centre did not interfere very much with the administration of the State, it remained oblivious and un-observant to what was happening through one political group exploiting power and maintaining its political authority through massive rigging and blatant corruption. We are now facing in that area a militant movement encouraged and assisted by Pakistan which has its eyes on grabbing the Kashmir valley through militant moves indulged in by the disaffected people of J & K. J & K has also a tribal area, Ladakh, consisting mainly of Buddhists, which is also agitating for self-governance under the Constitution of India, in place of rule by the Government of J & K. A time has come when all these problems should be

Reforming the Constitution 161 considered carefully, in detail, so as to give greater freedom, social as well as economic, to the various areas in our country to enable them to solve their problems in their own way without being unduly interfered with by the Centre. Because of its distance from these remote areas, the Centre has been quite unable to deal with their requirements and in the process has only succeeded in generating disaffection and unhappiness. On the plea of a strong Centre being necessary for the unity of the country, the Centre has become more and more dictatorial. This has become further complicated by political party interests because of which national problems which should and could have been solved on a national basis have become more and more complex. Much time has been lost through inaction or lack of action and in the process even the unity of the country is getting endangered. Even Tamil Nadu is getting affected by the LTTE agitation in Sri Lanka and one does not know whether in that State also we may be faced with problems in the not too distant future. Only recently the great USSR has disintegrated because of the unbridled paramountcy of the Soviet Union. We should learn a lesson from this development and ignoring developments all over the world, should not be caught on the wrong foot. When we achieved independence we were to a certain extent working under the system of parliamentary democracy as practised in the UK. It was therefore not surprising that when after independence we framed our own constitution it was based on the British system of parliamentary democracy. It was and has been a good system in a small country like England where there is little illiteracy and where the system has been practised for hundreds of years. But in India which is a large area consisting of regions with different languages, castes and religions, the position becomes different. We did not quite anticipate at that stage the problems we would be facing by blindly following the British system of parliamentary democracy without modifying it to meet the requirements of our own country and its different areas. We have now been working this system for over forty years and as time goes we are up against the numerous problems that have arisen due to the peculiar conditions of our country. The tested and tried leaders who fought for independence have all gone and they have been succeeded by people who had

162 Reforming the Constitution in the past done little or nothing to achieve independence and are mainly interested in reaping full advantage, political as well as financial, of the power that they have succeeded to in our large country. According to the British parliamentary practice, Ministers can be selected only from amongst those who are elected by the people to Parliament or to the State Assemblies. Steadily, the standard of elected representatives in our country has been falling and today we find that in some States number of persons with even criminal records have been elected, and the general education and qualification of many of those elected is most inadequate for dealing with the problems of this large and complex country. With the growth of blatant aggrandizement, rampant corruption and political exploitation of the people, disaffection is growing all round. Law and order in the country is posing alarming problems. These are largely due to the inactivity and incapacity of those elected to govern the country to govern it efficiently and with integrity, for the good of the nation. Attaining power through manipulation and rigging of votes has become the main aim and object of some of the political leaders. They certainly are not showing any signs of working in an honest manner for achieving the objectives set out in the Directive Principles of our constitution. As time passes, the inadequacy and impracticality of our present constitution is becoming more and more visible to everybody concerned. It is time that we have a serious look at our constitution and take steps to modify or alter it so that the country can be assured of governments which would work for achieving the objectives enshrined in the constitution and not for the purpose only of achieving the personal goals and advantages of individuals. A constituent assembly should be called as soon as possible to seriously examine our constitution and to modify or alter it for the service of the people. It is obvious that the present constitution cannot achieve this object and has only provided opportunity for number of unscrupulous people to come into power and to exploit our people. In the alternative of the Constituent Assembly there can also be a meeting of the representatives of all the States along with representatives of the Centre to discuss the changes that can and should be brought about in the constitution to make the Federation stronger and more workable. The main requirements are in regard

Reforming the Constitution 163 to greater freedom to the States to manage their affairs and to develop their areas according to their wishes and ability rather than to be dictated as to how they are developed by the powers at the Centre. This might mean changes in financial and industrial powers and general review of the distribution of powers between the Centre and the States. Much more important is some provision to ensure that members of the legislatures have some minimum qualifications and qualities to enable them to discharge their duties in the governance of the country honestly and efficiently. Also some provisions are required to ensure that there is wider option to the Prime Minister and the Chief Ministers in regard to the selection of Ministers. The present provision restricting the selection to the elected members of the legislatures is much too restrictive. Also they would like to reduce the powers of the Centre which they have under article 354 of the constitution to supersede States and bring about President's rule by declaring that a government in a State is incapable of ruling and functioning under the four comers of the Constitution of India. This article has been used in a most unscrupulous and arbitrary manner by the Centre and there should be some restrictions on this power. Also they would very probably like to have some changes made in regard to the appointment of Governors. At present the Governors are appointed, on paper, by the President but they are removed and even appointed really at the pleasure of the Government in power at the Centre whenever the Centre desires to make an appointment or a change. There is a provision that normally the Governor has a tenure of five years but lately this provision has been seldom observed. The Governors are appointed and changed at the pleasure of the Centre and even the assurances given by Pt. Jawahar Lai Nehru and Dr. Ambedkar about the manner of selection of Governors have ceased to be observed by the Centre. Today the Governors are appointed more on political consider­ ations and not on considerations of their experience, qualifications and administrative qualities which would make them good governors and persons capable of discharging their duties under the spirit of the constitution. In this regard the observations of the Sarkaria Commission are important. It is not necessary that there should be a wholesale change of the system but major amendments are required at specific points as pointed out above.

16 Constitutional Changes and the Presidential System N.A. PALKHIVALA

IT is high time that we make some badly needed changes in our constitutional law. This can be done in three ways viz. (i) by amending some laws, (ii) by amending the constitution under article 368, and (iii) by amending the constitution to change its basic structure by setting up a new Constituent Assembly or by a referendum. The adoption of the third way is inadvisable at this juncture. By amending the Representation of the People Act, it may be made obligatory for political parties to maintain accounts and have them audited, half of the Lok Sabha seats should be filled by proportional representation and some minimum quali­ fications should be laid down for seeking election to Parliament. By amending the Lok Sabha rules of procedure or other laws, passing a vote of no-confidence in the Government should be made dependent on the choosing of the next Prime Minister by the House. Changes which may require amendments under article 368 are (i) for a minority of Ministers, it should not be necessary to be from among Members of Parliament, (ii) members on being appointed as Ministers should resign their membership, and (iii) every State should send two representatives to Lok Sabha from the Universities and professional bodies.

nation has paid heavily for its folly in leaving the Ourgovernance of this country entirely to professional politicians

for whom politics is merely bread and butter—a means of

Reforming the Constitution 165 livelihood, or worse, a means of personal enrichment. The tremendous problems facing this country can never be solved by professional politicians, few of whom are equipped for the task. If the corrupt and inefficient administration is to be toned up, it can only be done by ministers with integrity, ability and knowledge who are versed in the art of management. If poverty is to be banished, it can only be done by men of vision and practical understanding of the ways in which the wealth of nations is created. Our bureaucracy without purposeful leadership at the ministerial level operates only as a guarantee of societal inertia. Arnold Toynbee believed that history bore constant witness to the truth of Meredith's dictum, "We are betrayed by what is false within." This profound observation affords the key to our present crisis. Do we deserve our sublime constitution? Has not the apathy of citizens—particularly of the elite who have almost opted out of the democratic process—been responsible for the corruption, incompetence and inefficiency that we see all around us? Our crisis of character is nowhere more evident than in politics. The moral crisis, combined with the economic crisis, has resulted in a political crisis of unparalleled magnitude. At such a juncture, the question naturally arises whether the constitutional law of India needs to be amended with a view to improving the quality of government. Our constitution was framed by men of great vision and knowledge. In these days of people's soul-eroding disillusionment with politicians, some are apt to put the blame wrongly on the constitution. However, it is high time that, having regard to the lack of character and calibre in the overwhelming majority of our politicians, we should think of making ?ome badly needed changes in our constitutional law. The expression "constitutional law" comprises not only the constitution but also other parliamentary laws which supplement the constitution and are concerned with subjects that are constitutional in nature. There are three ways of amending the constitutional law. The first is to change those parliamentary laws which qualify to be treated as constitutional law—without amending the constitution itself. The second is to amend the constitution, without altering its basic structure, in accordance with art. 368 of

166 Reforming the Constitution the constitution. The third way is to amend the constitution so drastically that its basic structure is altered; and this can be done, having regard to the Supreme Court's judgement in Kesavananda Bharati's case*, only by setting up a new Constituent Assembly or by a referendum. The third way of amending the constitution may be ruled out as being clearly inadvisable at the present juncture. When the dangerous divisive forces are so pronounced, this is hardly a time to call a Constituent Assembly or to call for a referendum for changing the basic structure of the constitution. Convening of a Constituent Assembly would be a step fraught with the greatest danger to the unity and integrity of India. Even a small country like Belgium took twelve years (1967-1978) to revise the fundamental laws of that state. Our problems are far more complex and more numerous than those of Belgium. We are, therefore, left with the first two alternatives. There are four desirable changes in our fundamental laws which can be implemented without amending the constitution. First, no political party should be recognized by the Election Commissioner or by any other authority unless the party is willing to maintain audited accounts of all its receipts and expenditure. The greatest source of corruption in public life is the total immunity of political parties from accountability while the small baker, butcher and grocer are expected to keep accounts. It is but fair and equitable that political parties should be disciplined by the same requirements of the law which apply to citizens at large. Such a change requires no constitutional amendment but can be effected merely by the addition of a section to the Representation of the People Act, 1951. Secondly, it seems essential to introduce partial propor-tional representation in the Lok Sabha. Half of the Lok Sabha candidates should be elected on the basis of proportional representation, which is the system in force in several countries including Germany. In order to prevent the mushrooming of political parties and splinter groups, it should be provided that the benefit of proportional representation would be available only to those political parties which secure a certain percentage say, 5 per cent of the votes cast in a region. The advantage of proportional representation is that it would enable the voice of minorities, * A.I.R. 1973 S.C. 1461.

Reforming the Constitution 167 regional parties, and other significant segments of the public, to be heard in Parliament, and thus allay the feelings of frustration and discontent among them Further, it would prevent a repetition of the 1971 mischief when the Congress party, which received only 43 per cent of the votes, obtained more than a two-thirds majority in Parliament and was thus enabled to deface the constitution by passing the disgraceful Forty-Second Amendment Act. Proportional representation in the Lok Sabha is permissible under Art. 81 of the constitution which only requires "direct election". Therefore, the desired change can be accomplished by amending the Representation of the People Act. Thirdly, some minimum qualifications should be pres-cribed for those who seek election to Parliament. This, again, can be done without amending the constitution. Article 84 already provides that the qualifications for a person who seeks to stand for election to the Lok Sabha are—(a) he must be a citizen of India, (b) he must be 25 years old, and (c) he must possess such qualifications as Parliament may, by law, prescribe. The first qualification is usually an accident of birth; and the second is inevitably the result of the inexorable passage of time. Up to now Parliament has prescribed only disqualifications. I advocate some positive qualifications for aspirants to a parliamentary career. The one job for which you need no training or qualification whatsoever is the job of legislating for and governing the largest democracy on earth. You need years of training to attend to a boiler or to mind a machine, to supervise a shop floor or to build a bridge, to argue a case in a law court or to operate upon a human body. But to steer the lives and destinies of millions of your fellowmen, you are not required to have any education or equipment at all! The long day's task was done for the Constituent Assembly on 26 November 1949, when it formally adopted the constitution. On that historic day Dr. Rajendra Prasad observed in the Constituent Assembly: "I would have liked to have some qualifications laid down for members of the Legislatures. It is anomalous that we should insist upon high qualifications for those who administer or help in administering the law, but none for those who make it except that they are elected. A law-giver requires intellectual equipment but, even more than that, the capacity to take a balanced view of things,

168 Reforming the Constitution to act independently and above all to be true to the fundamental values in life—in one word, to have character."

Fourthly, a salutary change can be made in our consti-tutional law, without amending the constitution itself, to reduce to a minimum the detestable exhibitions of the toppling game which has been a craze among our frolicsome politicians for some time past. Legislative rules or other laws can be so amended as to provide that a vote of no-confidence against the Government would be inoperative unless the legislature passing the vote of no-confidence chooses at the same time the leader who is to take the place of the Prime Minister or the Chief Minister. Such a system prevails in Germany where a vote of no-confidence in the Chancellor has to take the form of a resolution choosing another person as the Chancellor. Let us now come to those changes which would require an amendment of the constitution, but would not affect its basic structure. First, art. 75 requires that a Minister at the Centre should be, or become within six months, a member of Parliament. An amendment should provide that while the existing provision would apply to the majority of Ministers, a minority of Ministers may be selected by the Prime Minister from outside Parliament, who would not be required to get into Parliament at any time. Even the Ministers who are not members of Parliament would have the right to address, and would be responsible to Parliament; and thus the principle of collective responsibility of the Cabinet to the legislature would not be impaired. In Japan, for example, which has a democratic constitution on the Westminster model as we have, the majority of the Ministers are selected from the Diet, but it is open to the Prime Minister to select a minority of the Ministers from outside. The advantage of such a system is that it enables the Prime Minister to have in his cabinet some of the best talent available in the country. There is a second reform which can be adopted in the alternative, or in addition, to the one referred to in the preceding paragraph. When an M.P. is nominated to the Cabinet, he should be required to resign his seat in Parliament. There are several advantages in having such a law. The Minister would then be able to concentrate on the task of governing the country, and his energies would not be dissipated in politicking and in discharging

Reforming the Constitution 169 his time-consuming duties as an M.P. In France a person has to resign from the legislature upon his appointment to the Cabinet, and this system has worked extremely well in that country. It is true that in France the presidential system prevails; but this particular feature is equally compatible with the Westminster model, because it does not derogate from the principle of the responsibility of the Council of Ministers to Parliament. The third suggestion I should like to make is that art. 75 should be altered to provide that every one of the States of India should be entitled to send two representatives to the Lok Sabha who would not be elected on the basis of adult franchise but would be elected by Universities and professional bodies, and a similar provision should be made to have one representative so elected from each major Union Territory. This way we would have about 50 M.Ps who would represent the professions and the faculties and would be able to improve the tone and standard of debate in Parliament. Conceivably, they may hold the balance of power among the warring political parties which are chronically engaged in contending for the plums of office. The various amendments in the constitution and other constitutional laws, which have been suggested above with reference to Parliament and the Government of India, can be introduced at the State level as well, to great public advantage.

Adapted from the author's 'We, the People with permission.

17 Case for a Constituent Assembly S.P. MALAVTYA THE constitution has failed to fulfill the aspirations of the founding fathers. Three successive holders of the highest office of the President have suggested a review of the constitution. Throughout the country, debate is on. The 10th Schedule has failed to curb defections and needs to be amended. What is needed is a total review of the constitution by a new Constituent Assembly elected on the basis of Universal Adult Franchise.

meaningful debate is currently going on throughout A very the country about the urgent need to have a fresh look at

the constitution. The Constituent Assembly first met on 9 December 1946 and after sitting for two years, eleven months and seventeen days, on 26 November, 1949 adopted one of the bulkiest constitutions of the world. On the basis of this constitution, India became a democratic Republic on 26 January, 1950 and today we are the largest democracy in the world. The working of our constitution during the period of last forty two years has proved that aspirations of the constitution-makers have laigely remained unfulfilled. President R. Venkataraman last year suggested formation of a new Constituent Assembly to take a fresh look at the constitution. In his broadcast to the nation on the eve of the Independence Day on 14 August, 1979 the then President N. Sanjiva Reddy proposed a review of our constitution and said: "The time is ripe now to review the provisions of the Constitution in the light of our experience of working it over the last three

Reforming the Constitution 171 decades." At a seminar on Constitutional Reforms held at Delhi on 21 March 1992 under the auspices of "Rachna", another former President Giani Zail Singh remarked: "In my opinion, no constitution can be static. It is for the constitutional Pundits and people to decide as to what portions of the constitution need review, repeal or amendment but no power on earth can stop review of our constitution." The Preamble of our constitution guarantees to all citizens justice, social, economic and political and also Equality of status and opportunity. We have failed to achieve it. Directive Principles of State Policy enshrined in Part IV of the constitution stated that the State shall strive to minimise the inequalities in income and will direct its policy towards securing that the operation of the economic system does not result in the concentration of wealth, that the State shall make effective provision for securing the right to work and also for free and compulsory education of all children until they complete the age of fourteen years. Again we have failed in these spheres. Directive Principles should be made mandatory and also enforceable by a court of law. There is also need for a complete review of the AntiDefection Law i.e. the 10th Schedule of the Constitution as the purpose behind it has been defeated and it has failed to put a curb on defections. It gives legal sanction to defections when one third members or more of the total number of members belonging to the legislature party defect. It is also responsible for confrontation between the legislature and the judiciary. There is also justification in the argument that the power to give verdict about disqualification on a defection should not be left to the presiding officers of the legislatures or the Parliament. The Constitution (52nd Amendment) Bill 1985 was passed by the Rajya Sabha on 31 January 1985 and I had opposed this provision by moving an amendment that this power should be exercised by the Chief Justice of India and not by the presiding officers. What is the state of affairs today? The present situation in the country is alarming and distressing. Politics has been criminalised and also commercialised. Rich are becoming richer and poor are becoming poorer. Disparities between them are increasing by leaps and bounds. Majority of our population is forced to live below the poverty line. Economic independence is

172 Reforming the Constitution a far cry today. Inequalities, unemployment, under-employment, poverty, illiteracy and population growth are a matter of deep concern. The real India lives in villages and the fruits of our progress have failed to percolate down to the villages to be within the reach of the needy. Millions reside in slums, they have no roof over their head, they are either naked or half-naked and face hunger and malnutrition. There are villages where people including womenfolk have to walk a few miles daily to procure a pot of drinking water and even that is not safe for drinking. The ambition of Mahatma Gandhi to wipe out tears from every eye remains a pious wish. The growth of uncontrollable terrorism, violence, separatist tendencies, divisive forces, communalism, religious fundamen­ talism, regionalism, casteism and social tensions have given rise to a lot of issues and created new problems. This all has happened while our constitution was very much at work. There are of course two views on whether the constitution has failed us or the men who were entrusted with the task of working it are to blame. In this context it is proper to quote here what Dr. B.R. Ambedkar said in the Constituent Assembly on 25 November 1949: "I feel however a good constitution may be, it is sure to turn out bad because they 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." Another member Syed Mohd. Saadullah participating in the Constituent Assembly debates on 21 December, 1949 rightly remarked that, 'The working of the constitution alone will show whether it is workable constitution or whether it is unsuited to the necessities of the time and requirements of our people." Our constitution has been amended 69 times and this also justifies the argument for a total review or overhauling of the constitution. Of course, there is a provision under article 368 of the constitution which confers power on the Parliament to amend the constitution but I feel that piece-meal amendments will not improve the situation. Even Jawahar Lai Nehru had said in the Constituent Assembly that there is no permanence in the constitution and there should be a certain flexibility. The Judgement of Supreme Court in His Holiness Kesavananda Bharti Supadagalvam vs. State of Kerala as reported in A.I.R. 1973

Reforming the Constitution 173 Supreme Court 1461 ruled, article 368 does not enable Parliament to alter the basic structure of the constitution. The Supreme Court in this case held that while Parliament does have the power to amend any provision of the Constitution, this power can not be so exercised as to alter or destroy the basic structure or framework of the constitution. This principle of basic structure of the constitution was upheld by the Supreme Court in the case of Smt. Indira Gandhi vs. Raj Narain—A.I.R. 1975 S.C. 2299 and in Minerva Mills Ltd. vs Union of India—A.I.R. 1980 S.C 1979. Therefore on account of the restrictions put by the Supreme Court on the powers of Parliament to amend the Constitution, there is a very strong case for a total review of the Constitution. Another valid and forceful argument for a total review of the constitution is that the Constituent Assembly was not a representative assembly as its members were not elected on the basis of adult suffrage and that the large mass of people were not represented. Shri Mahavir Tyagi supported this view and on 11 September 1949 he spoke in the Constituent Assembly thus: "We have assumed that we are the representatives of the nation. Well, all of us have come through an indirect electorate—through the Legislative Assemblies of the Provinces which had been elected when we were not free, when the British were there. These assemblies were elected in 1946. And we are making this constitution in the hope and with the claim that we are the accredited representatives of India. I am afraid technically we are not the representatives of India, de facto we might claim to be, but de jure we are not."

Dr. Ambedkar also accepted on 17 September 1949, the argument that the assembly was not a representative assembly in the sense that Members of the assembly had not been elected on the basis of adult suffrage. The plea advanced by Prof. Shibban Lai Saxena in the debate on the third reading on the Constitution Bill in the Constituent Assembly on 19 November, 1949 can also be aptly advanced today for redrafting a new constitution. He had argued: "I am convinced that very soon when the period of transition is over, representatives of Indian people, elected by a conscious electorate on the basis of adult suffrage, will recast this constitution and will frame a constitution which realises our dreams."

Eminent journalist Nikhil Chakravarty, former Deputy

174 Reforming the Constitution Prime Minister Chaudhary Devi Lai, Maharashtra Governor C. Subramaniam, B.K. Nehru, Brahmananda Reddy, Vasant Sathe, former Lok Sabha Secretary-General Dr. Subhash C. Kashyap and former U.P. Speaker Hari Kishan have in recent times advocated review of the constitution. At a seminar held on 31 August 1991 at New Delhi on "Indian Constitution—A Case for Review", Lok Sabha Speaker Shivraj Patil very ably pointed out the many lacunas in the constitution and opined that there was a judicious scope for amending the constitution. I am in total agreement with my friend and constitutional expert Dr. Subhash Kashyap when he writes that "We must go in for a new Constituent Assembly and think of a new constitution for India—one that would take into account all our weaknesses and shortcomings and would be tailored to our needs." Both C. Subramaniam and Dr. Kashyap have also suggested recourse to a Constitution Commission. It is high time that a national consensus should be evolved in favour of redrafting a fresh constitution and getting it adopted by the Parliament. How to achieve this? I leave it for the legal luminaries, constitutional pundits and parliamentarians to answer and act swiftly.

18 Towards Changes in Our Constitution A Few Reflections KIREET JOSHI

KEYWORDS of our constitution like democracy, socialism and secularism are vague and have caused problems for the polity. These need to be defined precisely. Democracy should imply the right of all individuals to develop fully. Parliamentarism and the competitive party politics have brought to the fore undesirable men. Socialism ignores the soul of man and its supreme need of freedom and selfcontrol. Marriage between socialistic regimentation and democratic liberty is very difficult. We must try to harmonise liberty, equality and fraternity. This can be done if we turn to our traditional concepts of Dharma, Svdbhava and Sxoadharma. We need a positive recognition of spirituality as distinct from religion. Political parties are forces of social division. They use undesirable means for getting to power. We should try to rise above them and above the Parliamentary vs. Presidential controversy, even though the Presidential form may be more suited to us. A board of disinterested group of thinkers, experts and reformists should be set up. Besides dealing with the fundamental issues of growth based on human living powers and values, development of higher faculties of men, raising of entire mankind to higher levels, this Board should, in cooperation with Parliament, evolve a better alternative to parliamentary democracy. Federal polity is the most suited to our needs. The country should be divided into larger number of smaller and more or less equal States, metropolitan cities should be converted into Union States and grass-roots democracies should be

176 Reforming the Constitution built up with minimum role for parties, greater awareness of unity of the nation, fostering of Indian spirit of human brotherhood, and interweaving of all personality and character building activities. Spiritual and cultural unity of India has been an enduring achievement. It should be preserved and strengthened through inter alia resurrection of Sanskrit and ancient knowledge. Coal of our Republic should be establishment of a spiritualized society which harmonises liberty, equality and fraternity.

n important stage has been reached in the life of our country when we are required to think of major social, economic and political changes, even of designing a new pattern of our collective existence that might bring us nearer to a more satisfactory framework. It is in this context that there is a current of thought which advocates important changes in our constitution. According to one line of argument, however, our constitution has been wisely drafted and, even though it may need some amendments, our attention must be centred on implementing it wisely and efficiently. According to some, our difficulties are not fundamentally rooted in our constitution but elsewhere, in our inefficient handling of certain basic problems such as population, education, productivity, law and order and foreign relations. We are, therefore, asked to attend to these problems and are assured that if they are solved adequately, we shall see that we can continue with our constitution more or less as the founding fiathers conceived it. There are some, who may concede the need to amend the constitution and even to amend it extensively, but who believe that the basic features of the constitution cannot and should not be altered. There is, however, a debate as to what are the basic features, and there is also an argument that there is nothing to prevent the possibility of constituting a new Constituent Assembly which could, in its wisdom, give a radically new constitution, altering even the "basic features". Sometimes the discussions tend to wear a purely academic character, and they are truly far removed from problems of real importance. Nonetheless, a view is gaining ground that a fresh look at our constitution is rather urgent and even imperative. Three key-words of our constitution viz., democracy, socialism and secularism, are ambiguous and our polity seems to

A

Reforming the Constitution 177 have suffered a great deal on account of the inadequacy of the clarity in regard to these words, and varied interpretations that have been put on them. It seems, therefore, necessary to understand ¿he complexity of ideas associated with these words and to suggest that the constitution incorporates son« precise formulations or some guiding connotations of these words. The concept and practice of democracy were quite known in the ancient world, pre-eminently in India and Greece; but they have now become fixed among the idea-forces of the future as a result of the individualistic age of Europe, and this is not likely to be entirely eliminated by any temporary reaction. Even though the present forms of democracy may change, the trend is to move forward towards increasing democratic democracy. Individualism has discovered a deeper truth of the individual; it does not look upon the individual as a mere social unit, even though it recognises that the individual has his natural or assigned part in the truth and law of the collective existence. According to this view, individual's existence, his right and claim to live and grow are not founded solely in his social work and function; the individual is something in himself, an end in himself, a member of the realm of ends, a soul, a being, who has to fulfil his own individual truth and law even when he participates in collective work. The resulting democratic conception underlines, therefore, the right of all individuals as members of the society to the full life and the full development of which they are individually capable. Even the idea of social development and well-being means the development and well-being of all the individuals in the society and not merely the splendour and power of one or two dasses. These deeper truths of democracy tend to be relegated into the background under the pressure of the form, structure and functioning of parliamentary democracy. It may be admitted that parliamentarism, which is the invention of the English political genius, is a necessary stage in the evolution of democracy; without it the generalised faculty of considering and managing with the least possible friction large problems of politics, economics and legislation concerning considerable aggregates of people cannot easily be developed. It has also been a successful means of preventing the state executive from suppressing the liberties of the individual and the nation. On the other hand, it is now

178 Reforming the Constitution increasingly realised that the methods of parliamentarism involve an immense waste of time and energy and a confused, swaying and uncertain action that "muddle out" in the end some tolerable result. Parliamentarism means too, in practice, the rule and often the tyranny of a majority, even of a very small majority. It is true that parliamentarism gives to the individual the right of periodic vote, but this is besieged by a huge machine of electioneering ruled by various forces that tend to influence that vote in uncertain and irresistible directions, rendering it quite often practically involuntary. Parliamentarism also nourishes a process of a perpetual strife of parties, all of them fighting out a battle of conflicting interests under the banners of conflicting ideas and ideals. But the worst consequence of parliamentarism is that it tends to support and perpetuate a huge organised system and an increasing plutocratic tendency that shocks by its ostentatious grossness and the magnitudes of its gulfs and distances. And in that plutocratic set-up, there is increasing stress of competition which tends to secure survival, not of the spiritually, rationally or physically best, but of the most fortunate and aggressively, egoistically and vitally successful. It is evident that this is not a rational order of society. Democratic liberty tends to engender gross and unjust inequalities. Liberty, equality and fraternity constitute the trinity of demo­ cracy, and, ideally, all the three must obtain simultaneously, if we are to have the fulfilment of the dreams of democracy. But consequent upon the failure of individual liberty to harmonise with equality, there is bound to emerge the attempt of the human reason to get rid of the great parasitical excrescence of unbridled competition. Hence the rise of socialism which sets out to replace a system of organised economic battle by an organised order and peace. To begin with, it underlines the importance of equality, not merely a political equality, but a perfect social equality. It advocates equality of opportunity for all, as also equality of status for all. It argues that this equality is impossible if personal, or at least inherited right in property continues to exist; therefore it attacks the right of personal property as it is now understood and makes war on the hereditary principle. It is at this point that the real germ of socialism begins to manifest; for if the individual is not to own or possess property, it is held that it is to be owned and possessed by the community as a whole, and it is to be

Reforming the Constitution 179 administered by the community as a whole. In justifying this idea, socialism tends to deny the right of the individual to exist except as a member of the society and for its sake. According to the strict socialistic principle, the individual belongs entirely to the society, not only his property, but himself, his labour, his capacities, his individual life, his family life, the life of his children. And it turns to the collective reasoning mind and will of the community to arrange the life of the individuals, not only all the details of the economic and political life, but of all the aspects. For it begins to affirm increasingly that it is only the collective reason and intelligent will that can overcome the egoism of individualistic life and bring about a perfect principle and rational order of society. The truth behind socialism is the fact that every society represents a collective being and in it and by it the individual lives and he owes to it all that he can give it. At the same time, socialism ignores the soul of man and its supreme need of freedom and of a growing self-control instead of a mechanical regulation by the mind and will of others. Democratic socialism therefore attempts to harmonise the truth of the collective being and of the individual. It assumes that it will combine some kind of individual freedom, a limited but all the more true and rational freedom, with the rigours of the collectivist idea. But the history of the present century has manifested the hesitations of social democracy between socialistic regimentation and democratic liberty, and the increasing tendency towards the victory of the vigorous and ruthlessly logical forces of Communism and Fascism. In the northernmost countries of Europe, a temporising, reformist, practical socialism compromising between the right regulation of the communal life and the freedom of the individual has to some extent made good, but the question still remains whether the spirit of compromise can ever achieve an equilibrium of the mental poise, and whether the claims of individual liberty and those of the collective being can be harmoniously reconciled without injury to the deeper truths of the individual and of the collective soul. The fact is that socialism respects claims for individual liberty and equality only so long as they can be fitted within a frame of collective ordering of society. It does not hesitate to suppress individual liberty or even to destroy it or reduce it to

180 Reforming the Constitution an almost vanishing quantity as and when it is found to collide with the demands of the collective reasoning and will. It even argues that individual liberty of life and action may well mean in practice an undue freedom given to his infra-rational parts of nature and that therefore the collectivity or the state which represents the collectivity has the right to force the individual to realise his higher rational freedom by compelling him to obey the wiser and more universal dictates of collective reason. It goes even farther in its practice as has been shown in the history of Nazism and Communism. It discovers that the equality it creates at a certain stage of its development is rather an artificial equality, having its own irrationalities, its contradictions of the collective good, and its injustices and costly violations of the truth of Nature. Thus equality may also turn out to be not a panacea but an obstacle in the way of the best management and control of life by the collective reason and will of the community. It may, therefore, seem that the central sustaining principle of socialism is neither liberty nor equality but the third member of the democratic trinity, brotherhood, or rather, comradeship, since it seems to square better with the spirit of collectivism. But comradeship without liberty and equality can be nothing more than the like association of all in common service to the life of the nation under the control of the collectivist State. The result would be totalitarianism, the logical extreme of socialism, for it can be seen that in the ultimate analysis, collectivist ideal can do very well without liberty, equality and fraternity, for none of them belong to its grain and substance. In this consequence there is, indeed, the paradox of the march of Reason. For it is the Reason that conceives of collective mind and will, as distinguished from and superior to the individual mind, and it is the collective mind and will in its logical train that arrives at totalitarianism, which is the denial of the development of Reason, since Reason develops best when it develops with a tolerable space of freedom. In the totalitarian system, there is a rapid crystallisation of the social, economic, political life of the people into a rigid organisation effectively controlled at every point. There comes about the compulsoiy casting of thought, education, expression, action into a set iron mould, with a ruthless repression of all that denies and differs. Indeed, such a situation cannot last for ever, although it can

Reforming the Constitution 181 last long enough to be a menace and a threat to occupy the globe. But now that totalitarianism has collapsed during the recent years, we are now faced with an even deeper question, namely, whether the swing in the opposite direction that tends to encourage competitive spirit of capitalism is the only right road to the fulfilment. In India, there was a hope and promise of a success of social democracy, but we are now passing through a stage of sharp disequilibrium in our economic and political life, the consequences of which may not be entirely within the control of any formula of a compromise between socialism and democracy. We are required to consider once more very seriously what, if any, will be a practical and satisfactory formula of socialism and democracy. The central difficulty in the practice of the democratic ideal is that when liberty is attempted, equality tends to suffer, and when equality is attempted liberty tends to be sacrificed. And, as far as fraternity is concerned, it seems to be at the mercy of egoistic self-will of individuals or of the mechanical uniformity of the State machinery and finds occasional or imperfect expression in terms of association, co-operation, mental sympathy or comradeship. Fraternity is pre-eminently a matter of the inner spirit and can manifest truly in the free relationships of the inner souls of individuals. Actually, liberty and equality, too, are spiritual in character, and they can only flourish in spiritualised society, and they can be recognised and practised only partially in the framework of institutions and of the State. That is why there is bound to be some kind of disequili-brium between liberty and equality in our present conditions; and when we think of some satisfying formula applicable to our existing conditions, we have to think not of any fullness but only of maximising the harmony of these two elements, and strive always to fill the lacuna by creating conditions in which the spiritual truth of liberty and equality as also of fraternity can be experienced and expressed progressively and increasingly in various activities and relations as also in the spirit of the working of the individuals and of the cultural, social, economic and political institutions. In the ancient polity of India, there was a strong democratic element, although the features of that element were not at all the same thing as modem parliaments and modem democracy. These features were derived from the original Vedic idea of Rita, which

182 Reforming the Constitution developed into a complex idea and practice of Dharma, always distinguishable from what we call institutional and credal religions. While the ideal conceived in the Indian polity visualised the dispensability of artificial construction of society or of any political government or State, because in that enlightened state the individual and the collectivity would be freely self­ determining, yet it admitted that in the actual condition of humanity there has to be super-imposed on the natural life of society a state or a sovereign power, with a basic function to ensure that the Dharma is observed and in vigour and to punish and repress and prevent offences against the Dharma. An important feature of the concept of Dharma was that it took note of the individual and group variations, and instead of the erection of one uniform and mechanical law of development, it attempted to penetrate deeper into the spiritual dimension and insisted on the recognition of svabhava and swadharma, that facilitated at the appropriate stages of development the freedom of deeper plunge into the spiritual reality of the individual, and even of the transcendence of Dharma at higher heights of development into the state and dynamics of spiritual liberation, moksha. Another important feature was the recognition that every epoch or every age has its own dharma, yugadharma, and this required fresh discovery and formulation that would be appropriate for the given time. These two features taken together would permit the freedom from bondage to the past and the freedom to advance towards the future. It is true that the application of the concept of Dharma to the economic, social and political life broke down at various stages of our ancient histoiy, and we find that the ancient system could advance only upto a point where India's social, economic and political rule of life was able merely to adumbrate deeper spiritual significances. It may also be admitted that, while the Indian experiment discovered the spiritual truths, it could apply them for the life of the individual only, and even for him it looked beyond the earth for its fulfilment and at earth only as the place of his preparation for a solitary salvation or release from the burden of life. It may even be said that human society itself never seized on the discovery of the soul as a means for the discovery of the law of its own being or on a knowledge of the soul's true nature and need and its fulfilment as the right way of terrestrial perfection.

Reforming the Constitution 183 As we turn our eyes towards the future, and as we try to assimilate in our collective life the great and admirable ideas from the West of progress contained in the formula of liberty, equality and fraternity, we need to clarify to ourselves the essential element of the genius of Indian polity, to recognise how far we succeeded and in what respect we made mistakes and faltered in the application of our ideals or were misled into unhealthy exaggerations. India has the key to the knowledge and conscious appli-cation of the ideal. What was dark to her before in its application, she can, now with a new light, illumine. We may admit that the Indian tradition created fences to protect the outer growth of the spiritual ideal, and these, in due course, became barriers to its expansion and further application. It is for us not to put this problem below the carpet but to make a fresh effort to break down the barriers and give to Indian spirit and its polity a freer field and ampler light. This has become now necessary because the Western ideas of progress have themselves come to a stage of crisis, and we in our application of these ideas in our polity find ourselves arrested. We can move forward only if we can explore our potentialities; it would mean assimilating the knowledge or germs of knowledge lying in the depth of our tradition. It is quite possible that this effort may also provide a new and decisive turn to the problems over which all mankind is labouring and stumbling. There is a danger that when we speak of Dharma and Svadharma and of spirituality, we may be arrested by the current notions of codes of conduct and of religion. It is true that Dharma may be conceived at one stage as a body or systematic body of duties or of rights and duties, and in an evolutionary process this has its own necessity and utility. But when the society has reached the stage of democratic freedom based upon individualism, there is bound to arise some kind of pluralism and even an attempt to transcend the idea of any uniform content of duties. Therefore the deeper concept of dharma in India has been refined in the context of svabhava, the development of the nature of the inner soul of the individual, which is different in each; and the concept of svabhava has been associated with swadharma, the individual law of the development appropriate to each individual's inner nature and soul. This recognises the diversity of individualities and diversities of laws of development.

184 Reforming the Constitution At the same time, the Indian knowledge of such matters is capable of formulating universally acceptable science of self-development that can serve as a guide and which, for purposes of collective life, can be recognised and implemented. Such recognition could itself be a great advance over the present confusing and largely unworkable and unimplementable lists of duties. In this context, we need to reconsider the concept of "secularism" that we find in our constitution . In the first place, secularism is not defined in our constitution; it is thus left to every one to interpret it in any way one thinks best. There is a view of secularism, which consists of equality before law, irrespective of caste, religion and race, as also the idea that the state funds shall not be utilised for the promotion of any religion. There is a tolerant view of secularism, which aims at equal respect for all religions. There is also a synthetic view of secularism, which aims at bringing about unity of religions on the basis of shared moral and spiritual values. There is also a materialistic view of secularism, which has an upper hand in legalistic battles on the subject, since it can be more convincingly made out that materialism is incontrovertibly secular. But whatever view that one might take, the net effect is that the constitution promotes confused thought on religion, shuts the doors even on those tendencies in religions and in spiritual planes which lie above religions, which, if consciously acknowledged and promoted, would heal the divisions of religions, bring about greater understanding among them, and would eventually enable us to cultivate the scientific body of spiritual knowledge. What we need today is a positive recognition of spiri-tuality as distinct from religion; we need also to recognise that there exists a scientific body of spiritual knowledge, and that this needs to be promoted by the State. This is all the more necessary when we find that the true truths that lie behind democracy and socialism can be integrated and expressed effectively only when their ultimate spiritual aims are recognised and promoted. What about the defects of parliamentarism and of the evils of plutocracy that tend to be promoted by parlia-mentary democracy? The central defect lies in the fact that although in theory all the adult members of the society are to be partners in the governance of the State, in practice, the effective participation

Reforming the Constitution 185 and exercise of power gets vested only in specialised groups, called political parties, their functionaries and their chosen candidates. Political parties harden into citadels of vested interests who cultivate the rich by various means, fair and foul, and perpetuate their hold on the people and their collective destinies. Political parties also tend to be forces of division in the country, each exclusive of the other, and, like religions, each having its own creed and system of rewards and punishments, and even in crucial circumstances, authority over the conscience and expression of its members. The Indian anti-defection law brings out quite clearly the extent to which the whip of the party can control the freedom of its members in legislatures. Parliamentary system has therefore become in practice a system of periodic rule by a ruling political party which bears some kind of an aura of the absolutism of theocracy. Seeking of wealth, corruption, duplicity and resort to divisiveness—these constitute the air and atmosphere of political parties, and they alone have potential or actual power of effective action in the country. It has been acknowledged that even though democracy is an evil form of government, it is a necessary evil; it has also been conceded that even though parliamentary democracy is, in any case, the worst form of government, mankind has not been able to invent any better form of government. As against these contentions, it has been held that democracy need not necessarily be an evil form of government, as has been shown by the ancient republics of India. It is evident that these republics enjoyed high reputation throughout India for the excellence of their civil and the formidable efficiency of their military organisation. It has also been noted that the political liberty that obtained in these republics long outlasted the period of Greek republican freedom, which was brilliant but ephemeral and troubled. It has also been noted that some of these republican states appear to have enjoyed a longer and more settled history of vigorous freedom than republican Rome, for they persisted even against the mighty empire of Chandragupta and Ashoka and were still in existence in the early centuries of the Christian era. It has also been held, based upon historical evidence, that even though India as elsewhere developed monarchical States, Indian monarchy right upto the Mohammedan invasion was of an altogether different type, having in it a strong democratic character, since that

186 Reforming the Constitution monarchy was a sort of a limited or constitutional monarchy, and even the continuation of the monarch's rule was far more dependent than that of medieval European kings on the continued will and assent of people. Based on these and similar facts, it has been argued that democratic freedoms can be organised on patterns different from those of parliamentarism, and that liberties of people and individuals can be protected, if they are properly blended with various forms of government, monarchical, oligarichical, or republican; the important point that is underlined is that democratic freedom and its protection depend largely upon the democratic spirit among people and among those who happen to have effective political power of governance. There is, indeed, an overwhelming view that it is futile to think of resurrecting monarchical form of government. At the same time, it is seen that constitutional monarchy such as we find in the symbolic British crown has some kind of persistence, and that the presidential form of government can very well be combined with democratic freedoms, provided that the President is subjected to the system of direct election by the people and that his rule is limited in its tenure and freed from the principle of heredity. In recent years, a strong view has come to be advanced that India should switch over from parliamentarism and cabinet form of government to the presidential form of democratic government. It has been argued that our constitution already provides Presidential form of government, quite distinct from that of the constitutional monarchy of the U.K., since while the latter is hereditary in character and is not subject to the vote of the people, the former is not hereditary and is subject, if not to the direct vote of the people, still to the election by an electoral college consisting of members of both houses of Parliament and the members of legislative assemblies of the States. It is also pointed out that it is the President who is consti-tutionally assisted by a Council of Ministers led by the Prime Minister, and that the Council of Ministers holds office during the pleasure of the President, although the President is bound ultimately by the advice of the Council of Ministers and there is ultimately the supremacy of the Prime Minister and his Council of Ministers over the President. It is in the context of this delicate balance between the constitutional position of the Indian President and

Reforming the Constitution 187 that of the Prime Minister that it has been suggested that some of the evils of parliamentarism can be cured or mitigated if the constitution is so amended that the President is elected directly by the entire electorate of the nation in a national election. It has been argued that the character of the sanction behind the Chief Executive would undergo a basic structural change, that this would ensure a sense of unity and oneness amongst the voters of India, and that electioneering process would require the political parties to override considerations of religion, caste or creed. It has also been argued that the presidential form of government would give a greater flexibility to ensure that even individuals, eminently suitable but not belonging to any political party or not elected through parliamentary process, can also get a chance to become ministers or political executives, thus minimising the evil stranglehold of some of the undesirable elements involved in the processes of electioneering. It is also possible to argue in favour of the presidential form of government that it is easier under that form to organise more effectively some kind of a system reminiscent of our ancient Indian system which could combine complex communal freedoms and self-determination, and that the system could be so organised where the entire Parliament could, under important circum­ stances, function as the President's opposition, which would ensure an effective network of processes of checks and balances. But even if we are to concede, either because of conviction or for the sake of argument, that presidential form of government is better for India than the present parliamentary and cabinet form of government, there is still the question of the role of political parties, their divisive power, their employment of undesirable means of gaining victory in elections, and their encouragement, voluntary or under compulsion of circumstances, of plutocratic tendencies and of the supremacy of the power of wealth. Unfortunately, we find that in the current political debates there is no genuine condemnation of the system of political parties, in spite of their acknowledged evils; it is true that we hear of some proposals of reforms that underline the need to run parties more and more democratically; but otherwise the trend is to harden the party system and there is even a proposal that legislative measures should be adopted which would oblige every

188 Reforming the Constitution potential candidate to legislatures to belong to a political party; this would, in effect, eliminate the existence of what we call "independents" from the political system. We hear, undoubtedly, from time to time, of partyless democracy; but this idea has not received as much attention as it deserves, probably because this idea threatens the vested interests of the present political parties, which would under normal circumstances not agree to their own liquidation. In the present circumstances, therefore, the utmost that is being advocated is to create some kind of consensus among political parties on some basic national issues or to create conditions under which political parties could come together to form a national government. On the other hand, there is a possibility of creating a trend or a new climate of political thought in the hope that under the anvil of favourable circumstances new ideas of democratic democracy, and of the harmony of liberty, equality and fraternity both in their practical and spiritual reality, can be realised progressively, either in a slow motion or even rapidly. There is a tendency to stigmatise good ideas relating to a possible future polity in our country as impracticable simply because they cannot be implemented uniformly all over the country. But it is possible to conceive that certain new ideas and certain corresponding forms and structures of new polity can first be actualised only in certain favourable pockets on a small scale, say, in a few districts, or in a few federated groups of villages or towns, where sufficient number of individuals could, moved by idealism and spirit of innovative experimentation, adopt and give unto themselves voluntarily, some form of collective life that could combine the higher truths lying behind democracy and socialism and that could free itself from the limitations of parliamentary or presidential form of governance and of plutocratic tendencies. In order that such a possibility could really materialise, we can think of at least three enabling conditions which should at the minimum be made available in the country by some means of constitutional amendment. First, there could come to be formed a board of disinterested group of thinkers, reformists and experts, whose very task would be to encourage innovative ideas, which could include the following;

Reforming the Constitution 189 (1) that the society should lay stress on the power of the cultivation of human living powers suffused with their corresponding values, rather than on institutions which produce mechanising effects on individuals and collectivities; (2) that the highest seeking relevant to our time is not only to find our fulfilment within our deeper soul but also to deal with life and its problems with increasing knowledge, even though this might mean developments of faculties of truth-perception and truth-action, which have been affirmed so forcefully in Indian culture; (3) that our efforts should start with the rejection of the theory that many must remain necessarily for ever on the lower ranges of life and only a few climb into the free air and the light. On the contrary, we must aim at the regeneration of the entire life of the earth. Secondly, this board may encourage or even guide willing individuals or groups of individuals to evolve ideas and forms of collective action that might promote even on a limited scale in districts or selected small areas of groups of villages or towns, practical ideal ways of life that would be free from the disabling and ugly features of plutocracy. Thirdly, this board may have the power, in consultation with and in concurrence of the Parliament, to implement, even on a limited scale, such ideas and forms which promise a better alternative to the present parliamentary democracy. India's oneness consists of unity in diversity. Right from early times, there was a conscious attempt to harmonise cenuifugal and centripetal forces by permitting original elements of differences to develop many living and pulsating centres of life, art, culture, a richly and brilliantly coloured diversity in unity. Evidently, federal form of government would be the natural form for such a difficult synthesis of commonness and differences. The fact therefore that our constitution is federal in character is in line with the logic of the svabhava and swadharma of the Indian spirit. But there are some who think that preservation of regional linguistic States tends to harm the genuine interests of the unification of the country. In their view, vigorous unification is the only true union, and the oneness of the country can be ensured by taking recourse to a standardised and uniform

190 Reforming the Constitution administration, language, literature, culture, art, educations—all carried on through the agency of one national tongue. In contrast to this view, there are many who cherish the theme of unity in diversity but would still advocate a greater standardisation and uniformity in our country in order to counteract divisive tendencies that have come to the fore in recent decades, and they feel that regionalism, communalism and linguistic divisions are ruining the solid roots of the unity of the country. At the same time, there is no clear view as to what kind of reorganisation of the States could replace the present dispensation. As a result, there is in our climate of thought a certain uncertainty, even a disequilibrium, which needs to be attended to. It may legitimately be argued that even within linguistic States there are forces that discourage certain healthy sources of variations and diversities, and that these forces need to be checked or eliminated. It has also been argued that several States are too big, while others are not so large and some are even very small. It is felt that it would be advantageous to have more or less equal States, in terms of their size and their economic viability. It is also felt that the unifying potentialities of the metro politan cities are not being allowed to grow in their fullness because of their being capitals of their corresponding States. It is argued that many of our metropolitan cities are multi-lingual and have developed healthy cosmopolitan culture; their special characteristics should be encouraged and developed, and this can best be done, it seems, if they are turned into States, somewhat on the pattern on which Delhi is being proposed to be turned into a full-fledged State. It is also felt that by this rearrangement, these city-States could serve as centres of centripetal tendencies in the country, counteracting excessive regionalism that is developing in various parts of the country. It is also felt that their prosperity or their surplus could be made available to the whole country, instead of being pooled as is the case today into the economy of only one or the other of the States to which they belong at present. If these metropolitan States become, so to say, Union States, the regional States will develop new towns of their own, which will provide a fresh impetus to the economic growth and cultural efflorescence. In sum, an idea can be proposed for serious consideration to reorganise States on these new lines:

Reforming the Constitution 191 (i) Division of the present States into larger number of States, so as to permit greater diversity than is available at present, as also to bring out some kind of equality among them in terms of size and economic viability; (ii) Identification of about ten or twelve metropolitan cities in the country and according them a special status of what may be called Union States, which would foster cosmopolitan and centripetal tendencies in the country, and which would also contribute their financial surpluses to the neighbouring States and to the other States and to Centre, according to some equitable formula, applicable flexibly to each; (iii) development of programmes of grass root demo-cracies among all the States that would promote— (a) new forms of democratic democracy (reducing to the minimum resort to party system); (b) greater awareness of the unity of the country; (c) fostering the Indian spirit which looks upon the whole world as one family; and (d) inter-weaving of education, culture, sports, child­ care and youth movements. Paradoxically, it would seem that a larger number of smaller States in a federal structure would tend to strengthen the Centre in several ways. However, this would prove to be truer if the devolution of powers between the Centre and States is so worked out that greater responsibilities are assigned to the States, and an effective machinery is worked out whereby States are helped by the Centre to develop grassroot democracies in towns and villages. It is true that the unity and integrity of the country are in a perilous condition; but the causes of this condition are to be found at deeper levels. In any case, resort to methods of unification by uniformity and mechanisation will create greater discontent in the country and will create forces that might tend to take revenge by forcing unhealthy divisions in the country. Variations, diversities and freedoms are necessary for the right and healthy pulsation of life. It requires no argument to affirm that one of the unifying factors in the country has to be one common language,

192 Reforming the Constitution acknowledged and accepted by the people all over the country. That common language cannot be English, since it presents itself overwhelmingly as an alien language, which was used by the British for its own imperialistic purposes. Our constitution has declared Hindi to be the official language for the Union. It is also expected that in due course English will be replaced by Hindi, although for the time being English has been given the status of the Associate official language for the Union. It is also expected that Hindi will, sooner rather than later, flourish as the All-India link language, and efforts are being made to fulfil this expectation. Much success has been registered, but it is doubtful whether this can be considered adequate. For resistance to Hindi persists, openly, in a few parts of country, and subtly in many parts. Further thinking on this subject needs to be invited; and we have to evolve a new language policy, which can subsequently be incorporated in suitable form in our constitution. Already, there is a demand to give a more honourable place to Sanskrit, and this demand deserves to be considered without any bias or prejudgement Have we thought of and implemented adequate measures to identify and foster cultural instruments available in our heritage, which, if deliberately encouraged, would ensure spontaneous strengthening of cultural unity of the country? We have been relying too much on official and adminis-trative means for promoting national integration and neglecting or subordi­ nating deeper means, ethical, intellectual, aesthetic, and spiritual. We tend to forget that as far as India is concerned, its enduring unity has been spiritual and cultural. Spiritual and cultural unity of India has been an achievement which has no parallel in the history of civilization. It had at its base a long tradition of effort directed towards the loftiest, widest and deepest spiritual experiences and their utilisation for the reconciliation and synthesis of hundreds of approaches, methods, systems, that developed in the long history of the country, and inundated the Indian mind with religious, ethical systems, philosophies, disciplines of knowledge, art, craft, and arts and sciences of economic, social and political life. In the periods of the high tide of this effort we find the combination of four factors that aided the achievement. First, there was leadership of eminent personalities exemplifying the spirit of synthesis, respected and

Reforming the Constitution 193 honoured by the people and the State; secondly there was a system of education that promoted not only sdence but art, not only book-knowledge and information but growth in culture and character; thirdly, there was a widespread diffusion of knowledge in various forms that informed vast masses of people of the ideals of spiritual realisation, synthesis of yoga, of ideas and of codes of conduct, and of lives and characters, historical or otherwise, that could inspire higher aims of life. And, fourthly, there was a peculiar system whereby the words of the wise could be adopted with a certain facility by the people and even by the State as a guideline to be implemented in the individual and collective life. We can see that none of these factors subsist today, but if we still have some living experience of the spiritual and cultural unity of the country, it is because of the strong foundation which had been built over millennia. The question remains, however, as to by what means that unity will be sustained and strengthened. The question here is not merely that of administrative manipul­ ation but that of creative action which is faithful to our own spirit, nature, ideals; it is a question of the creation of our own characteristic forms in the new age and the new environ-ment; it is also a question of a strong and masterful dealing with external influences which need not be and cannot be a total rejection. In this creative action, the most essential task is to recover our old spiritual knowledge in all its height, splendour and depth; for it is that knowledge which acted as the force of unity, harmony and synthesis. This recove.y can greatly be aided by the resurrection of Sanskrit, since it is in that language that the greatest treasures of our spiritual knowledge and of the harmonies of spirituality, intellec-tuality, ethicality, aesthetics and sensuousness are stored. Once this point is grasped and appreciated, it should not be difficult to employ constitutional means to accord recognition to Sanskrit as the language of our spiritual unity, and to lay down the means of spreading it, along with other elements of our ancient, classical and modem knowledge, among the people through various means of formal, non-formal and informal education. Another important task is to encourage the flowing of the unifying spiritual knowledge into new forms of philosophy, literature, art, sdence and critical knowledge. Again, once this point is grasped and appreciated, it would be easier to ask the question whether there are any constitutional means by

194 Reforming the Constitution which this task can be aided. There seems little doubt, if we examine all that is being done now in fields of knowledge and the inadequacies thereof, that we should urge a constitutional provision for the establishment of an autonomous apex body or commission, directly responsible to the Parliament, to encourage and monitor this task at the national level. Finally, fulfilment of the spiritual and cultural unity can be envisaged if India can undertake the task of formulating a greater synthesis of a spiritualised society. Undoubtedly, this is the most difficult task, and it cannot be fitted within any narrow formula of thought and action. But it is not impossible to envisage the recognition of this task and its over-arching importance, if it can be incorporated as the basic goal of the Indian Republic. We may now, in this concluding section, put forth very briefly the basic argument and main points that lie behind that argument. (1) Our constitution needs a fresh look and major amendments. We need to elucidate or redefine even the basic ideas of the constitution such as, democracy, socialism and secularism. (2) The concepts of democracy and socialism contain certain elements which can make them antagonistic to each other. At the same time, a wise combination of democracy and socialism is necessary and fruitful, but we require greater clarity regarding their meaning and scope. (3) We need also to state more clearly the functions of the State. It may be maintained rightly that the function of the State is to provide all possible facilities for cooperative action, to remove obstacles, to prevent all really harmful waste and friction. Its function should also include removal of avoidable injustice and to secure for every individual a just and equal chance of self-development and satisfaction to the extent of his powers in the line of his nature. This is the truth behind socialism and this element should remain an unalterable element of our polity. (4) All unnecessary interference with the freedom of the growth of the human being is or can be harmful. Even cooperative action is injurious if it immolates the individual to a social or group egoism and prevents so much free room and initiative as is necessaiy for the flowering of a more perfectly developed

Reforming the Constitution 195 humanity. This is the truth behind democracy and individualism, which should also remain an unalterable element in our polity. (5) Our democratic ideal should also clarify that the individual is not merely a means to an end, but he is ¿so himself a member of the realm of ends, that he is inwardly a soul, capable of transcending the given status of the progress of the society and of opening up new paths by his initiative which may ensure the individual and collective progress. The individual should, therefore, be given the status and aid in accordance with this truth of the individual. (6) Individualism should not be confused with compe-titive capitalism, just as socialism should not be confused with the deification of the State and totalitarianism. Both individualism and socialism can become harmonious if the spiritual truths lying behind them are emphasised and cultivated among individuals and collectivities. (7) Liberty, equality and fraternity are spiritual in their fundamental nature and can be progressively harmonised by means of progressive development of spiritual static and dynamic states of consciousness, which are so well studied and organised in India into a scientific body of knowledge. (8) A major effort of Indian polity should be directed towards the condition where the State and the constitution explicitly recognise this Indian science of spiritual knowledge. (9) The concept of secularism needs to be clarified and stated with precision; it needs to be clarified that secularism does not mean materialism but it aims not only at non-interference of the State in matters of recognised institutional religions, but also at the State's positive endeavour to promote a greater understanding among religions, and a unity or harmony of religions. (10) Right men and women should be in their places and our constitution should be so designed that only individuals who combine honesty, wide vision and organisational ability should be able to come to power. Parliamentary democracy, on account of its plutocratic tendencies, has become incapable of implementing this desirable objective. Hence, vigorous efforts should be made to develop better forms of democracy or, to begin with, to supplement parliamentary democracy with experimental forms of democratic democracy, grassroot democracy, and partyless democracy, on a smaller scale in

196 Reforming the Constitution different parts of the country. For this to happen, suitable provisions should be made in the constitution. (11) Presidential form of government seems better than the Cabinet form of government; and our constitution may be amended to implement this idea. (12) Oneness of India is based upon the principle of unity in diversity; hence the federal form of government envisaged by the constitution is in accordance with the inmost nature of our country and its historical development (13) Federalism has, however, to go farther and there should be greater devolution of powers on the States; and the States themselves, particularly the large ones, should be further divided so that in size and in economic viability they are more or less equal. Metropolitan cities should be formed into Union States, and grassroot democracy (without party system) should be developed in villages and towns. (14) Positive steps should be taken to preserve and strengthen the unity and integrity of the country. In this respect, it may be underlined that the fundamental unity of our country is spiritual and cultural unity; and unless this unity is strengthened, outer means of dealing with fundamentalism, communalism, regionalism, linguism will not meet with adequate success. (15) Three main tasks should be undertaken to strengthen the spiritual and cultural unity of the country. First, there should be recovery of the old spiritual knowledge in all its amplitude, since it is that knowledge which laid down the foundations of synthesis, harmony and unity. For this purpose, Sanskrit should be resurrected, and along with the ancient and classical knowledge that it contains, it should be encouraged and widely diffused in the country. Secondly, the ancient spiritual knowledge should be allowed to flow into new forms of modem disciplines of knowledge under the supervision of an apex body which can be set up under a fresh provision of the constitution. Finally, the goal of the Indian Republic should be explicitly declared to consist of the establishment of a spiritualised society where the individual and the society harmonise with each other in the highest fulfilment of liberty, equality and fraternity.

Constitution of India The Case for Reform RAMASHRAYRAY THE Constitution has failed to realise the collective ends of the community. The resultant frustration raises demands for reforming it. That the adequacy and effectiveness of the constitution were doubtful and that it needed to be changed is proved by the fact that it has already been amended 69 times in 42 years. Still, it suffers from certain internal contradictions and structural deficiencies which call for correction. The case for reforming the constitution is unassailable. But, dissatisfaction with the constitution and need for reform may stem from several sources, not only with what the constitution entails but also with how it works. Changing only the externality of our political life cannot change the corruption that has set in our individual and public life. The real question is: should we reform the constitution or also ourselves?

any concerned people have come to believe that there is something fundamentally wrong with our constitution, that it has not proved a steady and fit instrument for the Indian political community to realise its collective ends. It is this sense of frustration and dissatisfaction that prompts them to advocate reforming (re-forming?) the constitution. It must, however, be pointed out that this dissatisfaction is by no means a new phenomenon. It started surfacing not long after the constitution was adopted and began operating as a "code of conduct" for the Indian government after independence. It is, therefore, not

198 Reforming the Constitution surprising that the constitution has been amended for no less than sixty-nine times in just a matter of four decades. It does not mean that a Constitution is sacrosanct and it should never be touched by imperfect mortal hands once it has been installed with all the current rituals and fanfare appropriate for the occasion of its installation in the sanctum sanctorum of the nation's political mansion. The fact should not be lost sight of that it is the mortals themselves, not any divine decree, revelation, or inspiration, who craft and install a constitution as a beacon in a dark and stormy sea of modem politics and expect that it would guide them to the safety of a calm and secure shore. But to be able to guide is to be accepted as binding and disciplining. It is in this context that Thomas Paine observed that a constitution is "to liberty, what a grmmar is to language."1 A constitution is, therefore, more than, an instrument; it is also a set of principles, an assemblage of laws, institutions and customs, derived from certain fixed principles of reason, directed to certain fixed objects of public good, that compose the general system, according to which the community hath agreed to be governed.1

A constitution is thus symptomatic of the agreement among individuals to create a rule of law embodied in the constitutional document. But does this mean that the agreement is binding only for the government that the constitution creates? As Paine has argued: A Constitution is not the act of a government but of a people constituting a government, and a government without a constitution is power without right.. . .

A constitution is a thing antecedent to a government; and a government is only the creature of a constitution.3 It is true, that a government is bom when a constitution is adopted which delimits its authority and power. But to say that 1 Quoted in Charles H. Mcllwain Constitutionalism: Ancient and Modern (Ithaca, N.Y. Cornel University Press, 1954), Great Seal Books paper back, p. 2. 2 Lord Bolingbrook, A Dissertation Upon Parties (1733-1734), quoted in Ibid, p. 3. 3 Ibid, p. 2

Reforming the Constitution 199 the constitution which brings the government into being is binding only for the government is not true. First it is not at all correct to say that it is the people who enter into an agreement or contract because it is the people not in any collective sense but only in the aggregative sense that make an agreement. The agreement among free and self-defining but separate individuals creates, in fact, two entities, one called the civil society and the other, the political order. Traversing these two entities is the symbol of the people which actualizes when individuals shed their private concerns and emerge as a people caring for the collective good. The constitution, as a body of certain principles, creates de novo a politi­ cal community for action in history.4 And the constitution in as much binding for the government as it is for individuals conceptually transformed into a people. If this is so, sixty-nine amendments in forty-two years tell a different story—a story whose moral is subject to different interpretations. However, what is abundantly clear is the fact that a deep-seated scepticism about the adequacy and effective­ ness of the constitution characterizes an influential section of the Indian people. And yet it is not clear whether it is the world­ view reflected in the constitution, or certain internal contradictions introduced because of its makers' hopes and fears engendered by the country's partition, or the unsuitability of the constitution in realizing the general but hard to pin-point dream of the constitution makers, or the inability of the constitution to keep pace with changing times and circumstances. It is quite possible that several of these factors combine to generate dissatisfaction with the Constitution. This is no place to enter into a detailed examination of the factors combining to create this dissatisfaction. However, it has to be recognized that the constitution seems to have failed fo solve various problems plaguing the public order. It should, it is suggested, be suitably modified, if not completely overhauled. In short, then, there may be several sources of dissatisfaction not only with what the constitution entails but also with how it works. And all these different sources intermingle in such a confusing way that it often becomes difficult to separate one 4Eric Voegelin, The New Science of Politics (Chicago: The University of Chicago, 1987), p. 37.

200 Reforming the Constitution factor from another in order to understand and appreciate the rationale behind the call for reforming the constitution. Not that the constitution, as it stands today, is perfect and the pleas to amend it should be ignored. As a matter of fact, as Henry Hart has pointed out, three profound contradictions underlie the Indian Constitution. They are: imperial rule versus popular consent, property rights versus socialist transformation and fundamental law versus adaptation to change. The first contradiction refers to those provisions in the constitution under which a constitutional dictatorship can be installed by a leader endowed with necessary cunning and skill to successfully demonstrate the identity between his/her own political survival and ascendance with the safety, integrity, and vitality of the country. The proclamation of national emergency in 1975 constitutes an example par excellence of this. The other facet of this is the imposition of the President's rule on the States. It is true that the Forty-Fourth amendment substantially changed the situation insofar as the proclamation of national emergency is concerned. However, the situation remains unchanged in regard to the imposition of President's rule in the states. The second contradiction has a reference to the incompa­ tibility between the nèed to recognize property rights and the desirability of removing socio-economic inequities through technologically induced economic growth, a growth that is inspired and controlled by the goal of the socialist transformation of society. As hindsight unequivocally underlines, the preference for socialistic transformation of society was quite marked. It is hard to say whether this preference was the result of political expediency or the product of a well-considered ideological position. However, while this preference was increasingly toned down in the light of the obduracy of the harsh reality, the rhetorical articulation of this ideal reached its apogee when the Forty-second amendment of the constitution declared India to be a "sovereign socialist secular democratic republic." It is interesting to note that with the constitutional acclamation of socialist republic, we lost interest in socialism. And now India has been officially declared to be a market-friendly country. But as long as 5 Henry Hart 'The Indian Constitution: Political Development and Decay," Asian Survey, April, 1980, pp. 424-51.

Reforming the Constitution 201 the preference for socialism in its various manifestations determined socio-economic policy frames, private property as a dynamic element of economic growth, had to cope with severe attacks and condemnation. The last contradiction has to do with the incompatibility between the need to preserve what is supposed to be the inner core constituting the basic features of the constitution and the desirability of changing the constitution in accordance with the requirements of changing times. This, in effect, underlines the difficulty of successfully combining continuity with change in a society self-consciously set on a course of radical reorientation of its institutional arrangement for speeding up the process of modernization. Modernization is essentially a continual process of breaking through the habitual contexts of thought and action. However, it is likely to turn out to be destructive if it goes on

breaking all constraints that such contexts imply and, as a consequence, may ruin the foundations of collective life. Change is ubiquitous and necessary. This is more so in a country which has embarked upon a course of throwing overboard all encumbrances that are supposed to have impeded India's march towards the Mecca of modemi-zation. While this march must, it is felt, not be further impeded or delayed, it is also realized that certain normative and institutional constraints are necessary in order to prevent the drive towards modernization from degenerating into chaos. Thus circumscribing the process of change becomes necessary. However, to be extent that it becomes effective, it also proves constrictive. Suffice it here to say that it is this tension between the demand for change and the need for continuity that engenders the contradiction of what Hart calls "fundamental law versus adaptation to change." As these contradictions demonstrate, the Indian Constitution suffers from certain structural deficiencies which call for corrections. But will these corrections, it can be asked, enable the constitution to become more effective than what it is considered by many to have been? Needless to say that the desirability of reforming the constitution is unassailable. However, the attitude one takes towards the constitution has an important bearing on the question of reforming it. Again Hart points to two distinct conceptions of constitution that are hard to reconcile with each other. There is, first, the English perspective on constitution that

202 Reforming the Constitution equates it with a "nation's actual institutions and their development." These institutions have been moulded and nurtured by the historical process of the growth of political culture. In this perspective, a particular institutional structure symbolizes the actualization of a central tendency growing in the womb of the society's culture. On this view, the institutional structure is the expression of the society's cultural life and, therefore, the two are inseparable and mutually supportive. In contrast, the French perspective considers the constitution a set of fundamental principles—something like a pudding made from a recipe which embodies the guide-lines for the working of national political institutions. As such, a constitution represents in the French perspective a document, a code that must influence, shape and regulate national political life. In other words, a constitution is not so much a product of a particular political culture as it is of reason that is universally relevant. When enacted into a set of authoritative principles at a particular historical moment, constitutions become the instrument of shaping the political cultural life of a country. This implies that constitutional provisions are not only distinct and separate from the cultural life of a country but also that the constitution can become a fit instrument of shaping the nation's political cultural life. A such, it need not be embedded in or spring from the cultural life of the country. Instead, as a product of universally valid reason, the constitution stands above the petty concerns of every-dayness and shapes and regulates it in order to lend the public order with dignity and decorum. There is thus a difference between the two perspectives on constitution. While the English perspective considers it to be rooted in the country's political culture, the French orientation views it as the arbiter of political culture. That is why the English constitution is largely unwritten while constitutions inspired by the French perspective are written. However, what is interesting in this regard is the fact that underlying this difference is an unarticulated preference for what is written to become unwritten. No matter what view one takes of the consritution, implicit in it is a wish or a hope that the assumptions underlying it and the set of principles it enshrines as worthy of adoption and emulation should not remain in the book. They should leave the shelter of the book and descend down on the earth and become a part of

Reforming the Constitution 203 it. Unless they are willingly accepted and acted upon in real life their significance lies only in their aesthetic character. Thus constitutional provisions are not decorative; they are constitutive; they are meant to influence individual and collective behaviour. This they can do only by becoming an integral part of the individual's consciousness and behaviour. The orderly conduct of public affairs depends on the extent to which the written prescriptions become unwritten code of conduct which is actively followed in life. Thus what begins only as external and explicit is hoped to ultimately become internal and implicit. If this is correct, then, a constitution as a product of contract among free and separate individuals must gradually give way to a constitution that transforms these individuals into a people bearing the distinctive imprint of their collective existence. In short, then, the objective for which a constitution is enacted is to transform the individual into a citizen, a citizen who, as a microcosm of the political community, rises above the petty concerns of his life and actively participates in the pursuit of the good of the whole community. What is of importance in this connection is the fact that a constitution is the product of contract among free and separated individuals. That is, this contract points to the non-existence of a political community before the enactment of the constitution. The constitution celebrates the articulation of a political community for action in history and prescribes the ways and means of this action. Even though the initial enactment must be based on the consent of free and separated individuals, the constitution has essentially a collective import. But collective import cannot support proper institutional development if it does not lead to the transformation of individuals into a people. If this transformation fails to occur or gets impeded for one or the other reason, public life becomes afflicted by several malaise which, it is commonly held, can be cured only by reforming the constitution. But will it be justifiable to blame the constitution for all the ills that may affect national political life? There is, no doubt, some justification, as was argued earlier, in blaming the constitution for some of the ills of the adopted political system. But certainly not all the blame can be justifiably laid at the door­ step of the constitution. One must also take into account those factors that impede the transformation referred to earlier, a transformation that is necessary for making the public life

204 Reforming the Constitution relatively trouble-free. But what are these factors? It was pointed out earlier that the constitution is the product of the conscious articulation of a political community for action in history. This action is neither random nor haphazard; it has to do with certain goals that the political community sets for itself to realize. These goals relate to a distinctive conception of good life incorporating notions of individual well-being and collective good. Three distinctive features thus characterize a political community: the purpose of collective existence, collective action for realizing this purpose, and a code of fundamental law for channelling and keeping the course of action within the bounds of legitimacy and propriety. Needless to say that these three aspects are interrelated and mutually reinforcing. Distortion in any of these areas is certain to bring about distortions in other areas of the life of the political community also. As such, it is very difficult to blame the constitution for all the ills of the political community. Needless also to say that there is a veiy intimate relationship between modem politics and the mode of the political articulation of community. Modem politics recognizes only interest because, as Hans Kelsen notes, cognitively speaking, it is only the notion of interest that can be conceptualized. But to accept interest as the basis of politics is to accept the Hobbesian world-view which does not recognize any summum bonum, any higher purpose in life; it recognizes only the satisfaction of one desire after another. What then becomes important is the cultivation and mobilization of power in the Weberian sense in order to get what one wants and retain what one has. But since the satisfaction of one desire after another is dissociated from a higher life purpose, needs involved in the process of production and reproduction become endless; that is, they become their own ends and they proliferate endlessly. It is this central fact of human existence that is at the root of modem politics. The need to use power to ensure undisputed access to vital societal resources makes collective life extremely vulnerable to self-aggrandizing power drives and, consequently, to distortions and disruptions. The need for public order is rooted in modem times in the desirability of curbing the excesses of the pursuit of private passions. The necessary public order has to be artificially created; free and self-defining subjects have to voluntarily consent to its creation and to willingly submit to its commands with

Reforming the Constitution 205 certain well defined exceptions. Since self-defining subjects are free and equal, the public order can be created only on the basis of a contract between these subjects. It is this contract that is celebrated in the phrase "we the people of. . ." that brings a political community in being and stipulates the means and methods of action for realizing collective purposes. What is interesting about this contract is that every time such a contract is fashioned, a new political community is bom which derives its distinctive characteristics from the document called the constitution. The constitution founds a political community, to be sure. However, when it does so, it enunciates the most fundamental principles of the community as if neither the society nor the individuals constituting it have a history. Or, if it does recognize history, it wants to forget it, if it cannot completely erase it. The Indian constitution offers a good example of this insofar as it took note of the destructive political forces that became manifest before Independence and led to the partition of the country. It also took note of divisive and, therefore, destructive forces engendered by socio-economic diversity, backwardness and inequality and proposed to combat it by prescribing certain provisions. However, despite what the constitution assumes, the individual is not thrown into the world. He is preformed; he has, history, an autobiography and a definite experience. He inherits a family, a cult, and a community which precedes the birth of the political community. Thus confronting the political contract in the biography of the individual is his birth through which he inherits certain social status, orientation, expectations, and behaviour patterns. This is an inheritance which Sheldon Wolin calls "the birth right,", and which he claims to provide a more powerful way of understanding modem political condition.8 However, Wolin is not correct when he argues that the birthright as a distinctive mark of the individual is his politicalness by which he means the capacity for developing into a being who knows and values what it means to participate in and be responsible for the care and improvement of common and collective life. Even in a highly 8 Sheldon Wolin "Contract and Birthright", Political Theory, 14 2 (May) 1986), pp. 179-83.

206 Reforming the Constitution homogeneous society, the commonality grounded in the birthright of individuals proves fragile against the onslaught of selfregarding action. In a socio-culturally diverse society, the brithright proves to be divisive and encourages particularistic tendencies. Moreover, the inheritance grounded in the birghtright is usually immersed in materiality and, as such, fails to provide an overarching identity to individuals belonging to different socio­ cultural formations competing for similar material benefits. Birthright, therefore, proves inadequate in stimulating what Wolin calls politicalness. He is, however, correct when he suggests that contract theory is less a solution to the political problems of our times than an exacerbation of it. Be that as it may. The Indian constitution, ignoring the historicity of social existence and individual experience, harboured the unrealizable hope that politics of interest would overcome the political problems created by the burden of history. Instead, what has actually happened is that the politics of interest has reduced the society into a mechanical aggregate of separate and self-defining subjects who combine to break, and combine again to reap political advantages. In this game power has assumed a central role. Constitutional, institutional, and procedural arrangements, supposed to educate the individuals in civic virtues, only provide so many arenas where conflicts are relentlessly waged. Decorum, fellow-feeling and magnanimity evaporate. In the politics of reciprocal resistance, conflicts of interests divide rather than unite people. Thus the responsibility of tending, caring for and improving common collective life goes by default. The hope of fashioning a new social order has now been shattered and the political community is reeling under the fury of communal feelings and the frenzy of feuding interests. Political expediency uproots civility and chicanery spreads confusion. The realm of politics seems to be lost in its own fog. It generates only dissensions and distortions. It has become an arena where everything is expressed, but nothing is felt; all emotions are vicarious emotions, and all thoughts are cliches. Damages done to the political community are vociferously aired, but never repaired. This explains why Mahatma Gandhi put so much emphasis on swaraj (self-control) as the true foundation of sxvaraj (self-rule). But ignoring his message, we go on believing that if we continued

Reforming the Constitution 207 to keep fit our external raiment our internal purity will be guaranteed. But this only accentuates frustration because to change what is only external does leave untouched the internal. The change through law of what is only the externality of our political life cannot check the corruption that has set in our individual and public life. Thus the real question is: should we reform the constitution or also ourselves?

20 A Constitution under Strain B.S. RAGHAVAN OUR Constitution has been amended many times, in an ad hoc manner, as and when the need became pronounced. Time has come to restructure those parts of the constitution which concern people's rights and liberties and the purity and probity of the services in such a way as to minimise exploitation by crass politicians. Vital essence of parliamentaiy system can be retained even while adopting the principle of an independent and irremovable executive For this, President has to be assigned a more substantial role for example in appointments in institutions vital for democratic polity, Inter-State Council has to be activised and loose ends tightened and incongruities noticed in the working of the constitution removed.

since the infamous Emergency of 1975, India's constitution E ver has been under strain. The superimposition of an Emergency to counteract internal disturbance, over an already continuing one on account of external aggression, exposed the constitution, especially the provisions regarding Fundamental Rights and judicial remedies in the form of writs to a kind of double jeopardy, culminating in the remorseless dilution of all those articles which were meant to act as checks on the executive and preserve the balance among the branches of the government and between the rights of citizens and those of the state. The constitutional dice was so heavily loaded against the people in exercise of whose sovereignty and supremacy the constitution itself ostensibly came to be framed that the Prime

Reforming the Constitution 209 Ministerial authority was assumed to be almost invincible and infallible, and the Supreme Court itself solemnly declared itself powerless to safeguard the liberty and even the life of the citizen. It was luckily left to the Janata Government in 1976 to restore and tighten the earlier checks and balances, and reinforce the rights to life and liberty by undertaking another overhaul of the constitution. Insertion of the Tenth Schedule to contain the ravages on the parliamentary system of government by political defections was also nothing but an instance of dyke-building when it was found that the constitution had sprung a debilitating leak. Besides these major amendments to get round substantive problems of a far-reaching nature, throughout the 42 years the constitution has been in force on close to 70 occasions—that is, once in seven months—Parliament at the prompting of the government, had resorted to ad hoc amendments either to negate or pre-empt judicial intervention or to make good some perceived deficiency or omission. For all that glaring gaps hitherto unnoticed mock at hitherto unremedied travesties and transgressions. It was only after judges of a High Court began freely trading corruption charges that it was found that there was no constitutional provision to impeach or otherwise formally proceed against a High Court judge for unbecoming conduct. The defiance of canons of decency and propriety by elected representatives by performing veritable devil's dances within legislative assemblies and the malfeasance and the utter contempt of the people, manifest in some States having egregious "airbus" cabinets foisted on them, wilful and wanton attempts to erode the sanctity and credibility of institutions—in short the brazen flaunting of the pernicious belief that "patriotism is the coquetry of political prostitution, every patriot has his price, it is easier to buy than to breed and the state is a prey to statesmen—the constitution has been shown to be defenceless against these onslaughts on its spirit. And the dizzying twists and turns the country's politics has taken in the recent months have almost subordinated the constitution to the interplay of egos and trampling upon traditions on the part precisely of those—political parties and leaders and elected representatives—to whom the people had entrusted under the constitution the task of moulding the destiny of the nation

210 Reforming the Constitution and upholding its high moral and ethical values as part of its enviable heritage.

For this, the freedom heroes, the intellectual giants and the legal luminaries who shaped the constitution in the Constitutent Assembly are not to be blamed. They were, as one man, imbued with lofty vision and high idealism which exquisitely blended with their practical sense and worldly wisdom They were, after all, in their time, men of action too, of a calibre and stature that commanded universal respect and admiration. It is not as if they did not try to anticipate and provide for contingencies and situations that, in their estimation the country was likely to face. And there is the rub. Theirs was a world of Gandhian principles and precepts made luminescent with their sufferings and sacrifices during the struggle for independence. In designing a constitutional framework, they only made it reflect the defect of their virtue: they all too readily presumed that the norms and tenets to which they were accustomed would continue for as long as they could foresee, and that those working the constitution would also be in their image. It is incredible in the afterlight that Dr. Ambedkar could have convinced himself and the Constitutent Assembly that the provisions on the Emergency and President's Rule (to dte only one instance) "will never be called into operation and that they would remain a dead letter." Even if they had made more allowances than they did for human frailties, they could not have reckoned with the weight of the growing complexities inherent in the democratic governance of a land of mind-boggling diversities entering an era when science and technology would scale unimagned heights and population and related pressures and problems would multiply manifold. Apart from that, if there is any lesson to be leamt from the history of evolution of world's constitutions, it is that the best of them have failed the test of being fool-proof and knave-proof. It was under the Weimar Constitution, hailed as the best that human intellect and ingenuity could produce, that Adolf Hitler came to power and having sucked it dry, threw it into the dustbin. The full range of mischief of the chapter on emergency provisions of the Indian Constitution was not manifest until the imposition of internal Emergency by Indira Gandhi and until the blatant misuse

Reforming the Constitution 211 on many occasions of the Central Ministry's power to bring a State under President's Rule in collusion with the likes of a Ram Lai or a General Krishna Rao became a scandal. The framers of India's Constitution could not also have imagined that the anchorage they had provided for the nation's stability and harmonious Centre-State relations such as the InterState Council would simply be inoperative for decades or that there would be flagrant abuse of the power to transfer judges so as to penalise them for unfavourable judgements or that the Election Commission, the fount of all democratic processes will be denied its independent status or that reservation for certain castes and classes envisaged for sound and valid reasons for ten years at the time of framing the constitution would become indefinite and self-perpetuating. However prescient the body of eminent men drawing up the constitution, it is impossible for them to visualise all the multitudinous contingencies and situations that are likely to arise many years into the future. The most they can do is to clothe their intentions in flexible language, leaving scope for exercise in good faith and in consonance with the purport and spirit of the provisions relating to a given contingency of initiative and discretion (in the case of the executive and legislatures) and interpretation and intervention (in case of the judiciary). And this was exactly what India's founding fathers did. It is not merely that questions thrown up by latterday manipulative or unprincipled politics find no or inadequate answers in the constitution. In the admirable keenness shown by the members of the Constituent Assembly to serve as a role model to other newly emerging nations by launching a democratic system of government with adult franchise and a bill of rights incorporating the best of the features to be found in other constitutions—and all this within the shortest possible time—the constitution makers could not subject the wording to strict scrutiny at many places, with the result that some of the articles as finally adopted still harbour latent and patent ambiguities of language and intention. The courts have done their best to tidy them up but in that very process have sometimes given conflicting interpretations and sometimes confined themselves to the strict letter and not wrung out the full essence in the light of the tendencies and trends on the political, social and economic planes.

212 Reforming the Constitution The fact that courts can decide only on issues actually brought before them in individual cases also imposed its own limitation on a comprehensive review conforming to the twin criteria of consistency of approach and clarity of purpose. There is another salient as well. The increasing murkiness of politics combined with the corrosion of public life have belied the premise that the levers of executive power will be most of the time in the hands of persons of unquestioned breadth of vision and unimpeachable background. Parties and individuals with a proneness to hobnob with antisocial and antinational elements and pander to criminal mafias, and to pervert services and institutions, including the judiciary for their nefarious purposes have begun to rule the roost in many States. People have not been wanting in their determination to throw them out whenever spotted, but they are very often helpless, faced with a choice between Tweedledums and Tweedledees. These considerations make it necessary to restructure those parts of the constitution having to do with people's rights and liberties and also the purity and probity of services and institutions, in such a way as to minimise exploitation by crass politicians crowding the Indian scene and maximise the scope for the Election Commission, the Public Service Commissions, the judiciary and the presidency itself to function as the ultimate arbiters of standards of uprightness and rectitude. This has become all the more necessary for another compelling reason too. In a true democracy, if every thing else failed, at least public opinion ventilated through mass media and gatherings of citizens could be assumed to be a weighty factor in keeping the politicians, elected representatives and Ministers on the straight and narrow. With all the high-flown talk of responsiveness and accessibility, the harsh reality is that politicians in temporary positions of power and influence do not seem to care for good advice or the feelings of the people they are supposed to serve. How else can one explain the sudden reversal of the official line in regard to the Bofors case in the open court in utter defiance of outrage felt by almost every section of the opinion in the country? Or indulging in political pettifoggery when the country is beleaguered by acute crises in every direction? Or, again and again abusing and misusing power with barefaced effrontery impervious to criticism or obloquy? Reminding one of

Reforming the Constitution 213 the nonchalant dismissal by Frederick the Great of the relevance of the people's voice by his remark. "Let them say what they want, I shall do what I like". Indeed, the intolerably obnoxious aspects of the country's politics had at one time so enraged the staid and sedate Mr H.M. Seerval as to provoke him into quoting the famous condemnation by Lord Macaulay of certain types of politicians who were a blend of "whatsoever things are false, whatsoever things are dishonest, whatsoever things are unjust, whatsoever things are impure, whatsoever things are hateful, whatsoever things are of evil report, if there be any vice and if there be any infamy". There is nothing bad that happens in the country said Mr Russi Modi recently, "which cannot be laid at the doors of politicians." Not unnaturally, this degree of disgust sometimes drives knowledgeable people to think of the Presidential form of government as a cure for the cumulatively crippling ills of the Indian brand of democracy. Here again, Mr Seerval's realistic demurer should clinch the issue. If the present condition of parliamentary democracy in India is due to a fall in the standards of character and morality, the same causes would operate even more powerfully in the presidential system. The forces which have stultified parliamentary democracy in India would produce an even greater paralysis of government under the presidential system. An independent, irremovable executive can function only so long as the other departments of the state—the legislature and the judiciary—cooperate in running the affairs of the State . . . it would be naive to believe that such cooperation would be forthcoming and that the legislature would not paralyse the President and force him out of office by refusing to pass necessary legislation and by refusing to provide funds for carrying on the affairs of the State. .." Is it possible to retain the vital essence of the parliamentary system as embodied in the constitution and at the same time, raise the guards against political whims and vagaries by making minimum changes in certain constitutional provisions? The answer is definitely yes, but this would call for a troika of reforms. First: lot more pith and substance need to be put into the presidency so that the President does not remain tied hand and foot, reduced to the position of a mute bystander when unconscionable acts are perpetrated in his name and right under

214 Reforming the Constitution his nose. If only the constitution somehow makes explicit the universally accepted prerogatives of a Constitutional Head of State to advise, to encourage and to warn, his can be the hand that steadies the government when it stumbles. By making his independent judgement the touchstone of the government's action in certain very sparingly selected critical areas and situations, people will be better able to identify themselves with any measures the government may be constrained to put through which would be otherwise suspect or unpalatable. For instance, he can be involved substantively in appointments to institutions with the proper functioning of which the survival of democracy can be said to be intertwined. Second: The Inter-State Council can be entrusted with duties that will make it truly into a body for investigating and making recommendations on any subject of common interest to all the States requiring the cooperation and consent in the federal scheme envisaged by the constitution for the success of any policy or action relating to it. And finally loose ends that have come to notice in the working of the constitution can be tied up and the incongruities in certain provisions addressed. Since the reasoning behind the proposed lines of improve­ ment is self-explanatory, without taking space to elaborate them, they are being given separately at the end. If democracy in India is not to be hijacked or sidetracked, it is imperative that the hope and faith of the people in their capacity to take matters in hand and apply the correctives in time and to good effect should be kindled and sustained. Lord Bryce in his monumental work on "Modem Democracies" relates the story of an Eastern King with an uncertain temper who desired his astrologer to discover from the stars when his death would come. The astrologer, having cast the horoscope, replied that he could not find the date, but had ascertained only this much that the King's death would follow immediately on his own. So may it be said that Democracy would never perish till after hope has expired. Proposed reforms I The Presidency Where there is a difference between the Chief Justice and the

Reforming the Constitution 215 government in regard to any appointment to the Supreme Court or the High Court, the President can decide in his discretion. Final say in the appointment to the posts of Comptroller and Auditor General, Chief Election Commissioner and other Commissioners, and the Chairmen and members of the Public Service Commissions may be with the President in consultation with the government He should be empowered to act in his discretion in respect of advice from a Prime Minister who has lost his majority support or confidence vote in the Lok Sabha. II The Inter-State Council To facilitate collective decision-making on sensitive matters affecting Centre-State relations the Inter-State Council may be entrusted with the following, among other duties: 1. To safeguard Press freedom, all orders relating to allocation of newsprint, installation of machinery, stoppage of advertisements, withholding of official facilities or any other action that will have an adverse effect should have the Council's prior concurrence; 2. Approval to amendments to the constitution; 3. Approval to the terms of reference to the Finance Commission; 4. Concurrence to Inter-State transfer of Judges; 5. Approval to apportionment of public borrowings between the Centre and the States; 6. Location of major projects costing Rs. 100 crores or more each; 7. Determining the nature and scope of protection to, or intervention in, States in times of internal disturbance or external aggression. III Other Rotation of the Prime Minister among designated zones (Dr. Ashok Mitra made the suggestion). Council of Ministers at the time of swearing in to have at least five other Ministers besides the Prime Minister. Imposition of ceiling on the size of the Cabinet. Provision for removal of High Court Judges. Speaker to resign from party and avoid party politics.

216 Reforming the Constitution Constitutional provisions specifying the tenure and conditions of service of the Chief Election Commissioner and other Commissioners. Advice tendered by the Inter-State Council and the Public Service Commissions to be mandatory except for over-riding reasons of national security or stability. Constitutional status to the Planning Commission. Only laws dealing with conditions in an emergency to be outside judicial scrutiny. Procedure for inquiry into allegation of corruption of the Prime Minister and other Ministers. Ordinance to be placed before legislature for approval even if withdrawn before the expiration of six weeks. President's/Governor's assent to bills to be conveyed within a stipulated period. Judge to deliver judgement within a stipulated period (at present a delay of two to three years between completion of hearing and delivery of judgement is common). The Chief Justice may decide place of sitting according to convenience of litigants without requiring approval of the President. The Comptroller and Auditor General to submit reports simultaneously to the President and Parliament. Increasing the number of Members of Parliament and State Legislatures to reflect increase in population and bring down the number each of them represents. Ceiling on reservation of backward classes. Official status to English as per Nehru's promise.

Slightly updated version of the article published in the The Hindu.

Time for a Second Republic HARIJAISINGH TO save the nation and revive faith in democratic institutions, a new constitutional deal—through a new constitution framed by a new Constituent Assembly—is called for. Functions of the permanent organs of the government have to be redefined. There should be devolution of power down to the lowest local levels. Development planning must be decentralised. Desirability of the Presidential system and of elected Governors for fixed terms should be examined. Also, there should be provision for recall of legislators. For building a more viable federation and better administered units, India could be divided into 40-50 states.

Constitution of Indir as adopted on 26 January 1950, has T hevirtually outlived its visionary sweep, if not utility. An otherwise well-drafted document, its credibility has floundered on rocky gaps of promise and performance. The constitution today happens to be on the wrong side of 40 and has virtually been pushed into a melting pot. It does not mean that it can no longer manage the danger zones of politics and socio-economic tensions. A couple of amendments could provide it a fresh lease 6f life. However, the question here is not one of saving a constitution, but of saving the nation and making the polity functionally efficient and competitive and democratically more liberal, just and caring for the poor and the weak. What we are seeking today is not a goody-goody instrument of governance, but a dynamic, forward-looking document. As a catalyst, it should be able to set the pace for qualitative management of a turbulent

218 Reforming the Constitution polity that India today is and simultaneously ensure individual freedom from socio-economic and political exploitation and more participative democratic structures at different levels. These are not 9utlines for an Indian utopia, though new goals and dreams have to be woven around the millions of our countrymen who are either feeling lost in a microscopic elitist opulence or in a nouveau riche vulgarity or in multifaceted streams of frustrations, unrest, terrorism, insurgencies or abject poverty. If the Indian nation has to survive and not go the Soviet way, the thinking class must muster courage to think afresh, drawing appropriate lessons from the past as well as from the failures of the institutional structures and begin discussing modalities for a new viable framework which should not only apply correctives to the prevalent distortions but give the polity a new sense of purpose and direction. At stake is the rekindling of the common man's hope in democratic institutions, beyond the cmce-in-five-year voting privilege. Constitutional reforms cannot be brought about over-night. Such an exercise has to be objective and comprehensive and hence painstaking. Before coming to firm conclusions, a number of fundamental questions will have to be examined dispassionately: How effective is the present system of parliamentary democracy? Where has it gone wrong? Can a presidential form of government deliver the goods better and faster? Has the existing framework been truly participative in nature? How about Centre-State ties? How potent are the grassroot units, that is, panchayats? Do the existing linguistic divisions of States meet the changing political and economic aspirations of different segments of society? How safe are individual liberties in the existing order? Is the balance of justice tilted in favour of the manipulative privileged class? Are the objectives of state policy in time with the new national goals, global realities and popular expectations? Which constitutional organs have been grossly misused? Can the value system—constitutional dharma—be restored to its pristine glory? Do the present constitutional provisions truly reflect the people's changing expectations and priorities? Can the existing framework help to achieve the new objectives of liberalisation, economic and financial reforms? Or, does the hope lie only in adopting a new format to make the nation once again going in a big way?

Reforming the Constitution 219 No instant answers can be provided to these queries. They have to be examined in totality by experts. The distortions in the polity are, of course, not entirely due to the flaws in the present constitution. Nor are they the sole handiwork of politicians and bureaucrats. Unscrupulous politicians and insensitive bureaucrats will not undergo a change of heart and act differently by merely changing constitutional format. Their behaviour patterns will probably remain the same whether a presidential system operates or the parliamentary form of democracy continues. There is some force in this argument, though it cannot be accepted as the last word. For, it is possible to apply correctives and keep rogues and scoundrels under effective check, if not totally out of power games. Once we are clear about our goals and objectives, it should be possible to pursue them rationally and systematically. It also needs to be appreciated that things have deteriorated to such an extent that the real challenge today lies in reviving the people's faith in the system. The public confidence cannot be restored by merely tinkling with some relevant constitutional provisions. It can be revived only by offering a new constitutional deal to the people. As for the behaviour patterns of politicians and others at the helm, popular pressures and in-built safety mechanisms can help improve their functioning, responses and accountability. We are yet to fully appreciate the constitutional potency and efficiacy of people's power, not merely during election times but even in normal functioning. All that is needed is free flow of right information, and not selective information, to make citizens better informed. No democracy can survive in the absence of information funds, and hence the importance of the Right to Information. A fraud is a fraud. A violation is a violation. Anyone who indulges in a financial irregularity or violates the law of the land, howsoever well placed, should not be able to go scot free. Only by overhauling the existing order and adopting a new constitutional format and a responsive politico-administrative system can the people's faith in the country's democratic destiny be restored. Only under a new constitutional order can the problems and complexities be handled enthusiastically and with a fresh vigour and determination. It so happens that nine-tenths of the present constitution is

220 Reforming the Constitution based on the Government of India Act of 1935 which imposed a colonial order on this countiy. What is, therefore, surprising is that the "imperial-bureaucratic order", as J.D. Sethi describes the 1950 constitution, should have managed to survive so long amidst complex and contradictory situations. It has been amended as many as 69 times in over 42 years of its operation. Should we call this flexibility or inadequacy of the bulky document which is supposed to have borrowed some of the best features of every major democratic constitution? The US constitution, which is perhaps the smallest constitutional document, on the other hand, has been amended only 26 times in 200 years—once every eight years—and seems to be serving the Americans admirably well. The moot point here is: flexibility for whom and for what purpose? One way of looking at the spate of amendments is the way Congress leader Vasant Sathe sees it. He thinks that a constitution which has been amended so often shows that there is something wrong with it. It may be argued that the constitution has had to accommodate various interests and points of view and that it underwent modifications to tackle problems that cropped up from time to time. However, if we closely examine the nature of amendments carried out so far, we shall feel disappointed. Certain amendments did, of course, try to apply correctives to the polity. But most amendments were made by a desperate ruling oligarchy for its survival. The amendments during the Emergency even negated some of the basic democratic norms— a definite pointer to the constitution's vulnerability to a determined onslaught by a politically motivated group. Framing a new constitution is surely not an easy task. It will be a far more complex exercise than the founding fathers of the present constitution ever faced. They did their best in the then given circumstances. But they could not have been profound prophets for all time. So swift and sweeping have been the changes in the polity that some of the old constitutional premises and functional norms no longer hold good. A rapid erosion of the Westminster system of parlia-mentary democracy, the evergrowing stress and strain on the democratic structure inflicted by a series of calculated secessionist onsluaughts in Punjab, Assam and Kashmir and the widening tentacles of social violence, economic offences and corruption underline grave

Reforming the Constitution 221 limitations of the existing order. Rowdy scenes, physical assaults and grossly indecent behaviour in legislative chambers have eroded the confidence of the educated in the prevailing scheme of things. How does one build bridges of confidence in the absence of seriousness in conducting parliamentary business? It is no secret that even most important pieces of legislation are enacted without serious debate and with only a bare minimum number of MPs in the House. In 1989, the Lok Sabha passed the demands of 27 ministries and four departments, totalling a staggering amount of Rs. 54,000 crore, without scrutiny! This practically happens every year. The internal turmoil and the frequent breakdown of the constitutional machinery in the States have disturbed the political and constitutional equilibrium of the federal polity. Centre-state ties are both friction and faction ridden, despite the Sarkaria Commission's suggestions. In any case, who cares for the correctives? Such is the insensitivity of the politico-administrative set-up. In fact, the federal polity is being pulled in different directions, which makes the constitution, despite its size and detailed provisions, look awfully inadequate. Even linguistic divisions no longer seem to satisfy the people. They have started exploring possible alternatives, beyond language barriers. They seek new avenues for a better say in decision-making mechanisms. Liberalisation has unleashed new forces in the polity which demand a new deal in economic relationships. This need not provoke apprehensions on the nation's future. India is not the Soviet Union. Nor will it go the Soviet way, howsoever bloody might be the acts of terrorism and the support extended to the desperadoes from across the borders. To say this is not to poohpooh the threat to the polity. With the degeneration of the party system and the perversion of norms and values, the Indian nation is certainly under tremendous strain. The established parliamentary institutions are in shambles. The rise of extremism, violence, casteist politicking and the communalisation and criminalisation of politics, fiscal indiscipline and widespread corruption have played havoc with rational thinking. Not that India does not have sufficient resilience. It has enough resilience and an infinite capacity to absorb shocks. The very strength of the Indian civilisation, for that matter, lies in its ability

222 Reforming the Constitution to withstand the onslaughts inflicted on the body politic by known and unknown villains. The activities of terrorists and separatists apart, there are genuine political movements that are seeking new deals within the constitutional framework. Ironically, the rise of extremism is mainly because of the failure of the system to readjust its responses to mitigate the grievances of the disgruntled groups. This failure, in a way, is mainly political, and not constitutional. Even Justice B Lentin, former Bombay High Court Judge, thinks so. He says: "The constitution has not failed the people, nor have the people of India failed the constitution. It is only the unscrupulous politicians who have failed both". What the learned judge overlooks is that the mushroom growth of unscrupulous politicians is in itself a result of the faulty system The electoral system is awfully defective, expensive and hence corruption prone. So are the sensitive provisions having a bearing on Centre-State ties and the overall stability of the polity. Take, for example, the constitutional provisions about the Governor, combined with the Emergency provisions under Article 356. They have proved to be an internal machine to subvert the spirit of Centre-State relations in the Union. Floor crossing too cuts at the very roots of democracy and erodes the people's faith in their elected representatives and the government. Ivor Jennings explained this phenomenon of the parliamentary system in the following words: "Frequent resignations involve frequent party splits and party splits lead to short and weak governments, which, in turn, lead to distrust of the democratic system." How do we overcome these obvious handicaps? Mere constitutional amendments cannot take us far. Nor can patchwork solutions give us the desired results. We have to look at the politico-constitutional scenario afresh and redefine the functions of the permanent organs of government since the "conventions on which we have relied for good government under the constitution have all broken." The bitter truth is that some of the vital constitutional provisions have failed the nation, resulting in functional distortions, corruption, hypocrisy and callous attitudes. The present constitution promised the people liberty with "social, economic and political" justice. It even offered to usher in equality of status, opportunity and fraternity, thereby "assuring

Reforming the Constitution 223 the dignity of the individual." But, in practice, the dream concepts of justice, liberty, equality and fraternity are available mainly to the urban educated elite and not to the vast majority of the people. The directive principles of State Policy contain several heartening goals and ideas, such as, village panchayats, the right to work, to education and to public assistance, participation of workers in management, protection of the weaker sections of society and raising the standard of living and nutrition. But, in reality, we do not see much hope for the underprivileged and ordinary people. Could these hypocritical traits in words and deeds be due to the fact that even the high-sounding preamble to the constitution and the Fundamental Rights have hardly emanated from the people, even though they have "adopted, enacted and given unto ourselves this constitution." We apparently owe these well-meaning liberal thoughts to our liberal leaders of the freedom movement who were, understandably, inspired by lofty ideas without realising the grave limitations of the constitutional order they proposed and the mind of politicians who later came to exploit the system and flourished as did our colonial masters. Of course, the quality of politicians cannot be improved by merely changing the constitution. Politicians will be politicians. All the same, any constitutional format which does not carry enough safety mechanisms for the people's sensitivities and makes it easier for unscrupulous powerbrokers and Aya Rams and Gaya Rams to operate has to be viewed with suspicion and finally discarded. Whether we acknowledge it or not, the fact remains that India has increasingly become a lawless country. There is a total state of drift which can be checked only by discarding the system that has failed us and by simultaneously adopting a new radical framework that should not only ensure the devolution of power from the Centre to the States but also from the States to its local bodies, such as, municipal corporations, town area committees, district boards, village panchayats, etc. The nation has to go through a phase of rejuvenation and reconstruction. We ought to move away from the sterility of the old concepts that are fast becoming irrelevant. Politics, after all, need not be an arena for politicians to promote their self-interest, disguised as principles. When the very basics of our parliamentary institutions, constitutional provisions and the moral authority of

224 Reforming the Constitution the state have been reduced to the level of bargaining in the electoral quid pro quo, the price we pay is alienation and non­ performance. Are we to settle for mediocrity and non­ performance? What are the new generations of Indians to aspire to? The time has come to think beyond the existing frame-work evolved by our founding fathers of the constitution. India does need a new dynamic constitution which should be expeditious and a new representative constituent assembly to debate, discuss and frame a comprehensive document with an eye on the 21st century challenges. Constitution alone does not make or mar a nation's destiny. But as a live document, it could make a difference not only setting democratic standards but in giving a definite direction to the growth of the polity. In the first place, we should explore the possibility of evolving a national consensus on the nature and the range of constitutional changes. Second, we must dispassionately examine the viability of the parliamentary system vis-a-vis the presidential form of government in the light of the nation's experience during the past 42 years. Though the existing system can be defended by various arguments, the key factors of stability, individual liberties, faster growth and equitable justice cannot be ignored. Third, we ought to look a fresh at decentralisation of powers right to the lowest level of village panchayats which alone can guarantee the growth of democracy with stability and all round development. Fourth, along with the presidential system, we should examine the desirability of having an elected governor who will hold office for a fixed term without any fear of his removal during that term, except by impeachment for acts of "moral delinquency". These propositions, though both basic and suggestive in nature, are in themselves quite radical which, if adopted, would require a total overhaul of the existing constitutional framework. While working out new provisions some of the basic thrusts and objectives will have to be reviewed afresh. Even the theory of checks and balances will have to be suitably adopted to minimise the menace of authoritarian tendencies in Indian conditions. Equally vital are reforms of the party system, and of legislatures to improve the quality of democracy as well as that

Reforming the Constitution 225 of the people's representatives. The quality of MPs and MLAs can only be improved by state funding of elections and shutting the doors of legislative chambers to persons of doubtful integrity and those with criminal records. It is also imperative to fix the minimum educational qualification for those contesting elections, even for local bodes. For, the competence of governmental functioning depends upon enlightened legislators. As Aristotle put it, "As the physicians ought to be judged by their peers . . . Now does not this same principle apply to elections?. For a right election can only be made by those who have knowledge. . ." In this context, we should provide for mid-term recall of representatives of the people if either their performance is disappointing or the conduct unethical. This can help to check the legislators' wayward conduct. The most critical area in constitutional reforms is distribution of powers, especially the strengthening of panchayats and local self-government. Here I would like to go along with B.K. Nehru's broad objective as were spelt out by him in his S. Ranganathan memorial lecture delivered in New Delhi on 12 January 1992. Among the objectives, he wants to "ensure that local problems are settled and local development takes place, not in accordance with the wishes of the State legislature or even Parliament itself, but according to the wishes of the people of the locality, in so far naturally as their wishes, desires and actions do not come into conflict with the interests of the people of other localities." Says Nehru: "The system today is of power concentrated in the state assembly or parliament. The local bodies—the municipalities, the zila parishads, the village panchayats etc— exist almost at the will of the state government. They do not have enough resources to meet their obligations and what is very much worse, if they take action which the party in power at the state level does not like, the local body is suspended or superseded". Such anomalies can be corrected by looking afresh at the whole gamut of power sharing not only between the centre and the states but also between the states and local bodies. Even the Rajya Sabha has to be evolved as a more genuine council of states. We must discard those constitutional provisions that do not strengthen democracy at the grassroots. In fact, much of the social tensions and politico-economic problems the country is

226 Reforming the Constitution faced with emanate from the failure to understand grassroots realities. It also needs to be realised that any form of political feudalism has become untenable and hence unacceptable in view of the rising political consciousness among the masses and the mounting pressures for social and economic changes. Democracy cannot be strengthened by a structure superim­ posed from above. Any constitution which does not adequately provide for the growth of grassroots aspirations is bound to fail. The failure of the Indian constitution in this regard is glaring, and hence the urgency for a new dynamic constitution which should reflect the realities and promote the people's active participation at various levels of democratic operations. Gandhiji once talked about village republics as self-contained units. Not that he meant to evolve villages that work in isolation from other segments of society, but he rightly thought that without proper growth at the grassroots, development and democracy cannot flourish. This simple message ought to be taken seriously. Unfortunately, we were taken in by the grandiose Russian Revolution and superficial western concepts and tied to hold out the promise of prosperity and growth by imposing decisions from above. The country has already paid a heavy price for this misplaced zeal. We must learn not only from our own mistakes but also from the experience of other societies—the experience that has brought them stability, coherence and better avenues for the people's active participation in different organs of governance. There is a lot to learn from the working norms of the US, a highly decentralised polity, also the German electoral system of proportional representation and from certain French practices. In today's complex socio-political scenario, the country needs a more flexible and creative approach to federal functioning. This is possible if we carve out 40-50 manageable smaller states out of the present unwieldy structures and provide more powers and resources to the panchayats and other grassroot units. It is absolutely necessary to decentralise and debureaucratise the process of socio-economic engineering and development. The country also needs constitutional reforms in order to make justice more easily, more readily and more cheaply available to the common man. A wider distribution of power, a responsive local administration, all round accountability, a decentralised system

Reforming the Constitution 227 of resource mobilisation and development initiatives will not only ensure faster economic growth but also greater stability of the federal polity. With the apparent failure of the First Republic to meet the basic needs and aspirations of the people, the country must explore the possibility of an alternative system that can meet the pressing needs of the polity. A Second Republic has to be explored and forged after drawing appropriate lessons from the failures of the First Republic. In other words, we will have to texture our 21st century political, constitutional and socio-economic system very differently—in simple, uncomplicated, forward-looking, dynamic and dignified way, and develop the faith and passion for a Second Republic. It will be advisable to move into the Second Republic by evolution rather than through revolution.

22 Time for a Second Look S. SAHAY TIME has come for a second look at the constitution. The Preamble and Directive Principles no more reflect our true aspirations. If India has to survive as a nation, States have to be given greater autonomy and there has to be devolution to the grass roots. We need a strong Centre based on the strength of States. People should have a voice in the selection of candidates for legislatures. Negative vote should be permitted. Also, there should be provision for recall. Prime Minister should be named by Parliament as in Germany. The Chief Executive should have a fixed tenure. Power of patronage should be decentralised with a three-tier government at the Centre, in the States and at the district level. Planning process should start from below. Justice must be made cheaper, efficient and free from corruption. Laws must be better drafted. A body of experts should examine and formulate the problems and if the majority want a second look at the constitution, a Constituent Assembly may be considered.

I

ndividuals and institutions have been veering round the view that the time has come for a second look at our constitution, in the light of four decades of experience. The last serious study was by the Sarkaria Commission, but that was confined to CentreState relations only, even though it took into account the socio­ economic developments in the country. The report had quite a few plus points and several minus ones, especially concerning the fiscal and economic relations between the Centre and the States. In some respects it is out of date, much water having flowed down the Jamuna.

Reforming the Constitution 229 The world has been changing fast and no nation can be an island unto itself. Scientific and technological developments, power equations apart, make this impossible. If the cold war and the new power equations created by the Second World War, apart from our problem of partition, provided the backdrop for the framing of the constitution in the forties, the collapse of the Soviet Union and of Yugoslavia and the emergence of one super power, provide the background for a second look. Besides, the plain fact is that we have mismanaged our affairs, especially economic, to such an extent that, globally our position is no different from that of the traditional Indian farmer who produces grain only to find the Sahukar (creditor) carting the bulk of it away. We have fallen into the debt trap and keep borrowing on humiliating terms in order to keep our head above water. Market economy is fine but the experience of the advanced nations cannot be a model for us. We have to set our house in order at our own pace, and not at the dictates of others. There appears to be an awareness of this at the level of the Prime Minister but do our actions match our needs? The preamble to the constitution sonorously promises justice, social, economic and political, liberty of thought, expression, belief, faith and worship, equality of status and opportunity, and fraternity, assuring the dignity of the individual and the unity and integrity of the nation. It solemnly resolves to constitute India into a sovereign socialist secular democratic republic. There can be two views on whether it was at all wise to incorporate the word 'socialist' into the preamble through the 42nd Amendment. True, there is more than one shade of meaning to the word 'socialist' but surely the free market strategy we are opting for cannot be included in it. Even without the express use of the term 'socialist', the constitution contains elements of Fabian socialism in the chapter on Directive Principles. The State is directed to secure a social order in which justice, social, economic and political, shall inform all the institutions of our national life. In particular, it must eliminate inequalities in income and endeavour to eliminate inequalities in status, facilities and opportunities, not only among individuals but among groups of people as well. The State has been asked to direct its policy towards securing for all citizens, men and women, adequate means of livelihood;

230 Reforming the Constitution to ensure that the ownership and control of the material resources of community are so distributed as to subserve the common good; also to ensure that the economic system does not result in the concentration of wealth and means of production to the common detriment. Right to work and to education are suggested. And what has our performance been like? Some economists talk excitedly about the emergence of about a 100 million people as the middle class, no doubt a fertile field for the marketwallahs, but what is ignored is that about 50 per cent of our people live below the poverty line. Illiteracy is phenomenal. Health care for the vast majority is negligible. The duty is imposed on the State to raise the nutri-tional level of the people, but one finds no mention in the Directive Principles about population control. The sad fact is that the constitutional exhortations mock at us. The rich have become richer and the poor poorer. There is more divisiveness and factionalism than ever before, more stress on status, on one upmanship than at the time of Independence. The short point is that it is questionable whether the preamble and the Directive Principles any more reflect our true aspirations and whether these should not be amended in the light of experience. If these do reflect our aspirations, then our conduct must conform to them. The preamble talks about the unity and integrity of the nation. The suggestion is made in some quarters that the time has come to redefine nationhood and interpret the term "unity and integrity" accordingly. If India has to survive as one nation then it is clear that the States will have to be given more powers, more autonomy. There must be further devolution of power to the grassroots. The Sarkaria Commission read the lessons of history correctly when it said that there have been in this country brief periods of political unity and stability followed by dissension, chaos and fragmentation. The strongest kingdoms from time to time, became empires, extending their sway, more or less, to the natural boundaries of the sub-continent. But, undue centralisation often proved counter-productive and triggered a chain reaction of divisive forces. Further, the regions enjoyed considerable autonomy and this led to prosperity of what was loosely called Bharatvarsh. There were sound reasons for our constitution-makers opting for a federal set-up which tilts towards the Centre. But

Reforming the Constitution 231 the emergency provisions, the office of the Governor and the Centre's economic clout have been aggressively and most unfairly used by the Centre in the last two decades, with consequences for all to see. With the Central Government getting weaker, the party position being what it is or likely to be, is the pendulum swinging in the other direction? That would be disastrous. Considering our multifarious and almost insoluble problems we do need a strong Centre, but its strength should be based on the strength of the States. The constitution-makers had no doubt in their minds about the direction the country should take. It should be a classless society, a sovereign democratic republic in which justice, liberty, equality and fraternity would prevail. A remarkable feature of the constitution is the spirit of compromise with which it is imbued. The direction of the State is clear. The Preamble, the Fundamental Rights and the Directive Principles read together (as they ought to have been but were unfortunately not) do provide the agenda for free India. The State had to be secular and tolerant, the ownership and the control of the material resources of the country have to be so distributed as subserve the common good. There has to be universal primary education. The health of the children has to be protected and nutrition ensured. The lot of the downtrodden has to be improved. It is this Indian dream that has more or less evaporated. The Indian leaders were stampeded into accepting Independence on British terms and this shows in the constitution. They did not have the time, even though they may have had the vision, to write on a clean slate. The Government of India Act of 1935 was their Gita and they lifted bodily and extensively from it with variations here and there. This explains the emergency provisions, the preoccupation of the constitution with distribution of powers between the Centre and the States and the complete neglect of grassroots democracy even though India primarily lived in the villages. There can be two opinions on the extra-ordinary provisions in the constitution. Inclusion of the enabling provisions was caused by a concern for abundant caution for the sake of the unity and integrity of the country. But there cannot be any excuse for profilgate exercise of them. The tilt in favour of the Centre was undoubtedly imbued with the same spirit but the expectation

232 Reforming the Constitution was that we shall have a really happy federation in which the Centre and the States would supplement and complement each other. The constitution was not framed on the premise that a single party would rule the Centre and the States far less the premise that a particular dynasty would rule the country forever. Nor was it built on the premise that sycophants and hangers-on would hijack a party. It is a sobering thought that the post-Independence experience has been that Indian people cannot do without a raja or rani, be it the Nehru-Gandhi family at the Centre or the Abdullah family in Kashmir, Mr. M.G. Ramachandran or his one­ time actress Jayalalitha or N.T. Rama Rao, to an extent Jyoti Basu. Nor is this phenomenon observable in India alone. In Pakistan, in Bangladesh, in Sri Lanka the tendency is to vest particular families with political power. It is doubtful if the constitution alone can provide the answ er but the question has to be considered seriously— how to provide the democratic spirit in the institutions we create. Or if we are wholly devoid of the democratic spirit why not honestly own the fact and work out a scheme more suited to our genius? A particular weakness of the constitution is that people who send representatives to Parliament and the State Legislatures have really no voice in the selection of the candidates. Should not there be the freedom to reject one or all candidates if 50 per cent or more voters in a particular constituency find them unsuitable? Should not there be the right to recall unsatisfactory Members of Parliament or State Legislatures? Now that an overw helm ing m ajority for a party in Parliament appears to be a thing of the past, should it not be made compulsory for Parliament to name a Prime Minister rather than throw this awesome burden on the President? Or, now that the parliamentary system itself is showing strain, should we not change over to the presidential system? Should not there be a three-tier Government at the Centre, in the States and at the district level? Once the power of patronage gets decentralised, the chances are that we shall have a more democratic government. The power and reach of the Planning Commission is not only large, but according to some, unconstitutional. Planning

Reforming the Constitution 233 ought to ascend from below, within the broad framework of national development. The less said about the Judiciary the better. It is crumbling under its own weight of bulging files, dilution of standards and a lawyer community that is increasingly concerned with its own welfare than of litigants. Justice must be made cheap, efficient and free from corruption. The laws must be drafted better. The need for a change in the constitution is obvious. The question is how to go about it. How free are we to bring about wholesale changcs. Should the changes be at one go or should we build them in instalments? Had a provision, on the lines of the West German Constitution existed that the Head of Executive could be thrown out only after Parliament named a successor, a National Government would have been inevitable. There is an urgent need for such a provision, unless we choose to change over to the Presidential system. Considering the pressing problems the country is facing a fixed tenure for the Executive appears desirable. Other reforms too cannot be postponed indefinitely. It would be desirable to have a composite body of experts to formulate the problems so that the country can debate them. If it is found that the majority of people want to have a second look at the constitution the idea of a Constitutent Assembly should be considered. The Constitutent Assembly was not adequately representative of the people even though this helped men of ideas and vision to have idealistic provisions. The need is now to tailor the Constitution to the needs and genius of the people.

Condensed by the author from two of his articles published in The

Hindustan Times.

23 The Imperative of Reform VIR CHOPRA

ECONOMIC, social and political developmental problems are closely interlinked. Political institutions to succeed need social, economic and educational foundations. The problems that afflict us arise from over dependence of citizens on the government, lack of education, criminalisation of politics and corruption. And these have their source and support in the political system. Under the present system, the political elite are more busy in keeping themselves in power than serving the people. All the fault may be that of the people who operate the system, but then they are products of the system. The system has to be so reformed that it attracts to public life the right kind of persons and throws up better quality of leadership. Without bringing about some fundamental conceptual and structural political reforms and changing the present set-up, it would not be possible to root out corruption, to bring about electoral reforms or to change the educational system. Based on our own experience, we should devise a system which we can call "Indian" and which is suited to our social and cultural environment and to needs of sustained development and of elimination of corruption. There would have to be effective decentralisation down to the lowest levels and smallest units coupled with accountability at every level. To enable the right people to enter it, politics must cease to be a lucrative vocation and a short-cut to getting rich quick. Power of loot and of compromising the financial future of the nation must be taken away from the rulers of the day by appropriate constitutional safeguards.

Reforming the Constitution 235 L The Problem Why do we need reform? What is it that will suddenly change in India simply because we have some reform in the political system? After all, the Indian experiment seems to have worked. We are still a functioning democracy notwithstanding the predictions of some in the 1950s about the impending fragmentation of India. We have withstood several shocks both economic and political. The first was the humiliating defeat at the hands of the Chinese. Nothing happened. Well, almost nothing-Krishna Menon resigned! Despite the debate of 'After Nehru Who', the polity did not break down. Later, we not only withstood the break-up of Congress but also Indira Gandhi's Emergency and the transfer of powr at the end of it On the economic front, we withstood the oil shock of the 1970s and beyond, and managed pretty well when faced with some ugly droughts. That India has not had a famine since independence is a recognised achievement. We are still feeding our population despite it having doubled since independence. We have a large Industrial Sector, Atomic Technology and a large qualified Human Resource. In the developing world we are by no means at the bottom (although we have stayed at the take-off stage just a bit too long) and we find that several states are doing much worse than us both on the economic and the political front. So what is it that is not working? What is it that causes us more concern today than it has caused in the past? The answer has got to be viewed in terms of the scale of what we set out to achieve and where in that graph are we located now. Not very high. The unpleasant reality is that despite all of the above our balance sheet is woefully negative and the prognosis for the coming decades poor. Why do we say this? Our economic growth has been poor and our economic development has been even poorer. (The latter signifies not just improvement in the economic data but the meeting of basic needs of the populace).1 The numbers below poverty line have not 1 For definition, see Appendix I.

236 Reforming the Constitution decreased, and as things stand we have as many people on the wrong side of the poverty line as was our population at the time of independence. Living conditions for the bulk of our population have not improved. We have not been able to even provide clean drinking water to a large number of our villages. Sanitation facilities in rural India simply don't exist with the result that hygienic conditions continue to remain abysmally poor in our rural areas. This causes disease which we combat with poor public health facilities. Among a group of developing countries which all began approximately the same time our average life expectancy is among the lowest Our crude death rate is one and a half times that of China.2 And, so far, we are only talking about the most basic of human needs; we are not talking about improving the standard of living in terms of any comforts, purchasing power, education, public health, travel, durable consumer goods, transportation, electricity and even the simplest kind of social security. On that scale we are much deeper in the hole. Then we have the 'commanding heights' of the economy which have become anything but. Perhaps, in the present context of their performance it is more appropriate to call them "demanding heights" of the economy. The extra-ordinary demands of the public sector on the system has drained the country of scarce capital resources. The scandalous under­ utilization of capacity not only in the public sector, but also in sections of the private sector wherever state subsidies have been involved, has pushed the capital-output ratios to levels that go beyond any economic justifications. Our growth seems to be largely accounted for by the accumulation of inputs rather than any efficiency with which these are deployed. On the social front, even after four decades of supposed affirmative action we have not helped the really backward and deprived, nor have we been able to reduce the social prejudices against them; on the contrary, some of our policies have created higher prejudices instead of reducing any. We now have 2 World Development Report 1991 shows the following comparison on life expectancy at birth : India 59, China 70, S. Korea 70, Signapore 74 and Thailand 66 years. India's crude death rate is 11, China's 7. Even providing for the possible unreliability of the data, it nevertheless gives a fair indication of how the countries compare. 3 See VP Chitale, 'Capital-Output Ratios in the Indian Economy', Economic and Scientific Research Foundation 1986. Also World Development Report 1991 p. 42-43 on Total Factor Productivity.

Reforming the Constitution 237 communal problems once again where both the minorities and the majority feel exploited. We have leadership that fans the communal fires in flagrant violation of the constitution. We still have bonded and begaar labour as well as child labour, despite the constitution having promised its eradication. On the political front we have denied access to a large part of our poor sections with the resultant ferment that we face today. We have separatist movements that threaten us with conse­ quences most unpleasant. The state itself has been involved in violating the constitutional rights of individuals. We now have what has been commonly called as a criminalization of politics and there is constant talk of this or that nexus. Unfortunately all political parties are playing this game and the recent local elections in a supposed progressive state like Maharashtra had a record number of candidates who had criminal background.4 It applied to candidates of all political parties. But most of all, we have unbridled political corruption that has engulfed our entire society with dangerous long term implications. And, I still have not talked about the problems of over­ population, land reforms, unemployment, deteriorating law and order, compro-mised judiciary, education, energy, urbanization and weak institutions for managing social, economic and political conflict which top the list of our myriad problems. Our political system has no time for any of these and we have either not tackled at all or when we grappled with them, we have miserably failed due to poor and uncommitted implementation. In arriving at this scenario I have tried not to be dramatic in any way. I have just stated things as they are. In the same factual way I am also clear that there is nothing we can do to correct any of this today. But, what about the scenario tomorrow and the day-after; and after ten and then twenty years. Obviously if all of the above problems are going to be left alone to take their own course in the hope that these will simply go away with time, then we are looking at a worse scenario. On the other hand, the future is certainly something we can change for the better if we possess two things; first, the clarity of thought as to exactly what we want, and second, the "ability" to perform to that end. This "ability" is a function of several other factors in which social and 41 refer to the Corporation elections in Maharashtra during March 1992 extensively covered in Times of India.

238 Reforming the Constitution economic factors play a role in addition to the obvious political ones. The theme of this paper is that while the first is possible under almost all circumstances, the second is not possible without major political reform in India. n. The Reasons The Basics I find that the debate on India's developmental problems tends to generally concentrate on the failure of its economic policies and always tends to gloat in the fact that despite its economic failures India still has a working democracy. Sometimes the argument goes that India's economic growth is slow because it has had to compromise to keep its democracy alive. I think that both the lines of argument miss the point. We can not continue to look at economic problems as if these exist independently of the social milieu of the country or of its political development. Any view that does not take into account all three has poor validity in the context of developing countries. The poor are not poor simply because they don't have enough resources, they are also poor because they live in a poorly developed political and social environment And these have a mutually causal relationship. Weak social and political institutions are not just the result of social and political conflict but are also the cause of such conflict leading to a circular causation that feeds on itself. Our economic failures are not a result of having had* to nurse our democracy. On the contrary, our poor performance has contributed to bring our democracy to a stage where it is being threatened. In trying to identity the reasons, I first want to concentrate on what I would call the "basics" rather than delve into an analysis of the super structure of institutions, social cleavages, religious confrontations and all the other failings of a multi-ethnic, multi­ cultural, multi-religious society. This has been done aplenty. The idea is not to deny the importance of all these, but to emphasize that the "basics" are the foundation of sustained development and to that extent these should feature high in the hierarchy of developmental needs of India or indeed any developing society. When we talk of "basics", we have to start with the smallest unit involved in our developmental planning. Western oriented

Reforming the Constitution 239 development planners tend to think of the individual as this basic unit But, in our context, I would argue that it is the family —the common deprived Indian family—which is the basic unit of the Indian polity.5 If we can somehow make this unit indepen­ dent and self-sustaining/ we will be laying strong foundations for lasting development The most efficient government machinery in the world can never look after the interest of its citizens in the same way as the citizens can do themselves. Obviously, the system must provide them the opportunities and, even more important, they have to have faith in the efficacy of the system that if they work hard they will not be denied the rewards of their work. How often have we heard that a . . . is only as good as its members (You can substitute what ever you like for the blanks— nation, state, community, village, corporation or whatever else you wish). Therefore, it is not wrong to say that India is only as good as its citizens. The neglect in minimizing the dependency level of this citizen is the first thing that has gone totally wrong in India because instead of creating self-reliant citizens we have gone to the opposite end and created dependent citizenry. The government is omini-present. Myron Weiner uses the Hindi term—Mai Baap to express the dependency relationship of the Indian people with their government. Our political elite has not tired from spreading the belief that a good government is the one that doles out the most. Alexis de Toqueville writing in midnineteenth century said: "Those sovereigns of our day who try to concentrate on themselves alone all the new desires created by equality and to satisfy them will in the end, if I am not mistaken, regret that they ever embarked on such an undertaking. One day they will discover that they have put their own power in hazard by making it so necessary and that it would have been both safer and more honest to have taught their subjects the art of looking after themselves."

By making our citizenry dependent on the government for everything we have helped to create the ferment that we find today. The causal link is clear. While democracy is very good at creating demands, it is not as good at satisfying them, with the result that the government has helped to undermine its own legitimacy by taking responsibility for everything and then not 5 One only has to take into account the socially expected norm of behaviour that makes for individuals to make sacrifices for their respective families to judge the validity of this argument.

240 Reforming the Constitution being able to provide most of it. There is one other, and more malignant, effect of this omni-involvement of the government. It creates opportunities for corruption, and exploitation of the people. Gunnar Myrdal writing in the late 60s referred to the developing countries as 'soft states'.6 He stated that these states were mostly socially undisciplined and therefore they either did not enforce their policies or where these were implemented, the authorities were generally most reluctant to enforce them so that policies did not require compulsion. This stood in the way of development. This was true at that time, and it is true today. We are paying today for having been a soft state in the past and since we continue to remain one, our future generations will also have to pay the cost of the same. The crucial difference is that the cost will keep on increasing, as on the one hand, the low levels of developm ent create further alienation of the poor and the deprived, and on the other, the higher politicization creates more awarenei.3 of this deprivation.

One of the attributes of being a soft state are the traditional attitudes of the people which are generally incompatible with the requirements of a modernizing state. These attitudes stand in the way of changing the work-ethos of the people without which the achievement of modem goals of development along the paths defined by the western growth patterns becomes difficult. Among the attitudes that Myrdal thought necessary are diligence, efficiency, punctuality, and scrupulous honesty (which pays in the long run and is a condition for raising efficiency in all social and economic relations).7 Given education and economic develop­ ment in a society, these attitudes evolve over a period of time as in the case of the western world. But we haven't got that much time. Therefore, the State has to devise strategies aimed at building and nurturing these attitudes on a national scale. There is no question that such attitudes and values can play a significant part in the creation of a self-sustaining development model by making the population hard-working and self-reliant. One totally underlying requirement for the above is education. It is the only institution that broadens individual 6 Gunnar Myrdal, "Asain Drama", Pantheon, New York, 1968, Chapter 18, Sections 13 and 14. 7 Ibid, p. 61.

Reforming the Constitution 241 horizons and helps to weaken traditional superstitions and beliefs where these are in conflict with the requirements of modem development. Recent work at World Bank and other agencies of the United Nations has determined a positive co-relation between levels of education and sustained development A three-yearhigher initial level of education is associated with an increase of 0.4 per cent in the annual growth rate.8 I cannot say that the importance of education was not appreciated by our founding political elite but in terms of policy and action they showed total neglect in this regard. Today we have created education which helps to create a nation of clerks who, of course have no employment. We have a situation where state governments (as in the case of U.P.) have to resort to criminal legislation to eliminate copying from the examinations and opposition parties agitate against the measure. We have continued to endure schools with poor or no equipment, untrained teachers and pathetic standards for so long that the hope placed in education has all but disappeared particularly where it was needed most-in the rural areas.9 India is already paying dearly for the degeneration of its educational structure and I foresee a still heavier payment. Sudipta Kaviraj, discussing the segregation by default of the users of English from the users of vernacular calls it a kind of "disenfranchisement"10 through which we have intensified the regional cultural differences. This is another potential ferment that we have created. One further institution that had powerful possibilities to help broaden the horizons of the populace is, of course, the broadcasting media. This is one more crucial promise not kept and over the years this media has got branded an unreliable mouthpiece of whichever party is in power. Finally, there are what Bobbio calls the "ideals and brute facts".11 This concerns few inborn deficiencies of democracy. Bobbio talks of six broken promises of democracy but in the context of the developing countries a few more can be added. 8 World Development Report 1991, p. 42. 9 An Illuminating study is R S Newman's " Grassroots Education in In dia-a challenge fo r policy makers", Sterling Publishers, New Delhi, 1989. 10 "Capitalism and the Cultural Process" in Journal o f Arts and Ideas, No. 2, 1990 11 Norberto Bobbio, "The Future of Democracy", Polity Press 1987, p. 26.

242 Reforming the Constitution Two specific failures of democracy pointed out by Bobbio are (i) the continuing exercise of invisible power and, (ii) the uneducated citizen. In the first case, we have not even attempted to make state power transparent. The invariable result is the emergence of authorities who ought to keep a check on subversive elements (some of which operate from within the government) but who instead protect and even help such elements against the common man. In the second case Bobbio is referring to the lack of political education which in India has not only given the ruling elite the chance to continue in power despite hopeless performance but has also contributed to the emergence of the populist overlord, of whom we have had our fair share both at the centre and at the states level. The inevitable failure of a populist leader to address any of the developmental issues only leads to a further loss of legitimacy of the whole political system. Of course, these "basics" do not by themselves eliminate crisis but these certainly create a favourable environment in which leadership can address issues more successfully. When the basics are wrong all else fails. Corruption The next in my list of intangibles is corruption12 which is fre­ quently dismissed as insignificant in the overall study of development. In the 60s, several scholars not only down-played any negative influence of corruption, but many of them talked of the positive effects of corruption. Their analysis, I might add, inevitably applied only to the developing world. You see it was not good for them but it was good for us. One scholar went to the extent of suggesting that opportunity for corruption might actually serve to uplift the quality of public servants.13 Not only am I in toted disagreement, but I also take a diagonally opposite view. Corruption is the endemic sickness of the soft states. It almost constituents a separate system of administration which becomes a system of control that denies, particularly to the poor, their legitimate access to resources. It corrodes the popular belief in democracy and takes away from the people their faith and 12 For definition see Appendix I. 13 David H Bayley, "The Effects of Corruption in a Developing Nation", Western Political Quarterly XIX, 4 (Dec. 1966).

Reforming the Constitution 243 hope in the future. It creates an environment where personal interest becomes all and public responsibility means little. It is a cancerous growth that, if unchecked, continues to expand in the society and begins to create a belief that corruption and, therefore, unfair means are the right way to manage one's affairs and that, any rules and laws can be circumvented if one has the right amount of money and/or the right connections.14 The tenet that places a premium on hard work disappears and gives way to the perception that right connections and the right amount of bribes will achieve all. This perception, in turn, constructs reality by shaping expectations and behaviour. It helps to institutionalize corruption through a tacit sense of approval from the society. We then evolve to our current situation where jobs, transfers, postings, and even educational qualifications are auctioned in one way or the other. The consequences are grave. We create a whole generation of public officials who extort money and favours by either not doing their job or, even worse, creating bottlenecks for people where there are none. When an irrigation engineer, operating within a structure of institutionalized corruption, gets posted to the right area by making a large payment, then he makes sure that he recovers from the man at the bottom as much as possible within the shortest time.15 When the policeman gets employment after paying an illegal amount, he tries exactly the same tactics. And their recovery doesn't stop when they have got their 'investment' back. It becomes a life long attitude which feeds on its own success. Large government projects can never be completed as planned because of substantial leakages for which no responsibility is ever fixed. Economic crime prospers with the general connivance of politicians and government officials. One can trace adulteration, artificial shortages, deforestation, irrigation and land irregularities, sub-standard work in government projects and several such crimes to one or the other forms of corruption. The regret is that even where officials are not corrupt they enjoy a low credibility leading to both poor decision making and cynicism. The overwhelming objective of any political elite is not just to get into the position of power but to have complete legitimacy 14 The term is frequently used in India as a connotation for 'influence/ 15 See Robert Wade, "Politics and Graft" in Peter M Ward (ed.) " Corruption, Development and Inequality", Routledge, 1989.

244 Reforming the Constitution in the exercise of such power. Factors that effect a government's legitimacy are obviously related to having got a fair and voluntary mandate from the people. This is the prime function that democracy serves. But as time progresses tliis legitimacy can only be maintained through actions and achievements that are generally perceived to be in the people's interest. Likewise the opposite is also true; if the government is seen to be performing poorly and occupied with personal interest, it leads to a loss of legitimacy for the government. Corruption, because it erodes performance, becomes one of the leading reasons for the loss of legitimacy for any government Syed Hussein Alatas, who has written extensively on corruption has the following illustrative story to tell:16 "The Black death originating in Asia, ravaged Europe between 1347 and 1351. Thirty to forty per cent of the population is believed to have died. Not only did the Black death instigate numerous social and economic changes-it also contributed to the moral degenerating of European society. The fear o f death and anixety for the future were introduced. Some took refuge in sensual pleasures, some in religious devotion. Many lived for the present for they did not know when the catastrophe might strike again. The Black death upset the traditional order of social life. The fear of impending disaster was implanted. Rational rules of living were not considered worthwhile following. Hence the exaggerated hedonism among many. This phenomenon took place in a given social and historical structure. Historians tackling the theme of the Black death point to its devastating effect and its pattern of communication. When they discuss the causes of the Black death, no matter how many different kinds they suggest, they all mention the rat. After all it was the rat that carried the plague. The other causes are merely favourable conditions-a populous urban centre, a busy harbour, or the road network. After summing up all the favourable conditions, there is still the rat. These conditions served the infected rat well in spreading the infection. All the structural factors are the means by which the germ-carrying rats spread the disease. The analogy with corruption is close. The structural and circumstantial conditions are the means by which the corrupt act. They also create conditions and circumstances favourable to corruption. Their effects are devastating to the society and last for

16

Syed Hussein Alatas, " Corruption: Its Nature, Causes and

Functions", Avebury, 1990.

Reforming the Constitution 245 centuries. They can thrive in any system and at any time. The study of corruption must eventually focus on the analysis of the corrupt man, just as the study of the black death eventually ends up with the rat that carried the plague. Similarly, there is an analogous set of reactions between those living during the Black death and those in a corrupt society. In the corrupt society of today, a sizable part of the population see no future for themselves. They live for today and spend whatever time they have in a momentary relief from the misery of the present. Those who manage to acquire money corruptly spend it in pursuit of fun and luxury. When avenues for serious and

constructive efforts are closed, energy is diverted to seek outlets in frivolous entertainment, isolated from the kind of enjoyment which flows from purposeful living".

The origin of the corruption afflicting us is to be found in our political system. The shadow effect17 ensures that progres­ sively larger areas of the society are engulfed into corrupt practices. I don't believe that I need to go into the details of the current environment in which our politicians accumulate a political debt even before they start their campaign. As a result they are compromised even before they start. They become the 'favourable condition' in the political structure for corruption to prosper. The higher up the compromise in the political hierarchy, the larger the area covered underneath by the 'shadow' within which corruption spreads. The whole nation suffers whether it is the tax man showing the tax-payer ways of avoiding payment, or the village official who will not take action on the legitimate request of the peasant without getting his 'fees'. One only has to go to any rural area to see the breakdown of the merit system. The social and psychological costs are heavy. We now have an Indiar psyche (and this is a national attitude we have nurtured successfully) where, for anything involving the government machinery, people think of whether they have a contact. This applies in the urban and rural areas alike and covers even mundane activities like getting a gas connection or a ration card, or procuring seeds and fertilizers—the whole gamut. All our structures and institutions whether economic, social or political, are vulnerable to an infestation of corruption, and the corrupt, like termites, attack them all. If there was one single affliction the removal of which would change India, it is corruption. The consequences of wide-spread corruption are serious. 17 See Appendix II

246 Reforming the Constitution When people find that they are trapped in an environment which gives them no hope, this provides a possible burning ground which can ignite given a spark. It certainly compromises the legitimacy of the whole political system, as people experience that all political parties are the same. They begin to believe, in Rousseau's terms, that they are free only to vote, after that they are slaves again, with no voice and no access. This present structure in India is the result of the policies followed by our political elite from the time of independence. All efforts to control corruption have been superficial and time and again the corrupt have actually been shielded by our political system. This explains why, given the present political system, corruption can not even be contained, leave alone eradicated. Leadership The role of leadership in shaping any society can never be underestimated. But it almost always is. The political scientist as well as the economist has problems with anything that is intangible because it can't be measured and hence doesn't lend itself to evaluation on any quantifiable scale. They find a solution in simply ignoring it or mentioning it in passing. But, leadership does play a crucial role in the building of a Nation State. And, visionary leadership can create institutions and processes that help establish foundations of sustained development My submission is that India could have been far ahead of where it finds itself today on all the three fronts, economic, social, and political, if it had been lucky to have had leadership with a vision for a truly self-reliant and self-sustaining Indian citizen. Had it been so, our education would not have been substandard, we would not have created a vested interest in backwardness, and we would have transformed a whole generation of average Indians into self-confident and productive workers. What leadership can achieve may be seen from the following comment about Lee Kuan Yew, the former Prime Minister of Singapore:18 ". . . the greatest achievement of Prime Minister Lee is not the physical transformation of Singapore, but the transformation of the mind and character of the average Singaporean. The docile, 18

Chan Heng Chee-Obaid ul Haq (ed.) "S Rajaratnam—the prophetic

and the political”, (1987) p. 200.

Reforming the Constitution 247 self centered, money grubbing and rootless colonial slave of a few years ago, has under his leadership and in a very short time, been transformed into an uncringing Singaporean who is today reaching confidently for a place in the 21st century. Today more than ever before, the apologetic immigrant has acquired a sense of his worth; has taken root."

Obviously we cannot emulate Singapore anymore than we could transpose western institutions on our culture. The sheer scale of the cleavages inherent in the Indian society is formidable. But, the contrast, by comparison, is that our leadership has only helped to create a whole generation of citizens who have developed opposite values. Irrespective of our intentions, we have created a counter-culture to the foundations of sustained development. The capability to transform visions into action is not just a question of personal calibre. The political and social environment become important determinant of its success or otherwise. In the case of India the political system has almost continuously stood in the way of such action. Our political elite has had to spend most of its time in politicking and playing games which seem to have become an end in themselves. Leadership always means having to take hard decisions when these are needed, but our political environment has had compelling influences for soft options. If one wishes to look for examples there are simply too many, specially in the last three decades. Institutions In the debate on constitutional reform in India, the central theme always relates to the current failure of our institutions as if these were working in the past. I believe that the institutions imposed on the Indian social milieu, being of Western and therefore alien ethos, never really became part of the Indian society.19 We created political institutions without attempting to create the social, economic and educational foundations for them. Majority of the society thus remained untouched by these institutions. These 19 The single and significant exception being the institution of (competitive) democracy itself which has taken roots but is currently under threat from a rising wave of sub-nationalism. (See Ashutosh Varshnay, "Liberalism Vs. Nationalism: Extending the debate on India's democracy", in The Journal of Democraq/, July 1992)

248 Reforming the Constitution simply didn't take root and never became part of the social structure that alone could have exerted progressive evolutionary influence on them. We therefore had institutions which were on a downhill course from their vety inception. It was a "technolog/' that was used but was neither understood nor imbibed. It could not have progressed, could only decline. We know that the commitments of even the first post independence leadership were not necessarily to the modem political idiom, a fact emphasized by caste affinities of even the early congress political machinery. The post Nehru era hastened the decline of these institutions but did not try to build any alternatives. Whatever pretensions India might have had about federalism were dropped during the regime of Indira Gandhi. Bureaucracy and the Judiciary were politicized and corruption got further reassurance and support. Small regional men were given seats of power based only on perceived personal loyalty and of course the ability to generate funds for the increasingly money hungry party machine. Secularism was redefined and it no longer meant that religious considerations could not influence public decisions but that religions now had equal right to meddle in public affairs.20 Political parties were weakened considerably and the general political culture was allowed to deteriorate by tacit acceptance of abominable behaviour in the State Assemblies and even in the Parliament. Engineered defections added another dimension to the degeneration of political culture. Still later the half­ hearted and half-baked attempts at Panchayat-Raj helped create more distortion at the rural level instead of the intended decentralization. Economic Management My last point concerns principles of simple management. It does not require any special analysis to understand that planning alone is not a sufficient condition for achieving any developmental goals. Unless planning is fully supported by a commensurate implementation machinery there is only a feeble chance of success. Yet, this is what we have followed in India for the last four and a half decades. We had good planning, often good budgeting but all of it remained mostly a paper exercise. The political and 20

Sudipta Kaviraj, "On the Crisis of Political Institutions in India",

Contributions to Indian Sociology, No. 2, 1984.

Reforming the Constitution 249 administrative authorities responsible for development have evolved a norm that their responsibility ends when they have prepared a plan and made resources available. There seems no concern with the fact that our implementation ratio is meager. The translation of planning into physical achievement is nobody's responsibility. We can look at any sector of the government today and we will be hard pressed to find even one success story where the planned goals have been met within the deadlines laid both in terms of time and resources. The most tragic consequence of having failed so very regularly is that we have now institutionalized these failures in a way that no eyebrows are raised even at the most outrageous muddles. The concept of accountability, inherently weak in any democratic set-up, has all but disappeared from our governing vocabulary. This institutionalized mismanagement has given us a public sector that has consumed huge capital resources for remarkably little output in return. Whatever the social benefits derived, the opportunity cost has been too high. As a matter of illustration, our power plants are operating at 54 per cent, plant-load factor and with transmission losses averaging 22 per cent, only about 35 per cent energy gets used effectively.21 It is estimated that the current capital stock that the public sector can lay its hands on could be upwards of Rs. 3,25,000 crores. On this capital, the returns were a meager 1.5 per cent in 1986-87. One can see that even a small return on this capital could have saved the country billions of rupees. The 244 Central public sector undertakings did not even get a 4 per cent net profit. And if you take away the petroleum sector then the net profit of the rest was less than 1 per cent. At the State level government enterprises, Comptroller and Auditor General (C&AG) found in 1989 that 514 of the 843 units surveyed had incurred losses of over Rs. 2000 crores.22 Such performance from our dominant sector has pushed the productivity of our capital right down in contrast to what we might have aimed for. The 1991 World Development report indicates that South Asia's Total Factor Productivity (1960-1987) is less than one-third of East Asia, and less than one-half of Western Europe.23 We would be hard pressed to find justification 21 India Today, April 30, 1992, p. 60. 22 India Today, April 30, 1991, p. 55. 23 World Development Report 1991, p. 43. For the definition of TFP see Appendix I.

250 Reforming the Constitution for such performance even after discounting it with the supposed public sector ideology that relates to generating social benefits. The costs start to get almost unpayable for the whole economy because it is not a one time expense. It is a constant drain on the economy and takes away resources from possible productive uses to supporting a vast edifice of vested interests and patronage networks. In theory, the establishment of the public sector, referred to by Nehru as the replacement of monopoly of profit by monopoly of welfare, may be sound policy but the underlying assumptions haven't stood the performance test in most conditions all over the world. The lack of managerial propensity for decision making and risk taking, aided by the absence of motivation (again all intangibles that cannot be measured on any quantifiable scale), have led to a performance wanting in every respect. It is not the public ownership but the pedestrian way of running these organisations by our political system that accounts for decay of the public sector in India. One has to only pick at random few C&AG's reports pertaining to individual state level accounts to find frequent instances of crass wastage of public funds. Further, one only needs to glance through a few reports of the Public Accounts Committee of the concerned State Assembly to see that in most cases there is no real accountability. This poor economic performance has undoubtedly played its part in weakening our political and social institutions leading in no small measure to what Atul Kohli calls India's Growing Crisis of Govemability.24 IQ. The Need for Reform The question sometimes asked is how has our political system given us all of the above problems? Indeed, there is a body of opinion which says that there is nothing wrong with our political system because it is the same system which works elsewhere. The problem, this opinion says, is with the individuals who man it. Change to better individuals, get a better type in public life and the system will start delivering. 24 Atul Kohli, "Democracy and Discontent", Cambridge University Press, 1991. 25 Arun Shourie, " Individuals, Institutions, Processes " Viking, New Delhi, 1990

Reforming the Constitution 251 I don't see how to disagree with the last sentence. I have already argued in section II that an organisation is only as good as its people, and this certainly applies to the political structure of a country. If the individuals manning this structure are mediocre the country's performance will certainly be mediocre no matter how high its potential. I do agree that if, within our political system, we can somehow manage to put the right individuals in the right places, the problem will take care of itself, for the performance level will improve with this induction of better calibre and committed individuals into managing the affairs of the state. But doesn't this beg the question? For the complex issue involved here is: how are we going to get these right individuals in the right places? The optimism or hope that we can morally persuade people to start opting for the right individuals in all spheres of public life is utterly devoid of practicality for the simple reason that politicians and people alike, operating under the theory of Rational Behaviour, act in their perceived self or groupinterest notwithstanding that such action often goes against the national or social interest Better type in public life by voluntary public action is an ideal the pursuit of which eluded even the charisma of Mahatma Gandhi, and much later, JP. In the absence of such pervasive morality the only way in which the right individuals can be encouraged to get into public life is through a political system that is designed to do so. Obviously, no political system can "ensure" that the right individuals rule the state (in any case, this is impossible for we don't find out whether an individual is the right individual till he gets into the position of power and starts to perform, at which time it is too late) but it certainly can encourage the right individuals while discouraging the wrong ones. On this count alone there is no alternative to reform of the political system. I further hold the view that such an objective can not be met with simple reform. There needs to be a structural change. Secondly, even when we have created successful reforms and managed to get the right individuals in public life, we need to have some institutional safeguards against abuse of power. We have seen this happen in our recent political history and there is no reason to assume that it can not happen again. In this case too, we won't succeed without political reform. 26 See Appendix III.

252 Reforming the Constitution The aim of eliminating institutionalized corruption from our system can not be met under the present political arrangement When the top layers of our polity are compromised, we have no chance to control corruption at lower levels. In order that we eliminate from the system, both, the opportunity and the incentive to be corrupt, we have to, first of all, make changes in the manner in which the people's representatives are elected. I do not view this problem as the question of simple electoral reform but believe that the concept of representation needs to be redefined in the Indian context To do so means political reform. Only then can we pursue the vital administrative reforms much needed to dilute the opportunities for bureaucratic corruption which are currently supported by our all encompassing administrative structure. The next requirement concerns the institution of Education. In the present circumstances, any proposal for changes in the educational system will become a political rather than an administrative issue. Within the present political set-up it will be difficult if not impossible to attempt changes in the educational structure. I have already pointed out how opposition parties reacted to the proposal of enacting legislation to stop students from copying in the examinations. One can imagine the amount of furore any real reforms in the education system will cause. In terms of further impending needs, we have to impart political education to our populace and create a society where merit is recognised and any meddling is not easily endured or condoned; the poor have to be provided access to the system by effective decentalization of authority; the disregarded rights to work, education, health, and housing need to be introduced at least at the level of the 'family unit'; lasting institutions have to be created by ensuring that the political is not at variance with the social and the economic; a federal structure is to be built without the present suspicious centre-periphery relationship. None of these are possible within the present political set-up. Lastly, we need to establish strict norms of public accountability. Within the present system, the entrenched interests will undermine the implementation of any such norms. It is one thing to create rules governing norms of behaviour, but it is quite another to have these norms followed. Our track record shows that while we are good at enthusiastically supporting any norms, we are equally poor at following them.

Reforming the Constitution 253 IV. Some Directions I find that most of recent debate in India concerning changes in the political system tends to hover round the Westminster type Prime Ministerial model or one of the Presidential models (French or American). I disagree as I don't believe that we should make the same mistake twice over. We have the experience of having imposed the Westminster style of parliamentary government on our entirely different social and cultural milieu. This experiment has given us a kind of deformed democracy that fits in more with what Owens refers to as "false democracy"27 than with the liberal democratic model it was fashioned upon. The institutions provided by this model have proved inadequate in conflict management. We should not once again go for another alien model which may fare no better. We now have over four decades of experience with democratic institutions at various levels and we know where these have worked, and where these haven't We also know what has stood in their way. We are, therefore, in a position where all this knowledge can be pooled to engender a system that we can call "Indian". Our considerations have to be pragmatic and not ideological. In other words we have to base ourselves on concepts and principles that will have a good chance of working within our given social and cultural environment, for change in these will come slow. Our democracy has to go all the way down and must attempt to build accountability in the system. The smaller the unit to which you are accountable, the more effective the accountability. This may be the only way to make political democracy viable and meaningful to our masses. So we have to talk of effective decentralization.28 This term is not to be confused 27 Edgar Owens, The Future o f Freedom in the Developing World, Pergamon Press, 1987. Owens notes that most "democratic" developing countries are "false democracies"—they are top-down, even externally imposed, political system whereas true democracy can only be indigenously derived and must provide the populace with access to the system and to the resources. 28 In principle, the concept revolves around providing authority and accountability to small units. Only in small units can "partisan considerations be transcended by consciousness of natural justice/ T ] Nossiter, Communism in Kerala, quotes the work of Kathleen Cough to support this argument. Nehru, in his "Discovery o f India", valued the village as a governmental and an electoral unit.

254 Reforming the Constitution with federalism because our present states of the Union are also too large in size for effective accountability. Other than this main comment, any potential political reform must substantially tackle the problems discussed in this paper. We have to make sure that our political system is conducive to creating the kind of basics that can help lay the foundations for a sustained development effort, that it minimizes corruption by developing governing norms which reduce the opportunity for corruption as well as develop strong disincentives against corruption not just by legal methods which can be easily circumvented but also by helping to create powerful public opinion and public sanction against corruption of any kind. Max Weber had said that a 'convention' such as merit administration will only persist when there is a high probability that any 'deviation' will result in a relatively general and practically significant reaction of 'disapproval'. In other words, without buttressing social sanctions, legal sanctions are weak because they are easily circumvented. If the corrupt know that they can not get away with the fruits of corruption, this will serve as a strong enough deterrent. As of now, despite scores of scandals, we have not seen any politician being really brought to book. Naturally, there is plenty of incentive to be corrupt. One of the primary reasons for both political corruption and a general loss of credibility of the politician is the fact that he represents a very large constituency and to that extent he is not truly representative of the people. First, he wins on a minority vote and secondly his vote, most of the time, is not because his constituents know and trust him; he just happens to be on the right ticket at the right time.30 We must change this to create constituencies that are meaningful. Where an elected politician is really a representative of his voters and therefore answerable to them. In this case, the opportunity for him to be corrupt will be reduced because he will risk strong disapproval and reaction from his constituents. One other purpose that a smaller constituency will serve is to create stronger voter awareness of the importance and strength of their vote. Today many voters 29 Quoted inPolitics and Craft, Robert Wade, p. 105. 30This could work if the political parties had strong and meaningful organisations promoting elite-mass dialogue and helping to create a political culture of identifying with the party programmes. This could have been, but is not so.

Reforming the Constitution 255 are willing to sell their vote and are willing to be intimidated into voting in a certain way or even into not voting at all because a wrong vote doesn't directly harm them, just as a right vote does not directly benefit them. But, if their voting affects them promptly in a material way, they will rapidly fathom that they have elected the right or the wrong man. Within one or two election cycles they will start to value their vote. It will also exert direct pressure on the political parties to try and present candidates who will meet the voters' criteria. I believe that this is one of the strongest ways in which we can possibly transcend the ethnic and caste loyalties. Time and again it has been proven that self-interest surmounts other parochial considerations provided that the positive results (of having gone against traditional loyalties) become apparent quickly and directly. This will ential a structure of direct and indirect elections to keep manageable numbers at the apex of the political pyramid. The general principle should be voice of maximum at the bottom but action of minimum towards the apex. We can encourage the right individuals to come into politics only by eliminating or minimizing the ease with which politicians use the system for personal ends. The only way to reverse this is to take away the loot associated with political office. Politics has become a lucrative vocation for a large number of politicians who know that politics is the main route to power, which in turn is the main route to wealth. The limits on political conduct (or misconduct) which in the western world are imposed from the outside, are in our case self-determined by the politicians. In the absence of accountability these supposed self-restraints fail. More money can be made in a shorter time with the aid of political influence than by any other means. And because this involves using unethical and questionable means, the good politician is being progressively driven 'out of circulation' by the bad politician. Therefore, the system must impose limits and create accountability. One of the pillars of accountability is the scheme of mandatory public disclosure. We have never attempted it so far because it is not suited to our kind of democratic practices. The more transparent we can make the political process, the more accountability we will inject into the system. We have to guard against the self-serving populist by making it impossible for him to promise or give doles which he has not helped the economy create. It should be difficult for the politician to touch any of the resources that he has not helped

256 Reforming the Constitution create. All surpluses created by any previous government should go into a fund for posterity which can not be touched. This should operate except in an unforeseen emergency e.g., a natural catastrophe. All these loan melas and indirect subsidies should not be part of a politician's arsenal so that his main occupation becomes how to create development. Most of these things would happen as a matter of course once the right kind of politicians are in a position of power but even then there should be constitutional safeguards to ensure that this is followed. Any society that gives its rulers unlimited power to compromise its financial future will, in all likelihood, find that this power was fully utilized. Remember that the politician who does it will not be around to handle the mess that he may create for the coming generation. I have deliberately refrained from making any ready-made suggestions as there are no ready-made solutions to India's political malaise. We have to painstakingly create vital foundations for our system, only then will the prospects of a genuine and lasting democracy emerge. I strongly feel that the ideas presented in this paper as well as the host of other ideas being thrown up by the intellectual elite of India should be taken up for discussion by a knowledgeable and committed group—a group independent of the traditions of the present political structure. Out of the deliberations of such a group, a draft plan of action for India might emerge.

Reforming the Constitution 257

APPENDIX I Development:

Legitimacy:

Corruption:

Total Factor Productivity:

This is defined as an improvement in the quality of life and not just in terms of economic data. Of course, it calls for higher incomes, but it involves much more. In the World Development Report 1991, it is defined as encompassing "as ends in themselves, better education, higher standards of health and nutrition, less poverty, a cleaner environment, more equality of opportunity, greater individual freedom and a richer cultural life, (page 4). I add to these conditions 'greater access' for the poor to the system and resources. Legitimacy is not used in purely legal sense which simply means the authority under law. We define legitimacy in terms of the voluntary compliance to authority. The less the element of voluntary obedience and, therefore, the higher the obedience through elements of coercion, the lower the legi-timacy of the regime. The lower the legitimacy, the lower the igniting point for a polity. This is used in a broad sense and includes all private gain at public expense. It also includes the use of invisible power for private gain and covers electoral corruption. Santhanam Committee used the following acceptable definition, "In its widest connotation, corruption includes improper and selfish exercise of power and influence attached to a public office or to the special position one occupies in public life" (Page 5, Santhanam Committee Report, 1964). This is another method of analzying growth. It is defined as the residual after estimating the contribution that capital and labour make to growth, because it is seen that the sum of the contributions of the factors of production fails to account for over all growth. It can be said to represent the efficiency in the deployment of the factors of production.

258 Reforming the Constitution

APPENDIX II

'A' is the source of power in the figures above. In moving from lower levels to higher levels you go from individual corruption to institutional corruption. In each of the figures a corrupt obstacle is placed between 'A' and the society below. The higher this obstacle is placed in the political hierarchy, the greater is the shadow cast on the society below. The analogy with corruption is that the higher the corruption reaches in the power structure, the greater its impact in creating a distorted environment below. It does not seem to be applicable in the developed world where corruption at higher levels does not necessarily generate the same at lower levels. But the reason partly is that corruption is not institutionalized and secondly, most of the corruption in the developed world is transparent to the viewer below. In other words, it is not apparent and where it gets apparent, the society does not accept it and generally censures the persons or the government concerned.

Reforming the Constitution 259

APPENDIX HI Rational Behaviour A fairly common way to characterize Rational Behaviour in both economic and political discourse is to base it on self-interest. The basic corollary being that if there is a conflict of interest between any other interest and self-interest, it is the latter which will prevail. This is the base interpretation of the theory of Rational Behaviour. However, there are exceptions to this tendency. Good examples, in the developing world, are the behaviour patterns when it comes to religion, caste and many other traditional beliefs. Indeed, there are scholars who contest the theory of Rational Behaviour.31 Their argument runs that people are also motivated by ideals, community values, and commitments that transcend any narrow definition of self-interest. We have to accept that there is a small number who are guided by what we may call enlightened self-interest based on a higher value-system, but I find it difficult to generalise this argument. In a way, no matter how hard we try to tone down the theory of Rational Behaviour we find that it is still a pervasive force. We easily determine that all seemingly altruistic behaviour is the exception rather than the rule and that, in a general way, self-interest prevails most of the time. While this pursuit of self-interest in the economic sphere might create better incomes for individuals or even maximize social welfare, pursuit of self-interest in the political sphere can wreck havoc on a polity. Certainly in our political arena, we have permitted the theory of Rational Behaviour to dictate the conduct of a majority of our politicians. In so behaving our politicians have constantly tested the limits of tolerance of the system and with each succeeding election the previously tolerated misdemeanurs are taken for granted and newer depths reached. No matter how harsh it sounds, we have to accept that this is how the average person will behave. It doesn't serve us to lament the disappearing ethics and morality from politics because 31 See Amartya Sen, "On Ethics and Economics", Oxford University Press, Delhi, 1990, and “The Power of Public Ideas", (ed.) Robert B Reich, Ballinger Publishing Co., Cambridge, Mass., 1988.

260 Reforming the Constitution we must understand that ethics and morality do not serve the self-interest of most politicians within our present political culture. Therefore, whatever reforms to the system are initiated these must take into account the strong forces of Rational Behaviour. We can't expect that this tendency will disappear, but we can, through several measures, push most public behaviour to the enlightened self-interest category.

Why Not a New Constitution? R. RAMACHANDRAN WORLD is changing fast. We cannot stand still. The consti­ tution framed by a Constitutent Assembly elected on a restricted franchise in the 1940s is not suited for our people in the 1990s. We must go to the 21st Century with a new constitution. Mere review will not do; what is needed is a replacement of the present constitution. We should benefit from our own experience and from that of the working of other constitutions. The new constitution must lead the people to economic, social and moral freedom and to ending of all exploitation and coterie rule in the garb of democracy and ritualistic elections. There should be a provision for the mandatory review of the Constitution every 25 years so that the hopes and aspirations of newer generations can be reflected therein. The next general election may be to elect a new Constituent Assembly. With a decision to create genuine federalism and setting up of a new Constitutent Assembly, all secessionist and like struggles should cease. Misguided youth may be allowed general amnesty and allowed to return to the main stream. The ultimate strength of a nation lies in the strength of each citizen and his well-being. We must be able to restore to the common man control over his own life and destiny. Each citizen must be guaranteed work, food, clothing and shelter and a participatory role in government. Citizen's rights and duties togeth'»*’ need to be empha­ sized. Political parties must assume responsibility to spread literacy which is most essential for constitutional stability and democratic survival.

262 Reforming the Constitution is just completing forty-five years of its indepen-dence Ithendia from colonial rule. Forty-two years have already passed after country's becoming a republic with its own written constitution. During these forty-two years, the constitution has gone through sixty-nine amendments. Many more are bound to take place in the coming years. May be by the end of this century, while celebrating the 50th anniversary of the working of the constitution, the total amendments would exceed one hundred. In the year 1979 the then President of India, Dr. N. Sanjiva Reddy, proposed a review of our constitution. After more than a decade, in early 1991, President Venkataraman went a step further and suggested the setting up of a Constituent Assembly to redraft the constitution or incorporate necessary changes in it. The need of the hour is not merely a review of our constitution, but the replacement of the existing one by a new constitution framed by a newly constituted Consti-tutent Assembly elected by universal adult franchise where all citizens above 18 years of age should be able to participate. If this is not done, India might go the way some of the other nations have gone in recent years. Some of the developments around us like the increasing number of militant groups, secessionist movements, regionalism, communalism, casteism and above all political killings of leaders like Smt. Indira Gandhi and Shri Rajiv Gandhi must cause grave concern. With no less a person than the President himself suggesting the setting up of a Constitutent Assembly, the proposal deserves serious thought and action without any further delay. Next general election could very well be an election for a new Constitutent Assembly. Hopefully, we should be able to enter into the 21st century with a new constitution framed by a Constitutent Assembly elected by Indian citizens majority of whom belong to the post-independence generation. We have before us the experience of how our constitution has worked for more than four decades. We have before us the history of the working of other democracies in the world, especially after the Second World War. We have seen the cold war and also its end. Also we have before us cases where countries once democratic could very easily slip into authoritarian and dictatorial rule. We should be able to learn appropriate lessons and frame a new constitution, which would be free from the

Reforming the Constitution 263 lacunae in our own and other constitutions. Our new constitution can be expected to have a revolutionary significance in the matter of leading the country from political independence to economic, social and moral freedom for the people.lt is worth noting here that the then secretary of state for India said in a speech at Manchester on 20 November 1941: "Congress has demanded that the future constitution should be settled by a Constitutent Assembly through universal adult franchise over the whole of India. This is an impossible demand."

What was impossible in 1940s under colonial rule should be made possible now in 1990s under Congress rule. Can Congress easily forget its own past? Certain self-styled constitutional pundits, so-called leaders surviving on a glory borrowed from the colonial past and through coterie rule and status-quoists are bound to oppose any such move. This country is not theirs alone and they alone should not be allowed to sit in judgement about the future of 850 million people. The present generation should have an opportunity to prepare a new constitution incorporating in it its hopes and aspirations and ensuring a better future for itself, and for the coming generations. This constitution should have a mandatory provision for review after every twenty-five years so that the hopes and aspirations of newer and newer generations are taken care of. It should be able to create genuine federalism in the country with no need or room left for armed struggles and liberation fronts like those for independent Jammu and Kashmir, Khalistan, Jharkh and Gorkhaland, Bodoland, etc. Even after the liberation of the country from colonial rule, all these four decades and more we have lived in the shadow of colonial rule. It is time we should get out of it in order to be able to march fast forward towards the 21st century with genuine freedom for the 850 million people—political, economic, social and moral freedom—with no more exploitation of the poor by the rich and the weak by the strong. There should be no coterie rule in the country under the cover of democracy and ritualistic elections. Only then would we be able to experience that freedom so appropriately described by Rabindranath Tagore in the following lines: "Where the mind is without fear and the head is held high;

264 Reforming the Constitution Where knowledge is free; Where the world has not been broken up into fragments by narrow domestic walls; Where words come out from the depth of truth; Where tireless striving stretches its arms towards perfection; Where the clear stream of reason has not lost its way into the hoary desert of dead habit; Where the mind is led forward by thee into ever widening thought and action;

Into that heaven of freedom, my father, let my country awake" When Berlin Wall could fall, East European countries could move towards democracy, U.S.S.R. could collapse ending the long cold war, Mr. Nelson Mandela could be out of South African prison and apartheid system could be seen to be on the way out, man could land on the moon, advancements in audio-video communication systems could bring the world closer, a new constitution for India and the proposed new freedom for its people should also be possible. We have to remember always to move forward, as stagnation leads to pollution, pollution leads to degeneration and degeneration leads to self-destruction. It will be a pity if we have to preside over our own self-destruction. It is really tragic that in a country like India which won political freedom from the mighty colonial masters through a non-violent struggle, violence and killings of innocent men and women should become a matter of routine. How could the country so soon become a sprouting ground for all kinds of militant groups? There is an alarming increase in the number of movements generally branded and condemned as secessionist. How long can we blame "foreign hands" or "misguided and disgruntled people"? How long can we escape from realities? How long can we cover up our own failures? It must be said that the present constitution given to us by the founding fathers did help the country to secure political independence from colonial rule and survive for so long as a free nation without disintegrating or falling into authoritarian or dictatorial rule. That eight hundred and fifty million people (more than the combined population of Africa and South America) could live together as one political entity under conditions of freedom from colonial rule for so long, is no small achievement. Never before in history, and nowhere else in the world, one sixth of the world's population with so many diversities lived together as a single sovereign nation.

Reforming the Constitution 265 At the same time, we must admit with a sense of shame that even after so many years of political freedom we are still to achieve for the majority of our population economic, social and moral freedom Those who won for the county political freedom through a non-violent struggle, after coming to power, did not consider it so important to continue the struggle and win economic, social and moral freedom. Perhaps it was ignored because it was less exciting and not so very spectacular as the struggle for freedom from colonial rule. All along they remained busy in the ungainly skirmishes for power without even winking a cursory look at the sufferings of the majority of our population. Our rulers found glamour and glory in building the facade totally ignoring the foundation i.e. the hundreds of thousands of our villages and millions of our rural people who actually produced food and fibre for the whole nation. We have had green revolutions and tons of food grains rot in FCI godowns while many children go to bed with an empty stomach and there are starvation deaths here and there. We produce millions of yards of cloth and export ready made clothes, but there are millions of our people who cannot still have adequate clothes to cover their nakedness and protect themselves against extreme climates. Deaths due to cold and heat waves are also not very uncommon. Our rulers have succeeded in creating for themselves rotten boroughs leading to corruption. Our so-called representative institutions are popular and democratic only in name. How long things can go like this? As Dr. Radhakrishnan quite rightly observed: "People who wander about, find no work, no wages, and starve, whose lives are a continual round of sore affliction and pinching poverty, cannot be proud of the constitution or its law."

Socrates said: 'T o know yourself is the beginning of wisdom". It is time we understood ourselves as individuals and as a nation. Then alone shall we have the wisdom to understand things in terms of realities. Then alone shall we achieve the necessary will to remove the ills afflicting the nation and lead it forward to real political, economic, social and moral freedom for its millions who remained exploited to the hilt and neglected totally for centuries. No one can deny the fact that the strength of a chain is equivalent to the strength of the weakest of its links. Each citizen

266 Reforming the Constitution is a link that makes the nation. The physical, moral and spiritual strength of each citizen is the mighty strength of the nation. The strength of a nation is not based merely on brute military and police strength, not on its huge arsenals of destructive weapons, not on the muscle power or just personal or media created charisma of its leader, not on the number of multi-millionaire industrialists and the sky polluting high-rise industrial chimneys, not on ultra modem cities and multi-million value high-rise buildings, and not on the attraction and strength of just statistical figures of GNP, GDP, BOP, etc. The ultimate strength of a nation lies in the strength of each citizen and his well-being. None other than Mahatma Gandhi understood it well. He is no more with us, but his writings can still inspire those who care. What a difference it would make if those in authority could take to their heart, the following words of Mahatma Gandhi: "I will give you a talisman. Whenever you are in doubt, or when the self becomes too much with you, apply the following test. Recall the face of the poorest and the weakest man whom you may have seen, and ask yourself, if the step you contemplate is going to be of any use to him. Will he gain anything by it? Will it restore him to a control over his own life and destiny? In other words, will it lead to Swaraj for the hungry and spiritually starving millions? Then you will find your doubt and your self melting away."

On 16 November, 1947, when Mahatma Gandhi was still alive and a guiding force for both the Congress and the country, the All India Congress Committee passed the following resolution: "Political independence having been achieved, the Congress must address itself to the next great task, namely, the establishment of real democracy in the country and a society based on social justice and equality. Such a society must provide every man and woman with equality of opportunity and freedom to work for the unfettered development of his or her personality. This can only be realised when democracy extends from the political to the social and the economic spheres."

How far this resolution was implemented by the Congress? How many present-day Congressmen will remember or care to recall such a resolution? After independence, the countiy was mostly ruled by the Congress. Even when there were non-Congress governments at the Centre, the government was headed by those

Reforming the Constitution 267 who were once Congressmen. While in power the Congress blamed the opposition for all its failures and while out of power it blamed those then in power. There is now a slight change in this sort of an attitude, but one cannot be sure as to how long it would last. The world is changing very fast. We must also change in the interest of our people at large. We must be able to restore to the common man control over his own life and destiny. He must be guaranteed work, food, clothing and shelter. Democracy must be made more realistic and meaningful for him, extending the political freedom to economic, social and moral freedom. Much above the present day ritualistic elections and manipulative politics, which cannot in itself be called democracy, each citizen should have a guaranteed participatory role in the governance of the country. For all this, we must have a new ly w ritten constitution. Just a few amendments managed by the ruling party, just like cosmetic surgery, will not suffice. No longer can we afford to be sentimental about a written document ignoring the hopes and aspirations of the majority of the people and their welfare. The Central Government must be called upon to announce its intention to have a new Constitutent Assembly without any further delay. A debate should start at all levels, right from the village panchayats upwards. It could be discussed at colleges and universities, trade unions and chambers of commerce, social and voluntary organisations and various political parties. Unlike in 1940s, now we have sophisticated electronic gadgets like computers which can feed us with reliable data. Also, we have professional people, who can gauge the will of the people. The draft once prepared could be thoroughly discussed at all levels before being given final shape and passed by the Constitutent Assembly. Such a constitution would ensure fundamental rights and corresponding duties for each citizen, village panchayats, city/municipal wards and councils, panchayat samitis, district councils, states, regional councils and finally the Central Government. Rights without corresponding duties and duties without corresponding rights are meaningless. No party at the Centre should be in a position to postpone state elections, nor should it be possible for any state to postpone district council and panchayat elections, merely for the ruling party's own political convenience. We must be able to evolve a constitutional

268 Reforming the Constitution mechanism where the foundations of democracy cannot be eroded or thwarted. With the announcement of formation of a new Constituent Assembly, all secessionist movements and armed struggles as well as manipulative politics would hopefully cease. People who had once taken up arms but agree to give them up should be allowed general amnesty and given an honourable opportunity to come back in the main stream of society for rebuilding the nation through constructive work. Also they could help the formation of a new constitution wherein their genuine aspirations are taken care of. No one other than police and military personnel, who are duty bound to protect each citizen and the country, should be permitted to possess lethal weapons of any kind. There could be local committees to vouch that official machinery like that of the police is not misused by any quarter and the citizens are not harassed or victimised. The energy of educated unemployed and underemployed men and women should be diverted and utilised to spread literacy so that during the 21st century we can avoid use of symbols for elections, political parties should assume a special responsibility for spreading literacy. This way we can create a general awareness of citizens' rights and duties and also help than understand the essence and spirit of the country's new constitution which they would have helped to frame. This is essential for constitutional stability and for democracy to survive and get strengthened. Aristotle's words in his famous treatise on Politics are worth recalling: 'The greatest of all the means. . .for ensuring the stability of constitutions—but which is nowadays generally neglected—is the education of citizens in the spirit of the constitution. . .Licentiousness may exist in a state as in individual persons.. .The education of a citizen in the spirit of his constitution does not consist in his doing the actions in which. . .the adherents of democracy might delight. It consists in doing the actions by which. . .a democracy will be enabled to survive. . .The democrat starts by assuming that justice consists in equality: he proceeds to identify equality with the sovereignty of the will of the masses; he ends with the view that 'liberty and equality' consist in 'doing what one likes'.. . This is a mean conception of liberty. To live by the rule of the constitution ought not to be regarded as slavery, but rather as salvation."

25 Plea for a New Constitution S. RAMACHANDRA RAO WE need a new constitution under which there is a directly elected Chief Executive, both at the Union and State levels, who appoints his own Ministers, a bicameral legislature with the Upper House representing professional groups, intellectuals, etc., an independent judiciary, a functioning election commission, a free press, free markets, unfettered industry, lucrative agriculture, guaranteed fundamental rights including the right to property and to employment, right of recall of representatives, full judicial review and ban on communal parties and appeals.

have a severely mauled constitution that has suffered W ethrough sixty-nine mutilations in four decades. We have

a Ninth Schedule that has more than two hundred and fifty acts passed by various legislatures apart from Parliament and a dozen of these were passed on a single day and these are now immune from any attack on constitutional grounds of violating its basic tenets. We have legislatures who valiantly fight for their privileges ignoring people's rights and courts who are sometimes more concerned about contempt laws than about the constitutional purpose of protecting the people and the Constitution. The executive has become literally a monster eating into the vitals of its own masters, the people. It is essential that political power should be controlled and contained for public good. We also need a group of experts and highly dedicated men who have a zeal to serve the people with

270 Reforming the Constitution an excellence that is alien to the present day professional politicians. W e have to learn our lessons from history and avoid

its pit-falls. Constitution should work for the benefit of all, while controlling muscle and money power. It should reach the people and provide succour to them rather than rattled citizens running to the constitution for help in distress. Fundamental rights including right to property and freedom of the Press should be guaranteed. There should be no preventive detentions as the liberty of a citizen is sacrosanct and he can only be punished in accordance with due process of law. There should be no class or caste or communal discrimin­ ation. All economically poor and weak should be entitled to equal protection and benefits from the State and the Government should stop creating its own new privileged classes. India should be a Federation of States with residuary powers vesting in parliament. But the Centre should have no power to dismiss any State Government and an inter-State council consisting of two elected representatives from each state sitting with ten elected representatives of the Central Legislature, should decide by simple majority all questions of national importance and these decisions should be binding on all concerned. The country should have one and only directive principle viz. to guarantee employment and while it should be justiciable the means and resources of the State should be considered and relief-oriented remedies devised. Election Commissioner should be appointed for a fixed term of 11 years by the Chief Justice of the Supreme Court. All election petitions should be settled by High Courts with one final appeal to Supreme Court. People should have the power to recall any legislator by a simple majority in the constituency by a written request of 1/20 of that constituency's electorate. Any judge involved in corruption or in acts of moral turpitude or misbehaviour should be suspended from the office by the Head of the State pending enquiry as per the advice of five Judges of the Supreme Court headed by the Chief Justice of India. The privileges of legislators and the powers of courts in contempt cases should be subject to citizen's fundamental rights. No government clearances should be necessary for

Reforming the Constitution 271 establishing any business, industry or activity unless deleterious results are involved. The police and paramilitary forces should be under the control of and answerable and subordinate to the judiciary and relatively independent of the executive. In the absence of vigilant electorate it is necessary to have a powerful people's press and constitutional courts to protect the people. The Judiciary should eliminate procedural laws and should strive for quick remedial relief to the citizens basically upholding justice. Courts of law should become courts of Justice. Based on our experience of working the present constitution, we need to devise a new constitution* The salient features of the new constitution may be as follows: First, we should have a directly elected head of State answerable to the people of India or the State. Rashtrapati at the Centre and Rajpal at the States level to function as the Chief Executive and appoint any persons as his ministers. He should not be dependent on legislature for day to day survival so that he can initiate policies and honestly execute them with the assistance of a cabinet that is answerable to him. Secondly, we should have a bi-cameral legislature with equal powers to both the Houses—one representing greater wisdom and the other popular mandate. The Upper Houses should also have functional representation of professional groups and should include intellectuals of eminence and integrity. Creative thinkers and popular leaders should work together for bettering the lot of the people. Thirdly, an independent judiciary manned by upright judges and lawyers of eminence and independence should function as an instrument of Justice and as a balancing wheel in the constitutional machinery for enforcement of constitutional rights and remedies. Fourthly, we should have a proper and functioning election commission, a free press, free markets, unfettered industry and lucrative agriculture. Fifthly, the basic rights of citizens in a free democratic *Seg S.. Ramachandra Rao, People's Constitution for Citizens by a Citizen, Hyderabad.

272 Reforming the Constitution country should be held inviolate, even though enough flexibility should be assured to meet the functional needs of a working constitution, as after all the ultimate sovereign are the people only. Sixthly, the peoples' representatives should be made answerable to them by engrafting the right of recall of the legislators by the people. This is nothing but responsive and responsible representation. Seventhly, full employment and firm executive action alone can eliminate terrorism, regionalism, communalism and other fissiparous tendencies. To sum up, there should be no special laws protected by a constitutional umbrella of immunity from judicial and constitutional relief, the police should be subordinate and answerable to the Judiciary and free from executive control; constitution should provide no special protection to officials; ordinance making power should be scrapped; full employment should be guaranteed; and no religious parties or communal, linguistic or religions appeals should be allowed. Constitutions spring up always with the ritual of citing people as authors and ultimate authority for their origin, even though in reality people are innocent of the process of the said constitutional creation. It is therefore most desirable that any proposals for a new constitution should be considered carefully by the citizens who should think, debate and consider the proposals before the authorities are finally constrained to convoke a Constituent Assembly of the new generation who are certainly entitled to give a fresh look to the old and venerable constitution given by the founding fathers.

26 Reconstitution of Indian Polity P.R. DUBHASHI SHORTCOMINGS of Indian polity could be removed through suitable constitutional amendments. Use of money and muscle power, caste and communal prejudices and public machinery at the time of elections has tended to destroy Indian democracy. During elections, President's rule should prevail in all States. Communal parties should be banned. All parties should have regular internal elections and audit of their finances. Under the present electoral system a party may get majority of seats with minority electoral support. This system should be replaced by a more satisfactory but easy to operate system. Constitutional changes should be brought about to ensure a stable govern­ ment for the full five-year term. This can be done by introducing the German procedure of 'Constructive Vote of No Confidence' and by providing for President's rule at the Centre with a Council of Ministers headed by the VicePresident. Time has come to set up a new Constituted Assembly of elected representatives and experts to have a close look at the constitution in the light of experience gained and suggest changes including those in the area of basic features.

democracy has passed through a period of crises. 1989 Ithendian elections led to the situation where no party had a majority in Lok Sabha to form a government. The Congress, though still the largest, declined the invitation; the next largest combine viz. the National Front came to power with the outside support of B.J.P. and the Leftist parties. The goodwill for the non-Congress

274 Reforming the Constitution combine in the country was such that it was felt that the National Front Government would be able to carry on for a full period of five years. However, within a few months of assumption of office, bickerings started within the Janata Dal and in the attempt to counter his deputy and to capture vote banks through populist and radical postures, Prime Minister, V.P. Singh lost the "outside support" of B.J.P. This led to greater anamoly in that a party which had no more than 54 MPs and which was in fact a breakaway group of Janata Dal formed a government with the support of the Congress party. As was only to be expected, the government could not last long. General elections had to be held in less than one and half years. To prevent agony of general elections so soon after the 1989 exercise, the President of India himself explored the possibility of forming of National government but that proved to be a non-starter and fresh elections had to be gone through. The 1991 elections turned out to be the most violent involving, on a large scale, gun battles, booth capturing and rigging especially in Bihar and U.P. The violence ultimately culminated in the dastardly assassination of Rajiv Gandhi in the midst of the election process itself. The Election Commission postponed remaining part of the election by three weeks. This virtually turned 1991 election into two elections and led to protests from several parties to the Election Commission. As was expected, there was a definite change in the election atmosphere following Rajiv's assassination appropriately described as the "sympathy wave", which doubtless affected the outcome of the election. However, it was feared that despite all the expense and trouble of the general election, the nation would still be faced with a hung Parliament. The fear came true. Despite the hung Parliament, the situation was not as bad or unstable as it could have been. Though not in majority, Congress and its allies were almost near it with B.J.P. on the right and the National Front and its allies on the left each with about 120 seats. The Leftist Parties promised "constructive support", whatever that might be and the B.J.P. also promised to support the government in the "national interest", depending, of course, on the policies of government, thus putting the onus on the ruling party! For some time the choice of leadership of the Congress party in Parliament itself became a matter of tension and uncertainty

Reforming the Constitution 275 with Pawar staking his claim by insisting on the election of the leader through secret ballot. However, after some period of anxiety, the party unanimously resolved to elect Narashimha Rao as the leader of the Congress party, who after being called upon by the President to be the Prime Minister, lost no time in forming a full-fledged government with fourteen cabinet ministers, fourteen ministers of State with independent portfolios, nineteen ministers of State without independent portfolios and six deputy ministers. Most of them had been ministers before and their previous experience could be expected to provide a reasonable government under the experienced leadership of Narasimha Rao. The manner in which the Indian Parliamentary Democracy survived a severe political crisis is bound to raise India's prestige in the eyes of the world. Newspapers like the New York Times in U.S.A. and in Germany have predicted dark future for Indian democracy and its dis-integration. This, of course, is in tune with the predilections and writings of western writers and thinkers in the past also. Not having sufficient understanding of the underlying unity of India, they tend to exaggerate the forces of disruption, which, of course, have always existed. Three decades ago Selig Harrison spoke of the sixties in India as the most dangerous decade and similar forebodings are being indicated now. We need not place much reliance on these prophets of woe. Despite the minority government, we can confidently look forward to a smooth functioning of the Indian government in the next few years, because opposition parties though saying that they would support the government as long as it follows proper policies, would at the same time be reluctant to bring down the minority government and force general elections because all parties dread the prospect of midterm poll and the party which forces yet another general election is bound to be the target of the wrath of the people. In a way the situation of Indian democracy as it stands today may well be considered to be a normal situation while what existed in the past, specially during the period of one party, one person domination is bound to be considered, in the historical context as only an aberration. If charismatic leadership, the delusion of grandeur, the dynastic rule, the influence of a manipulating coterie and the palace intrigues give way to open

276 Reforming the Constitution compromises and consultations between politicians from different parts of the country and coalition of different sorts between the leftist and rightist parties (though the terms leftist and rightist may have changing connotations at different times), it is bound to be considered a normal pattern of Parliamentary democracy in our country. The singular contribution of 1991 elections is the emergence of a non-U.P. personality as the Prime Minister in India. In the situation of Indian politics, it was difficult to imagine a non-U.P. politician ever becoming the Prime Minister of India but the peculiar results of 1991 elections have made this possible. This would greatly contribute to the strengthening of India's federal polity. The possibility of a Prime Minister from South is bound to strengthen the stakes of the South in the Central Government. To add to this, the absence of a dominating personality imposing its political will on the Chief Ministers in different States in India is bound to increase the capacity to bear responsi-bilities in the States and promote healthy relations between the Centre and the States as envisaged in India's constitution. The absence of a charismatic, dominating personality as Prime Minister would also have a wholesome effect on the working of the Central Govern­ ment. In recent years because of such domination, the cabinet government became virtually the Prime Ministerial government with its unhealthy impact on the working of the Central Government. In a Cabinet Government, the Prime Minister is primus inter pares—the first among equals. With Narasimha Rao as Prime Minister, if this happens, as is likely, the Cabinet Government will start functioning in a normal manner on the basis of individual and collective responsibility. Another welcome outcome of 1991 election which would go to strengthen Indian polity is the set back aggressive regionalism, in different forms, has received in Assam, Tamil Nadu, Maharashtra, Haryana and Goa. Forces behind the regionalist tendencies would now have to relate themselves to a national perspective. The General Elections are also a vote against lawlessness and violence and those responsible for it. This includes those who perpetrated state violence on the people. While India may breathe a sigh of relief at these develop­ ments, the working of India's polity has to be seen in a long term perspective. From time to time, some of our constitutional and

Reforming the Constitution 277 political thinkers have thought of changing from Parliamentary democracy to Presidential democracy. The founding fathers of the constitution had favoured Parliamentary democracy because the Presidential democracy of the U.S.A. type was not familiar to India and the model of British democracy—the Westminster model was considered to be the only choice for India. At the time of India emerging to independence, Indian politicians had the experience of running elected governments in the provinces. They had also participated in the Central Legislative Assembly. Independent India, with the availability of stalwarts familiar with Parliamentary democracy could, therefore, easily start working with the institutions of Parliamentary democracy. However, in the face of difficulties which the Indian polity has gone through in the recent years, many constitutional thinkers have proposed the replacement of Parliamentary democracy with Presidential democracy. With the outcome of 1991 election, the talk of switching on the Presidential form of democracy is likely to subside. However, this is precisely the time when the comparative merits of the two systems could be considered in a calm atmosphere. Presidential democracy has its own difficulties. The Presidential system is based on the separation of the Executive from the Legislature. Consequently, the President has to face constant difficulty in pushing his legislative programme and even in getting clearance for various high level appointments. Not too long in the past, US.A. found itself in a situation where the very normal working of the federal government got into a jeopardy in the absence of funds sanctioned by the Congress and the situation was saved only at the last moment. Separation of the Executive from the Legislature as envisaged in the Presidential system is not quite conducive to a smooth functioning of the government. Moreover the concentration of power in the hands of the President as envisaged in the Presidential system may lead to dictatorial tendencies with unpredictable consequences. This tendency may not merge or prevail in U.S.A. but cannot be ruled out in India. The type of Presidential working system in France may not also have much to commend itself. France had to go through an uncomfortable period when there was a tortuous "co-habitation" of a socialist President and a Gaullist Prime Minister. The right and proper course of action, therefore, would be to consider whether the shortcomings of Indian Parliamentary Democracy

278 Reforming the Constitution could be removed in the light of experience through suitable constitutional amendments. Free and fair election constitute the foundation of Parliamentary Democracy. However, four factors have tended to destroy the very foundation viz. increase in use of money power and muscle power at the time of election, incitement to caste and communal prejudices of the voters and misuse of public machinery. Bribing the voters by making offers of money or gifts has been an old pheno-menon for quite some time now. It is in order to prevent this, that the Representation of People's Act envisages limits on expenditure by every candidate standing for election. Every candidate has to give a certificate after the elections to the effect that the statutory limits to expenditure have been observed. However, it has been widely acknowledged that these limits are hardly observed in practice. And, the Election Commission itself has admitted that the rules laid down under the Representation of the People's Act for limiting election expenditure have been violated. The use of money power has enormously increased with the emergence of the phenomenon of black money. It was openly said during the last general election that Rs. 50 lakhs to one crore had to be spent by eveiy candidate standing for Parliamentary elections. In order to prevent this abuse, it has been suggested many times that we should follow the example of the Scandinavian countries, where the state bears the election expenses for all candidates and hence no private expenditure by any candidate is allowed. However, in our country, the proposal has not been accepted so far, mainly because of the enormous burden it is likely to throw on the public exchequer. There is also the lurking fear that while the public exchequer will bear the burden, private expenditure by the candidates themselves could not be ruled out! Allied to money power is muscle power. Allied to the black economy and working in tendem with it, is the growing criminalisation of Indian politics which manifests itself at the time of elections in the form of booth capturing, rigging and gun battles between rival gangs working on behalf of the candidates. It has been reported during the 1991 elections that all these were the orders of the day in many constituencies in Bihar and U.P. Nalini Singh shocked the audience by presenting on the television the actual process of booth capturing. The blatant use of muscle

Reforming the Constitution 279 power makes a mockery of free and fair elections and though confined largely to Bihar and U.P. at present, the menace can spread over other parts of the country, if not vigorously handled at this stage itself. The appeal to caste and communal prejudices has been going on since the very start of Indian Democracy, though these appeals are getting more and more strindent as time has passed on. Caste and communal factors are always taken into account by all parties in the selection of candidates having regard to composition of the electorate. Parties with communal denominations like the Akali Dal, Indian Muslim League, the Hindu Mahasabha or the Kerala Congress are out and out based on communal consi­ derations. But these appeals became much sharper during the last elections with the Mandir and the Mandal issues getting overwhelming prominence. The audio casettes of Sadhvi Ritambhara were the high water mark of the communal propaganda. Secularism has been never fully understood in India any time and it was swept off during the last election by virulent communal and caste propa-ganda in many parts of India. Money power, muscle power, and caste and communal prejudices constitute the three great challenges before India's Parliamentary Democracy. The only way to get control over these factors is to vigorously enforce the provisions of the Represent­ ations of the People's Act. What comes in the way of a strict enforcement is the fact that the Chief Election Commissioner who has to enforce this election has to act through the agency of the state officials and these agencies are accountable to those very authorities of the State who are responsible for the precipitation of these factors. Over and above these factors is the gross abuse of the State machinery by governments in power and not only by bestowing bonanza of benefits for individuals and groups but also by using government servants for party purposes even though this is specifically banned not only under Representation of People's Act but also under Government Servants' Conduct Rules. All the violations of law which come in the way of free and fair elections can be eliminated if from the time from which the electoral process starts till the results are declared the rule of the State Government is replaced by the President's rule. This would then enable the Chief Election Commissioner to hold the Chief

280 Reforming the Constitution Election Officers and the Returning Officers to account for strict enforcement of the provisions of the Representation of the People's Act It is also necessary to provide for constitutional safeguards against parties which get votes in the name of caste and community. The constitution, at present has no article, relating to the most important participants in the political process viz. political parties. It is high time that the constitution bans all parties with communal denominations and requires all parties to have regular internal elections and audit of their finances. Another shortcoming of the Indian Parliamentary Demo­ cracy is the persistent disparity of votes received by various political parties and the seats captured by them in Parliament under our "first past the post system" of elections. As a result of this, with minority electoral support, parties have been able to get huge majority of seats in the Legislature. In the past, the Congress party was the main beneficiary of this phenomenon. There has been a long-time demand, therefore, of the main opposition parties and their leaders, for some form of proportional representation based either on multi-member constituecies with single transferable vote or on the 'list system". These systems are prevailing in Europe and can be examined by experts of the election system for adoption in India. A system which is easy to operate can be adopted in India and could then be the basis of Parliamentary Democracy where parliament reflects the popular will. The purpose of Parliamentary elections is to form a coherent government which is accountable to it. The phenomenon of hung Parliament has made it difficult for any party to form a government which could be viable and would last for five years. Where one party viz. the Congress had an overwhelming position in Indian politics, there was no difficulty at all in forming government. However, one party dominance was not considered healthy and it was expected that in course of time a viable opposition party as an alternative to the Congress would evolve in the country; but that has not happened. The parties on the left from the pink Socialists to red communists were unable to develop as a strong nationwide alternative. Rajgopalachari started a new party on the right viz. the Swatantra Party but, it soon ceased to exist. Dr. Shyama Prasad Mukherjee brought into existence Bharatiya Jana Sangh which has now taken the form of Bharatiya

Reforming the Constitution 281 Janata Party. The 1977 elections saw the emergence of the Janata Party under the inspiration of Jai Prakash Narayan. After many transformations of this party we have now the Janata Dal and the Samajwadi Janata Party. In addition to these, there are a number of regional parties like the Telegu Desham, the D.M.K., A.D.M.K., Haryana Vikas Manch, Jharkhand Mukti Morcha, etc. The existence of a number of parties has meant the absence of a two party system of the sort existing in U.K. which makes the phenomenon of a hung Parliament less likely. In India, it is dear that we may have to live with a multiplicity of parties and the consequent possibility, indeed probability of elections bringing into existence a House with no party having an absolute majority. In such a situation, coalition government would be a normal phenomenon. But, in India, instead of the coalition, both after the 1989 and 1991 general elections, we got minority governments which were much more vulnerable to no-confidence motions than coalition governments. If minority governments become short­ lived, India would be faced with a constant need for premature elections at short intervals. A country as desparately poor as India, can hardly afford the enormous expenses involved in such elections. Even rich countries cannot afford such election expenses. The price has to be paid not only in conducting elections, but in terms of instability which would make it impossible for India to have a stable government with coherent long term policies. Frequent changes in government would make sustained policies and approaches in government impossible. As Dr. Bimal Jalan has recently pointed out in course of an interview—"Every time there was a political change, the work of ministries came to standstill for 3 to 4 months. In such a situation, economic crisis is inevitable. It is obvious that constitutional provisions will have to be made to ensure that the country gets a stable government for a full period of five years between two general elections. One way of doing this is to introduce the German constitutional provision of "constructive vote of no-confidence" which makes it impossible for the Lok Sabha to pass a vote of no-confidence without simultaneously electing another government with a majority support in the House. Till an alternative leader capable of gaining confidence of the House is elected, government in power would not be disturbed. In case the Parliament is caught in an imbroglio, where no party or coalition of parties can form

282 Reforming the Constitution the government, the constitution must provide for the President's rule at the Centre till the Parliament is in a position to form a viable coalition. The President would carry on his rule with a Council of Ministers of his choice headed by the Vice-President of India. This may appear to be a serious departure from a system of Parliamentary Democracy, but taking into account the kind of situation in which we have found ourselves in recent times, this combination of Parliamentary government with Presidential government as a stand-by arrangement seems inevitable. Afterall, when the government of V.P. Singh fell, the possibility of the President making the Vice-President the Prime Minister of India was discussed in the country. If this type of arrangement finds place in a constitutional provision, it would be quite a workable arrangement. Even more serious is the phenomenon of the decline of Parliament over the years. At one time, Parliament was considered to be the mirror of public opinion in the country, the forum of discussion on national issues and therefore, the pulse of the nation. Jawaharlal Nehru gave great importance to Parliament and made it a point to be present in Houses of Parliament during all important debates and discussions. However, with the passage of years, the Parliament was no longer taken seriously. Even with the overwhelming majority of Rajiv Gandhi's Government or perhaps because of it, Parliament had lost its authority. This has many reasons and manifestations such as poor attendance, reduction in the duration of Parliamentary sessions, the domination of the executive over Parliamentary business, and above all, the absence of the Prime Minister in the Houses of Parliament on important occasions. Discussions on the budget have become a mockery. Many demands for grants were passed without any discussion whatsoever. M.Ps who put questions would be absent on the days the questions were listed for answer during the question hour. The nadir was reached on the last day of the Chandrashekhar government, when several budgets and bills were passed in course of a single day without any serious discussion. Parliamentary democracy would have no meaning unless Parliament is restored to the position due to it as envisaged in the constitution. This is not a matter of constitutional amendment, but depends on the behaviour of the Prime Minister and his

Reforming the Constitution 283 colleagues as well as the membrs of Parliament. Perhaps, one of the factors which led to decline of Parliament was the huge majority won by Rajiv Gandhi. A Government with slim majority or a minority government is unlikely to take Parliament for granted. One way of arresting the decline of Parliament is to attach greater significance to the working of the Parliamentary committees such as the Public Accounts Committee, and the Committee of Public Undertakings, apart from the Consultative Committees. The work of the Public Accounts Committee is mainly based on the report of the Comptroller and Auditor General and provides some opportunities to the members of Parliament to have a close look at public expenditure and public revenue. However, on government side, the meetings of the Committee are attended by dvil servants and not by ministers. It would be a good idea if a new tradition is established and the Minister himself attends the meetings of the Public Accounts Committee. The proceedings of the Public Accounts Committee can ensure not only audit of the past, but provide guidelines for the future in terms of "greater value for money spent". Ministers no doubt, attend the Consultative Committee meetings, but these tend to be somewhat unsystematic and cover only a few subjects pertaining to the ministry depending on the agenda framed for the meetings of these committees. These committees could make a systematic review of plans, programmes and policies of the Ministries and make constructive suggestions in a long term perspective. However, this would require serious study and effort on the part of the M.Ps. Compared with the Senators and Members of the Congress of the U.S.A., our M.Ps. take much less interest in systematic study of public affairs based on research. The M.Ps in India could be provided with the kind of research support which the Senators in U.S.A. have. This, of course, would have a meaning only if M.Ps themselves consider this as a worthwhile arrangement. The working of the Cabinet Government also needs to be reformed. Cabinet is the fulcrum of Parliament. Parliament depends on the Cabinet to take initiative to introduce new legislation and policies. Policy making is crucial in the working of the government and the destiny of the people. Policies should be based on a constant assessment of environment, identification

284 Reforming the Constitution o f emerging problems, a search for alternative solutions, choice of optimum policy approaches and adoption of measures calculated to deal adequately with the challenges faced by the nation. The policies should be dearly spelt out in terms of implementation and impact. Policy making function in India has greatly suffered. The polities have tended to be ad hoc and fitful, and not steady and consistent. In the early critical years of India as an independent nation, it was Jawaharlal Nehru who was able to provide a comprehensive framework of polities such as those related to planning and development, mixed economy, growth of public sector, evolving institutions for agricultural and rural development, like cooperatives and panchayati raj, importance of education from primary to university level, and the external policies such as the policy of non-alignment. Jawaharlal Nehru, as could be seen from his five volumes of letters to the Chief Ministers, was "one person think tank" for policy making in government. In these letters we find the Prime Minister comprehensively surveying the entire scene, identifying crucial problems and possible solutions, calmly weighing the pros and cons and providing the direction for policy formulation. After his death, polities have tended to be populist with an eye more on the vote bank than on the real long-term welfare of the nation. There has been a total change in the political, economic and external environment since Nehru's days and the policy structure, so thoughtfully built by him, now needs to be considered de novo and root and branch changes in the whole range of policies need to be introduced. If a "one man think tank" in the person of the Prime Minister is no longer possible, the alternative is to set up a policy making group in the Cabinet as well as individual ministries, constantly engaged in preparing policy papers related both to monitoring of the past policies and initiative to evolve fresh policy approaches. In a country as complicated as India with constant pressure of challenges of all sorts, strengthening of the policy making machinery is an important part of the reconstitution of the Indian polity. Indian constitution was framed by a Constitutent Assembly in which legal luminaries had the benefit of experience of other countries and only a vague awareness of the hopes and aspirations of the Indian people which had found only a mute articulation. Forty-five years after independence, time has now come to set

Reforming the Constitution 285 up a new Constituent Assembly consisting of both the elected representatives of the people and experts and thinkers from various walks of national life who should have a close look at the working of Indian polity and the constitutional machinery and introduce in the light of experience of the last forty two years, of the working of the constitution necessary amendments and modifications in all aspects not excluding those which, without precise definition, are called the basic structure of the constitution. The suggestions made in course of the article are some of those which such a Constituent Assembly might well consider.

27 Constitutional Culture and Democratic Ethos as Ingredients of Constitutional Reform G.R.S. RAO THE objectives of the constitution envisioned by the founding fathers are still valid. They could not be achieved because we lack constitutional culture. The factors that constitute and contribute to constitutional culture are: (1) complemen­ tarity and not confrontation of institutions, (2) autonomy of institutions coupled with accountability for performance, (3) decentralisation of power and popular grassroots participation in decision making, (4) democratic ethic, and (5) politicization as a process of service to society, as a process of articulating and harmonizing the diverse and conflicting interests. Constitution was for elimination of castes and not their perpetuation. Politics has to be looked upon as means of service and not of power to be acquired and retained at all costs. Politicization must harmonise and not divide.

hat does constitutional reform connote? To answer this question, we have to find out what is the function of a constitution? In the Indian context, constitution is a blueprint designed to bring about social transformation, in an orderly fashion. The substance of social transformation i.e. the objectives of society and the process by which these objectives have to be achieved have been envisioned and incorporated into the constitution by the founding fathers. In this background does constitutional reform mean

Reforming the Constitution 287 changing the ends as well as the means envisioned, or only the ends, or the means alone? This is a crucial question because if the ends are accepted as valid and adequate even today then reform only means making the constitution work the way it was intended. That is, making the constitutional process a bit more productive and efficacious in translating the objectives envisioned, may be at an accelerated pace. This would imply that there are some factors operating in the Indian context which are impeding the constitution at work. These factors can be seen, perhaps for the purpose of an analysis, as those that are within the constitution or those that are outside of it, the social, political, economic, cultural, environmental, emerging from the national or international context. So when we talk of constitutional reform, questions of the end objectives and the mechanisms by which these have to be achieved, and the environment within which the constitution is operating would come up for consideration. This paper is based on the premise that the end objectives envisioned by the founding fathers and the process by which the objectives have to be achieved continue to be adequate and relevant even today, perhaps more today than when they were envisioned more than four decades ago. Thus it seeks to focus attention on the environment within which the Constitution of India has been working, with the basic question as to why the constitution has not been able to perform, has not been able to yield the results (the mission, the goals, the objectives) that were envisioned and assigned? The cardinal postulate is that we lack, in enough measure, what we might call the constitutional culture. Indian Constitution has been evolved by the founding fathers as a high yielding variety of seed. We have failed in creating appropriate soil conditions, irrigation management, providing the nutrients and pest management. When a sophisticated constitution is operated sans the constitutional culture, it invariably leads to distortions, and occasionally disrupts democratic process. The result may be mobocracy or anarchy. It is the method by which any society seeks to renew itself; it may not be the most efficient method, but where there is no option of comparative efficiency, where a given scheme of things reaches a point of break-down, not merely failure, the painful agonising process of re-establishing social order—a new order—begins anew. The current debate on the

288 Reforming the Constitution Indian constitution and popular demands for reform, radical change and an altogether new constitution through a consembly reflect popular dissatisfaction with the present constitution and its working. Can a second constitution succeed where the first one failed. Can a constitution generate conditions—the constitutional culture—for it to succeed.? As the human society is at the threshold of the 21st century, the spirit of democracy, but not merely its form, is being revived and renewed all over, on a global scale. Where it is well entrenched, it is striking deeper roots. In the background of such an emerging global scenario, Indian debate on constitutional reform should not be confined, much less reduced to "what changes", but should also take cognizance of environmental conditions that either warrant or condition such reform, or change. Viewed thus, what India needs today is not merely reform or change in the constitution, but also, more so, cultivation of conditions for a constitution to work—a constitutional culture— and the democratic ethic. Indian democracy and constitutional culture are strong enough to repel any attempts at destroying either. Even the anarchists are asking for a constitution with radical changes, and for rapid social change. But if the debates on constitutional reform and social change are not concluded fast enough, it would have a deleterious impact on democracy in India. In the background of the major premise that what India needs today is not constitutional reform as much as constitutional culture, which includes restoration and rejuvenation of the democratic ethic, one can identify, essentially five sets of factors that constitute and contribute to constitutional culture. They are: (1) complementarity of a network of institutions; (2) autonomy of the network of institutions with accountability for performance; (3) decentralisation of power with popular participation in the decision-making process and involvement in the process of development; (4) democratic ethic, a permeation of the sense of egality, voluntarism in place of coercion, respect for human rights etc.; and finally (5) politicization as a process of service to the society, as a process of articulating and harmonizing the diverse and occasionally conflicting interests and harmonizing them with reference to a set of values in bringing about social transformation for all these five sets of factors to flourish. The ground realities warrant a close, critical analysis.

Reforming the Constitution 289 Indian Constitution provides for a network of institutions charged with different tasks but complementary roles and common constitutional goals. This network comprises three major instrumentalities of state viz., legislature, executive and the judidaiy on the horizontal plane; the Centre, the States and local units of self-government on the vertical plane, and clearly envisaged and assigned critical tasks to the Fourth and Fifth Estates, the media, and the people's organisations called the NonGovernmental Development Organizations (NGDOs). This network having complex ramifications, has been inter-related in terms of different tasks but common constitutional goals. The constitution has assigned different roles/tasks to the wide range of institutions comprising the network, and has thus recognised that the roles of all units are important, each one in its own place and that its productivity depends upon all the units working in unison. There is no differentiation in terms of higher or lower, superior or subordinate, strong or weak, no hierarchy among the institutions. There is certainly a measure of built-in creative tension among the institutions but the creativity is lost sight of, and only tension is evident for a variety of reasons. In the Indian context, the constitutional culture of complementarity is clearly distorted if not destroyed by mix-up between (a) individuals and institutions, (b) State, Government and Political Party, (c) power, authority and accountability and a variety of others. This mix-up has not been resolved in tune with the spirit of the constitution, but on the other hand the constitution has been projected as the source of conflict and consequently either amended or attempted to be amended. Several constitutional deadlocks have been generated. Debates have centred round 'strong-States' versus 'strong-Centre' as though it was the constitution that assigned weightages to different units on the scale ranging from weakest to the strongest The constitutional culture as it is obtaining today in India projects Union as the strongest and the most powerful, resourceful etc., the States dependent upon the mercies and resources from the Union, and the local units almost as of no consequence—for decades they can be kept on a 'hold' by the States. This was as much confessed by two Chief Ministers who observed on two different occasions that "the Centre treats Chief Ministers like Chairmen of Municipal

290 Reforming the Constitution Corporations" thus unwittingly confessing how they treat Municipal Chairmen. In fact, a culture of versus has already resulted in a culture of conflict; it is tending to grow a culture of confrontation. Consequently, today we have problems that are heating up the constitutional machine. Problems like legislature vs judiciary, judiciary vs executive; executive vs legislature and the like. It is not by any means confined to only the three legislature, judiciary and executive. The same type of tension of the counter-productive type is generated at different levels. If we go into the ramifications, we find that this culture of hierarchy, control and confrontation rather than complementarity is also seen between ministries, between services like IPS vs IAS, and the like, in an all-pervasive manner. This is the result of 'power' orientation among leaders of various institutions, and irreverence to the spirit of the constitution. The complementarity can also be seen from another angle. The network of institutions have been assigned different tasks in the game of constitutional democracy, the objective being social transformation. It is like a game where we have the players, we have a set of rules, we have umpires, linesmen and the most important the spectators, the citizens of India. In a democracy there are no winners and losers, all must win, i.e. a fair play is more critical than winning or losing, the rules of the game having been accorded supremacy. In the constitutional game, we have the players (politicians), the linesmen (CAG, Election Commission, etc.) and the umpires (the President, the Governor, the Speaker etc.). But, critics of the constitution at work have analysed how we have witnessed a number of times motivated umpiring, linesmen giving wrong calls, players playing foul and spectators, the people of India, swarming the democratic grounds. To the credit of the citizens of India, we must say, the cardinal strength of Indian democracy lies in the so-called poverty-stricken, illiterate citizens who have proved themselves that they are alert, aware and wanting and warning that the game be played in a fair manner. If there is foul play, they are willing to take law into their hands and provide correctives. Indeed they did provide not once, but a number of times, the correctives to democracy and constitutionalism in India. The complementarity among institutions has to be resolved

Reforming the Constitution 291 in terms of relative roles, and common constitutional objectives and goals assigned. No institution, not even the Supreme Court of India, which is assigned the task of the constitutional court, is above the constitution. It is a part of the constitution, like all others. Autonomy of institutions provided for the various institutions in the constitutional scheme is neither absolute, nor can it be seen in isolation. Autonomy and accountability are two sides of the same coin. Autonomy sans accountability for performance and result has been the bane of constitutionalism in India. Autonomy can be seen in a variety of ways, at different levels. Inadequate autonomy and utter lack of accountability of administration has been the major impediment to the operation and sustenance of constitutional culture in India. Whether it is a statutory corporation, administrative unit or a so called 'autonomous' Commission, accountability is diluted by external political interference and internal corruption of varying types, often with a clear nexus between the two. In the Indian context, both individuals and institutions suffer from inadequate autonomy and utter lack of accountability for results and performance expected of them by the constitution. The inadequate autonomy and accountability manifest themselves in a variety of ways with reference to different institutions: the Comptroller and Auditor General, the Election Commission, the Reserve Bank, the police etc., and whoever talks of autonomy for universities today? In less than forty years, we have destroyed the statutory as well as social accountability of the institutions. Individual functionaries and institutions are conditioned to the comforts of inadequate autonomy and accountability as they provide an alibi for non-performance, or low levels of productivity. In the wake of the New Economic Policy and liberalization of 1991-92 vintage, the 'economy* has been linked to a 'tiger' that refuses to come out into the open as it is conditioned to the 'comforts' of life in a cage. Similarly, referring to the political interference as a factor that has diluted administrative accountability, several analysts have very appropriately commented that it is more often the 'politicians' within the administration who negate organizational productivity and accountability.

292 Reforming the Constitution The Fourth Estate— the print-media—has played a significant role. It not only resisted several modes to thwart its autonomy and succeeded in retaining its aura and role, but registered even more significantly its efficacy in protecting and nurturing constitutional culture. In spite of universal agreement among the political parties of the need to provide autonomy for the electronic media, it is still caught in the clutches of ruling parties and of bureaucracy. Devoid of accountability to society, the electronic media has fallen into disrepute and it is a question of time before the people agitate for its effective autonomy and accountable performance. The third component of constitutional culture can be seen as the nature, extent and quality of 'participation' by the people. We have not been able to facilitate and ensure percolation of political freedom to the lower levels, the District, the Panchayat Samiti or Gram Sabhas. It is in this context of ever increasing degrees of centralisation that the movement for decentralised democratic development in the country is assuming the shape of the second war of Independence. The war is on but like it happened with the foreign rulers, it is happening with the rulers at the national and the

State levels today—a measure of resistance in facilitating the percolation of political freedom. Denied participation, the citizens at the grassroots are developing a measure of tension, crystallising in the form of alienation. We need to see whether this tension is going to be creative or counter-productive. In the short-run there are several visible symptoms of alienation and its counter­ productive impact on constitutionalism. Decentralisation essentially means and facilitates lessening of governance, of centralisation, of bureaucratization, of corruption. It leads to more of self-reliant development. It is a means as well as an end objective. The adverse consequences of extensive bureaucratization and centralization for constitutional culture have to be seen at different levels—political, adminis­ trative, economic, social and cultural. Indeed there is no need for a fresh provision or an amend­ ment of the constitution. The constitution has already mandated by virtue of article 40 that we need to set in motion people's participation through units of local self-government. If followu d legislation is needed, it lies in the realms of States. The

Reforming the Constitution 293 proposed constitutional amendment/s only reflect the tendency to centralise decision-making even in regard to matters such as decentralization. Viewed from an entirely different angle, even the Government of India, have admitted that the inadequate participative process has been the prime reason for the deficiencies in development. It took seven Five Year Plans, more than thirty five years, for us to recognise and explicitly admit that the process of social transformation has not taken roots as envisioned by the constitution primarily due to inadequate participation. The Planning Commission and almost all the political parties have conceded that without decentralised participative processes it would be difficult to progress on the path of social transformation. The fourth area of constitutional culture could be seen in terms of democratic ethic that needs to permeate all sections of society and all the institutions within the boundaries of Indian Republic. The absence of 'democratic ethic7 can be seen more glaringly at the level of political parties who are the managers of the Republic, who themselves do not have internal democracy. In its place what we witness is internal autocracy assuming the proportions of dictatorship. Even the so called anti defection provisions legislated in the hope of promoting democratic ethic have only resulted, for a variety of reasons, in internal autocracy. Political parties in India have not established a positive image and respect for democratic conventions. Indeed the more successful democracies all over the globe throughout history have flourished on conventions. In place of conventions, India has developed a proneness to regulate through constitutional amendments and centralised statutory provisions. Whenever we encountered a problem, we ran to the legislature to amend the constitution, without even analysing clearly the cause and effect relationship, and possible implications of judicial review. Indeed, atleast on two occasions, the ruling party rushed with constitutional amendments in order to gain 'popularity and wished that the judiciary will negate them. In spite of sixty-nine amendments in forty-two years, like nowhere-else in the world, we still find people and political parties asking for constitutional reform and a second constitution. In the 100 years between 1847 and 1947, India had added

294 Reforming the Constitution about 400 pieces of legislation, but in the first forty years of our Republic we enacted about 4000 pieces of legislation. Are we any better for the massive volume of legislation? Certainly not. We have became more illegal, unconstitutional for we never cared for implementation of legislation. Even the administrators and the judiciary have been found not to be fully aware of the legislation they are supposed to be implementing. There has been a predo-minant disposition towards legislating rather than bringing about social transformation through the non-legal democratic mode, through conventions and codes of discipline. The absence of democratic ethic is evident in a variety of ways, at the level of institutions. We have literally debauched the concept of cooperatives. The cooperatives in India today are nothing but extended units of centralised bureaucracy. They are not seen as people's organizations, as a part of democratic process. At every level they are seen as the means for power—political, economic and social. The democratic ethic has taken the beating in regard to the legitimization of democratic process; in the vital process of democracy viz., the electoral process, the process that lends legitimacy, nourishment, and renewal. The electoral process is reduced to muscle power and money power. Money and muscle power has overtaken democratic process, convicts and murderers drive the good candidates out, enter the legislatures, become ministers and run down the constitution. This is the culture within which we have been trying to operate our constitution. Where is the gap? Where is the need for bringing change in the constitution? What guarantee is there that once we change the constitution we will reform the functioning of the constitution. No constitution can bring about the constitutional culture. It is the otherway round. Why then has the Indian Republic not succeeded in ushering in a culture that would sustain the constitution, leading to fructification and organic evolution? It has not happened? We need to look at the fifth factor, the most important and critical factor that requires to be scrutinised when we talk of constitutional culture; the process of politicization. Politics cannot be, need not be, and should not be wished away. Politicization is a vital process that runs through the entire network and energises and enlightens the process of democracy and the constitution. The forgotten

Reforming the Constitution 295 Mahatma, looked at politics as the means of service, not the source of 'power' and pelf. But today politics has become a means of political power, to be secured and retained at any cost, at all costs, as an investment yielding highest range and rate of dividends. Politicization is the process of articulating and harmo-nizing the different, divergent, occasionally conflicting interests of different groups, and harmonization of this conflict in interests. This harmonization is attained and sought to be promoted in terms of an ideology—the social, economic, political vision of India clearly provided for in the constitution. Today, instead of performing its benevolent, expected and assigned role, politicization has turned malignant. It is reduced merely to a process of acquiring power. In the absence of electoral reforms, for correcting these distortions, political parties have themselves become institutions of exploitation; they have reduced the citizens to numbers. It is not even numbers, they have fragmented the society instead of harmonizing the conflicting interests. The constitution mandated not merely abolition of caste in law, but its erosion from society in reality. But we now know the castes have been multiplied and reinforced in a manner that more and more castes would like to be identified as backward. Our democracy and constitution are moving in reverse gear. The political culture in India has countered the constitutional vision by creating problems like that of terrorism in Punjab, secessionism in Jammu & Kashmir, or strife in the form of Naxalism. Indeed there is public debate that different political parties had established links with the LTTE in order to derive partisan advantage at the cost of national interest and the constitutional culture. The quality of political process saps the 'political will' to manage the polity and translate the constitution. Government employees recognize the absence of political will and become a law unto themselves. Governments have not been able to manage their own employees, the 'public servants'. Instead the public have become servants of the government. As if the public is obliged to feed them even for days they go on agitations and strike work, they organise another strike for securing pay for the days they have not worked. Our political parties offer competitive hidings and promise to pay for days on which the employees

296 Reforming the Constitution have not only not worked but contributed to disruption of sodal life. Employees of LIC thwart parliamentaiy debate and efforts to promote their efficiency and service to the public. The employees of 'nationalised7 Banks and others, the less we say better it is. So the process of politicization has shifted its focus from services to power, from its task of providing harmonization to generating conflict in order to sustain power at any cost, reducing the citizens to numbers, fragmenting the society, heightening the pre-existing factors of conflict and negating the ideology that is embedded in the constitution. The political process has severely and adversely affected constitutional culture. All the political parties swear by the Constitution of India, now a statutory requirement before they file their nominations with the Election Commission. But yet they project diverse, competing and conflicting ideological stances merely to gain and sustain power. Political power has become an end objective. Politicization, which has become malignant, requires to be transformed into a benevolent process, and thus reinforce constitutional culture. Promotion of constitutional culture and democratic ethos constitute the essential ingredients and prerequisites for any exercise in constitutional reform.

28 Constitutional Reforms S.D.BAU THE objectives of the constitution as enshrined in its Preamble, have not been achieved. Also, the constitution has failed to satisfy the needs and aspirations of the people. The entire constitution needs to be reviewed and recast by a representative body consisting of eminent scholars and other notables. The term 'secularism* needs to be clearly defined; there should be state funding of elections; budget proposals should be examined by subject committees; legislators must be required to file returns of their assets; article 356 should be made immune from misuse; rights and duties of the people, the media and the legislators should be laid down; the spheres of the legislature, the judiciary and the executive should be clearly defined, and economic backwardness should be the only criteria for giving any State benefits like reservation, relief or assistance.

constitution is the one authentic document which can help T heachieve the objectives of advancing, promoting strengthening and protecting parliamentary democracy and its traditional values. But this is possible only if the affairs of the Republic are run and managed as per the letter and spirit of the constitution. A simple reading of the Preamble to the constitution which came into force on 26 January, 1950 reveals that it was designed to secure to all its citizens: JUSTICE, social, economic and political; LIBERTY of thought, expression, belief, faith and worship; EQUALITY of status and opportunity and assure the dignity of

298 Reforming the Constitution the individual and the unity and integrity of the Nation (as subsequently amended w.e.f. 3.1.1977).

Now the moot question is whether these cherished goals have been achieved and, if so, to what extent? The answer is in the negative because (1) poverty has increased manifold; social and economic disparities have increased; there is erosion of political values; political justice is in turmoil; (2) freedom of the Press is seriously undermined—a recent example is that of the treatment meted out to journalists by the Tamil Nadu Assembly; (3) Mandir-Masjid controversies have taken toll of religious faith, belief and worship; (4) Mandal Commission has hit the equality of status and opportunity provisions of the constitution; (5) the dignity of the individual and the unity and integrity of the nation are in peril due to increasing insecurity, developing hostile climate created by the activities of militant outfits and fissiparous tendencies all over the country; and (6) Fraternity as a value is dying in the context of rising fundamentalism. Present constitution has failed to satisfy the needs and aspirations of our people. The inter-state disputes are increasing, there is an increasing demand for decen-tralisation of powers between the States and the Centre—the Centre holding that a powerful Centre alone could deliver the goods and protect the interests of the States while the States believing that more powerful States alone could ensure a strong and stable Centre. In some parts of the country, the dilution of power is considered in sectarian terms; language controversies and communal tensions are posing a danger to the one-nation theory; demands are being raised for independent States and regions; a pernicious theory of the sons of the soil is sought to be preached and practised in different States where the people from other States cannot purchase land and hold property being outsiders; religion is extensively used as a ploy to promote political ends; patriotism and nationalism are fading fast; even appointments of Judges are made on party and political considerations; there is serious conflict

Reforming the Constitution 299 between the judicial and legislative wings as evidenced by the recent example of the Tamil Nadu Assembly not accepting the Stay Orders of the Supreme Court, against the arrest of a journalist summoned by the Assembly to receive reprimand. The executive is sought to be made a committed instrument not of the rule of law but of the rulers themselves. Criminals and undesirables have found entry into legislatures due to innumerable defects and flaws in the election laws. Our constitution worked well when the whole country was ruled by one political party having leaders of stature and eminence. But now things have changed drastically. There are no leaders of stature who command universal respect. There is moral degradation at the political level, and different States are ruled by different political parties. They have their own plans, policies and programmes. Conflicts in such a situation are bound to develop. The Indian tradition is a tradition of absorbing, of synthesis of ideas and cultures, of great tolerance. But, unfortunately, the present system of governance is drifting away from these fundamental principles and values. This dangerous trend has to be reversed. If we do not realise what the problems of the people are, the law becomes irrelevant and this is what has happened. Therefore, instead of tampering with the document time and again, in a manner suiting a particular ruling political group or party, let the whole of it be reviewed, recast and redone by a representative body consisting of eminent scholars, educationists, scientists, legal luminaries, philosophers and other notable public figures. The document, thus prepared, could be debated at various fora tochum out what exactly the nation needs. Everybody's future is intrinsically tied with the country's future and the country's future hinges on the comprehensiveness and faithful implementation of its constitution. The only thing required is change in the style of thinking to faithfully achieve the aims and objectives through close identification with the people's aspirations. We must, therefore, shun hypocrisy and courageously come out for constitutional reforms or even for re-writing this document to suit the prevailing conditions. I would like to make the following suggestions: (1) The term 'secularalism' should be elaborately defined so as to leave no scope for drawing self-serving inferences;

300 Reforming the Constitution (2) Anti-Defection Law needs a thorough over-haul. The Speaker who is himself a Member of the House should not have power to disqualify his colleagues. It should be left to the Lok Ayuktas and the Lok Pal who should be appointed without delay; (3) Election law should be amended to prevent entry of criminals and undesirables into legislatures and provision should be made for the financing of elections by the States; (4) A statutory provision should be made for discussion of the budget proposals of all the Ministries in the legislatures, through the medium of subject committees, and the procedure of applying guillotine should be stopped; (5) With a view to minimizing corruption in public life, it should be mandatory for all elected representatives to file returns of their assets and liabilities before entering a public office and after demitting the same; (6) The two-nation theory has done great harm to the country. Statutory safe-guard be provided as a deterrent against mixing religion in politics and propagation of the multination theory; (7) Use of Article 356 should be restricted purely to deal with constitutional break-down, which should be specified, and not to serve the political ends of a party; (8) Over-centralisation has weakened the country. Therefore a statutory provision be made for giving greater autonomy and financial powers to the States; (9) The rights and duties of the people, scope of the media, and the privileges of the legislatures be codified to check unpleasant controversies; (10) Economic backwardness should be the only criteria for giving any State reservation, relief or assistance; (11) The areas of operation of the judiciary, the executive and the legislature should be clearly defined to avoid overlaping and contradictions.

29 The Tenth Schedule of the Constitution V.S. RAMA DEVI THE Tenth Schedule does not define a 'split'. The intention was that split should be recognised once a member made a claim that there was a split and not less than one-third members of the legislature party formed a separate group. This may be clarified by an amendment. Secondly, to remove doubts about when does an elected candidate become a member, the Tenth Schedule should be amended to clarify that he becomes a member as soon as he is declared elected by the Returning Officer and not on the date of notification of the result or constitution of the House. Thirdly, by another amendment, it should be laid down that a member disqualified from membership on grounds of defection cannot continue or be made a minister even for six months.

working of the Tenth Schedule of the constitution has T hethrown up several important issues like those pertaining to

splits in parties, disqualification from membership and eligibility for ministership of a defecting member. Besides, there are the questions of appropriate authority to take decisions in regard to disqualification of members on grounds of defection and barring of the jurisdiction of courts in the matter. At the time of drafting the Constitution Amendment Bill pertaining to the Tenth Schedule, various suggestions were made to define what is a split. Ultimately, it seemed that the only easily verifiable criteria for determining whether a split had or had not taken place in a political party, would be that related to

302 Reforming the Constitution the percentage of members of the Legislature breaking away from the main party. Otherwise in the context of all-India parties this could also produce anomalous results. For example, if it was provided that a particular percentage, say 15 per cent or 20 per cent of the members of the Legislature belonging to the original party should have broken away from the original party in order to hold that a split had taken place, split might be recognised in the context of a particular House or a particular Legislature and might not be recognised in the context of another House or another Legislature. l/20th members belonging to the Legislature party concerned might have broken away in the case of Lok Sabha but the number of members of the Rajya Sabha belonging to the concerned party so breaking away might be less than 1/ 20th. The position could vary from one State Legislature to another. The maximum which could be done in view of these limitations was to treat each Legislature, i.e. both Houses of Parliament in the case of Parliament, both Houses of State Legislature in the case of a State Legislature having two Houses, and the Legislative Assembly of a State in the case of a State having only a Legislative Assembly, as a unit and apply the test separately, with reference to the percentage of the legislators belonging to the party breaking away from the party. This appeared to be the approach which was adopted in the Tenth Schedule. Paragraph 3 of the Tenth Schedule of the constitution provides for exemption from disqualification on grounds of defection in case of a split in a political party. Under this paragraph, a split can be established on two facts—one is that a member should claim that there is a split in his original political party, that is to say, the party which had put him up as a candidate and the second is that as a result of such split not less than onethird of the members of the Legislature Party represent the faction which has arisen because of the split. If these two requirements are fulfilled, the Speaker or the Chairman will have to allow them to sit as a separate faction and cannot disqualify them on the ground of defection. As a matter of fact, the Tenth Schedule does not provide for any definition of split and does not enumerate the manner in which a split should take place, that is to say, whether there should be a split in the total membership of the organisation or

Reforming the Constitution 303 Legislature Party or any other organ of the Party. From this, it can be deduced without any doubt that the Speaker or, as the case may be, the Chairman will have to allow as and when a member claims that he and other members (not less than onethird of the Legislature Party) constitute a separate group as a result of a split in the original political party within the Legislature. This was the accepted interpretation throughout the debate in the two Houses when the Bill was discussed and on no occasion any Member raised any objection to such an interpret­ ation. As a matter of fact, when the Bill was before Parliament, various amendments were moved to this paragraph for the purpose of altering the faction of the members of the Legislature Party and ultimately the faction of one-third of the Legislature Party was specified after consultation with the opposition. Form I of the Members of Lok Sabha (Disqualification on Ground of Defection) Rules, 1985 wherein the signature of the Leader of the Legislature party is required and not that of the political party can be taken as an illustration for the aforesaid interpretation. Further paragraph 3(b) also clarifies that for the purposes of sub-paragraph(l) of para 2, from the time of split, the newly formed faction shall be deemed to be the political party to which the member belongs and for the purposes of paragraph 3(b) that political party shall be deemed to be his original political party. It may be interesting to note here that some Members wanted to provide for an additional requirement for establishing a split, but then it was decided that these two requirements were enough to decide about a split. It also shows that the intention of Parliament was to recognise the split once a member made a claim that there was split and not less than one-third members of the Legislature Party formed a separate group. That should clinch the issue. However, in view of various controversies and different arguments it would be better if the matter is made clear by incorporating a removal of doubts clause for the purpose in the Tenth Schedule. Such an amendment will not only protect the interpretation given all along but also set at rest any controversy in future. There is another issue which is being raised at certain quarters, that is the issue of membership as to at what point of time after elections an elected candidate becomes a member of

304 Reforming the Constitution Parliament or, as the case may be a State Legislature. All along, the interpretation of the law has been that a candidate becomes a member the moment he is declared by the returning officer as elected. This is also borne out of section 67A of the 1951 Act which was specifically inserted by Act 27 of 1957 so as to make things very dear and not leave any scope for confusion. Prior to insertion of 67A, a doubt arose as to whether the date of declaration of the result was the date on which an elected candidate became a member or the date on which his election was published by the appropriate authority in the Offidal Gazette under section 67. This was evident from the following Objects and Reasons appended to the Amendment Bill which provided for the insertion of section 67A: "Questions often arise as to when exactly an elected candidate becomes a member of the House to which he is elected and what is the date of his election. There is usually an interval between the date of declaration of a result under S. 53,54 or 66 and the date on which that declaration is published in the Official Gazette under section 67. The declaration is reproduced verbatim in the Gazette and contains the date on which it has actually been made by the returning officer. The date of notification in the Gazette is therefore not material and there appears to be no real justification for regarding the latter date as the date on which an elected candidate becomes a member of a particular House."

However, of late a new interpretation is being put forward to the effect that an elected candidate becomes a member neither on the declaration of his election by the returning officer nor on the publication of such result in the Offidal Gazette, but only on the notification issued under sedion 73, i.e., on and from the date notification for the constitution^of the House is issued. As a matter of fad, section 73, as originally worded, provided that such a notification would be issued by the appropriate authority itself declaring the names of the members and such dedaration was only additional to the declarations under section 66. Later on it was felt that the Election Commission could issue such a notification which was in the nature of publishing of the declarations made from time to time in one consolidated form for the purpose of convenience of one and all, and to show that the elections had been completed and the President could summon the House. That did not mean that the elected candidate

Reforming the Constitution 305 became a member only from the date of such a notification. Section 73 did not overrule section 67A. Those who give new interpretations appear to have taken a clue from the Salary, Allowances and Pension of Members of Parliament Act, 1954 to decide about the membership issue. Prior to 1976, the salary and allowances were paid to a member only when he took his seat in the House. This provision was changed in 1976 to provide that the same may be paid at least from the date of issue of the due constitution notification. It is merely for the purpose of payment of salary and other perks and does not clinch the issue of membership. A look at the definition of the "term of office" under 1954 Act clearly shows that in relation to a certain type of members a different date is given and in relation to another type of members another different date is given. Hence this cannot be relied upon to clinch the issue of membership. If the same logic is carried through, it means that prior to 1976 an elected candidate became member only when he took his seat in the House, because salary and allowances were paid to him only when he took his seat. The important provision is section 67A which categorically provides that the date on which a candidate is declared by the returning officer shall be the date of election as member of that candidate and not the date of publication in the Official Gazette and logically it cannot be the date on which the due constitution notification is issued which is merely a compilation of all the names of the members. If the date of the due constitution notification is taken as the date on which an elected candidate becomes a member, the period of new House or Assembly should start from the date it was duly constituted. But it is not so. Under the constitution, the duration of the new House or Assembly starts from the date appointed for its first meeting under article 83(2) or, as the case may be, under article 172(1) and not from the date of due constitution notification under section 73 of 1951 Act However, in view of the new interpretation being put forward it would be better to incorporate a clause in the Tenth Schedule to remove any doubts to the effect that an elected candidate shall be and shall be deemed to have always been a member from the date he is declared elected by the returning officer. Otherwise, there is a possibility of the entire Tenth Schedule becoming a mockery. If the new interpretation gains

306 Reforming the Constitution ground, an elected candidate can, with impunity, change the party (to his benefit) in the interregnum between the date of the declaration of his election result by the returning officer and the date on which the due constitution notification is issued, since during that period he shall not be a member but only an elected candidate. There will always be a gap of few days between the declaration of the election result by the returning officer and the issue of due constitution notification. Another issue which requires serious attention is whether the disqualification on ground of defection will disqualify the concerned member to be appointed as minister or to continue as minister. This issue is causing lot of embarras-sment. Apart from that it involves certain fundamental questions. At present a person after being disqualified as a member is treated as qualified to be appointed as a minister or continue to be a minister under clause (5) of article 75 of the constitution as it allows a person to be a minister for a period of six consecutive months even if he is not a member of either House of Parliament. Similarly, a disqualified member can be a minister or continue to be a minister in a State Cabinet under a similar provision, that is to say, clause (4) of article 164. When these two provisions were incorporated; the idea of disqualification on the ground of defection was not in the picture at all. Further, the very expression "political party" did not find place in the constitution till the Tenth Schedule was got added. Now the moot point is whether such a disqualified member should be allowed to continue or become a minister on mere technical interpretation or should he be debarred from ministership in keeping with the spirit of the Tenth Schedule. Certain incidents in the recent past at the Centre and at the State level show that it would be necessary to amend article 75(5) and article 164(4) to expressly exempt such a disqualified member to continue as a minister or to become a minister even for six months unless he again gets duly elected as a member of Parliament or, as the case may be, State Legislature.

30 Market Economy and Need for Constitutional Change Y.C.HALAN NOT being directly elected by the people on the basis of adult franchise, the Constituent Assembly had no valid credentials to frame a constitution for Free India. Founding Fathers also failed to visualise the society and the polity that would emerge. The Assembly was dominated by aristocracy and propertied classes. They wanted a powerful State with control over the economy. The dream of a free and prosperous society did not come true. Today country is badly divided on caste and religious lines. Politicians are busy only acquiring power and money. The constitution has failed to fulfil the hopes of its framers. Despite the use of socialistic rhetoric, state policies since independence have strengthened forces of capitalism and not socialism. With the new process of liberalisation and an openly market-oriented economy, changes in the political system and the constitution have become imperative. The Preamble and the property clause (article 31) should be restored to their 1950 position and the parts concerning Fundamental Duties and Directive Principles should be dropped completely from the text of the constitution.

constitution is like pile foundation which provides base for a suitable structure. It also ensures that the structure can be changed if need arise. The piles which Indian Constitution provides are weak; weak in the sense that the type of polity our founding fathers wanted to build was different. The reasons may be many. First, Assembly which framed the constitution was indirectly

308 Reforming the Constitution elected by those who were themselves elected on limited franchise basis. The elections to the Provincial Assemblies were held under the Government of India Act of 1935 which was aimed at dividing the country. The basic principle of a democracy is that the constitution should be framed only by the true representatives of the people. If the election of a Constituent Assembly was not possible, the draft of constitution should have been rectified by the people through a referendum. As neither was done in India, the present constitution can not truly be called a people's document. The argument that electing a new Constituent Assembly would have delayed the drafting of the constitution and even if the elections were held, the Congress party would have sweeped the polls is a fallacious one. Second, the founding fathers failed to visualise the society and polity that would emerge in decades to follow. The freedom movement was fought under different conditions. The objective before the masses was clear and the divisive factors like caste and religion were not constraint People of all walks of life forgot their differences to fight shoulder to shoulder with one aim in mind—freedom at any cost. How people, particularly leaders, once freedom was acquired will behave was not dear. The presumption that people will be motivated by the same fire in the following years proved wrong. The dream of a prosperous and free society did not come true. The consequence is that the country in 1992 is entirely different than what it was in 1947. Third, the state was given a dominating role. It is commonly believed that the founding fathers were much motivated by the welfare and equality prindples on which they wanted to organise the sodety. However, the Constituent Assembly was dominated by the aristocracy, landed propriety, and the political interests. Naturally, they were interested in a powerful state. They had two models to choose from: the old one prevailing in the United States and the United Kingdom and the new one adopted by the Soviet Union since the establishment of communistic rule. As the Congress party was fighting against the British rule and the princely states the socialist slogan could be easily sold to the masses. Uneducated, poverty-stricken and widely unemployed masses in India could not understand how the welfare and equality-based system would be established without any substantial improvement in the total production. Nevertheless, the aristocracy, landed propriety and the political leadership acquired powerful and dominating interests in the economy. No

Reforming the Constitution 309 doubt the three groups benefited the maximum because of state domination and control. The polity today is not what it was planned to be. The concept of socialism has failed totally. The country is not one united unit It is a faction-ridden society, tom apart by the divisive forces of caste and religion. The political leadership is not as motivated by the nationalistic forces as in early days of the independence. There is scramble for power and money with no scruples. The functioning of governments since 1969 makes it obvious that the political leaders of all hue and colour have used the party and the state to acquire power and retain it. It simply proves that the edifice made on the constitution has failed to give shape to the dreams of our founding fathers. In a letter to Joseph Block, Engles wrote: "We make our history ourselves. . .". And we made ours. The Britishers gave basic foundations to capitalism in India. "British colonialism integrated India as a market with world capitalism..., encouraged and strengthened feudal, semi-feudual and archaic social structures to get local support and collaborations for colonial exploitation. . .By the beginning of 20th century, indigenous capitalist class emerged in India under the shadow of imperialism . .The antiimperialist struggle in India provided a broad platform for all kinds of negative and positive social tendencies to make it a mass movement. . ." writes the JNU Professor Chander Prakash Bhambhri in his book Political Process in India. The transfer of power in 1947 favoured the powerful pressure groups in society and economy. The intelligent Britishers ensured continuance of several important linkages with the British system. The strongest was to motivate the founding fathers to model the Indian Constitution on the Westminster model. If the society was to be a socialist one, the Constitution should have been based on the Soviet model and not on the British one. With the Britishers leaving the scene, the intellegentsia in India started talking about democratic revolution for the benefit of the masses. However, the political and business interests viewed its basic task as transforming the productive process with the help of newly gained political power. The various reform measures which the state took in the following years strengthened capitalism, and not socialism. According to Bhambhri, "The impact of planned economic development of the country has resulted in the emergence of capitalism in agriculture in selected areas, while it has also accelerated the growth of the manufac­

310 Reforming the Constitution turing sector in the industry and national market in India. Besides, a few more facts may be mentioned to understand the role of the state in building capitalism in India: (a) The state is the chief mobilizer of resources and savings in the country for investment. The public-controlled institutions like the Life Insurance Corporation, the nationalized commercial banks, have centralised resources in the hands of the state to be invested in the state capitalist sector and the private corporate sector. (b) The state has actively developed science and technology and R and D efforts for building capitalism. (c) The state has the responsibility to develop infrastructure like power, transport and irrigation for the development of capitalism. (d) During the last forty years the state has consciously developed and is trying to strengthen private property by encouraging small scale and medium industries, and at the apex it has harmonized the interests of Big Business, political leaders and public bureaucracy who have common stakes in capitalism as investors and profitseekers. . . .," Thus, despite socialistic pretensions by the state and almost all the political parties, India has developed a complex capitalistic society which never accepted the philosophy of "welfarism" either in economy or in polity. Not only that the Indian capitalist class has been manipulated by international capitalism, the penetration of which has been growing, slowly but gradually. However, the Indian state, because of political expediency and compulsions, could not give an impression of being a capitalistic state. It became a non-polarized society, giving rise to several phenomena which are characteristic feature of an under developed society, like caste and feudalism India of today is not India of 1950 when the centralised planning system was adopted for economic development in the country. In the following forty years the entire life, economic and political, was conditioned by this phenomenon. No doubt we had a system in which every thing was controlled by the Government, which in reality meant, the politician. With the passage of time the government became personified in an individual. The functioning of the government became such that development became sluggish and the country was out of

Reforming the Constitution 311 alignment of world trends. Even when the Soviet system and the Eastern European block was breaking down and was changing to the new world order, the Indian system remained rigid. Whatever little changes were made were either not implemented or implemented half heartedly. When the Congress came into power in June 1991, and Mr. P.V. Narasimha Rao became the Prime Minister and Dr. Manmohan Singh, the Finance Minster, the country started a process of changing the basic structure of the economy from the command to market-oriented. Now the changes in the economic system have to be incorporated in the political system also if a new order is to be established in the country. This necessitates a change in the Indian Constitution. A question which becomes relevant here is: What the Indian Constitution should look like? In fact, a constitution should give definite directions to the polity and the economy. The US Constitution directs to form a society based on freedom, liberty and general welfare. The social, political and economic development during the last two centuries has brought a system based on free market economy. The British Constitution, which over the last few centuries developed along with the British thinking, is based on the rule of law. The entire edifice of the British polity and economy is based on this concept. The Indian Constitution had no direction in the beginning. But the rulers wanted to establish a socialist society. We had it in no time. Since we have decided to say good bye to it, the constitution should be modified keeping in view the requirements of the changed economy. The first need is to change the Preamble. The Preamble deter-mines the general purpose behind a constitution and is never regarded a source of power. Since the Preamble is meant to explain certain facts which are necessary to be explained before the enactments contained in the Act can be understood, it should not have too many confusing concepts. The original Preamble did not contain the words "socialist secular". Moreover, the condition of the economy and the relationship between various religious communities have deteriorated since these two words were inserted by the Constitution (42nd) Amendment Act of 1976 by a Parliament whose credibility was doubtful. Juxtaposing it with the recent metamorphosis in the Government policy, it is time to come back to the original position of 1950 and declare India as only "Sovereign Democratic Republic." The second change needed is to remove the Directive

312 Reforming the Constitution Principles and the Fundamental Duties. The former were incorporated in the constitution at its formulation. The latter were inserted in 1976 through the 42nd Amendment to the Constitution. Both these are not legally enforceable in the courts and the state cannot be held responsible for not formulating the public policies in agreement with the Directive Principles. Almost all the Directive Principles like equal right to an adequate means of living, distribution to subserve the common good, checking concentration of economic power, equal pay for equal work and stopping entry to hazardous vocations are vague and confused. However, most of the developed countries have adopted these principles in their system by enacting legislation and strictly enforcing them. Similarly, duties are addressed to citizens and the state expects every citizen to fulfil them Not many have done so. Therefore, there is no use increasing dead weight on the constitution. Anything which can be achieved through state policy and law need not be a part of the Constitution. The third need is to restore the right to property which was guaranteed by Article 31 of the Constitution. The 44th Amendment Act of 1978 enacted by a superannuated Parliament, omitted Article 31. Now, the legislature is free to take away a person's property without payment of any compensation. The person has no remedy before a court of law and the courts cannot challenge the validity of such a law. The need of the changing time is to restore Article 31. The right to acquire, accumulate, use and sell private property within the legal framework is a strong incentive for a person to work and save.

Need for Electoral Reforms G £. RAJHANS FOR faith in democratic polity, it is essential that elections are believed to be fair and free. Unfortunately it is not so in India now. Booth capturing and use of money and muscle ' power have vitiated the electoral process. Reforms should include introduction of identity cards for all voters, use of electronic voting machines and strict control over election expenses by the candidates themselves or through friends etc. In the long run, the real remedy would be setting up a new Constituent Assembly to draft a new constitution with a Presidential system which would be more suited to us than the present Westminster system. But, that perhaps has to await rising of a popular demand.

is no denying the fact that the future of democracy in T here India is in peril since the people are increasingly becoming disillusioned with the present system of government. This has endangered the unity of the country. Everywhere there is widespread discontentment This discontentment may tear apart our society if remedial measures are not taken quicldy. In any democratic country people respect the government only when they are convinced that the members of Parliament or for that matter of state legislatures are genuinely elected through free and fair elections. In India, unfortunately, people are losing faith in the whole electoral system. Even the layman knows that only the money power and muscle power count in the elections and not the merit of the candidate. The nexus between money bags, criminals and politicians is well-known and does not need any elaboration. Hence a feeling of helplessness all over.

314 Reforming the Constitution People, in my opinion, are fed up with 'hung Parliaments', and frequent elections are only a growing burden on the tax­ payers. In every election a huge amount of black money is pumped in the economy which only fuels inflation. Those belonging to the poor and middle classes suffer enormously. A way must be found to get out of this mess. The presidential system of government as practiced in the U.S.A. or France would be far better to the present Westminster model. But, probably the right moment for that change has not yet reached and most of the political parties may not agree to that switch over in near future. We may have to live with the system for some time before the people in every part of the country are finally fed up and demand the constitution of a fresh Constituent Assembly to frame a new constitution on the basis of the experience of more than forty years and in keeping with the aspirations of the people. The will of the people and their preference should be clearly reflected in the outcome of the polls. But, of late, justice and fairplay in the elections have been given a go by giving way to 'might is right'. That 'might' may manifest in the shape of money power or muscle power or both. Every conscientious person has, naturally started wondering whether an opportune moment to put a stop to these malpractices has not arrived and whether large-scale electoral reforms are not needed urgently? The crux of the electoral malice is 'booth capturing7. Unless some fool-proof system is found out to curb the menace, any amount of discussion about poll reforms will be meaningless. Booth capturing started in Bih^r in 50s. But forty years later it has become the order of the day in the entire northern India. Those who resort to booth capturing, see nothing wrong in what they do. In order to satisfy their conscience they say that if they did not capture any booths, their opponents would, in any case do that. So, why place their candidate at a disadvantage? In Bihar, besides monetary consideration, booth capturing is mostly done on caste considerations. It transcends all political affinity or commitment. What is more surprising is that booth capturing is done with the active connivance of the administration, which includes both the personnel of civil services and the police. In other states it is mostly done for monetary consideration. Money and fire arms are provided by the candidate. The duty of

Reforming the Constitution 315 the booth grabber is to finish the 'work7 as quickly as possible and then to proceed to the next booth. The criminals capture the booth according to their strength. Sometimes the hired goondas claim a larger share in the cake resulting in violent clashes. These hooligans terrorise and demoralise the administration since the former are equipped with more deadly and sophisticated weapons. Booth capturing reminds spectators of the medieval type of conquerors who swamped enemy territory just by the size of their army. When the hoodlums are let loose with their deadly weapons, no body dares to enter the booth. The booth grabbers are adequately rewarded after the 'victory7 of their candidate. Their leader helps them in getting criminal cases pending against them hushed up. Not only that, he helps them in seeking 'gainful' contracts in the government. What a lucrative job! The risk for a day in five years or so is worth it, they hold. It is interesting to note that the law relating to booth capturing is honoured more in breach than in imple-mentation. According to Section 135A of the Representation of the People Act, 1951, whoever commits an offence of booth capturing shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to two years and with fíne, and where such offence is committed by a person in the service of the government, he shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to three years and that too with fine. But the big question is whether this provision has been implemented anywhere in the country? Has any person been prosecuted and punished under this provision? The Chief Election Commissioner has asked for a more deterrent punishment—debarring booth capturers and also the candidate for whose benefit the malpractice is resorted to, from holding any public office for a long enough period. Apart from the difficulties inherent in establishing guilt in such crimes, it is just possible that the drama of booth capturing is done at the instance of the losing candidate so that the chances of the winning candidate are jeopardised permanently. Hence it does not seem to be a feasible proposition. The ideal situation would be that every voter in a

316 Reforming the Constitution parliamentary or state constituency is provided with a multipurpose identity card. The moment he casts a vote, an endorsement is made on his card with the signature of polling or presiding officer. If, at a later stage, an individual or party or some public spirited voluntary association, produces at least one thousand such identity cards where there is no endorsement and whose votes have been polled, the election should be countermanded immediately and fresh poll ordered in the entire Lok Sabha constituency. This is a cumbersome process no doubt but this will discourage booth capturing to a very lage extent In such cases, instead of referring the matter to High Court and Supreme Court, it should be referred to a special election tribunal with a mandatory provision that such election disputes be disposed of within three months. It is a myth that the stationing of para military forces reduces the chances of booth capturing. Those who have witnessed booth capturing in Hindi speaking States, are aware of the fact that the presence of para-military forces does not make much difference so long as the civil magistrates are partisan and at times indulgent towards electoral malpractices. Chances of booth capturing and rigging will be considerably reduced if sensitive booths are provided with electronic machines. An electronic machine is automatically locked once an individual has exercised his vote. It can only be unlocked by the polling or the presiding officer. Booth grabbers are generally in great hurry. They do not have that much of patience to lock and unlock after each vote is cast. The system may not root out the evil altogether, but it will definitely reduce the chances of both grabbing to a very large extent. Indigenous electronic machines cost about Rupees five thousand each and have a fairly long life of 20 to 25 years and may require only a negligible amount for annual maintenance. It is common knowledge that the money power plays havoc in the elections. It is feared that if the evil designs of the money bag holders are not checked immediately, it may subvert democracy in our country. Unfortunately India is heading towards such a subversion. There are examples where a couple of crores of rupees have been spent by a single candidate. The vulgar display and misuse of black money is there for every body to see. Has any body thought over the matter seriously?

Reforming the Constitution 317 Money affects the election in some other ways also which is not generally known to the common public. A rich candidate sets up 10 to 20 dummy independent candidates. All that he has to do is to deposit Rs. 500 as security money on behalf of each candidate. Now each independent candidate will enjoy the same facility which a candidate set up by a national party will get. In this case an honest and poor candidate is always at a disadvantage. According to election rules, in the last week of the campaign a candidate is authorised to run only one vehicle in one assembly constituency. Now whereas the poor candidate who had not set up any independent dummy candidates will be able to run only one vehicle, his opponent will run 10 to 20 vehicles thus covering more areas for campaigning and placing his rival at a great disadvantage. Similarly, whereas the poor candidate will be able to set up only one election agent on one booth, the rich candidate having dummy candidates in his pocket, will set up 10 to 20 election agents on each booth who will keep creating disturbances and will thus hamper smooth polling. This is high time when some independent machinery presided over by a retired High Court or Supreme Court judge is set up to find out whether more money was spent by a particular candidate than prescribed in the law. If it is established that the allegation was genuine then that election should be set aside immediately. In this context the usual plea that the money was spent not by the candidate but by his friends and relations should be rejected ruthlessly. Much has been said about state funding of elections. This has been the practice in some European countries. These countries are comparatively smaller in size and are sparsely populated. This system cannot work in a country like India. It will be a simple wastage of otherwise scarce resources. Despite state funding, the candidates will spend as before. Assistance by the state would be over and above that. Lately, the elections have become a farce as a result of which people are fast losing faith in our democratic system It is the duty of every patriotic Indian to rise to the occasion and demand a drastic change in electoral laws. Alternatively, a Constituent

Assembly be called to reframe our constitution based on past experiences.

Need for a Rational Constitution DAYAL SINGH SODHI MANY amendments have mutilated the originally federal and democratic constitution. Constitution-makers also foiled to take into account the feudal temper of our people. Restructuring Centre-State relations on a rational basis of partnership would solve most of our problems. Prime Ministership may rotate between four regions of the country. Lok Sabha may have equal representation of all States. Governors may be elected. Fundamental rights may be expanded to include right to be governed only by our elected representatives etc.

ur constitution has been much mauled by many amendments. Its democratic spirit and letter have been violated. Where the letter came in the way of the rulers, it was altered or repealed. The original frame-work of the 1950 constitution which was basically democratic and federal has been mutilated beyond recognition. It seems difficult to decide where to start afresh to set things right for the future. In fact, during the debate in the Constituent Assembly itself apprehensions were expressed about the possible abuse of certain provisions of the constitution. Those, however, were hushed up and brushed aside as imaginary, baseless and farfetched. As model for our political set-up, the Assembly adopted the Western style democracy under which the citizen is supreme and expresses his sovereignty through the symbol of the State. Even today when we talk of democracy we mean that The ground realities are, however different.

O

Reforming the Constitution 319 First slowly and then rapidly power got concentrated into fewer and fewer hands in the party, then we built a neo-feudalistic political power structure in the government. Interests of the country and respect for the constitution yielded place to party and personal interests. The framers of the 1950 constitution were men and women of good intensions. But, they failed to understand the basically feudalistic temper of the Indian people. In democracy, power surges up from the bottom while in neo-feudalism the process is reverse, power flows from the top. In democracy, it is the citizens who decide how much power the leaders may have, in neo-feudalism leaders let it flow down in controlled manner as they deem fit, they do not trust the people fully. In democracy, leaders willingly relinquish power and let new leadership emerge, in neo-feudalism, old leaders wait for the gun-carrier. Politically, country's position today is what it was at the death of Aurangzeb, though the 'Empire' lasted another 150 years. Then, small and big protectorates, jagirdars and zamindars of Delhi Darbar began to assert their indepen-dence. To day, the phenomenon goes under the name of regionalism. The constitutional process has not been used for unifying Indians into one people. Elected governments enjoying the confidence of majority in the house have been dismissed. Citizens have sometimes been denied their basic democratic right to be governed by their chosen representatives. Invariably, it happened in regions where the ruling party was other than that at Delhi. Various questions in regard to the constitution have been raised and solutions discussed at several seminars and through articles in the papers. The most crucial is the question of Centre-State relations. Many of our difficulties might not have come up and could be resolved now if Centre-State relations were structured on a rational basis under which both the Centre and the States were willing coparceners in political and economic development for common good. It is difficult to believe that leaders in seats of decision­ making in Delhi are not aware that in the interests of the country, the Centre needs to shed some of its powers in favour of the

320 Reforming the Constitution States. But, they want to cling to what they have. The slogan 'Strong Centre' has been coined to create false fears in the minds of laymen about the unity of the country. To strengthen mutual trust and confidence among the States themselves and the States and the Centre on one hand and the government and the people on the other, it will be desirable to have mandatory review of the constitution say, every twentyfive years by a panel representing the States and the Centre. Such a panel should consist of two representatives from each State and two from the Centre at least one of whom should represent the opposition. The recommendations of the panel must be ratified by each State and the Lok Sabha, with seventyfive per cent voting in favour of each recommendation. Thus ratified recommendations should be binding on the States as well as the Centre. There is some confusion in some minds about the meaning of "India shall be a Union of States" in the very first article. To remove the confusion let the article read "India, that is Bharat, shall be a Union, that is a Federation of States". But, changing a word here or a phrase there would not mean much unless power sharing between the Centre and the States is redefined. It is worth considering whether it would not be desirable to divide the country into four segments and have the Prime Ministership rotate among them. The question of the present quota of representation for the States in Lok Sabha membership also requires attention. It is the bulldozer Hindi-belt majority that many times overrides the wishes of non-Hindi States. In one way or the other, these States have expressed their dissatisfaction with the present arrangement. This needs to be reviewed and we should seriously consider giving equal represen-tation to all the States. Again, functioning of the Governors has caused much heart-burning and controversy. Even if we want to retain them, the present manner of their appointment is highly objectionable. Why can't we make it an elective office? Under a carefully framed law, there would be no scope for conflict between an elected government and an elected governor. In any case, the will of the ministry as an expression of the opinion of the majority of legislators should prevail as at the Centre. The following may be added to the fundamental rights:

Reforming the Constitution 321 (i) that die citizens shall have the right to be governed by their elected representatives only, (ii) that these elected legislators shall not be hindered in any way or manner in the discharge of their obligations in the legislature or in the public and (iii) that these rights shall not be taken away, abridged or suspended except if the country is engaged in an armed and declared war with some external enemy. New elections, however, shall be held within the maximum period of six months after the war has ended and an armistice signed. If a government at the Centre or in a State has lost the confidence of the majority of the legislators or has resigned and no other party in the House is in a position to form a new government, die House should be dissolved forthwith and new elections held within three months. Democracy is a way of life. An anthology of laws, rules and regulations however attractive in wording may not make a system democratic. It is necessary, therefore, to restrain the executive and the legislature in the use of their powers. It would be necessary to restructure some other parts of the csonstitution like the Emergency provisions so as to confirm and corroborate the intent of the proposed amendments. The political system that trusts the citizens and shares power with them emerges stronger. To have a vigorous and prosperous society, it is essential to strengthen democratic rights of the citizens, to share power with them and, above all, to trust them.

Is Restructuring Government Institutions Enough? GJ\ SRIVASTAVA OUR Constitution is largely a reproduction of the 1935 Act, a "cut and paste" work with some of the provisions based on US model being irreconcilable with others of British origin. Election law needs revision to provide that a party must be at least two years old to contest elections. Since the parliamen-tary system has proved ineffective, a new mix with features of the Swiss system—a statutory coalition of parties both at the Centre and in the provinces but with ministerial responsibility and singular executive—may be tried. Prime Minister may be elected by Lok Sabha, he may nominate half of his Cabinet colleagues from outside Parliament, the other half being elected by Lok Sabha. Only members of Lok Sabha may be considéra! for ministership and for the office of the Prime Minister. Position of the President with some discretion and the federal balance need to be restored. More than the machinery, men need to be reformed. The term 'failure of constitutional machiner/ (art. 356) needs definition, the term OBC needs to be clarified, the words 'profess and propagate' should be deleted from Part III. The squandermania of the rulers has to be checked. There is need for a Constitution Commission to supervise the working of the constitution.

the attainment of freedom from British control Indians Onframed their own constitution. During British rule they had

been taunted by the white rulers to produce a political blueprint and taking up this challenge the Congress produced the Nehru

Reforming the Constitution 323 Report. Then as a result of the three Round Table Conferences and the Joint Parliamentary Committee Report (1934) came the Government of India Act, 1935. The constitution, besides profusely borrowing from other constitutions of the world, is mainly based on these two documents. It is ironical but true that the leaders who were vehement critics of the British Act had no hesitation in incorporating verbatim some provisions of the 1935 Act which was meant to give limited freedom to provinces while the reigns of power were firmly held by the British Governor General and the British Parliament. The two examples are Section 93 which has became article 356 of the Indian Constitution and which has been the most abused and misused article and the power of the Governor to reserve bills passed by provincial (the State) legislature for the consent of the Governor General (President). But the Indians were enamoured of the British Parlia­ mentary Cabinet System of Government and based their political system on the British model. Even when India was not free, a great Indian, Dadabhai Naoroji in reply to an address received by him on election to the British Parliament from Finsbury in 1893 had said: "We hope to enjoy the same freedom, the same strong institutions which you in this country enjoy. We claim them as our birth right as British subjects. We are either British subjects or British slaves. If we are really British subjects, you are honestly bound to give us every one of your institutions as soon as we are prepared to receive them. I have no doubt from my long knowledge of this country that as soon as the British people begin to understand what we are prepared for, they will be ready to give it."1

But the British rulers had their own misgivings about the suitability of the British model to Indian conditions. Even a modem British political scientist, Professor S.E. Finer regards India as a 'facade democracy7 in which "liberal democratic institutions, processes and safeguards are established by law but are in practice so manipulated or violated by a historic oligarchy as to stay in office."2 At another place he remarks: ''Where the society lacks functional associations and is divided by tribe, region or religious community 'one man one vote' can and 1 R.P. Masani, Dadabhai Naoroji, p. 284.1 2 S.E. Finer, Comparative Government, Penguin Books, 1975, p. 441.

324 Reforming the Constitution often does mean that political parties are merely tribe or region or religious community in liberal democratic trapping."3

It is, however, claimed that the fathers of the constitution decided to set up a political system modelled on the British pattern. Among others, Nehru's speeches are quoted in support of this contention. But Nehru became the Vice President of the interim Government in 1946 and was tipped to be the Prime Minister. Thus he was an interested party. Many others like Alladi Krishnaswamy Aiyar were also under his influence. According to the latter the word Trime Minister' was to be used in place of the 'President' in the constitution. But many independent writers have not accepted this view. Dr. Ambedkar was of the view that for the performance of his prerogative powers the President was not bound by the advice of the Ministers. And Dr. Rajendra Prasad thought that for the exercise of legislative powers the Council of Ministers was not competent to advise him as art. 74 occurred in the chapter entitled "The Executive'.4 Dr. K.V. Rao divides the executive powers of the President in three distinct spheres: (a) his prerogative powers, (b) where he is expected to act on the basis of his satisfaction or in accordance with an article of the constitution or under a law framed under any article of the constitution, (c) where he is given authority under any statutory law. Under the last category he is expected to exercise his power under the advice of his Ministers.5 A view was also expressed that art. 74 only requires the Ministers to aid and advise the President and there is no corresponding obligation on him to follow that advice.6 Dr. K.V. Rao sums up the views of the fathers of the constitution in these words: "In India we are introducing democracy for the first time It requires so many conditions for its success; but a country can not wait till the conditions are fulfilled and conventions grow up. Whatever it 3 Ibid, p. 120. 4 CAD, Vol. VIII, p. 216. 5 K.V. Rao, Parliamentary Democracy of India (A Critical Commen­ tary), World Press, Calcutta, 1961. 6 See the article of Sen-Verma in Modem Review, July, 1950 and the paper read by Dr. K.P. Mukherjee at the Indian Political Science Conference, Aligarh, Dec. 1952.

Reforming the Constitution 325 might be, the country should have a strong and unified executive leadership, otherwise it would be rudderless in a crisis as it happened in France, especially during the War (1939-45). So the system should be left elastic. If a strong party system would develop and people are constitutionally minded a parliamentary system would prevail, otherwise the President would step in and see, that the country does not suffer.*7

Thus, the original constitution provided for a 'split executive'8 and its chief tribute was elasticity which was later done away with by the forty-second amendment enacted during the emergency. In brief, "The Indian System of Government" lies somewhere between The Westminster model and the White House Model though (more) nearer to the former but having some trappings of the latter too."9 But the fact remains that India has adopted a predominantly British model. It is, however, a fact that British Parliamentary institutions have not succeeded in India. K.M. Munshi, an eminent constitutional lawyer and a member of the Drafting Committee remarks: "Those of us who supported the British Cabinet System, to which we were accustomed, thought that it would work effectively in India; but I must confess that we have foiled to evolve the two party democratic traditions necessary to support the Cabinet system. Our democratic instincts have proved immature. The Congress is falling to pieces; many opposition parties have no constitutional outlook. The Cabinet system of government has not been a success."10

M.R. Masani, a great freedom fighter and leader and the editor of 'Freedom Firs? also is of the same view. He has remarked: "What was needed was nothing less than a 'U' turn or a complete reversal of the current counter productive policies and plans." He saw only "two stable and hopeful factors in the country, the 7 K.V. Rao, op. tit., p. 73. * Ibid., pp. 77-78. 9 Anirudh Prasad, P residential G overnm ent or Parliam entary Democracy, Deep and Deep, New Delhi, 1981, p. 85. 10 K.M. Munshi, Pilgrimage to Freedom, p. 274.

326 Reforming the Constitution armed forces and Jaya Prakash Narayan."11 His prophecy came true next year when in order to nullify the judgement of the Allahabad High Court disqualifying her for 6 years for adopting corrupt practices in election to the Lok Sabha Mrs. Indira Gandhi illegally proclaimed an internal emergency in the country, thus scuttling the democratic experiment altogether. Not only did she make herself a dictator but also made major changes in the constitution making the President subservient to her and also put a number of subjects in the concurrent list which were formerly in the State List, thus disturbing the federal balance. During the emergency a proposal was also mooted to convert the parliamentary system into the Presidential system of Government. But it could not materalise. The excesses of the emergency led to her defeat in 1977 when the Janata Party came to power and partly undid the harm to the constitution. An important feature of the Indian Constitution is its eclectic character. It is a 'Scissor and paste' work. And the most striking feature is the irreconcilability in the features borrowed from Great Britain and the U.S.A. We have provided for a President in place of the King. But we have borrowed the oath of the U.S. President by which our President is to swear while assuming his office. If it is maintained that our President is a titular head then why does he swear—"to preserve, protect and defend" the constitution. Thus, there is a contradiction between the two roles. Moreover, there is no provision for counter-signature by a Minister which is an important feature of cabinet government. In fact, the controversy in regard to the powers of the Indian President has still not subsided. After the constitution was promulgated there was a prolonged controversy between Dr. Rajendra Prasad, the first President and Pandit Jawaharlal Nehru, the first Prime Minister. And Dr. Rajendra Prasad challenged Pandit Nehru to point out the provision of the constitution which in so many words said that the President was a titular head. In fact, K.M. Munshi had gone so far as to say that if Pandit Nehru had been the President and Dr. Rajendra Prasad the Prime Minister the position would have been different. Before the 42nd amendment passed during the emergency all that could be said in favour of 11

"Address at Rotary Club, Bombay on 21 June, 1974 reported in Freedom First, No. 265, 26th June, 1974, (ed.) M.R. Masani, p. 1.

Reforming the Constitution 327 the limited role of the President was that a convention would develop which would give real power to the Prime Minister. But there is a strong case for the restoration of the old position which gave the President enough discretion to act even against the advice of the Prime Minister who may take a partisan view. This is specially relevant when he advises the President in regard to a State ruled by a different party. As regards the powers of the President there was a long debate between Professor D.N. Banerji and Mr. K.K. Basu in the columns of the Modem Review of Calcutta in 1951. Professor Banerjee maintained that the speeches of members of the Constituent Assembly had to be read in order to know the intention of the constitution makers while assessing the position of the President. But Mr. Basu was of the clear and emphatic view that if the meaning of the words used in the constitution to delineate the powers of the President was clear enough there was no need to go to the Constituent Assembly debates. He rightly put forward the proposition: "unless there is ambiguity, the actual language used in the constitution is the add test"12 Yet Professor Banerjee's suggestion to set up a modified form of Parliamentary government is still relevant as in India party system has not developed on proper lines. Here there is only one durable party viz. the Indian National Congress which was in the beginning an anti-imperialist nationalist front. Mahatma Gandhi was of the view that after independence it should be disbanded as its work was over. In its place he suggested a Lok Sevak Sangh. But his advice was not accepted and the Congress was converted into a political party. After the death of Sardar Patel, Nehru became all in all in the Congress. In course of time he occupied the office of the President of the Congress in addition to that of the Prime Minister. Thus he became a benevolent dictator. When China invaded India in 1962 he did not form a national government which was the need of the hour. For this he was openly critidsed by no less a stalwart than C. Rajagopalachari who wrote: "The party that has been installed in power has refused to yidd 12 See his article "The President of India" in Modem Review, September, 1951, p. 206.

328 Reforming the Constitution place to a national government on account of the declared emergency. It continues to run government on the strength of its majority in Parliament."13

He also referred to the letter of Dr. Santosham to this effect in the same journal.14 But in a truly masochistic style he went on advocating the entry of red Chdna in the United Nations. Moreover, he permitted the emergency to be continued for much longer than it was necessary. In fact, when we fought a war with Pakistan in 1965 we were still living under Nehruean emergency. After his passing away his mantle fell on his daughter. She broke the Congress twice in 1969 and 1978. The Congress which she led is still named after her when actually it is the Indian National Congress. In fact, many parties in India have followed this practice and are named after individuals. And parties are formed and parties are broken in no time. There is also an abundance of regional parties and some parties represent religious and sectional interests. Before every general election new parties spring up like mushrooms. To check this evil, election law should provide that a party in order to be eligible for participation in elections should be at least two years old.15 Party System being highly unsatisfactory and elections being anything but free and fair, the future of democratic government in India is dark indeed. Moreover, India is in a state of drift. Ram Krishna Hegde, former Chief Minister of Karnataka has remarked: "The ruling party, the central leadership is drifting. The leadership of the opposition is also drifting. And there has never been a very serious, sincere attempt by anybody, including the opposition, to tackle some of these national issues in a determined manner."14

Due to the unsuitability of the Parliamentary Cabinet System there is a need to evolve a system in which some features of the Swiss system are incorporated. Professor Banerjee wrote: 13 Sxvarajya, Vol. X, No. 24, Madras, December, 11, 1965, p. 1. 14 Ibid., p. 37. 15 G.P. Srivastava, Booth capturing and Election Rigging in India, Indian journal of Public Administration, Special Issue on Administering Elections in July-September, 1991, Vol. XXXVIII, No. 3, p. 484. 16 Sunday (Weekly) Special Issue, Why is this Sub-continent Burning? Vol. II, Issue 4,14-20 August, 1983, p. 28.

Reforming the Constitution 329 "So far as the executive government is concerned, I would combine for India some of the features of the Swiss system with those of the British system. That is to say there should ordinarily be in India a statutory coalition (or composite) executive representative, as in Switzerland, of all important parties in the legislature, both at the CentTe and in the provinces together with ministerial responsibility on the British lines. But the executive should not be 'plural' or collegiate in character as in Switzerland."17

A mix of British and Swiss system would answer the needs of the country better than the British liberal democratic model. The Prime Minister should be elected by the Lok Sabha and he should have the right to nominate half of the members of his ministry and the other half should be elected by the Lok Sabha itself in consultation with the Prime Minister. Any Minister should be removed by the Lok Sabha on the recommendation of the Prime Minister. This would prevent the Prime Minister from becoming a despot and at the same time all political talent in the legislature would also be usefully employed. The Prime Minister and other ministers should be members of the lower house and non-member should be considered for the post of Prime Minister or Chief Minister.18 D.R. Sen a member of the Sarkaria Commission on CentreState Relations participating in a seminar also expressed himself in favour of combining some features of the Swiss system with the British Cabinet system. He remarked: "In a two-tier system with 'non-fixed tenure' governments, different political parties ruling at different levels face the temptation and even political compulsion of indulging in the adversary game of undermining the position of one another, especially when party loyalty is weak and discipline lax. The result is that governments are so busy keeping themselves in power that they do not have time to pay attention to governance."” 17 The Future o f Democracy and Other Essays, Calcutta, A. Mukherjee, 1953, p. 179. G.P. Srivastava, Restructuring Indian Political System for Greater Goal Achievement, Indian Journal o f Public Administration, July-September, 1985, Vol. XXXI, No. 3, p. 53. 19 Centre vs State, Can't Both Be Strong? Proceedings of a Seminar Organised by the Leslie Sawhny Programme, Jaipur, August 5 to 7, 1988, p. 14.

330 Reforming the Constitution He wants that article 74 should be modified in such a way that "aid and advice" of the Council of Ministers should not be binding on the President where he is specifically required by any other article to act with the advice of any other authority or in his discretion. He mentions articles 60,75,78,103,118,143,274,317,341 and 342 in particular.20 This should apply to the States also. Great harm was done to the institution of the President by the 42nd amendment made during the emergency. The pre-amendment position of his office needs to be restored in order to introduce the necessary flexibility. That amendment also disturbed the federal balance by transferring some subjects from the State to the concurrent list. This has been objected to by six states and should, therefore, be reconsidered in view of the demand of greater powers by federal units. It should be remembered here that this tendency to demand greater powers exists not only in federations but also in well knit unitary states like Great Britain where Scotland has been agitating for the expression of its identity while Northern Ireland has been using terrorist techniques to get out of the United Kingdom This raises the question of the men who handle the constitutional machinery. Actually much depends on how the constitution is worked. In fact, if anything is needed it is reform of men rather than the machinery. Field Marshal Manekshaw rightly hinted at the need of a true leader in his address at a birth anniversary.21 Madhu Limaye also said22 that it was because of the vile nature of the Indian politician who could see beyond his nose that a national government which was necessary to face stupendous problems facing the country and trying to tear it apart could not be formed. We need sincere leaders who not only possess moral character but also the commonsense of constitutional knowledge.23 20Ibid., p. 19 21 See his address at the 59th Birth Anniversary of late Col. Leslie Sawhny in Freedom First No. 265, June 1974, p. 1. 25See his article "The Constitution has been misused by the ruling party". Sunday (Special Issue) Why is this sub-continent Burning?, op. cit., pp. 20-22. “ In his Keynote address to the Convention on Governors organised by the All India Lawyers Union, V.R. Krishna Iyer, retired judge of the Supreme Court of India remarked: "The euphemism of the Constitution when operated by illiterates in the axioms of the Westminster culture, lends itself to horrenous distortions.

Reforming the Constitution 331 Moreover, they should abide by norms and conventions if the constitution is silent on any matter as it cannot lay down every minute detail. But there is a need to have a second look at some provisions of the constitution. In the first place, article 356 has been most abused. Therefore, in it breakdown of the constitutional machinery should be defined. Secondly, nowhere in the constitution the expression O.B.C. has been used. It needs clarification. Thirdly, the right to religion in part III of the constitution should only be confined to practice and the words "profess and propagate" should be deleted as was suggested by a Muslim member from Bihar in the Constituent Assembly. Finally, we find that some inconvenient provisions have not been invoked at all by the ruling party. Until recently the Inter-State Council provided in article 263 had not been set up. And financial emergency has never been proclaimed even at times when the countiy has been faced with acute financial stringency. The rulers want to avoid it lest they are required to tighten their own belts and curtail their expenses bordering on squandermania. India has had a Prime Minister who suffered from the mania of setting up Commissions for almost anything and giving them a constitutional status. But in this countiy there is a need for a Commission to supervise the working of the constitution. Dr. Ambedkar was frank enough to admit that "democracy is a top-dressing on the Indian soil which is essentially undemo­ cratic." And a former civil servant has also candidly remarked: "Let us face it: Temperamentally we are not democrats. Our social universe is still governed by feudal ethos, and caste system has conditioned us to view human equations in hierarchical categories. Even the most ardent advocates of decentralisation never pass power down the line once they happen to grab it. Most senior civil servants have been struck by the contempt their Chief Ministers have for their ministerial colleagues. Once the elections are over, most MPs and MLAs look upon their constituents as a nuisance."14

Naturally in such a situation, the political system cannot be expected to deliver the goods and many of the pious platitudes uttered by the fathers of the constitution are bound to remain a dream. 24S.S. Gill, A Withering State?, The Hindustan Times, 15th June, 1992.

34 Urgent Need for Amendments Plea for Constitution Reforms Commission P.G. MAVALANKAR CONSTITUTION has not failed. The Governments and the governed have failed. Basic features of the constitution must not be touched. Parliamentary system should continue. But, we do need constitutional reforms and right conduct to improve the present ugly situation. A Constitution Reforms Commission of 15 members of proven merit and integrity be appointed. A great deal of obsolete parts of the constitution can be deleted and it needs to be abridged considerably. Preamble should be restored to its 1950 shape. Funda­ mental Rights chapter can be put in fewer words. Directive Principles need implementation. President's discretion and position of governors need defining. The Union and the States both should be strong. Topmost priority should go to electoral reforms.

he constitution has not failed us; rather, we (the Governments and the Governed) have failed the constitution! The fathers of the constitution made a fine job, their followers a bad one! Dr. B.R. Ambedkar, while replying to the debate in the Constituent Assembly on 25 November 1949, had said bluntly; "However good a constitution may be, it is sure to turn out bad because those who are called to work it, happen to be a bad lot". And, then, he quickly added: "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. The working of a constitution does not depend wholly upon the nature of the constitution".

T

Reforming the Constitution 333 The working of the constitution during the last 42 years and more has not been entirely disappointing, but neither has it been wholly satisfying and encouraging! While it did deliver the goods to some extent, it has fallen short of many an expectation and desired results. Several flaws and faults have surfaced in all these years; the fact that the constitution was amended 69 times in just a little over four decades is a telling evidence of the malaise. I am, however, not in favour of a large-scale or radical alteration of our constitution. So, I do not argue, or make a plea, for setting up or electing a new constituent assembly. What we need is not a fresh or a new constitution, but a refreshing and firm resolve to assess candidly and critically the performance and record so far and then to amend the constitution suitably and squarely. The essential ingredients of our constitution should remain in tact; "the basic structure", as the famous Supreme Court Judgement called it, of the constitution must in no way be touched or modified, it is sound and sacred, and it should continue to be as it is—sensible, serviceable and safe. It follows, therefore, that the parliamentary form and system of government must be retained and, indeed, be strengthened. The presidential model, as is practised in the United States, need not be transplanted in the Indian soil. What is good and workable in one large democracy is not necessarily so in another. The British pattern, which we have adapted, not adopted, suits us admirably; it guarantees a more meaningful principle and a purposeful practice of responsible government in a democratic polity. We have been, by an historical accident, fairly familiar with the 'Westminster Model' since pre-independence days; this too prompted the constitution-makers to opt for it. Our experiment and experience with it has spanned over the last 45 years, and it is by no means an adequate or a sufficient period of time to arrive at a judgement against it. Moreover, why make a gamble in deserting the known constitutional mould and embracing the unknown outfit? The task of reforming and improving the present consti­ tution, through a series of some major and many minor amendments and adjustments should, I submit, be entrusted to a special group or body. Such a 'Constitution Reform Commission' may comprise, say, fifteen members, drawn from all over the country, and each one of them should be a nationally recognised person of proved merit. He or she should not only be an expert

334 Reforming the Constitution in handling and weighing various constitutional matters and issues with competence and skill, but, what is more, he/she should be a person of utmost independence and undoubted integrity, possessing a national outlook and global perspective. Such persons are not found in plenty, it is true; but, surely, a vast and varied country such as ours has enough of them The selection of these men and women may rest with the President of India in consultation with the Prime Minister and the Chief Justice of India. A brief and neat outline of the definite terms of reference should be spelt out along with the announcement of the composition of the said Commission. Their report and recommendations should be available in one year. This time­ limit should be strictly adhered to; it means that the work must be carried out on war-footing as it were. A sense of earnestness and urgency must inform the deliberations of such a Commission. The full report, together with the suggestions and recommend­ ations, may then be placed before the Parliament and the people for their careful consideration and nationwide debate. 90 days may be allotted for this purpose, after which the Parliament would adopt the findings of the Commission with such alterations as may be unanimously agreed to, thus paving the way for all necessary amendments to the constitution. The constitution of India, as it stands amended up to the day, is perhaps the largest single written document, embodying the fundamental law of the land, in the democratic world. It is "bulky" (as admitted by Ambedkar: "the constitution of no countiy could be found to be so bulky"); it is burdensome; it is boring to a commoner but a veritable heaven for a constitutional lawyer! A lot of things and situations, bearing the stamp or mark of the day, have crept into our constitution. These can surely be eliminated straightaway. A good deal has changed in India and the world during the last four decades and more; several contexts have disappeared or have assumed different dimensions; quite a few political and allied problems have given way to the new ones; many a challenge of the forties have vanished and altogether a novel set of questions and complexions seems to envelope us all while we are on the threshold of the dawn of the 21st Century. All this implies that we should discard the obsolete and the outof-date material from our constitution. Indeed, the constitution must be curtailed to its natural and desirable size; in a word, it should contain the essential and unavoidable minimum rather than the non-perennial and superfluous maximum. The bigness

Reforming the Constitution 335 of the constitution can hardly be described as its distinctive or desirable feature! Let me begin with the Treamble'. Verily, it is the key to opening the constitution. It set«* »he tone, and puts the text in motion. It signals the democratic contents and contours of the constitution. The Treamble' serves as a beacon star and a guiding spirit to the legislature, executive and judiciary—to the entire governmental machinery—and it inspires and directs the citizenry to think and act in tune with the perennial principles of a genuinely democratic republic. No other constitution in the world enunciates more aptly and succinctly the basic tenets of good governance and democratic citizenship. The Treamble' is not, strictly speaking, a part of the constitutional articles, and yet, the constitution cannot be complete and meaningful without the Treamble'! Its brevity is the soul of its wit and wisdom; its clarity is its charm and spirit! The celebrated British political scientist and reputed Oxford Professor, Sir Ernest Barker, specially printed the Preamble to the Constitution of India, after the table of contents in his book "Principles of Social and Political Theory" (1951). Sir Ernest explained: "It seemed to me, when I read it, to state in a brief and pithy form the argument of much of the book; and it may accordingly serve as a key-note. I am the more moved to quote it because I am proud that the people of India should begin their independent life by subscribing to the principles of a political tradition which we in the West call Western, but which is now something more than Western". Twenty-six years later, the 'Preamble' was amended by adding the two adjectives 'Socialist' and 'Secular' to the 'Sovereign Democratic Republic' and by inserting the two words 'and integrity7 before the words 'of the Nation'. This wordy expansion was included in "the Constitution (44th Amendment) Bill, 1976," which later when passed formed part of the Constitution (42nd Amendment) Act, 1976. This was carried during the "Internal Emergency" era brought about by the then Prime Minister, Mrs. Indira Gandhi. I was an Independent M.P. at the time (of the extended Fifth Lok Sabha) and I had vehemently opposed this particular amendment of the Treamble', as indeed I had consistently registered my strong protest against the entire 'Emergency' with all its obnoxious and arbitrary law-making and doings, on the floor of the House and outside. I still maintain that stance, and I hold that the said amendment of the 'Preamble' is unnecessary as well as objectionable. How can such adjectives, however laudable they

336 Reforming the Constitution may seem, be interpolated into the sacred Treamble'? What justification is there, for instance, in qualifying the 'Republic' as 'Socialist'? Must every citizen accept such an ideological description or status of our Republic? My plea, therefore, is that the 'Preamble' must stand exactly as it was passed on 26 November 1949, when "We, the People of India, adopted, enacted and gave to ourselves this Constitution". Part III of the constitution, containing the various 'Fundamental Rights' of the citizens, needs a fresh appraisal and a fine abridgement, without of course curtailing in any way the essential ingredients of the citizens' basic Human (and political, economic, social, educational, cultural, etc.) Rights. All citizens must be made constantly aware of their rights. The state does not create, but it recognises, these rights; and, all governments and establishments must continually strive to implement and enhance each and every right enshrined in the constitution, all the more because the teeming millions of our countrymen are, unfortunately, still illiterate and poor. The chapter on "Directive Principles of State Policy", which is detailed in Part IV of the constitution, needs to be strengthened in some ways. Original as it is, it must not remain ornamental!

It is a unique feature (the only other constitution which contains a similar feature is that of the Republic of Ireland), but it must also prove to be a useful one. The "Directive Principles of State Policy" deserve both eulogy and attention. Unless they are applied to in actual practice by the federal and state governments, these 'principles' will have little value. The constitution-makers have rightly assumed that the TDirective Principles' are an extension of the 'Fundamental Rights'; the two go together, they are complementary to one another. Although these Trinciples' are non-justiciable, the Judiciary have to read and interpret the 'Rights' in conjunction with the Trinciples'. A good blending of the 'Gandhian' tenets and the Tabian' thoughts is to be found in these 'Directive Principles'. They are meant to inspire and guide the governments, all the time, in their policy-making and legislative implementation. These Trinciples' are not just 'pious platitudes' as the critics would have us believe; rather, they are ethical and compulsive guidelines to be followed continually and honestly if the state has to earn the status and meaning of a true 'Welfare State'. These Trinciples' are not a mere political manifesto, they are a sacred constitutional command. A noted American historian, Granville Austin, has well asserted that

Reforming the Constitution 337 'Directive Principles' along with the 'Fundamental Rights' "constitute the conscience of the Constitution". Mr. Justice K.S. Hegde of the Supreme Court (who later became the Speaker of the 6th Lok Sabha) has correctly said that "the essence of the 'Directive Principles' lies in article 38, which echoing the 'Preamble', reads:" . . . the state shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political shall inform all the institutions of the national life". One feels sad, and even angered, that the governments at both the federal and state levels have paid little attention to these Trinciples' during the last 42 years. A special cabinet group comprising the Prime Minister, the Finance Minister, the Human Resources Development Minister, the Home Minister and the Law and Justice Minister should monitor the implementation machinery for translating these Trinciples' into governmental policy and action. The 'Directive Principles' cannot be allowed to remain a decorative piece to be watched and admired but not embodied in legislation and administration. Regarding the powers and functions of the President, a special and positive exercise must be carried out with a view to making the President's discretion more exact and concrete. His discretionary powers as well as duties need to be spelt out specifically and clearly. Then Article 356 should be used convincingly as also sparingly. The imposition of 'President's rule' in one or more states should serve as an occasional medidne rather than a daily bread! The 'Centre' cannot resort to this article as a form of political punishment to a particular state government, specially when the Union Government belongs to one party and the state government to another. The President's position and role as a Constitutional Head should be defined more positively than as at present. He should be free and fully equipped 'to warn' and 'to encourage' (as Walter Bagehot said in regard to the British Sovereign, the Crown) the government of the day. The constitution has provided for the post of a Governor in a state. But what are his true functions? Is he an agent of the 'Central' Government? Or, is he a representative of the President? To whom should a Governor be loyal—to the President? to the Prime Minister? to the Constitution? I do not advocate the abolition of the post of a Governor in a state. I think his presence and performance are necessary and useful in the State setup; but only if he can act judiciously, independently and impartially.

338 Reforming the Constitution The colonial hangover of the gubernatorial office must go forthwith, and the accompanying lavish life-style should be drastically cut. The Governor's office has so far gone through all sorts of stresses and strains, and it has been repeatedly put to severe test. He must be encouraged, by constitutional contrivance, to act as a 'friend, philosopher and guide' of both the government and the govermed in a state. The question of Centre-State relations has been on the forefront of the Agenda for Major Constitutional Reforms particularly during the 1980s and 1990s. Suffice it to say that a case for evolving a more genuine federal polity is long overdue. The political and psychological scenario that prevailed at the time of constitution-making compelled the Constituent Assembly to deliberately opt for a strong Central Government. Various centrifugal forces had to be curbed and controlled; political authority needed to be vested in a coherent and effective government at the centre; the newly independent nation required a well-knit single unit which would govern with a firm hand and help build up the forces of political unity and administrative integrity. So, the constitution-makers created a 'quashi-federal' structure, very nearly bordering on the unitary pattern. But the times have changed now enormously and qualitatively. We do, of course, need a strong central government, but so also do we want strong state governments, today. An 'indestructible Union with the indestructible States' is the imperative need of the day. A strong Centre and strong states are not antithetical to each other, as a matter of fact, the two are complementry to one another. Such a constitutional arrangement would prove purposeful and productive in creating a healthy, cooperative federalism in India. I shall, in the end, briefly mention one vital area, that of Electoral Reforms: Part XV of the constitution deals with 'Elections'. It urgently deserves to be fortified and further democratised. Although, fortunately, national and state elections are being held fairly regularly (with the single exception of 'Internal Emergency7 June, 1975 to January 1977, which was an aberration of our Constitution and Democracy), these are becoming and proving a fraud on the electoral ethics and conduct. While we still have a good semblance of 'free and fair' elections by and large, they are getting less and less 'fair7 and honest! The whole electoral system and working is increasingly resulting into a rotten and farcical phenomenon! An earnest and immediate

Reforming the Constitution 339 endeavour is called for in this regard; we need both constitutional reform and right conduct to remedy the ugly situation. Successive governments are seized of this question. There is no dearth of suggestions and recommendations at improvement. Several Chief Election Commissioners have submitted useful and detailed points; various parties and persons have put in print their demands in this direction; the two Committees appointed (in 1974 and 1978) by Loknayak Jayaprakash Narayan on the subject (and on both of which I had the privilege to serve as a member) have also presented their reports. All this material has been under consideration of the different governments, at least since 1977 onwards, but pretty little has been achieved so far. Apart from the lack of 'political will', it seems that all governments and parties have a vested interest in the status quo! An immediate consideration and an in-depth analysis of this matter, and prompt remedial and necessary action thereon, must receive our topmost priority. May I, in conclusion, quote again Dr. B.R. Ambedkar: "(the Constitution) is workable, it is flexible and it is strong enough to hold the country together... 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 was vile"!

New Directions in the Emerging Scenario S.R. MOHNOT PREAMBLE should be restored to its original form by omitting the word "socialist". Political power cannot be divorced from economic power. States must be made autonomous economically and financially also if they have to be politically so. Half of the members of the Planning Commission should be nominated by the States. Recognition of religious minorities is anachronic in a secular nation. Constitution must prohibit participation in political process by any party calling itself by a religious denomination. Voting on legislation should be free and an adverse vote on a Bill should not mean a vote against the Government. Government should fall only on a vote of no-confidence being passed. Under the present system, parties that have not been voted to power may rule through a game of numbers and a statistical fallacy. A party getting a minority of popular votes may become the majority party and even small parties may get into power through alignments. Preferential voting system should be introduced, winner must have over 50 per cent of votes cast. No legislator should be allowed to change his party without seeking a fresh mandate on the basis of his new affiliation. To mitigate the rigours of the party system, a Rashtriya Panchayat of about 10,000 members in three tiers—Lok, Zila and Rajya —elected on non party basis should be established and the Upper Houses at the Union and State levels should be reconstituted by functional distribution. The office of the President deserves more freedom and dignity. Also, democracy has got to be strengthened at the grass roots level.

Reforming the Constitution 341 A more economical, saner and more meaningful way of electioneering has to be devised. It has a direct and

fundamental linkage with constitutional structure and goals. A constitutionally weak India will remain weak politically and economically and cease to be a world player. We need a good overhaul of the political and economic matrix. This cannot be done by tinkering with the system. Fundamental changes are called for.

dynamic constitution of a dynamic society has, of necessity, JC x to be a dynamic document. Modem societies are changing iast, perhaps, often too fast to absorb and assimilate epoch-making changes. Technology, human behaviour and social values must move in unison. They fail to do so when institutional framework becomes obsolescent; and when they fail to do so, they breed conflict. The constitution of a nation performs four fundamental functions. First, it codifies the basic human values and in the process represents the cultural heritage, the contemporary ethos and the future aspirations of the people. Second, it provides the basic institutional framework for the functioning of the society, from the individual to the combined force of the nation via the three pillars of the State. Third, it identifies and guarantees basic human rights. Fourth, to achieve the first three, it sets out the obligations of the individual and the groups including and in particular the legislatures, the judiciary and the executive. It is in this wider context that we reappraise the Constitution of India and examine the need for change in consonance with the configurations of a changing society. A constitution changed too often will lose its sanctity; but one which does not change with the needs, standards and value systems of a changing society, becomes, in its application dysfunctional. a

Fundamental Human Values The founding fathers of the constitution designed a preamble to the document of which any society can, at any time, be proud. There was nothing novel in the concepts though; these have been iteratively used by political and social seers. The design, however, was prophetic—both restrospectively and prospec-tively—and was deeply moored in the Indian heritage. It conformed to the ethos which Mahatma Gandhi, the Father of the Nation and

342 Reforming the Constitution Jawaharlal Nehru, the architect of modem India, represented. At one time, the Supreme Court considered this Preamble ostensibly extraneous to the constitutional law but later rightly admitted as the fountainhead of what was contained in the constitution. And then came primarily as a political manoeuvre a new injection. The word 'Socialist7 was added to the basic human values enshrined in the constitution. It was a political tinkering with a basic national document. Socialistic goals, as commonly understood, fully conform to the socio-economic framework which the constitution espouses. A great deal of these goals have been incorporated into the document right from the Preamble to Fundamental Rights and through the Directive Principles of State Policy. There was, therefore, no need for the new introduction. A more basic question, however, is that socialism has no accepted connotation. From Marxism to Leninism to Mao's Cultural Revolution and onwards to Fabian Socialism to Indian Socialism and to Romanian Socialism, there is an infinite variety to choose from. The only fundamental socialism, from which all others drew inspiration is Marxian 'dictatorship of the proletariat' and 'Scientific Socialism'. One is the most hated framework today and the other is not considered attainable by anybody, not even the most ardent well-meaning (political) fundamentalists (as distinguished from the fair-weather political activists), (c/. JRD Joad: It has worn-out of shape as everyone has tried to wear it.) What did we then mean by 'socialism' other than what was already contained expressly in the constitution? Perhaps, a slogan. What is worse, socialism today is a much suspected (if not maligned) word. The socialist experiments have failed practically wherever they have been tried. The so-called socialist frameworks have collapsed in some countries and in others they are being surreptitiously or stealthily being transformed. The recent events worldwide have proved, as was assessed by many political and economic analysts earlier, that communism (or socialism) was at best a political creed—if not a religion. The authors of the new injection did not anticipate or comprehend this and tried to stain the design the founding fathers had evolved and carved out with profound thought and wisdom A most significant change which needs to be considered is the withdrawal of the word "socialist" from the constitution. One could expect a great deal of opposition from the mindset in which Indian polity has been trapped. The political wisdom

Reforming the Constitution 343 demands that this should be overcome. We need not speculate if the present political leadership is prepared to face the challenge from the more vocal factions. It may need a lot of political education and, perhaps, some more economic mistakes and suffering before it can be accomplished. Many will, no doubt, prefer to leave the sleeping dog rest lest it opens up a Pandora's box. Many a political activist will aigue that sitting in the lap of the Preamble, it is a harmless thorn and what if we ignore it until informed mass opinion demands it. Yes, one could do so if political courage is wanting. Economic Federalism In an attempt to evolve a compromise—at best an amalgam—of unitary and federal systems, the Constitution of India has created a considerable amount of confusion about the relationship between the Central and State Governments. In a laige countiy like India, the debate must continue on the respective powers, privileges and responsibilities of governments at the Central, State and local self government levels. The Indian debate goes far beyond this basic reality. It is because of the attempt to develop a new model which can secure the full benefits of both the worlds—total autonomy matched by a powerful central government. The position has been made more complicated by the establishment of an institutional framework which impinges—in some cases for good reasons—on subjects which are or should be basically state subjects. The institution of planning is the most powerful constituent. There are no two opinions about the need for planning mechanism at the present stage of India's development. Almost all developing economies adopted it worldwide. The fact still remains that it made heavy inroads into the economic activities of the citizen and those of the states. In its applied form, it transferred some of the basic functions to the Centre which should have been performed by the States. It was due, among other reasons, to weak state governments (with equally weak bureaucratic machinery) and the same party being in power both at the Centre and in the States most of the time. In the process, it produced a hotch-potch of political and constitutional structures which are competitive, not complementary. Some opposition has been expressed when other parties form governments in some states, but given the steel framework

344 Reforming the Constitution of economic planning, allocation of financial resources and regulatory regimes, the state governments could not achieve real autonomy. In fact, the carrot of financial assistance has induced them to acquiesce in the Centre continuing to be powerful. And the political power cannot be divorced from economic power. If economic federalism is to be achieved, one thing must be clear: there should be no system of grants-in-aid from the Centre to the states. Since the weak financial systems have survived on 'gifts' from the Centre in diverse forms based on Gadgil Formula or via centrally sponsored schemes, the states will rise in protest if these were proposed to be abolished. There would be no need for such a protest if it is replaced by a more rational system. The states must be autonomous economically and financially if they have to be politically so. The Finance Commission is an ingenious device devised by the authors of the constitution to deal with the Centre-State financial relationships. Its jurisdiction needs, however, to be extended. The same Finance Commission (or another independent commission) should determine the proper sharing of revenues other than those covered by the Finance Commission. The Planning Commission cannot be considered to be an impartial agency since its linkage with the Central Government is too intimate (as it functions as a Ministry of Planning), thanks to the fact that the Chairman of the Planning Commission is the Prime Minister and several Central Ministers, including the Planning Minister are Members of the Commission while none of the Chief Ministers is a Member. The Planning Commission could, perhaps, be transformed into a more objective institution if it were constituted with at least half of its members nominated by the State. Should it be considered necessary to reduce the size of the Planning Commission to its workable dimension, the States could nominate their representatives by rotation. One could argue that this will undermine the cohesiveness of the Commission. But this argument is based on the apprehension borne out of the need for maintaining "commanding controls" in the hands of the centre, which is not an imperative. The Planning Commission is, no doubt, not a constitutional organ of the State. Nevertheless, its paramount role in the CentreState relationship cannot be ignored or overlooked. A valid point in this context is that while the States are asked to observe rules of fiscal discipline (not permitting

Reforming the Constitution 345 overdrafts with the RBI, for example), Centre's fiscal system had remained as inefficient as could be imagined. It resorted to unlimited printing of notes and overdrafts from RBI, let alone large funds borrowed from foreign governments and international bilateral and multilateral agencies. If it were not so it would not have fallen into the quagmire of BoP deficits culminating in the economic crisis of 1990-1991. It is only the extra power wielded by the Central Government which made it possible to retain 70 per cent of the foreign aid received to finance state-level projects. The Concept of Minorities India has been claimed universally as a secular nation. It is, therefore, anachronic that it recognises religious minorities in the political system. The minorities are accepted for special treatment in all civilised societies for their protection from the overwhelming majority; but a secular state cannot have special political privileges. They cannot certainly be recognised and treated as a political group. The same applies to racial division such as in the USA. The very fact that majority and minority communities are accepted as such in a political system, builds up an abnormal psychosis for the political groups resulting in confrontation and conflicts among the people. This psychosis is responsible for permitting a party to style itself as Indian Muslim League. How could a secular India permit a political party named as a Muslim League? The constitution must prohibit any party to participate in the political process which calls itself by any religious denomination—Hindu, Muslim, Christian, Sikh, Jain, Parsee, Budhist or whatever. If permitted, it is a negation of the basic principles on which the Indian Constitution and its ethos has been built and is bound to generate conflicts based on religion. If there is an Indian Muslim League, why can't there be a Hindu League? And what if this Hindu League or a Muslim League comes to power? How then will secularism be sustained? And to permit a party by name as the Muslim League has even greater significance. It is the Muslim League which engineered rabid communalism making millions of both commu­ nities suffer and which divided the country. But for the treatment meted out to one community in Pakistan—then West and East Pakistan—all the three nations, India, Pakistan and Bangaladesh

346 Reforming the Constitution would have remained essentially pluralistic societies despite the physical division into three parts.

An amendment which must be on top priority should seek to provide that no political party shall be recongised or be permitted to participate in the political processes, which is known by any religious denomination or which admits the members of one community only or prohibits members of other communities to become members. By the same count, any religious leader in his capacity as the functionary of any religious body shall not appeal or issue directives to the members of his community to favour any candidate or any political party. These changes are fundamental to the concept of a secular society which modem India has endeavoured to build, guided by the teachings of the Father of the Nation. What is more important: the minority communities will never get assimilated in the mainstream so long as political institutions are composed of parts which are identified by religions or sectarian creeds. Conscience Voting The instrument of the whip has become a farce in parliamentary democracy. The honourable members elected by the people are forced to vote against their conviction and conscience whenever it suits the 'leaders'—some of whom were never elected to lead the party in any democratically and systematically elected party hierarchy by the rank and file of the party. One would argue that without the use of the whip 'the horses' will never behave. Behave for what? After having been elected to the highest forum of law-making in the country, must they follow some people blindly against their conscience? Is it an essential of democracy? Many would argue that without the system of the whip, no government will be stable enough to govern a country. It is not true. The answer to the problem seems simple. When a bill or resolution sponsored by the government is voted down, it is not necessary that the government should fall. It does not happen in the USA or Franc» or in other countries. Why should it happen in India? Or have we to follow it at any cost because it happens in the UK? The government should fall only when a no-confidence

Reforming the Constitution 347 morion is passed. The non-acceptance of a bill or resolution initiated by the government could be simply struck down if a majority of the Parliament does not want it Why each issue has to be so fundamental to the existence of a government which has obtained a mandate from the people on a much bigger and basic programme. The absence of this means that if a Prime Minister, with the help of his own Cabinet, wants something, a policy or even a law, the whole nation must accept it since he gets a whip issued to the members of his party in Parliament, no matter if a majority of the Parliament does not want it and, therefore, by implication, the whole nation does not want it. As a corollary, another significant question: why is it necessary that the people in a parliamentary democracy be given the opportunity to express their opinion only once in five years when a general election takes place. The question assumes greater meaning if it is recognised that during the elections the people's opinion on specific matters, of national importance, are not expressed anyway. When one votes for a candidate, there is no way to disaggregate his integrity, dedication and wisdom, on the one hand, from one hundred and one issues he stands for, on the other, and those which his party espouses, on the third. Once it is specifically provided that the government falls only when a no-confidence motion is passed (or confidenceseeking motion is lost), it will leave the freely elected members of the legislature to express their opinion which in their judgement represents the opinion of the people of their constituencies or at least their own. The Statistical Myth A basic problem with multi-party Parliaments is that democracy turns out often to be a statistical myth. A party which got one member returned to the Assembly (West Bengal in 1967) became a party of the government but one which secured more than 100 seats was out in the cold and was considered to have met with a humiliating defeat. The Chief Minister belonged to a party with just 40 MLAs. More curiously, the two groups which fought tooth and nail with each other during the elections got into a coalition and ruled the state. It was obviously against the people's mandate. The state was ruled by parties which were, in fact, not voted to power by the people. The statistical fallacy has three major aspects:

348 Reforming the Constitution A. A party which has been supported by a minority (say 35 to 45 per cent) becomes the majority party—not only the single largest party but a party with absolute majority. And once it gets into the government, it does whatever it likes to do—except amend the constitution. This is contrary to the basic principle of democracy which demands a government by the majority—majority not by the number of members of the legislature but by the number of people supporting it. B. Parties by means of alignments get into power although they may be those least preferred by the electorate. (Alignments for forming coalitions where no majority party emerges have to be forged on mutually truncated or adjusted programme). C. The system assigns high weightage to the statistical miracle of the number of members of a party in legislature and low to the number of people supporting a party. It is, in brief, a game of numbers—of strange alignments— and not a matter of the will of the electorate. It is said that when it is a multi-party system it cannot but be a game of numbers. This is not true and is a fallacious assumption. There are systems by which anomalous positions can be reduced to the minimum if not completely eliminated. First, preferential voting system should be introduced. If the candidate does not get over 50 per cent of the votes cast, the second preference vote of the candidates standing after the second should be transferred to the first two candidates by the second preference. By this, it will be ensured that only those supported by more than 50 per cent of the voters will be elected. Second, no candidates should be allowed to cross the floor. An effective answer to this is not the defective anti-defection law. The members who want to cross the floor, singly or collectively in whatever numbers, must be made to seek a fresh mandate from the electorate. It will not only minimise horsetrading of the horses (which are supposed to be of a high breed by their standards of honesty and dedication) but will make the expression of preference by the electorate more meaningful. If the electorate has elected a member which stood for a specific programme, how could he change over to another party elected with a different programme and a different mandate? In all fairness to the people, he must seek a fresh mandate.

Reforming the Constitution 349 And what could be the problem in enforcing this? Perhpas, it does not happen in the UK, why in India? Do we have to follow another country with its own ethos and political structure when more valid options of a meaningful democracy are available. The statistical farce of democracy in action and the parliamentary whipping can be corrected and a more represen­ tative system can be established by two major reforms: 1. Constitution of a Rashtriya Panchayat. 2. Reconstitution of the Upper Houses (Rajya Sabha and LCs) by functional distribution. Rashtriya Panchayat The constitution of a Rashtriya Panchayat could be a major change in India's democratic fibre which will mitigate the rigours (and may be the flaws) of the party system The party represents a package of positions on national, (social, economic and public) and international issues. The manifestoes frequently do not reflect much; in real context they are the same, at best they are an inventory of serious and nonserious intentions as a part of strategies to win votes. After one makes the adjustments for the honesty, integrity and capability of individual candidates, a voter who votes for a particular party is not voting for all that the party stands for. There is also the conflict between local, national and international issues. The party strength in the state legislature and Lok Sabha is, therefore, no reflection of the stand a majority, sometimes an overwhelming majority, of the voters take on specific issues. When, therefore, the majority party votes for an issue—especially when a whip is issued— what is sought to be passed might, in fact, be the opposite of what the people want. This conflict is almost ubiquitous. The most effective answer will be the referendum on important basic national and international issues. (Incidentally, Switzerland uses this mechanism). The referendum cannot be organised easily in a countiy with 800 million people now and over 1000 million people tomorrow. The Constitution of a Rashtriya Panchayat with some 10,000 members can resolve this problem. The Rashtriya Panchayat need not meet physically except may be through its elected Councils. The Panchayat should be structured in three tiers, local, district and state, termed Lok Panchayat, Zila Panchayat and Rajya Panchayat, respectively. The Panchayats should express their opinions on national

350 Reforming the Constitution policy issues through opinion polls. National issues should not be considered party issues and should be resolved by the expression of opinion by the Rashtriya Panchayat. The Rashtriya Panchayat will carry the consensus of the constituents. It is, therefore, imperative that the members of the Rashtriya Panchayat should be elected as independent members and not as party members. The number of members to be elected from each area will be in proportion to the population of the district and, in turn, of each state. It could be a valid point for consideration that Lok Sabha itself could act as the Rashtriya Panchayat, since people are elected directly by the people. There are at least two reasons why Lok Sabha cannot be a substitute of a Rahtriya Panchayat. The number is rather limited for a large population exceeding 800 million and the members are party-committed. The very rationale for which the Rashtriya Panchayat is invoked is to provide a forum for the expression of opinions on national issues by the people rather than follow preferences of candidates and parties. And as explained earlier, there is a wide cleavage between the people's opinions on specific issues and the opinions expressed by the members of the parliament as members of parties—with or without a whip. There is an unwritten whip omnipresent even when a formal one is not issued to follow the line of thought espoused by the party (often only opposing what the other party does not stand for). Some politicians may consider that it will mean an external curb on the members of the Lok Sabha. In fact, it is so only when opinions on issues are considered on party lines. Once the national approval is adopted on broad issues of national consensus, there will be no need to own or disown specific postures. What will be decided will not be a matter of what one party or the other considers as an imperative; it will be the national view, the view of the majority of the people directly expressed on a given issue (Rousseau's "general will"). The Rashtriya Panchayat will be a great help in taking decisions on real national issues such as terrorist activity, internal or external. A New Face for the Upper House India's Rajya Sabha at the Centre and Legislative Councils at the states are an attempt to copy the British elite system by a

Reforming the Constitution 351 Republican System. The upper houses are theoretically a mere replication of the Lok Sabha only, mutilated by the historic process. The Lok Sabha is elected every five years enbloc but a third of Rajya Sabha is elected every two years with its existence in perpetuity. The two are a replication because in the first instance the same voters elect the State Assemblies and the Lok Sabha members. In the second stage, the Legislative Assembly members elect the members of the Rajya Sabha. It might be argued that the elections to the Legislative Assembly do not take place at the same time as those of the Lok Sabha and only one-third of the members of the Rajya Sabha are replaced every two years. Again, Rajya Sabha elections are held on the basis of proportional representation and Lok Sabha is elected directly. Although these variation could be considered as a divergence between the Lok Sabha and the Rajya Sabha, these divergencies are only a mutilation of the system since at any particular point of time, the Rajya Saha does not represent the mood of the people in favour or against certain political ideologies or parties or policy patterns. Moreover, and this is significant, the purpose of the Upper House is not to represent the opinion of the electorate—that is better done by the Legislative Assemblies and the Lok Sabha. Nor is the purpose of an Upper House to create a competitive forum for the lower house. The basic purpose of having the political luxury of an Upper House is to introduce a specialist reappraisal and screening of the law formulation. Rajya Sabha, and for that matter every Upper House, must, therefore, have a completely different composition. The Lok Sabha members are the people's direct representatives. They need not satisfy any qualification other than that they are adults and do not possess unsound mind. They pass laws of the country some of which demand high specialised skills. Most of the members do not possess the specialist skills and background. Their voting represents basically the strategy of their parties. On the other hand, it should be the function of the Rajya Sabha to whet these laws and provide considered second thought and advice to the Lok Sabha in the role of an elder statesman. The Rajya Sabha accordingly must possess a completely different composition, such as of: — Lawyers — Economists — Scientists

— Trade Unionists — Artists — Literatures

352 Reforming the Constitution — Technocrats — Business Managers — Social workers — Craftsmen — Sociologists — Women workers — Businessmen — Farmers — Administrators — Agriculture Labour What proportion each specialist segment should have is a matter of detail. Whatever be the electoral college for the election of the Upper House, the elected members should be persons whom the electorate consider qualified, experienced and capable in their respective areas of specialisation. The preferred course will be to constitute the Rashtriya Panchayat as the electoral college. The Rajya Sabha should then act through committees to examine each piece of legislation. The President's Status It is somewhat extraordinary that the President of India, the head of the State, called in India's lingua franca as the Rashtrapati — and not merely as Rajyadhyaksha—has to read a speech in his own name which has been written or cleared by some other individual. The President is made to say what he might not like to say. Obviously, India borrowed this practice from the UK where the monarch is a titular head. Whether or not it is appropriate in that country, it is highly repugnant to the spirit of an enlightened Republic in which every functionary has his own rights and position. Why should a duly elected President of India, who has the right to dismiss or induct a Prime Minister, have to say what the Prime Minister wants to say—and not what he wants to say. The President's position becomes only more anamolous when during the same term of office of a President two or more different parties assume the reigns of government. The President then has to say different things at different times, some of which might as well be contradictory or opposed to the other. And this has happended in India more than once. The best and honourable way would be that the President makes his own address and gives, by his perceptions, the broad guidelines as an elder statesman highlighting the national problems confronted by the country and advising what in his opinion should the Parliament (and may be the government) do. Since he is addressing the Parliament, he will focus on the issues which the Parliament should address leaving the executive action

Reforming the Constitution 353 to be designed and implemented by the executive (that is, the Government). It is, however, argued that it is the legislative programmes and policies of the government which need to be outlined and highlighted. But for this, there are plenty of other opportunities. Why can't the Prime Minister himself outline his policies to the Parliament A more realistic and honourable compromise shall be that the President delivers the inaugural address analysing the conditions and giving broad outlines of what should be done. It is then the Prime Minister's turn during the Vote of Thanks to articulate his forthcoming programme. The change in parliamentary practice is not a matter of procedure but of a basic principle and has a direct linkage with the role and status of the President in the Republic. This takes us to the issue of the Presidential form of governance. Each constitutional configuration has its own strong and weak points, merits and demerits and risks and challenges. It is rightly said by Alexander Pope on his essay on Man 'Tor forms of government let fools contest, whatever is best administered is best". Indian experience of being able to sustain the democratic framework in the midst of India's baffling diversity, spread of poverty and dilapidating resource scarcity, demands that we do not experiment with an alternative political mechanism and instead support and strengthen what we have. By meddling with another system, if nothing else, we will lose a decade of stability and development, each of which is critical to our sustenance as a democratic people. By implication, therefore, even if the presidential form is a better political structure, it has to be deferred to a point in remote future. But that does not mean that we allow the deficiencies in the present system to continue. There is a method to achieve the good of both worlds. Two moves in this direction should be welcome: first, invest the position of the President with the freedom and dignity it deserves; second, find effective and meaningful ways and means to strengthen democracy at the grassroots level. The constitution is wanting in that direction and the obvious result is that no serious attempt has been made to reform the position; and when it has been made it is merely in the form of rhetoric and cosmetic touches.

354 Reforming the Constitution Elections and Electioneering The contestants to the legislatures (of States and Lok Sabha) become active mainly at the time of elections and try to woo the voters. This becomes necessary because no constructive work is done by most of the contestants. This, among many factors, is responsible for the colossal amount of expenditure incurred by parties and individual candidates. For the Parliamentary elections the total expenditure per serious candidate has risen in some cases to Rs. 50 lakhs. TTiis expenditure breeds corruption in two stages; at the time of the elections and in the post-election term of office. And the massive efforts and expenditure only helps to confuse the electorate. It is word for word. And higher the decibel of ones word, the higher it is considered to be powerful. This word is often sugar-coated (with illegal bribing) or camouflaged to pour venom against the rivals. With the infinite number of issues involved and different media used, the electorate fails to discern who is right and who is wrong. The campaigning over a few weeks is the most wasteful and undemocratic activity. The way in which the whole cities, towns and villages are environmentally spoilt (by those who will tomorrow teach the world as Ministers on environmental purity and protection) is far from being graceful. Why can't the Indian political system devise a more economical, a saner and a more meaningful way of letting people know what the candidate is, what he stands for and what he can do. Incidentally, even in America, the distortions are no less flagrant. The only difference is that the US can afford the luxury, a poor developing country like India cannot. Moreover US pursues a completely different way of life, India has a different one. There ought to be a provision that public canvassing on individual basis is prohibited. Each candidate should be given equal opportunity to express himself on public platforms through different media provided by the State. One might argue (i) that this does not require a constitutional amendment, and (ii) that, perhaps, nowhere else in the world this practice is followed. The problem has, however, assumed such absurd proportions that it impinges on the very fabric of the country's social and economic life. Why should India, a poor country, not become a pioneer and set a commendable and an essential practice? Since the problem has a direct and fundamental

Reforming the Constitution 355 linkage with the constitutional structure and goals, it must be treated at that level. Summing Up The Indian brand of democracy, by whatever name called, has survived against heavy odds. It is however, universally recognised that it is highly mutilated and has produced unwholesome results in public life. It has generated abysmally low ethical standards leaving a large mass of teeming millions living in poverty and destitution. The nation has the resources, and, of course, the wisdom. It has to play a leading role in world affairs in decades to come. It will fail to come up to global expectations unless it gears itself for the new challenges. With the information and technological explosions on the anvil, it has to prepare itself for the new task. A constitutionally weak India will remain weak politically and economically. And a weak India domestically will cease to be a leading world player. We need an overhaul, a good overhaul, of the political and economic matrix. This cannot be accomplished by tinkering with the system. Some fundamental changes are called for, many more than what have been suggested in this brief paper. A bold new approach is the need of the day. Let the Indian leadership rise to the occasion to take up the challenge. It has the capacity. Whether it has the will, only time will tell.

36 Amending the Indian Constitution Some Macro Considerations IQBAL NARAIN NO wholesale changes in the constitution are called for. But there should be a systematic review to determine the changes that are necessary and can be brought about under the existing amendment process. Changes are needed to prevent the misuse of Governors' powers under Article 356, to provide for state funding of elections and to clarify the Speaker's powers under the Anti-Defection law. Also, there is need for decentralisation of powers from the Centre to the States and from the States to local authorities and to lay down that a political party to form Government must have obtained majority both of seats and votes. Word 'Socirlist' should be omitted from the Preamble. Details of these and other amendments may be carefully worked out by a Parliamentary Committee.

here are, broadly speaking, three schools of thought on amending the Indian Constitution. The first would like the Indian Constitution to be changed lock, stock and barrel. They would naturally ask for fresh constituent assembly to do the job. There are others who would not vote for a complete change in the Indian Constitution but would like some changes to be introduced in it as also some new clauses to be added. There are still others who think that no systematic change even of the second variety is warranted; it is all right to have the present constitution, as it is, with the amendment process which has so far been backbone of the changes that have been found necessary and, therefore, already made in the Indian Constitution through it. My own feeling is that the middle course may be adopted in

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Reforming the Constitution 357 regard to amending the Indian Constitution. It should, therefore, mean that there should be systematic thinking about the changes that may be necessary in the constitution through a joint committee of Parliament and thereafter changes warranted by experience be made in the constitution with the help of the existing amendment process itself. These amendments may be distinguished from the set of sporadic amendments found necessary in the constitution from time to time. The constitution is, by and large, a well thought-out document It has withstood the test of time and so far all our industrial and agricultural needs have been fulfilled under its aegis. Forty-three years are nothing in the life of a nation and as such the years of the constitution also do not go against it. The preamble of the constitution, as it was originally conceived, lays down the objectives of the constitution rather clearly. The Supreme Court of India has also brought about a balanced partnership between the fundamental rights and directive principles of the state policy now with amendments to the constitution made, wherever deemed necessary. It is also worthwhile to mention here that today every political party is concerned more about its own electoral interest and thus it would be difficult to get a select band of people to sit in the Constituent Assembly and frame a constitution in which the members may rise above party loyalties. We will also be missing the idealism of the nationalist movement phase which had gone a long way in the making of the Indian ¿institution. Altogether thus there is no need to change the Indian Constitution as a whole, all the more because today casteism, religious fanaticism, regionalism and language orthodoxy possess all rather completely. It is thus feared that the quest of a new constitution would, in fact, be an attempt at annihilation of India as a nation. Some of the provisions like those concerning the governor and the constitutional crisis in the state have been put obviously to a partisan use and they should naturally be changed. There is also need of addition of a few constitutional provisions regarding government support in elections so that burden of election expenses may be borne equitably by the political parties or the candidates in the fray. It has been asserted by the Supreme Court in the Kesavanand Bharati case that there is a basic structure of the constitution. Thus the Supreme Court has made the distinction between basic structure and ordinary structure of the constitution.

358 Reforming the Constitution This, to my way of thinking, is not proper, particularly in the case of a rigid constitution like that of India. I would, therefore, suggest that the constitutional pundits may debate at length the thinking of the Supreme Court about the basic structure of the constitution and if they find that there is no point in continuing with the distinction between a basic structure and ordinary structure, they should state it rather frankly. If necessary a constitutional amendment may also be made to this effect through the existing amendment process after convincing the judiciary to this effect Similarly, there has been a tug of war between the legislature and the judidaiy on the powers of the Speaker in the context of the Anti-Defection Law. Here also there is emerging clarity on the issue now and the Anti-Defection Law should be amended to make the issue clear through a constitutional amendment. It is the office of the Governor, particularly his power to report to the Central Government about the existence of a constitutional crisis in the state which has made him rather controversial today. It is high time that the constitution should clearly lay down that any Governor to be appointed should have the consent of the Chief Minister of that State in writing so that he cannot be used for partisan purposes by the Central Government. If necessary a constitutional amendment could be introduced to that effect. This has become necessary because so far we have not been able to develop a clear-cut and healthy convention on the subject. Similarly, it is necessary that the constitutional crisis in a state should only be reported to the Central Government by the Governor if the ministiy has actually lost the confidence of the legislature. On this criterion it could be argued that what the Governor did in Nagaland recently was correct, though he had been removed by the Central Government on the basis of his action. There have been umpteen number of cases in which it has been alleged that this power has been misused by the Centre so much so that at the time of appointment of a Governor the choice is determined by the Centre in favour of its own party politicians, quite often in lieu of an independent dignitary of high status. It is, therefore, necessary that the constitution should be amended to incorporate changes in this respect. There is, also, the need of changes being introduced in the nature of India's federal polity. It is not merely because of the changes that we see around in Russia, Yogoslavia or

Reforming the Constitution 359 Czechoslovakia, but because of the genuine need that we feel about the changes here. The Indian society is pluralistic in character and, therefore, its perennial quest has been unity in diversity. For this, one can opt for a loose federation in which only those powers remain with the Centre which are necessary, particularly these days when there is a growing emphasis on diversity of all sorts in the country. The rest are given to the States. Decentralisation should, therefore, be the key-note of our federalism. Then alone it will be possible to decentralise power and authority from the states to the local government because today no State is interested in passing on its power and authority to the local bodies, for it does not expect to gain anything in return from the Centre. If, therefore, decentralisation is to be there, it should be from the Centre to the States and then from States to the local bodies, resulting in a sort of democratic pyramid. This is all the more necessary in the context of the reforms of economic liberalisation today. It is common knowledge that at present a political party may have got just about 45 per cent votes and yet it may have the requisite number of seats at its command which may enable it to constitute the government. It can thus be clearly laid down in the constitution that any political party should get majority both of seats and votes before it can come to power. Similarly, if the State decides to help the political party or candidates financially, a provision will have to be made to this effect by amending the constitution itself. This may, however, not be possible today with all sorts of scarcity around, particularly in terms of public expenditure. It should also be seriously thought how public support to political parties or candidates be given and accounted for in an above-board manner. There is also the need of some constitutional amendments which may have to be introduced to undo the changes already made. For example, in the constitution, the word 'socialist' has now been added in the preamble. This means a continued emphasis on public enterprises and also what is being done in the name of economic liberalisation today may not always be possible, if the word 'socialist' is interpreted by the Supreme Court with reference to the preamble rather strictly. It may, therefore, be better to delete the word 'socialist' from the preamble through another constitutional amendment. This may be done only if most of the political parties want it. The same, for example, may not be done about another addition to the preamble which

360 Reforming the Constitution concerns our secular polity. This will naturally be opposed by all other political parties except the Bharatiya Janata Party (BJP) today. Altogether thus what one can do here is only to give out certain macro considerations about amending the Indian Constitution. The details will have to be worked out if the idea clicks. I may also like to reiterate once again in the end that I am opposed to wholesale changes in the Constitution, though I would like the present sporadic initiative to be replaced by some systematic thinking on the subject. However, I know that, in spite of this, there may be need for sporadic amendments also. For this the constitution has provided for the amendment process, which would continue to take care of these needs.

Contributors U.C. AGARWAL, I.AS. (Retd.) Former Central Vigilance Commissioner and Secretary, Personnel and Administrative Reforms, Government of India. S.D. BALI Secretary-General, Forum for National Reconciliation, New Delhi. DR. C.P. BHAMBHRI Professor, Centre for Political Studies, Jawaharlal Nehru University, New Delhi. VIR CHOPRA Department of Government, London School of Economics, Scholar and Management Consultant V.S. RAMA DEVI Former Secretary, Legislative Department, Ministry of Law and Justice, Government of India. SHEILA DIXIT Former Union Minister DR. P.R. DUBHASHI Vice-Chancellor, University of Goa DR. Y.C. HALAN Resident Editor, Financial Express JUSTICE V.R. KRISHNA IYER Distinguished Jurist and Retired Judge, Supreme Court of India HARI JAISINGH Distinguished Journalist and Author DR. J.C. JOHARI Department of Political Science, Shyam Lai College, University of Delhi.

362 Contributors KIREET JOSHI, I.A.S. (Retd.) Member-Secretary, Ved Vidya Pratlshthan, Former Special Secretary, Education, Ministiy of Human Resource Development, Government of India. DR. SUBHASH C. KASHYAP Hony. Director, Constitution Project, India International Centre; Former Secretary-General, Lok Sabha, Parliament of India. S.P. MALAVIYA, M.P. Former Union Cabinet Minister P.G. MAVALANKAR Former Member of Parliament Director, Harold Laski Institute of Political Science, Ahemdabad. DR. S.R. MOHNOT Executive Director, Centre for Industrial and Economic Research, New Delhi DR. IQBAL NARAIN Senior Fellow, Institute of Development Studies, Jaipur; Former Vice-Chancellor Banaras Hindu University and Member-Secretary ICSSR. B.K. NEHRU, I.GS.(Retd.) Former Governor and Ambassador N.A. PALKHIVALA Distinguished Jurist and Senior Advocate, Supreme Court B.S. RAGHAVAN, I.AS . (Retd.) Former Managing Director, West Bengal Power Development Corporation DR. C S. RAJHANS Author, Former Member of Parliament R. RAMACHANDRAN Social Activist and Management Executive, Riyadh, Saudi Arabia. S. RAMACHANDRA RAO Advocate, Andhra Pradesh High Court, Hyderabad DR. RAMASHRAY RAY Professor of Political Science, Centre for the Study of Developing Societies, Delhi.

Contributors DR. G.R.S. RAO Director, Rajaji International Institute of Public Affairs and Administration, Hyderabad K. BRAHMANANDA REDDY Former Governor and Union Cabinet Minister S. SAHAY Distinguished Journalist, Former Editor, The Statesman VASANT SATHE Author and Free thinker, Former Union Cabinet Minister GIANI ZAIL SINGH Former President of India LT. GEN. S.K. SINHA, PVSM (Retd.) Former Vice-Chief of Army Staff and Ambassador LAL NARAJN SINHA Former Attorney General of India DAYAL SINGH SODHI Professor, Punjab University, Chandigarh SOU J. SORABJEE Former Attorney General of India DR. G.P. SRIVASTAVA Former Head, Department of Political Science, S.V. College, Aligarh B.G. VERGHESE Distinguished Journalist DHARMA VIRA, I.CS. (Retd.) Former Cabinet Secretary and Governor

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BUILDING A NEW INDIA An Agenda for National Renaissance Subramanian Swamy In his thought-provoking book which sets out an agenda for national renaissance, Dr. Subramanian Swamy argues for change in a wide variety of fields — from renaming the country and rewriting Indian history in order to rid it of a colonial bias, to restructuring the economy, rethinking national security imperatives and revamping foreign policy doctrines.

NATIONAL GOVERNMENT Agenda for a New India Vasant Sathe In this book, Vasant Sathe presents his vision for a New India — self-reliant, resilient, vibrantly democratic and secular. This is his agenda for restructuring the country politically, economically and socially to bring out its in­ herent potential to the full, and also develop its rich heri­ tage and ideals, in which he himself has a deep and abid­ ing faith. The author presents an agenda for pulling the country out of the morass, visible in almost all spheres of life, into which it seems to be sliding and to make it once more into a land ‘where the mind is without fear and the head is held high...’.