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A Futile Exercise

A Futile Exercise

Virendra Parekh
The Observer Of Business and Politics
February 4, 2000
Title: A Futile Exercise
Author: Virendra Parekh
Publication: The Observer Of Business and Politics
Date: February 4, 2000

Vajpayee government's foray into a review of the Constitution promises to be highly educative: It will tell us a lot not only about the Constitution and the political system but also about the people who run it. Whether it will be anything else remains to be seen. Brushing aside the reservations and vocal opposition from several quarters, the government has decided to set up an 11-member national commission to 'review the working of the Constitution within the framework of parliamentary democracy'. The fact that it does not have the requisite majority in Parliament and state assemblies to carry out any Constitutional amendment has not deterred it.

The educative process has already begun and we know a little more about our President, the main opposition party and, of course, the ruling coalition.

The first salvo was fired by none other than President Narayanan himself who said: "One has to make sure whether the Constitution has failed us or have we failed the Constitution". He pointed out that any number of reviews and amendments cannot make up for the lack of character and integrity of those in power.

Ironically, some of his own actions are of doubtful constitutional propriety. Last year, he forced the Vajpayee government to obtain a vote of confidence although the Constitution knows no such vote and the Opposition would have had any number of opportunities for voting out the government during discussions on the budget. Then ponder the constitutional propriety of the President formally opposing a measure which the elected government had promised in its election manifesto. In our constitutional setup, the President and the government normally speak and act for and on behalf of each other, rather than against each other.

Some comic relief in this drama was provided by the Congress party's sudden discovery of the sacrosanct nature of basic features of the Constitution. A party which still swears by Indira Gandhi has conveniently forgotten what Indira did to the Constitution through the notorious 42nd Amendment during an equally notorious emergency. Sonia Gandhi knows nothing about India but her minions must be thoroughly shameless if they feign to forget this recent past.

The 42nd amendment, for which Congress had no mandate, was pushed through Parliament when the democratic process was suspended, opposition leaders and thousands of others were languishing in jails without any charges or trials.

In contrast, the BJP and its allies have always expressed the need for a review of the Constitution. Their common manifesto mentions it in unambiguous terms and they are going about it in a frank and democratic manner. And Congressmen are charging them for trying to subvert the Constitution! If anything, BJP and its allies should be charged with not going far enough. The BJP has conceded the political and ideological battle even before joining it. That is the meaning of the twin restrictions 'within the parliamentary democracy' and 'without interfering with its (ie Constitution's) basic features'.

A switch-over to a presidential form of government has been ruled out officially and categorically. The commission will, therefore, be left with nothing more than tinkering with the present system. It can consider two constitutional changes to ensure the stability of the government and accountability of politicians. Both have already been widely discussed by many constitutional experts and political commentators and found wanting.

The commission can consider, for example, a fixed five-year term for all legislatures. This would spare the country frequent mid-term polls but will not ensure stability of the government.

In fact, going by the character of present MPs and MLAS, a fixed term of Lok Sabha or state assemblies would only make the government more unstable. Secure in the knowledge that the House will not be dissolved prematurely, they will pursue their favourite pastime of permutations and combinations with greater vigour, making and breaking governments at the drop of a Gandhi cap.

Another important amendment that could be considered is a partial or full switch-over to proportional representation. In an election under it, parties get seats in proportion to the votes polled by them. Such a system works best in a country with a few well-established parties run on democratic lines. How it would fare with our party system is anybody's guess.

The recent political instability is a result of political fragmentation which, in turn, is a reflection of social fragmentation. Society is fragmented horizontally and vertically as the traditional bond provided by Hinduism has weakened and there is no idea or ideal that can enable the people to overcome their narrower identities and unite in a common national endeavour. Constitutional amendment cannot address t his basic malady.

The commission can certainly look afresh at Central-State relations and recommend more powers to State. But it does not need a full-fledged commission to review the entire Constitution. The real capitulation has been on the so-called basic structure of the Constitution. No law or court judgement has defined it so far. Over the years, several distortions have come to be looked upon as among its basic features.

The issues involved are highly complex, politically sensitive and can only be mentioned here in passing. It may sound blasphemous to say that India's Constitution is neither democratic nor secular. However, a democratic state is founded on individuals, not groups and certainly not caste or religious groups. Caste-based reservations in employment and education are a negation of democracy. In any case, their original ten-year tenure expired long ago. A secular state cannot recognise any religious minority or majority; only citizens. The articles on minority rights in the Constitution, therefore, compromise its secular character. Article 370, which the Constitution itself describes as transitory, has come to be regarded as a basic feature. The incorporation of these provisions represented hangover of partition days and incomplete nature of India's independence. This hangover prevented recognition by the Constitution that the Indian State is a political embodiment of Hindu civilisation.

It is this aspect of the working of the Constitution that needs a hard second look and remedial action. BJP can be forgiven for not possessing the necessary political backing to carry out such an action. But it cannot be forgiven for refusing even to undertake such a task, after making such a fuss about it.

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