Hindu Vivek Kendra
«« Back
Tale of two reviews: secrecy vs transparency
Tale of two reviews: secrecy vs transparency

Surya Prakash
The Pioneer
February 25, 2000

Title: Tale of two reviews: secrecy vs transparency
Author: Surya Prakash/New Delhi
Publication: The Pioneer
Date: February 25, 2000

In 1976, when India was groaning under the impact of Indira Gandhi's dictatorship, the Congress appointed a committee headed by Swaran Singh to review the Constitution. The committee worked at great speed, consulted party MPs, party Chief Ministers and Pradesh Congress chiefs and came up with a horrendous list of amendments to cripple the judiciary, destroy the federal character of the Constitution and to give Parliament untrammeled power to alter this document.

The Swaran Singh report set the tone for the infamous 42nd Amendment that destroyed the very soul of the Constitution. While all this was on, citizens were barred from holding meetings to discuss the proposed amendments and the media was prohibited from criticising the proposals.

As against this, the National Democratic Alliance(NDA) that is now in power has appointed a national commission of jurists and other eminent persons to review the Constitution. While the Swaran Singh panel worked in fear and secrecy, this commission will work under the glare of publicity and possibly take a lot of flak for what it does or does not do.

This is one of the reasons why the Congress' present stand vis-a-vis constitutional review sounds hollow. A second reason is the party's sustained assault on the doctrine of basic structure propounded by a full bench of the Supreme Court in the Keshavananda Case in 1973. In this case, the court held that while amendments could be made to any part of the Constitution, they would have to be made within the broad contours of the Preamble. The basic foundation and structure of the Constitution should remain untouched, it said.

Judges sitting on this 13-member Constitutional Bench explained the doctrine in different ways. According to Durga Das Basu ("Shorter Constitution of India" ), the following elements constitute the building blocks of this doctrine: Supremacy of the Constitution, Secular Character of the Constitution, Federal character of the Constitution, Separation of powers between the legislature, the executive and the judiciary and the republican and democratic form of government.

Soon after the Keshavananda Case, Congressmen began the chant for a "committed judiciary". They argued that a judiciary that worked at cross purposes with the government would be damaging to the country. Side by side, they launched a tirade against the Supreme Court for enunciating the doctrine of basic structure and argued that the judges were exceeding their brief. Bolstered by this show of sycophancy by her partymen, Indira Gandhi imposed an emergency, suspended fundamental rights, jailed opposition leaders and imposed press censorship. Having snuffed out free speech, she appointed the Swaran Singh Committee to review the Constitution. This committee held discussions with Congress MPs and other partymen between May 10 and 20, 1976 and came up with recommendations which sought to change the character of the Constitution.

A major recommendation of the Swaran Singh committee was that "the constituent power of Parliament to amend the Constitution as provided in Article 368 should not be open to question or challenge". In order to achieve this, the committee said Article 368 should be amended to categorically prohibit judicial review. Further, the High Courts should be barred from entertaining writ petitions challenging the constitutional validity of a Central law "and any rule, regulation and byelaw made thereunder".

Even in the Supreme Court, when the constitutional vailidity of a Central law is challenged, the matter should be heard by not less than seven judges and a judgement declaring a law as invalid must have the support of two-thirds of the judges constituting the bench.

It also suggested a significant change in Article 226 to cripple the writ jurisdiction of High Courts. Further, there was a clear attempt by the committee to strengthen the Union Government and weaken the States. The committee said education should be moved to the Concurrent List in the Seventh Schedule, but the most invidious suggestion in this area was that relating to police deployment.

Over the years, the states had zealously guarded their exclusive right to maintain law and order within their territories. The Swaran Singh committee sought to intrude into this area by saying that when states seek central help to meet law and order problems " it (the Centre) should have the power to deploy police and other similar forces under its own superintendence and control in any state".

In short, the Swaran Singh committee was hitting at the very foundations of the Constitution by suggesting measures to weaken the judiciary and to alter the federal features in the Constitution. Armed with such dangerous recommendations from a party committee that was deliberating the issue when Indira Gandhi's dictatorship was at its worst, the Congress government led by her pushed through the 42 Amendment Act that virtually sanctified authoritarian rule and knocked the bottom out of India's democratic Constitution.

Younger members of the Congress party would be surprised to know the contents of this black law and the views of their senior colleagues on the basic structure on the Constitution when Parliament passed this amendment Bill in 1976. But that will have to wait until tomorrow.

Back                          Top

«« Back
  Search Articles
  Special Annoucements