India’s Constitution-makers chose the parliamentary system of governance and not the presidential system. It is universally acknowledged that both systems have their respective pluses and minuses.
The basic structure doctrine does not bind us to parliamentary democracy.
Lal Kishinchand Advani wrote the following article in May 1998. As Home Minister and Vajpayee’s second-in-command, he was preparing for the setting up of the National Commission to Review the Working of the Constitution. In the face of severe opposition, however, Advani and Vajpayee were compelled to restrict the Commission to work “within the framework of parliamentary democracy.”
No other issue of long-range consequence to India’s polity and society has so stirred the national mind in recent times as the proposal for a comprehensive review of the Constitution mooted by the Atal Bihari Vajpayee government. The National Agenda for Governance adopted by the constituents of the ruling BJP-led alliance says: “We will appoint a commission to review the Constitution of India in the light of the experience of the past 50 years and to make suitable recommendations.”
Disinformation is being spread in some quarters as to what this promise implies. It is said that this government wishes to scrap the Ambedkar Constitution and adopt an entirely different Constitution. In specific terms, it is being alleged, mainly by spokesmen of the Communist parties, that the government harbours a desire to throw secularism overboard and also to scrap the policy of reservations.
Both these allegations are utterly baseless and politically motivated.
I would like at the very outset to affirm with all the emphasis at my command that the Commission for Constitutional Review contemplated by the present government will be required not to tinker with the essential ingredients of the present Constitution. Further, I would like to categorically aver that both secularism as well as the scheme of reservations for the scheduled castes, scheduled tribes, and backward classes are such essential ingredients, which cannot be, and will not be, tampered with in any way.
On both issues, my party and government have a principled approach. In the context of secularism, the BJP would like the country to ponder why India has a secular Constitution in the first place. India became Independent in 1947. But its freedom was accompanied by Partition. And the basis of Partition was religion. The Muslim-majority areas became Pakistan and the Hindu-majority areas became India. The princely states were allowed to make their own choice.
The architects of Pakistan’s constitution opted for theocracy and declared their country and Islamic state. If our Constituent Assembly had done something similar, perhaps the world could not have blamed us. If, nevertheless, the Constituent Assembly drew up a secular Constitution under which all citizens, irrespective of their faith, are equal, it is essentially because theocracy is alien to India’s history, tradition, and culture. The concept of Sarva Panth Samabhaav (equal respect for all faiths) has always been regarded as an essential attribute of the state and statecraft in our country.
So ingrained is the Indian concept of the secularism in our national culture that it did not even occur to the architects of the Constitution that they should specially mention it as one of its perambulator principles. It is only during the anti-democratic Emergency rule imposed by Shrimati Indira Gandhi (1975-77) that this secularism found a place in the Constitution through the route of amendment.
Article 368 of the Constitution is the provision which lays down how the Indian Constitution can be amended. The history of the enactment of this provision, and of its varying interpretations from time to time, is really fascinating.
Commending this provision to the Constituent Assembly. Dr B R Ambedkar quoted at some length Thomas Jefferson, the great American statesman who had played a key role in the framing of the American Constitution. Ambedkar cited two quotations from Jefferson:
“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.”
“The idea that institutions established for the use of the nation cannot be touched or modified, even to make them answer their end, because of rights gratuitously supposed in those employed to manage them in the trust for the public, may perhaps be a salutary provision against the abuses of monarch, but is most absurd against the nation itself. Yet our lawyers and priests generally inculcate this doctrine and suppose that preceding generations held the earth more freely than we do: had a right to impose laws on us, unalterable by ourselves, and that we, in the like manner, can make laws and impose burdens on future generations, which they will have no right to alter: in fine, that the earth belongs to the dead and not the living.”
Dr Ambedkar went to add: “What Jefferson has said is not merely true, but is absolutely true.. The (Constituent) Assembly has not only refrained from putting a seal of finality and infallibility upon this Constitution, but has provided a most facile procedure for amending it.” He also explained how much more difficult it was in the USA or in Australia or in Canada to amend the Constitution.
Those who try to propagate these days that the present Government of India is seeking to undo the good work done by Dr Ambedkar would do well to study Dr Ambedkar’s own views in this regard.
Until 1967, the Supreme Court had consistently held that any provision of the Constitution could be amended or even scrapped by Parliament if the procedural requirements of Article 368 were fulfilled. But in the famous Golak Nath case, the Supreme Court held that the provision of fundamental rights was unamendable, and if Parliament wanted to amend any such provisions a new Constituent Assembly had to be convened.
The Golak Nath decision was superseded in 1971 by the Constitution (24thAmendment) act, 1971. This law provided that the validity of a constitutional amendment shall not be open to question on the ground that it takes away or affects a fundamental right.
In 1973, however, the Golak Nath decision was judicially overruled. The Supreme Court delivered a landmark judgment, now known as the Keshavanand Bharati judgment. In this, the court held that though no specific provision (not even one relating to fundamental rights) was unamendable the “basic features” of the Constitution could not altered. Justice H R Khanna said the “basic structure” of the Constitution could not be changed.
The Keshavanand judgment is voluminous. The basic and unalterable features identified by the apex court can be listed as follows:
- Supremacy of the Constitution
- Rule of law
- The sovereign, democratic, and republican structure of India
- Judicial review
- Unity and integrity of the nation
- Secularism and
- Free and fair elections.
This “basic structure” doctrine propounded by the Supreme Court in the Keshavanand Bharati case has been a major bulwark against attempts to defile and distort the Constitution.
When, during the Emergency, the government of the day introduced the 44thAmendment Bill, 1976 (this later became the 42nd Amendment Act). I, then one of the hundreds of political prisoners, had occasion to prepare a pamphlet for the anti-Emergency underground movement with the caption “Not an Amendment, it’s a New Constitution.” Summing up this 20-page tract which analysed the 42nd Amendment, I wrote:
“It is quite clear then that the Constitution (44th Amendment) Bill, 1976, offers to the country not a new amendment, but a new Constitution. The balanced democratic Constitution we have had till now is to be replaced by an executive, authoritarian set-up. That Parliament and the courts will still continue is neither here nor there.
When in 1933, Adolf Hitler made the German Reichstag pass the Enabling Act transferring its legislative authority to Hitler’s cabinet, one of the clauses of the act ironically read: “No law shall be enacted that affects the position of the Reichstag.” Let the Indian Parliament, if it may, indulge in similar delusions about its own position: the people can have no such illusions. If Parliament does pass this Bill, the Constitution which they, the people of India, gave unto themselves on 6 January 1950, would have been buried fathoms deep. A new Constitution will usurp its place.”
That, indeed, was an attempt to subvert the Ambedkar Constitution. When, after the Emergency, the Janata government came to power, the 44thAmendment was enacted and the distortions made were substantially undone.
That the Congress fully participated in this task of effacing the 42ndAmendment was in itself evidence that they realised and admitted that what had been done during the Emergency was wrong.
We in the BJP-led alliance believe that the problems which this country faces today-poverty, unemployment, illiteracy, poor health, under-development-cannot be attributed to the Constitution. Dr Rajendra Prasad as chairman of the Constituent Assembly had rightly observed:
“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. After all, the Constitution, like a machine, is a lifeless thing. It acquires life because of the men who control it and operate it and India needs today nothing more than a set of honest men who will have the interest of the country before them.”
But this should not mean that we should not learn from experience. As Pandit Nehru observed in the Constituent Assembly, “While we want this Constitution to be as solid and permanent as we can make it, there is no permanence in Constitutions. There should be a certain flexibility. If you make anything rigid and permanent, you stop the nation’s growth, the growth of a living vital organic people.”
On 15 August this year the country will be completing 51 years of Independence. In these five decades, while no one has questioned the wisdom of India having accepted democracy, or republicanism or federalism, or secularism, at various points of time, several other pertinent questions have been raised, and by very eminent thinkers, whose patriotism and concern for national interest and the people’s welfare is unquestionable. Some of these questions are:
- Should the Indian political system be as centralised as it is now, or should a process or decentralisation be consciously undertaken so that much greater powers and resources become developed on the states and local self-government bodies than the Constitution conceives at present?
- While opting for democracy, India’s Constitution-makers chose the parliamentary system of governance and not the presidential system. It is universally acknowledged that both systems have their respective pluses and minuses. The question often posed is this: “At the present stage of India’s development, which of these systems would serve us better? Should the country review the choice made by our Constitution-makers?” I may mention here that while the Supreme Court identified democracy, free and fair elections as “a basic feature,” the basic structure doctrine does not bind us to parliamentary democracy.
- While adopting part XV of the Constitution relating to elections, the Constituent Assembly had in mind the first-past-the-post system of elections prevalent in the United Kingdom. Most democracies of Europe have their legislature elected by the list system. Some like Germany have accepted a mixed system. Should India, too, after the experience of 12 general elections, have a second look at its electoral system?
I have cited three questions above which could be considered in depth by the proposed commission. These do cover a wide field, but essentially they are illustrative, not exhaustive. And as anyone can see, even if the country agrees to make far-reaching changes in the areas touched by these questions, the basic structure of the Constitution will remain unaltered.
In conclusion, let me say that the debate on the need for a comprehensive review of the Constitution demands more light than heat. As for the heat sought to be generated by those who are experiencing the chill of popular rejection in recent elections, their motivated attempts to mislead the people, with lies and fibs will certainly come to naught.