The experience of the US system with a directly elected President has clearly revealed that decision making is faster, and the team that assists the President is chosen based on merit.

By Professor S.N. Misra

As India’s Constitution steps in to its 69th year, one is really amazed by the unchanging character of its basic structure, like fundamental right to life and liberty, democracy, federalism and its independent judiciary which adjudicates disputes between individual rights and denials or restrictions imposed by the omnipotent state.

Its preamble has been amplified to include secularism as an explicit construct. Socialism, the other addition, has become anachronistic in Modi’s market driven India. There has been a welcome addition like Right to education Art 21A and shift of right to property as an ordinary right.

As India was coming out from long years of imperial rule in 1947, when individual liberty was unfairly being trampled upon, the fundamental rights seemed to weigh far more in the minds of the founding fathers than the urgency of ushering in an equitable and just society.

Bill of Rights of USA rather than Socialism of USSR held greater charm and was the kernel of the Constitution.

The canopy of our federal structure has now been widened to recognize Panchayat Raj as the third tier of representative democracy in 1993. This would have gladdened the heart of Mahatma Gandhi, who always believed that India lives in its villages and that they must have the electoral power to ink their own future, rather than being waylaid by a top down approach of Central rule. While this has ensured greater participation of women, with some states like Kerala, Karnataka & West Bengal observing the spirit of grass roots democracy; it has not been a resounding success in most states. Mismatch between its administrative mandate and financial empowerment and lack of unequivocal acceptance of the state legislatures to delegate substantial role to the PRIs have been at the heart of their enfeeblement.

However, no tear is being shed after the right to property (Art 31) was moved as ordinary right 300A as it seemed to circumscribe the power of the Parliament to bring in land reform legislation.

Be it the Congress or the Janata party which unseated the Congress in 1977, no party in power wants the power of the Parliament to be questioned or checkmated by the Supreme Court.

The Janata party brought in the 44th Amendment (1978) by shifting right to property from the impregnable fortress of Fundamental rights. When the Parliament brought in Art 124A (National Judicial Appointment Committee) through a consensus in 2015 to supplant a de facto collegium system, it was struck down by the Supreme Court, as being offensive of judiciary’s independence. All the MPs, cutting across party lines cried foul and Mr. Arun Jaitley called the decision as “tyranny of the un elected”.

The upshot of all this is that all parties consider Parliament to be supreme in its law making and powers to amend the Constitution, The Supreme Court has, however, firmly affirmed that the Constitution is supreme and the Supreme court is its anointed interpreter. The dialectics of popular will be evaluated by the dispassion and objectivity of the Supreme Court.

In retrospect this has an unhappy foreboding for India as majority rule can trample upon the democratic character of a Republic and play havoc on freewill, dissent and security of the minority and the vulnerable segments of our society.

When Mrs. Gandhi imposed the Emergency in 1975 to blunt the voice of anti corruption movement by redoubtable JP and superseded the Supreme Court judges to coin a new signage of committed judiciary, the Constitution had its first major challenge of getting deprived of its pristine character. Happily it was a short lived agony as the wheels of a free election brought in a fundamental change in the architecture of governance. From a one party autocratic rule India experimented with a coalition government of Morarji Desai , where ideological differences gave way to a spirit of responsible governance. The year 1978 is a watershed moment for the Constitution, as the power of democracy got the better of ruthlessness of an elected autocracy.

A Committee was formed in 2000 to come up with suggestions to change our Constitution under Justice Venkatachaliah. It suggested in its report (2002) for Right to Freedom of Press to be explicitly included in Right to freedom under Art 19(1)(a).in line with such a provision in the US Constitution. It wanted right to private and family life and correspondence as a new Art 21B. While freedom of press is still an implicit right, the Supreme Court in a recent landmark judgment has asserted that right to privacy is indeed a part of Right to Life under Art 21. The committee also called upon the government to have a provision of Right to rural wage employment for unskilled workers. The MNREGA legislation which assures 100 days of work to all unskilled workers has become the biggest piece of inclusive legislation in the world.

However, successive governments have refrained from implementing a critical recommendation of the committee where it wanted a caveat to Parliamentary privilege under Art 105(2) to exclude corrupt acts from the purview of their freedom.

There are, however, several areas where an urgent review is called for in our Constitution. They include: (a) scrapping the special status to J&K (Art 370); (b) Uniform Civil Code as fundamental right for every religious community; and (c) bringing our governance system to a Presidential form of government in lieu of the Parliamentary form of government.

The experience of the US system with a directly elected President has clearly revealed that decision making is faster, and the team that assists the President is chosen based on merit and expertise in their respective domain. The corporate sector, the financial experts and legal luminaries form part of the team. Franklin D Roosevelt’s team had these experts like Rockefeller, who were known as one dollar men.

The present system of elected representatives in India in the Cabinet system hardly exhibit the kind of professional expertise required to understand the global trends, fiscal undercurrents required to make India an effective global power.

The Constitution is a living and evolving document that must change with the need of the time to ensure effective and professional governance. The present culture of electoral politics puts a premium on expediency over efficiency.

Victor Hugo wrote: No one can stop a moment whose time has come. Economic liberalization in 1991 was one such moment. As we step in to the 69th year this young Republic, the time for a second fundamental systemic change has come.

A Presidential system of governance will make decision making apolitical, efficient, and in sync with the imperative of global developments.


[The author teaches Constitutional Law at a University in Bhubaneswar.]