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14-point programme for the NCRC

A report tucked in a corner of a major newspaper informed us the other day about a major democratic effort by New Delhi. The secretary of the National Commission to Review the Constitution has invited the people of the country to send in their suggestions for changes in that sacrosanct document.

It is a rare call. So put on your cap, rediff readers, and e-mail your concrete views to the NCRC's secretary at raghbir@nic.in before July 31.

Below is this columnist's own humble contribution to the brainstorming that one hopes does take place in the NCRC.

1. Define "basic structure" in the Constitution itself.

   Reason: At present, we are relying exclusively on the Kesavananda Bharati case to describe the contours of the so-called "basic structure" as determined on April 24, 1973, by a wafer-thin majority of a full constitution bench of 13 judges. But there is nothing in the law to prevent the Supreme Court from changing its view in future. Worth recalling in this context is Fali S Nariman's comment:

   "In asserting the basic structure theory, the Supreme Court has asserted political power in the guise of judicial interpretation. By propounding it, the guardians of the Constitution have in one bond become the guardians over the Constitution. Constitution adjudicators have assumed the role of constitutional governors."

   Indeed, Subhash C Kashyap -- a member of the NCRC -- wrote: "There may, therefore, be every case for challenging the theory of the basic structure before the Supreme Court and having it reversed." (Reference pg 30 of his article in Reforming the Constitution, UBS Publishers & Distributors Ltd, 1992).

2. Define the word "secular" in a clear-cut manner in the Constitution.

   Reasons:

   1. The word "secular" has caused considerable misunderstanding and mischief in the nation's life of the last 50 years precisely because, left undefined, it has been interpreted differently by different groups.
   2. That all this talk of our Constitution being "secular" is absurd becomes apparent when it is remembered that its leading architect, Dr Babasaheb Ambedkar, had, when speaking in Parliament on the Hindu Code Bill, made it amply clear that he did not believe our Constitution was secular because it allowed different treatment to various communities and the legislatures could frame separate laws for different communities" (reference Kashyap, ibid, pg 16).
   3. Legal experts have accepted that the experience of Articles 28, 29 and 30 of our Constitution has very adversely affected the Hindu majority. With regard to Article 30 especially, a reputed legal expert has made the following assessment:

      "The position as it has developed is that, in effect, institutions of general education established and administered by religious or linguistic minorities enjoy a much more privileged position than those run by the government or the university. While strict supervision can be imposed on majority institutions, the same cannot be done as regards minority institutions, and affairs of such institutions can be regulated only within very narrow limits. It stands to reason whether such a result was envisaged by the framers of the Constitution. Did they envisage that minority institutions of general education, unrelated to preservation of their culture, language or script should receive preferential treatment over similar majority institutions?" (Indian Constitutional Law, 1994, Dr M P Jain, Wadhwa & Co, pg 659).

   The above state of affairs would not have occurred if "secular" were defined to mean sarva dharma samabhav -- equal respect for all religions. Indeed, that was the very definition of "secular" included in the 45th Constitution Amendment Bill. The Lok Sabha passed that definition with the required majority, but the Rajya Sabha turned it down before allowing the Bill to be passed as the 44th Constitution Amendment Act. Incidentally, the NCRC's chairman had told PTI that "secularism cannot mean anti-majority". (Reference his interview to that news agency on October 31, 1994, the day he retired as chief justice of the Supreme Court of India.)

3. Define the word "minority" in our Constitution.

   Reason: Because the Constitution uses the term "minority" without defining it, the Kerala Education Bill case made the Supreme Court opine that while it is easy to say minority meant a community which was numerically less than 50 per cent, the important question was 50 per cent of what -- the entire population of India or of a state or a part thereof? (All India Reporter, 1958 SC 956).

   The Minorities Commission treats Muslims, Christians, Sikhs, Buddhists and Zoroastrians as religious minorities at the national level only. Moreover, the "less than 50 per cent" concept leads to the oddity that any section of people aggregating between 0.1 per cent and 49.9 per cent of the total constitutes a minority; add just 0.1 per cent to the latter and it becomes the majority!

   Interestingly, the Concise Oxford Dictionary brings in the 50 per cent concept of "majority" or "minority" only in terms of votes, not with regard to groups of people.

4. Define the word "religion" in our Constitution.

   Reason: With "religion" not being defined in our Constitution so far, the implementation of Article 25 has led to the Supreme Court giving it an expansive content, leading to the courts delving into scriptures to ascertain the status of a religious practice in question and determining which practice is secular rather than religious in belief. (Reference M P Jain, ibid, pg 636-637).

   The ideal should be that the State ought not to enact any law on any religion or religious practice unless it ensures (a) social welfare-cum-social reform, (b) removal of such practices as impinge on criminality, and (c) equal treatment of all citizens, irrespective of the religion they belong to. Preventing legal criminality and enabling gender equality among all communities at all times should be the only guiding principles in any religious legislation.

5. Incorporate the Constitution of Jammu & Kashmir in the Indian Constitution.

   Reasons:

   1. Even the so-called intellectuals of our country are not aware that Jammu & Kashmir has its own Constitution, thereby aggravating their emotional isolation from what is a vital and integral part of India.
   2. Even the country's company law requires the balance sheet of subsidiary companies to be a part of the balance sheet of the principal company. Hence, the J&K State Constitution (adopted by its State Constituent Assembly in November 1956) should be published as an important appendix of the main Indian Constitution along with a suitable prologue on its origin and development. After all, the Indian nation as a whole is governed by two different Constitutions -- that is a reality not projected by the present Indian Constitution.

6. Make "no-confidence" motion a mandatory provision in the Constitution.

   Reasons:

   1. The best tradition of parliamentary democracy demands that a government in power be removed only by passing a "no-confidence" motion introduced by the Opposition and not by the government itself asking for a vote of confidence.
   2. Even when a new government is sworn in with a very slender majority, it ought to be the Opposition's duty to try and bring it down; it is not the government's task or function to seek approval for its continuance.
   3. The President of India's position becomes controversial and embarrassing when he is pressured by the Opposition to instruct the government to seek a vote of confidence.

7. Introduce qualifying examinations for potential legislators.

   Reason: Legislators have been found to be ignorant of the state and the country's history, socio-economic scenario, constitutional provisions, legislative procedures, and even of elementary communication skills.

   Proposal: All who wish to be legislators (including in municipal corporations) must compulsorily qualify for the position by securing 50 per cent passing marks in three-hour written papers on (a) the Indian Constitution, (b) the socio-economic history of free India, and (c) general knowledge.

   The exams in these subjects should be conducted annually by the Union Public Service Commission with candidates paying Rs 500 as examination fees. Only nominated Rajya Sabha members should be exempted from passing these exams as a pre-condition for their nomination.

8. Introduce a minimum age for Rajya Sabha members.

   Reason: Even relatively young people are being "smuggled" into what was essentially meant to be "the house of elders".

9. Deny ministerships and House voting rights to nominated Rajya Sabha members.

   Reason: The people of India do not elect them.

   Rider: Brilliant people like J V Narlikar can be nominated to the Rajya Sabha without passing the qualifying examinations, but be given positions only as 'advisers', not ministers.

10. Limit the terms of all legislators to a total of 10 or 15 years.

    Reason: Membership of a legislature has tended to develop parasites with vested interests. Correspondingly, infusion of fresh blood into legislatures is being seriously obstructed.

11. Do away with the "first past the post" system in elections.

    Reason: Very few so-called "elected" representatives can be said to have the confidence of the majority of the voters.

12. Introduce constitutional punishment for misbehaviour in legislative houses.

    Reason: Whatever provisions exist in the "Rules of Business" documents for violation of parliamentary decorum are hardly ever put into practice by the speaker concerned. The result is the utterly shameful and financially wasteful disruptions in all our legislatures.

    Proposal: Severe punitive measures -- varying from one week's suspension along with a large fine to three months' expulsion and debarment for five years -- should be spelt out in the Constitution itself and Constitutional authority for meting out the punishments given to a three-member team of presiding officers constantly monitoring proceedings.

13. Convert certain Directive Principles of the Constitution into Fundamental Rights.

    Reason: Several Directives of State Policy have remained mere showpieces of our Constitution. The time has surely come when such of them that do not entail immediate and unbearable financial burden on the state exchequer should be converted into Fundamental Rights. Examples are: Provision of free legal aid to the poor, prohibiting slaughter of milch and draught cattle, organisation of village councils, contributory pension scheme for the old, disabled and unemployed, and enactment of a uniform civil code.

    The last item is admittedly very sensitive and controversial because it has been looked upon as a communal issue. In reality, a uniform civil code will ensure that law is divorced from religion, will strengthen secularism, will remove divisiveness between religious groups and enable India to emerge as a much more cohesive and integrated nation. To prevent heartburn, the Constitution must stipulate that such a uniform code be drawn up with the consensus of all communities before being incorporated in the Constitution as a Fundamental Right operative within a short, stipulated deadline date.

14. Provide for a mandatory review of the Constitution every 20 years.

    Reason: The kind of controversy witnessed for the present review exercise will be done away with and enable the nation to introspect on its constitutional strengths and weakness.

    Proposal: A mandatory Constituent Assembly of 251 members should be elected every 15 years on the basis of universal adult franchise from reorganised existing parliamentary constituencies. It should meet for three years in all major towns/cities of the country to create national awareness of its task. The break in its sessions should not exceed two months a year. Candidates eligible for this Constituent Assembly should necessarily be ex-municipal corporators, MLAs/MLCs and MPs who have served a minimum period aggregating 10 years in those varying capacities.

    The revisions suggested by this Constituent Assembly after three years of debate should be offered as a referendum to the general electorate over the next two years, debated by the Parliament then in vogue, and introduced as a Constitution Amendment Bill.

    Arvind Lavakare