Kuldip Nayar feels no constitution is sacrosanct in India
A large number of political thinkers, politicians and academicians are coming around to the view that the Indian political system has become dysfunctional and it is time to consider constitutional reform by reviewing the constitution and thinking of alternative systems of government. There is a conservative group too that thinks, as the religious fanatics do about the norms and addicts of their faiths that were written by those who initiated the religion, whether they were saints or messiahs or prophets or avatars. They must be followed without any alterations. They are the least concerned about the fact that they were written in a different age and a different social climate.
Their stubbornness or, faith or fanaticism goes to the extent that they won't listen to any argument that seeks reform according to the present milieu. No changes are possible for them in their religious books. For the political fanatics too, who call the members of the constituent assembly reverently as founding fathers, the constitution was framed by experts and it cannot be reviewed or changed although their assumption is not correct as there have already been 78 amendments in Indian constitution since its adoption in 1950. Moreover as Kuldip Nayar says "No constitution is sacrosanct. Nor should it be because it represents people's aspirations at a particular stage of history." "All that has happened (since the constitution was framed) of the constitution's operation is that people have lost the awareness of what is right and the desire to act according to what is right", he says.
Political Thinkers in India feel Constitution is Dysfunctional
Although there was a long history of struggle for freedom and there was much in the past history and civilization of the country when the members of the constituent assembly sat for giving the country a paper on how to govern and administer, they sat under the shadow of colonial regime on the one hand and an awe for the systems that were in vogue in the western hemisphere on the other. Chanakya, Manu or Confucius didn't strike them. Naturally, as is true of the adoption of Macaulay system of education, they didn't have anything of their own and had no-choice but to adopt one or the other system or their mixture that worked in countries in Europe. It may look tragic but is a fact that in March, 1947 a questionnaire was sent to the members of the central and provincial legislatures on whether to adopt Swiss, British or the American system. Naturally the choice was between the Presidential and Parliamentary forms as also the Federal and Unitary system of governance.
The majority of the members couldn't get themselves away from the Yoke of British hegemonistic rule and adopted the West Minister democracy that looked ideal to them for they and their elite predecessors in the Raj had been inspired by the British philosophy and the ways of running a parliamentary democratic government. It was again a little strange that although they discarded the Presidential form they went for the federal type of the US. It was an improved type of provincial autonomy that was discarded by the Indian National Congress when it was offered by the British regime in thirties and early forties. The reason was that different leaders including Mahatma Gandhi and Nehru had made promises to the people of different provinces that they would enjoy autonomy. Mahatma Gandhi had advocated for linguistic provinces that became the greatest drawback in the formation and recognition of an official national language that is a must even in a federal structure. As English continues in the academic field even today so does it in the national and political field. Sometimes the debates in the Parliament look like debates not in Indian Parliament but in a Parliament shifted to England.
Screening the constitution in India
Our constitution has given us a federal constitution and the provinces have been nomenclature as states. It has created a number of anomalies. A federal state comes into being generally when some sovereign states decide to unite to form one nation as the 13 states in the present USA i.e. in America declared their independence on July 4, 1776. It, of course, became a nation but the Articles of confederation i.e. the first constitution of the unifying states came into existence on March 1, 1781. It was rather a loose and weak constitution but it established the system of federal government uniting different sovereign states in one nation.
The legacy of sovereignty remained and exists -even today when the number of states has reached 50. All states elect their own governor who is not under the control of the centre, and have laws that differ from State to State. Even the cultural and ethnic background of the people of different states differs. Now India was brie nation having a number of provinces speaking different languages of course, but having the same culture. There were three main religions of course, but the followers could be found in all the provinces in one proportion or the other. By adopting faith was separated from political governance. In the very beginning—before the formation of the constituent assembly—a sub-committee was formed by the Indian National Congress chaired by Jawaharlal Nehru -to draw a viable grouping of the areas of governance. The committee proposed to have five zones—Northern, Southern, Western, Eastern and Central. But it was opposed by the leaders at the provincial levels who dreamt of governing their own province on linguistic basis as was promised by Mahatma Gandhi. Thus the federation came into existence not by unifying different sovereign countries but by dividing the nation into linguistic and bilinguistic states— not a very justified division too as the Hindi speaking area did not constitute one state but six.
Federation formed by Uniting save reign States for the Constitution Reform
Thus the federal constitution was defective from the very beginning as it was not judiciously formed but was framed because of the pressure from the second rank of leadership that wanted a berth in the cabinet. Otherwise by not calling it Federal the country could have five units as was earlier envisaged as these five units could have developed resources that are now divided ungraciously giving rise to border disputes and clashes on river water. The later division of Madras Presidency area into four, the Bombay Presidency area into two and the North East i.e. former Assam into seven besides Punjab into three was rather unfortunate. With the demand of more and more states—Vananchal—Chattisgarh—Uttaranchal—Bodoland and the former establishment of all the States the reality can hardly be missed that for all purposes the Federal structure of the constitution can not be challenged except that some more states (not sovereign ones but pieced from the existing ones) may be carved out and become a part of the federation. There can hardly be any review of the constitution on this point. Even if the Westminster form is retained unitary form of England can't hawk upon the American pattern (obviously Indianised) of federal constitution.
It can hardly be called a consolation that even the federal structure of Indian constitution is unitary in spirit. The Indian constitution does not accept India to be a federation in its first clause but a Union of States. While placing the format of the constitution before the president of the Constituent Assembly Dr. Ambedkar made it clear that although we wanted to have a federation, it was not the result of any understanding between the states to join the federation and none has the right to get itself excluded from this understanding. The Federation is a Union. "Although the country and the people are divided into different states from the point of view of administration, yet the country is a united and complete entity". According to P.T. Chacko what the constitution was going to establish "will be Federal only in shape, in spirit it will be unitary constitution."
Centre is more powerful in Constitution than any other Federation in the World
What we have to look into at present is whether this so called federal structure goes much beyond the powers of the central government in the U.S.A. The centre is much more powerful than it is in any other federal structure in the world. It appoints and dismisses the governors, places the laws passed by the state legislatures before the President for his signatures, the division of powers in favor of the centre, imposition of Presidential rule in states, during emergency making laws on issues which are in state list, formation of new states by the Parliament, changing the names of states, increasing or decreasing the area of a state, sending instructions to states are some of the provisions which can be found only in a unitary system. That is why the British political thinkers called it a semi federal system.
Semi Federal System in Constitutional Reform
Since the old Indian systems of governance haven't struck the political horizon the two issues that form the subject matter-of the review are whether in the democratic set up the Parliamentary system should be retained with certain changes or the Presidential form should be brought in if so in what form. The second point of review is-whether certain amendments in the existing constitution would do or the constitution is to be totally reshaped. While the so nomenclatures secular drummers would make a hue and cry on the issue of total overhauling of the constitution the Indian cultural brigade would like to have a new format. No group being in absolute majority they will have to be satisfied with whatever they can secure.
But looking to the present form of hooliganism and disorder in the legislatures, the politician-mafia nexus, the lack of concern for the national issues vis-a-vis personal or party or caste or religious group considerations, the feuds between different states, the activities of the spy organizations of the neighboring countries, the large scale infiltration of militants, the unstable governments (3 in one calendar year), frequency of general elections putting great financial burden on the citizen and many other corollaries of these make it imperative not to take the matter lightly and go for as many changes as are necessary. A compromise between the two forces will have to be inevitable for this.
Two things choice between Presidential and Parliamentary for Constitution Reform
The foremost question to settle is the choice between the Presidential and the Parliamentary form of government. In the former the President is de facto executive head while in the latter the President is just a de jure one while the Prime Minister in Cabinet is the defacto head. In West Minister pattern the King or the Queen remains the de jure head of the executive. The King or the Queen of England before Victoria and even in the early two decades of her rule had unquestionable powers. But by the time she grew 49 and had already ruled England with a strong will for 31 years her powers were just ignored by Disraeli who became Prime Minister in 1868. In 1874 when he again became Prime Minister for six years, he being 15 years senior to her in age had more experience of the ambitions of the people. He worked in a manner that the 55 years old Queen started losing much. Her powers as sovereign started diluting to the extent that in 1901 when the old Edward became the King of 0reat Britain he was head of the state only in name. None of the later sovereigns of England could have a say in the administration of the country.
The same happened in India. Jawaharlal Nehru who was more popular as a political figure remained in power for 18 years while the Presidents during his regime remained just titular heads. During the dynastic rule i.e. up to the Prime Minister ship of Rajiv Gandhi the first President asserted himself twice while Dr. Radha Krishnan opposed Nehru once and Giani Zail Singh had differences with Rajiv Gandhi. All other Presidents just signed the papers that the Prime Ministers wished them to. The Prime Minister became so powerful that Indira Gandhi declared emergency—rather became dictator for two years and a half.
Move for Presidential form by Sathe during Indira's regime
It was during the reign of Indira Gandhi that there was a move by Vasant Sathe in the eighties to adopt Presidential form of Government. It had a backing of Indira Gandhi for her purpose clearly was to institutionalize authoritarianism and smother dissent. It was for this reason that she got Giani Zail Singh elected as the President of India who could be replaced by her as soon as there was a change from the cabinet form to the Presidential one that she had full confidence to get done in the Parliament as she was successful in securing amendments in the constitution to enforce Emergency. But before she could manage all that she was laid to rest.
One may discard the Presidential form just on the basis of the intention of autocracy of a certain individual in this country. Otherwise it has been successful in a number of countries. In India too the question has been quite prominent. Dr. Rajendra Prasad while inaugurating the Indian Law Institute in New Delhi on November 28,1960 had urged the members of the bar who had specialized in constitutional make up to study how the rights and powers of the President of India are different from those of the British sovereign. Again in 1967, K.M. Munshi who had forcefully advocated for the parliamentary democracy in the constituent assembly said that if he had again an occasion to form the constitution of India he would go for the Presidential form. In the same year K.S. Hegde, the chief justice of Delhi High Court and Madhu Limaye had felt the necessity of surveying the constitution and looking in to the desirability of having the Presidential form. None of these two had a vested interest in becoming President of the country.
Kulip Nayar thinks Presidential form would produce dictators in constitution
Kuldip Nayar is of the view that "the Presidential system can produce dictators. That had made Jawaharlal Nehru a staunch supporter of the Parliamentary system". But he forgets that even within the parliamentary system Nehru's daughter became a dictator and pushed the whole opposition (of many parties) including some from the congress party too behind the bars. Thus his argument doesn't hold water. He may be correct when he says that "a pluralistic country such as ours needs a system which allows debate at the highest level and balances the force of unity with diversity". Such a debate is possible even in a presidential form. In 1998 the American Congress and the I Senate debated the issue of the impeachment of the President himself as well as that of imposing or not imposing sanctions on India and Pakistan after their 1 nuclear blasts. These two bodies put a number of restraints on the President I in the financial matters and in appointments too.
Survey of the constitution was mentioned by the President of India in his address to the two houses after BJP came to power in 1998. The Parliament passed the vote of thanks. Thus the survey of the constitution rather becomes, in a way statutory. The failure of the parliamentary system has presently been because of the unstable governments. Such governments, because of multiparty system, have caused coalition governments. The present system has not evolved a two party system. "From the point of view of bringing stability," Ram Krishna Hegde says "the Presidential system does help no doubt about it. Once the J Chief executive of the government is elected, he cannot be removed except by impeachment". He further stresses "today nobody speaks of the country as a j whole. Everybody speaks .about his own community, his own religion. If this j type of politics continues for some more time where caste and community becomes the sole criterion… then society will be reduced to pieces, and our national integrity will be endangered. When elections are fought only on the basis of caste and community, religion and money, democracy becomes irrelevant. Therefore to bring the whole people together, the chief executive of; the country and similarly the chief executive of the state, must be elected directly by all the voters together so that they can identify with him as their representative who understands the geography, the history, the culture of the people... A corrupt man can become the Prime Minister now, or the chief minister of a state. But a corrupt person cannot be elected by the whole country as the Prime Minister or the President. Hegde thinks that "to keep this country together, it is necessary to change the system otherwise...we will neither have democracy nor the unity of the country."