Viewpoint
REVIEW OF THE CONSTITUTION
(Well-known Socialist ideologue, Prof. Ravivarma Kumar, former Chairman of the Backward Classes Commission, Karnataka and an advocate at the High Court of Karnataka, Bangalore, expresses himself against the review of the Constitution undertaken by the Saffron regime.)
“During recent years, it has become fashionable among some citizens to disparage the founders and their document. These individuals disappointed by the developments in the country since 1950, have called for changing the constitution explaining that it has not ‘worked’. Such thinking, in my view, is misguided. Constitutions do not ‘work’, they are inert, dependent upon being ‘worked’ by citizens and elected and appointed leaders”.
-- Granville Austin
The nation has been taken for a ride in the setting up of Justice Venkatachaliaiah Commission to review the Constitution by a resolution of the Law Ministry dated February 22, 2000. The Commission has been functioning for the last one year. The question to be answered by this commission before it undertakes the threatened review of the Constitution is to explain its existence and constitutionality of its exercise to the nation.
No written constitution in the world provides for its own abrogation through a review. Only one constitution provided for revision. The Swiss Constitution of 1874 is the only constitution in the world, which contemplated its own revision. However, the machinery provided for revision was so elaborate and cumbersome that it was next to impossible to effect any revision of the constitution. It should be initiated by resolution passed by both the Houses of Federal Legislature followed by ratification by majority of cantons. The proposal should then be submitted for a referendum. Thereafter, the Legislature may take up revision of constitution and draft a detailed revision proposal, which again should be submitted to the people for approval through a referendum. On such a resolution being passed, the Legislature stands dissolved and a fresh election should be held to the Legislature on the basis of the proposed revision of the constitution. The new Legislature would be constituted through fresh elections. At that election, if the newly elected Assembly receives a mandate for revising the constitution, the new Assembly drafts the revised constitution. The revised constitution is then submitted to the people for a referendum. If it is approved at the referendum, it would be submitted to the cantons. If the majority of the cantons approve the revised constitution, then the constitution stands revised. This is the one and only instance where a revision of the constitution was contemplated by a written constitution itself. Otherwise, a review of the constitution is impermissible. The Indian Supreme Court has declared that no abrogation of the constitution can be done except by a revolution (Kesavananda case). No government elected under the constitution, bound by the oath, can indulge in any such revolution to review the constitution.
Article 51 A of the constitution lays down a fundamental duty, that it shall be the duty of every citizen of India to abide by the constitution and respect its ideals and institutions. This is a duty cast not only on the citizen but also on a Government, which is elected under this constitution (M.C.Mehta’s case).
Under Article 60 of the constitution, the President of India shall, before entering upon his office make and subscribe oath or affirmation in the following form:
“ I, A…B , do swear in the name of God/solemnly affirm, that I will faithfully execute the office of the President of India and to the best of my ability preserve, protect and defend the constitution and the law and that I will devote myself to the service and well being of the people of India”
The President is bound by this oath to preserve the constitution and protect it. He has an additional responsibility to defend the constitution also. It is a matter of great pride that the President K.R.Narayanan has ably lived up to this oath has very effectively defended the constitution and has admonished the attempts to review the constitution. Under Article 69 of the constitution, the Vice President also should take an oath owing allegiance to the constitution. The Prime Minister and all members of his Cabinet also should take oath to bear true faith and allegiance to the constitution of India. (Article 75 read with III Schedule of the constitution).
It is therefore clear that the Prime Minister and Council of Ministers are bound by the oath to keep faith and allegiance to the constitution. This debars the Prime Minister and his cabinet from indulging in any ‘revolution’ that has the consequence of destroying the constitution. Besides the above constitutional duty of the Union Government, it is also necessary to notice clearly that the Constitution of India never provides for review of the constitution. In the circumstances, the very constitution of the commission to review the constitution, as also its exercise attempting to a review of the constitution, is wholly unconstitutional, and therefore, impermissible.
A colloquium on the review of the Indian constitution was organized in Bangalore on March 20, 2000 by the PUCL, SICHREM and DJV. Justice V.R.Krishna Iyer inaugurated the colloquium. This author also spoke on the occasion. In his keynote address, Justice Krishna Iyer dealt with the unconstitutional nature of setting up this Commission and went on to describe the same as an illegitimate one. He even proposed a people’s commission headed by Justice Nittur Srinivasa Rao, present in the colloquium, to counter the exercise of the Justice Venkatachalaiah commission. This, of course, was said just before Justice Krishna Iyer himself joined the Justice Venkatachalaiah in its present exercise.
The Indian Constitution was finalized after a great deal of deliberation between 1946 and 1949. Besides the Objective Resolution, the Assembly was assisted by a number of Committees and Sub-committees in preparing this Constitution. The major work, preparing the Draft Constitution, was done by a Drafting Committee under the Chairmanship of Dr.B.R.Ambedkar. Six of its seven members were non-Congressmen so as to ensure the greatest impartiality in drafting the constitution, without in any way enabling the Congress to perpetuate its rule in the country. Sir. B.N.Rau was its Constitutional Advisor. The Draft Constitution, the correspondences between the several functionaries and the speeches made by the Chairman and members of the Drafting committee on the floor of the Constituent Assembly stand out as a remarkable testimony to the high quality work done by the Drafting committee and the pains it had taken in piloting the Draft Constitution on the floor of the House. The replies given to the debate on the floor of the House by Dr.Ambedkar are themselves master-pieces in Constitutional law, that may be used as authoritative texts expounding the constitutional law. Further the Constituent Assembly was also assisted by the various Committees and Sub-committees. These committees were headed by great scholars and statesmen who themselves were great national leaders. Their commitment to democratic values, unimpeachable integrity and inspiring leadership qualities were in full play in moulding the policies and programmes incorporated in the Constitution.
1. The Rules Committee Dr. Rajendra Prasad
2. The States Committee Jawaharlal Nehru
3. The Advisory Committee Vallabh Bhai Patel
4. The Fundamental Rights Committee J.B.Kripalini
5. The Steering Committee Dr. Rajendra Prasad
6. The Minorities Sub-committee H.C. Mukherjee
7. The Union Powers Committee H.C.Mukherjee
8. The Ad-hoc Committee on
Supreme Court S.Varadachariar
9. The Provincial Constitutional Committee Vallabha Bhai Patel
10.The Union Constitutional Committee Jawaharlal Nehru
The Constituent Assembly itself was a duly elected body consisting of more than 300 members. It is the cumulative work of all these committees and functionaries that has produced the outstanding constitution with which we have worked for the last 50 years.
The constitution has stood the test of time and has successfully faced all the challenges and has always ensured that it maintained its rule even in great crisis. The earlier attempt to change the face of this constitution through the 42nd Amendment was nipped in the bud when the regime which introduced those changes was thrown out of office lock, stock and barrel. The newly elected government quickly restored the constitution to its pristine glory through the 44th Amendment.
The powers that may be exercised under the constitution may be broadly classified into three categories.
1) Legislative,
2) Judicial and
3) Executive.
Review of the constitution is undoubtedly a legislative act of the highest order, but the constitution of the commission to review the constitution is not by itself a legislative act. At any rate, Justice Venkatachalaiah’s commission does not come into existence under any law passed by the Parliament, or the legislature. It is, therefore, not brought into existence through legislative action.
The constitution of the commission is also not brought about by any judicial action. No court of law, much less the Supreme Court of India, has directed the constitution of any commission to review the constitution. It is therefore clear that this commission has not come into existence by reason of any judicial action.
The only other power under which a commission could have been constituted was in exercise of the executive power. Executive power under the constitution is co-extensive with, and not beyond, legislative power. The executive power of the Union of India is, therefore, circumscribed by the limits to which the legislative power of the Parliament of India is subjected. None of the enumerated entries under the Union list contemplates reviewing the constitution or the reviewing of the working of the constitution. Even the power to amend the constitution, which is the highest legislative action that is permissible under the provisions of the constitution, can only be exercised under article 368 of the constitution and not outside it. It is therefore clear that the Union executive could not have exercised any power to undertake a review of the constitution or a review of its working.
Be that as it may, any executive power can only be exercised in accordance with the provisions of the constitution. Under article 77 of the constitution, all executive action of the Government of India should be taken and expressed in the name of the President. In the instant case, there is no such order passed by the Government of India and expressed “by order or in the name of the President of India.” No Government Order has been issued, much less any Official Memorandum communicating the decision of the Government is issued by order or in the name of the President of India.
On the other hand, this commission has been constituted by a resolution of the Ministry of Law, Justice and Company Affairs. The notification issued in this behalf reads as follows:
“Ministry of Law, Justice and company Affairs
(Department of Legal affairs) Resolution
New Delhi, 22nd February, 2000
No. A-45012(2)/98-Admn-III(LA):- Whereas the National Agenda for governance contains a pledge that a commission shall be appointed to review the constitution of India in the light of more than 50 years of its working and may suitable recommendations for any possible changes and this pledge was affirmed in the President’s followed by a motion of thanks from both Houses of Parliament.
Now, therefore, in fulfillment of that pledge, it is resolved to constitute the “National Commission to Review the Working of the Constitution.”
1) The Commission shall consist of a whole-time Chairperson who shall be a person of distinction with knowledge and expertise of constitutional issue and in the working of the democratic institutions of the nation. In addition to the Chairman, the Commission shall have not more than ten members who shall be selected on the basis of their proven expertise and knowledge in the field of Constitutional law, economics, Politics, law, sociology, Political science and other relevant subjects.
2) The Terms of Reference -- The Commission shall examine, in the light of the experience of the past 50 years, as to how best the constitution can respond to the changing needs of efficient, smooth and effective system of governance and socio-economic development of modern India within the framework of Parliamentary democracy and to recommend changes, if any, that are required in the provisions of the constitution, without interfering with its basic structure of features.
… …
11) The funding of the Commission shall be through separate budgetary allocation by the government under the relevant budget heads of the Ministry o Law, Justice and company Affairs (department of Legal Affairs).”
R L Meena, Secretary
A reading of the above resolution clearly indicates that the mandatory requirement under Article 77 of the Constitution has not been adhered to. As a result, this is not an Executive action taken by the Government of India under the provisions of the constitution.
A reading of the above resolution also betrays the real intention behind constituting this Commission. In the first place, it is stated to be pursuant to the National Agenda for Governance to appoint a Commission to review the constitution of India. In para-2 the terms of reference expressly authorising the commission to review the working of the constitution is a camouflage intended to cover the hidden agenda to attempt a review of the constitution itself.
It is in these circumstances, that the very constitution of the Commission is not in accordance with any known power that could be exercised by the Government of India or the Parliament or other institution created under the constitution. Wherefore, it is nothing but an unconstitutional exercise in setting up this Commission. So is the task that the Commission required to undertake under the above resolution.
“The three mechanisms of the system derived by the Assembly, contrary to the predictions, have made the constitution flexible at the same time protected the rights of the states. They have worked better than the amending process in any other country where Federalism and the British Parliamentary system jointly formed the basis of the constitution” -- Granville Austin, 1966, 321.
The Indian constitution provides a very easy and simple procedure to amend the constitution under Article 368. The provision has been put to use over 90 times and no amendment to the constitution has failed on the floor of the House. The amending mechanism was lauded even at the time of introduction by Dr. Ambedkar in the following words:
“ We can therefore safely say that the Indian federation will not suffer from the faults of rigidity or legalism. Its distinguished feature is that it is a flexible federation.”
(CAD VII : 36)
The Indian constitution contemplates its own amendment in three simple ways. More than two dozen articles of the constitution can be amended by a simple majority in the Parliament. They include qualification for citizenship, salaries of the Supreme Court and High Court judges, bicameral legislatures for states, establishment of new states, increase or decrease in the area of any state, changing the name of any state, altering the boundaries of a state or causing it to disappear entirely (as in the case of Hyderabad and Coorg) by merging with other states. All other provisions of the constitution can be amended by Parliament by a majority of the total membership of that House, and the majority of not less than 2/3rd of the members of that house present and voting. The third mechanism provided to amend the constitution is the most rigorous one under the constitution, which requires the above procedure to be followed and in addition it should also be ratified by the legislatures of not less than one half of the states by resolutions to that effect passed by those legislatures. This procedure is applicable to amendment of Articles 54 and 55 (manner of election of President), Article 73 (Executive power of the union); Article 162 (Executive power of the state); Article 241(High Court and Union Territory); Union Judiciary, the High Courts in the states, distribution of legislative power, legislative lists in the VII schedule, the representation of states in Parliament and Article 368. This procedure has worked with great ease and the Parliament has never experienced any difficulty in amending the constitution as and when the situation warranted.
Comparing the provisions for amending our constitution with the amending power of other constitutions in the world, there is absolutely no rule for complaints against our constitution. Therefore, as and when a need is felt to amend the constitution, it is appropriate that the amending mechanism is put to use rather than attempting to review the entire constitution. It is not out of place to mention here that the United States’ constitution has undergone only 31 amendments in its existence of 235 years as against about 90 amendments to our constitution during its life of 50 years.
The Constitution is the mother of all laws in the country. It is also the creator of all institutions in the country. The Parliament, the Judiciary and the Executive are all creatures of this constitution. Just the same way no river can rise above its source, no creature of the constitution can attempt to go above the constitution by attempting a review of the same. On the other hand, the oaths taken, together with the fundamental duty cast on it to abide by the constitution, require a strong dedication towards it on the part of every institution created by it. Such being the case, any attempt to review the constitution will undermine the authority of the constitution and will unleash a chain of events that may ultimately destroy so assiduously built constitution. It is therefore of utmost importance that every institution should abide by this constitution and never attempt to review the same.
The judiciary has a greater responsibility to stand by this constitution and uphold it.
“The court is bound by its oath to uphold the constitution”. (A.K.Gopalan’s case)
“The judiciary has been made the interpreter of the constitution and has been assigned the delicate task to determine as to what is the power conferred on each branch of the government and to see that it does not transgress such limits…
It is for the judiciary to uphold the constitutional values and to enforce the constitutional limitations. That is the essence of the rule of law”. (Minerva Mills case)
It is in this background that we should consider the propriety, the legality and the constitutional validity of the present exercise to review the constitution. It’s a great travesty of justice, as the very judges, who had taken oath to uphold this constitution, should now be used as instruments to denigrate this constitution, by attempting to review it once they retired from the exalted position in the superior judiciary. The retired Judges’ services are sought by an executive in this unconstitutional exercise solely with the object of gaining credibility to do, what would have been, otherwise, a most condemnable attempt to denigrate the constitution. Once the executive succeeds in its attempts to get the seal of this commission's approval, the report of the commission could be used to undermine every institution that has worked so remarkably well in upholding the rights of the citizens.
Granville Austin had remarked sometime ago: “Even such extreme Hindu organisations as the RSS and the Hindu Maha Sabha, have not challenged parliamentary government on the grounds that it is contrary to the mystical ‘Hindu Polity”.
This satisfaction expressed by the great jurist was a very short-lived one. It is evident that the very forces he referred to were waiting in the wings to get an opportunity to come to power and later destroy the constitution. This precisely is the attempt now made to review the constitution.
No less a person than Mr. Fali S. Nariman, an eminent jurist and a parliamentarian, has condemned the BJP’S concept of “One Nation, One People and One Culture [which] was the real motivating factor for setting up a commission to review the constitution” (M.N.Roy Memorial Lecture -- 2000)
It is a settled principle of law that a review of any executive action can not be undertaken unless such a power is conferred expressly. A review of the legislation is permissible by the legislature, which has enacted the legislation. But that is a very serious matter. Any such review would be undertaken only in extreme cases where a law has become unworkable or is required to be replaced by a more comprehensive legislation. In India, a fairly food number of legislations have been in operation for over a century. The Indian Penal Code, which continues to regulate the penal law of the country, was enacted in the year 1860; the Transfer of Property Act, which governs transfer of all immovable properties intervivos, was enacted in the year 1882; the Fatal Accidents Act is of the year 1855; the Evidence Act, which regulates the law regarding tender of evidence before court and other authorities, is of the year 1872; the Contract Act is of the year 1872; the Partnership Act is of the year 1893; the Telegraph Act is of the year 1885; the Trust Act is of the year 1882; the General Clauses Act, which lays down the rules of interpretation of all legislations in the country, is of the year 1897; the Code of Civil Procedure, which regulates trial of civil suits and which forms the bedrock of all procedural laws in the country, is of the year 1908. It is still fresh in the memory of the nation, the kind of upheaval and violent opposition voiced, when an attempt was made to amend certain provisions of this act, inter alia, with the object of providing speedy disposal of cases. When such is the opposition to a proposed change in some minor aspects of a procedural law of the country, one can visualise what the repercussions would be when a review of the constitution is ventured.
One cannot forget, as Granville Austin has put it, “the constitutions do not work, they are worked by the citizens and the governments”. Therefore, if at all a review should be undertaken, the review should be in respect of the working of the state machinery in implementing the constitution. For this purpose, if a comprehensive review has to be undertaken, such a review should encompass all organs of the state, namely, the Legislature, the Executive and the Judiciary. To say the least, there is not even a whisper anywhere that any such review is being contemplated. It is therefore a misnomer to style the present exercise of this Commission as a review of the working of the Constitution. Any attempt to review the working of the Legislature may even lead to serious issues raising questions of contempt of the Legislature. Likewise, no court will brook a review of its working by an extra constitutional authority like the present Commission. It is but natural that the Courts should view any such attempt as contempt of the Court. The superior judiciary has, of course, inherent power to deal with any such contempt under the very provisions of the Constitution. In the circumstances, it is evident that what is now sought to be done in the name of the review of the constitution is no where near that.
Taking all these circumstances into consideration, in the light of the Agenda pursuant to which this Commission has been constituted, namely, to review the Constitution, the functioning of the commission will be an exercise in futility. Nay, it will not stop at that. Any report the Commission may submit could become a tool in the hands of unscrupulous parties and persons, who never really believed in the Rule of Law or in the values firmly established by our Constitution. As a matter of fact, even before the Commission started its exercise, the very setting up of the Commission gave a free hand to several functionaries including members of the Commission to pour out their vituperative attack against the Constitution, which led the respected senior journalist and Parliamentarian Mr. Kuldip Nayyar to comment:
“ one can live with the Review Commission on the Constitution and the outlandish selection of members. But one cannot live with obiterdicta of members on the Constitution’s ‘defects’. It has served the Nation for 50 years and it is vulgar to pick holes in it to justify the review…” (Stop the Running Commentary, Please. The Hindu, dated February 18, 2000).
If this should happen the very minute the Commission was constituted one can visualise the havoc it may play once the Commission concludes its working. All of us, including the Commission, are under a fundamental duty to respect the ideals of the constitution and the institutions it has created and to abide by the Constitution, under Article 51 A of the Constitution. The resolution of the Law Ministry and the acceptance of the said resolution by the Commission in undertaking the review under the said resolution is itself a breach of this fundamental duty. The nation hopes that the Constitution prevails and the fundamental duty is realised by one and all. Better late than never.
1. C.A.D. Constituent Assembly Debates
2. A.K.Gopalan’s case A.K.Gopalan v/s State of Madras IR 1950 SC 27
3. Granville Austin 1966 The Indian Constitution: Corner Stone of a Nation by Granville Austin, Oxford University Press, 1966
4. Keshavananda’s case Keshavananda v/s State of Kerala AIR 1973 SC 1461
5. M.C.Mehta’s case Mehta M.C. v/s Union of India (1988) 1 SCC 1471
6. Minerva Mills case Minerva Mills V/s Union of India AIR 1980 SC 1789