It is not a judicial job

A REVIEW of a Constitution is a historic step in democratic reassessment. The Government has appointed a 13-member committee under the chairmanship of the eminent judge, A. N. Venkatachaliah, to go into the question. It wanted to make the committee widely representative of important shades of opinion, political as well as legal. In such cases, the choice will be difficult, still the characters are now put in place after a careful screening, or so it looks.

The panel is for framing new rules in the constitutional process and one vital issue is the personages constituting the committee. When the framing of a Constitution for India was on political view in 1946, some eminent English jurists such as Ivor Jennings figured in discussions as key draftsmen but our leaders opted for an indigenous committee, most of whose members were politicians and the chairman, Dr. B. R. Ambedkar, was even a bitter critic of Mahatma Gandhi. The only full-time lawyer among the draftsmen was Alladi Krishnaswamy Iyer. Others including K. M. Munshi, Mohammed Sadulla and Gopalaswamy Iyengar, were lawyer-politicians as well as veterans in the freedom struggle. The adviser, B. Siva Rao, was a journalist as well as an acclaimed authority on the American Constitution.

Drafting the Constitution is essentially a political process. At the Philadelphia Convention, the draftsmen were mostly politicians, lawyers and veterans returning from the freedom war. Now the work given to the review panel is practically constitutional re-drafting, without affecting the basic structure. James Madison, father of the American Constitution, and Hamilton were the brain trust in the War of Independence as well as at the Constitutional Convention. When Constitution- making is a political job done by a jurist, a constitutional review also is political work. But the emphasis of our Government in the composition of the review committee is on judicial personages and lawyers whose career has been shaped in the rigorous litigative tradition - which they cannot disown all on a sudden. The committee consists of retired judges, sitting as well as retired Attorneys-General, retired officials from the Lok Sabha and journalists. The only star politician is Mr. P. A. Sangma, former Lok Sabha Speaker.

New constitutional theories of the 19th and 20th Centuries developed mainly in the United States. The old legal theory of rule of law is becoming the fulcrum of every new constitutional theory, and the same rule of law is undergoing a basic change in Great Britain because of its juristic partnership with the European Community. In the drafting of the Ceylon Constitution, Ivor Jennings was invited to offer advice and the legal community believes that he executed a thorough job. For many African nations, Constitutions were drafted by English and American experts such as Thurgood Marshall, African-American jurist who rose to become a judge of the U.S. Supreme Court. Jeremy Bentham acted as adviser to the Russian Czar on state reforms. About the Constitutional changes taking place in foreign democracies we can receive first-hand advice only from experts in those countries. It is desirable to hear from the horse's mouth, when the foreigner alone can speak clearly on the latest developments in legal technology in his country. If the Government thinks that the composition of the review committee is irrevocably final, it can enlist the services of foreign jurists at least as advisers. After all the Constitution appears as a copied text of the Government of India Act of 1935, even with the serious error of copying down Article 356 from an analagous Section in the Act.

The precedential jurisprudence of Indian courts is generally British, whereas its constitutionalism is very much based on the American System. Judicial activism of judicial review is clearly an American import. Also we cannot lose sight of the new constitutional experiments taking place in Japan, Germany, Israel, Canada, and Australia and experts from these countries are also to be consulted. This is necessary to charter the new dismensions of constitutional law in the West and the East.

Any review will to be done without tinkering with the basic structure, but the job is comprehensive and necessitates consultations with great figures in constitutional jurisprudence. Great centres of legal learning and research - Oxford, Cambridge, the Harvard Law School, the Universities of Bologna, Paris, etc - can be associated with the job. Jurists of great stature in the Indian academia are rare with a vision of constitutional reform, as our experts are only teachers of law, and we look in vain for original contribution. We must give up the belief that the making of a Constitution or its review is a judicial job. The Government's attempt appears to be recruiting the best legal talent in the country but this is not a judicial or litigative job. A committee which looks popular shall not be the concern. It is the nature and quality of the product - the review formula - which shall be the concern. The review panel is not a body like a commission of enquiry collecting evidence on an incident.

However eminent they are in their judicial job, the judge and the lawyer by training and temperament are essentially products of the system. It is a discipline very much honouring the status quo - a discipline they cannot so effortlessly disown. A constitutional review committee shall be composed of jurists with original thought, be the members politicians, judges, lawyers or academicians. Any obsession with an outstanding service record (of the draftsmen) in the judiciary was a concern wholly unshared in the making of great Constitutions. A meritorious record as lawyer, judge or bureaucrat does not supply the creativity of a politician-jurist. The Government has appointed the committee after protracted deliberations and consultation, but we cannot ignore the method and practice followed in the making of great democratic Constitutions. The ultimate truth is that great Constitutions were drafted by lawyer-statesmen and not by litigation experts. The main draftsman of the French code was General Napoleon Bonaparte. Really the draftsman shall be a political visionary, capable of constitutional prophecy.

N. HARIDAS

Retired District Judge,

Thiruvananthapuram

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