Review Commission imbroglio - I

By V. R. Krishna Iyer

THE GOVERNMENT of India has constituted a National Commission to Review the Working of the Constitution to re-examine (not re- write) the Constitution and this event, bruited about loudly and polemically, is now the subject of political and juristic debate. Why is this Commission set up now? Is it a cunning camouflage for operation `saffronisation' through a protean Commission actualising a de facto coup with a hidden agenda? That is the version of the critics who entertain consternation about the potential mutations in the Constitution, through the guise of Commission recommendations adversely affecting the Dalits and the backward classes and communalising the polity through a `crypto- hindutva' strategy, jettisoning its secular character and provisions ensuring justice to minorities.

A review of the paramount law of the land, according to jurists and statesmen who support this Venkatachaliah Commission, is a periodic exercise justly undertaken. The object is emphatically to dynamise and preserve the secular, socialist, democratic ethos undiminished, and towards that end it is necessary to review, reflect and seek an erudite miscellany of views from an impressive panel headed by a former Chief Justice of India! This serendipitous project of the new millennium has no motivated malignity behind it since its purple purpose, believe it or not, is to accelerate the redemption of the Indian people's holistic tryst with its humanist destiny and to reinforce and impregnably empower the vast masses from panchayati raj to parliamentary governance.

Today, India's large majority is jobless, the economy is a shambles, the cultural crisis is escalating through corruption and other vices and moves towards decline and fall, notwithstanding five-star life, fly-overs, computers and other pleasures of creamy layers. This distressing paradox, if we drift, will make Bharat a sub-continental captive of market- dominating powers. Today, the grim future for the hungry have-not majority is desperate - blood, toil, tears and sweat. The basics of the Constitution are being undermined and the social challenge is best expressed as: to be or not to be. Such is the diabolic dialectic of India today missed by the myopics in the North and the South Blocks! So the hallowed Constitution, drained of its justice and promise of egalite, needs to be invigorated and a brave, new Bharat, one billion people strong, must emerge with its poorna swaraj regained and ``We, the People of India,'' becoming the political, economic and social sovereign.

That is the battle cry: defend the Preamble; or in the passionate peroration of Ambedkar in the Constituent Assembly: ``we must be determined to defend our Independence with the drop of our blood''; oppose the trend towards surrender and support every measure that will restore the nation, with its minorities and diversities confident of happy survival, the landless tiller, bonded labourer, tortured gender enjoying the nation's resources, modernising its science and technology and sustaining its development in plural dimensions. If such be the goal of the Review Commission I am for it. If the objective is even a wee-bit less I will fight it. We must enlarge, not suffer shrinkage of fundamental freedoms.

Adaptation to changing events through amendments, preserving the spinal essence, is not anathema. Generation gaps may need to be bridged. Never break the basic structure but repair and replenish. B. R. Ambedkar in his final address advanced the argument that a Constitution should be amenable to amendments lest its rigidity should lead to discordance.

Numerous changes, some inconsequential, some sinister and despotic, formal or elucidatory, some emphatically driving home the socialistic and egalitarian pattern of society or its secular ethos and minority rights, conceptually integral to the vision of our `founding fathers', have been woven into the Suprema lex. Therefore, no serious constitutional lawyer can take exception to amendments per se. But a Constitution, like any great nation, has a central personality and a foundational individuality, which are non-negotiable, being the very soul of the Republic. The judges in the Kesavananda case designated these principles as constituting the basic structure and credal features. Some frills, incidentals or peripherals or repeal of sinister implants and even other provisions not eroding the quintessence of the Constitution, are permissible. In short, the dichotomy between the basic structure or culture and other matters covered by the Constitution is of great moment.

What are these basic structure and features, which are too paramount to be beyond Parliament's power to alter or tamper? The Supreme Court, in the Kesavananda case expounded this spinal thesis which, by continual affirmation, has become a diamond- hard, diamond-bright part of our fundamental law. The expanding horizon of basic constitutional features protects the Founding Deed, pro tanto, from invasionary or infiltrative adventures by the Executive or Legislature induced by obnoxious socio-economic appetites and corrupt temptations. Indian ethos is people- oriented, its constitutional trust is to abolish the appalling poverty and social suppression of the masses. Its egalitarian emphasis and religious pluralism, with unity in diversity and federal centrifugalism are anchored on socialistic-democratic, swadeshi-based sustainable development. No imperial pressure or capitalist-feudal culture can deflect the State from its commitment to the vintage values like agrarian reforms, and larger autonomy, which dominated the struggle for Independence.

The plenary sovereignty and composite cultural heritage of ``We, the People of India'', the Independence of the Judiciary as the trustee of the human rights, the rule of law in its dynamic dimensions and compassionate universalism, are a constellation of ideals, inclusive of humanism, dignity of personhood, distributive justice, communal harmony and common brotherhood - these and the fundamental duties (Art. 51A) are integral to the governance of the country. A casteless, classless social order is expressly spelt out in Parts III, IV and IVA of the Constitution. Equality involves, in its guaranteed amplitude, the processes of equalisation to attain a level playing field.

The noble Preamble to our Constitution is a flourish of verbal wonder for sardonic cynics, but a solemn liberational pledge for the victimised proletariat and a fundamental command for the governing elite. But the Apex Court has held the Preamble to be a basic feature of the Constitution and, therefore, beyond Parliament's abridgemental, amendatory jurisdiction. This sublime supremacy of the monumental Constitution permits changes, though not in the basic bosom of its anatomy. No instrument of governance is immutably perfect when times attenuate the utility of certain provisions or the old order needs updating to meet new exploitative challenges. The Constitution is no petrified parchment or fossil jurisprudence. Even so, so long as the basic structure doctrine remains, reigns and is vigilantly guarded by the Court and the secular, socialist, democratic social order and rule of law, with the emblem: ``be you ever so high the Law is above you'', prevails, there is no ground for apprehension that any radical review may undo absolute values - which are basic and therefore `untouchable'. Indeed, how exhilarating it is to see that by a semantic sweep, the judiciary has invested Art. 21 (the right to life) with cosmic content! Then one may wonder why the Review Commission? To appease whom or overturn what? Such is the vistaramic canvas of our Constitution that, barring a few flawsome textual deviancies and jejune hermeneutic judicialese, the grand work of our Founding Fathers is not so ephemeral as to need drastic repair for survival.

Caesar's wife must be above suspicion; but the Commission has yet to establish its exalted credentials. Let us assume that some egregious blunders or culpably corrupt distortions have marred in action the Constitutional Order, the answer is given by Ambedkar: ``I feel, however good a Constitution may be, it is sure to turn out bad because those who are called to work it, happen to be a bad lot. The working of a Constitution does not depend wholly upon the nature of the Constitution. The Constitution can provide only the organs of State such as the legislature, the executive and the judiciary. The factors on which the parties they will set up as their instruments to carry out their wishes and their politics. Who can say how the people of India and their parties will behave?''

Send this article to Friends by E-Mail

Section  : Opinion
Previous : UGC's retrogressive step
Next     : Match-fixing