Statute panel for enlarging fundamental rights

By Harish Khare

NEW DELHI, MAY 11. The National Commission to review the working of the Constitution, headed by Mr. Justice M.N. Venkatachaliah, has belatedly and silently moved to frustrate whatever narrow designs the NDA Government may have had in wanting to ``review'' the Constitution.

Today, the ``Constitution Commission'' released four consultation papers for public discussion; unlike the first set of papers released in January which bore the stamp of the Sangh Parivar's hidden agenda, today's papers would cause deep unease to the Sangh Parivar ideologues.

Releasing the papers this afternoon, Mr. Justice Venkatachalaiah stressed ``the spirit of constitutionalism'' and saluted the deeply-held commitment in the country to a Constitutional order. If this commitment was strengthened, it would be possible, according to the distinguished former Chief Justice of India, to re-energise ``our institutional strategy'' in the face of globalisation and its unhappy demands.

The most significant paper released today is on ``enlargement of fundamental rights''. Prepared under the supervision of Mr. Soli Sorabjee, Attorney-General and member of the commission, the advisory panel for this paper included: Mr. Justice V.R. Krishna Iyer (chairperson), Mr. Justice B.P. Jeevan Reddy, Mr. Justice M. Jagannadha Rao, Mr. C.R. Irani, Prof. Amrik Singh, Prof. Andre Beteille, and Prof. Mushirul Hasan.

The paper suggests a deepening of the fundamental rights. For example, as of now the Constitution (Article 14) promises equality before law and specifically prohibits (Article 15) discrimination on the basis of ``religion, race, caste, sex or place of birth''; now the Constitution Commission's suggestion is to widen the list of prohibitions, and it seeks to enlarge Articles 15 and 16 to include ``ethnic or social origin, colour, age, language, political or other opinion, property and birth.''

The judicial philosophy behind this expansion of fundamental rights would make it virtually impossible for the NDA Government to implement its agenda promise of reserving high offices only for ``naturally born Indian citizens.'' The promise made in the 1999 NDA agenda was widely perceived to be aimed at Ms. Sonia Gandhi. Even otherwise, the inclusive and pluralistic tone of the suggested enlarging of the right to equality is sharply at variance with the sectarianism, espoused by the Hindutva right- wing of the ruling combine.

Another major suggestion of the ``Constitution Commission'' is to codify as fundamental rights certain freedoms which the Supreme Court has already deduced as fundamental rights. These include (a) the right to freedom of the press; (b) freedom of information; (c) right to privacy; (d) right to free elementary education up to the age of 14; (e) right to a clean and healthy environment, and (f) right to have access to courts and legal aid. More significantly, the Commission suggests a ``Right of Compensation'' against a callous and brutal state authority. The Commission's suggestion is that Article 21 be enlarged to read: ``Every person who is illegally deprived of his right to life or liberty shall have an enforceable right to compensation.''

Equally far-reaching is the suggestion that ``in a case where a person belonging to the weaker section is deprived of property because of acquisition of agricultural and homestead lands, he shall be provided with land of quality at least equal to the land he previously occupied or otherwise adequately rehabilitated.'' This suggestion becomes particularly relevant in the on-going context of the Narmada agitation.

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