The Hindu : Results of Constitution review

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Monday, Apr 29, 2002

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Results of Constitution review

By Subhash C. Kashyap

Several of the recommendations now forming part of the NCRWC report went directly counter to the clear decisions of the Commission on which the draft was based.

NOW THAT the entire two-volume report of the National Commission to Review the Working of the Constitution (NCRWC) has been made public through the Law Ministry website, it is time to take stock of the achievements and failures of the Commission. Hopefully, the report will be printed soon, tabled in the two Houses of Parliament and copies made available to Members of Parliament and the public.

As the Commission reports, its appointment by the President in February 2000 was preceded by "a persistent demand in civil society" that "the working of the Constitution be subjected to a comprehensive review". The ball was set rolling by two articles in The Times of India in December 1990 and June 1991, inter alia, suggesting the appointment of a Constitution Commission. A national committee headed by Karan Singh, a seminar jointly organised by 15 national organisations and an India International Centre project on the Working of the Constitution in 1992-93 also recommended setting up of a Review Commission.

As its name indicated, the brief of the NCRWC was to review the working of the Constitution and not to rewrite or review its provisions. A great deal of misunderstanding was caused simply by the Commission being wrongly called "Constitution Review Commission". The Commission's terms of reference excluded any tinkering with the parliamentary system or the basic structure of the Constitution. It is another matter that despite being repeatedly reminded by some members, the Commission may not have strictly kept these parameters in view.

To assess whether the objectives of our great founding fathers, as enshrined in the Constitution, had been fulfilled during 1950-2000, the Commission was expected to act independently and objectively, without fear or favour and in the spirit of serving the best interests of the country and thereby helping the Government and Parliament consider the desirable reforms. It was necessary to examine dispassionately the working of the chief organs of the state — the Legislature, the Executive and the Judiciary.

The composition of the 11-member Commission, however, was heavily weighted in favour of the Judiciary with as many as four retired judges. The sitting and a retired Attorney-General were also members. A journalist, a former Lok Sabha Speaker and sitting MP, two retired IAS officers and this writer completed the picture. In the context of its composition it was not surprising that several Commission members seemed anxious not to displease, in any way, the judges' constituency in particular and the fraternity of the legal profession generally.

Originally, the Government had stipulated that the Commission would complete its work within one year. However, as is usual with many such commissions, its term had to be extended thrice and actually it covered a period of over two years and one month. The minutes of the meetings of the Commission included in Volume II of its report are very revealing and an analysis thereof may be a sad commentary on how a historic opportunity was nearly wasted. During the 25-month tenure of the Commission, in the first 21 months a total of 12 meetings were held and at these meetings attention was focussed only on administrative and procedural matters such as constituting panels of expert advisers and committees, identifying resource persons, entrusting preparation of consultation papers on payment to NGOs/institutions, holding regional seminars, laying down time-frames (which were never adhered to) and reviewing the progress on consultation papers and considering their release for eliciting public opinion.

It was only during a one-and-a-half month period (November 24, 2001-January 8, 2002) that members of the Commission had some opportunity of expressing their views on the working of the Constitution and the three organs of the state. The only substantive discussion on various areas took place at the 13th, 14th and 15th meetings of the Commission. Thereafter, the task of drafting the report was entrusted to the Drafting and Editorial Committee which submitted the full two-volume report on February 15, 2002.

While the major portion of the final report of the Commission remains the same as it was in the Draft Report, the two meetings held in February-March 2002 were in the main devoted to going back on some of the unanimously agreed earlier recommendations of the Commission as contained in the unanimous report of the Drafting and Editorial Committee. At the end of it all, before the report was submitted to the Government on March 31, 2002, one eminent member (a former Speaker of the Lok Sabha) had resigned and as many as four other members including the Chairman of the Drafting and Editorial Committee were constrained to append to the report their separate notes.

As the note of one who in the words of the Commission's Chairperson was "the principal author" of the entire report stated, while there was some positive outcome of the Commission's exercise insofar as "a number of very significant suggestions" were approved unanimously and "important recommendations made", several of the recommendations now forming part of the report went directly counter to the clear decisions of the Commission on which the draft was based.

B. P. Jeevan Reddy (former Law Commission Chairman) in his separate note took exception to an earlier decision of the Commission in the matter of appointment of judges being subsequently changed. He also regretted the dropping of his suggestions in regard to the liability of state in torts. The journalist member of the Commission, C.R. Irani (editor-in-chief, Statesman) in his note, inter alia, referred to voting in the Commission having been resorted to only on the question of foreign-born citizens occupying high public office. He expressed himself strongly against any change in Articles 29 and 30 of the Constitution. The note by Sumitra Kulkarni, a former IAS. officer and Rajya Sabha member (and grand-daughter of Mahatma Gandhi) lamented that some members of the Commission remained fence-sitters, important issues were evaded, the Commission became a platform for divisiveness and no effort was made to promote public debate.

Unfortunately, in some vital matters, certain important recommendations have not found place in the final report simply because one of the members had some reservations. Some highly controversial matters of doubtful legitimacy have found place in the final report because of the insistence of the one member. Also, while in some matters decisions were taken by the majority, in others unanimity was insisted upon. It would have been better not to focus on the wish-list or the demands of some individuals or groups and to think of the interests of the nation at large.

The note of the Chairman of the Drafting and Editorial Committee makes a special mention of the chapter on the Judiciary being "seriously flawed and distorted" and the much needed judicial reform issues not having been even touched or deleted in the final report e.g. in the matter of the appointment of judges.

(The writer was a member of the NCRWC and also Chairman of its Drafting and Editorial Committee.)

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