The pros and cons of continuing the emergency proclaimed on June 26 last and the suitability or non-suitability of the present Constitution for meeting the challenges facing the country and the community will be the big political issues in the new year.
The leadership of the ruling party favours significant changes in the Constitution on grounds which have been neatly summed up in the resolution approved at Chandigarh. It says: “if the misery of the poor and vulnerable sections of our society is to be alleviated, vast and far-reaching changes have to be effected in our socio-economic structure. Our Constitution is not a constraining force. Nor is it just a static document. It has to be a dynamic instrument of change embodying the enduring values and aspirations of our people. It has to provide solutions to problems inherited from the past, those inherent in the present and those likely to emerge in future.”
“History records,” it goes on to say, “that rigid constitutions, incapable of being altered to meet the aspirations of the people and the changing needs of the times, invariably collapse under the strain of unforeseen events. Flexibility and responsiveness are the essence of any living social organism such as a Constitution. Form and letter must inevitably change in order to preserve the spirit.”
ENTHUSIASTIC
The CPI has been even more enthusiastic about changing the Constitution. Its emphasis has been on the elimination of the right to property from the fundamental rights, on giving the directive principles primacy over the fundamental rights and on curbing the power of the judiciary. But since a particular draft of the proposed changes came to be circulated by some allegedly influential persons over a month ago, it has developed certain misgivings. It now apprehends that at least one important section of the Congress leadership wishes to change over to the presidential system on the French pattern, greatly strengthen the powers of the executive and drastically curb those of Parliament. The CPI’s official mouthpiece, the New Age, summed up the party’s position in its issue of December 21 thus: “….All kinds of ideas, some extremely disturbing, are being privately canvassed to tailor Parliament’s work and even its future. It is forgotten that the people have fought the right and the fascists to save democracy and its institutions … To downgrade Parliament’s role under any pretext would not only be a great disservice to democracy but play straight into the hands of reaction and fascism.”
Finally, there are those who contend that the Constitution has stood the test of time and that there is therefore no need to tamper with it. They are able to quote with devastating effect past articles and speeches by some of those very Congress leaders who are now in the forefront of the campaign for drastic constitutional changes.
Surprising though it may appear, none of these positions as they are stated can stand the test of scrutiny. The Congress leadership’s stand would have been less vulnerable than it is if it did not imply that the executive’s good intentions and programmes had been frustrated indefinitely by adverse court judgments under the present Constitution.
While it is true that the Supreme Court and various High Courts have given judgments inconvenient to the executive, in almost all important cases the government has been able to overcome the obstacles without much difficulty through suitable changes in the Constitution which have been in conformity with the basic law of the land. That is why when some members of the full 13-member bench of the Supreme Court, which had been set up to review issues relating to Parliament’s powers to change the Constitution without let or hindrance, asked the Attorney-General to give relevant examples of the government being handicapped, he could not produce any.
ASSURANCE
Indeed, that is not all. For, as far as the much discussed right to property is concerned, the executive may soon discover, if it has not done so already, that for achieving its long-term objective of stimulating investment and production in the private sector, it is necessary for it to reassure those in a position to save and invest that they will not be expropriated.
The leftists at least have been consistent on this issue. They neither desire nor expect the country’s economic regeneration through the private sector. They have therefore no stake in its morale. But the Congress Party’s position has been quite different. At Chandigarh it has once again affirmed its view that “a socially conscious private sector” has a useful role to play in accelerating the development process and said that “recent changes in industrial licensing policies have been designed to facilitate this process.” As such it cannot be interested in doing anything that undermines confidence among the business community.
The CPI’s stand is equally vulnerable. Its leadership must be quite naive to believe that the present carefully structured balance between the executive and the judiciary can be upset to the considerable advantage of the former without simultaneously affecting adversely the powers of Parliament. It must also be ignorant of the fact that the supremacy of Parliament has become a myth even in the oldest democracy and that this erosion in its real as distinct from its formal status is the inevitable product of the rise of well-organised party machines and the introduction of the three-line whip which obliges all party members to be present in the House on any occasion and vote as required.
The US congress has, it is true, reasserted itself in recent years. But this has been possible not only because the people have been fed up with the abuse of authority, both at home and abroad, by the executive but also because American congressmen are not bound by party discipline as we understand it. Even in the US a reaction against congress cannot be ruled out because the affairs of a modern state are just too complex to be managed without firm guidance and leadership which in America only the President’s office can provide.
As for the advocates of no change, they obviously do not find it useful to recall that but for the revival of the fortunes of the Congress Party under Mrs. Gandhi’s leadership after the split in 1969, the country could have faced chaos and worse. But facts cannot be pushed under the rug. New Delhi could not have coped with the situation in West Bengal between 1967 and 1969 if in addition to losing several states in the 1967 general election the Congress had failed to retain its majority in Parliament as well, and a crisis of major proportions could have developed if in 1971 the ruling party had lost its majority in the Lok Sabha.
On the face of it, the Union government managed reasonably well, with the help of the CPI and the DMK, from September 1969 when it lost its majority in the Lok Sabha as a result of the Congress split till the election to that body in early 1971. But this was a relatively comfortable period – the crops were good in 1968, 1969 and 1970, the prices were stable and the international environment was reasonably calm. As such it cannot be a guide to the country’s long-term requirements. Also, it cannot be claimed that the leadership took or could take tough decisions in that period.
In plain terms, therefore, the Constitution has worked reasonably well primarily because the Congress has been able to maintain its grip on power at the Centre all the time and in most of the states, most of the time. Without this happy circumstance, precious little could have functioned smoothly in this country as the example of Pakistan next door shows.
CONCLUSIONS
If this analysis is not too wide of the mark, two conclusions follow. First, the case for changing the Constitution significantly as well as for preserving its present form more or less intact has to be argued in very different terms. While it is, for instance, possible to favour the presidential system on the ground that it will free the country’s chief executive from the need to command a majority in the Lok Sabha all the time – a requirement which it may not always be possible to fulfil – it cannot be done in the name of ending the “misery of the poor,” for the haves have as a rule a larger stake in stability than the have-nots. Similarly, while there is a case for preserving and even extending the powers of the judiciary in order to protect the individual and discourage arbitrary acts on the part of the executive, it will be unconvincing to suggest that Parliament must be allowed to continue to behave the way it has from time to time in the past.
Secondly, decision on the precise changes which need to be made is not easy and should not be taken in a hurry. India’s requirements are contradictory and it will be a difficult and time-consuming business to reconcile them in a coherent basic law. There are no ready-made solutions.
The Times of India, 31 December 1975