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The Rediff Special/Shalab Kumar

Caught in a Constitutional Trap

After the current parliamentary fiasco, there can be little doubt in any thinking Indian's mind that we need to separate the election of the executive from the legislature. We have had four governments (including the earlier 13-day tenure of Vajpayee) and two general elections since the 1996 elections. Neither the elections nor the frequent change of the executive is something that the country can afford. Not at this stage, not when global politics and economics is changing so rapidly that, without a stable government, we run the risk of being left far behind in both political power and economic development.

In an article in Rediff almost a year back, I had argued that, because it entrusts the Parliament with too many facets of governance, the current model is ill-suited and badly designed for our purposes. Governance has four arms -- the executive is the operational arm, the legislature enacts laws, the judiciary ensures that these laws are enforced and the House of Representatives ensures that the will of the people is heard and adhered to at all times. In a working democracy, the members of these arms are either directly elected through universal franchise or indirectly constituted through a directly elected body.

In our model of governance, the executive, the legislature and the people's representation is concentrated in one body, the Parliament (where the Lok Sabha is directly elected and the Rajya Sabha indirectly through State Assemblies). This creates multiple problems. One of these is what we are seeing now -- none of these functions is executed effectively. The executive has been paralysed due to the uncertainty of parliamentary numbers for disconcertingly long periods in the last decade. While some members take their responsibilities as people's representatives seriously, most members forget it as soon as they are elected, considering not altogether mistakenly that representation is not really what they have been elected for. The law-making function suffers the most. As parties and members grab for executive power (and perks!), they forget that law making is an essential function of the legislature. The result is that archaic laws never get discussed and, hence, never updated.

This concentration of functions also results in a huge dilemma for the Indian electorate. After all, even the most intelligent of voters will be challenged in evaluating the multitude of candidates in any given election on a three-dimensional matrix of executive ability, legal skill and interest representation. The result is simple confusion -- the fragmented mandate is often because each one of us votes with a different objective.

In my ideal world, these four main arms would be all independently constituted. Not only will that provide an important balance to the model of governance, but through greater focus and specialisation, hopefully improve the functioning of each arm. It also simplifies the decision-making process in the elections substantially. When electing the executive, the only criteria the voter would have to consider would be political ideology and executive ability. Similarly, the election/selection to the legislature would be guided purely by legal and judicial expertise. The voters will be free to elect their representatives to the 'people's assembly' on whatever local or even narrow interests might be upper most in their minds. I do not see any reason why a caste or religious group, which feels threatened by the actions of another, should not vote precisely on those lines when electing their representatives. The problem arises when these same representatives are also entrusted with the functions of creating laws and running the government. This is a fundamental flaw in our Constitution.

Our Constitution, unfortunately, over the years has acquired an inviolate status. A number of amendments have been made but the basic structure of governance, legislation and representation remains unchanged from what it was 50 years ago. It is suicidal in political and intellectual circles to even suggest that everything might not be right with the Constitution (remember the furore over the 'hidden agenda' of the BJP when the party suggested that a debate on the Constitution might be warranted?).

There is a fine distinction that has to be understood here. As long as the Constitution remains the law of the land, any action which is against the spirit and letter of the Constitution is and should be considered illegal. However, the dynamism of a country's thinking is reflected in its ability to voice and rationally consider criticisms against established institutions and tenets like the Constitution.

No thought, nor any philosophy can remain contemporary and relevant for all times. Fifty years is a long time. The world, as we enter the new millennium, is distinctly different from the world of the Constituent Assembly of the post-Independence years. Not only is the world different, India has changed as a society and as a country. Add to that the fact that the political milieu has metamorphosed. We often forget that the Constituent Assembly had assumed that the political class over the years would not change much. It stands to reason that if the country has changed, if the society has changed, if the political class has changed, then what was good for the 1950s and 60s is not necessarily good for the 2000s.

There is a popular Hindi saying haath kangan ko aarsi kya (what is visible does not require verification). That is finally the ultimate argument in favour of a rethink -- the system is patently not working. While in the era of coalition politics, the art of coalition management might be a necessary virtue, it would take a brave man to make a case for the 'a new government every year' phenomenon that we are currently witnessing.

We need a Constitutional change which will enable the separation of the various arms of governance. As a first step, we need to separate the executive from Parliament. In practical terms what it means is that the election of the executive, the prime minister and the council of ministers, has to be done independently of the elections to Parliament. There are numerous ways to do this -- a national multi-tier vote for parties, with prime ministerial candidates set out before elections, is the most obvious one. That discussion will have to wait for the moment, however, because before the concept is accepted, we have a major hurdle to cross.

Any constitutional amendment which proposes to change the basic role of Parliament has to be initiated in, and requires the approval of, Parliament itself. This is actually an almost insurmountable problem -- the power to correct the malaise is rested in the malaise itself. No other body can actually initiate any such move. As long as the Parliament remains the only voice of the people, there is a barrier to initiating any move which fundamentally alters the nature of the democracy. This systemic problem is compounded by the current political fragmentation. Even if political debate could be started around the issue, given the arithmetic of the Lok Sabha these days, the move is likely to be still-born.

This is from an abstract point of view quite interesting. Constitutional change is required because we cannot afford an unstable executive arm. Unstable executives are due to the fractured nature of the electoral mandate. To fix the problem, ie, carry out a constitutional change, we need a minimum of two-thirds majority in Parliament. This can happen only if the political stream initiating the change had a two-thirds majority, which would actually remove the problem of instability which started this discussion in the first place, or if a consensus across party lines could be built around the issue, which is unlikely to happen given the nature of the current political class.

There are some alternatives, though. The intelligentsia of the country have to initiate a discussion on a fundamental change of the Constitution. As the issue gets debated, the validity of some of the arguments that I have made here will be tested. In the medium term it will hopefully contribute towards making the concept of change in the Constitution more acceptable. Perhaps, some time in the near future, we will have either a political party which makes change in the Constitution its electoral platform, wins the required majority to do so and does so. Alternatively, a more radical solution could be an existing government (maybe even the current caretaker government) initiating a direct people's referendum on the issue.

Till then, the merry-go-round is likely to continue.

The Rediff Specials

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