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E-Mail this column to a friend The Constitution is malleable to the point of being characterless

S V Menon on the Constitution Review

    The debate on the Constitution is clearly not moving towards a consensus on the merits of a review. But for the first time since its inception, a document that existed as the copyright of a chosen few on the Constituent Assembly has been demystified and turned over to public discourse.

It may have been a transparent ruse by the NDA government to focus attention away from itself, but 'blame it on the Constitution' is the new theme song of the nation that makes the national anthem sound like a patriotic nursery rhyme.

For the moment at least, the idea of a Constitutional review remains a consensual notion. The disparate voices raised for and against establish one thing, however: the Indian Constitution is malleable to the point of being characterless. Sure, it was a radical document in its day, levelling the playing field for every Indian at birth. It says no to caste, puts religion in its place, upholds the supremacy of Parliament, accords a decisive role to the judiciary and bestows the seat of authority to the executive. The Constitution drips sage wisdom, and has plenty of heart. No doubt about that.

Then why isn't it working? Here we come across the line of control that divides the territory under debate. Has the Constitution failed us or have we failed it? is the question echoing in the trenches. This is the question that precludes consensus. And it is easy to see why: the centre of gravity shifts in relation to the location of the questioner. History illustrates that people in power are apt to question the sanctity of the Constitution.

Nehru and Indira Gandhi tried to make out a case for Constitutional reform in their time. The NDA government is doing the same today. The reformists and the status quoists are interchangeable categories determined by power. The status quoists tend to prevail because pushing a Constitutional amendment through Parliament is fraught with obstacles.

The NDA's Constitution Review Commission has to wrestle with imponderables that threaten to scuttle the review process. Its solace to the Opposition is that the basic structure of the Constitution will not be touched. But nobody is sure what that is. As if to absolve the Commission, a member points to the Supreme Court's inability to provide a guideline. Is it okay to tamper with the text, regarded by many as an article of faith?

The panel appears to have adopted sophistry as a tactical line. Let us not say basic structure. How about basic features such as parliamentary form of government and so on. Rephrasing the problem will not help when critical issues come up for examination. For instance, will the Commission recommend a fixed term for the Lok Sabha to offset the era of unstable coalitions?

The Commission is hamstrung by a low credibility rating in the eyes of those who see the review as a partisan initiative. It has set for itself a task similar to that of the Constituent Assembly, with neither the mandate nor the authority of that august body. At best the panel can catalogue the symptoms of an ailing body politic, but without the power of prescription.

The Commission is widely perceived to be out of its depth to undertake a serious review of the Statute. It does not convey an assurance of being broadbased, noncontroversial and earnest enough to examine and pass judgement on potentially volatile problems associated with Centre-state relations, elections, Article 356, the criminalisation of politics and so on. No member of the panel can be secure in the belief that its decisions will carry the day and initiate the process of Constitutional reform.

Then there is the crippling incongruity between the Constitution and those who set out to reform it. The Statute is an instrument of governance whose functionality is vested in the hands of the governing class. That is its soft core. The Constitution leaves too much room for manoeuvre to the politician who governs, without binding him to any laws that govern him. Because there is no law to govern the law-makers, the key component needed in the Constitution is the provision to bring political parties to heel.

The founding fathers reposed their faith in the Westminster model, overlooking some of its naivetes (the impartiality of the Speaker, that autonomy of the governor et al). Maybe India's Constitution needs to offload some of the baggage of the Raj. We can't make up our minds on who to entrust the job to.

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