Saturday 12 March 2011

Report of the NCRWC- a Citizens Review


'To copy from one is plagiarism, to copy from many is research'

Well, the Report of the NCRWC is indeed a well-researched document, running into about 2000 pages, comprising of The Report in Volume I and various consultation papers, background papers and such miscellaneous information in Vol II.

Having said that the Report is a well-researched document, it should not in anyway be construed to mean that it is a good document or that it satisfies the purpose it was sought to address. While going about reviewing the Report, reasonably extensive study has been carried out of the Report itself and the background papers given in Book 3 of Vol II. (I must admit that I could not 'open' the volumes downloaded from the website of the Ministry of Law. Subsequently Vol I and certain chapters of Vol II were downloaded chapter by chapter, in an exercise spanning 4 hours over 2 nights!) It needs to be mentioned here that the scepticism which began with the first pages only got confirmed by the end. (Not that scepticism had to wait till one laid one's hands on the report, either!)

To begin with, 50 years of operation and 80 odd amendments is too long a period and too much of a messing up to wait to have an exercise of this nature carried out. But once it was decided that the Augean's stables needed to be cleaned, the decision makers should have atleast had the clarity of thought as to who would have been the best people to go about doing the job. In this case the assignment of the task itself has been flawed. Like an architect's job being assigned to the mason, for example! Without meaning to cast aspersions on any of the individual members of the august Commission, it needs to be said that the output of two years of effort of such an eminent group of people leaves much to be desired. Probably if a student pursuing a Phd had chosen this subject for his thesis, this kind of a report should have sufficed to get him that additional qualification. That's about all. This is what Smt Sumitra Gandhi Kulkarni, the only woman member of the commission, has written in her notes to the Report: 'We as members were expected to identify, debate and finally take a stand on issues - We have not done justice to this task as was expected of us.'

Before proceeding further let us have a look at the composition of the Commission and its terms of reference.

Of the 11 member Commission, including the chairman, 4 (M.N. Venkatachaliah, B.P. Jeevan Reddy, R.S. Sarkaria and Kottapalli Punnayya) were judges of the Supreme Court/High Courts, 2 (Soli J. Sorabjee and K. Parasaran) are advocates, 2 (P.A.Sangma and Sumitra G. Kulkarni) political nominees, 2 (Dr.Subhash C. Kashyap and Dr. Abid Hussain) bureaucrats and just one (C.R. Irani) representative from the media! So no prizes for guessing why Dr Kashyap has written in his Notes: 'The Chapter 7 of the Report is titled 'The Judiciary'.  This chapter particularly is seriously flawed and distorted. The much needed Judicial Reform issues have not been even touched or these got deleted in the final draft'? And, if you analyse why this remark had to be made, is spite of the preponderous judicial presence, you will perhaps understand how the Commission has failed us, the citizens, comprehensively!

The terms of reference of the Commission had been quite sweeping in its range. The Presidential order states:

"The Commission shall examine, in the light of the experience of the past 50 years, as to how best the Constitution can respond to the changing needs of efficient, smooth and effective system of governance and socio-economic development of modern India within the framework of parliamentary democracy and to recommend changes, if any, that are required in the provisions of the Constitution without interfering with its basic structure or features."

Obviously, with such sweep and the inherent vagueness, it was incumbent on the Commission to have broken it down into bits and specifics. For one thing, it should have atleast identified what was the basic structure and features of the Constitution. Well, it could have been a very, very controversial area with lot of room for debate. But nevertheless it was important to know the parameters within which the Commission itself considered the various issues and made its recommendations. This is a real problem because oftentimes you find the Commission dwelling at length on minor issues while nonchalantly bypassing major issues. For example, on the issue of reforms in government, the Commission states: 'One of the radical reform suggestions was that of the Gandhian model of decentralization where under village is at the centre and power flows upwards from the grassroots to concentric circles of multi-tier governance.  The model envisages direct elections at the Panchayat and Nagarpalika levels and indirect elections to the District, State and Union levels by all the lower tiers. The Commission carefully considered the strong presentations and representations made in support of the model but, as the consultation paper itself had anticipated and pointed out, in the present situation, the model is not feasible. Some of the other suggestions for reform not found acceptable by the Commission on grounds of being either impracticable or unnecessary related to (i) negative voting, (ii) multi-member constituencies, (iii) recall, (iv) proportional representation, (v) list system, (vi) President's rule in the States during elections, (vii) putting a limit of two terms for any political position, (viii) prescribing literacy qualifications for legislators, (ix) direct election of the Chief Ministers in the States, etc' Well, if this was an important area of public interest which the Commission has dismissed lightly because of its own assessment of the models being unfeasible, the same 'thick-headed' approach has been adopted in another important issue also. To quote from the report: 'It was suggested that the highest offices in the realm such as President, Vice-President, Prime Minister and Chief Justice of India should be open only to natural born citizens of India or those whose parents or grandparents were citizens of India.  The matter was discussed at more than one sittings of the Commission.  The Commission found that the said suggestion was not without force.  At the same time, the other point of view put forward was that denial of the said high offices solely on account of the fact that the person was not a natural born citizen of India or his parents or grand-parents were not citizens of India, might deprive some citizens from occupying these high offices even if they were otherwise worthy and acceptable.  The opinion in the Commission was equally divided.  The Commission recommends that this issue be examined in depth through a political process after a national dialogue.' What a pity that the Commission which felt that the almost-administrative-like reforms suggested for restructuring the government was unfeasible could bring itself to suggest that there should be a national dialog to decide on this other minor/major issue. Minor because the opposition to the idea is today on account of just one person and major because it is a serious issue of national importance affecting the very security of the country itself. Fortunately, this probably was the issue that affected the Commision in a major way because it must have been the issue on which Mr Sangma resigned from the Commission. And this is what Dr Kashyap has written in his notes: 'Also, some highly controversial matters of doubtful legitimacy have found place in the final report because of the insistence of one Member and the fear of a dissent from him while a matter very dear to one of the Members and which as many as 5 Members supported could not find place among the positive recommendations and this led to the resignation of the Hon'ble Member concerned.'  And look at where the details are: 'Government may consider the demands of the Coorgies for a Sainik School, a Development Board and a University for them in Coorg.'! Another recommendation, highlighting the vagrant nature of the commission with respect to details is the recommendation that the heading of Part IV of the Constitution should be amended to read as "DIRECTIVE PRINCIPLES OF STATE POLICY AND ACTION".

It is shocking that inspite of its observation that 'the Parliament and the State Legislatures, owing to the inherent weaknesses of the electoral system, have not acquired a true  representative character.  The 13th Lok Sabha represents only 27.9% of the total electorate and the recent past Legislature of Uttar Pradesh represents only 22.2% of  the electorate' the issue of rectifying this shortcoming has not occurred to the Commission except in suggesting that run off elections be conducted between the first two candidates of the first round so that the winner gets 50% plus one votes polled! 

Well, my idea is not to go on a Commission-bashing spree. There are some very good quotes, very interesting statistics and a few good recommendations too. Amoung the quotes are what Jawharlal Nehru had said on the need to leave the Constitution flexible and amenable to the changing needs of the times.

Speaking of the Draft Constitution on 8 November 1948, Nehru had said: "The Constitution is after all some kind of legal body given to the ways of Government and the life of the people.  A Constitution if it is out of touch with the people's life, aims and aspirations, becomes rather empty: if it falls behind those aims, it drags the people down.  It should be something ahead to keep people's eyes and minds made up to a certain high mark.... Remember this that while we want this Constitution to be as solid and as permanent a structure as we can make it, ... there should be a certain flexibility.  If you make anything rigid and permanent, you stop a nation's growth, the growth of a living, vital, organic people." 

In the course of his speech on the Constitution (First Amendment) Bill, 1951, on 2 June 1951 Nehru once again repeated his views as to the need for the Constitution to be amenable to amendment. On this occasion, his words were trenchant and unsparing.  He said: So if you wish to kill this Constitution, make it sacred and sacrosanct - certainly.

Speaking of the imperatives of social democracy, Dr. Ambedkar had said: "it was, indeed, a way of life, which recognizes liberty, equality and fraternity as the principles of life and which cannot be divorced from each other:  Liberty cannot be divorced from equality; equality cannot be divorced from liberty.  Nor can liberty and equality be divorced from fraternity.  Without equality, liberty would produce the supremacy of the few over the many.  Equality without liberty would kill individual initiative.  Without fraternity, liberty and equality could not become a natural course of things."

Considering the hue and cry that was raised against the decision to constitute the Commission, the following quote should also interesting. At the AICC Session in December, 1975 - the 'Kamagata Maru Session' - a resolution on the political situation stated:

"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... The Congress urges that our Constitution be thoroughly examined in order to ascertain if the time has not come to make adequate alterations to it so that it may continue as a living document."

If the political leadership was conscious of the failure of the Constitution to deliver the goods, way back in 1975, the situation hadn't changed much in the following 30 years too. The statistics are revealing: 260 million people in India live below the income poverty line, close to 380 million people are illiterate and nearly 2/3rd of them are women, one third of all babies in India have low birth-weight (in Sub-Saharan Africa, the proportion is just one-sixth!) In the Annual Report of the National Human Rights Commission 1997-98, this is what is stated about our country: "It is said that one third of the world's poor are Indians, who lacked clean drinking water, basic sanitation and minimum standards of health care, food and nutrition....Persistence of such a situation constitutes a failure of governance which had urgently to be remedied for it is on the pillars of good governance that promotion of human rights in the final"

The Commission is also unambiguous when declaring that 'the crucial failure is the innate resistance in governments and governmental processes to the fundamental article of democracy, viz. that all power and all authority flows from the people and that all public institutions are meant solely to serve the public interest. The assurance of the dignity of the individual enshrined in the preamble of the Constitution has remained unredeemed; From this fundamental breach of the constitutional faith flow almost all our present ills.  The first and the foremost need is to place the citizens of this country at center-stage and demonstrate this prioritization in all manifestation of governance'. Unfortunately no suggestions have been forthcoming as to how the executive should go about doing this. And some of the observations, in general terms, like 'Crisis of leadership, corruption, insensitivity and inefficiency of administration have resulted in extra-legal systems and parallel economies and even parallel governments. Bureaucratic pettifoggeries which cause frustration in people in their daily life has a more serious fallout of pushing more and more people into extralegal systems. People take refuge in when the cost of obeying the law - outweighs the benefit.'

If that be so for the executive, the Commission has this to say about the judiciary: 'Judicial system has not been able to meet even the modest expectations of the society.  Its delays and costs are frustrating, its processes slow and uncertain.  People are pushed to seek recourse to extra-legal methods for relief.  Trial system both on the civil and criminal side has utterly broken down.' Also, 'Thus we have arrived at a situation in the judicial administration where courts are deemed to exist for judges and lawyers and not for the public seeking justice'.

But the Commission seems to have lost its way when observing that 'In a Parliamentary system there is no strict separation of powers between the Legislature and the Executive.  Indeed, it involves a fusion of legislative and executive powers than a strict separation of those powers.  The executive is drawn from the legislative- majority and can count on automatic endorsement of its programmes.  The responsibility for success or failure of programme is clear and identifiable'. Also, the observation that the President of India "represents the nation but does not rule the nation.  He is the symbol of the nation" can only be attributed to a lack of clear understanding of the roles of the offices of the executive and legislature. By the same token, judiciary is made out to be a super-authority overlording both the legislature and executive. Compare these observations: 'The basic law is that all citizens including members of Parliament are equal before the law.' and  'Privileges of Members are intended to facilitate them in doing their work to advance the interests of the people.  They are not meant to be privileges against the people or against the freedom of the press.' with   'The power of court to punish for contempt of itself is part of sovereign power and can inhere only in a sovereign.  Articles 129 and 215 recognize the existence of such power in the Supreme Court and the High Courts as they exercise inter alia the sovereign judicial power. Parliament and State Legislatures exercise sovereign legislative power' and 'The highest office in our democracy is the office of citizen; this is not only a platitude, it must translate into reality'. It is chaos, confusion and obfuscation galore, isn't it?

One interesting feature of the report is the number of Commissions and Councils recommended to be appointed. National Education Commission, Standing Constitution Committee, a study Group of Parliament outside Parliament, National Science and Technology Commission, The National Judicial Commission, Interstate Trade and Commerce Commission, delimitation commission, National Immigration Council, Arakshan Nyaya Adalats, National Immigration Council are some examples. The way their functions are defined it seems that this Commission is of the view that the governance of the country should ultimately be left to these commissions/committees and the judiciary, leaving the present executive and the legislature on a limb! Any reduction suggested in the current institutions of government? The Commission argues: 'there is no reason why the Central Government should have large and unwieldy ministries handling subjects like education, health, agriculture, rural development, social welfare, industry, power, etc. when these areas can more conveniently and appropriately be handled at the State, regional or district levels.  Reallocation of subjects from the three Lists given in the Seventh Schedule could be looked into in this context.'  Interestingly, the long debated National Judicial Commission has been recommended some form in the final report, but this varies from the decision taken by the Commission at the discussion stage. This is what Dr Subash Kashyap has recorded in hid Notes:

Attention is also invited to the decision taken by the Commission at its 14th Meeting held on 14-18 December, 2001.  Para 16 of the minutes records that "There shall be a National Judicial Commission for making recommendation as to the appointment of a Judge of the Supreme Court (other than the Chief Justice of India), a Chief Justice of a High Court and a Judge of any High Court."

"The composition of the National Judicial Commission would be as under:

a) The Vice-President of India
b) The Chief Justice of India
c) Two senior-most Judges of the Supreme Court, next to the Chief Justice
d) The Union Minister for Law & Justice."

However the composition of the NJC as recommended by the Commission in its Final Report is:

The National Judicial Commission for appointment of judges of the Supreme Court shall comprise of:

(1) The Chief Justice of India    :Chairman
(2) Two senior most judges of the Supreme Court   : Member
(3) The Union Minister for Law and Justice  : Member
(4) One eminent person nominated by the President
after consulting the Chief Justice of India  : Member

This sort of manipulations, expected by the very nature of the composition of the Commission, not only undermines the credibility of the Commission but is sufficient enough reason to dump the report itself as malafide. Fortunately, there are indications that the Report is getting its just dues.

It was on 31 Mar 2002 that the Commission submitted its report to the Prime Minister. In the one year that has gone by at least two factors considered by the Commission has attracted public attention. The first one is with respect to election reforms. The Commission had recommended the enactment of an appropriate provision making it compulsory for the political parties requiring their candidates to declare their assets and liabilities at the time of filing their nomination before the returning officers for election to any office at any level of government. We have seen how this important recommendation, one of the good ones at that, has been handled by the various constitutional authorities. There is a second, good and important, recommendation too regarding the election reformations, that has been dumped. The Commission had recommended that 'In order to maintain basic federal character of the Rajya Sabha, the domiciliary requirement for eligibility to contest elections to Rajya Sabha from the concerned State is essential. This should be maintained'. It has now been reported that this requirement has been removed!

So the game will continue, with or without any review of the Constitution. And as far as this Commission is concerned I am sure that dumping of its report is what is in the best interests of the nation. Such a patently lop-sided report would indeed be hard to come by in this age of information flooding and knowledge engineering! To conclusively prove the partisan approach of the Commission, consider these two recommendations:

Article 105(2) may be amended to clarify that the immunity enjoyed by Members of Parliament under parliamentary privileges does not cover corrupt acts committed by them in connection with their duties in the House or otherwise.  Corrupt acts would include accepting money or any other valuable consideration to speak and/or vote in a particular manner. For such acts, they would be liable for action under the ordinary law of the land. 

A Proviso to article 19(2) of the Constitution should be added as under:-

"Provided that, in matters of contempt, it shall be open to the Court to permit a defence of justification by truth on satisfaction as to the bona fides of the plea and it being in public interest.".

Read in conjunction with the observation of the Commission that 'the right to information cannot be hedged by so many restrictions as to render it meaningless', the recommendations quoted above clearly shows how the Commission has exercised to keep the judiciary above scrutiny and accountability.

The issue of reservations has also been dealt with by the Commission in a none-too-professional manner. The Commission has observed that, in fifty years, 'reservation alone by itself has not been able to bring about the total social transformation envisaged in the Constitution' and that 'while today Panchayats elect some three million members of whom one-third are women, the objectives envisaged in the Amendments (73 and 74) have not been fully achieved even after more than eight years' all that the Commission has been able to recommend was further isolation of the under-privileged classes through 'the establishment of residential schools for SCs and STs in every district in the country - one each for SC boys and SC girls, and ST boys and ST girls, as one item of an important package of comprehensive measures required for the development and empowerment of SCs and STs.  Similarly, the Commission recommends that residential schools should be set up for the BCs in every district, one each for BC boys and BC girls, including minorities who belong to BCs and with special attention to More Backward and Most Backward classes among BCs'.What impoverished ideas! And what a pity!

In the ultimate analysis, the Report is an immensely readable document, with lots of data that can open ones eyes to the ground realities as they exist in our country more than 55 years after independence. However, when it comes to recommendations for corrections/improvement the Commission has been found to be woefully inadequate to the task. The problem should not have been unexpected as the composition of the Commission was certainly judiciary-heavy. This is what the Commission itself had quoted at one place: "There is much to be said for the use of a constitutional revision commission when it is so composed as to be representative of the various major interests of the state; when it is dominated by one of those interests, little can be expected of it." Yes, the Commission should have had only eminent persons from different walks of life, from the public. Representatives from the various organs of the government, including the judiciary, could have been co-opted to give factual details or expert opinions in their fields. Also, in spite of its tall claims of having invited pubic opinion, interaction with professional bodies and conduct of seminars, the effort has not been commensurate with the scope available. Though I did see a 2 column cm report of the Commission and responded, I doubt if that was enough if one goes by the advertisements appearing on full pages of newspapers even when a railway track of 30 Kms is inaugurated! 

And this what Dr Subash Kashyap has written about the report itself: 'While no comments are being made on what went wrong in the procedure, priorities and perspective, it may be put on record that several of the recommendations now forming part of the report go directly counter to the clear decisions of the Commission on which the unanimously adopted draft report of the Drafting and Editorial Committee was based'.

Finally, it has been left to Ms Kulkarni to drive-in the last nails, thus:

1. I believe in a Unified and truly Secular India.  However, the Commission debates seemed often to reduce the Constitution to being a platform for divisiveness and not unification.
2. The Commission did not initiate or promote sincere debate in the public with regards to the issues that it was contemplating.  The efforts was more to "evade and defer" instead of to "identify issues, table them for debate and to deal with them".

While the Commission has magnanimously dedicated the Report to the People of India, this review, of necessity, has to be dedicated to Dr Subhash  C Kashyap and Ms Sumitra G Kulkarni, who have acted as the conscience keepers of the People,  laboured to make the Commission respond positively to the task at hand and having failed atleast thought it necessary to put the record straight with their notes.


1 comment:

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