Former Lok Sabha secretary general Dr Subhash C Kashyap joins the debate on reviewing the Constitution.

    The government has announced the setting up of a committee headed by former Chief Justice of India M N Venkatachellaiah to review the Constitution. While the names of the others who will constitute the eleven-member panel have not yet been announced, it is widely believed that Dr Subhash C Kashyap, constitutional expert and former secretary-general of the Lok Sabha, will be among them. Over the years, Kashyap has, in his published books, called for the setting up of a Constitution review committee. Today, his demand has been fulfilled.

In an exclusive interview with Amberish K Diwanji, conducted a day before the setting up of the committee was announced, he sought to clarify why he felt the commission was necessary and what it should be looking at.

Does the Constitution really need a review?

We have been working this Constitution for the past 50 years. It is an excellent Constitution made by some of the wisest men in India at that time. It has stood the test of time while most other constitutions prepared at that time were abrogated or thrown in the dustbin. Nothing should be done to nullify the noble basic features of the Constitution, not just in the sense that the Supreme Court has defined it, but in a much wider sense. The prime minister has said that, the law minister has said that, and the President too pointed out that these basic features must remain untouched. And I don't think there is any intention to play with the basic features of the Constitution.

But then there is a need to review what I would call the working of the Constitution over the last 50 years. To examine by way of self-introspection whether we have been able to achieve the noble aims and objectives which the founding fathers sought and for which they gave this Constitution to the country.

Now if we find that there are some areas in which the objectives of the Constititution have not been met, they will have to be examined to see why there has been a failure. We would like to see whether the Constitution has failed in these areas or whether it is in the working of the Constitution or we the people who have failed the Constitution. Yet, for this very purpose we need a debate to find out what is wrong and how it can be changed.

But why review the Constitution? Why not those who work on it?

The fundamental mistake we make is to assume that the Constitution is the name of a book or the provisions are contained in the book, The Constitution of India. The Constitution is a living, dynamic process. It is all the time in evolution. The constitution-making process did not stop with the Constituent Assembly but continued all through the 50 years, and through the ways in which it was worked by the different functionaries of government, through the amendments passed by Parliament, and through the interpretation of the Constitution by the Supreme Court. All these are part of the Constitution in the wider sense.

When the government says review of the Constitution, it is, I think, saying that it will be a review of the working of the Constitution, which I think is much more logical and sensible. We are not thinking of amending the Constitution.

Yet, if changes are needed, why can't we bring about the necessary amendments?

Some people have suggested this. We have already brought in 79 amendments, why not a few more. But you should not easily resort to amendments. A review, instead, is more logical and milder. A review panel may reach the conclusion that no amendments are necessary in the Constitution or some minor amendments are needed. But in India, for everything we seek to bring in an amendment. And it is for this committee to see what all can be done without an amendment and through ordinary legislation.

What I am saying is that we need to have a review of the working of the Constitution to find out whether it is at all necessary to have any change in the Constitution and what can be done by amending the laws or the rules or the interpretation.

Also, an amendment is more dangerous because every amendment tinkers with the Constitution. Every amendment amounts to a constitutional review. Thus, the law ministry has to see whether any amendment will impact on the other parts of the Constitution. Very often an amendment of one Article affects another Article. Thus, every amendment is a review, except that this review is done by bureaucrats in the law ministry!

Is this the right time for such an encompassing review, given that no political party has a majority in Parliament and the political situation appears to be in flux? After all, any change will need two-thirds support in Parliament.

Precisely for these reasons this is the most appropriate time to go in for a review of the Constitution's working. If we cannot bring about even a most desirable and imperative change through the existing procedures, a change that the nation's people want and a change that is required for the nation's security and interests, then what do we do?

You are saying that the present government will not get a two-thirds majority for amending the Constitution, but I am saying that we may not even need to bring in an amendment. Changes can be brought about peacefully, through legislation. Constitutional change is possible without amending the Constitution. For example, election laws can be amended without changing the Constitution.

It is alleged that one reason the present government is keen for a review is to ensure its five years in the Lok Sabha.

Stability of the government should not be confused with stability of a political party in power. We as the people of India are concerned with the wellbeing of India and its citizens. What is needed is stability of the system.

When I say system, the government too is part of the system, but I don't mean the government of Mr Vajpayee or anyone else. The government must function. The government must be stable and continue, but now we find that at least in several parts of the country, the system does not work.

I was in Bihar last month, and even an important road like the Grand Trunk Road actually did not exist for long stretches of miles. The system here has become dysfunctional. It is not a question of a particular party in power. The citizen needs that the government must work, regardless of which party is ruling.

But that also proves the point that it is often the people who have failed. If Bihar is in a mess right now, other states in India are doing very well. For instance, Andhra Pradesh is in the ascendant. Why blame the Constitution for people's failures?

Two things. People are what they are, and we cannot change them. If the people are bad, we cannot say that we will import people from England and America to work the system. The system has to be adjusted to meet the needs of society. If there are no thieves in society, we won't need a police force. But if there are, we need a police force.

Hence the system is not an end in itself. It is devised to suit the people and the system must take into account the needs, nature, and character of the people that it seeks to serve.

The second point is about the rulers. What is the system but one which seeks out the best among the people to rule? So we need a system that will find out the best people among the masses, and we need to examine whether our present system actually constrains us from having the best people at the top.

To give you an example, the majority of our elected leaders, whether in the Lok Sabha or in the state legislative assemblies, have been elected by a minority of votes. I am not saying we should have proportional representation, but we do need to examine this problem and the possible answers do not need a constitutional amendment.

Often the rulers misinterpret the Constitution. For instance, Article 356 gives very clear instructions when a state government can be dismissed, yet politicians interpret it to suit their needs. Does this not imply that we need to follow the Constitution more strictly rather than make more changes?

Article 356 has been misinterpreted, misused and abused by every political party that has ruled at the Centre. Now the fact that it can be misused, and that there is no protection against such misuse, may call for some amendment that makes it difficult to misuse.

The Supreme Court judgment in the S R Bommai case has given strict instructions on the use of Article 356. Is that not enough?

Well, the Supreme Court judgment did not prevent at least the recommendation to use Article 356 in two cases (Uttar Pradesh and Bihar). Hence it is not enough.

Secondly, if Article 356 were used for the purpose intended, there would have been no problem. In fact, I have pointed out that Article 356 is not a stand-alone article, but that other relevant provisions have to be read along with it. Article 356 says, '...when the governance of the state cannot be carried out in accordance the Constitution...' But when can you say that this is happening? The Constitution provides the answer. Article 365 says '...when the executive directions being given by the Union government to the state are not being complied with...' These directions can be given through the governor under Articles 256 and 257. Only then can you say that the state's governance is not in accordance with the Constitution.

But in the 100-odd times that Article 356 has been used so far never has the Centre given directions. It has simply dismissed the state governments for political reasons, and this is wrong.

To go back to your earlier question, yes, if our rulers were like Dr Rajendra Prasad or Dr S Radhakrishnan, then of course we don't need additional provisions. Certainly, if the rulers are angels, no Constitution is necessary. But a Constitution becomes necessary because we have to regulate and define the powers of different organs of the State.

Then, why is there is so much opposition to the idea of a review?

Political leaders have their own axe to grind. They say one thing in private and another in public, and often claim that political compulsions make them take up particular postures in public.

But political leaders also fear that the government may bring in changes to help it stay on longer?

The politicians are bringing up such fears for political reasons. These politicians are talking about a hidden agenda and all such things even though they know the Bharatiya Janata Party lacks the numerical strength in Parliament to implement any such agenda. The politicians know this, but they have to say such things. I thought it was most unfortunate that when the President spoke on January 27 about the review, the Opposition parties and the media sought to make the President appear like the leader of the opposition!

Discuss the constitutional review with Dr Subhash C Kashyap. Join The Rediff Chat on Thursday, February 3, 2000, at 1900 IST (0830 EST).

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