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The Rediff Special/ Nani Palkhivala

'We are third rate, unfit to be a democracy'

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Does the 48-year-old Constitution require modification? Should India abandon the Westminster model and opt for a Presidential system? Rediff On The NeT continues the debate on whether the Constitution needs change and if the Indian people are ready for it by speaking to Nani Palkhivala, India's leading Constitutional expert. Interview conducted by Archana Masih.

Nani Palkhivala If you publish this as it is it would be a great service to India. But how many Indians will read this? What's the point if people in America are reading it, it is Indians who need to read it more," Nani Palkhivala asked in despair. India's best known constitutional lawyer -- a frail figure sitting across the table -- is a man completely disillusioned by an Indian system that has failed -- and leaders who have not delivered.

On the review of the Constitution -- a topic that has emerged and subsided, depending on the fancies of the government in power -- Palkhivala has written extensively. The typed sheets of paper on his desk carried the gist of his thoughts. Yet, the 78-year-old jurist somehow knows his suggestions don't stand a chance with the government. "I have suggested the type of things that I would like but they are not the changes they would like to make."

Palkhivala feels it will take a minimum of three years for the recommendations to come into place. By when, the present government may be out of power. Another quick glance at the papers in front of him, and his thoughts give way to more frustration. "These are third rate men. They are not people with vision. The members of the Constituent Assembly were first class men. People like Ambedkar framed the Constitution. Compared to the people in power today, I don't I think I am in the same country."

After having lived in pre- and post Independent India; authored several books; and served as Indian ambassador to the United States, Palkhivala has a deep insight into India and its polity. The understanding of which is the cause of greater pain -- of a democracy that failed to improve the lot of its people. "We are not made for democracy. We are made to be ruled by a strong man. Like Kemal Ataturk. I have said repeatedly that India needs a strong man, not adult franchise. I haven't seen anyone yet. I hope it does happen in my lifetime."

Palkhivala reiterates that an India that votes on the basis of caste and community was not the India the framers of the Constitution envisioned. An India where more than half of the populace is uneducated does not deserve adult franchise. "I am totally disillusioned. I don't believe in adult franchise at all. We have no reverance for our Constitution. We have no distinction between ordinary and Constitutional law. We are third rate, unfit to be a democracy. People blame the Constitution today to shift the blame from their shoulders. Because the people who framed the Constitution are dead and gone. You think this is a country to live in?"

At this point, he marvels that the young people of today are brave enough to start a career in India. He flips through those papers again, pauses and answers a query on Article 370. "You cannot remove 370, because that was a condition Kashmir became a part of India. If Article 370 is removed, I don't see why Kashmir should continue to be a part of India."

"This is a gist of what I have been saying for years and years..."

We have no reverence for our Constitution. Our Constitution has been amended no less than 78 times in 50 years, unlike the United States constitution which is regarded by the Americans with such reverence that it has been amended only 27 times in 209 years. It is my firm conviction that it is not the Constitution which has failed the people but it is our chosen representatives who have failed the Constitution. Dr Ambedkar poignantly remarked in the Constituent Assembly that if the Constitution given by the people unto themselves in November 1949 did not work satisfactorily at any future time, we would have to say that it was not the Constitution which had failed, but that man was vile.

Every right minded person would agree that the integrity and unity of the country, and the secular character of our country, which have been our greatest accomplishments since 1947, should never be disturbed.

There is a cavernous gap between India's tremendous potential and the depressing reality. Our economic accomplishments have been woefully inadequate to eradicate poverty and enable the underprivileged of this country to rise above their ageless squalor.

However, it is time that, having regard to the lack of character and calibre in the overwhelming majority of our politicians, we should think of making some changes in our constitutional law.

The expression 'constitutional law' comprises not only the Constitution, but also other parliamentary laws which supplement the Constitution and are concerned with subjects that are constitutional in nature.

There are three ways of amending the constitutional law.

The first is to change those parliamentary laws which qualify to be treated as constitutional law --without amending the Constitution itself.

The second is to amend the Constitution, without altering its basic structure, in accordance with Article 368 of the Constitution.

The third way is to amend the Constitution so drastically that its basic structure is altered; and this can be done, having regard to the Supreme Court's judgment in Kesavananda Bharati's case (AIR 1973 SC 1461), only by setting up a new Constituent Assembly or by a referendum.

The third way of amending the Constitution may be ruled out as being clearly inadvisable at the present juncture. When the dangerous divisive forces are so pronounced, this is hardly a time to call a Constituent Assembly or to call for a referendum for changing the basic structure of the Constitution. Convening a Constituent Assembly would be a step fraught with the greatest danger to the unity and integrity of India. Even a small country like Belgium took twelve years (1967 to 1978) to revise the fundamental laws of that state. Our problems are far more complex and more numerous than those of Belgium. We are, therefore, left with the first two alternatives.

There are four desirable changes in our fundamental laws which can be implemented without amending the Constitution.

First, no political party should be recognised by the Election Commissioner or by any other authority unless the party maintains audited accounts of all its receipts and expenditure. I have been writing and speaking publicly on this particular change over the years. Such a law is in force today, but the law on this point remains only on paper like several other Indian laws.

Secondly, it seems essential to introduce partial proportional representation in the Lok Sabha. Half of the Lok Sabha candidates should be elected on the basis of proportional representation, which is the system in force in several countries including Germany. In order to prevent the mushrooming of political parties and splinter groups, it should be provided that the benefit of proportional representation would be available only to those political parties which secure a certain percentage, say, 5 per cent of the votes cast in a region. The advantage of proportional representation is that it would enable the voice of minorities, regional parties, and order significant segments of the public, to be heard in Parliament, and thus allay the feelings of frustration and discontent among them.

Proportional representation in the Lok Sabha is permissible under Article 81 of the Constitution which only requires "direct election." Therefore, the desired change can be accomplished by amending the Representation of the People Act.

Thirdly, some minimum qualifications should be prescribed for those who seek election to Parliament. This, again, can be done without amending the Constitution. Article 84 already provides that the qualifications for a person who seeks to stand for election to the Lok Sabha are -- he must be a citizen of India; he must be 25 years old; and he must possess such qualification as Parliament may, by law, prescribe. The first qualification is usually an accident of birth; and the second is inevitably the result of the inexorable passage of time. Up to now Parliament has prescribed only disqualifications. I would advocate some positive qualification for aspirants to a parliamentary career.

Nani Palkhivala Fourthly, a salutary change can be made in our constitutional law, without amending the Constitution itself, to reduce to a minimum the detestable exhibitions of the toppling game which has been a craze among our frolicsome politicians over the years. Legislative rules or other laws can be so amended as to provide that a vote of no-confidence against the government would be inoperative unless the legislature passing the vote of no-confidence chooses at the same time the leader who is to take the place of the prime minister or the chief minister. Such a system prevails in Germany where a vote of no confidence in the chancellor has to take the form of a resolution choosing another person as the chancellor.

Photographs: Jewella C Miranda

Nani Palkhivala, continued

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