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November 25, 1999


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The Rediff Interview/ B G Deshmukh

'If the Westminster type is not working, there is no guarantee that a new type of Constitution will also work'

On April 26, 1998, when Home Minister L K Advani spoke about the need for a constitutional review in the course of a lecture in Patna -- a feeling he reiterated in Varanasi this week -- he ushered the debate out of the pages of the BJP-led government's National Agenda into the hurly-burly of Indian socio-political life.

Does the 49-year-old Constitution require modification? Should India abandon the Westminster model and opt for a Presidential system? continues its debate on whether the Constitution needs change and if the Indian people are ready for it.

Prominent among B G Deshmukh's books at his Bombay House office are fat volumes on the Constitution. Hardly unlikely for a long serving bureaucrat -- who was Cabinet secretary and principal secretary to then prime minister Rajiv Gandhi.

Presently, a director with Tata Sons -- Deshmukh has had a wide ranging experience of the working of the Indian bureaucracy. In conversation with Archana Masih in his quiet and tastefully done up office, he spoke about the Constitution and asked if it does need a review.

There is much talk from the ruling coalition about how the Constitution needs to be reviewed. All coming from one quarter, the politicians. From a bureaucrat's point of view do you think the Constitution needs a fresh look?

Basically our Constitution is a very solid one. Our founding fathers gave very deep thought to it. So I do not think there is something wrong with the basic tenets of the Constitution. We have to find out why the Constitution is not working. For this there could be two reasons: one, the basics may not be sound or two, we may not be ready to work the Constitution.

Our Constitution is not working because we have not been able to elect proper representatives to work the Constitution. So even before we look at the review of the Constitution, we must find out what is wrong with our electoral process. If our electoral process is not improved and revised even a new Constitution will meet the same fate. So I want to highlight that before we have a fresh look at the Constitution, let us revise our electoral process so that we get good people to work the Constitution.

The second point is that everything should be reviewed and revised because dynamics is the most basic principle of life. So before touching the basic principle whether we should have a Presidential type or not, let us see how we can get the present Westminster style working. Here one can say that we have unstable coalitions, prime ministers who don't last for more than one or two years -- our ex-President R Venkatraman has suggested how the election of the PM can also be reviewed.

Today what happens is that if the no confidence motion is carried through, the Opposition party which brings the motion has no power to form an alternative government. One thing that can be done is that before you bring in a No Confidence motion, you must assure the President that you are in a position to form an alternate government. Well, without that no confidence motion should not be allowed.

Secondly, one can also say that in the first year of new government there should be no no confidence motion. Today, it can be brought in every session -- you can say it can be brought just once a year and not more. These are the various built-in safeguards we can build and let us give a fair run and an opportunity for the Constitution to run.

If this commission is set up, do you think the people who constitute this committee, however eminent, will be able to review the Constitution without evoking any doubt about the government’s agenda? After all, unlike the Constituent Assembly these will not be individuals elected by the people, and can subject the review to a lot of battering itself?

You see the Commission is not the final authority. The Commission can at the most make recommendation. Because even if the Constitution has to be amended, the routine provisions can be done by a simple majority but the more substantive amendments have to be carried by two-thirds of a majority.

Secondly, if the basic principle of the Constitution has to be amended it cannot be done now according to the Supreme Court. So unless you have a new Constituent Assembly constituted you cannot have a basic revision of the Constitution.

Now Mr Advani is reported to have said that well the basic principle of the Constitution does not rule out the Presidential form because it is also a democratic system. Here also there can be two views -- if the Westminster style Constitution has to change for a Presidential style, I think the Constituent Assembly will have to be formed. This is my opinion. If the Westminster type is not working, there is no guarantee that a new type of Constitution will also work.

And at least in a developing country, I would be rather careful to have a Presidential type because I don't think it would work in a developing country. You have the experience of so many of the Southeast Asian countries.

What would you say are the advantages and disadvantages of this system in the Indian context?

Before even thinking of changing the system, have we even found out why the system is not working, and whether the same reasons will not affect the new system also? My firm belief is that it is not working because our electoral process is flawed. So why not improve the electoral process and see if the existing system is working or not? If we merely change to a new system without removing the causes we will land into the same problems, it will be worse. Then it is very likely that the President will be almost a dictator then.

What changes in the electoral process?

There is a very strong school of thought that we should not have jumped from restrictive franchise to universal franchise. There is a theory that unless the electorate knows what are the responsibilities, they should not be given these rights. There is a very strong reason for that because all mature democracies have passed through the process. But that doesn't matter, we cannot undo it now.

There are certain things that can be done. Why not State funding? Today political parties have to find their own funds for fighting elections. This is the biggest source for corruption. Then unless there is certain minimum voting, don't call it as voting. Today even if you don't get more than 20 per cent of the votes, you get elected. I have said that if you don't get 60 per cent of the votes cast you can't get elected. Criminalisation of politics has to be stopped. So improve the electoral process and it is very likely that the Constitution will also work. So don't throw the baby with the bath water. Throw the bath water, fill clean water and see how the baby fares.

But the BJP has been stressing on the Presidential form right from their manifesto?

But this is nothing new. This is not the BJP's brain child. Vasant Sathe had been vigorously advocating this, even Shivraj Patil. The moment the coalition era came in several people were talking about it. And I say there is nothing wrong with coalition era. In a country of continental proportions, multi ethnic, multi-cultural -- what's wrong with coalitions?

If not now, but in the future if a Presidential system does come about -- what advantages and disadvantages do you see in the Indian context?

Developing countries should not take the chance. Even in the developed countries, except for the USA and a few others -- there exists a Westminster type. Even in France -- the president is there but he is still not the absolute executive head as in the US. Even in the US, the president is directly elected every third year and there is a full federal system. Whereas in India we call it federal, but it is nothing but a unitary system. The central government has great powers. Unlike the President of the US who does not have the power of dissolving a state assembly.

Why do you say that developing countries should be careful about a Presidential form?

If you see the South East Asian countries during the fast rate of economic development -- I wouldn't say there was dictatorship but a very strong central government that used to ride rough shod over human rights. So in a developing country to get faster development there is great temptation to compromise on human rights. In a Presidential form in a developing country there will be great temptation for the president to amass unlimited powers. In a developed country this temptation is reduced.

All South East Asian countries are nothing but semi dictatorships. Thailand, Malaysia. The great example is Singapore.

The Constitution has had 80 major or minor amendments since 1950 – do you think amendments have happened much too often? Do you think many of these amendments were justified?

I can't say much too often because if a party has amended it, like in 1977 when we had a non-Congress government -- it did not upset all the amendments, but only a few amendments. So not necessarily all amendments are politically motivated. If they were, many of them would have been upset it when a new government came into power. I don't think that has happened. I don't know how many amendments have been made, but I don't think more than half a dozen have been upset.

And when you have a good Constitution the situation is always dynamic. Why then would we have a provision to amend the Constitution at all. But still we have safeguards -- routine amendments can be through simple vote, but substantive amendments require not only two-thirds majority but ratification by certain minimum numbers of state

Do you see any modifications in the role of the Civil Services in the Presidential form of governance?

No, I don't think so. Basically in any democratic structure, the political apparatus is the Civil Service, so I don't think there will be any substantive change in the basic structure of the Civil Service.

Article 370, there is such talk about its removal. Do you think it is easy for an Article to be completely removed?

No. 370 will be a substantive amendment. It will need a two-third majority and ratified by a certain number of states. I don't know whether in this particular state the resolution and concurrence of the Jammu and Kashmir assembly will be sought. I am not sure, but it maybe necessary also to be fair to them. What do they think. Even if we decide to amend it, first of all the J&K Assembly should pass a resolution. Without that resolution it will be most unfair.

Do you see any changes happening in Article 370?

For the sake of argument even if it is necessary, there should be a time and a way to do it.

What would you say is the correct time and why?

A good time would be when there is no tension. No controversy. When the Kashmiris themselves want to remove it.

If there are changes that have to be made, in your opinion what would these changes be?

The basic elements of 370 is that a non Kashmiri cannot hold property in J&K. And a non Kashmiri cannot be a voter in . I am not saying whether it is good or bad. It may be necessary so that outsiders do not exploit. By outsiders I mean vested interests. So it is a sort of protection for the local people. Whether this prohibition should be absolute is something that needs to be looked upon. But we have to live with these things even if we don't like it. At the same time there are so many other things more important than this.

When I was Cabinet secretary I had said why don't we give liberal concessions to Kashmiris to see the rest of India? Why don't we offer good boys and girls in Kashmir sure employment outside? Why not expose them to what the rest of India does? Get a list of promising students from J&K, send them to IIMs and IITs and ask the business houses to give them employment. Automatically, this will create a good atmosphere there.

When I went to Srinagar in 1989, I was aghast to see the the housing situation. In one room lived three generations. There were no housing colonies -- simple things that are happening everywhere outside Kashmir.

What of a Uniform Civil Code, in your understanding of the Indian masses as a civil servant – do you think this can be applicable in a country as diverse and complex in India?

No, a common code covering all aspects may not be suitable. But there are certain basic rights that should be equal. Example, women. Why can't women under the Islamic law have the same rights as a woman in any other religion? I am not saying change everything, but there are certain basic human rights that should be common to all. There may not be a common civil code but there is a common criminal law. I am sure that young Muslim girls will not keep quiet. I firmly believe that a change in social conditions is very intimately connected with change in economic condition. Unless the majority of the population has reaches a level of basic economic well being. I think we should reach that stage in 15 to 20 years.

Another Article which is much maligned is 356, especially in view of the UP fiasco – do you think this particular article needs changes? If yes, why?

There is nothing wrong in the principle of Article 356. The way it is used and abused is incorrect. Unless there is an alert public opinion, there can be no guarantee. An alert public opinion is required. Subject to that, you can say that it should be justiciable. You can challenge it in court. And it is happening these days so that people are more careful. In this case the advice of the Cabinet should not be binding on the President. Today if the President returns what the Cabinet has sent once, it is binding if the Cabinet sends it again.

Thirdly, before it is imposed the state government should be told publicly about the decision and also be given a notice of a few days to improve the situation. Of course, unless there is a national emergency. Otherwise, there is nothing wrong in the principle of Article 356. You can have safeguards to prevent abuse. But as long as the Indian political system is not matured, I'm sure whatever are the safeguards, they are not enough. So I say don't throw away the baby, throw the bath water first.

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