V. EARLIER EFFORTS TO REVIEW THE CONSTITUTION‌

Even before the appointment of this Commission in 2000, certain attempts were already made to review the working of the Constitution. The Commission itself has summarized those attempts in the following way11 :

1. There was nothing entirely new in the effort at reviewing the working of our Constitution. The debate had continued right from the first decade of the life of the Constitution. Also, every amendment had been an occasion for review. But, in the half-a-century and more since the Constitution came into force, whereas as many as eighty-five amendments have been instituted, there has been (till the setting up of the National Commission to Review the Working of the Constitution) no comprehensive and transparent official exercise to review the working of the Constitution in its entirety with a view to evaluating its achievements and failures in fulfilling the objectives of the Constitution in the context of experience gained, and for future requirements perceived.

2. After the Constitution came into force, within two years, it was required to be amended. 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:

"A Constitution which is unchanging and static, it does not matter how good it is, but as a Constitution it is past its use. It is in its old age already and gradually approaching its death. A Constitution to be living must be growing; must be adaptable; must be flexible; must be changeable... Therefore, it is a desirable and a good thing for people to realize that this very fine Constitution that we have fashioned after years of labour, is good in so far as it goes, but as society changes as conditions change, we amend it in the proper way”.

3. Four years later, as an experienced Prime Minister with prolonged firsthand knowledge of the efficacy of the fundamental law of the land, he held the same view. Speaking on the Constitution (Fourth Amendment) Bill, 1955 Nehru said:

"After all, the Constitution is meant to facilitate the working of the Government and the administrative and other structures of this country. It is meant to be not something that is static and which has a static form in a changing world, but something which has something dynamic in it, which takes cognizance of the dynamic nature of modern conditions, modern society.”

4. In the years that followed the Fourth Amendment, the Constitution has been amended 81 times. The Union and the State Governments and Parliament faced the Supreme Court over fundamental rights issues: freedom of expression visa-vis national integrity; personal liberty visa-vis political stability; special treatment for some segments of society visa-vis abstract equality for all; property rights vis-a-vis social revolution needs etc. Questions also arose whether the power of constitutional amendment was complete, unrestrained and unlimited and whether there were limits to the power of judicial review of constitutional amendments.

5. In the period 1950 to 1967, Parliament and most State Assemblies had preponderant Congress majorities. General Elections in 1967 were followed by the formation of non- Congress coalitions in a number of States in the northern region of the country. Certain issues pertaining to Union- State relations arose during this period directly from the functioning of mechanisms and processes under the Constitution. An Administrative Reforms Commission was constituted by the Government of India to examine administrative aspects of Union-State relations.

6. In the period following the fourth General Election, the phenomenon of unprincipled defections for money or ministerships etc. came to the fore: legislators changing their party allegiance again and again in utter disregard of all moral and political proprieties, constituency choice and

public opinion. Wide-spread concern about the problem was mirrored in Parliament, and led to a unanimous resolution in the Lok Sabha on 8 December 1967. The resolution read:

"This House is of opinion that a high-level Committee consisting of representatives of political parties and constitutional experts be set up immediately by Government to consider the problem of legislators changing their allegiance from one party to another and their frequent crossing of the floor in all its aspects, and make recommendations in this regard.”

7. Known subsequently as the Y.B. Chavan Committee, after the then Union Home Minister who was the Chairman of the Committee, this body produced a valuable report which addressed a variety of issues germane to the handling of the problem of defections which had basic implications with reference to the working of constitutional machinery and connected statutory and procedural instrumentalities.

8. The 25th anniversary of the coming into force of the Constitution of the world’s largest democratic republic occurred, ironically, in the year in which the Emergency was clamped on the nation in an atmosphere of burgeoning national unrest. It was in this context that the first concerted initiative towards a review and revision of the Constitution was undertaken in 1975. 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.”

9. A document titled 'A Fresh Look at Our Constitution - Some Suggestions’ surfaced at this time and was circulated but, after the recommendations contained in it had drawn stringent criticism from diverse quarters, it was not pursued. Amidst tenacious advocacy about the need for constitutional

change, particularly after the Kamagata Maru Session of the Indian National Congress, the then Congress President,

D.K. Borooah appointed, on 26 February 1976, a Committee "to study the question of amendment of the Constitution.. in the light of experience.” The twelve-member Committee, headed by Sardar Swaran Singh, submitted "tentative proposals” to the Congress President in April 1976 and these were then circulated among a select few. The then Chairman of the Law Commission of India, Justice P.B. Gajendragadkar wrote to the Prime Minister that while amendment to the Constitution was necessary to expedite the socio-economic revolution, "ad-hocism is undesirable and adoption of extremist doctrinaire positions is irrelevant and inadvisable”. He advised the Prime Minister "to appoint a high powered committee to research and discuss the problem in depth for a dedicated and comprehensive effort.”

10. The Swaran Singh Committee Report stated that its recommendations had been made with the background of the tentative proposals circulated earlier to Congress Chief Ministers and Pradesh Congress Committees, the views of Bar Associations of the Supreme Court and all the High Courts, comments in the Press and in public and memoranda and opinions received from individuals, professional bodies etc. It said:

".....the Committee has kept before it certain important objectives. Our Constitution has functioned without any serious impediment during the past 26 years or so. While this is so, difficulties have been thrown up from time to time in the interpretation of some of its provisions, more particularly when they concern the right of Parliament to be the most authentic and effective instrument to give expression and content to the sovereign will of the people”.

The Committee also declared that:

"The Parliamentary system is best suited to our country, and it is unnecessary to abandon it in favour of the Presidential or any other system. In a vast country like India, with the kind of regional diversity as we have, the

Parliamentary system preserves best the unity and integrity of the country and ensures greater responsiveness to the voice of the people.”

11. The Committee made a series of recommendations on a wide range of issues including the Preamble; the Directive Principles; the constituent power of Parliament to amend the Constitution; the power of judicial review; article 276; service matters; industrial and labour disputes; matters relating to revenue, land reform, procurement and distribution of food grains and other essential commodities; Election matters; Article 227; disqualification for membership of a house of Parliament or either house of the State Legislature; article

352 and Union State Coordination. The Committee also undertook to make separate proposals for the deletion of some provisions of the Constitution which, it observed, had become "obsolete or redundant.”

12. Reacting to the Swaran Singh Committee and its report as published, Justice P.B. Gajendragadkar, then still the Chairman of the Law Commission, in a letter to Smt. Indira Gandhi, reiterated his view that the amendment to the fundamental law of the land should not have been left to a party committee and that the modality could, advisedly, have been a committee of experts to hear all parties and persons. He said, further, that the Committee appointed by Congress President Borooah had "worked in a hurry, discussed issues in a casual manner and based its recommendations mainly on political considerations.”

13. When the Forty-Second Amendment Bill was prepared, the Statement of Objects and Reasons echoed some of Jawaharlal Nehru’s words. "A Constitution to be living must be growing”, it declared. "If the impediments to the growth of the Constitution are not removed, the Constitution will suffer virtual atrophy.” The Prime Minister, in her speech in the Lok Sabha on 27 October 1976, said that the purpose of the Bill was "to remedy the anomalies that have long been noticed and to overcome obstacles put up by economic and political vested interests,” and that the Bill was "responsive to the

aspirations of the people, and reflects the realities of the present time and the future”.

14. After the change of Government, following general elections in 1977, the then Prime Minister, Morarji Desai appointed a Committee of Members of Parliament as a forum for considering substantive changes in the amendments brought about during the Emergency. Subsequently, the Prime Minister set up a Sub-Committee of the Cabinet for the same purpose. Issues germane to the 42nd Amendment were subject matter of voluminous expression of opinion by jurists, parliamentarians, editors and professional bodies. But, essentially, the effort focused on the correction of the imbalance in the Constitution caused by some provisions of the Forty Second Amendment.

15. The need was felt for a comprehensive review of Union- State relations following the experience gained in the period after the General Elections of 1977 which had resulted in non Congress governments at the Centre and in several major States in the north, but governments formed by the Congress in the southern States. In 1983, a Commission was constituted under the chairmanship of Justice R.S. Sarkaria with fairly wide-ranging terms of reference. These included:

"(i) The Commission will examine and review the working of the existing arrangements between the Union and the States in regard to powers, functions and responsibilities in all spheres and recommend such changes or other measures as may be appropriate;

(ii) In examining and reviewing the working of existing arrangements between the Union and States and making recommendations as to changes and measures needed, the Commission will keep in view the social and economic developments that have taken place over the years and have due regard to the scheme and framework of the Constitution which the founding fathers have so sedulously designed to protect the independence and ensure the unity and integrity of the

country which is of paramount importance for promoting the welfare of the people.”

16. There were also some other especially note-worthy studies of particular problems in the political system. Deep concern had been voiced relative to flaws in the electoral process. This had occasioned a Joint Parliamentary Committee on Amendments to Election Law, which submitted its report in 1972. The Committee for Democracy set up by Loknayak Jaya Prakash Narayan had also studied the subject. Various aspects of electoral reforms were reviewed by a Cabinet Sub Committee appointed in 1977 and another in 1982. In 1990, the Government of India constituted a Committee under the Chairmanship of the then Union Law Minister Dinesh Goswami with Members drawn from different political parties. The Report of the Committee contained a series of recommendations, most of which were accepted for implementation.

17. A Committee to examine issues related to State Funding of Elections was constituted in May 1998, known as the Indrajit Gupta Committee after that outstanding Parliamentarian and leader who was its Chairman. Although the Committee had a relatively limited compass of study, its observations are noteworthy and comprise valuable supplementary material pertaining to the process of elections.

18. Various Reports of the Law Commission of India provide a wealth of insights into the working of the machinery of the Constitution. The 170th Report of the Law Commission, on Reform of Election Laws, presented in May 1999, considers radical approaches seeking to improve the system of elections - the very sheet anchor of Parliamentary Democracy under the Constitution.

19. The most significant of the non-political civil society efforts was the seminar organised by 15 national institutions in 1992 and the committee appointed by the India International Centre to review the working of the Constitution. The committee which had the senior Congress leader and former cabinet minister, Dr. Karan Singh as the Chairman and included among its members two of the members of this

Commission, presented its report to the President and others. Concluding recommendation of the committee was that of a Review Commission being appointed.

20. The National Agenda for Governance issued by the National Democratic Alliance as the NDA Election Manifesto before the last general elections contained a pledge that a Commission would be appointed to review the Constitution in the light of its working for fifty years. The Pledge was affirmed in the President’s address to Parliament and was followed by the appointment of this Commission in February 2000.