Arvind Lavakare on the Constitution Review

Having had to lump the government's firmness in going ahead with a Constitutional review, most sections of our press have been gloating in the belief that 'the basic structure' of our Constitution is beyond the pale of any amendment as would aid and abet the BJP's notorious 'hidden agenda.'

While the BJP itself has never given any inkling whatsoever that it wants the review for its own cause, the 'secular' press of ours has imagined it so out of its neurotic allergy for the Sangh Parivar. And its latest rush to the safety of 'the basic structure' cocoon represents yet another instance of the palpable ignorance and anti-BJP attitude that have characterised our leading journalists, who go on merrily without any sense of the accountability which the fourth estate as a whole demands from everybody else.

Let us examine this 'basic structure' belief at some length.

Its origin lies in the Kesavananda Bharati vs Kerala case decided by a full Constitutional bench of judges on April 24, 1973. By a wafer-thin majority of 7-6, the Supreme Court held that the power to amend our Constitution under Article 368 cannot be exercised in such a manner as to destroy or emasculate the fundamental features of the Constitution.

Some of the features regarded by the court as fundamental and thus non-amendable were i Supremacy of the Constitution ii Republican and democratic form of government iii Secular character of the Constitution iv Separation of powers between legislature, executive and judiciary, and v Federal character of the Constitution.

Expectedly, the Kesavananda judgment has had a roller-coaster ride. Several jurists have not concurred with it. For instance, Fali Nariman, that legal giant, has said, 'in asserting the basic structure theory the Supreme Court has asserted political power in the guise of judicial interpretation. By propounding it, the guardians of the Constitution have in one bond become the guardians over the Constitution. Constitution adjudicators have assumed the role of Constitutional governors.'

This alarming accusation was but a colourful expression of the opinion of the first Chief Justice of India, Justice Kania, who believed the courts should restrain their authority to declare void any legislative enactment. And Sonia Gandhi's Congressmen, who were shouting hoarse over the Constitutional review exercise, would do well to remember that Indira Gandhi's law minister, himself a lawyer, had vociferously argued in Parliament in 1976 that there was no basic feature of the Constitution which Parliament could not amend.

To sum up, there may be case enough for challenging the theory of the basic structure before the Supreme Court and getting it reversed. That is, in fact, the view of Subhash C Kashyap, an acknowledged expert, who, remember, is one of the members of the newly formed Constitutional review committee. Remember too that the Supreme Court does not regard itself bound by its own previous decisions and feels free to overrule them if thought necessary. Isn't it only recently that the Supreme Court gave two contradictory pronouncements in quick succession on the abuse of power by Congressman Satish Sharma when he was petroleum minister?

Even more germane to debate is the definition of each of the features regarded as basic or fundamental to our Constitution. Thus, there's the feature called "democracy". No court, till now has defined it to mean only "parliamentary democracy". After all, the USA is a democracy too, but with a presidential form.

Hence, it is just naïve for our edit writers to believe that the newly formed review committee is constrained to limit itself to reforms under the parliamentary system. That the review is almost certain to ignore endorsement of the presidential form of government is one thing but its consideration would be fully in conformity with its terms of reference. Congressman Narayanan may kindly note.

What about 'secularism'? Considered as another 'basic feature' of our Constitution, the word has not been defined in the Constitution or in any statute. Justice H R Khanna, who was on the side of that wafer-thin majority in the Kesavananda judgment of 1973, did give the contours of that word in his individual pronouncement in the case. He wrote that the 'secular character of the State' meant 'the State shall not discriminate against any citizen on the ground of religion only.' This was a good enough connotation of the concept though the word 'religion' itself is, significantly, also not defined in our Constitution.

It was in 1977, during the Emergency of the period of the Congress raj that a new definition of 'secularism' was talked about. It was supposed to mean 'equal respect to all religions' -- Sarva Dharma Samabhava. That is why the Janata Party government under Morarji Desai included that definition in its omnibus Constitutional Amendment Bill of 1978. In that Bill, the term 'Secular republic' was defined to mean a 'republic in which there is equal respect for all religions.' This too was a good enough connotation of the 'secular' concept.

Do you know what happened to that definition in that Bill? The Lok Sabha passed it by the required majority but the Rajya Sabha did not. Why not? Because the Congress had the numbers there and voted it down. It was proved beyond doubt then that the Congress did not want a pinpointed definition of 'secular' and 'secularism.' It wanted the words to be left in the flexible, grey area; it wanted the words to be elastic in exploitation with its vote banks in the masjids and mohallas, in chapels and churches.

The fraudulent 'secular' press has acquiesced, nay colluded, in this conspiracy all along. It has never on its own asked the government of the day to define 'secularism' and readers' letters to the editor asking for such a definition to be made public have been simply dumped in the bin.

It is this invidious imprecision of the Congress and the conniving press which has enabled the blatant appeasement of the minorities in a wide spectrum. It is that mischievous purpose over the years which has now resulted in so upsetting the psyche of the majority that it has started resorting to rabid acts contrary to its culture of ages and aeons. Not for anything has the BJP been pleading all along for 'justice to all, appeasement of none.'

In post-independent India this appeasement was first seen at its most blatant in 1954 when Jawaharlal Nehru introduced the Hindu Code Bill in Parliament instead of a uniform civil code, and thereby chose to hurt the Hindus, including the President of India, rather than the Muslims. In a judgment, Justice Kuldip Singh of the Supreme Court records that Nehru defended his decision by saying "I do not think that at the present moment the time is ripe in India for me to try to push it through."

Nehru's cold feet vis a vis the minorities became progressively colder in his daughter's time and ultimately froze when Rajiv Gandhi enacted a whole new law expressly to subvert the Shah Bano verdict of the Supreme Court. In recent years, Maulana Mulayam Singh & Co have taken the malicious game even further.

Perhaps the most consistent discrimination against the majority community has been in the area of administration of educational institutions resulting from various judicial interpretations of Article 30(1) which gives the minorities the right to establish and administer educational institutions of their choice. Some of the most perverse decisions have been handed out on this privilege. Examples are:

# When the board of management of a Jesuit school appointed a junior teacher, a Jesuit, as the school's headmaster in preference to the senior-most teacher, who was not a Jesuit, the high court ruled that the director of education's rule requiring the senior-most teacher to be promoted to the headmaster's post cannot be binding on minority schools.

# The Supreme Court ruled that the provision of a Gujarat University Act requiring the formation of a selection committee with a representative of the vice-chancellor for selecting a principal was not applicable to minority colleges.

# A provision requiring the governing body of a private affiliated college to take disciplinary action against teachers on the recommendation of the university services commission and subject to the approval of the university has been held to be violative of Article 30(1).

# The Punjab and Haryana high court has ruled that students have no right to be admitted to aided and recognised minority educational institutions on merit alone.

The above instances and several others of the kind have happened because there is Constitutional definition of the word 'secular' or 'secularism.' If one had in fact existed on the lines of Sarva Dharma Samabhava, all such decisions could have been challenged as being non-secular and therefore violative of the Constitution.

Instead, all judicial decisions of the above kind have constrained Dr M P Jain, a known constitutional writer, to comment in his book that 'The position as it has developed is that, in effect, institutions of general education established and administered by religious or linguistic minorities enjoy a much more privileged position than those run by the majority in the matter of regulation by the government or the university. While strict supervision can be imposed on majority institutions, the same cannot be as regards minority institutions. It stands to reason whether such result was envisaged by the framers of the Constitution.' (Indian Constitutional Law, 1994, Wadhwa & Co. Publishers, Pages 659)

Ah, so what indeed was envisaged by founding fathers? In 1954, Dr Ambedkar, speaking in Parliament, was convinced that our Constitution was not secular insofar as it permitted different treatment to different communities. Yet, 19 years later, the Supreme Court declare d 'secular character' as one of its basic features without that word even appearing in that document. Indira Gandhi baptized the Constitution as 'secular' only in 1976 with her draconian 42nd Amendment. However, nobody but the BJP has had the courage to define that word to mean 'justice for all, appeasement of none.'

Now, however, it has come to light that someone else too did that word simply but succinctly. He did that in an interview to PTI on October 31,1994. He said, 'Secularism cannot mean anti-majority.' The name of that man? Former Chief Justice of India and ex-chairman of the National Human Rights Commission, M N Venkatachaliah, the chairman of the latest Constitution review committee.

Much obliged, your honour, much obliged.

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