The case for a new constitutional order

The other day, President Ram Nath Kovind asked the higher judiciary to exercise “utmost discretion” in what is said in courtrooms during hearings. In mid-August, Chief Justice N V Ramana said the constitutional courts faced problems in dealing with poorly framed laws. The remedy lay in more discussion and debate in Parliament so that the courts could understand the context in which legislation was made. Over the last one year, farmer organisations seeking to reverse three reform Bills (now repealed without debate) declined to listen to the highest court when they were asked to pres.....
The other day, President Ram Nath Kovind asked the higher judiciary to exercise “utmost discretion” in what is said in courtrooms during hearings. In mid-August, Chief Justice N V Ramana said the constitutional courts faced problems in dealing with poorly framed laws. The remedy lay in more discussion and debate in Parliament so that the courts could understand the context in which legislation was made. Over the last one year, farmer organisations seeking to reverse three reform Bills (now repealed without debate) declined to listen to the highest court when they were asked to present their cases before it.

These are not straws in the wind or isolated cases unrelated to one another. They are indicative of a deep unhappiness among all sections — the executive, the judiciary, the political class, and various sectional interests and ordinary people — with how our democracy and its various arms are functioning.

Our Constitution, once hailed as a revolutionary and liberal one with enough in-built flexibility to change with the times, is not working as it should. If a statute framed in 1949 needs 105 amendments in 72 years, and in which more than 280 laws have been put in the seventh schedule where the judiciary cannot even examine them for legality, and if street power is now the principal method through which laws are going to be changed, we need a more complete constitutional overhaul than mere amendments. In just under two-and-a-half centuries, the US needed all of 27 amendments, but we needed two changes every three years. Hardly a recipe for a stable polity.

So, what exactly is wrong with our existing Constitution, apart from the fact that it was not grounded in Indian realities? One thing stands out: There is an acute imbalance of power between the various organs of the state, including the executive, the legislature, the judiciary, and the ultimate sovereign — the people. The judiciary has too much power to overturn laws even if they don’t violate any constitutional provision; the executive has too much power over the legislature (thanks to the anti-defection law); the Centre has too much economic power compared to states; and states have too much power vis-à-vis local bodies and municipalities. The bottom of the democratic pyramid is a weakling.

The net result is that every organ of the state can stop another arm from functioning, but none can exercise power legitimately and effectively. The judiciary has the power to appoint judges (a wholly unreasonable power), but it cannot prevent the executive from influencing judicial appointments through the back door. After the Supreme Court overturned the National Judicial Appointments Commission, the executive now has wrested the right to reject some choices by delaying appointments. The judiciary can even make laws under article 142, but it cannot implement them without state backing, which comes with behind-the-scenes quid pro quo understandings. The legislature has power to make laws, but it cannot implement them effectively in the face of social pressure or street mobs. Consider the existence of cow slaughter bans in most parts of India and the huge rackets in cow smuggling and resultant vigilante violence.

Illustration: Binay Sinha
For years now, the top court has been unable to decide any major constitutional case: From the Sabarimala review to article 370 to the Citizenship Amendment Act to settling even a simple inter-state dispute (the Kaveri dispute being a prime example). Constitutional verdicts asking states to stop controlling temples (from Shirur Mutt to Chidambaram Natarajar and Sree Padmanabhaswamy temple) have never been accepted and/or implemented. In 2018, the Supreme Court decided that the SC/ST Act cannot be used arbitrarily to arrest people, but such was the din raised in political circles that the judgment was quickly overturned by Parliament and the court itself upheld these reversals in 2020. Police reforms mandated by the apex court have not been implemented by most states.

Put simply, our Constitution has been used and abused by all arms of the state to make it effectively dysfunctional. All arms have powers to trip the other, none the power to effectively execute and implement any law. Little wonder, then, law-making effectively now rests with street mobs and vested interests who can bring out the crowds to intimidate government and judiciary alike. The farmer protests cowed down even the Supreme Court, which stayed the reform laws without listening to any party, and which ultimately could not get anyone to listen to it.

 
These power imbalances cannot be sorted out by mere tinkering with the law or piecemeal constitutional amendments. They need a holistic look, perhaps by an all-inclusive committee, which can then be adopted by a newly-elected constituent assembly and/or by Parliament itself with a high degree of consensus (over 80 per cent vote ought to be the norm for a new Constitution).

The changes most needed are the following. One, the concurrent list must go, and most powers should be devolved downwards to states and very few upwards to the Centre. There must be a third list — a local bodies list — that is not subservient to state power. Local bodies are the best places to exercise democratic rights, but right now this is the most disempowered part of the governance structure.

The power allocation between the judiciary and state also needs to be rejigged, with the former being barred from making laws. The higher judiciary needs bifurcation between a final court of appeals and a constitutional court. The power to adjudicate on public interest litigation must be exercised only by the constitutional court, and that too sparingly when real questions of law are involved. They cannot be used to impose a tax on SUVs entering the National Capital because of pollution, or to examine the efficacy of the Centre’s vaccination policies. Real power in the three-tier state structure must be maximised at the local body level, so that people have a greater say in the everyday things that matter to them.
/> The writer is editorial director, Swarajya magazine


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