Thoughts on a new constitution for India

 

Tear up the Indian Constitution

Posted on 1-February-2009

     In December 1992, a Hindu mob assaulted and reduced to rubble the 16th century mosque built during the reign of the first Moghul ruler of India  in the Indian town of Ayodhya, which is where according to Hindu legend the Hindu king Ramachandra, an incarnation of the Hindu God Vishnu was born. At that time the government in the Indian state of Uttar Pradesh, where Ayodhya is situated, was headed by a certain Mr Kalyan Singh of the Hindu nationalist party, the Bharatiya Janata Party(BJP). Three years earlier, the head of the BJP, Mr Lal Krishna Advani, had mobilised the supporters of his party for building a temple to Ramachandra at the precise location of the mosque. Mr Advani was stopped on his procession to Ayodhya through the country by the police in the neighbouring state of Bihar. The government in Uttar Pradesh headed at that time by Mr Mulayam Singh Yadav of the 'socialist' Samajvadi Party, cracked down on BJP workers moving towards Ayodhya, earning him the sobriquet of 'mulla'--that is, a Muslim priest--given to him by BJP workers. In the early days of this year came the news that Messrs Kalyan Singh and Mulayam Singh had joined hands together with an eye on elections to the Indian parliament in a few months from now and that Mr Mulayam Singh had promised to put up Mr Kalyan Singh's son as a candidate of his party for election to the parliament. Such shifting and essentially unpredictable alliances among supposed ideological opponents have in recent years become increasingly frequent.

     Barely six months ago, the federal government in Delhi came close to collapse because its leftist allies decided to withdraw their support for it in parliament. It survived by winning over groups the Indian National Congress, the dominant member of the ruling coalition in power in Delhi, had till then considered untouchable, bringing out of jail members of parliament doing time after conviction for murder and using other expedients of bad odour. He would be a brave man who would predict that the new combination of political parties supporting the government would be any more stable than the one it replaced except that elections will come before its collapse. While the political establishment in Delhi was busy last July with the arithmetic of numbers in parliament, government was in paralysis for a few weeks. The previous government, dependent like the present one on the support of a number of disparate political parties in parliament, was also open to attacks of paralysis from time to time if not also apt to be bent under the pressure of some groups intent on pursuing their parochial interests often in opposition to broader public interest. At least the last government completed its constitutionally defined term and the present one is at the point of doing so. There have been a number of short lived governments too since 1979: one lasted a little over two years, another eleven months, two around one year each, one five months during which parliament was in a state of dissolution, another seven months most which without parliament and yet another thirteen days. In each case of these short-lived governments collapse came because of the failure to manage a majority in parliament.

     The fact is that with the possible exception of the two communist parties, no political parties in India have grown up as institutions. The Indian National Congress claiming to be the party that gained India's independence dominated the political scene till 1967. It was the party of government at the federal level and in nearly all the states during most of the first twenty years after 1947. In opposition to it were small inconsequential political groups. While the dominance of the Congress, and with it stability of government, lasted everyone thought the Indian lawyers had devised an ideal, exhaustive constitution for the new republic. The elections of 1967 produced non-Congress majorities in a number of states and a very thin majority for the Congress in the federal parliament. Non-Congress majorities in the states produced unstable governments and members of state legislatures with notoriously fickle loyalties, ready to change sides whenever inducements were available. And at the federal level the Indian National Congress has been in secular decline since 1967--in spite of the periodical spurt in its fortunes--so that it now looks unlikely that the Indian National Congress will have a majority on its own in the Indian parliament for a very long time to come. During this long term decline of the Congress no single political party has grown up to fill the space vacated by it. On the other hand, not only the former Socialist Party has splintered but also the BJP believed till 1996 to be a well-knit organisation has known at least one division since losing power in the federal government in 2004 and has shown evident signs of disunity, unable to find a new leadership or to develop a programme for renewing its appeal. India, as the present cliché beloved of political punditry goes, has entered an era of coalition politics. With elections to the federal parliament a few months away, scribes of different hues have started talking about the different ways in which the new parliament will divide and recombine to form the next government. Some even laud the kaleidoscopic quality of India's polity.

     Unfortunately, amidst all the writing in the ensuing months about the outcome of the next election two basic questions will be lost sight of, as they have been in the past: do governments based on the support of unstable coalitions of numerous political parties, rendered more unstable by the fickleness of political loyalties have the time and energy to take care of the interests of the people of India? and given the current fragmentation of India's polity, is the present constitution right for the country? As for the first of these questions, it should be self-evident that in order to be able to deal with its numerous socio-economic and political problems, the country needs stable governments which the kind of coalitions that have been in evidence cannot give. The only real way to deal with the country's problems is to make sustained long-term efforts, a kind of effort that even in the best of circumstances does not come easily to governments subjected to five-year electoral cycles. If in addition such governments also have to think all the time of appeasing the diverse members of the coalitions on whose support they depend for survival, they can have very little time for anything other than the short term.

     India's constitution, promulgated on 26th January 1950, has been amended one hundred times. Yet there is very little discussion about making a root and branch change in the document. The present government's predecessor appointed a constitutional review committee. Not much notice was taken of the report of that committee when it came out. Not many people remember it now. Many individuals think and ask such questions but theirs remain voices in the wilderness. I said once in 1991 to a senior Indian personality, one of the last of the Indian Civil Service, with, even then, access to high places, that I thought India should switch over to a constitutional arrangement in which the president would be the head of the executive whose continuation in office would not be dependent on the support of the majority in parliament. He nearly jumped out of his seat saying he thought so too. He then said that in the late 1960's he had submitted a paper to the government of the time listing 12 articles in the existing constitution that would need to be amended for a switch to an executive presidency. A present day Indian columnist suggests that with even fewer changes in the existing constitution, most notably by providing for the election of the president by popular vote, would give the president effective executive power. But India's intelligentsia remains largely though strangely wedded to what it likes calling our "Westminster type" of constitution. Three or four years ago in a gathering where the fragmentation of India's polity and its negative consequences was being discussed, I asked the question whether we should not dump our "Westminster type" constitution and replace it with a copy of the American constitution. The speaker, a senior Indian journalist, closed the discussion saying : "Imagine what would happen if we were saddled with X as president for four years". Others point at the dangers of authoritarianism if we adopted a constitution like that of the USA.

     The real reason why many people in India's elites do not ask questions about root and branch changes in the constitution is, I suspect, a reluctance to think of radical changes. But a radical change is what is needed in India. It will be useful at this stage to recall the Fourth Republic in France which had a president as a ceremonial head of state and a prime minister and a council of ministers vested with executive authority and dependent on the support of the majority in parliament--a "Westminster type" of government. Governments came and went, many of them lasting less than one year. When, at a moment of national crisis in 1958, General Charles de Gaulle was recalled to take over power, he replaced the constitution of the Fourth Republic with that of the Fifth in which ultimate political authority lies in the hands of the president. With only two important changes, one allowing for the election of the president by popular vote and another curtailing the term of the president from seven to five years, the Fifth Republic has lasted longer than any other French regime but one since the French Revolution. De Gaulle perhaps thought that the temperament and traditions of the French people required firm government. He succeeded in establishing a stable regime even though at that time Francois Mitterrand, a practitioner of politics in the Fourth Republic, denounced de Gaulle's constitution as a permanent coup d'état.

     Opponents of ideas about a "presidential type" of constitution for India point, something in the same vein as Mitterrand's--that he became the until-now-the longest serving President of France in the Fifth Republic is another matter--denunciation of the Fifth Republic, at the dangers of authoritarianism inherent in a "presidential" system. This fear is without basis for many reasons. India's "Westminster" constitution did not prevent Indira Gandhi and her son Sanjay from running a dictatorship for nineteen months. Earlier, the "Westminster type" of constitution of the Weimar Republic had failed to prevent the rise of Hitler. And very recently the current economic crisis provided an interesting comparison between the powers of the British Prime Minister and the American President. Last autumn the British and the US governments drew up rescue packages for their financial institutions almost simultaneously. The British government was able to adopt the measures in its package almost overnight. It took the US administration almost two weeks and a supplication on bent knees by the US Treasury Secretary before the Speaker of the House of Representatives to get its package adopted.

     Indian admirers of the British system of government need to be reminded of two important facts. Institutional arrangements apart, what keeps the British system running are the cohesiveness of the three main British political parties and the informal but generally accepted restraints within which the British political class functions--both of which qualities are absent in India. Then the Indian constitution did not grow out of British constitutional traditions but out of the Government of India Act of 1935 with a number of noble concepts thrown in, and a large number of India's politicians who came to power on 15th August 1947 had already been schooled in running the institutions-- as local notables elected in 1937 and 1946 through a system of limited franchise--  established by the 1935 Act. With universal adult suffrage, the notables were bound sooner or later to lose their power. By the end of the decade of the 1960's new people started rising to power and with their rise started the decline of the Indian National Congress. It should be evident that with these developments and the increasing ( and perhaps consequent) fragmentation of the Indian party system, the present Indian constitution is becoming dysfunctional. That is why it needs to be discarded and torn up.

    What India needs to do is to adopt instead the US constitution with a small number of changes such as for example limiting the president to a single six year term with the possibility of re-election for other non-consecutive terms and elections to the house of representatives once every four years instead of two--both changes necessary for sparing the country the trouble of being permanently in election mode and for ensuring stable government at the same time. The American system of separation of powers and checks and balances should be guarantee enough against authoritarianism. The government would still need to negotiate with the congress on budget and legislation but it would be free from the (often selfish and unprincipled) whims and fancies of individual members of the congress or groups of them. But a popularly elected president who knows that he is there for six years can provide purposeful and firm government Purposefulness in its government is what India needs. It also needs firm government. There is some truth in the remark of Wavell, the penultimate British Governor-General of India that India can be ruled firmly or not at all. Let us amend Wavell and say: firmly, but also democratically, fairly and compassionately; this the present Indian constitution is no longer able to ensure.          

    

 Also on this site:               Introduction to The Waste Sad Time             The Waste Sad Time

 Linked articles:

 Democracy and Discipline

 Election Time Laments

 India Agonistes?

 Delhi Law

 It is the People, Stupid

 

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