Legal Perspective

Legal Perspective
Krishan Mahajan

A debate without people
The government has structured the national debate on the Constitution and the judiciary in such a manner that it has nothing to do with the people. Its proposal to review the Constitution does not state how successive government have ensured gross national poverty for the many and a rising gross national product for a few. The same pattern has been followed on the national debate launched with the idea of a National Judicial Commission.

Except for harping on delays there is not a word as to how in fifty years there is still no publicly accountable mechanism to ensure sufficient judges, staff and courts with men of merit and integrity. Wholesale reform without people's participation is political mischief. President K. Narayanan has given timely warning against this but stopped short of indicating the specific changes needed in the Constitution for dealing with social injustice.

To ensure that the parliamentary system works for constitutional and not personal ends it isvital to introduce into it the fundamental right to vote and the right of recall. Ever since the West Bengal electoral rolls case judgment by the Supreme Court the right to vote has been relegated to the level of an ordinary legal right which can be tinkered with by the whimsical simple majorities in the legislatures.

Since it is not a fundamental right, ruling politicians, the Election Commission and the law and order machinery as also large owners of bonded labour are not liable to pay compensation to those who were denied this right by force or rigging of electoral rolls and booths. To suggest a presidential system or a fixed five-year term without this amendment for political liberation and empowerment is to suggest a permanent or a semi-permanent governance without the popular will.

The fundamental right to vote must be backed by an amendment to Article 19(1)(a) of the Constitution dealing with the fundamental right of speech and expression. Supreme Court judgments have converted this right into oneof freedom of the media and the right to know. But people's empowerment requires a fundamental right of being informed and not merely the right to information. For fifty years the literacy promise of the Constitution, declared by it as fundamental in the governance of the country, has simply been ignored.

The Supreme Court, after declaring that free primary education is a fundamental right, has refused petitions seeking its enforcement. Information justice is development justice and illiteracy denies it. Hence the fundamental right of being informed is to make at one stroke the entire development funding machinery accountable, responsible and legally liable.

The Constitution declares that all systems must treat the constitution as fundamental in the country's governance, the provision of nutrition, public health, village development, opportunities for child growth, protection of women, and weaker sections and other directive principles which today are not enforceable in a court of law. To this the SupremeCourt has added fundamental rights of clean air, water, soil, sustainable development, shelter and medicare without being able to significantly enforce them.This indicates a minimal constitutional amendment that no law or administrative scheme will be valid unless and until it specifically states its effect on the directive principles along with the Bill or scheme and the President has a right to refuse to sign or approve such a Bill or scheme. This will apply in particular to the economic and social welfare ministries. This alone can stop the current legislative and judicial practice of keeping corporate, commercial, tax and development laws insulated from the directive principles. Politicians and judges have created a market wholly alien to the directive principles.

A constitutional amendment to resolve fifty years of political and judicial contradiction between the market created and the civil society desired cannot work until and unless these fundamental rights are made available against the marketmanagers or those who gain the maximum from the market through corporate or other legal forms of business. At present these rights are enforceable only against the state.

Can the private sector say that it has nothing to do with constitutional governance of the marketplace when it is the beneficiary of the Constitution itself? Simultaneously, the Central power under Article 356 of imposing President's rule needs to be indexed to the failure to create a civil society as mandated by the directive principles. Unfortunately the Supreme Court's interpretation of Article 356 says nothing in this direction. The debate for a review of the Constitution should have a realistic logic.