Nani Palkhivala and the Indian Constitution Review


May 10, 2024

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In 1998 Rediff spoke to Nani Palkhiwala, India’s greatest constitutional expert and one of the great legal minds in history. 27 years later as India is in the midst of yet another general elections, let’s look back at what this legal giant had to say all those years ago.


The Rediff Special/ Nani Palkhivala

Does the 48-year-old Constitution require modification? Should India abandon the Westminster model and opt for a Presidential system?

Rediff On The NeT continues the debate on whether the Constitution needs change and if the Indian people are ready for it by speaking to Nani Palkhivala, India’s leading Constitutional expert. Interview conducted by Archana Masih.

‘We are third rate, unfit to be a democracy’

If you publish this as it is it would be a great service to India. But how many Indians will read this? What’s the point if people in America are reading it, it is Indians who need to read it more,” Nani Palkhivala asked in despair. India’s best known constitutional lawyer — a frail figure sitting across the table — is a man completely disillusioned by an Indian system that has failed — and leaders who have not delivered.

On the review of the Constitution — a topic that has emerged and subsided, depending on the fancies of the government in power — Palkhivala has written extensively. The typed sheets of paper on his desk carried the gist of his thoughts. Yet, the 78-year-old jurist somehow knows his suggestions don’t stand a chance with the government. “I have suggested the type of things that I would like but they are not the changes they would like to make.”

Palkhivala feels it will take a minimum of three years for the recommendations to come into place. By when, the present government may be out of power. Another quick glance at the papers in front of him, and his thoughts give way to more frustration. “These are third rate men. They are not people with vision. The members of the Constituent Assembly were first class men. People like Ambedkar framed the Constitution. Compared to the people in power today, I don’t I think I am in the same country.”

After having lived in pre- and post Independent India; authored several books; and served as Indian ambassador to the United States, Palkhivala has a deep insight into India and its polity. The understanding of which is the cause of greater pain — of a democracy that failed to improve the lot of its people. “We are not made for democracy. We are made to be ruled by a strong man. Like Kemal Ataturk. I have said repeatedly that India needs a strong man, not adult franchise. I haven’t seen anyone yet. I hope it does happen in my lifetime.”

Palkhivala reiterates that an India that votes on the basis of caste and community was not the India the framers of the Constitution envisioned. An India where more than half of the populace is uneducated does not deserve adult franchise. “I am totally disillusioned. I don’t believe in adult franchise at all. We have no reverance for our Constitution. We have no distinction between ordinary and Constitutional law. We are third rate, unfit to be a democracy. People blame the Constitution today to shift the blame from their shoulders. Because the people who framed the Constitution are dead and gone. You think this is a country to live in?”

At this point, he marvels that the young people of today are brave enough to start a career in India. He flips through those papers again, pauses and answers a query on Article 370. “You cannot remove 370, because that was a condition Kashmir became a part of India. If Article 370 is removed, I don’t see why Kashmir should continue to be a part of India.”

“This is a gist of what I have been saying for years and years…”

We have no reverence for our Constitution. Our Constitution has been amended no less than 78 times in 50 years, unlike the United States constitution which is regarded by the Americans with such reverence that it has been amended only 27 times in 209 years. It is my firm conviction that it is not the Constitution which has failed the people but it is our chosen representatives who have failed the Constitution. Dr Ambedkar poignantly remarked in the Constituent Assembly that if the Constitution given by the people unto themselves in November 1949 did not work satisfactorily at any future time, we would have to say that it was not the Constitution which had failed, but that man was vile.

Every right minded person would agree that the integrity and unity of the country, and the secular character of our country, which have been our greatest accomplishments since 1947, should never be disturbed.

There is a cavernous gap between India’s tremendous potential and the depressing reality. Our economic accomplishments have been woefully inadequate to eradicate poverty and enable the underprivileged of this country to rise above their ageless squalor.

However, it is time that, having regard to the lack of character and calibre in the overwhelming majority of our politicians, we should think of making some changes in our constitutional law.

The expression ‘constitutional law’ comprises not only the Constitution, but also other parliamentary laws which supplement the Constitution and are concerned with subjects that are constitutional in nature.

There are three ways of amending the constitutional law.

The first is to change those parliamentary laws which qualify to be treated as constitutional law –without amending the Constitution itself.

The second is to amend the Constitution, without altering its basic structure, in accordance with Article 368 of the Constitution.

The third way is to amend the Constitution so drastically that its basic structure is altered; and this can be done, having regard to the Supreme Court’s judgment in Kesavananda Bharati’s case (AIR 1973 SC 1461), only by setting up a new Constituent Assembly or by a referendum.

The third way of amending the Constitution may be ruled out as being clearly inadvisable at the present juncture. When the dangerous divisive forces are so pronounced, this is hardly a time to call a Constituent Assembly or to call for a referendum for changing the basic structure of the Constitution. Convening a Constituent Assembly would be a step fraught with the greatest danger to the unity and integrity of India. Even a small country like Belgium took twelve years (1967 to 1978) to revise the fundamental laws of that state. Our problems are far more complex and more numerous than those of Belgium. We are, therefore, left with the first two alternatives.

There are four desirable changes in our fundamental laws which can be implemented without amending the Constitution.

First, no political party should be recognised by the Election Commissioner or by any other authority unless the party maintains audited accounts of all its receipts and expenditure. I have been writing and speaking publicly on this particular change over the years. Such a law is in force today, but the law on this point remains only on paper like several other Indian laws.

Secondly, it seems essential to introduce partial proportional representation in the Lok Sabha. Half of the Lok Sabha candidates should be elected on the basis of proportional representation, which is the system in force in several countries including Germany. In order to prevent the mushrooming of political parties and splinter groups, it should be provided that the benefit of proportional representation would be available only to those political parties which secure a certain percentage, say, 5 per cent of the votes cast in a region. The advantage of proportional representation is that it would enable the voice of minorities, regional parties, and order significant segments of the public, to be heard in Parliament, and thus allay the feelings of frustration and discontent among them.

Proportional representation in the Lok Sabha is permissible under Article 81 of the Constitution which only requires “direct election.” Therefore, the desired change can be accomplished by amending the Representation of the People Act.

Thirdly, some minimum qualifications should be prescribed for those who seek election to Parliament. This, again, can be done without amending the Constitution. Article 84 already provides that the qualifications for a person who seeks to stand for election to the Lok Sabha are — he must be a citizen of India; he must be 25 years old; and he must possess such qualification as Parliament may, by law, prescribe. The first qualification is usually an accident of birth; and the second is inevitably the result of the inexorable passage of time. Up to now Parliament has prescribed only disqualifications. I would advocate some positive qualification for aspirants to a parliamentary career.

Fourthly, a salutary change can be made in our constitutional law, without amending the Constitution itself, to reduce to a minimum the detestable exhibitions of the toppling game which has been a craze among our frolicsome politicians over the years. Legislative rules or other laws can be so amended as to provide that a vote of no-confidence against the government would be inoperative unless the legislature passing the vote of no-confidence chooses at the same time the leader who is to take the place of the prime minister or the chief minister. Such a system prevails in Germany where a vote of no confidence in the chancellor has to take the form of a resolution choosing another person as the chancellor.

‘It is not the Constitution which has failed the people, but our chosen representatives who have failed the Constitution’

Let us now deal with those changes which would require an amendment of the Constitution, but would not affect its basic structure.

First, Article 75 requires that a minister at the Centre should be, or become within six months, a member of Parliament. An amendment should provide that while the existing provision would apply to the majority of ministers, a minority of ministers may be selected by the prime minister from outside Parliament at any time. Even the ministers who are not members of Parliament would have the right to address, and would be responsible to Parliament. Thus the principle of collective responsibility of the Cabinet to the legislature would not be impaired.

In Japan, for example, which has a democratic constitution on the Westminster model as we have, the majority of the ministers are selected from the Diet, but it is open to the prime minister to select a minority of the ministers from outside. The advantage of such a system is that it enables the prime minister to have in his Cabinet some of the best talent available in the country.

There is a second reform which can be adopted in the alternative, or in addition, to the one referred to above. When an MP is nominated to the Cabinet, he should be required to resign his seat in Parliament. There are several advantages in having such a law. The minister would then be able to concentrate on the task of governing the country, and his energies would not be dissipated in politicking and in discharging his time-consuming duties as an MP.

In France a person has to resign from the legislature upon his appointment to the cabinet, and this system has worked extremely well in that country. It is true that in France the presidential system prevails. But this particular feature is equally compatible with the Westminster model, because it does not derogate from the principle of the responsibility of the Council of Ministers to Parliament.

The third suggestion would be to alter Article 75 to provide that every one of the 26 states of India should be entitled to send two representatives to the Lok Sabha who would not be elected on the basis of adult franchise, but would be elected by universities and professional bodies. A similar provision should be made to have one representative so elected from each major Union Territory. This way we would have about 52 MPs who would represent the professions and the faculties and would be able to improve the tone and standard of debate in Parliament. Conceivably, they may hold the balance of power among the warring political parties which are chronically engaged in contending for the plums of office.

There are four advantages in having the presidential system patterned on the liberal, democratic model:

First, it enables the President to have a cabinet of outstanding competence and integrity, since the choice is not restricted to Parliament. A wise President can substitute excellence for the deadwood which passes for government today.

Secondly, since Cabinet ministers are not elected, they are not motivated to adopt cheap populist measures which are so costly to the country in the long run. For instance, they would not resort to nationalisation which is the last refuge of inefficient administrators.

Thirdly, the presidential system permits Cabinet ministers to be absorbed in the job of governing the country, instead of wasting their time and potential in endless politicking.

Fourthly, it would stop defections and desertions on the part of legislators, which are in most cases motivated purely by thirst of power and hunger for office. In France, prior to 1959, and in Italy in recent years, governments lasted on an average less than a year, while in Belgium there were three governments in 1980. Such is the instability to which the Westminster model of parliamentary democracy lends itself.

If the people of India were ever to decide to have a presidential system, they will have to consider the various forms of the system which are in force in other free democracies. Having regard to the experience of those countries and our own peculiar needs, we will have to evolve a presidential model of government specially tailored to suit our own requirements. The crucial point is that any presidential system which we choose must be one which is in total conformity with the philosophy of freedom and liberalism underlying our Constitution: it must be one which will preserve and promote all the fundamental rights. In sum, it must be the very antithesis of an authoritarian state.

It is difficult to say, without a study in depth and without a full and detailed examination of the arguments put forward by the proponents and the opponents of the presidential system, whether India would be well advised to scrap the present Westminster model and switch be well advised to scrap the present Westminster model and switch over to the presidential system. No final and conclusive view can be expressed either way, without an exhaustive and dispassionate examination.

The country is facing political, economic and social problems of an unparalleled magnitude, which can never be resolved merely by substituting a presidential system for the Westminster model. Any number of examples can be cited of countries where the presidential system prevails but which still continue to have poverty and the type of problems which plague India today.

The presidential system is no substitute for national character. It does not afford any alternative to vision, knowledge and moral standards in political life. Besides, the whole nation is today in such turmoil that an intelligent and dispassionate discussion without rancour is impossible either within or outside Parliament. When your house is on fire, you do not pause to consider whether the living-room should be converted into a bedroom.

There are a number of changes in our constitutional law which need to be effected to root out corruption and to prevent further degradation of our political life. These are changes on which it would be far easier to get a national consensus than on the question of switching over to the presidential system and which deserve far greater priority than the question of the presidential system. A sense of priorities would dictate that consideration of the benefits of the presidential system can wait till the more urgently required reforms in our constitutional law are first carried out.

To my mind, the greatest danger facing India is that of disintegration. Unfortunately, there are strong tendencies among the states to go their own way and any tinkering with the Constitution would only bring about a disintegration of the country.

As regards a Uniform Civil Code, it is the ideal which India should enact. There can be equally no doubt that in trying to reach the ideal at this stage, the country runs a greater risk of being disintegrated.

First, the minorities like the Muslims would think that it is an attempt to make them subject to the rules and regulations which apply to Hindus.

Secondly, even among Hindus the same jurisprudence does not apply to the entire community because there are some who are governed by the Mitakshara school, and others who are governed by the Dayabhaga school. Clear proof of usage will outweigh the written text of the law.

Thirdly, even in one community you will not be able to have a Uniform Civil Code. How can you have such a Code for all the communities at one stroke?

It was impossible to have one or two states enact a Uniform Civil Code as was envisaged, some time earlier, to be done in Gujarat and Maharashtra. It would be very difficult to do so for the whole country.