Azadi Ka Amrit Mahotsav means we have in mind a template for India in 2047. The bedrock of all policies is set by the Constitution, which was adopted on November 26, 1949 by the Constituent Assembly and came into force on January 26, 1950. However, no Constitution should be cast in stone. It is meant to be dynamic and is supposed to reflect the will of the people through Parliament, a point which was repeatedly made during the Constituent Assembly debates. India’s Constitution today isn’t what we inherited in 1950 and rightly so. There have been more than 100 amendments since then. Some are more important than others.
Naturally, there is a subjectivity in deciding what was a major amendment. With reference to that, my list includes 1st, 4th, 7th, 17th, 24th, 25th, 42nd, 73rd, 74th, 86th, 91st, 99th and 101st. In my view, all these amendments involved a change in the basic structure of the Constitution. For amendments, there is now a cut-off set by Kesavananda Bharati judgment of 1973. This landmark verdict declared that the basic structure can’t be changed. Most people know of this decision, set by a 13-member bench of the Supreme Court. The apex court decided 7/6. Note two obvious points here. (1) Prior to 1973, there was no such doctrine, even if there were changes to the basic structure, despite the judgment in the Golaknath case. (2) Supreme Court judges didn’t decide unanimously. Had one judge given a different ruling, the outcome would have been different. Because of what one judge decided in 1973, an avowedly dynamic Constitution is now cast in stone.
Every decision is subject to a historical context. The context for the 1973 judgment was the mid-1970s, an era leading up to the emergency. As a counterfactual, had the historical context been different, would we have had the Kesavananda Bharati judgment? That’s a counterfactual. For practical purposes, the Constitution is kept frozen. But, who will decide whether an amendment leads to a change in the basic structure?
After Raj Narain and Minerva Mills cases, the Supreme Court will decide. Can there ever be sufficient objectivity in determining when there is a change in the basic structure? Witness court reactions to awarding of death penalty in rarest of rare cases. If there is no objectivity there, one suspects there will be subjectivity in assessing changes to the basic structure. Some 20 years ago, there was a National Commission to Review Working of the Constitution. Eventually, the 2002 report tinkered at the edges and didn’t suggest anything substantial. If one thinks in terms of a 2047 template, there ought to be substantial changes. Here is my subjective list.
First, the Seventh Schedule, which is about an optimal level of governance for providing public goods. This isn’t only about Union and state governments, there are local governments too and we can’t have a Seventh Schedule effectively inherited from the Government of India Act of 1935. What do we do with Article 243? Second, if reforms are about markets, how can we have a situation where Right to Property is no longer a fundamental right? What about fundamental rights in general?
Third, what does socialism mean? This isn’t only about the Preamble. Representation of the People Act has been amended too. Every political party in India must be socialist, whatever that expression means.
Fourth, do we want the present definition of the state under Article 12? Under Article 39(C), do we want the state to ensure there is no increase in concentration of wealth and means of production? What is the role of Directive Principles of State Policy and what are our views on affirmative action? Do cottage industries, workers’ participation in management and prohibition have the same resonance now?
Fifth, what is Rajya Sabha? Now that the domicile requirement has gone, do we need a second chamber? If we logically need a second chamber, why do some states function without legislative councils?
Sixth, what views do we have on the productivity of legislatures, criminalisation of politics, or simultaneous elections? Surely, sections on elections (Art. 324–329) need a relook, as do emergency provisions (Art. 352–360)?
Seventh, if governance is about delivering public goods optimally, how can one state have a population of 200 million and another of 6,00,000? How can one have a geographical area of 3,700 sq km and another of 3,42,000 sq km? In other words, shouldn’t we have in mind a Second State Reorganisation Commission and consider distribution of legislative powers (Art 245–255) afresh, not to speak of what should be done to special areas under Art 244 and disputes and co-ordination between states (Articles 256, 262–63)?
Eighth, don’t we need a fresh definition of citizenship? Ninth, what about the process for amending the Constitution (Article 368)? This sounds like a laundry list for another Commission to review the Constitution, one with a report that is more than cosmetic and tinkering at the edges. Many people have written about the strength of the Indian Constitution and rightly so. But it is also more than seven decades old, although it is not yet 75. The vintage and age show. There are Articles in the Constitution which are out of sync with the 2047 template and working through Parliament. Citizens have a right to wish for a dynamic Constitution, reflecting the altered realities we live in now and altered aspirations for an India in the future of 2047. Sure, review of the Constitution has its work cut out. However, when it comes to implementing the recommendations, which will be substantial, will we face the Gordian knot of basic structure?
Chairman, Economic Advisory Council to the PM