Punjab Chief Minister Mr. Prakash Singh Badal responding to the Governor’s Address in the assembly said that India needed to establish a Constituent Assembly in order to frame a new Constitution along genuinely federal lines. Mr. Badal made a common error that has ruined India’s political system from the day that this Constitution came into force. He has confused the political system with the Constitution. Mr. Badal is absolutely right in demanding that the system needs to be changed. He is absolutely right in demanding that genuine federalism needs to be introduced in the political system. He is wrong in assuming that this can be done only by creating a new Constitution. To introduce genuine federalism and much needed reform in our political system the Constitution does not require to be changed. It needs to be observed.
India has the longest written Constitution in the world. It has the largest number of amendments. The wording of the Constitution is explicit. There is need to interpret it only when the wording is ambiguous. There is hardly any such text in the Constitution. The Constitution contains every provision for making the political system genuinely federal. Indeed, the suggestions of the Rajamannar Committee set up by the DMK in 1969 on Centre-State relations, as well as demands in the final version of the Anandpur Sahib Resolution, can all be addressed through amendments and implementation of the present Indian Constitution. There is no need for a new Constitution. To establish a Constituent Assembly to create one would be an invitation to chaos in a polity that is already tottering. The Inter-State Council in Article 63 of the Constitution was envisaged to create a permanent mechanism to deal with all contentious issues between the Centre and States or between different States themselves. After six decades that Article remains a dead letter in India’s political system. Why?
Today many chief ministers are demanding federalism. They cite the plight of their respective states. But genuine federalism is not confined to giving more self rule to the States alone. The rational division of responsibility and power must go right down the line to give adequate self-rule to even local bodies. Is that being done? Article 40 of the Directive Principles of State Policy in our Constitution states: “The State shall take steps to organize village panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self governance.” With his vast experience of administration Mr. Badal would know that unless there is also a new primary level of police created to cater only to petty law and order issues under the executive authority of the panchayat, self governance becomes farcical. The powers of the traditional Chowkidar need to be enhanced and legitimized. Similar autonomy is required for raising and spending strictly local taxes. Mr. Badal may not recall his conversation with this writer decades ago in the Delhi residence of the late Shaminder Singh, who was an MP. To my suggestion for genuine panchayati raj Mr. Badal cautioned me by saying: “This could create local village mafias.” I pointed out that higher legal authority could always curb such mafias and asked if there were not in existence mafias operating at the state level too? He did not rebut me.
That raises the question of the highest authority needed to ensure that laws are implemented. By our Constitution that authority rests with the President of India. But from day one the President has been reduced to a meaningless ceremonial office. This has been done against the explicit provisions of the Constitution. The Constitution gives a major executive role to the President. In that sense it may even be described as giving India a Presidential system. It approximates more to the French Presidential system than to the American model. The subversion of the Constitution began with Pandit Nehru, India’s first Prime Minister. Nehru was an Anglophile. He was mesmerized by the British Westminster system. He was instrumental in making our political system akin to the British system which is based upon an unwritten constitution and upon conventions. India’s first President Dr. Rajendra Prasad contested Nehru’s view. There was an exchange between the two. Noted jurists like MC Setelvad at first supported Prasad’s legally correct view. But when Nehru opposed Rajendra Prasad, they somersaulted to support Nehru.
Article 53 of the Constitution vested executive powers of the Union in the President who could exercise them directly or through officers subordinate to him. Because this Article was in such glaring variance from actual practice as it evolved, Indira Gandhi during the Emergency introduced the 42nd Amendment by which the President was enjoined explicitly to act by the advice of the Council of Ministers. However, even after the 42nd Amendment the President can exercise his powers. Article 53 states that the President may exercise his powers 'directly'. In a lengthy note dated 21 March 1950 President Rajendra Prasad asked: “Does the Constitution contemplate any situation in which the President has to act independently of the advice of Ministers?” The query was most relevant. Articles 75, 78, 86 among other provisions of the Constitution give the President the powers to direct the cabinet to take up any issue, to retain ministers at his pleasure, to intervene in or initiate any issue through the right to address one or both Houses of Parliament whenever required. Indeed the President has the veto power on the entire personnel policy of the central government. All appointments, transfers, promotions and dismissals of officials are made in the name of the President. According to the oath of office the President alone is entrusted with the responsibility to “preserve and protect the Constitution and Law”. The rest, including the Prime Minister are only sworn to “abide” with the Constitution. Can any President fulfill the oath of office by allowing personnel changes in the President’s name that are against law or procedure? The Governor as the President’s agent oversees observance of law and Constitution at the State level. The Supreme Court correctly ruled that the Governor is not subservient to the Union Cabinet. But the Court failed to clarify that the Governor is accountable to the President personally. Significantly, during a debate on Centre-State relations in the Rajya Sabha on September 2, 1953 Baba Sahib Ambedkar deplored that any scoundrel who was Chief Minister could override the Governor. He said that as far as he was concerned the Constitution could be burnt!
In a speech delivered at the Indian Law Institute on 28 November 1960, President Rajendra Prasad said: “It is generally believed (that) like the Sovereign of Great Britain, the President of India is also a constitutional head . . . . The executive power of the Union is vested in the President... the Supreme Command of the Defence Forces is also vested in him . . . . I should like, to be studied and investigated, the extent to which the powers and functions of the President differ from those of the Sovereign of Great Britain...there is no provision in the Constitution which lays down that the President shall be bound to act in accordance with the advice of the Council of Ministers . . . a wider question of much importance is how far we are entitled to invoke and incorporate into our written Constitution by interpretation the conventions of the British Constitution which is an unwritten constitution.” This was spoken at the end of Dr Prasad's second term. What he said was right. History has falsified the interpretation of our Constitution. Dr Prasad’s was a losing battle. Should not Mr. Badal take steps and mobilize opinion to vindicate Dr. Prasad and reclaim the true spirit of our Constitution? Unless that is done our system will continue to fail and Indian governance will continue to sink.