May 23, 2001


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The Rediff Interview/Justice M N Venkatachaliah

'We can never push the agenda of any political party'

When former Supreme Court chief justice M N Venkatachaliah was appointed head of the Constitution Review Committee, Opposition parties led by the Congress screamed blue murder. They cried that the commission had been constituted to push 'the BJP's hidden agenda', including the party's alleged moves to debar Congress president Sonia Gandhi from contesting for prime minister by altering the basic structure of the Constitution.

In an exclusive interview with Tara Shankar Sahay, chairman of the commission, spoke about its work and clarified some popular perceptions. Excerpts:

How does the commission answer the Opposition charge that it has been set up to push the BJP's hidden agenda?

The commission does not propose to answer this charge at all. Initially, a point was made that Parliament alone should have constituted such a commission. There is perhaps something to it; but then Parliament did not do it. The excellent need not be the enemy of the good. By reason alone that it is not a parliamentary commission, does not follow that it sells someone else's wares.

Nobel Laureate Gabriel Garcia Marquez said somewhere, 'Give me a prejudice, I will move the world with it.' The commission, given its composition, can never push the agenda of any political party. One can understand some initial apprehensions of rival political parties and can even pardon the lack of restraint in the language of the criticism. But any persistence in such obsessive postures may not be fair.

Why this sudden need to review the Constitution when it has served India's democracy so eminently for the last 53 years?

The question itself proceeds on an assumption, which is not correct. The commission has not been asked to review the Constitution; it is only to review the working of the Constitution. As to how the constitutional phrase for an egalitarian, social and economic order has been transformed into reality.

'The commission has not been asked to review the Constitution; only to review the working of the Constitution'
Indeed, referring to the Constitution, one of the consultation papers of the commission itself says, 'An occasion to review the working of the Constitution serves as one for the nation to call with deep gratitude the services and sacrifices of all those who fought for Independence and of those great persons who framed a noble Constitution for India with lofty ideals. In that sense it is an occasion to celebrate the Constitution.'

A review of the working [of the Constitution] is an occasion for introspection for the nation as to how the country, its people and governments have honoured and upheld the lofty ideals of their founding faith.

Is the commission contemplating measures to make India a welfare state where the human rights of the individual will be respected?

The consultation papers issued by the commission till now indicate the impressive achievements as well as significant failures in the standards of human development.

The consultation papers have argued that human development is the key for socio-economic change and that assurance of freedoms and rights are not the rewards of development but in itself critical to the process of development.

The consultation papers, as emphasized by the World Development Report 2000, says the lessons to be learnt from past experience are:

"First, macro-economic stability is an essential pre-requisite for achieving the growth needed for development. Second, growth does not trickle down; development must address human needs directly. Third, no one policy will trigger development, a comprehensive approach is needed. Fourth, institutions matter; sustained development should be rooted in processes that are socially inclusive and responsive to changing circumstances."

How does the commission propose to tackle the professed policy of the BJP-led government to debar persons of foreign origin from holding key constitutional posts like that of president, vice-president and prime minister? In this context, what is it doing to the memorandum given by Purno A Sangma when he himself is its member?

The commission does not propose to tackle any professed policy of the BJP-led or any other government. Whenever it takes up an issue, it will bring to bear upon it its own independent mind. The issue you refer to has not yet been taken up by the commission. This is the position as of today.

What is the commission's approach to the Uniform Civil Code, which was sought to be politically exploited by the BJP-led government?

'The issue of debarring persons of foreign origin from holding key constitutional positions has not yet been taken up yet'
The commission does not propose to address itself to the issue of the Uniform Civil Code. It is of the view that in the present context, it is not of particular urgency or of immediate intrinsic importance. Large areas of the legal system are common to all citizens. It is only in certain specific areas of personal laws that there are differences between the personal law systems of the Hindus and Muslims; such as marriage, inheritance, succession.

Indeed, even in the personal laws of the Hindus there have been different schools like the Mithila school, Benaras school, Ratnagiri school, Madras school, etc. In the commission's view, time is not ripe for taking up emotive issues.

It is for the consideration of the minorities themselves whether they should first seek and have a codification of their own personal laws, which may, in turn, produce a body of judicial decisions and jurisprudence in their working over a period of time, which might help promote further thinking on the larger issues.

What is the answer to the proposed federal police to tackle the menace of terrorist activity all over the country since law and order is a state subject?

This issue is not before the commission for consideration.

However, from time to time there have been debates for greater powers to the police to meet situations arising out of the ever-increasing sophisticated and internationally networked terrorist and narcotics outfit. It is true such serious situations need to be met firmly and effectively.

Those opposed to the grant of wider powers would argue that even with the existing powers there has been enormous misuse -- such as of the powers of arrest -- and that, therefore, conferment of greater powers would only aggravate the situation to the detriment of the public.

In other words, the argument seems to be that even if law enforcement agencies need higher powers in the context of the threat posed to the security and integrity of the nation by high-profile terrorist groups, they have not been able to show by their track record that they could be trusted with such wide powers.

In short, it is said that even if they need higher powers, they do not deserve them. However, it is agreed on all sides that if there are greater powers to be vested with the police and security forces, there ought to be correspondingly appropriate higher safeguards for the citizenry against their misuse.

While human rights have to be respected, what is the answer to certain human right groups which present a blatantly distorted picture of India?

'The commission does not propose to address the issue of the Uniform Civil Code. It is not of particular urgency'
The human rights record of our country is a mixed one. There is, however, greater awareness today of the need to respect human rights and fundamental freedoms of the people. Respect for the human rights of the citizenry and providing them the assurance that they live under the protection of an adequate legal system is the key to progress. Investment on people's education, health, well-being and security is the key to development. The international human rights regime provides the standards against which the adequacy of national practices is tested.

But the problem is that the tone and tenor of the international discourse on human rights, particularly between the north and south, rich and poor, West and the rest is becoming increasingly shriller. The debate is tending to be more contentious, censorial and adversarial while it ought to be constructive, cooperative and consensual. There is an increasing tendency of the human rights groups in the West tending to a situation where the champions of human rights are becoming more important than human rights themselves.

There has to be a broader understanding of the problems of the developing countries by Western groups; but that is not to deny that the situation of human rights, respect for human dignity and the tone of observance of international covenants in developing countries such as India need vast improvement. If the political rights and economic rights, as avowed, are indivisible, the West must make it really possible. As of today, indivisibility is more of invisibility.

Was Tamil Nadu Governor Fathima Beevi justified in swearing in Jayalalitha as chief minister?

I decline to be drawn into this debate.

What do you think of the criticism that the governor is basically an agent of the Centre?

The general issue arising from the appointment and role of governors has been dealt with in a consultation paper issued by the commission on 'Institution of Governor under the Constitution.' It has identified the specific areas and suggested specific solutions.

What are your views on Article 370 of the Constitution?

None [for this interview].

Do you have any comments on judicial activism, or, as politicians say, is the judiciary over-reaching itself?

Judicial activism, judicial law-making, public interest actions, etc have all come to stay. Constitutional adjudications inevitably have a legislative element. Judicial law-making either in the common-law tradition or in constitutional adjudications is inevitable. Judges do make laws, though not directly as the legislature does, but interstitially as part of and as inherent in the adjudicative process.

But whatever be the ambit of judicial review, it cannot be an 'amorphous general supervision of the government'. The executive has its own areas of function. Courts do not exercise appellate powers over executive decisions. They only test the legality of the decisions; not their wisdom.

But in the area of fundamental rights, courts have a specific higher constitutional responsibility as the watchdog of the rights of the citizenry. In cases that do not have judicially manageable standards, judicial restraint is the wiser course. As long as a written Constitution is being worked out, these issues are inevitable. The answer lies in judicial statesmanship and the wisdom of judicial restraint.

Design: Dominic Xavier

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