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ELECTIONS '98
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The Rediff Special/ Nani Palkhivala'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.
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. Photographs: Jewella C Miranda |
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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.