Contemporary Debates over the Reform of the

Indian Constitution
R. Gopalan

The Indian Constitution, with 395 articles and eight

schedules (as of the original in 1950) is the largest in
the world. In addition, it has some eighty amendments
added to it, three more are pending for adoption and
there is a constant stream of demands from various
quarters that some item or the other be further
amended. The question that begs to be answered is
this what do these things reveal about the Indian
constitution? What is it about the Indian constitution
that needs to be changed, and why? Who is it in India
that is making these demands?

government will introduce various measures to deal

with the malaise of defections, corruption and
criminalis ation of politics, and to prevent electoral
malpractices. This second arena is not strictly one of
constitutional law, but arises because simple law and
the constitutive laws are inter-mixed in the Indian
constitution. Thereby, many simp le electoral matters
end up requiring constitutional amendments.
Electoral Reforms
As of now, the commission to review the constitution,
has yet to be appointed. A number of political parties
in the opposition benches have opposed the
constitutional commission, saying that there is little or
nothing in the constitution that needs changing. One
of the main opposition leaders, Mulayam Singh
Yadav said: "it is the people and their leaders who
may be at fault but not the Constitution."

This paper presents a brief comp ilation of these

demands, taken from press reports and other sources.
These are not yet organised in any systematic manner,
but because the discussion on the topic is beginning, it
is important to be familiar with some of these
arguments from the outset.
All the 80 amendments and three proposed
amendments to the Constitution thus far have come
from within Indias ruling establishment, mostly from
within the Congress Party, which has been in power
for 45 of the last 49 years. Other parties, when in
power, have introduced or tried to introduce
amendments. The most recent demand for
constitutional reform is slightly different from the
others to date in that it calls not just for an
amendment.

A retired judge of the supreme court, Justice Krishna

Iyer remarked recently that reopening the constitution
at this time will only lead to the removal of many
beneficial clauses. Prof. Mohanty of Delhi University
argued the same way with the Soviet block gone
and right wing parties in power, any changes to the
constitution will only lead to the removal of various
social clauses that are positive in the constitution .
Many leftist groups in India, especially those in the
parliamentary left, have given variations of this
argument against a review of the constitution.

The National Agenda for Governance, adopted by the

coalition of the parties that have formed the latest
government led by the BJP puts the matter thus: We
will appoint a Commission to review the Constitution
of India in light of the experience of the past 50 years
and to make suitable recommendations.

On the question of establishing a commission to

examine the working of the constitution and
recommending for changes, the Communist Ghadar
Party of India adopted a resolution in its Congress in
October 1998 saying that the constitution belongs to
the people, and that it cannot be amended by a
commission. They say the Constitution needs to be
written by an elected Constituent Assembly on the
basis of nonpartisan election through universal
suffrage.

Elsewhere, this National Agenda identifies two areas

for reform. The first is centre-state relations.
According to the National Agenda, this relates
primarily to the devolution of more financial and
administrative powers and functions to the States.
There is mention of the fact that some states will get
additional financial incentives in the process, while a
committee will also be set up to examine the
feasibility of treating all 19 languages ... as official
languages. The National Agenda also makes mention
of involving Panchayats and local bodies in their
program of decentralisation.

In terms of government formation the present level of

discussion, particularly from the official side, is
dominated by the concern over how to lend new
legitimacy to the old institutions. In the past two
years, the acute instability that led to the collapse of
the 11th Lok Sabha gave rise to various proposals and
suggestions specifically related to creating stability.
In May 1998, shortly after taking power, the current
Home Minister L.K. Advani proposed a switch over

The second main area mentioned is electoral reforms.

According to the National Agenda, the new
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to an American-style presidential system. It is argued

that the presidential system will be able to overcome
Indias chronic crisis of governance, since it is not
prone to the instability of parliamentary democracy,
under which governments perpetually face the risk of
collapse.

Indias political process. The CPE convenor, Mr.

Prakash Rao, raised the point that the present political
system marginalises the electorate and empowers the
political parties with their wealthy sponsors. He listed
a number of factors that need to come into being, such
as selection of candidates by voters rather than
political parties, revision of the nature and size of
constituencies, enabling mechanisms to recall elected
representatives by the constituents, and the right to
initiate legislation among others.

Former President R.Venkataraman has outlined

detailed plans for a variant of this structure under
which the Prime Minister will no longer be the leader
of the parliamentary party with a majority, but will be
chosen in an election by the members of the Lok
Sabha, as will be all the ministers. Once elected thus,
both the government and the Lok Sabha will have a
fixed and full five-year term and can operate without
fear of being toppled through no-confidence votes.
Similarly, the Lok Sabha cannot be dissolved in the
interim. Pramod Mahajan of the BJP, the minister in
charge of parliamentary affairs recently was quoted in
favour of amending the constitution to implement
these features.

A number of other political forces and commentators

have contributed to the debate on electoral reforms.
These include the former Chief Election
Commissioner, T.N.Seshan and his successor
Manohar Gill, as well as several political parties. In
general, these debates focus on eliminating electoral
fraud, incorporating greater transparency in the
electoral process, introducing state-funding of
official parties, introducing ID cards to distinguish
illegal immigrants, depriving those with criminal
records of the right to be elected and so on. Again,
some of them are in the sphere of constitutional law
and others in the sphere of simple legislation.

The current Prime Minister Atal Behari Vajpayee has

added his contribution to this debate by suggestin g
that the constitution be amended such that before a
government is toppled, as happened to the Deve
Gowda and Gujral governments in 1997, an
alternative arrangement must be presented before
parliament and the President.

In April 1998, the Association of Indian Progressive

Study Groups (AIPSG) concluded a series of seminars
on the 12th Lok Sabha Elections in New York by
releasing proposals to renew the political process.
They say that

Vasant Sathe of the Congress (I) party has proposed

that in a time of instability, the Vice President should
be made the Prime Minister, and should form a
council of ministers with representatives from all
parties and groups. This exercise would be supervised
by a steering committee comprising all the former
Prime Ministers.

this renewal will necessarily start with an overhaul

of the present political process; it will impact the
way in which different levels of power are
constituted and defined and in the way elected
representatives are selected and elected; it will have
implications for the fundamental law of the land and
for the way in which rights are conceived, enforced
and affirmed.

According to Mr. K.Karkra, a constitutional expert

who writes for Hindustan Times, the main problem in
governance lies in the fact that Indian politics has not
achieved a stable two-party system. In order to do
this, he proposes a two-phase election, where only the
two top parties from the first phase of elections would
be permitted to contest the second run-off election
between them.

The centre-piece of the program of political renewal

put forward by the AIPSG is to vest political power at
the constituency levels, such that all legislators at
higher bodies derive their authority from these bodies.
Candidates for election to parliament cannot be
selected by political parties, but must be nominated
and selected by their respective constituencies, who
will have the ability to recall their representatives.
Such a system will actually give a role to people in
their own governance far beyond that afforded by the
present election mechanisms.

Rajinder Sachar, a well-known lawyer has proposed a

constitutional amendment to stop floor-crossings or
defections from one party to another, in order to end
horse-trading and corruption among legislators.
In May 1998, the Committee for Peoples
Empowerment (CPE) held an All-India Conference on
Political Reform in Pune. The topic for discussion
there was the necessity for a complete renewal of

Centre-State Relations
The debate relating to centre-state relations has taken
momentum in recent years as a number of regional
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parties have become important power-brokers at the

centre. One of the central issues is Article 356 of the
Indian constitution, which effectively permits the
central government to engineer the dismissal of state
governments in the colonial tradition. While several
regional power-brokers are anxious to secure their
regional bases by repealing the article, this has been
complicated in recent years by the fact that it is being
used by other regional groupings who share power in
Delhi to settle scores back home in W.Bengal or
Tamil Nadu. An interesting observation is that in the
debate on centre-state relations, no one ever talks of
Article 3 of the constitution which permits parliament
to create or eliminate a state from existence, - or
Articles 249, 250 and 253 that permit the centre to
legislate on items in the state list if they are deemed to
be in the national interest, or to give effect to
international treaties.

They need a standard bearer, but the political system

does not give them one.
The equations of power within the ruling
establis hments are changing at this time and various
newly emergent forces are demanding changes to the
constitution to favour themselves vis --vis the
entrenched old business houses of India. In recent
elections, regional forces have gained an upper hand
over national parties, and are seeking to use their new
found power in Delhi in order to enshrine changes
within the constitution to benefit themselves. But if
these proposals are examined closely, it emerges that
the demand for a weakened central power echoes the
demand of international capital to reduce the
transaction cost and p olitical difficulty associated with
having Delhi mediate their entry to the states.
This is not to suggest that the trend in India is to
weaken the central power. To the contrary, the trend
is to strengthen it while window dressing the changes
to appear as if devolution has occurred.

The regional question has given rise to recent

debates on the role and powers of the President and
Governors and the powers of states vis -a-vis the
centre. At one point, the DMK state government in
Tamil Nadu appointed a judicial commission, the
Rajamannar commission, which recommended that
(a) residuary power of legislation and taxation should
be vested in the state legislature; (b) the jurisdiction of
the Supreme Court should be restricted to only the
constitutional matters; (c) provisions of the
Constitution that ministers hold office during the
pleasure of the governor should be omitted; (d) the
seabed under the territorial waters should belong to
the littoral states and (e) the territory of a state should
not be interfered with except with the consent of the
state. However, neither the DMK nor any other party
has made any of these an issue.

Finally, there is another factor for changing many

provisions of the constitution. It has to do with the
people of India. Over the past fifty years, the
institutions of governance have consistently been
losing their credibility and legitimacy in the eyes of
the people. The electoral mechanisms and the political
institutions are viewed as unrepresentative and
unaccountable, and as the means by which wealthy
and powerful vested interests gain control over power.
The proposals by the Committee for Peoples
Empowerment or the AIPSG or the Communist
Ghadar Party of India arise from the question of what
will assist the people of India to empower themselves.
According to the AIPSG, the most fundamental
problem is to repatriate sovereignty into the hands of
the Indian people, and this must be enshrined by
politically empowering them through a renovation of
the democratic process. This must change the present
dichotomy between ruler and ruled between the
existence of an elite governing structure separate from
those who are the governed. Amendments such as
those pending in the parliament to reserve 33% of
seats for women or to make education a right or to
make panchayats function in the rural areas in a given
way do not even attempt to deal with this problem
that power cannot exist above the people.

Broadly speaking, the current discourse on changing

the Indian Constitution follows the contours of the
Indian political scene. Ever since the elections of
1989, no single party has yet won a simple majority in
the Lok Sabha, resulting in a series of unstable
coalition arrangements of one form or another a
situation which is not expected to dramatically change
in the near future.
In other words, the political system of governance
given rise to by the constitution can work best when
there is a governing party and a loyal opposition, but
this is a distant possibility in the present situation.
This is giving rise to serious instability at a time when
the whole world is in flux. Indias ruling elites
desperately want a stable government which will push
their interests in the international arena and help them
emerge as a big power. But they are deeply divided.

These amendments are attempts to legitimise what is

going on, both in the eyes of the people and also
internationally. The discussion over the National
Commission on Women, the reservation of seats for
women and so on are inspired by events outside India
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in a direct manner. There is nothing there which will

abolish the privilege distribution system that is
established through the constitution. Similarly, when
it comes to the suppression of the people through
draconian laws or other forms of state terrorism, there
is no demand for any change or amendment from the
official circles.

Constitution, the people would have recourse to extraconstitutional methods like revolution to change the
Constitution. This is revealing in that if this is taken
as a yardstick, the recourse to revolution must be
extremely pressing in India than anywhere to have
justified the need for such a large number of
amendments to what is hailed as a model constitution
in the first place!

In conclusion, I quote Justice H.R.Khanna who says

that if no provision were made for amendment of the

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