Monday, May 8, 2023

Essence and Relevance of Nani Palkhivala’s views on Indian Constitution

 

  

(from  “ Selected writings “ (1999)  edited by LM Singhvi , MR Pai and S.Ramakrishnan)         

Nani Palkhivala  in his article “Has the constitution Failed?” makes the point that people have to be keepers of the constitution. He quoting S.Sinha, provisional Chairman of Constituent Assembly says that republics fail when the profligate are preferred to the wise in public councils . Politics has become unworthy of even the name of rat race and democracy reached the nadir as the average politician has become devoid of intellect, knowledge, character. Before the problem worsens to crisis and disaster , the honest and the young must take part in politics. He also writes “ Equality before the law is the  very foundation of a republic. Equal opportunity is the very foundation of social justice. But equality is achieved only in the graveyard.” He wants the aristocracy of talent,  knowledge and character  must enter public life. He wants the government by the experts to avoid authoritarianism. His punchline comes at the end, “The peacock must not be replaced a the national bird by the ostrich.” (  77)

In  another article , ‘Desirable Changes in Constitutional Law’, he thinks that the governance should not be completely  left to the mercy of the professional politicians. He proposes some desirable  changes in our basic laws without changing the constitution.

 1) transparency and auditing the accounts of the political parties. This is possible by adding another section to RP Act, 1951.

  2)partially proportionate representation system in which  political parties gaining more than 5 percent of votes cast in a region may be given representation by amending the Representation of People Act . proportional representation in the Lok Sabha  is permissible under article 81 of the constitution. 

3) Minimum qualification for those wanting to become representatives of people  as law giver needs education to acquire   intellectual equipment, objectivity, independence of mind, character.

4) to reduce toppling game

Some other change required are which would need  constitutional amendment    without changing the basic structure .

1)      Taking some ministers from outside the parliament by amending article 75 that requires a minister at the centre should be , or become  with in six months ,a member of parliament. 

2)      Resignation by a minister to his seat in parliament to focus on governance as in France  

3)      Change in Article 75 to enable  each state send two representatives elected by universities and professional bodies from each State and one from union territory

Nani Palkhivala thinks that every generation has to  defend and fight for freedom  for its survival and passing on as a legacy to  the posterity.  

Regarding electoral reforms, he says what are needed are cleansing the electoral system and expresses unhappiness regarding adult franchise in the very beginning in 1950 rather than as culmination of years of experience and training. This has led to the predominance of caste or religion or clan or creed. This opinion is debatable as Indian voters sowed maturity time and again in the past and changing governments in 1977, 1980 and in 2014. They are capable of repeating the same in future also if required .

His article on ‘States Are Not Vassals Of The Union’ is very relevant these days . Here, he says the  representatives  of  the States to parliament  are ‘the real authors of injustice’ because “The centre is nothing but the states in their federal garb.”  He mentions four basic considerations incentre-state relations.

1.   The centre must be reminded that it needs to show” constitutional morality , particularly a sense of justice and fairness to states.” (92)

2.       A strong union can only be a Union of  strong states 

3.       National interest has paramountcy in case of conflict without affecting self-respect or resources of the state.

4.       The grievances of the state should be addressed by conventions rather than amendment.

5.       Centre needs to act in the spirit of constitution.

in case of industries , the centre needs to have control over industries of national interest and leaving the rest to states ‘ jurisdiction .  Nani , in reference to President’s rule  Opines that it is better to retain article 356 devising a mechanism to prevent its  misuse. He also mentions that except in case of civil disorder, president rule should not be imposed without first dissolution and general elections.

He also observes that “we have systematically devalued various constitutional institutions including the office of the governor’ and the latter’s position has been “reduced to that of  the resident agent in a native State in the days of the British raj.” (96-97) He points out that “ A governor is expected by the constitution to reserve only such  bills for the president’s assent as are patently unconstitutional or palpably against the national interest.” (98)

He also opines that the Planning Commission is  ‘’a body without any constitutional or legislative sanction.” (98)and suggests   Financial Commission  should decide grants under Article 282 .

 Now the planning commission has been dissolved on 13 August ,2014 replaced by NITI Aayog.

Nani Palkhivala observes that the Seventh FC had recommended that 40 percent of  taxes should be transferred to the States and  opines that “the States must be given a legal right  to a larger share in the tax revenues collected by  the Centre, instead of having to rely up[o the discretionary largesse of the Union under Art.282.’’ (100)

After nearly four decades, we find that according to 15th Financial Commission  

“The share of states in the central taxes for the 2021-26 period is recommended to be 41%, same as that for 2020-21.  This is less than the 42% share recommended by the 14th Finance Commission for 2015-20 period.  The adjustment of 1% is to provide for the newly formed union territories of Jammu and Kashmir, and Ladakh from the resources of the centre.” (https://prsindia.org/policy/report-summaries/report-15th-finance-commission-2021-26. Accessed on 9th May, 2023 )

At the end , Nani  points out says that the centre’s attitude to treat states as ‘vassals’ and maintains that the “lasting  solution lies not in the statute- book but in the conscience of men in power.” (102), that is the members of the parliament and dynamic and informed public opinion. His memorable lines  are :

“In a constitution what is left unsaid is as important as what is said.”  

"The survival of our democracy and the unity and integrity of the nation depend upon the realization that constitutional morality is no less essential than constitutional legality. Dharma (Righteousness ; sense of public duty) live sin the hears of public men ; when it dies there , no constitution , no law, no amendment can save it.” (102)  

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