(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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