Given some of its shortcomings we have explored, and numerous others that I have not touched upon to conserve space, the Indian Constitution should now be completely re-made. Its language and style should be made extremely simple, with its length drastically reduced to a maximum of ten pages. It should focus on the basic principles of freedom and create institutional flexibility and agility to enable each generation to arrive at, and implement, its own policy choices.
How are we to transition[i] to a new Constitution? The steps below can help us get there:
1. First, a new representative Constituent Assembly, comprising 20 persons – say, proportionally from the main five parties from the current Parliament – should brainstorm and arrive at a draft constitution of ten pages. This Assembly should be supported, purely for the purposes of drafting, by ten outstanding experts in politics, law and economics, selected on the basis of their international renown, along with one of our Booker or Nobel prize winners in literature who will do the final writing. It is crucial that these ten pages talk only of fundamental things, which can be explained even to an illiterate person in about an hour. These ten pages should then be put to a vote in the full Parliament, upon receiving the endorsement of which, a referendum should be held across India. Once passed by the majority of Indians, it should be declared to be The Social Contract and Constitution of India.
2. Simultaneously, the Parliament should translate, i.e. transcribe without making any substantive changes, the institutional framework currently prescribed by the Constitution into various Acts of Parliament, such as the President of India Act, Legislative Bodies Act, Courts Act, Election Commission Act, Civil Services Act, Reservations Act, Directive Principles Act (yes, even these last two!), Responsibilities of State and Central Governments Act, and so on. The commencement of these Acts should be linked to the date when the new Constitution takes effect. With these two steps, India will have its new Constitution as well as a set of flexible laws that will potentially defend our freedom. However, nothing would have changed on the ground – yet!
3. Change would come as follows:
a) The Reservations Act and the Directive Principles Act would be repealed by the Parliament, also given that they will become unconstitutional under the new Constitution. Alternatively, any citizen would be able to launch a petition with the Supreme Court to get these two Acts declared null and void.
b) The other translated Acts should then be reviewed by Parliament in a prioritized manner. Each review can take up to two years including extensive India-wide consultation. At least half the review work can happen prior to the new Constitution taking effect since everyone would know what will be contained in the translated Acts. These translated Acts could then be re-enacted, amended or repealed, as appropriate. Acts that would likely be modified include the Civil Services Act, Comptroller and Auditor-General Act, and Election Commission Act. Acts that are likely to remain entirely unchanged would include the President of India Act, Legislative Bodies Act, and the Courts Act.
What will this new Constitution look like? I’ve provided my thoughts on its shape and form in the Online Notes
Of course, this is not a matter for me but for the elected bodies. Anyway, a bare-bones Constitution of this type will ensure that it does not need to be amended for its entire life of 30 years. It will also allow our institutions to be continuously improved upon through ordinary legislation. The other advantage of having such a clear and simple Constitution will be that all Indians will understand it fully and genuinely ‘own’ it, both through the referendum and by signing it before being licensed to vote. The process of renewing our social contract every 30 years will make explicit our trust in the adults of future generations to make their own laws.
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I admit that this approach, being extremely flexible, will potentially create a situation where legislation inimical to freedom can be enacted by a Parliament through simple majority. The big barrier to bad legislation will be the extremely powerful role of the Supreme Court in the new Constitution which could suo moto nullify laws that violate our freedom. That should protect us for the most part. In the end, though, freedom can never be protected by a contract, no matter how long or short. Even our ‘cast iron’ and ridiculously long Constitution was found wanting when the crunch came; it was unable to withstand Indira Gandhi’s assault on freedom through the 1975 Emergency. We will therefore need the following two strategies to protect our freedom, apart from the very strong Supreme Court:
- First, we will need to elect representatives who are passionate about our freedom.
- Second, we will need to be extremely vigilant as citizens. Freedom can be protected in the end only by each of us being vigilant and participating actively in the political process.
[This is an extract from my book, Breaking Free of Nehru
Note: I use the noun ‘transition’ as a verb consciously here and in a few other places in this book even though it may not represent the most chaste English.
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