Misinterpretation of Constitution’s Basic Structure Needs to be Prevented

There is every reason to be proud of the basic structure of the Constitution of India but the “problem” lies in the way its “basic structure is often misinterpreted”, says a veteran bureaucrat who had put in his papers as the Union Home Secretary and Secretary Justice in 1993 as “the last straw was the demolition of the Babri Masjid”.

He also feels that “wide ranging reforms of the parliamentary system is the answer to the present untenable situation” and that the “unworkable” institution of state Governors should be abolished.

“The Supreme Court has pronounced in the Kesavananda Bharati case in 1973 that the power to amend the Constitution under Article 368, wide as it was, did not include the power to abrogate the Constitution or alter its basic structure or framework. There is every reason to be proud of the basic structure of the Constitution. The problem is with the way the basic structure is often misinterpreted,” Madhav Godbole, now 85, who had 17 months to go in his tenure when he quit the IAS, told IANS in an interview of his book “India – A Federal Union Of States; Fault Lines, Challenges and Opportunities” (Konark).

“I have suggested amendments for making a success of the unique model of the Union of States envisaged in the Constitution. They include, among others, review of the division of powers between the Centre and the states in the Seventh Schedule; operationalisation of secularism; abolition of the institution of Governor; curbing the scope of state domicile for reservation of jobs for those domiciled in the state so as to protect the fundamental rights of citizens under Articles 15 and 16; division of Supreme Court into two divisions, namely Appellate and Constitutional; creation of a workable alternative to the Inter-State Council, and establishment of a Trade and Commence Authority of India under Article 307,” Godbole added.

“The Constitution has been amended over 200 times. Most of the amendments were in response to the demands of changing socio-economic situations. As Thomas Jefferson, one of the founding fathers of the American Constitution, had said, ‘We may consider each generation as a distinct nation, with a right, by the will of its majority to bind themselves, but none to bind the succeeding generation, more than the inhabitants of another country’.” Godbole maintained.

He is a little more forthcoming in the book.

While a way forward has to be found, “this is not going to be easy” for four reasons, he writes.

Firstly, “the scheme of the Constitution is not really meant for a functioning, multi-party democracy”. Secondly, the cycle of unsynchronised elections to Parliament and state legislatures “keeps the country in a continuous election mode” due to which “the level of debates (during the polls) has deteriorated and become highly acrimonious”.

Thirdly, these differences are carried forward in all fora such as the National Integration Council, the National Development Council, the Inter-State Council and even the NITI Ayog and fourthly, “the states opposed to the Centre, ganging up on issues, even on matters which are in the Central field, has become far too common and has increased the divide between the Centre and the states”.

Question: Under the US system of governance, the House of Representatives and the Senate pass their separate versions on a law that the government intends to bring. These are then “married” and passed by both Houses before being forwarded to the President. Is there need for such a system in India because even though every ministry has a Standing Committee, the government generally rams through the Bills it presents in Parliament?

“Wide-ranging reforms of the parliamentary system is the answer to the present untenable situation. The wheel does not need to be reinvented,” Godbole said during the interview.

“A series of valuable suggestions have been made by a number of knowledgeable persons and expert committees. My book ‘India’s Parliamentary Democracy on Trial’ (2011) also contains a number of suggestions. Unfortunately, there is a lack of political will to address the issues seriously and in a time-bound manner,” Godbole maintained.

What replacement does he envisage for the state Governors?

“The guidelines suggested by expert committees and commissions for appointment of Governors have been totally neglected. Salutary principles underling the institution of Governor, made clear by the Supreme Court, have also been totally overlooked. As a result, the institution of Governor has become unworkable.

“I have analysed in my book how the responsibilities entrusted to the Governor can be discharged by other existing authorities. Even for considering whether there is a failure of constitutional machinery in a state as envisaged in Article 356, the report of the Governor is not mandatory. In fact, in the two situations in which the use of Article 356 could have been fully justified, namely before demolition of the Babri Masjid in 1992 and after the communal riots in Godhra in Gujarat in 2002, the Governors failed to make recommendations for imposition of President’s rule.

“If a situation arises for imposition of President’s rule in a state, a suitable person can be appointed to take charge of the state for the limited period,” Godbole maintained.

As for his other suggestions for “The Way Forward”, principally that “it is time to open a new chapter on India’s federalism by pursuing the objective of cooperative federalism, which has remained in paper so far except in the solitary case of GST”, he said: “I would like to reiterate that these sensitive and as some would say politically explosive issues need to be discussed apolitically, keeping in mind the larger national interest. This will call for the highest standards of statesmanship and a spirit of open-mindedness, as was seen in the compromise on the language policy adopted by the Constituent Assembly.”

In this context, Godbole was also highly critical of the Pension Amendment Rules notified by the Central government on May 31 that have put severe restrictions on the writings of retired officers from several organisations dealing with security and intelligence.

“Rather than putting a blanket ban on writings of retired officers dealing with security matters, it would be advisable to deal strictly with cases of compromise of national security, on a case-by-case basis,” he asserted.

Godbole has so far written 26 books on public issues in English and Marathi, of which 15 are in English and some of which have been translated into Marathi. Is he now working on another book?

“Comparisons are often made between the performance of China and India. In this context, I am looking at the manner in which decisions are arrived at in a democracy. ‘Price of Democracy – The Indian Experience’, is what I propose to explore,” Godbole concluded.