: National Commission to Review the Working of the Constitution

• Establishment:

  • Established in 2000 by a resolution of the Government of India.
  • 11-member commission headed by M.N. Venkatachaliah (former Chief Justice of India).
  • Submitted its report in 2002.

• Terms of Reference:

  • Examine the Constitution's provisions in light of the past 50 years.
  • Assess their ability to meet the needs of efficient governance and socio-economic development.
  • Recommend changes within the framework of parliamentary democracy, respecting the basic structure of the Constitution.
  • The task was to review and recommend, not to rewrite the Constitution.
  • Parliament had the discretion to accept or reject recommendations.

• Areas of Study (Identified by the Commission):

  1. Strengthening parliamentary democracy (Legislature, Executive, Judiciary accountability; political instability cost, exploring stability within parliamentary democracy).
  2. Electoral reforms and standards in political life.
  3. Pace of socio-economic change and development (assurance of social and economic rights).
  4. Promoting literacy, employment, social security, and poverty alleviation.
  5. Union-State relations.
  6. Decentralization and devolution, empowering Panchayati Raj Institutions.
  7. Enlargement of Fundamental Rights.
  8. Effectuation of Fundamental Duties.
  9. Effectuation of Directive Principles and achievement of Preamble objectives.
  10. Legal control of fiscal and monetary policies; public audit mechanism.
  11. Administrative system and standards in public life.

• Areas of Concern (According to the Commission):

  1. Breach of constitutional faith by governments and their methods of governance. Loss of faith in the government.
  2. The Indian State's inability to anticipate and provide for global changes.
  3. Increasing cost of government and fiscal deficits.
  4. Pervasive impurity of the political climate (criminalization of politics, political corruption, politician-criminal-bureaucratic nexus).
  5. Inadequate attention to national integrity and security. Absent mechanisms for early warning signs and inadequate state responses to emergencies.
  6. Fault-lines in parliamentary democracy's institutions.
  7. Misuse of the electoral process, entry of persons with criminal records.
  8. Failure of Parliament and State Legislatures to acquire adequate representative character.
  9. Political instability due to opportunistic politics and unprincipled defections.
  10. Disturbing state of the Indian economy, sinking into a debt trap.
  11. Rural de-population, urbanization, congestion, social unrest.
  12. The future of society and the need for urgent repair of the quality of education and higher research.
  13. System of administration of justice.
  14. Criminal justice system is on the verge of collapse.
  15. Communal and other inter-group riots.
  16. The state of social infrastructure is disturbing.
  17. Rates of infant mortality, blindness, maternal mortality.
  18. Public health and hygiene.

• Recommendations:

  • The commission made 249 recommendations.
    • 58 involve amendments to the Constitution.
    • 86 involve legislative measures.
    • 105 could be accomplished through executive action.

• Recommendations on Fundamental Rights:

  • Extend prohibition against discrimination (Articles 15 & 16) to include 'ethnic or social origin, political or other opinion, property or birth'.
  • Expand freedom of speech (Article 19) to include 'freedom of the press/media, freedom to hold opinions, seek, receive, impart information/ideas'.
  • Add new Fundamental Rights:
    • Against torture, cruelty.
    • To compensation for illegal deprivation of life/liberty.
    • To leave/return to India.
    • To privacy and family life.
    • To rural wage employment (minimum 80 days).
    • To access to courts/tribunals, speedy justice.
    • To equal justice and free legal aid.
    • To care, assistance, protection (for children).
    • To safe drinking water, pollution prevention, conservation, sustainable development.
  • Enlarge right to education (Article 21-A).
  • Changes to preventive detention (Article 22):
    • Maximum detention period: 6 months.
    • Advisory board: chairman + 2 judges of high court.
  • Sikhism, Jainism, Buddhism should be treated as religions separate from Hinduism, and the provisions grouping them together (under Article 25) should be deleted.
  • Restrict protection from judicial review (Article 31-B, Ninth Schedule) to laws relating to agrarian reforms, reservations, and Directive Principles (Article 39(b) or (c)).
  • No suspension of enforcement of Articles 17, 23, 24, 25 and 32 (in addition to 20 and 21) during national emergency (Article 352).

• Recommendations on Right to Property:

  • Recast Article 300-A:
    • Deprivation/acquisition of property by law, for public purpose only.
    • No arbitrary deprivation/acquisition.
    • Special protection for SCs/STs: suitable rehabilitation scheme before taking possession of their agricultural/forest/homestead land.

• Recommendations on Directive Principles:

  • Amend the heading of Part-IV as 'Directive Principles of State Policy and Action'.
  • Add a new Directive Principle on control of population.
  • Set up an independent National Education Commission every five years.
  • Establish an Inter-Faith Commission to promote inter-religious harmony.
  • Form a high-status body to review Directive Principles implementation.
  • Initiate a strategic Plan of Action for employment opportunities in five years.
  • Implement the recommendations of the National Statistical Commission (2001).

• Recommendations on Fundamental Duties:

  • Find ways to popularize and make Fundamental Duties effective.
  • Implement Justice Verma Committee recommendations on operationalization of Fundamental Duties.
  • Include new fundamental duties (Article 51-A):
    • Duty to vote, participate in democracy, pay taxes.
    • Foster family values, responsible parenthood.
    • Duty of industrial organizations to provide education to children of their employees.

• Recommendations on Parliament and State Legislatures:

  • Define and delimit legislator privileges for free functioning.
  • Amend Article 105 to clarify immunity does not cover corrupt acts.
  • Maintain domiciliary requirement for Rajya Sabha elections.
  • Discontinue MP local area development scheme.
  • Empower Election Commission to identify 'offices of profit'.
  • Set up a Nodal Standing Committee on National Economy.
  • Establish a Standing Constitution Committee of Parliament for scrutinizing constitutional amendment proposals.
  • Form a new Legislation Committee of Parliament to oversee legislative planning.

• Recommendations on Executive and Administration:

  • In case of hung Parliament, the Lok Sabha may elect the leader of the House.
  • Motion of no-confidence must include a proposal for an alternative leader.
  • Require at least 20% of House members to give notice for a no-confidence motion.
  • Prohibit oversized Councils of Ministers by law.
  • Ceiling of 10% of the total strength of the popular house of the legislature.
  • Discourage political offices with minister-level perks.
  • Constitution to provide for appointment of Lokpal keeping the prime minister outside its purview and the institution of lokayuktas in the states.
  • Allow lateral entry into government jobs above joint secretary level.
  • Amend Article 311 to penalise dishonest public servants.
  • Manage personnel policy through autonomous Civil Service Boards.
  • Require officials to swear to abide by principles of good governance.
  • Guarantee right to information and discard insistence on secrecy.
  • Enact Public Interest Disclosure Acts (Whistle-blower Acts).
  • Enact a law for forfeiture of benami property of corrupt public servants.

• Recommendations on Centre-State and Inter-State Relations:

  • The Inter-State Council Order of 1990 may clearly specify the matters that should form the parts of consultations.
  • Management of disasters and emergencies (both natural and manmade) should be included in the List III (Concurrent List) of the Seventh Schedule.
  • A statutory body called the Inter-State Trade and Commerce Commission should be established.
  • The President should appoint the governor of a state only after consultation with the chief minister of that state.
  • Article 356 should not be deleted, but it must be used sparingly and only as a remedy of the last resort.
  • The question whether the ministry in a state has lost the confidence of the assembly or not should be tested only on the floor of the House.
  • Even without the state being under a proclamation of emergency, President's Rule may be continued if elections cannot be held.
  • The State Assembly should not be dissolved before the proclamation issued under Article 356 has been laid before Parliament.
  • River water disputes between States and/ or the Centre should be heard and disposed by a bench of not less than three judges and if necessary, a bench of five judges of the Supreme Court for the final disposal of the suit.
  • Parliament should replace the River Boards Act of 1956 with another.com-prehensive enactment after consultation with all the states.
  • When the state bill is reserved for consideration of the President, there should be a time-limit (say three months) within which the President should take a deci-sion whether to give his/her assent or to return the bill.

• Recommendations on Judiciary:

  • Establish a National Judicial Commission to recommend appointments of Supreme Court judges.
  • A committee of the National Judicial Commission should examine complaints of deviant behaviour of the Supreme Court and high court judges,
  • Increase the retirement age of the judges of high courts and Supreme Court should be increased to 65 and 68 respectively.
  • No court other than the Supreme Court and the High Courts should have the power to punish for contempt of itself.
  • Except for the Supreme Court and the High Courts, no other court should have the power to declare the Acts of Parliament and State Legislatures as being unconstitutional or beyond legislative competence and so ultra-vires.
  • A National Judicial Council and Judicial Councils in States should be set up for the preparation of plans and annual budget proposals.
  • In the Supreme Court and the High Courts, judgements should ordinarily be delivered within 90 days from the conclusion of the case.
  • An award of exemplary costs should be given in appropriate cases of abuse of process of law.
  • Each High Court should prepare a stra-tegic plan for time-bound clearance of arrears in courts within its jurisdiction.
  • The system of plea-bargaining should be introduced as part of the process of decriminalization.
  • The hierarchy of the subordinate courts in the country should be brought down to a two-tier subordinate judiciary under the High Court.

• Recommendations on Pace of Socio-Economic Change and Development:

  • A way could and should be found to bring a reasonable number of SCs, STs and BCS on to the benches of the Supreme Court and high courts.
  • Social policy should aim at enabling the SCs, STs and BCs and with particular attention to the girls to compete on equal terms with the general category.
  • Appropriate new institutions should be established to ensure that the resources earmarked for the weaker sections are optimally used.
  • The Citizens' Charters be prepared by every service providing department/ agency to enumerate the entitlements of the citizens specifically those of the SCs, STs and other deprived classes.
  • Reservation for SCs, STs and BCs should be brought under a statute covering all aspects of reservation including setting up of Arakshan Nyaya Adalats to adju-dicate upon all disputes pertaining to reservation.
  • Residential schools for SCs, STs and BCs should be established in every district in the country.
  • All tribal areas governed by the Fifth Schedule of the Constitution should be transferred to the Sixth Schedule. Other tribal areas should also be brought under the Sixth Schedule.
  • Special courts exclusively to try offences under the SCs and STS (Prevention of Atrocities) Act, 1989, should be established.
  • Prevention of untouchability requires, inter alia, effective punitive action under the Protection of Civil Rights Act, 1955.
  • The Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993, should be strictly enforced.
  • Steps should be taken for improvement of educational standards as well as for increasing the political representation of the minority communities.
  • A fully empowered National Authority for the Liberation and Rehabilitation of bonded labour should be set up. Similar authorities should also be established at the state level.
  • As regards women, actions covering res-ervations, development, empowerment, health and protection against violence should be taken.

• Recommendations on Decentralisation (Panchayats and Municipalities):

  • The Eleventh and Twelfth Schedules of the Constitution should be restruc-tured in a manner that creates a sepa-rate fiscal domain for panchayats and municipalities.
  • State panchayat council should be estab-lished under the chairmanship of the chief minister.
  • Panchayats and Municipalities should be categorically declared to be 'institutions of self-government' and exclusive func-tions be assigned to them.
  • The Election Commission of India should have the power to issue directions to the State Election Commission for the discharge of its functions.
  • Article 243-E should be amended to the effect that a reasonable opportunity of being heard shall be given to a Panchayat before it is dissolved.
  • To ensure uniformity in the practice relating to audit of accounts, the CAG of India should be empowered to conduct the audit or lay down accounting stan-dards for Panchayats.
  • Whenever a Municipality is superseded, a report stating the grounds for such dissolution should be placed before the State Legislature.
  • All provisions regarding qualifications and disqualifications for elections to local authorities should be consolidated in a single law.
  • The functions of delimitation, reservation and rotation of seats should be vested in a Delimitation Commission and not in the State Election Commission.
  • The concept of a distinct and separate tax domain for municipalities should be recognized.

• Recommendations on Institutions in North East India:

  • Efforts are to be made to give all the States in this region the opportunities provided under the 73rd and 74th Constitutional Amendments.
  • The subjects given under the Sixth Schedule and those mentioned in the Eleventh Schedule could be entrusted to the Autonomous District Councils (ADCs).
  • Traditional forms of governance should be associated with self-governance because of the present dissatisfaction.
  • A National Immigration Council should be set up to examine a range of issues including a review of the Citizenship Act, the Illegal Migrants Determination by Tribunal Act, the Foreigners Act and so on.

• Recommendations on Electoral Processes:

  • Any person charged with any offence punishable with imprisonment for a maximum term of five years or more, should be disqualified from being chosen as or for being a member of Parliament or Legislature of a State.
  • Any person convicted for any heinous crime like murder, rape, smuggling, daco-ity, etc., should be permanently debarred from contesting for any political office.
  • Criminal cases against politicians pending before Courts either for trial or in appeal must be disposed of speedily, if necessary, by appointing Special Courts.
  • The election petitions should also be decided by special courts.
  • Any system of State funding of elections bears a close nexus to the regulation of working of political parties by law.
  • Candidates should not be allowed to contest election simultaneously for the same office from more than one constituency.
  • The election code of conduct should be given the sanctity of law and its viola-tion should attract penal action.
  • The Commission while recognizing the beneficial potential of the system of run off contest.
  • An independent candidate who loses election three times consecutively should be permanently debarred from contesting election to the same office.
  • The minimum number of valid votes polled should be increased to 25 per cent from the current 16.67 per cent as a con-dition for the deposit not being forfeited.
  • The issue of eligibility of non-Indian born citizens or those whose parents or grand-parents were citizens of India to hold high offices in the realm such as President, Vice-President, Prime Minister and Chief Justice of India should be examined in depth through a political process after a national dialogue

• Recommendations on Political Parties:

  • A comprehensive law regulating the registration and functioning of political parties or alliances of parties should be made.
  • The Election Commission should progressively increase the threshold criterion for eligibility for recognition.
  • A comprehensive legislation providing for regulation of contributions to the political parties and towards election expenses should be enacted by consolidating such laws.

• Recommendations on Anti-Defection Law:

  • The provisions of the Tenth Schedule of the Constitution should be amended to provide the following:
  • All persons defecting (whether individually or in groups) from the party or the alliance of parties, on whose ticket they had been elected, must resign from their parliamentary or assembly seats and must contest fresh elections.
  • The defectors should be debarred to hold any public office of a minister or any other remunerative political post for at least the duration of the remaining term of the existing legislature or until the next elections whichever is earlier.
  • The vote cast by a defector to topple a government should be treated as invalid.
  • The power to decide questions regarding disqualification on ground of defection should vest in the Election Commission instead of in the Speaker/Chairman of the House concerned.