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Report of the National Commission to Review the Working of the Constitution, 2002

Report of the National Commission to Review the Working of the Constitution, 2002

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Published by Piyush Kulshreshtha
For the first time in 50yrs since commencement of the Constitution of India, an effort was made by the then Government of India, under BJP led NDA, to review the working of the Constitution, relevance of its various aspect.

While it had been amended close to 80 times during these 50yrs, it was only in small parts & pieces that any such attempt to keep the Constitution with changing times was made.

The Commission submitted its report to the Government in 2002. However, due to regressive attitude of Congress, in addition to its own petty & vested political agenda, a par excellence effort of this magnitude still remains in the dark.

A must read for all Indians.
For the first time in 50yrs since commencement of the Constitution of India, an effort was made by the then Government of India, under BJP led NDA, to review the working of the Constitution, relevance of its various aspect.

While it had been amended close to 80 times during these 50yrs, it was only in small parts & pieces that any such attempt to keep the Constitution with changing times was made.

The Commission submitted its report to the Government in 2002. However, due to regressive attitude of Congress, in addition to its own petty & vested political agenda, a par excellence effort of this magnitude still remains in the dark.

A must read for all Indians.

More info:

Categories:Types, Research
Published by: Piyush Kulshreshtha on Jul 08, 2013
Copyright:Attribution Non-commercial

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04/19/2014

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1
REPORT
OF
THE NATIONAL
COMMISSION
TO REVIEW THE WORKING OFTHE CONSTITUTION (2002)
CHAPTER 1
INTRODUCTION
1.1
Genesis of the Commission
1.1.1
Pursuant
to the President's
address
to
the
h-,'o
Houses of
Parliament
assembled together
at
the commenct'ment of the first session after the
thirteenth
general election
to
Lok Sabha, the Government of India, Ministry
of
Law, Justi('e
and
Company
Affairs (DepdCtment of Legal Affairs),
vide
ils Resolution,
dated
the
22
February, 2000 resolved to constitute "the National ComIllission to Reviewthe Working of the
Constitution"to
make
suitable recommendations.
The
said
resolution
was
subsequently modified
by
the Government
,'id(
its nlltificationsdated
17
March. 2000
and
27 March, 2000 (Gazette Notification!:
are
reproduced
in
Volume II).
1.1.2
The Resolution stipulated that the Commission shall consist
of
a whole-time
Chairperson
who
shall be a person of distinction
",,-ith
..knowledge
and
experti"f' of constitutional issues
and
in the
working
of the
democratic
institutions
of
the nation.
It
was
further
stipulated that
besides
ih,~
 
Chairperson,
the Commission shaH have not more than ten othel' Members
who shall
beselected
on
the basis of their
pt"<Jven
expertise
<lnci
knowleC:~,~
 
HI
the
f;e1d ofconstitutional law, economics, politics, law, sociology, politic"l science
and
other
relevant' subjects. The Commission shall
have
a Secretary of the
statusof
aSecretary to the Government of India to assist the Commission.1.1.3. Accordingly,
on
23
February 2000, the President of India
appointed
hlstice
5h1'i
M.N. Venkatachaliah, former Chief Justice
of
India
as
the
Chairperson
of the Commission
and
the following persons as the
other
Members
of the Commission:
1.
Justice Shri
B.I'.
Jeevan Reddy, Chairman, Law Commission
of India
2.
Justice Shri
RS
Sarkaria, former Judge,
Supreme Court
of
India
3.
Justice Shei Kottapalli Punnayya, former JUdge,
Andhra
Pradesh HighCourt
4.
Shri P.A. Sangma, former Speaker, Lok Sabha;
and Member
ofParliament
5.
Shri Soli J_Sorabjee, Attorney General for India
2525
 
2527
526
Constitutional
Law
of
India
6.
Shri
K.
Parasaran, Senior Advocate
and
former Attorney General forIndia
7.
Dr. Subhash
C.
Kashyap, former Secretary General, Lok Sabha
8.
Shri
c.R.
Irani, Chief Editor and Managing Director, The Statesman
9.
Dr. Abid Hussain, former Ambassador
of
India in the
USA
10.
Smt. Sumitra G. Kulkarni, former Member of Parliament, (Rajya Sabha)Dr. Raghbir Singh, Secretary to the Government
of
India in the Ministry ofLaw, Justice
andCompany
Affairs (Legislative Deparhnent) was asked to look
aner
the work
of
the Secretary to the Commission immediately
and
on hissuperannuation, he
waS
appOinted as the Secretary
to
the Commission with effectfrom 1 April 2000.1.2
Tenureof the Commission
1.2.1 In its Resolution of
22
February, 2000, Government stipulated that theCommission shall complete its work and make its recommendations within oneyear. Government of India in the Ministry of Law, Justice
and
Company Affairs(Department of Legal Affairs)
uide
its Amending Notifications
of
20
February,2001,30 October,
2001
and
26
February,
2002
successively extended the tenure ofthe Commission
upto
31
October, 2001,
28
February, 2002 and
31
March,
2002
(Gazette Notifications are reproduced in Volume
II).
1.3
Terms of
Reference
1.3.1
The Resolution of the Government of India, Ministry of Law, Justice andCompany Affilirs (Department of Legal Affairs) of
22
February, 2000 stipulatedthe following as the terms uf reference of the
Commission:-
The Commission shall examine, in the light of the experience of the past50 years,
a~
 
to how best the Constitution can respond to the changing needs ofefficient,
smooth
and effective system of governance
and
socio-economicdevelopment of
modern
India within the framework of parliamentary democracy
and
to recommend changes, if any, that
are
required in the provisions of theConstihltion without interfering
with
its basic structure
or
features.1.3.2 The Government authorized the Commission to decide its
own
procedure
and
hear
and
entertain all persons, representations andcommunications which in the opinion of the Commission shall facilitate its workand
Hnal
recommendation.1.4 Earlier Efforts
to
Review the
Constitution
1.4.1 There
was
nothing entirely new
in
the effort
at
reviewing the working
of our
Constitution. The debate
had
continued right from the first decade of thelife
of
the Constitution. Also, every
amendment
had been
an
occasion for review.But,
in
the half-a-century and more since the Constitution came into force,whereas as
many
as eighty-five amendments have been instituted, there
has
been(till the selting
up
of the National Commission to Review the Working of theConstitution)
no
comprehensive and transparent official exercise
to
review theworking of the Constitution in its entiret)' with a
view
to evaluating itsachievements
and
failures
i,n
fulfilling the objectives
of
the Constitution in thecontext of experience gained,
and
for futllre requirements perceived.
({e,JQrt
of
tire
National Commission
to
Reviewthl' Working
of
the Constitution (2002)
1.4.2
That
the Constitution ought to be amenable to change to allow foremerging needs
was
always recognized. This was emphasized -right from itsnascent stage; indeed, even from the time Ihe document was being conceived
and
tissue, texture
and shape was
being given to
it.
The framers of the Constitutionthemselves
had
that vision
and
prescience. Speaking
on
the Objectives Resolutionon
22
January, 1947, Jawaharlal
Nehru had
declared:"A free India will see the bursting forth
of
the energy of a mighty nation.What it will
do and what
it will not, I
do
not know, but I
do know
that
it
will
not
consent to be bowed
down
...This
House
cannot bind
down
the next generation
or
the people
who
will
duly
succeed us..."1.4.3
Nehru
was prominent amongst those who
had
first broached
thl'idea
of
3
Com;tituent Assembly to
draw up
a Constitution for a renascent India. As thehead of
the
Interim Government and a prime-mover of the Constitution-makingprocess, hl' was deeply immersed
and
dynamically invoLved in every stage of theframing
of
the Constitution.
Yet
Nehru
reiterated this view over ilnd
over
again,on
appropriate
occasions. Speaking of the Draft Constitution
on
8 Nvvember,1948,
Nehru
said:"The Constitution is after all some kind of legal
body
given to the
ways
of
Governmenl
and the life of the people. A Constitution
if
it
is
out
of touchwith the
people's
life. aims
and
aspirations, becomes rather empt)':
if
it falls
behind
those aims.
it
drags the people down.
II
should be something aheadto keep people's eyes and minds made
up
10
a certain high mark....Remember this that while we
want
this Constitution
to
be as solid andas
permanent
a structure as we can make it, ... there should be a certainfleXibility.
If
you
make anything rigid
and
permanent, vou stop a nation's
growth,
the
growth
of a living, vital, organic people."1.4.4 After the Constitution came into force, within two years,
it
was
requiredto be
amended.
In the course of his speech
on
the Constitution (First
Amendment)
Bill.
1951, on 2 June,
1951
Nehru
once again repeated his views asto the
need
for the Constitution to be amenable to amendment.
On
this occasion,his
words were
trenchant and unsparing. He said:"
we
have in India a strange habit of making gods
ofvarious
things,
adding
them to
our
innumerable pantheon,
and
having given them
our
theoretical worship,
doing
exactly the reverse.
If
we want
to kill a thing inthis country,
we
deify it. That
is
the habit of this country largely.
So
if you
wish
to kill this Constitution, make it sacred
and
sacrosanct -certainly.
If
you want
it
to be a
dead
thing, not a growing thing, a static, lmwieldy,
unchanging
thing, then
by
all means
do
so, realizing that that is the best
way of
stabbing it in the front and in the back... A Constitution
which
isunchanging
and
static, it does
not
matter
howgood
it
is,
but
as aConstitution it
is
past its use.
It
is
in
its old age
alreadyandgradually
approaching its death. A Constitution to be living
mustbe
growing;
mustbe
adaptable;
must
be flexible;
must
be changeable... Therefure, it
is
adesirable
and
a good thing for people to realize that this very fineConstitution that we have fashioned after years
of
labour, is
good
in
so
far
 
2529
528
COlis/illilionalLaw
or
IIldia
as
it
goes,
but
as
society changes
as
conditions change,
we amend
it
in
the
proper
way.
It
is not like the unalterable
law
of the Medes
and
Persians that
it
cannot
be changed, although the
world around may
change."1.4.5 Four years later,
as
an
experienced
Prime
Minister with
prolonged
first
hand
knowledge
of
the efficacy
of
the fundamental
law
of
the land, he held the
same
view. Speaking
on
the Constitution (Fourth Amendment) Bill, 1955
Nehru
said:
"After
all, the Constitution is
meant
to facilitate the
working
of
theGovernment
and
the administrative
and
other structures
of
this country.
It
is meant to be not something that is static
and
which has a static form in achanging world, but something
which has
something
dynamic
in it, whichtakes cognizance of the dynamic
nature of
modern condihons, modern
society."1.4.6
In
the years that followed the Fourth
Amendment,
the Constitution hasbeen
amended
81
times. The Union
and
the State Governments
and
Parliament
f<lced
the
Supreme
Court
over
fundamentG\1 rights issues: freedom of expression
vis-ii-vis
national integrity; personal liberty
vis-a-vis
political stability; specialtreatment for
some
segments
of
society
vis-ii-vis
abstract equality for all; propertyrights vis-a-vis social revolution needs etc. Questions also arose whether the
power
of constitutional
amendment
was
complete, lmreslmined
and
unlimitedand
whether
there were limits
to
the
power
of judicial review
of
constitutionalamendments.1.4.7 In the period 1950 to 1967, Parliament
and
most State Assemblies had
preponderant
Congress majorities. General Elections in 1967 were followed
by
the formation
of
Non-Congress coalitions
in
a
number of
Stales in the
northern
region of the country. Certain issues
pertaining
to
Union-State relations arose
during
this period directly from the functioning of mechanisms
and
processes
under
the Constitution, An Administrative Reforms Commission
was
constitutedby the Goverrunenl of India to examine administrative aspects
of
Union-Staterelations.1.4.8
In
the period
follOWing
the fourth General Election, the
phenomenonof
unprincipled defections for money
or
ministerships etc.,
came
to the fore:legislators changing their
parly
allegiance
again
and
again in utter disregard
of
all
moral and
political proprieties, constituency choice
and
public opinion. Wide
spread
concern about the problem
was
mirrored
in Parliament,
and
led to a
unanimous
resolution
in
the Lok Sabha
on
8 December, 1967. The resolutionread:"This
House
is of opinion
that
a high-level Committee consisting
of
representatives
of
political parties
and
constitutional experts be set
qp
immediately by Government
to
consider
the
problem
of legislators
changing
their allegiance from one
party
to
anotherand
their frequentcrossing
of
the floor in
aU
its aspects,
and
make recommendations in thisregard."1.4.9 Known subsequently as the
Y.B.
Chavan
Committee, after the thenUnion
Home
Minister who was the
Chairman
of the Committee, this
body
produced a valuable report which
addressed
a variety
of
issues
germane
to
the
Report
of
the National Commission
to
RL'Vielli
till:
Working
of
the
Conslil
utioll
(2002)
handling
of
the problem of defections which
had
basic implications
with
reference to the
working
of constitutional machinery
and
connected
statutory
and
procedural instrumentalities.1.4.10 The 25th anniversary of the coming into force
of
the Constittltion of the
world's
largest democratic republic occurred, ironically,
in
the year in which theEmergency
wasclampedon
the nation
in
an
atmosphere
of
burgeoning
nationalunrest.
It
was
in this context that the first concerted initiative
towards
a review
and
revision
of
the Constitution
was
undertaken
in 1975. At the AlCC Session inDecember, 1975 -the 'Kamagata
Maru
Session' -a resolution
on
the politicalsituation stated:
"If
the misery
of
the poor
and
vulnerable sections of
our
society is to bealleviated, vast
and
far-reaching changes have to be effected in
our
socioeconomic 1;tructure...The Congress urges that
our
Constitution be thoroughly examined
in
order
to
ascertain if the time
has
not come to
make
adequate
altera hons toit so that
it
may
continue
as
a living document."1.4.11 A
document
titled
'A
Fresh Look
at
Our
Constitution -SomeSuggestions' surfaced at this time nnd
was
circulated but, aft'er therecommendations contained in
it
had
drawn
stringent criticism from diversequarters,
it
was
not pursued.
Amidst
tenacious advocacy
about
the need forconstitutional change, particularly after the Kamagata Man! Session
01
the IndianNational Congress, the then Congress President,
D_K.
Borooah
appointed.
1)11
26
February, 1976, a Committee "to
study
the question of
amendment
of theConstitutioll
__
..
in the light of experience." The twelve-member Committee,
headed
by Sardar
Swaran
Singh,
submitted
'tentative proposals' to the
Congress
President in April, 1976
and
these
were
then circulated
among
a select
few_
The'
then
Chairman
of the Law Commission
of
India, Justice
P.B.
Gajendragadkar
wrote to the
Prime
Minister
that
while
amendment
to the Constitution
was
necessary to expedite the socio-economic revolution, "ad-hocism is
undesirable
and
adoption
of extremist doctrinaire positions is irrelevant
and
inadvisable".
He
advised
the Prime Minister "to
appoint
a high
powered
committee to research
and
discuss the
problem
in
depth
for a dedicated
and
comprehensive
effort."1.4.12 The
Swaran
Singh Committee Report stated that
its
recommendations
had
been
made with
the
background
of
the tentative
proposals
circulated earlierto Congress Chief Ministers
and
Pradesh
Congress Committees, the views of
BM
Associations
of
the Stlpreme
Court
and
all the
High
Courts,
comments
in thePress
and
in public
andmemoranda
and
opinions received from
individuals,
professional
bodies
etc.
It
said:".....the Conurutlee has
kept
before
it
certain
important
objectives.
Our
Constitution has functioned
without
any
serious
impediment during
the
past
26 years
or
so. While this is so, difficulties
have
been
thrown
up
fromtime to time
in
the interpretation of some of its provisions, moreparticularly
when
they concern the right of Parliament to be the
most
authentic
and
effective
instrument
to
give expression
and
content to thesovereign will
of
the people.
Ours
is a dynamic,
moving
and
changing
society,
and
the need to quicken the pace
of
socio-economic
progress
of
our

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