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The main Constitutional amendments that SBP will make

From here:

SBP believes that without key changes to its Constitution, India cannot achieve freedom and good governance.

While it is extremely important to remove the word “socialist” from the Preamble, this has not affected the way policies are made or how India is governed. This word did not, for example, prevent the 1991 liberalisation of economic policy in India. It does not prevent, for example, a modicum of property rights existing in India despite the removal of Constitutional protections. It does not even prevent SBP as a registered political party (that is mandatorily required to swear allegiance to socialism) from actively advocating the abolition of socialism. That is mainly because neither the Constitution nor the Election Commission of India define socialism. The word “socialism” has effectively become a meaningless word in India.

So, while we must remove this offending word from the Preamble, its removal will not change anything on the ground. Then there is the issue of strengthening fundamental rights of property and freedom of expression. But these, too, are important but not critical in the overall scheme of things.

Two changes will, however, make very significant impacts on the ground: the abolition and repeal of Part 14 and the Ninth Schedule. Then the Directive Principles of State Policy and Fundamental Duties.

Part 14 of the Constitution is about the way the Indian machine of government works. This Part not only creates all-India services but protects them to an extent that it is literally impossible to get any accountability from any government employee. There are innumerable cases of corrupt officers holding on to their job (and even getting paid by the taxpayer while on extended suspension). They are able to use Part 14 provisions to appeal any adverse decision against them. Babulal Agarwal of the IAS was identified as a corrupt officer over ten years ago. There is innumerable evidence against him (including a 5000-page report). He was also arrested and his assets frozen. The Modi government even discharged him from service in 2017. But he has managed to get a stay order from the court. In any other country, he would have lost his job ten years ago.

This is the case with blatantly corrupt officers. Under these circumstances it is futile to even try to remove any of the millions of India’s incompetent government employees. Any such fruitless attempt merely waste taxpayer’s money.

The whole things started with the mammoth blunder (we can now see that in hindsight) made by Sardar Patel in including provisions for the protection of government employees in the Constitution. India is the only major nation in the world whose Constitution details the service conditions of government employees. Constitutions are supposed to outline the representative system and judiciary, with the management of government employees left to the executive to determine through parliaments and assemblies.

Even if we were to have a Constitutional arrangement for government employees (SBP does not support that idea), it should not provide for a greater standard of protection than for any employee in any other role in India. We cannot have two sets of protections, one for private employees and one for government employees. And at a minimum, the government should have the power to hire from the open market and to fire non-performing and corrupt employees without extensive process, at least at the senior levels. SBP believes that even if a government does want to create specific protections for government employees, it should be done through legislation. Legislation can be amended whenever any error is found and it can be remade periodically after careful review. Changing the Constitution is a mammoth undertaking, in comparison.

The second major issue requiring Constitutional amendment relates to the need to eliminate the more blatant violations of property rights. In particular, the Ninth Schedule prevents consideration of a number of laws that directly attack fundamental rights (including property rights), from judicial scrutiny. Confiscation of land as part of land ceiling laws was part of India’s leading ideology of socialism when it became independent. The fact that such restrictions on property rights exist even today makes it impossible to attract large scale capital investment in agriculture – without which the farm sector will remain in the Dark Ages for ever. But other laws as well, such as the Essential Commodities Act, which are a direct restriction of the fundamental right of occupation and trade, are also part of the Ninth Schedule.

The Supreme Court said in 2007 that “The power to grant absolute immunity at will is not compatible with the basic structure doctrine and, therefore, after April 24, 1973 the laws included in the Ninth Schedule would not have absolute immunity.” In practice, the hundreds of laws sheltered in the Ninth Schedule do not get the kind of scrutiny they otherwise might.

The third thing that SBP would like to remove are the Directive Principles of State Policy and the Fundamental Duties of citizens. There is simply no business in a Constitution to consider any policy whatsoever. A Constitution is a document to tightly restrict the role of government and protect individual rights and freedoms. A Constitution is not a place for inclusion of the preferences of a few citizens on matters of public policy. The fact that the Directive Principles are not justiciable highlights their decorative nature.

Now, these decorative aspects might not have been a problem but for the fact that these are repeatedly used by certain segments of the society to argue that their preferred policy position is part of the Constitution. It is not. These misleading “principles” are best removed. These principles are irrelevant to India’s policy process.

Finally, there is a huge difference between fundamental rights and fundamental duties. A Constitution is designed to regulate the government. It is intended to prevent the government from encroaching individual rights. Citizens are expected to follow the “don’ts” that are legislated (e.g. penal laws). But other than that they are entirely free. There is simply no place in a Constitution for “do’s” for citizens. Let the government mind its own business, as the servant of the people.

On the other hand, a number of new additions are needed (including reinstatement of original fundamental rights). For instance, it is necessary to introduce a Constitutional mandate for state funding elections, since this is such a crucial aspect of how our representative democracy should be organised.

There are many other Constitutional issues that need consideration – as detailed in SBP’s manifesto.

 

Sanjeev Sabhlok

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