Legal perspective

Legal perspective
Krishan Mahajan

Another review, another farce?
Is the Constitution review committee a post office or a think tank? The press and television interviews of its chairman, M. N. Venkatchaliah, indicate that it is more of a post office. After talking of national introspection and a vast array of global issues, he has declared that ``the Commission's work is essentially an academic exercise to collect and collate the views of the civil society with the political society''. It means that the Commission will be a collecting agency of views which it will submit to the ruling party in power.

The question it raises is not only whether you need high profile judges and lawyers for such a collection but also whether such persons are the most competent ones for this job. In any event no Commission is needed to dwell on the failure of the constitutional goals since such failure in every major field is already documented.

If the Commission wants to inform itself what the nation's citizenry already knows, then should the nationbe made to pay for its education? In that sense, the Commission mocks at the plight of the suffering citizen who, like the politician, does not need to be told about the fifty-year history of exploitation. Yet it is this very politician that the Commission seeks to inform.

This erodes the Commission's image at its inception itself. The Commission's image is already severely dented for five reasons. First, limiting its composition initially to judges and lawyers is a trivialisation of the concept that a Constitution is a socio-political statement translated in-to law and not the other way round. Secondly, after the Commission's chai-rman had rejected outright the idea of including politici-ans, one has been included as a token of the downtrodden and part of the ruling party's package for the Northeast.

Thirdly, many of the proposed names for its membership are lawyers who have dedicated their lives to arguing successfully in the apex court for the death of directive principles and for getting the powerfuloff the hook.

Fourth, the office of the Commission is already seen as a political patronage for certain judges with a message for the future of the apex court judiciary, whose members in the past have resigned for contesting elections, competed for commissions, tribunals, councils, Rajya Sabha memberships and governorships. This is seen as the official counter-temptation to what some retired judges are doing under the labels of arbitration, consultation and opinions. Fif-thly, by co-opting the attorney-general, the independence of this constitutional office has been put in question.

This brings out the most co-nstructive work that such a Commission can do by having reverence for the truth. It can for the first time document how through the refusal to apply directive principles in the interpretation of tax and revenue laws and continuing with the pre-Independence British model of interpretation, the highest judiciary has deprived ``we the people'' of their due benefits; how in its fifty-year history ithas negated the most elementary life saving remedy of habeas corpus at critical times; how secrecy and contempt of court have made it the most unaccountable institution; how contempt power has mysteriously failed to ensure actual compliance against the powerful and why it is the only national institution that has held that truth is no defence to contempt of court and whose appointments and transfers know no publicly justifiable criteria.

The increasing socialisation of judges with certain lawyers in the name of legal associations, the stranglehold of a caucus on the legal business, the accountability of judges who have headed legal aid without making it into an effective tool for the delivery even of rights spelt out by the court's judgments and the manner in which high court chief justices have escaped public accountability for their respective district courts and legal aid all this could form a pioneering chapter of national enlightenment.

From Antulay to Jagannath Mis-hra, from JMM bribery casejudgment to hawala and from Mayawati to Sa-tish Sharma, it is the saga of the apex court's conceptual flight when faced with political corruption. From Ramaswamy to the Code of Ethics for Judges, it is the story of the judiciary's internal crisis. The Commission can make a difference in the subject its members know best - the courts. But unlike the secrecy prevails in the national judiciary, will the Commission hold its proceedings in public or go the Union Carbide and Hawala way of holding certain hearings of the apex court behind closed doors?