Now 1 above refers to a piece of legislation and not a constitutional mandate. It was enacted by the Narasimha Rao government 41 years after the Constitution came into being and without entailing a constitutional amendment. And yet the NCRWC -- meant to review only the working of the nation's Constitution -- picked on that scheme which, by a law of Parliament, permits every MP to spend Rs 20 million every year on public works in his constituency, subject to various terms and conditions under the control of the district magistrates concerned. The law may be defective and in need of reform, but where, pray, does the Constitution of India come into its operation?
Take recommendation 2 above. The term Lok Pal just does not figure in our Constitution. And there's therefore simply no question of it having 'worked' well or otherwise. The Lok Pal Bill on the list of pending parliamentary business is entirely a matter of law, unconcerned with the Constitution. Why did the NCRWC dwell on it at all?
Utterly laughable is the commission's touching concern for those seeking 'lateral entry' into government jobs. Did it believe that the provision for such entry is so critical for the nation as to be added to the lists of reservations already in the Constitution? Or did the NCRWC believe that it was, in fact, an Administration Reforms Commission? This 'key' recommendation from an august body sucks.
Has the existing constitutionally stipulated retirement age for judges adversely affected the Constitution's working? The NCRWC thought so and therefore recommended an enhancement of three years to the existing age. The assumption seems to be that every year beyond 60 years brings wisdom when one thought, in the modern context, that younger judges are the ones who will bring dynamism, energy and speed to the justice delivery system. The NCRWC's composition of 11 members was heavily weighted in favour of the judiciary -- four retired judges and a sitting as well as past attorney general.
Another superfluous recommendation of the commission is one that seems to have been made with an eye to getting media approval for its work as a whole. What's been recommended is that freedom of the press be included in 'freedom of speech and expression' under Article 19 of our Constitution. The commission would thereby seem to have emulated the First Amendment of the US Constitution while overlooking our own Supreme Court's pronouncements on the subject.
In this context, let it noted that despite the specific freedom granted to the American press, 'sting operations' of the kind brazenly perpetrated by Tehelka in March last year are subject to US Supreme Court guidelines that, among others, permit only the Federal Bureau of Investigation to indulge in that activity, which really amounts to 'committing a crime to expose a crime'.
With regard to our own country, several Supreme Court decisions have prompted a noted constitutional commentator, P M Bakshi, to write, 'Freedom of the press is not expressly mentioned in Article 19, but has been held to flow from the general freedom of speech and expression guaranteed to all citizens. As judicially construed, this freedom now includes not merely the freedom to write and publish what the writer considers proper (subject to reasonable restrictions imposed by law for specific purpose), but also the freedom to carry on business so that information may be disseminated and excessive and prohibitive burden restricting circulation may be avoided.' (The Constitution of India, Universal Law Publishing Co Pvt Ltd, Fourth Edition, 2000, pg 39.)
Even with regard to contempt of court -- about which some editors are scared out of their wits -- our apex court has been liberal. Its guidelines suggested in the case of Re Malegaonkar (AIR 1978 SC 72) include:
- Press should be given free play within reasonable limits, even when the focus of its critical attention is the court, and
- Judges should not be hypersensitive, even when distortions and criticism overstep the limits.
Apart from its banal recommendations themselves, an equally disturbing feature of the NCRWC report is Kashyap's accusation (in his article referred to above) that 'the recommendations now forming part of the report went directly counter to the clear decisions of the Commission on which the draft was based'. He also cites therein the criticism by C R Irani -- editor-in-chief of The Statesman and a member of the commission -- of 'voting in the Commission having been resorted to only on the question of foreign-born citizens occupying high public office'. Kashyap himself alleges that while decisions in some matters were taken by the majority, unanimity was insisted upon on other issues.
All in all, the NCRWC was clearly a divided house, which the chairman, M N Venkatachaliah, was unable to unite. And remember, Venkatachaliah was once the country's chief justice when he retired in October 1994.
It is not really shocking therefore that the NCRWC chose to ignore three burning issues that have constantly created controversy in the 52 years that our Constitution has functioned. These issues demanding resolution once and for all are:
