Introduction

  • National Commission to Review the Working of the Constitution-NCRWC set up in 2000.

About National Commission to Review the Working of the Constitution-NCRWC

  • The National Commission to Review the Working of the Constitution was set up by Government Resolution dated 22 February, 2000 under the Chairmanship of Justice M.N. Venkatachaliah.
  • The terms of reference stated that the Commission shall examine, in the light of the experience of the past 50 years, as to how best the Constitution can respond to the changing needs of efficient, smooth and effective system of governance and socio-economic development of modern India within the framework of Parliamentary democracy, and to recommend changes, if any, that are required in the provisions of the Constitution without interfering with its basic structure or features.

    National Commission to Review the Working of the Constitution
    Credit: Firstpost
  • The Commission submitted its report in two volumes to the Government on 31st March, 2002.
  • The Commission felt that article 263 of the Constitution has vast potential and the same has not been fully utilized for resolving various problems concerning more than one State.
  • The Commission observed that where a treaty is entered into by the Union Government concerning a matter in the State List vitally affecting the interests of the States no prior consultation is made with them. The Commission recommended that the forum of Inter-State Council could be very well utilized for discussion of policy matters involving more than one State and arriving at a decision expeditiously.

Political Accomplishments

  • India’s democratic base has stabilized as a working federal With the 73rd and 74th Constitutional amendments, the base of democratic debate has widened.
  • The educational qualifications of the Members of Parliament and State Legislatures have shown marked improvements

Economic Infrastructure–Impressive Performance

Social Infrastructure

  • infant mortality rate have halved
  • Life expectancy at birth has grown up
  • India has put in place an extensive system of Public Health Services and medical network
  • number of primary schools has increased significantly

Political Failures /Economic Failures/Social Failures /Gender Justice and Equality– Failures /Judicial System–Failures

Key Recommendations of National Commission to Review the Working of the Constitution (Mains Purpose)

On Fundamental Rights

  1. The scope of prohibition against discrimination (under Articles 15 and 16) should be extended to include ‘ethnic or social origin, political or other opinion, property or birth’.
  2. The freedom of speech and expression (under Article 19) should be expanded to include explicitly ‘the freedom of the press and other media, the freedom to hold opinions and to seek, receive and impart information and ideas’.
  3. The following should be added as new Fundamental Rights : (a) Right against torture, cruelty and inhuman treatment or punishment. (b) Right to compensation if a person is illegally deprived of his right to life or liberty. (c) Right to leave and to return to India. (d) Right to privacy and family life. (e) Right to rural wage employment for a minimum of 80 days in a year. (f) Right to access to courts and tribunals and speedy justice. (g) Right to equal justice and free legal aid8. (h) Right to care and assistance and protection (in case of children). (i) Right to safe drinking water, prevention of pollution, conservation of ecology and sustainable development.
  4. The right to education (under Article 21-A) should be enlarged to read as : ‘Every child shall have the right to free education until he completes the age of fourteen years; and in the case of girls and members of the SCs and STs until they complete the age of eighteen years’.
  5. Two changes should be made with respect to preventive detention (under Article 22), namely, (i) the maximum period of preventive detention should be six months; and (ii) the advisory board should consist of a chairman and two other members and they should be serving judges of any high court.
  6. Sikhism, Jainism and Buddhism should be treated as religions separate from Hinduism and the provisions grouping them together (under Article 25) should be deleted. At present, the word ‘Hindu’ is defined to include these religions also.
  7. The protection from judicial review afforded by Article 31-B to the Acts and Regulations specified in the Ninth Schedule should be restricted to only those which relate to (i) agrarian reforms, (ii) reservations, and (iii) the implementation of Directive Principles specified in clause (b) or (c) of Article 39.
  8. No suspension of the enforcement of the Fundamental Rights under Articles 17, 23, 24, 25 and 32 in addition to those under Articles 20 and 21 during the operation of a national emergency (under Article 352).

On Right to Property

Article 300-A should be recast as follows:

  1. Deprivation or acquisition of property shall be by authority of law and only for a public purpose.
  2. There shall be no arbitrary deprivation or acquisition of property.
  3. No deprivation or acquisition of agricultural, forest and non-urban homestead land belonging to or customarily used by the SCs and STs shall take place except by authority of law which provides for suitable rehabilitation scheme before taking possession of such land. In brief, a right to ‘suitable rehabilitation’ for the SCs and STs if their land is to be acquired.

On Directive Principles

  1. The heading of Part-IV of the Constitution should be amended to read as ‘Directive Principles of State Policy and Action’.
  2. A new Directive Principle on control of population should be added.
  3. An independent National Education Commission should be set-up every five years.
  4. An Inter-Faith Commission should be established to promote inter-religious harmony and social solidarity.
  5. There must be a body of high status to review the level of implementation of the Directive Principles.
  6. A strategic Plan of Action should be initiated to create a large number of employment opportunities in five years.
  7. Implementation of the recommendations contained in the Report of the National Statistical Commission (2001).

On Fundamental Duties

  1. Consideration should be given to the ways and means by which Fundamental Duties could be popularized and made effective.
  2. The recommendations of the Justice Verma Committee on operationalization of Fundamental Duties should be implemented at the earliest9.
  3. The following new fundamental duties should be included in Article 51-A: (a) Duty to vote at elections, actively participate in the democratic process of governance and to pay taxes. (b) To foster a spirit of family values and responsible parenthood in the matter of education, physical and moral well-being of children. (c) Duty of industrial organizations to provide education to children of their employees.

On Parliament and State Legislatures

  1. The privileges of legislators should be defined and delimited for the free and independent functioning of Parliament and state legislatures.
  2. Article 105 may be amended to clarify that the immunity enjoyed by members under parliamentary privileges does not cover corrupt acts committed by them in connection with their duties in the House or otherwise. Further, no court would take cognizance of any offence arising out of a member’s action in the House without prior sanction of the Speaker / Chairman. Article 194 may also be similarly amended in relation to the members of state legislatures.
  3. The domiciliary requirement for eligibility to contest elections to Rajya Sabha from the concerned state should be maintained. This is essential to ensure the federal character of the Rajya Sabha.
  4. The MP local area development scheme should be discontinued.
  5. The Election Commission should be empowered to identify and declare the various offices under the central and state governments to be ‘offices of profit’ for the purposes of being chosen, and for being, a member of the appropriate legislature.
  6. Immediate steps be taken to set up a Nodal Standing Committee on National Economy.
  7. A Standing Constitution Committee of the two Houses of Parliament for a priori scrutiny of constitutional amendment proposals should be set up.
  8. A new Legislation Committee of Parliament to oversee and coordinate legislative planning should be constituted.
  9. The existing Parliamentary Committees on Estimates, Public Undertakings and Subordinate Legislation may not be continued.
  10. The Parliamentarians must voluntarily place themselves open to public scrutiny through a parliamentary ombudsman.
  11. The State Legislatures with less than 70 members should meet for at least 50 days in a year and other State Legislatures for at least 90 days. Similarly, the minimum number of days for sittings of Rajya Sabha and Lok Sabha should be fixed at 100 and 120 days respectively.
  12. A Study Group outside Parliament for study of procedural reforms should be set up.

On Executive and Administration

  1. In case of hung Parliament, the Lok Sabha may elect the leader of the House. He may then be appointed as the prime minister by the president. The same procedure could be followed at the state level also.
  2. A motion of no-confidence against a prime minister must be accompanied by a proposal of alternative leader to be voted simultaneously. This is called as the ‘system of constructive vote of no confidence’.
  3. For a motion of no-confidence to be brought out against the government, at least 20 per cent of the total number of members of the House should give notice.
  4. The practice of having oversized Council of Ministers should be prohibited by law. A ceiling on the number of Ministers in any State or the Union government be fixed at the maximum of 10 per cent of the total strength of the popular house of the legislature.
  5. The practice of creating a number of political offices with the position, perks and privileges of a minister should be discouraged. Their number should be limited to 2 per cent of the total strength of the lower house.
  6. The Constitution should provide for appointment of Lokpal keeping the prime minister outside its purview and the institution of lokayuktas in the states.
  7. Lateral entry into government jobs above joint secretary level should be allowed.
  8. Article 311 should be amended to ensure not only protection to the honest public servants but penalisation to dishonest ones.
  9. The questions of personnel policy including placements, promotions, transfers and fast-track advancements should be managed by autonomous Civil Service Boards constituted under statutory provisions.
  10. Officials, before starting their career, in addition to the taking of an oath of loyalty to the Constitution, should swear to abide by the principles of good governance.
  11. Right to information should be guaranteed and the traditional insistence on secrecy should be discarded. In fact, there should be an oath of transparency in place of an oath of secrecy.
  12. Public Interest Disclosure Acts (which are popularly called the Whistle-blower Acts) may be enacted to fight corruption and mal-administration.
  13. A law should be enacted to provide for forfeiture of benami property of corrupt public servants as well as non-public servants.

On Centre-State and Inter-State Relations

  1. The Inter-State Council Order of 1990 may clearly specify the matters that should form the parts of consultations.
  2. Management of disasters and emergencies (both natural and manmade) should be included in the List III (Concurrent List) of the Seventh Schedule.
  3. A statutory body called the Inter-State Trade and Commerce Commission should be established.
  4. The president should appoint the governor of a state only after consultation with the chief minister of that state.
  5. Article 356 should not be deleted, but it must be used sparingly and only as a remedy of the last resort.
  6. 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. The Governor should not be allowed to dismiss the ministry, so long as it enjoys the confidence of the House.
  7. Even without the state being under a proclamation of emergency, President’s Rule may be continued if elections cannot be held. Article 356 should be amended to this effect.
  8. The State Assembly should not be dissolved before the proclamation issued under Article 356 has been laid before Parliament. Article 356 should be amended to ensure this.
  9. 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.
  10. Parliament should replace the River Boards Act of 1956 with another comprehensive enactment after consultation with all the states.
  11. When the state bill is reserved for consideration of the President, there should be a time-limit (say of three months) within which the President should take a decision whether to give his assent or to return the bill.

On Judiciary

  1. A National Judicial Commission under the Constitution should be established to recommend the appointment of judges of the Supreme Court. It should comprise the chief justice of India (as chairman), two senior most Judges of the Supreme Court, the Union law minister and one person nominated by the president.
  2. A committee of the National Judicial Commission should examine complaints of deviant behaviour of the Supreme Court and high court judges.
  3. The retirement age of the judges of high courts and Supreme Court should be increased to 65 and 68 respectively.
  4. No court other than the Supreme Court and the High Courts should have the power to punish for contempt of itself.
  5. Except 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.
  6. A National Judicial Council and Judicial Councils in States should be set up for the preparation of plans and annual budget proposals.
  7. In the Supreme Court and the High Courts, judgements should ordinarily be delivered within 90 days from the conclusion of the case.
  8. An award of exemplary costs should be given in appropriate cases of abuse of process of law.
  9. Each High Court should prepare a strategic plan for time-bound clearance of arrears in courts within its jurisdiction. No case to remain pending for more than one year.
  10. The system of plea-bargaining should be introduced as part of the process of decriminalization.
  11. The hierarchy of the subordinate courts in the country should be brought down to a two-tier of subordinate judiciary under the High Court.

On Pace of Socio-Economic Change and Development

  1. 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.
  2. 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.
  3. Appropriate new institutions should be established to ensure that the resources earmarked for the weaker sections are optimally used.
  4. 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.
  5. 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 adjudicate upon all disputes pertaining to reservation.
  6. Residential schools for SCs, STs and BCs should be established in every district in the country.
  7. 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.
  8. Special courts exclusively to try offences under the SCs and STs (Prevention of Atrocities) Act, 1989, should be established.
  9. Prevention of untouchability requires, inter alia, effective punitive action under the Protection of Civil Rights Act, 1955.
  10. The Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993, should be strictly enforced.
  11. Steps should be taken for improvement of educational standards as well as for increasing the political representation of the minority communities.
  12. 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.
  13. As regards women, action covering reservation, development, empowerment, health and protection against violence should be taken.

On Decentralisation (Panchayats and Municipalities)

  1. The Eleventh and Twelfth Schedules of the Constitution should be restructured in a manner that creates a separate fiscal domain for panchayats and municipalities.
  2. State panchayat council should be established under the chairmanship of the chief minister.
  3. Panchayats and Municipalities should be categorically declared to be ‘institutions of selfgovernment’ and exclusive functions be assigned to them. For this purpose, Articles 243-G and 243-W should be suitably amended.
  4. The Election Commission of India should have the power to issue directions to the State Election Commission for the discharge of its functions. The State Election Commission should submit its annual or special reports to the Election Commission of India and to the Governor. This requires the amendment of Articles 243-K and 243-ZA.
  5. 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.
  6. 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 standards for Panchayats.
  7. Whenever a Municipality is superseded, a report stating the grounds for such dissolution should be placed before the State Legislature.
  8. All provisions regarding qualifications and disqualifications for elections to local authorities should be consolidated in a single law.
  9. The functions of delimitation, reservation and rotation of seats should be vested in a Delimitation Commission and not in the State Election Commission.
  10. The concept of a distinct and separate tax domain for municipalities should be recognized.

On Institutions in North East India

  1. Efforts are to be made to give all the States in this region the opportunities provided under the 73rd and 74th Constitutional Amendments. However, this should be done with due regard to the unique political traditions of the region.
  2. The subjects given under the Sixth Schedule and those mentioned in the Eleventh Schedule could be entrusted to the Autonomous District Councils (ADCs).
  3. Traditional forms of governance should be associated with self-governance because of the present dissatisfaction.
  4. A National Immigration Council should be set up to examine a range of issues including review of the Citizenship Act, the Illegal Migrants Determination by Tribunal Act, the Foreigners Act and so on.
  5. As regards Nagaland, the Naga Councils should be replaced by elected representatives of various Naga society groups with an intermediary tier at the district level.
  6. As regards Assam, the Sixth Schedule should be extended to the Bodoland Autonomous Council and other Autonomous Councils be upgraded to Autonomous Development Councils.
  7. As regards Meghalaya, a tier of village governance should be created for a village or a group of villages in the Autonomous District Councils.
  8. As regards Tripura, the changes which may be made in respect of other Autonomous Councils should also apply in respect of the Autonomous District Councils.
  9. As regards Mizoram, an intermediary elected tier should be developed at the district level in areas not covered by the Sixth Schedule.
  10. As regards Manipur, the provisions of the Sixth Schedule should be extended to hill districts of the State.

On Electoral Processes

  1. Any person charged with any offence punishable with imprisonment for a maximum term of five years or more, should be disqualified for being chosen as or for being a member of Parliament or Legislature of a State.
  2. Any person convicted for any heinous crime like murder, rape, smuggling, dacoity, etc., should be permanently debarred from contesting for any political office.
  3. Criminal cases against politicians pending before Courts either for trial or in appeal must be disposed of speedily, if necessary, by appointing Special Courts.
  4. The election petitions should also be decided by special courts. In the alternative, special election benches may be constituted in the High Courts and earmarked exclusively for the disposal of election petitions and election disputes.
  5. Any system of State funding of elections bears a close nexus to the regulation of working of political parties by law and to the creation of a foolproof mechanism under law with a view to implementing the financial limits strictly. Therefore, proposals for State funding should be deferred till these regulatory mechanisms are firmly in position.
  6. Candidates should not be allowed to contest election simultaneously for the same office from more than one constituency.
  7. The election code of conduct should be given the sanctity of law and its violation should attract penal action.
  8. The Commission while recognizing the beneficial potential of the system of run off contest electing the representative winning on the basis of 50 per cent plus one vote polled, as against the present first-past-the-post system, for a more representative democracy, recommends that the Government and the Election Commission of India should examine this issue of prescribing a minimum of 50 per cent plus one vote for election in all its aspects.
  9. An independent candidate who loses election three times consecutively should be permanently debarred from contesting election to the same office.
  10. The minimum number of valid votes polled should be increased to 25 per cent from the current 16.67 per cent as a condition for the deposit not being forfeited.
  11. The issue of eligibility of non-Indian born citizens or those whose parents or grandparents 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 dialogue10.
  12. The Chief Election Commissioner and the other Election Commissioners should be appointed on the recommendation of a body consisting of the Prime Minister, Leader of the Opposition in the Lok Sabha, Leader of the Opposition in the Rajya Sabha, the Speaker of the Lok Sabha and the Deputy Chairman of the Rajya Sabha. Similar procedure should be adopted in the case of appointment of State Election Commissioners.

On Political Parties

  1. A comprehensive law regulating the registration and functioning of political parties or alliances of parties should be made. The proposed law should –- (a) provide that political party or alliance should keep its doors open to all citizens irrespective of any distinctions of caste, community or the like. (b) make it compulsory for the parties to maintain accounts of the receipt of funds and expenditure in a systematic and regular way. (c) make it compulsory for the political parties requiring their candidates to declare their assets and liabilities at the time of filing their nomination. (d) provide that no political party should provide ticket to a candidate if he was convicted by any court for any criminal offence or if the courts have framed criminal charges against him. (e) specifically provide that if any party violates the above provision, the candidate involved should be liable to be disqualified and the party deregistered and derecognized.
  2. The Election Commission should progressively increase the threshold criterion for eligibility for recognition so that the proliferation of smaller political parties is discouraged.
  3. A comprehensive legislation providing for regulation of contributions to the political parties and towards election expenses should be enacted by consolidating such laws. This new law should: (a) aim at bringing transparency into political funding; (b) permit corporate donations within higher prescribed limits; (c) make donations up to a specified limit tax exempt; (d) make both donors and donees of political funds accountable; (e) provide that audited political party accounts should be published yearly; and (f) provide for de-recognition of the party and enforcement of penalties for filing false election returns.

On Anti-Defection Law

The provisions of the Tenth Schedule of the Constitution should be amended to provide the following:

  1. 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.
  2. 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.
  3. The vote cast by a defector to topple a government should be treated as invalid.
  4. 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.

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