Constitutional Creativity
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By Mr. N. N. Panicker
1. Prayer : The following is an humble offering of thoughts on the framework for a natural polity. Not a single word of it is final. It is only the raw milk produced from decades of grazing in the fields of technological innovation, social experimentation, worldwide life experiences and thought experiments in creativity. Fulfilment will be in the grace (prasadam) received during the worship with other devotees dedicated to the pursuit of the ideal.
2. Faith : Human misery can be alleviated and wellbeing achieved by applying human creativity in solving the problems and producing conditions for prosperity and harmony. The constitution that governs the socio-political organisation has a role to play in it.
How we act and interact with others depends on the environment around us, the expectations from us, the rules imposed on us, the way other people conduct themselves and the ideals we share with others. The framework within which we are placed is therefore important in deciding how we act on our own and respond to others. Such a framework is the constitution, which is the set of rules, principles and procedures for our country and community.
Within a defined framework and with a focus on an objective, creativity itself will flourish and express in useful, effective and efficient ways. Constitutional creativity is associated with the development of a legal framework for the country and the community. Here the objective has to be very clear. The immediate objective is to develop a constitutional framework within which every entity ranging from individuals to communities and states will have sovereign self-rule or Swaraj. The ultimate objective is to establish and maintain a natural society where the individuals freely pursue their lives complementarily and harmoniously with others, attaining maximum synergy and minimum conflicts.
We are all widely different in our interests and capabilities. We are at different stages of the evolutionary journey of life towards perfection. All are entitled to have their physical needs and genuine aspirations satisfied in harmony with the rest of the world. A utopian ideal of uniformity and synchronicity is not natural.
Creativity expresses itself both while fitting within the framework and in bending it to suit our needs and even breaking and reconstructing it with the objective of meeting the emerging needs. In fact, paradigm changes are the signs of a creative upsurge. Therefore, the highest creativity should result in a constitution that establishes new paths and constructs a new framework for societal organisation.
The new paradigm should be universally applicable to all societies and should be sustainable at all times. This is important in the modern context of dualities like the break-up of nations such as the Soviet Union and the coming together of nations such as in Western Europe as well as the threatened disintegration of countries like Indonesia and aggressive nationalism in countries like the United States. The globalisation juggernaut is threatening to crush the economic sovereignty of a multitude of nations and they would be seeking ways to assert their rights through internal reorganisation and constitutional shields to sustain themselves. The re-assertion of regional aspirations evident in countries like India would also call for timely constitutional changes to ensure contentment and stability at the base of the national pyramid. This would require total self-rule in complementary relationships with neighbouring entities starting from the family. India today is eminently situated to develop the new paradigm and set an example for others.
3. Options : In searching for ways to solve our problems and ameliorate our conditions, we find that creativity applied to our constitution can be of help. It can be done in two ways. One is in interpreting and using the present constitution creatively, as has been done a few times recently in India. It has been hard and expensive to labour under a constitutional handicap. Nevertheless, the creative use of the existing constitution is an option to be used under any constitution.
The other way is to apply creativity in reforming the constitution through amendments or even creating an entirely new alternative. To create a totally new constitution would be practically very difficult as it may involve calling together a constituent assembly and opening up a Pandora's Box. More creative methods do exist to achieve all our needs. With the application of creativity, basic changes can be effected smoothly. For this, there has to be the Will. Leadership creativity is necessary to develop the national will.
In producing an improved constitution, attention can be given to basic changes that would make it universally acceptable and permanently sustainable. The options are summarised below. The boldface options indicate a possible route to arrive at a reformed constitution. With adequate creativity, it can even lead to a cosmic constitution:
WAYS TO SOLVE PROBLEMS OF THE POLITY
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CONSTITUTIONAL CREATIVITY OTHER CREATIVE SOLUTIONS
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USING CREATIVELY CREATING ANEW
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AMENDMENTS ALTERNATIVE
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SUPERFICIAL BASIC
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SHORT-TERM LONG-TERM
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REGIONAL UNIVERSAL
4. Basic Requirements of a Constitution : The basic requirement for this creative exercise is an understanding of the real needs and values of the people and the identification of a new system of orga:pisation of living in the community and the country. Modern technology and enlightenment allow empowerment of people and maximisation of their freedom and wellbeing. The framework provided by the constitution should enable the progressive evolution of the society consistent with it. It requires more flexibility in the links to allow the evolutionary pushes and pulls instead of authoritarian means to preserve the unnatural establishment. Self-rule of the sovereign people who are empowered with enlightenment and liberation, is the ideal of the future. The constitution should not hamper that natural development, but should permit and promote it. The creative challenge is to come up with such a constitution. The test of goodness given by the talisman of Mahatma Gandhi is a pointer:
"I will give you a talisman, whenever you are in doubt, or when the self becomes too much with you, apply the following test. Recall a weakest man whom you may have seen, and ask yourself if the step you contemplate is going to be of any use to him. Will he gain anything by it? Will it restore him to a control over his own life and destiny? In other words, will it lead to 'swaraj' for the hungry and spiritually starving millions?
Then you will find your doubts melting away." - Mahatma Gandhi.
August 1947. Collected Works. vol. 89. p. 125.
The constitution for a natural polity will have a few fundamental features that would make it sustainable and progressive:
4.1 A constitution should be a document of consensus as all have to swear by it : It is a framework for smooth functioning: therefore, it should incorporate the greatest common denominator of values and aspirations. Others are best taken care of at the appropriate levels and occasions. For example, preference for religion or ideology is better left out.
4.2 It should be natural to the people in order to be sustainable : The constitutional reasoning should agree with the natural temperament of the people, as Marcus Tullius Cicero (106-43 B. C.) said in his De Republica :
"The law is right reason in agreement with nature; it is of universal application, unchanging and everlasting; it summons to duty by its commands, and averts from wrongdoing by its prohibitions...It is wrong to alter this law or to repeal any part of it, and it is impossible to abolish it completely. Neither Senate nor people can free us from its obligations...It does not ordain different laws for Rome and Athens, for now and in the future, but one etemallaw and unchangeable law validfor all nations."
4.3 The constitution should preserve the natural law for harmonious living that exists in the family and extend it to society : As with the family, the community also should be free from unnecessary interferences, Acharya Vinoba Bhave (1895-1982) stated in his Swaraji Sastra;
"The state exists merely to apply to the whole of society the economic principle which is found everywhere to a greater or less extent in the family."
The constitution should not be an instrument of coercion to impose alien systems on the society.
4.4 The constitution should not be a hindrance to progress : It should not stand in the way of the citizens and communities asserting their freedom of choice for living style as long as it does not hinder similar rights of others. The absolute minimum and the most essential function of government is to ensure this harmless freedom of choice and pursuit, without exploitation of others.
4.5 It should be flexible : This is to accommodate the diversity of interests and values of people, which arise from their different stages of evolution. Only a flexible linkage can permanently sustain the organisation of an evolving community of diversity such as India to achieve synergy and harmony.
4.6 The constitution should be progressive : A progressive constitution would facilitate the social push and pull that would speed up and smoothen the progressive evolution of individuals and communities.
4.7 It should accommodate ultimate goals and means : A modern constitution would fully facilitate people's self-empowerment, self-liberation and self-realisation, made possible through the accumulated knowledge and skills as well as modern technology and communication.
5. Practical Approach to a Natural Polity : A comprehensive and integral vision of a natural polity is the prerequisite for preparing the framework for it. The basic unit for a natural polity is the family. From the grassroots the political and social organisation would be built up to the national and global levels. All that can be handled at the local level would be exercised there. The rest would be left for co-operation at the next appropriate level. It is only the residual functions that would reside in the state.
At the grassroots level where most of the power for basic issues resides, it would be a faceto-face society. Executives and representatives would be selected and elected unanimously or by consensus for limited terms. These representatives would elect the executives and representatives at the next level, whom they would know through working together. The elections thus would be inexpensive and foolproof against large-scale manipulations.
We should develop such a natural polity and set a model for the rest of the world. We should not waste our efforts in struggling to prevent the breakdown and abuse of an inherited alien system and waste our creativity for piecemeal reforms.
6. Cosmic Constitution : A framework for community living that would be applicable at all times and places is a cosmic constitution. It would include basic principles and procedures that remain unchanged. But the details of procedures and time of application would vary according to the stage of evolution of the community.
The universally perceived need for constitutional changes makes this the right time for attempting such a mission. Of all the countries, India needs and deserves it the most. Half a century of experience makes us fully aware of the capabilities and pitfalls of the present system. Serious thinking and discussions by Mahatma Gandhi and other leaders in the decades before independence have brought out the basic issues and constitutional alternatives. Since then, the modern trends of empowerment through technology and communication have become very evident. These have made it possible for individuals and communities to be self-reliant to pursue their objectives efficiently.
The need for liberalisation is universally recognised. The protection of the environment and sustenance of the globe are considered possible only through decentralised and enlightened communities with self-governing sovereignty. Such a framework can be developed for every nation or community in the world. The objectives of a universal or cosmic constitution would be the following:
6.1 Ensure freedom of the individuals and entities formed by them or their groups, such as families and self-governing communities : The freedom would be for functioning in such a way as to enable them to pursue their natural role and mission in life harmoniously and complementarily with others. The constitutional framework should prevent hindrance and enable protection. The basis is the consensus that everyone is entitled to this freedom as a fundamental right and everyone has a responsibility to honour others' rights for the same.
6.2 Facilitate progressive and proactive development of individuals and communities including nations by enhancing their empowennent : The constitutional framework should enable and facilitate co-operative effort for this purpose. This would include establishment or facilitation for the establishment of institutions for empowerment including schools and training centres, research and development missions, production and service enterprises as well as rest and relaxation resorts. The basis for this function is the understanding that concerted and cooperative effort is required to speed up the evolution and that the development of empowerment is proactively required to sustain freedom to pursue one's life objective.
6.3 Remedy basic problems arising from alienation : The constitutional framework should help in avoiding distractions that lead to imitation, control by others either directly through expectation, exhortation and exploitation or indirectly through mental conditioning and peer pressure. Provisions should also be made for the correction of existing problems of alienation, colonisation and exploitation. It should restore the conditions to the natural balance such that prevention of alienation would be made possible through self-realisation and living with joy, goodwill to all and total energy and dedication.
7. Electoral Refouns: A Piecemeal Approach : Any piecemeal reform cannot effect a paradigm change that is required for a total transformation of the present system to make it fair and free for all. The solution can be universal and sustainable only if the problems are identified with a total and integrated perspective. Otherwise, the solution would have serious deficiencies and may even worsen the condition.
An example of a piecemeal approach is the 15th National Law Commission Report for Electoral Reforms submitted in July 1999. For the problems identified, the Commission came up with a set of recommendations that is bold and sharp. The problems identified for solution were the following:
1. Too frequent elections
2. Too many political parties (40. even 140 at state level)
3. No democracy in political parties and no accounting of funds
4. Defections
5. Criminals in parliament (as many as 50 MPs with criminal background)
6. Money and muscle power in elections
7. Even 15% vote is sufficient to win
The reforms proposed by the Commission include the following :
1. Registration of political parties, with the Election Commission monitoring compliance of provisions such as internal democracy and accounting of funds
2. Pre-election alliance treated as one party. Defection after election disqualifies members and component parties.
3. No entry into parliament to parties with less than 5% of total vote cast in the country
4. No independents allowed to contest
5. Parties issue whips only on rare occasions such as unseating of government
6. Prevent candidature of people convicted or charge-sheeted of serious crimes
7. Pro forma statements submitted before election should include criminal background and wealth.
8. Quick disposal of election petitions
9. Most severe punishments for violations
10. List systems where parties will submit before election a priority list of additional candidates to be selected from a pool created by a 25% increase in parliament strength and selected in proportion to the vote polled by the party.
11. Positive no-confidence, where a government in power can be voted out only after an alternative leader is voted in
12. To ensure at least 51 % vote polled for the winner, a runoff election is recommended if necessary
13. Option to voters for casting negative votes to undesirable candidates
The Commission hopes that these recommendations will be enforced to ensure a stability and integrity after the next election, i.e. the 14th General Election of India.
Some of the recommendations of the Commission are timely. Prevention of criminals from contesting elections and insistence of internal party democracy are necessary for justice and credibility of the system. These reforms are necessary to prevent the breakdown of the present system of parliamentary democracy.
It is clear that stability can be achieved through such a reform. But this is done at what price? In some of the recommendations, the options available to the citizens are reduced. Established parties are accorded the exclusive rights to play the game and people become subservient. Those who can control parties have an easier time to dominate without challenge. Change becomes difficult and creativity is curtailed.
The following objections to some of the recommendations of the report are to be answered:
1. It is reactive, not proactive, Instead of preventing the disease it cures the symptoms.
2. It is reactionary, not radical, It meets a perceived threat to the existing system; but does not reform the inherent injustice of the system.
3. It is conservative, not progressive. It tries to preserve and maintain the Westminster style of parliamentary democracy imposed on India.
4. It is centralising power, not disseminating it The centralisation and accumulation of power is the root cause of corruption in the system.
5. It is authoritarian, not democratic. Instead of facilitating a free and fair election to reflect the will of the people, the Election Commission is empowered to limit their options and even nullify their will.
These proposals tend to sacrifice the will of the people at the altar of the stability of the established system. These changes tend to deteriorate even further the level of self-rule and options provided to the citizens in the past. All this is due to the limited scope of the reforms and the problems they addressed to solve, within the constraints of the existing system. On the other hand, a participatory democracy built up from the grassroots with appropriate election procedures would have solved most of the problems. The creative changes consistent with the nature of the people, the trends of the time and the available means would enhance Swaraj, self-rule with self-restraint.
8. Dedication : The above images of perception are dedicated for immersion into the stream of thoughts flowing through generations for the reestablishment of a natural polity. The hope is that continued churning would result in the emergence of the panacea that humanity has been aspiring for.
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Author : Mr. N. N. Panicker is an Eminent Scholar Associated with Tatsat, Thiruvananthapuram, Kerala
Article Source : Anuvibha Reporter ( Special Issue : Dec. 2000 )
Ahimsa, Peacemaking, Conflict Prevention and Management Proceedings and Presentations
Fourth International Conference on Peace and Nonviolent Action ( IV ICPNA )
New Delhi : Nov. 10-14, 1999
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Mail to : Ahimsa Foundation
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