Does the BJP really need a new Constitution?

While in the presidential system, like in the US, the executive faces assessment every two years, in the parliamentary system, the executive is, in principle, held accountable on a daily basis

The Bharatiya Janata Party's (BJP) preference for a new Constitution, favouring a presidential form of government for India, is well-known. Recently, the debate about the "need" to change the Constitution has been revived by the publication of two articles by public intellectuals aligned with the party/government.

The Director of the India Foundation has argued for a presidential system. Another article by a member of the Prime Minister's Economic Advisory Council (which has since distanced itself from his views) argues that established Constitutional truths must be revisited and tested for their efficacy. Seemingly occasioned by the 77th Independence Day of India, they may reflect the internal musings of the ruling dispensation.  

An earlier attempt to review the Indian Constitution was made in 2002 under Prime Minister Atal Bihari Vajpayee. The National Commission to Review the Working of the Constitution was set up under a retired Chief Justice, Justice Venkatachalliah. His brief, however, was not to upend the parliamentary system but to examine how the Constitution could respond to the changing needs of governance within the framework of parliamentary democracy. The commission's recommendations were to be made without interference with the Constitution's "basic structure" or "basic features".

Since then, much water has flown under the Yamuna. No less than a Union law minister and the Chairman of the Rajya Sabha have, in a different context, criticised the "basic structure" doctrine, calling it legal fiction. Prime Minister Narendra Modi himself has suggested that the emphasis on the fundamental rights of citizens has come at the cost of their "fundamental duties". BJP leaders lose no opportunity to criticise the later addition of the adjectives "socialist" and "secular" to the Constitution through the 42nd Constitutional Amendment.

B R Ambedkar's speech introducing the Draft Constitution in the Constituent Assembly made a critical comparison of the (US) presidential and the (British) parliamentary systems. He differentiated the two systems on the basis of three characteristics: the relationship between the executive and the legislature, the trade-off between stability and responsibility, and the periodicity of the executive's assessment.

In the presidential system, the executive is delinked from the legislature – with neither the President nor his ministers (called secretaries) being members of the legislature (comprising the Senate and the House of Representatives in the US). Once elected, the President can choose anyone to join his Cabinet. In the parliamentary system, the prime minister and his ministers must be elected MPs. The Presidential system is weighed in favour of stability as it does not require a legislative majority. In the parliamentary system, the executive is dependent on a majority in parliament, and the system leans towards responsibility to the legislature, which can dismiss the executive if it loses confidence in it. In terms of the periodic assessment of the executive, in the US presidential system, that happens every two years (when one-third of the Senate and every member of the House of Representatives have to face elections). In the parliamentary system, the executive is, in principle, held accountable on a daily basis to the parliament.

However, Prime Minister Narendra Modi has evolved a presidential style of governance within the parliamentary system. In all elections for the Lok Sabha and state legislatures, he campaigns in a presidential mode – seeking votes for himself rather than party programmes. An overwhelming majority in the states governed by his party give him the flexibility to recruit talent directly into his Cabinet by getting them elected to the Upper House from BJP-ruled states. Diplomats like S Jaishankar or Hardeep Singh Puri, entrepreneur Rajeev Chandrasekhar and bureaucrat Ashwini Vaishnaw have been appointed as cabinet ministers in this way. A presidential system will only marginally increase this freedom.

His crushing majority in the Lok Sabha also gives him immense freedom from being responsible to parliament, where his attendance is patchy and he does not field questions. The duration of parliament declined from 45 sittings per session in the first parliament of India to just 19 days per session in Prime Minister Modi's first term (16th Lok Sabha) and is expected to go down to 17 days per session in the current 17th Lok Sabha.

A brute majority allows legislation to be rushed through without discussion or reference to parliamentary committees. In Prime Minister Modi's first term, 133 Bills were passed -- 15 per cent more than in the previous Lok Sabha. But "efficiency" came at a cost -- only about 25 per cent were referred to parliamentary committees compared to 71 per cent in the previous Lok Sabha. More than 80 per cent of the bills were passed without any discussion.

In the recent Monsoon session, of the 22 bills passed -- 20 were passed with less than an hour of discussion. Nine were passed within 20 minutes. The National Nursing and Midwifery Commission Bill and the National Dental Commission Bills were passed together within three minutes, and the Central GST and Integrated GST (Amendment) Bills were passed together within two minutes. Wags may be forgiven for saying that legislation had become like cooking "two-minute noodles".

With MPs unable to hold the government to account, there is no question of a "superior" parliamentary system in India, as conceived by Ambedkar, where the executive was held responsible on a daily basis. The present system favours a populist leader whose enormous legislative majority has enabled the institutionalisation of almost "presidential" executive powers.

A presidential system may, on the other hand, be problematic for the BJP to achieve. A minimum of 51 per cent of the popular vote is needed to win a presidential election. The BJP has only a 37.76 per cent vote share on its own and 45 per cent with the National Democratic Alliance. It is, in fact, the first-past-the-post system of the parliamentary system, which allows Prime Minister Modi to act in a presidential manner with just 37.76 per cent of the votes. The BJP can twist and turn the Constitution as it likes with its brute majority.

Any attempt to bring in a presidential system suddenly will indicate nervousness on the part of the BJP -- an anticipation of defeat. For the present, the discussion may be no more than an attempt to showcase their leader's popularity rather than a definitive step towards a presidential system.