COMPROMISE PACKAGE: Jaitley (left) receives the 1,976 page report with its 276 recommendations from the review commission's chairman M.N. Venkatachalaiah

Two years ago, when the National Commission for the Review of the Working of the Constitution was set up, the then law minister Ram Jethmalani had remarked in an aside, "I hope what it delivers is as big as its name." Last week, when Commission Chairman Chief Justice (retd) M.N. Venkatachalaiah submitted its final report to Law Minister Arun Jaitley, his predecessor's prediction came true only as far as the report's volume was concerned. It came in 1,976 pages, containing 249 recommendations. However, it did not shed much light on the inadequacies, if any, in the 52-year-old Constitution. One of its 11 members, former Lok Sabha Speaker P.A. Sangma, tendered his resignation. Four others-Law Commission Chairman Justice (retd) B.P. Jeevan Reddy, The Statesman's chief editor C.R. Irani, former Lok Sabha secretary-general Subhash C. Kashyap and Sumitra G. Kulkarni-shot off outraged dissenting notes. The commission, arguably, was nearly "hung".

Sangma, who quit the Congress over Sonia Gandhi's nationality, also resigned from the commission over the same issue.

A cursory look at some of the key recommendations of the commission (see box) will show that far from reviewing the working of the Constitution, these are aimed at mere tinkering with its existing provisions. The panel wants to prohibit by law oversized cabinets. The move, though laudable, will surely have its impact on the stability of governments, which the commission wants to ensure. The panel is on an idealist overdrive in recommending changes in the Directive Principles to make sure, among other things, that there is better horticulture, more milk and fish, and more production of organic manures through "vermiculture". It is obvious from the tenor of the commission's recommendations that it was designed to skirt around controversial issues. Yet there was so much dissension. Why?

The Nation: Constitution

SOME RECOMMENDATIONS Extend prohibition against discrimination to issues of "ethnic or social origin". Include freedom of the press in freedom of speech and expression under Article 19. Allow acquisition of individual property by state only for a public purpose. Constitute a National Judicial Commission to appoint judges of the Supreme Court. Bar people charged with any offence punishable by imprisonment of five or more years from contesting parliamentary or assembly elections. Disallow a candidate from contesting elections in more than one constituency. Amend the Tenth Schedule (the anti-defection law) to ban even the splitting of parties now deemed legal. Limit size of cabinet to 10 per cent of the Lower House's strength. Allow "constructive" no-confidence vote, meaning alternative leader should be named before voting takes place. Discontinue the MP Local Area Development scheme. Allow lateral entry into government jobs above joint secretary level. Keep the prime minister out of purview of the Lok Pal. Raise retirement age of high court judges to 65 years from current 62 and Supreme Court judges to 68 from 65 now.

The answer perhaps lies in the commission's very effort to avoid controversies. It was set up amid high hopes in NDA circles that it would mark the introduction of the presidential system. "President Vajpayee" sounded logical after his 1999 poll victory. There was also the hope that it would address some of the BJP's favourite issues, like withdrawing the temporary provisions under Article 370 for the state of Jammu and Kashmir and bringing about, or inching closer to, a uniform civil code (meaning abolition of the Muslim personal laws). In the "secular" camp of the Congress, there was trepidation born of Sangma's inclusion in the committee. He had revolted and quit the party a year earlier on the issue of Congress President Sonia Gandhi's nationality.

It seemed that an "invisible hand" was at work in the commission to disappoint the hopefuls in the BJP and to keep the Congress free from anxiety. On the issue of whether a naturalised Indian citizen (non-Indian-born, read Sonia) could contest elections for high offices, the commission was reportedly divided 6:5, with the slender majority, evidently prompted by Attorney-General of India Soli Sorabjee, resolutely opting for leaving the matter to a "national debate". Even Kashyap, who headed the commission's Drafting and Editorial Committee (DEC), found the wording of the final report on the nationality issue objectionable. The final report says that "the denial of high office solely on account of the fact that the person was not a natural born citizen ... would deprive worthy citizens from occupying these offices". Kashyap wrote: "It implied that the natural born citizens of India are not 'worthy' and only those not born of Indian parentage are worthy."

The commission was also piloted by the non-controversialists past two other submerged boulders: the run-off system of election, which elects only those candidates who obtain 50 per cent plus 1 votes, and the composition of the proposed National Judicial Commission. In the run-off system, if, in the first round, nobody gets over 50 per cent of the vote then there is a run-off contest the very next day or soon thereafter between the two top candidates so that one of the two gets more than half the votes polled.

On the first issue, the DEC's draft found overwhelming support of the commission members. But, as Kashyap writes, it was after the DEC's draft report had been handed over to the commission that some of the decisions arrived at after due deliberation were axed or reversed. For example, the run-off polling decision was referred to the Government and the Election Commission. As far as the composition of the National Judicial Commission is concerned, the draft report said it could have the vice-president of India, the chief justice of India, the two senior-most judges of the Supreme Court and the Union law minister.

However, the final report omits the vice-president and brings in his place "one eminent person nominated by the president". With the presidential nominee presumably being chosen in consultation with the Government, he and the law minister acquire the strength of two in a collegium of five. This defeats the purpose of limiting the power of government to just one, the vice-president being considered as non-partisan. It was an odd compromise worked out between two groups of commission members, one advocating continuation of the present system by which the Supreme Court alone chooses its judges, the other asking for more say of the executive in top-level judicial appointments.

With the report in his hand, Jaitley said with a triumphant smile that "the commission has shut up those who feared that it would destroy the secular character of the Constitution". Perhaps the Congress had the last laugh since the panel's learned members failed to put up a constitutional road block to its leader's ascent to power.