Faultlines of Indian constitution: An advocacy for two-party democracy

Every few days, politicians in the opposition camp keep on repeating a single line, akin to that of a broken record – Democracy is in danger and it is an emergency-like situation. An authoritarian government is running the show in New Delhi. It is an understandable fact that any political party that is in opposition similarly attacks the Government. However, I am not sure about the sincerity of such statements from experienced politicians, well aware of the Constitution. I am sure that a significant portion of citizens/booth-level political workers throw these statements without even knowing the nitty-gritty of the subject. 

I am not a constitutional expert but as far as I have understood the Constitution of India, there are several fault lines which can be exploited to turn down the Democratic system and basic assured rights of citizens overnight (as happened in 1975) and convert it into an authoritarian regime.

In 1975, a suspension of fundamental rights (Article 19) was interpreted because Article 359, was read with Article 358 –which merely states that nothing in Article 19 will restrict the power of the State to make any law. The purpose of Articles 352, 358 and 359 is to protect the security of India, especially from war or external aggression.

The question remains whether the frightening scenario can ever be repeated in India, as was done by late Mrs Indira Gandhi in June 1975. The Constitution is very strong and one of the immutable parts of the Constitution, the Preamble, defines India as a 'Sovereign Socialist Secular Democratic Republic'. But is the Preamble immutable? Prior to the forty-second Amendment of the Constitution in 1976, the wording was 'Sovereign, Democratic and Republic'. 

During the Emergency, the words 'Socialist' and 'Secular' were added. If the Preamble is a part of the basic feature of the Constitution, how could it be amended? The fact that it was, and that it has not been challenged, raises doubts about whether other features of the Constitution can similarly be amended.
 
Let us examine other hypothetical crises to find fault lines of the system, which can be exploited:

Let us assume a situation in the Indian Parliament where all 543 elected MPs are independent. Our individualism and regionalism have gone so far that we are solely concerned about our sub-nationalism. 

Let us assume there is no coalition and all 272 individual MPs subscribe to individual identity politics. What would be the condition of the Republic of India? How would it function as a union?

As there is no majority government, the President can dissolve the House (parliament). As per the constitution, as there is no working Prime Minister, the President of India does not require any advice from the Prime Minister for dissolving the house. Under these circumstances, because Parliament has to meet within six months of its last session under Article 85 of the Constitution, the dissolution of the House has to be followed by an election within the next six months.

During this interval, the President is bound to call upon a person to be Prime Minister, albeit a caretaker Prime Minister, because the Constitution does not permit the imposition of the President’s rule at the level of the Union. 

Suppose the President invites a person who is not a politician - say, the Chief of Army Staff or anyone else whom the President trusts and who would give the President the advice that he desires. Because Parliament would not be in session, Article 123 would give the President the power to promulgate ordinances which would have the power of an Act. 

Article 368 provides the powers of Parliament on this behalf to the President for the amendment of the Constitution. The question is whether, by ordinance, the President can exercise the power of Parliament to amend the Constitution. 

Articles 123 and 368 nowhere categorically state that the Constitution cannot be amended by an ordinance and the legislative powers of the President do not extend to legislating for amendment of the Constitution.
 
This is a lacuna which needs to be studied and if the constitutional experts feel that there is a loophole here, it needs to be plugged. I believe that such situations may arise in India in future. It will arise when we may get individualized by our pity identity politics in our multiparty democracy model that not even a coalition government can be formed. T

o avoid any such threat to democracy and to secure the constitutional ethos intact, it appears a prudent decision to shift to the ‘Two Party’ democracy model for the Union of India. However, it may sound absurd at this point, considering this too, requires several constitutional amendments. But, for the greater good of our future generations, for the security of national integrity and for the protection of democratic ethos – a two-party democracy model should be opted.  

(Disclaimer: The views of the writer do not represent the views of WION or ZMCL. Nor does WION or ZMCL endorse the views of the writer)

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