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A MODEL OF NEW

CONSTITUTION FOR INDIA

(BHARAT)

 

TWO WORDS FROM THE AUTHOR: -

 

Being author of the Book, I want to place my point of issue in three parts. Under the first part the word challenge does not express a good indication. But, in view of my severe experience, of non-recognision, I choose this word, so truth shall prevail.    

 

ACCEPT A CHALLENGE TO GET AWARD OF Rs.5, 00,000/-

 

In considerations of the importance of the issue, this may be curiosity of every one whether I may have competency to innovate A MODEL OF NEW CONSTITUTION FOR INDIA, which can fulfill the aspirations and requirement of the people and the nation for long terms. In this context, one may want to know about me, before decides to participate in the debate. This is not wise for me to answer the question myself. This may be appropriate that readers of the Book should judge this aspect themselves. Therefore, in the larger interests of the truth I have decided to place this challenge on record.

 

The people from Hindi Belt might have read my articles in one of the Hindi Newspaper from their local area. To make straight link with the above curiosity I would like to calls one and all that can prove that the following changes in statutes are not based on the original innovation made and placed by me, because, I wants to say that following changes are obtained by the authorities from my suggestions. If any authority or individual wants to challenge it, he is invited. I, hereby commit to pay Rs.5, 00,000/-, upon authentication of such claim. 

 

Changes in the following laws are the subject matter of this CHALLENGE.

 

1.                  Recent amendment in the Civil Procedure Code, to ensure expedious justice in the civil litigations;

2.                  Notification issued in the year 1996 by the Election Commission directing election candidates to affirm affidavit giving details of criminal proceedings against him;

3.                  Recent amendment in the Peoples Representatives Act;

 

In support of my submissions, I want to place some documentary evidence, which were in the records of appropriate authorities as referred below. But, in India recognisation of the creator of innovative ideas are not available, till one cannot prove his influential status.

 

Instead of going in detail, here I place extract from some of the paragraphs of a Writ Petition (Civil), which was filed before Supreme Court by me on 4th September 2002. The entire petition, along with one subsequent Writ Petition is placed on the Website: - http://milapchoraria.tripod.com/writpetition

 

The paragraphs 43, 44, 45, 48, 52 to 57, 59 of the said Writ Petition are referred below. In those paragraphs the word Petitioner is denotes to me.

 

43.  That in view of his own severe experiences based on atrocities suffered by him and infringement of his fundamental rights and considering the possible root cause behind such infringements, Petitioner decided to file Public Interest Litigations, which ultimately can also protect his own fundamental Rights too, as he is also a member of public. As such on 9th August 1995, the Petitioner filed a Writ Petition based on Vohra Committee Report against the Union of India and the Election Commission of India as Public Interest Litigation and moved in person. The same was registered as Writ Petition (Civil) No.559/95 and filed with interalia prayers that a Writ of Mandamus should be issued directing the Election Commission of India to evolve a method to restrict the candidature of a person, facing criminal proceeding in any Court of Law, for the Membership of Parliament or State Legislative Assemblies, with the submissions that Law, Rules and Regulations should have been made inserting interalia the following provisions; -

 

a)                  No person can contest Elections for Parliament or State Assembly, if he is accused in any criminal proceedings and Police prima-facie had satisfied with the complaint by filing charge sheet, till he not discharged or acquitted from such criminal case by a Court of Law;

 

b)                  No person can contest elections for Parliament or State Assembly unless declares all the properties and business of his family members, before the Election Commission;

 

44.         That the said Writ Petition was moved on 29th August 1995 by the Petitioner in person before the Honble Chief Justices Court presided by A.M.Ahmadi, C.J. as his Lordship then was, and after hearing the same Honble Court, adopt a hands off policy and dismissed the said petition with observations that Court cant do anything in such matter. But, subsequently Honble Chief Justices Court presided by A.M.Ahmadi, C.J. as his Lordship then was, admitted another Writ Petition based on the self-same Vohra Committee Report, which was filed by one Powerful Politician, then and now Member of Rajya Sabha Mr. Dinesh Trivedy, and moved by renowned lawyers of the Supreme Court, Ld. Mr. Shanti Bhusan, then by Ram Jeth Malani etc., and registered as Civil Writ Petition No.664/95. After knowing such fact on 1st December 1995, Petitioner filed another Writ Petition (Civil) No. D-18372/95 with object to restore his earlier Civil Writ Petition No.559/95 with the prayers interalia to pass a decree under Article 142 of the Constitution that in compliance of clause (4) of Article 32 of the Constitution of India the Jurisdiction of Supreme Court has been seized to dismiss any Writ Petition filed as remedy for enforcement of Fundamental Rights, without hearing on the merit.

 

45.   That on 29th January 1996 when Writ Petition (Civil) No. D-18372/95 was listed for hearing along with the said Civil Writ Petition No. 664/95, Honble Chief Justices Court presided by A.M.Ahmadi, C.J. as his Lordship then was, accepted the argument forwarded by the Petitioner and said that they are not dismissing the Writ Petition of the Petitioner, rather disposing the same by passing judicial order and passed the following Order: -

 

A Writ Petition ( C) No. 664/95 in relation to the same matter in issue based on the Vohra Committee Report is already under consideration in which the respondents were directed to produce the authenticated copy of the Report, which has since been done. Since one Public Interest Litigation is already before the Court and carriage of proceedings is not stated to be in wrong hands, we do not see any reason to multiply petitions on the same issue and, therefore, we dispose of this petition on that ground.

 

48.        That the prayers referred in the said Writ Petition (Civil) No.559/95 by the Petitioner have been upheld by the Honble Supreme Court by order dated 2nd May, 2002 in Civil Appeal No. 7178 of 2001 (Union of India V Association for Democratic reforms and another) directing interalia as follows: -

 

The Election Commission is directed to call for information on affidavit by issuing necessary order in exercise of its power under Art 324 of the Constitution of India from each candidate seeking election to Parliament or a State Legislature as a necessary part of his nomination paper, furnishing therein, information on the following aspects in relation to his/her candidature: -

Whether the candidate is convicted/acquitted/discharged of any criminal offence in the past-if any, whether he is punished with imprisonment or fine?

Prior to six months of filing of nomination, whether the candidate is accused in any pending case, of any offence punishable with imprisonment for two years or more, and in which charge is framed or cognizance is taken by the court of law. If so, the details thereof.

The assets (immovable, movable, bank balances etc) of a candidate and of his/her spouse and that of dependants.

Liabilities, if any, particularly whether there are any over dues of any public financial institution or government dues.

The educational qualifications of the candidate.

 

52.        That on 7th February 1996 Petitioner filed a Public Interest Litigation being Writ Petition (Civil) No. 151/96 with the prayers interalia as follows: -

 

MAKE, necessary Rules under sub-clause ( C) Under Clause (1) Under Article 145 for filing of Writ Petition definable as appropriate proceedings  of the Civil in nature in compliance of clause (1) of Article 32 to ensure that the right to remedy for enforcement of the Fundamental Rights is guaranteed and t ensure the hearing of the matters relating to violation of Fundamental Rights on merit

 

ISSUE, directions to the STATE to make appropriate change and/or amendment in law within one year as suggested under Schedule A therein

Under the aforesaid Schedule petitioner made detailed suggestions to change and amend the law relates to Representatives of Peoples Act, Section 197 of Criminal Procedure Code, Official Secrets Act, and also filed a Model draft of Civil Procedure Code. That before mentioning the aforesaid Model Draft of the Civil Procedure Code the Petitioner on 3rd March 1995 also forwarded the said Model Draft for New Civil Procedure Code, by Registered Post to A.M.Ahmadi, CJ., as His Lordship then was. Petitioner crave letter to said letter at the time of the hearing of the Petition, if necessary or so directed.

53.    That on 29th March 1996 upon hearing of the Petition Honble Chief Justices Court presided by A. M. Ahmadi C.J. as his lordship then was, observed that the Petitioner has done a very good work and advised to the Petitioner to forward his model of new Civil Procedure Code to the Chairman of the Law Commission of India. When Petitioner ask, whether he can refer Honble Courts observations, Honble Court says that Court have no objection in it. Accordingly, Petitioner forwarded the said Model of the Civil Procedure Code, by Registered Post to the Honble Chairman of the Law Commission of India. However, Honble Court passed the following order in the said Writ Petition: -

 

Place this petition before Honble the Chief Justice of India on the administrative side to consider the regulations of Public Interest Litigation Petitions.

 

54.        That on 20th March 1996 the petitioner filed a Petition before the Election Commission of India that in the consideration of Article 324 (1) read with Article 326 of the Constitution Commission invite following information on oath or affirmation from the intending candidates for such elections to furnish along with nomination papers: -

 

(a)    Whether any Criminal Proceeding in any Court of law is pending? if yes ; please state:

 

(i) Name of the Police Station, within Constituency or outside the Constituency;

 

(ii) Number of Crime in respective Police Station?

 

(iii) Date of Crime according to F.I.R. registered in Police Station?

 

(iv) reference of law under which crime is registered ?

 

(b)    Whether, Charge Sheet is filed by the investigating authority in the above referred Crime Number? If, yes, please state: -

 

(i)Name of the Court, in which charge sheet is filed?

 

(ii)Number of the Crime Registered in the Court?

 

(iii)Date of Charge Sheet?

 

(iv)Reference of Law under which Charge Sheet is filed?

 

(c)    The present status of the proceedings?

 

(d)    If the Criminal Proceedings are pending more than one, similar informations should be provided in respect of each such proceeding.

 

55. That after delivery of the said Petition to the Election Commission issued a Notice asking to the intending candidates to give certain details with reference to criminal cases, if pending or disposed off against them, but, in a surprising manner one amongst the then Election Commissioners Mr. G.V.G. Krishnamurthy, stolen the aforesaid idea from the paragraph 9 of the said Petition and claimed that Notification issued by the Commission in that respect was based on ideas developed by him.

 

56.        That the Petitioner understood that the said Order passed in Writ Petition (Civil) No.151 of 1996 was not in accordance with the provisions provided under Article 145(1) ( c) of the Constitution, nor any order was passed to frame the Rules and Guidelines as suggested by the Petitioner to deal with each and every Writ Petition filed Under Article 32 of the Constitution before their listing for hearing by a Bench to fulfill the objective of Article 32 of the Constitution and to ensure expectations of the founding fathers of the Constitution, and to prevent vicious Writ Petitions.

 

57. That this was a matter of the fact that in the said Writ Petition (Civil) No.151 of 1996 a Model of a New Civil Procedure Code was suggested in detail by the Petitioner. This Model was created and developed by and was based on original thought of the Petitioner. In fact in the year of 1983 Petitioner forwarded the same to the then Law Minister of India Shri Asok Sen, by Registered Post. As it already stated that before referring the said Model in the said Writ Petition, the Petitioner also forwarded the same to A. M. Ahmadi, CJ, as the then His Lordship was, by letter dated 3rd March 1995. In the aforesaid order with regard to the said Model there were no directions or order were issued, but, subsequently, on the same subject one Committee headed by Learned Dr. Abhisek Singhvi, Senior Lawyer of the Supreme Court was constituted by A.M.Ahmadi C.J. as his lordship then was. In fact the amendments as recently enacted by the Parliament in the Civil Procedure Code are basically based on the suggestions made by the Petitioner, as referred in the said Writ Petition, without recognizing him.

 

59.     That on the same day i.e. 15th May 1996 the Petitioner also filed another Writ Petition (Civil) No. D-8305/96 praying therein interalia to issue Directions upon the Election Commission of India interalia to suspend and / or withheld the name of any person from the Electoral Rolls, if he is an accused in any Criminal Proceeding and Investigating Authority Prima-facie satisfied about his crime by filing Charge Sheet, till he will be not declared innocent person by a Court of Law, immediately after such informations about such Criminal Proceedings received by the Commission.

 

Author, in the larger national interest has done several things first time, which he is going to refer in his biography. His biography will be supplied to the interested participants of the debate at par cost only.


Object of the Book:

A MODEL OF NEW

CONSTITUTION FOR INDIA

(BHARAT)

India is a democratic country. Democracy means Rule of Law, governed by the people, for the people and through the people. Rule of Law means a system, which shall ensure that:  (i) no one, whoever he may be, is above the law; (ii) transparent and good governance; (iii) corruption free bureaucracy; and (iv) Guaranteed expeditious remedies.

 

The Preamble of the Constitution of India has adopted one of the basic objects to ensure Economical, Political and Social Justice. Is Indian Democracy moving in such direction?  I must put on straight record that No not at all.

 

In fact contrary to objects and assurances referred in the Constitution of India, in last 55 years, India has gained experiences on every counts with total dissatisfaction, thus results are:

q       At each and every level of the governance, immense corruption with immunity, become important part of the system;

q       Violation of Law with immunity is not a matter of surprise;

q       Remedial measures are not easily available in respect of any matter of ill-governance, prevailing under nexus between the powerful politicians, bureaucrats and organised mafia;

q       Immense economical, social and political exploitation is not at all a matter of concern for any politician; and

q       From the whole of the country a single person from the common man can be identified who can justify that he has no grievances relates to governance at one or other level.

 

One should know that there are haven and earth differences between the culture, human nature, pshyclosical; geographical; religious; and historical backgrounds of Britain and India.  The father of the Nation: Mahatma Gandhi strongly opposed the adoption of the British Model of democracy for India. But, ignoring of all such facts and backgrounds, founding fathers of the Constitution of India adopted the British Model of democracy, under the compulsion caused by the Agreement made by the Indian National Congress in compliance of the proposal forwarded by the British Cabinet Mission.

 

In fact, in 1942, British Government, through Crisp Mission, submitted its proposal for transfer of powers to Indians, which was refused outright by the Mahatma Gandhi -just before he given a call for quite India-, as because any proposal less than total freedom in the garb of the transfer of Powers was not acceptable to India. Mahatma Gandhi made it clear that British Government cannot enforce any conditionality for the governance in India, after transfer of Powers to Indians. In considerations of such mindset of the Mahatma Gandhi, when in 1946 three Member Cabinet Mission headed by the British Minister for India Department came to India along with one new proposal, not submitted its proposal directly to Mahatma Gandhi. An agreement was arises and emerges from such proposal, thus Interim Government headed by Shri Jawaharlal Nehru, as the prime Minister was formed. As per agreement in accordance with the said Cabinet Mission proposals, in or about July 1946 the Constituent Assembly was constituted through elections based on Religious Electoral Constituencies. On 6th December 1946 the Constituent Assembly started its function. In accordance with the Cabinet Mission proposals the Constitution of India is prepared basing upon the Government of India Act 1935, for undivided India. But, under the British diplomacy, subsequently division of India was declared in June 1947, though this was not the part of the Cabinet Mission proposal of 1946. This was a peculiar fact that besides its Chairman and one another Member, the third Member of the Mission was Sir Crisp, who headed Crisp Mission of 1942. The reason and objective behind his appointment was very clear that he was aware of the mindset and value of the opposition from Mahatma Gandhi. As a result the proposal of the Cabinet Mission was got approved directly from the Congress Working Committee, without prior consultation with or knowledge of Mahatma Gandhi.

 

This is an admitted fact that the major part of the Constitution of India is prepared basing upon the Government of India Act, 1935. Why? Not because it suits Indian requirements or otherwise, but under the secret pre-condition of the Cabinet Mission proposal. Circumstantial facts are also supportive of existence of a secret pre-condition: -         

q       Article 147 of the Constitution of India provides that In this Chapter and in Chapter V of Part VI, references to any substantial question of law as to the interpretation of this Constitution shall be construed as including references to any substantial question of law as to the interpretation of the Government of India Act, 1935 (including any enactment amending or supplementing that Act), or any Order in Council or Order made thereunder, or of the Indian Independence Act, 1947, or of any order made thereunder.

(The aforesaid provisions has laid downs the conditions upon the Supreme Court and High Courts not to interprete anything beyond the scope of the interpretation of the Government of India Act, 1935).

(The Government of India Act, 1935 was enacted by the British parliament, so amendment in it, obviously can be made by the British Parliament only, which means Article 147 is imposing a condition upon the Indian Judiciary to recognise any subsequent amendment, if passed by the British Parliament, thus virtually the sovereignty of Indian Judiciary with regards to interpretations are concerned, was tagged with the right of the British Parliament to amend the said Act).

(On the other hand provision does not provide any provision for amendment in Indian Independence Act 1947).

(The word Council is denotes to British Privy Council. Otherwise what is justification in Judgments pronounced by the Constitutional Bench of the Supreme Court based on references from the Judgments of the British Privy Council)?

 

As per the unverified reports, in the Independence treaty of 1947 based on the aforesaid Cabinet Mission proposal, there was a conditionality that the British Administrative system will continue at least for 50 years. This date expires on 15th August 1997. This is a matter of the fact that on the said very day i.e. 15th August 1997 the then Prime Minister of India Shri Inder Kumar Gujral announced from the Red Fort that about 3,000 Laws are become ineffective and defunct and would be removed. This is needed to be answered how on a sudden he aware that such large number of 3,000 Laws become defunct overnight in one night or the said date i.e., 15th August 1997 made him free from the said condition laid down by the Indian Independence Treaty 1947 to make such announcements.   

 

Government of India has respected the conditions with several British Companies to run their monopolistic Business in India, on the terms and conditions applicable prior to 15th August 1947. For instance A. H. Wheeler runs its business on the basis of the absolute and exclusive allotments of Stalls at the different important Railway Station in India on the prevailing rates and conditions since British Rule in India, which allowed this Company to earn exorbitant profits and to transfer such profit to Britain, without any Tax Liability in India. As a result these Companies paying Income Tax in Britain on the Income earns in India. Is this not a Royalty to British Government from the Government of India against transfer of the power or is anything else?     

 

When Indian Parliament on the night of 15th August 1997, celebrated 50 years of so-called Freedom, British Queen Elizabeth was the main guest. Why was not Head of any other country?

 

In fact object of the author, behind referring all these facts, are to explain that the Constitution of India is not prepared in consideration of Indian conditions and requirements, rather prepared under the conditions imposed through agreement arrived under British Cabinet Mission Proposal and Indian Independence Treaty of 1947. As a result, in India, today politics is developed and established on the British Policy of divide Indians thus Rule India. Resultantly, politics becomes a lucrative business, everywhere, without any investment and /or risk, and totally individualised at the cost of the core principle of the democracy that whoever you are the law is still above you, thus such core principle proved as total defunct.

 

Today Indian democracy is running in wrong direction, overriding upon the value of the VOTERS giving importance to the VOTING. Thus, today every politician is doing the politics of the Votes not of the Voters.

 

In the Book a new Model of democracy has been suggested, which, in my view, can make India a Super Power, removing individualised politics, ensuring transparent, and accountable good governance at every level basing upon the CORE PRINCIPLE THAT TRUTH IS SUPREME RELIGION FOR EVERY ONE AND EVERYWHERE.

 

The new democratic system is suggested in the Book, based on the followings amongst other considerations and principles: -

1.       Truth shall be above all;

2.       Reins of the powers should be in the hands of the people;

3.       Unity amongst the people must be supreme objects;

4.       Any one, whoever he may be, still law should be above him;

5.       Every one should be accountable before the law and system, irrespective of his status or position;

6.       In the Election mechanism value to be given to the Voters not to the Votings;

7.       Politics based on individuals should not find any place at any level at any cost;

8.       Political Promotions should be based on experience, competency and performance;

9.       Distribution of the benefit of the progress and economical betterment should be horizontal;

 

If one will go through the Book, he can make up his mind for requirements of a New Constitution for India.


You yourself should evaluate the Constitution of India.

Join the Debate.

 

This is considered above that Constituent Assembly of India was constituted and started its functioning, on 6th December 1946, in accordance with the proposal of the Cabinet Mission of the British Government, when India was not an Independent country. Without going in the controversy, we can evaluate our Constitution on the basis of the experiences its impacts and effects for more than fifty years. Every day, Politicians are evaluating Indian Constitution and declaring it as one of the best Constitution in the World. While, people seems that system is virtually collapsed at each and every levels. Therefore, this is the time, that the People of India, without any influence or guidance from the Government or any other authority should evaluate the entire Constitution of India.

 

National Commission for Review of Working of the Constitution of India has also evaluated various aspect of the Constitution, within its limitations. We cannot expect better result, because mindset of its each Member were developed and settled under the framework of this very Constitution, thus they cannot see or find out any deficiencies from the mentor Constitution, otherwise which is responsible for todays grave situation, prevailing in India.

 

When Mahatma Gandhi, was in South Africa, if he could not have suffered discriminatory behaviour of the While Rulers of South Africa, than he might have not realised the gravity of the problems suffered by the people of India, caused under British Rule. Similarly, I the author of this Book passed through various acute problems, being caused because of the deficiencies of the prevailing Constitution. Thereafter, I made study to find out the root of such deficiencies and written more than 250 Articles, with my remedial suggestions, which were published in more than 50 Newspapers in India.

 

I have made my own evaluation of the Constitution of India, which is totally different from the evaluation made by the Politicians, and from the Review Commission. On the basis of my own evaluation I authored this Book. My evaluation is based on my own experience and sufferings and study made by me in consideration of the direct relations between:

(1)                 Constitution of India and Government of India Act, 1935;

(2)                 Government of India Act, 1935 and the Act of 1919 based on the recommendations of Montague Chelmsford;

(3)           Act of 1919 based on the recommendations of Montague Chelmsford and Act of 1909 based on Morley Minto reforms;

(4)           Act of 1909 based on Morley Minto reforms and the Act of 1892 and;

(5)           Morley Minto reforms and Act of 1892 and the Act of 1861

                (We should remember that after 1857 revolution (Gudder) in every part of India, the British Government take over the Powers of the Government of India from East India Company and enacted the Act of 1861 along with several other Laws on the taking into account the findings of the Report submitted by Sir Hyum to Queen Victoria. The object of the Report was to find out the source of unity amongst Indians, irrespective of different religion, cast, creed, language etc.

 

All Acts, including the Government of India Act 1935 since 1860 were enacted in the name of reforms, but the basic object of the British Government behind enactment of such laws were to divide Indian to Rule India. However, after Second World War, British Government comes under acute pressure to transfer the Powers to local people of various countries, including India. Since 1942, British Government was keen to transfer the powers of Indians keeping its interests protected.

 

As we discussed above that India is a democratic country. It means Peoples governance for the People and by the People. But, see how far this logic is working or workable in practical life and what are the experiences of the common men? In any democracy Parliament must be the highest democratic Platform. The Parliaments first and foremost function should be to develop, improve, and enhance the good governance system, which can ensure good Governance at each and every level. But, what we are looking today is that the Indian Parliament is not serious at all to its such objective. The people of India may feel that the Political parties are responsible for such situation. But, according to me really they are not responsible for such grave situation. The root cause is elsewhere, as the democratic system provided by the Indian Constitution is not developed in consideration of the Indian Society, culture and its needs.                                        

Milap Choraria

Tamkore (Jhunjhunu) Rajasthan Pin Code 331026

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