When our country’s finest public intellectuals like Bhanu Pratap Mehta sees creeping hues of a ‘Weimer judiciary’ and finds the Supreme Court slipping into a state of judicial barbarism, and AP Shah a well respected Chief Justice accuses the highest court of abdicating its responsibility as a defender of fundamental rights and almost charges it of connivance with the executive, it is time to introspect as to what has gone wrong. And what better day than the National Law Day.
Today we have to reflect on the role of the constitution as the foundational law of the country and take stock of our successes and failures over our plural and secular obligations under the constitution. It was on November 26, 1949, that the constituent assembly adopted the constitution in English. That day is commemorated as constitution day while the day of enforcement is celebrated as Republic Day. The period of three months was utilized for complete re-reading of the text and translations into Hindi. The constitution was signed by the members of the constituent assembly in both Hindi and English on January 24, 1950. 385 members of the constituent assembly deliberated over various aspects, sometimes with heated discussions, for 166 days for about three years.
The longest written document encompassing institutions, laws, principles, precedents, conventions and practices called the constitution of India is a mid-twentieth century document. It contained the best provisions from across the world. If ‘Liberty, Equality and Fraternity’ had French origin, the chapter on fundamental rights came from the United States and the Directive Principles are Irish in character. The freedom of trade, commerce and intercourse is imported from Australia and the parliamentary systems at both Centre and states are English in character. The Supreme Court functions under laws then prevalent in Japan. There could never be a doubt over the modernity and progressive nature of our fundamental law.
Winding up the discussion on the adoption of the constitution, Dr Ambedkar said on November 25, 1949, “We must…hold fast to constitutional methods of achieving our social and economic objectives... It means that we must abandon the method of civil disobedience, non-cooperation and satyagraha. When there was no way left for constitutional methods for achieving economic and social objectives, there was a great deal of justification for unconstitutional methods. But where constitutional methods are open, there can be no justification for these unconstitutional methods”.
Dr Ambedkar was aware of the superstructure that had been kept in place to protect rights of citizens and enforce obligations of the state with the courts having been given the role of a ‘sentinel on the qui vive’. It is in this context that the current Chief Justice of India faced criticism over his comment that Article 32 requires to be discouraged.
An analysis of the working of the constitution shall show that the regularity and the efficacy of the electoral machinery has been a success to be showcased, despite our election commission not standing up to the executive. Somehow our rule of law is becoming a casualty. The shining example is the Supreme Court itself. While the incarceration of Bhima Koregaon accused and other political dissenters with little chance of getting their bit of liberty, with the highest courts working at lightning speed to grant relief to a ruling party’s cheerleader only highlights all are not equal before the law. If all do not get equal protection of the law in the courts. What justice can we expect from the executive? There is a growing view that the institutions meant to keep the democracy intact and the constitutional values in place are weakened in the last seventy years. Even the Reserve Bank of India and the Indian Council of Medical Research are seen as political tools in the hands of the executive.
The founding fathers were aware of our existential reality and based the constitution on democratic pluralism and social diversity. It is these pillars, on which the edifice is built are currently giving way. There is a growing view that the institutions meant to keep the democracy and the constitutional values intact are weakened in the last seventy years. As Majoritairianism brought electoral dividends, our adherence to pluralism and our commitment to secular ideals is waning. The federal structure is giving way to centralizing tendencies with the parliament ceasing to be a debating chamber (how the three farm bills were bulldozed) or cabinet system becoming irrelevant at the alter of the personality cult.
The people of India gave themselves a sovereign, social, democratic republic. There is no need to reinvent democracy. We have to only repair the pillars and strengthen the institutions. The US democracy has in fact been rescued by their robust institutions. The architect of the constitution Dr Ambedkar did not visualize that the superstructure built by them would get persons of lesser mettle to man it.
