Two Years of the Modi Regime: India's 26th Chief Justice makes some sharp observations through this leading question
May 16, 2016
The Preamble of our Constitution resolves India into a Secular Democratic Republic and promises to secure to all its citizens JUSTICE, LIBERTY, EQUALITY, and to promote to all FRATERNITY thereby assuring the dignity of the individual and the unity and integrity of the Nation. The Constitution has rightly been construed as a living and organic document of great significance. It must be construed and applied broadly and liberally.
In Part III thereof are set out the FUNDAMENTAL RIGHTS. Article 12 broadly defines ‘the State’ to include the Government, Parliament of India and the Government and the legislature of each of the States and all local and other authorities within the territory of India or under the control of the Government of India. The definition is therefore wide enough to include every executive organ as well as the legislative bodies, the Parliament and State Legislatures.
The ideals of “Socialism and Secularism were added to the Preamble by the 42nd Amendment and attempts made to delete them from the Preamble have fortunately failed for the simple reason that even otherwise they were/are writ large in the text of the Constitution, vide the Directive Principles in Part IV, particularly, Article 39 of the Constitution.
The agonising endeavours made, by the party of Prime Minister Modi, to undo what the 42nd Amendment did, remains a direct threat to the political scenario within the country. The concepts of Socialism and Secularism cannot be static and indeed have been construed as ever evolving. Every country evolves that which is best suited to it and with the passage of time it undergoes a change best suited to its changed character/scenario.
During our Independence movement, we saw the meaning of the concepts of Socialism and Secularism nuanced and ever-changing. For example, between the Gandhian model and the Nehruvian model of Secularism, there were differences. In the Gandhian model religion played an important role, not so in the Nehruvian model.
I appeal to those in power to avoid making hate speeches against other Sister/Brother Indians and realise that she/he is in fact harming the self and weakening our cherished democracy.
Prime Minister Nehru believed that ‘Religion’ had divided India and ‘will kill it one day’. He, therefore, strongly advocated non-interference of religion in State affairs. He strongly believed that the State should discourage its role even in civil society as it will hinder the fostering of unity and integrity of the Nation. How right he was; we are today witnessing how religion has been responsible in dividing the Nation and how its ill-effects have played havoc with our endeavours in achieving the unity and integrity of our Nation.
During Nehruvian rule, religious passions were curbed but once he was gone religious passions erupted which often, even the police force refused to prevent; large-scale violence erupted and the police force became increasingly partisan and hostile towards the minorities. On several occasions, it was adjudged to be aiding and participating in the trouble-mongering.
Other difficulties confronting our democratic system have arisen from increasing social pressures. Growing Hindutva militancy poses a grave threat to India’s internal stability today. Ever since the period of the Babri Masjid demolition, Hindutva forces with the support of the party in power and a almost brazen hostility fostered and legitimised by the Rashtriya Swayamsevak Sangh (RSS), have initiated a hate-Muslim campaign through their cadres; men and women who boast and threaten violence at the slightest pretext, e.g. over the orchestrated and contrived Beef Issue. It is as if these boastful cadres have been Licensed to Kill, sanguine in the belief that the Governmental agencies will come to their rescue, if required. Instead of curbing religious militancy with a firm hand, the inaction and deafening silence on the part of those in positions of power –as also law enforcement authorities – conveys an implied concurrence with hate utterances and gives the offenders a sense of impunity.
Our Democracy has functioned reasonably well as far as elections are concerned if we ignore the blots caused by increasingly recurring bouts of communal and caste violence (riots). Now, with the Hindutva right wing firmly in power, the same cannot be said so far as India’s internal stability as a democracy is concerned. The fringe elements of the ruling party, have mounted increased social pressures through their Hindutva-inspired cadres on the minorities. These elements have shown no concern for the Dalits whose cause Dr Babasaheb Ambedkar cherished and passionately argued, pleading for their upliftment. This poses a serious threat to domestic peace and stability, thereby weakening all our democratic institutions.
Due to the aggressive interference by hard core religio-political Hindutva elements in every aspect of public life, an atmosphere of intolerance has been generated –and legitimised –towards the minorities. Needless to say, that this level of public discourse has weakened our democratic values/principles and their functioning. Consequently even the enmeshed human rights engrafted in Part III of our Constitution have suffered. The expanse of democracy is not confined only to general elections every five years but is a larger guarantee embodied in Article 21 (the Protection of the Right to Life and Personal Liberty).
Professor Russell Bova, the erstwhile Associate Professor of political science at Dickinson College in Carlisle, Pennsylvania, rightly observed: “A close association between democracy and liberty has long been taken for granted. At least a minimal package of human freedoms, including rights of association, opposition and free speech and expression, is in fact required if democratic institutions, such as elections are to be meaningful. Most definitions of the term “democracy” include reference to such freedoms”. (So also does the Indian Constitution). Both in theory and practice, the relationship between democracy and human rights have existed ever since the charter of Human Rights came to be drawn up/enforced from 1948 and have been ipso facto considered as a consequence of democracy.
Freedom of speech and expression, a right conferred by Article 19(1) (a) of our Constitution has been recognised as an essential element of a functioning democracy. Any effort to suppress the exercise of this right can only affect the strength of a functioning democracy. Unfortunately ever since the present NDA Government headed by Prime Minister Modi came to power, there has been a consistent effort to suppress freedom of speech and expression.
The present Government has shown intolerance towards any criticism of its functioning/policies by threatening prosecution under section 124A of the Indian Penal Code (Sedition). Dialogue and criticism of Government’s actions and policies are essential elements of a functioning of Democracy.
Time and again the President of India has emphasised in and out of Parliament, within and outside the country, the importance of dissent: often fierce debates and discussions have preceded any particular threatened Governmental action and policy; it is only at the end of a fierce debate that there emerges a final outcome (or resolution, or decision) on the issue so debated. If fierce opposition cannot be tolerated whether in or outside Parliament, democratic functioning itself will become dysfunctional, sounding a death nail to Democracy. Strong dissent and heated dialogue are the essentials of a Republican Democracy.
I wish our Prime Minister was listening then, since he is one who claims to be close to the outgoing US President. Without being daunted by the RSS he should follow the path and policy of the outgoing US President and deal with the Muslim, Christian and the Dalits in the same way.
Fundamental Rights granted to the citizens of the country were considered by our Constitution makers to be sacrosanct and inviolable and that is why the Constitution appointed the Supreme Court as its guardian to protect the citizen’s fundamental rights. That is why Article 32 in Part III of our Constitution entrusts the Supreme Court of India with the responsibility/duty to protect the rights of citizens as the ‘custodian’ of their Rights enshrined in Part III of the Constitution.
India is a heterogeneous society within which peoples of all faiths live under the shade of a single umbrella, the Indian Constitution. We in India are proud of our composite culture. Indian civilization is plural, has always been so, has the benefit of richly blended cultures, the Hindu is one, the Muslim is next, we have many others Christian, Jain, Buddhist, Sikh and various tribal entities whose cultures have got intertwined with the passage of time to constitute India’s rich composite rainbow of cultures. Each one has contributed to the present day colourful Rainbow of cultures. Every Indian has imbibed a bit of every culture and is an admixture of various cultures providing different life styles and festivities.
This composite Indian culture is, therefore, not monolithic but comprises of grains of different cultures contributed by the people belonging to different faiths. Every Indian, therefore, is an amalgam of cultures. Any attempt to damage this secular fabric of cultures would end up in destroying a part of every Indian. So any attempt by those constituting the majority of the Indian culture, to harm any part of our composite culture would render every Indian a disabled person, thereby weakening composite Indian culture and also Democratic Institutions.
I appeal to those in power to avoid making hate speeches against other Sister/Brother Indians and realise that she/he is in fact harming the self and weakening our cherished democracy.
I am afraid we, in India, have failed to realise the benefits of Secularism and fraternity. For winning elections our political parties have used religion, hate speeches and muscle power, resulting in the loss of life of our citizens and destruction of property; largely, of the Muslim and Christian minorities who are generally thus targeted. What bravery is this of the Majority! in an unevenly levelled/imbalanced playing field? Barbaric, brute force, supported by the authorities and the uniformed forces, versus a crippled Minority? A Secular State must show concern for its citizenry and not for a particular religion or communities; only then can the State foster a spirit of unity and integrity.
The UPA Government set up the Sachar Committee to study the plight of the Muslims in India but dragged its feet when it came to implementing its recommendations, particularly the setting up of an Equal Opportunity Commission, the most important recommendation even though the commission came to the broad conclusion that the economic conditions of Indian Muslims was worse, applying many parameters, than even the Scheduled Castes and Tribes.
The present BJP regime is not expected to allow the Muslim group of citizens a better life in view of the inherently anti-Muslim/Christian utterances by its fringe elements in and outside Parliament. The RSS is virtually in command. The Prime Minister, gives sound bites that are legally and constitutionally correct but does not follow them up through interventions by his administration on the ground. Since no effort is made by the ruling party to curb its fringe elements, the inaction and silence itself betrays a partisan behaviour on its part. The party in power will, rightly, be seen to be acting with malafide intent.
The State, within a democratic form of governance, cannot be partial to one religious group and run down others. The constitutional direction of equality and non-discrimination must be honoured. The fringe elements in saffron garb belonging to the RSS/VHPcannot be allowed to, in and outside Parliament, threaten and shout at Muslims to leave the country and migrate to the neighbouring country. To the RSS elements who did not fight for ‘azadi’, freedom may not be so dear to their hearts, but to those whose ancestors shed their blood, India and the freedom struggle is precious and valuable; it cannot be allowed to be frittered away.
At the time of the unfortunate partition of the country, those Indian Muslims who stayed back to live in this country made a conscious choice not to migrate to Pakistan and cannot now be pushed out like aliens. Such utterances must be nipped in the bud and not allowed currency. Those who make such demands must be silenced with a firm hand. The elements influenced by the RSS must not be allowed to spread poison in the minds of the younger generation, who are also the future Rulers of India.
In the past, whenever, any affirmative action was proposed by the Congress (UPA) Government, the BJP raised the antenna of ‘appeasement’ to shoot down such efforts by calling them pseudo-secular.I would prefer pseudo-secularists rather than hard-core Hindutvavadis.
Unfortunately, the Minority Ministry has also proved to be ‘a lame duck’. Funds allocated for minority causes to State Governments are diverted elsewhere. By not implementing any measures to actively bring India’s 17 crore Muslims into the main stream of Sub ka Saath Sub ka Vikas programmes, the Nation is denying unto itself the services of skilled Muslims, who are excellent craftsmen, as can be seen from the brass works from Muradabad, the weaves of Banarasi silks, and the delicate stitchces of Lucknowi chicken embroidery.
Nehru’s model of secularism, and its special flavour, lasted until about the 1980s and needs to be revived if democracy in India, has to survive. With the weakening of the Congress party, there came the Hindutva thrust, the Rath-Yatra of Mr. Advani, and VHP’s crusade for Ram- Jumna Bhoomi, which claimed the Hindutva forces had their origin in India whereas Secularism was denigrated as being of western origin, therefore, not within the ambit of the State’s duty to promote or nurture. They (the Hindutvavadis) contend that the minorities can feel free to profess and cherish their faith, but the Hindutva ideologues profess superior status for their faith and contend that the Islam and Christianity are religions whose roots are not of distinct Indian origin. Not only that, but the Hindutva brigade has threatened forcible conversion through ‘Ghar Vapsi’ programmes. This ideology has naturally given rise to a sense of insecurity in the minds of theIndian Minorities— both Muslims and Christians.
In my view this line of thinking is flawed because Indian civilisation is not monolithic but is an amalgam of many religious influences/cultures, of which Hinduism is only one; besides Hinduism itself is plural. The Indian Muslims have been deeply ingrained within Indian culture; in fact they have enriched the Indian culture by contributing to its art, literature, music and Urdu poetry (ghazals) recited by renowned singers who have been decorated by Presidential awards. The Sufi Qawalls’ contribution to the Indian culture also cannot be ignored.
The ideological conundrums created by forces owing allegience to Hindutva, the RSS, the VHP and other fringe elements, pitting caste and religious groups against each other, particularly during elections, notwithstanding BJP’s efforts to project itself as a moderate party by its slogan ‘Sub ka Sath, Sub ka Vikas’ has failed to forge a national consensus and furnish a sense of Security/Stability in the minds of the minorities, particularly, Muslims/Christians.
The strategy of the sober elements in the BJP have not been effective due to the repeated hate speeches by the Hindu radical elements in Parliament and across the country, matched with no serious effort by those in power to chasten them against vitiating India’s cultural unity. This is not to speak of the deliberate and self-conscious effort by fringe elements to vitiate the communal atmosphere when elections are round the corner to garner votes on religious grounds. It is time that the Hindutva forces realise that the minorities have no grouse against the majority community (it is only construed the other way) and would like to have cordial relations provided they are not measured through the prism of hatred.
It is in this backdrop that we must endeavour to answer the pertinent question. Democracy substitutes (or uses) election(s) to replace the corrupt few by a fresh stock: democracy is a mechanism to get rid of the corrupt and the incompetent. Sir Winston Churchill once warned the British Parliament against giving India freedom claiming that Indian politicians were yet not ready to run a country so vast. Most of what he said has come true today. During the Congress Rule its adherence to secularism was branded by the BJP as Pseudo-secularism and appeasement of the Minority; yet Secularism it is, pseudo, if you may.
Western governments who faced similar problems, though not as grim as ours, have tried to work these out through measures in education, economic, security and through political strategies of affirmative action. Through these efforts, a more equitable and non-discriminatory polity, and a more empowered citizenry has emerged. We, in India are doing just the opposite, pushing the minorities into ghettos and denying them their basic human rights and decent living conditions.
Is it not depressing that the social media does not ever raise issues which torment the minorities? Turning the personal into the political, Democrats opened their convention with testimonials to Barak Obama as a husband, father, brother and above all, a leader able to transcend the Nation’s long divide across racial and gender lines. Mr. Edward Kennedy said “Barak Obama will close the book on the old politics of race and gender, of group against group, of straight against gay”…
I wish our Prime Minister was listening then, since he is one who claims to be close to the outgoing US President. Without being daunted by the RSS he should follow the path and policy of the outgoing US President and deal with the Muslim, Christian and the Dalits in the same way. Guided by a sense of Insaniyat and following the path of Raj Dharma as advised by Prime Minister Vajpayee, his predecessor as prime minister who was also a gentleman to the core.
It is time to rise above religious prejudices and hatred. Our Democracy has certainly developed deep fissures and cracks and unless remedial action is promptly taken we will cease to be called a genuine Democracy.
“Ta ke sare zamane ko de sakun;
Khuda se mai aman-o-sukun mangta hu.”
JAI HIND
(The writer is the former Chief Justice of India. He was India’s 26th Chief Justice serving between 1994-1997)
Reference:
Senator Kennedy's Obama endorsement speech, 2008