A Facebook Live discussion was organised by Citizens for Justice and Peace (CJP) with Senior Advocates and human rights defenders, Rajeev Dhawan and Mihir Desai on the occasion of Constitution Day 2020. It was moderated by CJP secretary and SabrangIndia co-founder Teesta Setalvad.
The exclusive discussion started with Senior Advocate Rajeev Dhawan saying, “The Constitution is a miracle. If today we wanted to make a Constitution, we would not be able to do it.” However, he laments that many things have gone wrong since it was first adopted on November 26, 1949. He said, “The Constitution consists of two parts- Political and Jurist. Political text’s custodians are the politicians and the Jurist text’s custodian is our Supreme Court. So, have our custodians failed us? Where is the failure and what do we do now? Every institution of the Constitution lacks morality now.” He cites the example of the President’s rule in a state that proves to be a complete collapse.
He further pointed out, “If the institution feels like it, they issue contempt notices, or privilege notices. People are throwing chairs in the Parliament.” Advocate Dhawan feels that this is happening because people have forgotten the teachings of Babasaheb. B.R Ambedkar had once said, to deal with every part of the Constitution, as every part has a meaning.
Dhawan criticised the police heavily and noted that Articles 21 and 19 cannot be functional if the police commit excesses. He told the viewers to consider what happened during the Gujarat riots, Mumbai riots and Shaheen Bagh. The top court’s decision to limit the right to protest in an area where they direct one to protest is restrictive in his opinion. He asked, “Is this how it is going to be?”
“A majority government has become majoritarian. Look at love jihad and Babri Masjid cases,” said Teesta Setalvad while asking Mihir Desai where does an activist and advocate go to push the constitutional framework forward. Mihir Desai, while agreeing with Rajeev Dhawan, said that the Constitution was born out of a national freedom struggle, it was a social reality. “The Constitution wasn’t just a transfer of power, but a social and political transformation of power,” said Advocate Desai.
A liberal Constitution, even though not perfect, gives protections to religious groups, caste groups, and on the basis of gender. “The Constitution gives us equality,” said Desai, also bringing up how “the word ‘secular’ was added in the 1970s, but we all envisaged a secular country with no established one religion.” He brought up cow slaughter, conversion and love jihad issues and said there has been a “creeping communalism” through judicial intervention.
Senior Advocate Mihir Desai asserted that in order to get a positive response from the Constitution, we all need to force the institution to be accountable and transparent. Apart from struggles on streets, the judiciary needs to be pushed to be constitutional friendly.
“We cannot allow a majoritarian government to become Fascist”, added Rajeev Dhawan. He quoted Justice Dwivedi and asked, “Is our Constitution in a state of being or state of becoming? It can never be in a state of being. Our Constitution was for the poor and migrant workers.”
Rajeev Dhawan further appreciated the efforts of journalist and human rights defender Teesta Setalvad and called her a soldier of the Constitution. “The real struggle to push the effort of Constitutional freedom is in the courts and on the streets. The Constitution and Judiciary is a site of struggle and it is a forward-looking Constitution in the state of becoming,” said Dhawan.
He further said, “When the institutions fail to act as custodians, citizens take on the struggle, they go to courts and that way the court becomes the site of struggle and citizens no longer look at courts as custodians of the Constitution.”
Teesta Setalvad further asked the ways in which we could reconcile the Constitution with ‘treason’ and ‘sedition’. Mihir Desai answered that during the freedom struggle, many leaders were charged with sedition, a law brought about by the British, who later got rid of it in their own country. He wished that the Supreme Court would strike down sedition as it should not be part of our democratic nation. Article 19(1) (a) with its restrictions also have no place for sedition.
“These laws are being grossly misused”, said Mihir Desai. Rajeev Dhawan added that in case of sedition, the “process has become the punishment”. Sedition laws are not only colonial but heinous laws. Rajeev Dhawan questioned the reason behind people incarcerated in jail in the Bhima Koregaon case. He further said that it has become a ‘hoodlum law’ in which “the government and police are playing a role. They are trying to ‘break the will’ of the people and demoralise them.”
Rajeev Dhawan went on to state, “When it comes to Article 370, we used to have Union Territories become states. Why did they make a state a Union Territory? The right to vote in parliament does not give you the right to break up a province”, he said. Dhawan agreed with Desai, and said that the citizens need to fight and approach the courts. He called Desai, who has fought many public interest and human rights related cases, a custodian of the Constitution. Mihir Desai finally said, “We have to be heard. We cannot be shouted down. We need to take back the institutions like ECI, RBI, CAG and prevent them from becoming the tools of the regime.”
Rajeev Dhawan emphasised on the term “fraternity” which will help all of us to keep the optimism together. Concluding the session, Teesta Setalvad appreciated the efforts of our workers and farmers who had a spectacular general strike on November 26, 2020. She paid tribute to them as no amount of water cannons and barricades could stop them.
“Fraternity and alliance building are the need of the hour,” said Setalvad, while thanking the two legal luminaries who continue to inspire all of us.
The entire exclusive Constitution Day Special Discuss may be viewed here:
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