The first years of Indian Independence were very fraught indeed. Jawaharlal Nehru became the prime minister and served for 16 years. Nehru promoted parliamentary democracy, secularism, science and technology during the 1950s. In January 1950 a new republican Constitution came into being. The Congress under Nehru’s leadership established a democratic Constitution and oversaw a series of mostly fair elections. Another great gift it gave to the people of India was the positive ideology of Hope.

The Congress of the 1950s and the1960s is best regarded as the school of democracy. During this period Indian people learnt to vote and speak their minds freely. They learnt also to craft and entrust independent, impersonal, rule-bound institutions such as the judiciary, the press and (not the least) the Election Commission. Thus, through the 1950s and 1960s, the specific contours of democracy and national unity were intensely debated in all parts of the country. Nehru’s Congress party won successive general elections from 1952 to 1962. Lal Bahadur Shastri became the prime minister after the death of Nehru in 1964 and on his death in January 1966 Indira Gandhi became the prime minister.

Congress under Indira Gandhi

The 1967 general elections, which were held under the prime ministership of Indira Gandhi, cut the Congress’s majority in the Lok Sabha to twenty five, it lost 264 seats in state assemblies and its majority in 8 states.

Till the 1967 the elections of the Parliament and all the State Assemblies used to be held simultaneously and much money was not required to contest election. Politics was an instrument of service. The elections used to be contested on ideologies of political parties. In 1967 elections Congress suffered reverses as a result of anti-Congress wave. It started becoming apparent that in the next elections, which were due in 1972, the Congress Party was bound to lose power in the Centre and many states.

In 1969, Indira Gandhi split the Indian National Congress into two: the one led by Indira Gandhi came to be known as Congress (I), and the other which comprised the then stalwarts in the Congress, came to be known as Congress (O). In 1977, the Congress (O) merged into the Janata Party and thereafter ceased to exist.

In 1971, Indira Gandhi, politically shrewd as she was, was fully able to sense the impatience in the people about removal of poverty, gave a deceptive slogan of ‘garibi hatao’, delinked the parliamentary and the assembly elections, surprisingly, by preponing the same, which otherwise were due in 1972. She utilised a large amount of money in elections for her party candidates and secured a thumping majority, giving a severe blow to the process of political polarisation on an ideological basis. She secured 352 seats in the Lok Sabha in these elections. A series of events since  1971  finally led to the destruction of the Babri Masjid in Ayodhya on the December 6, 1992 demonstrate that both the major political parties-the Congress and BJP–have shown little regard for the rule of law and the country’s judicial institutions.

Both the said parties wanted judiciary to be weak and have been making attempts to make the Court obedient to their governments, both unbalanced the power equations among the three branches of the state. Both the parties also wanted to change the basic structure of the Constitution. Mrs. Gandhi’s government superseded the three senior most judges of the Supreme Court for their ruling in Kesavanand Bharati case, laying down the basic structure doctrine.

During the years, 1971-77 Mrs. Indira Gandhi ruled the country in an authoritarian way. The date, March 23, 1977 is regarded as the day of India’s liberation from authoritarianism as on that date Mrs. Indira Gandhi had lifted the Emergency. In 1977 elections Mrs. Indira Gandhi suffered a crushing defeat and for the first time a non-Congress government of the Janata Party came into power. The Janata Party government could not survive on account of its internal contradictions and in 1979-80 mid-term elections of the Lok Sabha were held. In these elections Indira Gandhi secured majority votes.

Rajiv Gandhi’s Congress and India

The danger of authoritarianism reappeared with the success of Mrs. Gandhi in the post-Emergency elections of 1979-80. In 1984 Mrs. Indira Gandhi was assassinated. Thereafter, Rajiv Gandhi was sworn in as the next prime minister for only two months. In the 1984 elections, in which Rajiv Gandhi had a clean sweep, BJP could secure only 2 seats in the Lok Sabha. The Sangh Parivar started a campaign for the construction of a magnificent Ram Janam Bhoomi Temple at the site of the Babri Mosque and by 1985 built up a sizeable support in the Hindu community. In January 1986, the locks of the 450 year old Mosque were opened and “Ram bhakts” were permitted to offer prayers to “Ram Lala”. It is said that the Prime Minister Rajiv Gandhi’s aide and minister Arun Nehru ordered the Chief Minister Veer Bahadur Singh to ensure that the district administration do this. Thus, in this period, both these parties, the BJP and the Congress, started pandering to communal Hindu sentiments. By 1988, Hindutva organizations led by the RSS organised a mass campaign for building a grand temple exactly where the Mosque stood. They claimed that the Mosque stood at the precise site where Lord Ram was born. By the time  the fifth and the final suit was filed on July 1, 1989 and all the five suits were transferred to the High court to be tried by a Full Bench by order dated July 10, 1989, the political climate had changed beyond recognition.

Union Home Minister Buta Singh signed an agreement with the VHP on the August 17, 1989, to the effect that bricks for constructing the temple would be allowed to be brought from all over the UP without hindrance and collected at plot No. 586 near the Mosque. This agreement was in violation of an order of the Allahabad High Court dated August 14, 1989 that stated that no construction activity could be taken at that spot.

Later, the VHP announced that ‘kar sewa‘would be performed to lay the foundation stone. This was also a violation of the judgment given two days ago, prohibiting any such activity. This repeated defiance of the orders of the court did not weigh with the Prime Minister, Rajiv Gandhi, who inaugurated the campaign of the Congress party the next day from the twin city of Faizabad, and announced, moreover, that the objective of the Congress party was to establish Ram Rajya. Soon thereafter the BJP president Advani at Palampur, after the National Executive Meeting, announced that the inclusion of the construction of the temple in its Election Manifesto “would fetch votes” for it. It would thus appear that the two major political parties were in a race to the finish on this issue.

The race between the two was lost by Rajiv Gandhi and won by L.K. Advani. The next elections were to be held in 1989. The Congress could secure 197 seats only as compared to 404 seats in 1984, and the BJP got 85 seats as compared to only 2 seats in 1984. Thus a non-Congress government came into being in 1989.

The masculine, militaristic, ultra-Hindu nationalism, which is being propagated by the BJP and the Sangh Pariwar, represents a far greater danger to the Indian democracy than the personal authoritarian rule which Mrs. Indira Gandhi imposed on the country. The movement for the construction of a Sri Ram Temple by destroying the Masjid was clearly a movement for encouraging Hindus to humiliate Muslims. The main reason why the Babri Masjid was destroyed on December 6, 1992 was that the Narasimha Rao government at the Centre did not like to take any firm action against the so-called Kar Sewaks because it was reluctant to alienate Hindu votes.

Looking back, we find that the people of this country had an urge to participate in the political process. This was evident in the elections that took place till 1967, and then in 1977. Until this time, a common man could hope to get elected, because until then, electoral politics had not come in the vicious grip of casteism, communalisation and criminalization. It was in 1989, when the fifth suit was filed and all the suits were transferred to the High Court that the poll politics came in the vicious grip of casteism, communalisation and criminalisation.

Ayodhya Judgement 2019

The controversial judgment in the Ayodhya case by the Supreme Court was delivered on November 9, 2019. By now, the Union Home Minister Amit Shah has declared the construction of the temple would be completed by the January 1, 2024. That means that the issue would be used in parliamentary elections as an “achievement” and claim that the grand Ram temple has been built due to their efforts. The BJP thus is still keeping the issue of Babri Masjid alive, but Congress is now out of the race.

The Constitution Bench which decided the Ayodhya case comprised of Chief Justice Ranjan Gogoi, Justice Bobde, Justice S. Abdul Nazeer, Justice Ashok Bhushan and Justice D.Y.Chandrachud. Chief Justice Ranjan Gogoi has been nominated as Rajya Sabha member, Justice S.Abdul Nazeer has been made a Governor within a month of his retirement and Justice Ashok Bhushan is currently the Chairperson of the National Company Law Appellate Tribunal.

Independence of the Indian Judiciary

The judgment in the NJAC case came on October 16, 2015. Unfortunately, till N.V.Ramanna took over as the Chief justice of India, at least four of his predecessors were perceived as standing with the government, even when the fundamental rights and civil liberties of the people were under attack and dissent was being suppressed under the UAPA and the draconian law of sedition. It was only after Justice Ramanna took charge that some faith in the judiciary was restored. During his tenure, Supreme Court agreed to revisit the sedition law and urged the government to refrain from lodging FIRs under the said laws.

Justice U.U. Lalit, who had a tenure of less than 3 months, made sincere efforts to bring about the much needed reforms in the listing of cases with a view to ensuring that important cases no longer remained on the back burner and were heard expeditiously.  The present Chief justice of India is known for his commitment to Fundamental Rights and Civil Liberties of the people.

A “Committed” Judiciary

The present government had no problems with the Supreme Court so long as it was docile and was by and large toeing its lines. But now fearing a more assertive court, the esrstwhile Union Minister of Law and Justice (Kirin Rijiju) and the Vice President (Dhankar) find the collegium system of appointment of judges to the High Courts and Supreme Court “opaque and not accountable.” The former Law Minister, Kiran Rijiju, has also questioned the court’s order putting the sedition laws in abeyance.

When the Modi government was formed in 2014, they announced that the appointment of judges by the collegium should go. With this objective, the NJAC Act 2014 was enacted. Its validity was challenged.  The Supreme Court declared the NJAC Act and the consequential amendment to the Constitution as unconstitutional on the ground that it was against the judicial independence and thus contrary to the basic features of the Constitution. The Court did what it is ordained to do under the Constitution. Nothing more nothing less.

Most politicians, while in power, are allergic and intolerant to an independent judiciary. It requires a politician to rise to the level of a statesman and a visionary to understand how vital an independent judiciary is to the functioning of a constitutional democracy. Authoritarian regimes want that the judiciary should be executive-minded. Indira Gandhi also wanted to have a committed judiciary. ‘Committed’ here means committed to the executive.

The re-emergence of Indira Gandhi after her authoritarian and personal rule, especially between 1972 to 1977, started after 1979-80 elections when Indira Gandhi defeated the Janata Party in the elections.

Granville Austin in his book ‘Working a Democratic Constitution’wrote  “During January 1980 Justice Bhagwati wrote  ‘Dear Indira ji’  letter to the Prime Minister congratulating her on her election and praised her  ‘iron will…..uncanny insight and dynamic vision, great administrative capacity and…… heart which is identified with the misery of the poor and the weak’. The justice continued that: “  The judicial system in our country is in a state of utter collapse. We should have a fresh and uninhibited look at [it]… and consider what structural and jurisdictional changes are necessary. …….”

The unfinished task of having a ‘committed judiciary’ which Mrs. Gandhi wanted to accomplish during 1971-77 was completed on her re-emergence with the help of the judgment of a constitution bench of the Supreme Court headed by Justice Bhagwati in the S.P Gupta case. In that case, known as the First Judges case, the Supreme Court appeared virtually to surrender itself to executive power exercised through the President. According to the decision in the First Judge case, under the Constitution the prime responsibility for the appointment of judges was upon the executive, which meant the executive government and opinion of the executive government was to prevail over the views expressed by the Chief Justice of India. The position of the Chief Justice of India in the matter of appointment of judges was reduced to a nullity. ‘Consultation’ meant little more than passing on information and definitely did not imply consent. The S.P Gupta case judgment was delivered on  December 31, 1981 and it continued to hold the field for about 12 years, up to October 1993, when the judgment in the Second Judges case was given.

Collegium is Supreme

Thanks to the Second Judges case, the Supreme Court, realising the grave error committed in the First Judges case, virtually reversed the judgment in the case holding that the judiciary shall have supremacy in the matter of appointment of judges, and not the executive.

The Third Judges case arose out of a reference made by the President under Article 143 (1) of the Constitution as it was thought that the decision in the Second Judges case created some complications. The questions posed by the President were answered by a unanimous opinion of five Judges of the Supreme Court. (Judgment delivered by Bharucha J). The ultimate effect of the Third Judges case at the end of the day was the substitution of a collegium of five judges instead of three that is to say, the Chief Justice and the next four senior most judges. With these judgments the Congress Party finally gave up the issue of appointment of judges and assertion of the power of the executive.

More recently, under the Modi 2.0 regime, Vice President Jagdeep Dhankhar   sparked a debate on the separation of powers between the executive and the judiciary. He criticised the Supreme Court  for using the doctrine of basic structure to strike down the constitutional amendment that introduced the National Judicial Appointments Commission Act. On December 7, 2022, in his maiden speech in the Rajya Sabha, Dhankar called the striking down of the NJAC Act a “severe compromise” of parliamentary sovereignty and disregard of the “mandate of the people”. It is well-known that in the constitutional scheme of things in India, there is no such thing as the parliamentary sovereign’. If at all it is, it is the ‘constitutional sovereignty’, though we often talk of national sovereignty, which is correctly said. The law minister had also written to the Chief Justice of India seeking government representation in the collegium.

The law minister and the vice president questioned the judgment of the Supreme Court which came to be known as the Kesavanand Bharati case. The said judgment was delivered 50 years ago. In this judgment the court has held that while Parliament has the power to amend the Constitution, it does not have the power to amend its basic structure. It was and is held as one of the finest judgments delivered so far.

Both the erstwhile law minister and the vice president have attacked the basic structure doctrine not only to challenge the NJAC case but for more sinister design. The BJP really wants to change the basic structure of the Constitution, The BJP, for example is against the words ‘secular’ in the Preamble of the Constitution. Although this word was not in the Constitution, as it stood initially, it was inserted in the Preamble by the 42nd Constitutional Amendment Act. The BJP does not want that India should remain a secular country. They want that the word ‘secular’ be omitted in the Preamble of the Constitution, facilitating the declaration of India as Hindu state.

It is worthy to note here that Chief Justice Sikri and Justices Shelat, Grover and Khanna had declared secularism as one of the basic features of the Constitution even before the Forty-second Amendment, by which the word ‘secular’ was inserted into the Preamble of the Constitution. That the ‘secular’ nature of the Constitution is one of its basic features has subsequently been emphasised in innumerable cases.

Subsequent to the Kesavananda Bharati case, the Supreme Court made occasional exploratory searches to identify the basic features of the Constitution. In Kesavananda Bharti case itself, Chief Justice Sikri enumerated what he considered were some of the basic features of the Indian Constitution:

1) supremacy of the Constitution;

2) republican and democratic form of government;

3) secular character of the Constitution;

4) separation of powers between the legislature, the executive and the judiciary;

5) federal character of the Constitution.

Illustrating the statement that the basic structure of the Constitution could not be altered, Khanna J, said:

“It would not be competent under the garb of amendment, for instance, to change the democratic government into dictatorship or hereditary monarchy nor would it be permissible to abolish the Lok Sabha and the Rajya Sabha. The secular character of the State according to which the State shall not discriminate against any citizen on the ground of religion cannot likewise be done away with.”

In State of Rajasthan v. Union of India, independence of the judiciary, judicial review, and separation of powers were held to be the basic features of the Constitution.  This was reiterated in Subhash Sharma v Union of India, by a seven-judge Bench.

India 2023

Now let us discuss the present political scenario. The present political parties have no will or capability to think beyond the centralised system of governance. They are incapable to maintain the integrity of the Constitution and its secular character, and their calculated political actions towards weakening the key democratic institutions are ruinous.

I suggest a new civic movement must emerge with the aim of defending the Constitution and democratic institutions. Human rights defenders, activists and the people, who respect the Constitution should come to gather to fight to secure it.

A people’s movement should be developed on a non-party basis against the present government’s anti-constitutional policies, tactics, governance, ultra-Hindu nationalism of which is the main tool. And it can be done. Such endeavours have already started in the country. Bharat Jodo Abhiyan is one of them.

A large number of persons, who are in the non-government organisations  (NGOs), and who believe in democracy and secularism, and who are determined that India must never turn a theocratic or semi-democratic state, have  joined the Bharat Jodo Abhiyan. A few of such persons are:  Yogendra Yadav, Prashant Bhushan, Admiral Ram Das, Ram Puniyani, Medha  Patkar, Amol Palekar, Irfan Engineer, Nikhil Ray, P.V.  Rajagopal, Pooja Bhatt, Sunilam, Gauhar Raza, Shabnam Hashmi, Professor Anand Kumar,  Kumar Prashant, Prof. Shekhar Pathak, Kavita Srivastava, Ajit Bhuian,  Manoj Kumar Jha, Prahlad Tipania, Ashok Kumar Pandey, Rajeev Dhyani, Bhanwar Meghwanshi, Dr Subhash , Surendra Pal Singh, Ramchandra Rahi, T.M. Krishna,  Roop  Rekha Verma, S.P. Kumar and  Justice Kolse  Patil.

It is timely now that we talk a bit of Rahul Gandhi, who has of now generated some hopes and expectations for the better of the Indian democratic scenario and who is for  long unleashing unrelenting attacks on the ultra-nationalism, crony capitalism, and who is delivering hammer-blows to the Indian government’s  present fascistic policies, tactics and aims.

Rahul Gandhi was only 20 years of age when his father Rajiv Gandhi was assassinated in 1991. He came into active politics sometime in 2004 when Atal Bihari Vajpayee was the Prime Minister of the NDA government. In 2004 elections nobody expected that NDA would not return to power.  A significant political scenario emerged after the Lok Sabha elections of 2004. After years of sheer disgust and frustration with the system, which the Indian polity had remained plagued with, the unexpected poll   results had revealed that the voters had finally delivered a hard blow to the high profile politics, based on emotive communal divide, which had literally dumped the basic issues into the dustbin of electoral politics.

Rahul Gandhi had just entered the politics when his mother, Mrs Sonia Gandhi in 2004,  delivered a master stroke, either guided by strategic reasons or out of  a sense of sacrifice, when she refused to become Prime minister of India and instead nominated Dr Manmohan Singh as the prime minister. During the prime minister ship of Dr Manmohan Singh there were large-scale violations of human rights. In 2009 drastic amendments in the UAPA were made under which human rights activists remained in jails for a long period of time. Rahul Gandhi did not join the government after the Lok Sabha elections of 2004 and 2009.

In the 2014 and 2019 elections, the Modi government remained in power. During this period, there was virtually no opposition in the Lok Sabha. A group of senior Congress leaders, known as G-23, weakened the Congress further. The situation resulted in Rahul Gandhi and his mother remaining as the main leaders of the Congress.  Unlike his father Rajiv Gandhi, who was sworn in as the Prime Minister on the death of his mother Smt. Indira Gandhi for a short period of a month but who, in the general elections that followed (December 1984), enjoyed a clean sweep.

Unlike his father, Rajiv, Rahul Gandhi has had to compulsorily remain in politics and he has consistently kept raising people’s issues as the Leader of Opposition.  For 2024 elections it became necessary for him to have the Bharat Jodo Yatra. The aim of this yatra was to unite India and come together to strengthen our nation.

The yatra began on the September 7, 2022, from Kanyakumari to Jammu and Kashmir spanning a distance of 4000 kms over the course of about 136 days. The yatra received an overwhelming response: lakhs of people have joined the yatra to raise their voice against the economic, political, social issues that are afflicting our nation today. The yatra sought to address rampant unemployment and inflation, politics of hate and division, and over centralisation of our political system.

People from all walks of life came together to be a part of this historical movement. After Bharat Jodo Yatra a Bharat Jodo Abhiyan has been launched on the 6th February 2023 in which about 600 people participated came from around the whole country.

The draft resolution for National Convention of Bharat Jodo Abhiyan says:

“Today We the People of India embark upon a mission, a seven year long journey, to defend the future of India. Today we launch a movement, the Bharat Jodo Abhiyan, that can reclaim our republic, renew our Constitutional values, rescue our democratic institutions and rekindle the spirit of our freedom struggle. A movement of resistance to the unfolding assault on our Constitution, our nationalism, our civilization – indeed, the very idea of India. A movement of national reconstruction that extends its horizon from helping political change to fostering socio-cultural change and indeed combating climate change, that offers a credible hope to secure the constitutional promise of justice, liberty, equality and fraternity for every Indian.

“We are a group of citizens who have worked with various peoples movements, voluntary organisations and political formations. Many of us have participated in the historic Bharat Jodo Yatra from Kanyakumari to Srinagar, from despondency to optimism, from keeping quiet to expressing ourselves, from finger pointing to taking personal responsibility and from apolitical stances to explicit assertion of our political role as citizens. The unprecedented success of this yatra places an extraordinary responsibility on everyone who shared this journey with their body, mind or soul. We launch Bharat Jodo Abhiyan to fulfill this responsibility, to exercise our right to protect our hard won freedom and to discharge our sacred duty to defend our Constitution.”

It seems to me, nay,  my belief  is, that the menace that is hovering over our Constitution is very real, and very serious, and ignoring the same would tantamount to ignoring the imminent dangerous changes that may be effected not long before in India’s civilisation and cultural fabric and firmament.

In these circumstances, the immediate role, and response of, “WE, THE PEOPLE OF INDIA”, would decide at the end of the day whether we survive as a secular, federal, republican nation? Only our response to the situation would determine whether the gains and achievements that we earned through thousands of years of continual struggles and odyssey survives or are destroyed.

(The author is a senior advocate and national president of People’s Union for Civil Liberties- PUCL)

The post Serious times, grave challenges: India 2023 appeared first on SabrangIndia.

Setting aside the Constitution (Ninety-Ninth) Amendment Act 2014 and  NJAC Act  2014 was a fundamental and substantive set back to the Modi Government.  These two enactments were made with a motive to appoint judges convenient and to the liking of the executive so that in near future the Kesavanand Bharati case can be overruled and thereafterdrastic amendments in the Constitution be effected to legislate and allow the transformation (sic) of India into a Hindu Rashtra.

This can, nonetheless can be done  only by drastically amending the Constitution of India. So long as the Kesavanand Bharati (AIR 1973 SC 1461) holds the field it is not possible to do so in as much as Kesavanand has held that the Parliament in its power under Article 368 to amend the Constitution has no power to change the basic structure of the Constitution. 
Para 599 (expressing the Majority view) of the Kesavananda case reads as follows:-

 “The basic structure of the Constitution is not a vague concept and the apprehensions expressed on behalf of the respondents that neither the citizen nor the Parliament would be able to understand it are unfounded. If the historical background, the Preamble, the entire scheme of the Constitution,the relevant provisions thereof including Article 368 are kept in mind there can be no difficulty in discerning that the following can be regarded as the basic elements of the Constitutional structure (These cannot be catalogued but can only be illustrated).
1. The supremacy of the Constitution.
2. Republican and Democratic form of Government and sovereignty of the country.
3. Secular and federal character of the Constitution.
4. Demarcation of power between the legislature, the executive and the judiciary.
5. The dignity of the individual (secured by the various freedoms and basic rights in Part III and the
mandate to build a welfare State contained in Part IV.
6. The unity and the integrity of the nation.”
 
It is important  to note here that the word “Secular” was inserted in the Preamble of the Constitution by  the Constitution’s Amendment Act w.e.f 3.1.77 whereas in the Kesavanand’s case “Secular” was held  to be  a basic feature  of the Constitution on 24.4.73.   
 
In S.R.Bommai  (AIR 1994 SC 1918)  Para 28  reads as follows :
 “Notwithstanding the fact that the words ‘Socialist’ and ‘Secular’ were added in the Preamble of the Constitution in 1976 by the 42nd Amendment, the concept of Secularism was very much embedded in our constitutional philosophy. The term ‘Secular’ has advisedly not been defined presumably because it is a very elastic term not capable of a precise definition and perhaps best left undefined. By this amendment what was implicit was made explicit. The Preamble itself spoke of liberty of thought, expression, belief, faith and worship. While granting this liberty the Preamble promised equality of status and opportunity. It also spoke of promoting fraternity, thereby assuring the dignity of the individual and the unity and integrity of the nation. While granting to its citizens liberty of belief, faith and worship, the Constitution abhorred discrimination on grounds of religion,
etc……………………………………………..These  fundamental rights enshrined in Articles 15, 16, and 25 to 30 leave no manner of doubt that they  form part of the basic structure of the Constitution.”
 
This aspect has been concluded in S.R.Bommai in paragraph 88 in the following words:
“These provisions by implication prohibit the establishment of a theocratic state and prevent the state either identifying itself with or favoring any particular religion or religious sect or denomination .The State is enjoined to accord equal treatment to all religions and religious sects and denominations”.
 
The current political scenario in India is much worse then what was experienced  and witnessed during the  emergency from  mid-1975 to early 1977 ( A period of only 18 months)..

The situation leading up to the declaration of Emergency was the inevitable result of a chain of events starting from the April 24, 1973: the date on which the Kesavanand Bharati case was decided by a  small majority of 7 : 6 upholding  the  Basic Structure Doctrine till the date of declaration of Emergency.

In fact it was in Golak Nath vs State of Punjab (AIR 1967 SC 1643) that the issue of the scope of the  power of  Parliament to amend the Constitution under Article 368 was raised. By slender majority the Court held that Parliament could not abridge or take away the Fundamental  Rights.

The Golak Nath judgment negated the sweep of Article 368 to amend provisions contained in Part III of the Constitution. This was the first major step taken by the Supreme Court to contain the erosion of the Constitutional scheme. After the judgment in Golak Nath, Indira Gandhi painted the Court as the principle adversary of her radical politics. Indira Gandhi launched a campaign, against the judicial system, calling it a major obstacle to progress towards socialism. She mobilised quite a few intellectuals, academics, lawyers and judges- who emphatically criticized the Supreme Court’s decision in Golak Nath and generally regarded the court as the principle class enemy.

How the Kesavanand case was decided by such a thin majority

A  detailed  and authentic account is given by Granville Austin in Chapter 11 of his celebrated book “Working a Democratic Constitution – The Indian Experience”. It makes for interesting reading that details how Indira Gandhi attempted the case to be decided by overruling the Golak Nath case.On the following day that is on the 25^th April 1973 the President of India  appointed A.N.Ray as the next Chief Justice of India  superseding Shelat, Hegde and Grover, the three senior most judges , who , by the convention of seniority, were next in line for the position. And thereby Mrs. Indira Gandhi struck a grievous blow to democratic constitutionalism as well as to  the independence of judiciary.

On the June 5, 1974 , more than a  year after the Kesavanand Case, Jai Prakash Narayan started a massive movement  of the “Total Revolution”. While the J.P. movement was gaining ground amongst the masses, Mrs Indira Gandhi’s election was set aside by the Allahabad High Court on June 12, 1975. J.P demanded her resignation in a huge public meeting on June 25, 1975. Instead of resigning Indira Gandhi declared an  Emergency in the night intervening June 25/26 1975 because of the turmoil and  incipient rebelling in the country. Thousands were detained throughout the country. The detentions were challenged by filing petitions in the High Courts. Nine High Courts out of 13 decided in favour of the detainees. In appeal in the  Supreme Court  ADM Jabalpur case (also known as Habeas Corpus case ) was decided on April 28, 1976. Four out of the five Judges, Chief Justice Ray, Justice Be , Justices Chandrachud and Bhagwati upheld the Government of India’s position. Only Justice Khanna dissented .In January 1977, Justice H.R. Khanna was  superseded as he was not made Chief Justice of India on his turn and he resigned to give way to Justice Beg to become the CJI.

 Mrs  Gandhi remained out of power from March 25, 1977 to  January 1980. The People’s Union For Civil Liberties (PUCL) was formed in November 1980 with a written Constitution which was entirely a different entity from the PUCLDR  formed four years previously on October 17, 1976 which functioned only for three months .

On her re-emergence after the fall of the Janata Government  Mrs Gandhi took up her unfinished task of having a “committed” judiciary which she wanted to accomplish during 1971-77. It was fully achieved with the help of the judgment of the seven Judges Constitution Bench of the Supreme Court headed by Justice Bhagwati by a thin majority of 4:3 in the S.P.Gupta case.

The question raised and decided in the case of S. P.Gupta was about  the question of supremacy, whether of the Executive on the one hand and the CJI and Chief Justices of the High Court on the other hand  in the matter of appointments of the Judges of the High Courts  as well as the Supreme Court . 

The fallout of S.P. Gupta was that the opinion of the CJI and Chief Justices of High Courts were totally ignored in the matter of appointment and transfer of judges and power had concentrated completely  in the hands of the corrupt Executive to the exclusion of the Judiciary , for a period of about 12 years the judges in the High Courts  and the Supreme Court were appointed by the corrupt Executive.

The judgment in S.P.Gupta came on December 30, 1981 which was overruled in the Second Judges case decided on October 6, 1993. The S.P.Gupta case went to the extent of holding that consultation by the President of India with the CJI in the case of Supreme Court, and CJI and Chief Justices of the High Courts in the case of appointment of High Court was only formal.

In the Second Judges case the Supreme Court held that the opinion of the Chief Justice of India for the purposes of Articles 124 (2) and 217 (1), so given has primacy in the matter of all appointments;  and no appointment can be made by the President  under the provisions to the Supreme Courts and the High Courts unless it is in conformity with the final opinion of the CJI formed in the manner indicated .

The Third Judges case came on a reference made by the  President of India under Article 143 of the Constitution of India. It was decided on October 28, 1998. Through this judgment the manner of appointment of judges through the Collegium system was introduced. It may be seen here that in the Second Judges case there was nothing at all to introduce a Collegium system.

Although a bare reading of the relevant provisions of the Constitution goes to show that the collegium system was not in accordance with the Constitutional scheme but it was generally welcomed. To begin with, the system seemed to work well. In early 1999, a large number of Judges were appointed in various High Courts and it appeared that all those appointments were made on the basis of objectively viewing the merit by the collegiums of the Supreme Court and various High Courts. These appointments were made to the satisfaction of all concerned.

However, not long  after its introduction it started appearing and an impression was gaining ground that the collegium system has derailed from its basic objective of choosing judges on the basis of merit. There were complaints that the merit had taken the backseat while considering or choosing a lawyer for judgeship and this  caused anger as well as frustration amongst those who were  deprived of the judgeship despite being eligible on the ground of merit. The majority of the  Bar members had become more vocal than they were in the past about the inadequacies in the appointment of judges.

The collegium of the Supreme Court and the High courts started recommending the names of the kith and kin of their fellow judges and Collegiums of the High Courts  also started recommending the names for appointment of judges on the suggestion of the Supreme Court Judges without judging their merits independently. This created a conflicting vested interest in the Bar which prevented a united agitation against the arbitrary manner in which the judges were being appointed.

Why and how did the collegium system got derailed from its basic objective of choosing judges on the basis of merit so soon after its introduction?

The reason appears to be that the judges appointed in various High Courts during the period the executive had the supremacy to appoint them (i.e. between December 30,1981 and October 6.1993) became senior judges in the Supreme Court and started becoming members of the collegium of the Supreme Court and the collegium of the various High Courts, so much so that when Justice V.N. Khare was the CJI the whole of the Supreme Court was packed with the judges who were appointed in post SP Gupta and pre Second Judges case, who had a different mindset being chosen during the period of the supremacy of the executive.

There was a lot of hue and cry  with this method of the appointment of  judges by the judges themselves.

Both the UPA as well as the NDA governments were and are taking advantage of  such adverse public opinion against the method of appointment by the  Collegium system  and tried to bring a Constitution amendment and a legislation to establish a National Judicial Commission for the appointment of the Judges in the High Courts and the Supreme Court.

Finally the NDA government brought Constitution (Ninety–Ninth) Amendment Act 2014 and   along with it National Judicial Appointment Commission Act 2014 by which  a Commission for selection and appointment and also transfer of Judges of the Higher Judiciary should be constituted  replacing the  prevailing procedure for appointment of Judges and Chief Justices of the High Courts and the Supreme Court of India , contemplated under Article 124 (2) and 217(1).

It was felt, that the proposed Commission should be broad based.

In that, the Commisssion would comprise of the members of the Judiciary, the Executive and eminent and important persons in public life. In this manner it was proposed to introduce transparency in the selection process. Fortunately a Constitution Bench by majority of 4 : 1 , set aside the Constitution (Ninety –Ninth) Amendment Act 2014 as well as the National Judicial Appointment Commission Act 2014 on October 16, 2015. Thus, repelling the gravest possible threat to the independence of judiciary. Chief Justice Kehar and his companion Justices thus secured for the time being at least the continued independence of the judiciary. Para 935 of the judgment of the Constitution Bench reflects the majority view. It reads as follows:
 

“ The sum and substance of this discussion is that mandatory consultation between the President and the Chief Justice of India postulated in the Constitution is by passed- bringing about a huge alteration in the process of appointment of judges; the Ninety- Ninth Constitution Amendment Act and the NJAC Act have reduced the consultation process to a farce- a meaningful participatory consultative process no longer exists; the shared responsibility between the President and the Chief Justice of India in the appointment of Judges is passed on to a body well beyond the contemplation of the Constituent Assembly; the possibility  of having committed judges and the consequences of having a committed judiciary , a judiciary that might not be independent is unimaginable.”

Setting aside the Constitution (Ninety-Ninth) Amendment Act 2014 and  NJAC Act  2014 was a fundamental and substantive set back to the Modi Government.  These two enactments were made with a motive to appoint judges convenient and to the liking of the executive so that in near future the Kesavanand Bharati case can be overruled and thereafterdrastic amendments in the Constitution be effected to legislate and allow the transformation (sic) of India into a Hindu Rashtra.

Tension between the judiciary and the Executive, or within the judiciary itself are nothing new. It has existed over the years since early 1970s, over matters like judge’s appointments or operational procedure etc.
 
The chain of events from the date of supersession of judges (April 25.1973) until the date of the retirement of Chief Justice of India, Deepak Mishra on October 2.10, 2018 show how there crept in a permanent and sharp division  in the judiciary as well as the Bar and a race amongst a section of senior judges to demonstrate who is more “Committed” (to the Executive), has begun then and is continuing even now.
 
This commitment to the Executive mindedness by the judges is best demonstrated while dealing  with the Constitutional validity of draconian laws.
 
Article 13(1) declares:- “All laws in force in the Territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this part , shall, to the extent of this inconsistency be void.
 
Article 13 (2) mandates that the “State shall not make any law which takes away or abridges the rights conferred by this part in any law made in contravention of this clause , to the extent of this contravention be void.”
 
Even after the Constitution came into force on January 26, 1950 , the government did not think that the continued existence of laws  in contravention of Article 13(1), were unconstitutional.
 
On the contrary, many of the draconian laws passed by the British to contain and repulse the struggle for independence  still continue  today and unfortunately the judiciary too continued with the colonial traditions , which can be illustrated by what happened in the case of A.K.Gopalan. Justice O.Chinnappa Reddy in his book, “The Court and the Constitution of India: Summits and Shallow” while dealing with the Gopalan case noted  :
 

“The Majority Judges appeared  to be still under the influence of the old colonial jurisprudence and oblivious to the fact that what they were expounding was the jurisprudence of a new Constitution for people who had just freed themselves from colonial rule . One wishes that they had kept in mind the admonition of Lord Atkinson J in Liversiege v Anderson .
             I view with apprehension the attitude of judges who on a mere question of construction when face to face claims involving the liberty of the subject show themselves more Executive minded than the Executive.” (emphasise mine)

 
Some of todays laws  are more draconian than the draconian laws enacted during the  British period. The Constitutional validity of all such draconian laws have been upheld by the Supreme Court except the latest enacted law in 2008 making drastic amendments in Unlawful Activities Prevention Act 1967 (UAPA)  incorporating all the draconian provisions of TADA and POTA.
 
The Constitutional validity of TADA was challenged in Supreme Court in Kartar Singh vs State of Punjab [ SCC (1994)(3) 569]. The judgment has been severely criticized by many distinguished  lawyers and jurists. According to K.G.Kannabiran, the Supreme Court upheld the validity of TADA “Virtually proceeding on the assumption that the act is more fundamental than the Constitution”. Thereafter the constitutional validity of POTA was challenged by the PUCL.
 
 Since POTA had similar provisions as TADA and since the grounds of attack in the Supreme Court in POTA were  almost the same as were argued in the case of Kartar Singh , the Division Bench upheld the Constitutional validity of POTA on the ground that the law laid down by the Constitution Bench in Kartar Singh was binding on the Bench of two judges.
 
The present situation is an inevitable result of Modi’s election campaign and his coming into power in  2014 . Recent years have witnessed systematic attacks on the human right defenders and the  fearless journalists.  Writers and rationalists, countering the dominant view of religion and progressive in their writings have also been violently attacked. Today any dissenting expression stands stifled. 

Three rationalists and thinkers Narendra Dhabolkar , Govind Pansare and M.M. Kalburgi and the eminent and fearless journalist Gauri Lankesh were murdered by unidentified people in the last three years, apparently by pro- Hindutva groups.  A number of incidents of lynching have occurred since 2014. According to a Reuters Report published in June 2017, a total of “28 Indians – 24 of them Muslims- have been killed and 124 injured since 2010 in cow related violence”.

About the attacks on human rights defenders Mathew Jacob in his note ‘Democratic space and the Regime’, recently published in “Dismantling India –A 4 year Report”. :
“Over the period 2015-2018,  Human Rights Defenders Alert (India ) (HRDA) has documented over 300 cases of attacks on HRDs across the country. HRDs and members of their families are facing threats to their personal and physical security. They are being profiled, harassed, intimidated, ill-treated and subjected to hateful abuse in the media. Their physical security and lives have been threatened in a systematic manner. They are arbitrarily arrested or detained and cases filed against them. Their offices raided and files stolen and confiscated. And in extreme cases, they are tortured, made to disappear or even killed. HRDs are the victims of State repression, often charged with fabricated cases with instances of state manipulating the judiciary”.

The above mentioned 300 cases of attacks on HRDs are over and above ten activists and eminent citizens who were arrested under UAPA in connection with Bhima-Koregaon clashes by the Pune police, controlled by the Home Department of the BJP-led State governments in Maharashtra . Five of them were arrested , in June 2018. They are Surendra Gadling, General Secretary of Indian Association of People’s Lawyers from Nagpur;  Professor Shoma Sen Head of Department of English , Nagpur University; Sudhir Dhawale Editor of Marathi Magazine , Vidrohi from Mumbai; Rona Wilson Public relation Secretary, Committee for the release of the political prisoners, ( CRPP); and Mahesh Rout, Anti-Displacement activist from Bharat Jan Andolan. The other five were arrested on August 28, 2018  in simultaneous raids conducted in multiple cities across the country on the pretext of investigating Koregaon Case- Sudha Bharadwaj in Faridabad, Varavara Rao in Hyderabad , Gautam Naulakaha in New Delhi and Vernon Gonsalves and Arun Ferreira in Mumbai.

The Pune police has claimed that all these five persons were “Urban Naxalites” who had links with the Left-Extremists Communists Party of India ( Maoists) and were in the process of creating large scale violence, destruction of property resulting in chaos. Against the detention of five persons arrested on August 28, 2018, the PIL petition was filed by 5 eminent citizens of the country including the eminent historian Romila Thapar and 4 others, in which the 5 persons arrested also joined as petitioners has been disposed off by the Supreme Court on October 28, 2018 .
 In the situation as it exists today it seems difficult to successfully challenge the Constitutional validity of UAPA.

Be that as it may. The Constitutional validity of UAPA must be challenged by asking the Supreme Court that Kartar Singh case upholding the validity of TADA by the Constitution Bench has been wrongly decided and the matter of Constitutional validity of UAPA should be decided by constituting a Larger Bench .

We must rest thus battle in the hope that, at this juncture, withinthe composition of the Supreme Court there may not be many Judges who are in the race of showing them as “Committed”.
I conclude this note with the following quote :
 

“The Constitution does not work by itself: It provides that any law which abridges or abrogates fundamental rights shall be void. But laws don’t carry on their forehead the mark that they are invalid . When a person is preventively detained under an illegal law, the fact that it has vitiated the Constitution does not help you , unless by an appropriate remedy, he can get out of jail. Nor are laws self executing. It is left to the Executive to administer law and that is where the most serious problem arises.”

(H.M.Seervai at a public meeting held in the Bombay University Convocation Hall on AUG 20 ,1982 under the auspices of the People’s Union for Civil Liberties)

(The author is a renowned civil libertarian, associated with the People’s Union for Civil Liberties and a senior advocate in the Allahabad High Court)
 

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It is interesting to note that the Preamble , though the Constitution opens with it , was not the first to come into existence .It was the last piece of drafting adopted by the Constituent Assembly at the end of the first reading of the constitution . The motion to adopt the Preamble was moved on the October 17, 1949. It was suggested during the debates that the Preamble be taken up when the Constituent Assembly would meet in November for the third reading as by that time the Drafting Committee would also have submitted its final report to the House. Maulana  Hasrat  Mohani  objected to the postponement submitting that unless the Preamble was passed on that day at the first reading itself , the Drafting Committee could not produce any report on the second reading . K.M.Munshi  supported him. Maulana  Hasrat  Mohani  by  making a humorous comment – “Once in my life I support the Maulana Saheb !” The President ruled that the Preamble should  be passed on that day to enable the Constitution as a whole being passed in its second reading and the Preamble forming part of the Constitution . Several amendments were suggested to the Preamble but they were all negated.

At the end, the President moved the motion –“That the Preamble stands part of the Constitution.” The motion was adopted on Novemer 2, 1949 . The Preamble was added to the Constitution.

In the words of Justice Jagan Mohan Reddy in his judgment  in  Kesavananda Bharati  v. State of Kerala,  1973 (4) SCC 225–

“The Preamble to the Constitution which our Founding Fathers have , after the Constitution was framed , finally settled to conform to the ideals and aspirations of the people embodied  in that instrument, have in ringing tone declared the purposes and objectives which the Constitution was intended to sub serve.”

The question arises as to why it was introduced during the Emergency. Was it not a challenge to the wisdom of the Constitution-makers? The Constituent Assembly consisted of persons who had no partisan motive nor they had any axe to grind. They were men of vision; they inspired confidence, and were all products of the struggle for independence.

In the struggle for independence, the people of different religious pursuits had a natural worry as to what sort of religious freedom they would be able to enjoy in an independent India. When Mahatma Gandhi appeared on the scene and transformed the freedom movement into a mass movement in 1920s, it was realised that people could hardly be motivated to go the whole hog for the freedom struggle unless they were assured that their religious beliefs and systems would be secure in a post-independent India and that they would not be marginalized and sidelined, in case they belonged to the minority community. 

It was in the pursuit of this very assurance that Gandhiji gave to the people the much-valued concept of ‘Sarva Dharm Sambhav”–the principle that all religions are equal. The Mulsim League had boycotted the Constitutent Assembly when it started its session on December 9, 1946, and it continued to boycott it even thereafter. Evidently the pressure worked, and on June 3, 1947, Lord Mountbatten announced the coming into existence of two independent States with effect from August 15, 1947.

On August 14, 1947, the President of the Constituent Assembly, Dr Rajendra Prasad remembered Mahatma Gandhi in the following words while speaking on the floor of the Assembly, “Let us also pay our tribute of love and reverence to Mahatma Gandhi who has been our beacon light, our guide and philosopher, during the last 30 years or more. He represents that undying spirit in our culture and make-up which has kept India alive through vicissitudes of history.” And then he went on to say, “To all the minorities in India we give the assurance that they will receive fair and just treatment, and there will be no discrimination in any form against them. Their religion, their culture, and their language are safe, and they will enjoy all the rights and privileges of citizenship…To all we give the assurance that will be our Endeavour to end poverty and squalor and its companions, hunger and disease: to abolish distinction and exploitation and to ensure decent conditions of living.”  These words of Dr Rajendra Prasad on the floor of the Constituent Assembly were clearly influenced by the overwhelming concept of “Sarv Dharm Sambhav” which reigned supreme in the minds of the members of the Constituent Assembly, and this later found ample manifestation in the provisions specifically incorporated in the Constitution. Article 15  says, ‘The State shall not discriminate against any citizen on ground only of religion, race, caste, sex, place of birth or any of them” and  also Article 25 provides that “all persons are equally entitled to freedom of conscience and the right  freely to profess, practice and propagate religion”. What needs to be taken note of is that absolutely nothing happened in the country from 1950, when the Constitution was enforced, to 1977 to hasten the urgency of bringing about a Constitution Amendment to incorporate the word “secular” in the Preamble of the Constitution.

As a matter of fact, the politics in the country remained during all these years focused on issues, people participated overwhelmingly and spontaneously in the poll process, and the public debates were focused primarily on the key issues concerning the masses of this country. In fact, cutting across all barriers of castes and religion, people voted on the issue of “garibi hatao” in the 1971 Lok Sabha election. Paradoxically, however, the post-1971 years unfolded nothing effective to tackle the problem of poverty and economic disparities, but, instead, the State, literally dominated by one individual, gave place to a process of demolition of Constitutional institutions. Three Judges of the Supreme Court were superseded. Then followed the Emergency, letting loose a reign of terror, and one of its fallouts was the apex court verdict in ADM Jabalpur case. Against this backdrop came the controversial 42nd Constitution Amendment. 

Nehru told the members of the Constituent Assembly on August 14, 1947, “The service of India means the service of the millions who suffer. It means the ending of poverty and ignorance and disease and inequality of opportunity.” The country was to achieve this objective on the basis of the principles contained in Part IV of the Constitution, which were “fundamental in the governance of the country”. Incidentally, in the Statement of Objects and Reasons in respect of the 42nd Constitution Amendment, similar expression has been used in the following words, “The question of amending the Constitution for removing the difficulties which had arisen in achieving the objective of socio-economic revolution, which would end poverty and ignorance and disease and inequality of opportunity, had been engaging the active attention of government and the public for some years…It was, therefore, considered necessary to amend the Constitution to spell out expressly the high ideals of socialism, and integrity  of the nation”. 

Paradoxically, after the word “secular” found place in the Preamble as a result of the 42nd Amendment that it was lapped by sections of opportunistic politicians to fuel a highly retrogressive and diversionary debate of secularism vs communalism and vice versa. What the country saw in its wake? The demolition of the Babri masjid and the resultant communal  holocaust  followed by Bombay, Surat attacks on minorities  and in other cities in january 1993,  thereafter  Gujarat  communal  massacre and then the recent  Muzaffarnagar  communal riots . 

Looking back, the communalism  vs  secularism debate  has only  resulted in throwing into the backyard the issues of removing poverty, illiteracy, disease, and inequality of opportunity. On the other hand, non-issues became issues and issues became non-issues in politics and polls, and what has been worse, it generated its own pernicious offshoot. Politics and polls got additionally hooked onto castes versus castes. The real issues, confronting the people, like poverty, disparity, exploitation, hunger, unemployment, illiteracy, power crisis, environment degradation, and water scarcity, alarming loot and destruction of our forests,  and population explosion have been sidelined. Likewise, criminalization of politics and corruption have also become non-issues.
There has been no difference between various governments at the Centre or the States during the last two decades on the question of following the economic policies on account which the forces of globalisation have slowly but solidly deprived India of its economic and political sovereignty so much so that the country has lost its right to determine its own agenda of governance and development, which now rests with the international powers, multinationals and world-funding  agencies.

The question is how long shall we permit this to continue by keeping the people involved the nationally detrimentally quarrels over secularism vs communalism or castes vs castes?

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The Indian Express dated April 20 , 2017  in its Editorial observed “Finally, the wheels of justice are turning in the Babri Masjid demolition case. The possibility of due process leading to justice and closure in one of the most seminal cases in India’s political history seems within reach now, 25 years after the 16^th century mosque at Ayodhya was demolished by Sangh Parivar activists in the wake of the Rath Yatra of the-then BJP Chief L.K.Advani, shaming a nation and setting powerful new political dynamics in motion. The Supreme Court’s order on Wednesday sets back on track the judicial process and lays down conditions to ensure that the trial is not delayed or compromised further.”
Following the 1984 Elections in which Rajiv Gandhi had a clean sweep, BJP could secure only 2 seats in Lok Sabha. The Sangh Parivar started a campaign for the construction of a magnificent Ram Janam Bhoomi Temple at the site and by 1985 built up a sizeable support in the Hindu Community.In January 1986, locks were removed from the mosque and Ram bhakts were permitted to offer prayers to Ram lala .It is said that the Prime Minister Rajiv Gandhi ordered the Chief Minister Veer Bahadur Singh to do so who got the District Administration to ensure this .The two major political parties BJP and the Congress started a race on pandering to communal Hindu sentiments. In 1988 ,Hindutva Organizations led by the RSS organized a mass campaign for building a grand temple exactly where the Mosque stood. They claimed that the Mosque stood at the precise site where Ram was born.

 Union Home Minister Buta Singh signed an agreement with the VHP on August 17, 1989,that bricks for constructing the temple would be allowed to be brought from all over UP without hindrance and collected at the plot No. 586 near  the mosque .This agreement was in violation of an order of the Allahabad High Court given on August 14, 1989 that no construction activity could be taken at that spot.

Later ,the VHP announced that ‘kar sewa’ would be performed to lay the foundation stone .This was also a violation of the judgment given two days ago,prohibiting any such activity .This repeated defiance ,of the orders of the court did not weigh with the Prime Minister who inaugurated the campaign of Congress Party the next day from twin city of Faizabad, and announced that the objective of the party was to establish Ram Rajya. Soon thereafter the BJP   President Advani, at Palampur ,after the National Executive Meeting ,announced that the inclusion of the construction of the temple in its Election Manifesto "would fetch votes" for it. It would thus appear that the two major political parties were in a race to gain political mileage from this issue between 1984 and 1989.

Looking back at the developments around 1989, we are reminded how Mandalisation was made an effective issue  by the casteist forces in answer to BJP’s Kamandalisation. Very soon, casteist forces came to acquire political legitimacy by projecting themselves as political forces opposed to communalism, and in order to appear so, they masked themselves as “secularists”, though the truth was that they had discovered “caste politics” as a potent instrument to win success at elections without even doing anything while in power for solving the basic problems of the masses. There emerged a consensus among various political parties to maintain their vote banks by dividing the people on caste and communal lines.  Non-performance by a party in power became irrelevant because of its potential to work out a favourable caste arithmetic and win elections. Communalism on the one hand and casteism on the other thus acquired a firm sway over the Indian polity. If anything, it were the three C’s—centralisation, corruption and criminalisation—coupled with the caste  and communal divide, engineered by opportunistic political forces as the shortest route to quick success, which made all the relevant issues, concerning the public, irrelevant. While corruption and criminalisation sapped the soul out of the ideal of people-oriented democratic governance, centralization of political authority led to an unaccountable bureaucratization of governance.

In this backdrop the movement to construct a Ram temple at the sight of the Mosque  also gathered momentum in 1989 and has continued till 1992. The Supreme Court in M.Ismail Farooqui vs UOI,(AIR 1995 SC 605) noticed: “A new dimension was added to the campaign for the construction of the temple with the formation of the Government in Uttar Pradesh in June 1991 by the Bhartiya Janta Party (BJP) which declared its commitment  to the construction of the temple………….The focus of the temple construction movement from October 1991 was to start construction of the temple by way of ‘kar-sewa’ on the land acquired by the Government in Uttar Pradesh while leaving the disputed structure intact. ….There  was a call for resumption of kar sewa from December 6, 1992 and the announcement made by the organizers was for a symbolic kar-sewa without violation of the court orders   including those made in the proceedings pending in this court. Inspite of initial reports from Ayodhya on December 6, 1992 indicating an air of normalcy, around mid-day a crowd addressed by leaders of BJP, VHP, etc.,  climbed the Ram Janma Bhoomi – Babri Masjid (RJB-BM) structure and started damaging the domes. Within a short time, the entire structure was demolished and razed to the ground. Indeed it was an act of “National Shame” what was  demolished was not merely an ancient structure ; but the faith of minority in the sense of justice and fair play of majority. It shook their faith in the rule of law and constitutional processes. A five hundred year old structure which was defenceless and whose safety was a sacred trust in the hands of government was demolished.”

 In a speech from the Red Fort in Delhi on August 15, 1992 which was broadcast , the Prime Minister P.V. Narasimha Rao had already said  that “The Babri Masjid structure will be protected and the Ram temple built”. This assurance would lead people to draw a conclusion that the Ram Temple was not to be built on the site of the Babri Masjid because that structure was to be protected. The destruction of the Babri masjid had deeply wounded the religious feelings of the Muslim community throughout india and the least that could be done to sooth those injured feelings was to assure the community that the Babri Masjid was to be rebuilt. The Prime Minister gave that assurance on Dec 7 ,1992, and he referred to it on February 7 , 1993 in the BBC ‘Phone-in programme’ . He said “ I thought it was necessary, it was my duty to rebuilt the Mosque.”
 “ The judgments delivered by the Lucknow Bench of Allahabad High Court on September 30, 2010 on the Babri Masjid cases not only flagrantly violate the law and the evidence but a binding unanimous judgment of the Supreme Court on the Babri Masjid case itself (M. Ismail  Faruqui  and Others vs Union of India and Others  (1994)6 Scc 360. It sanctified the conversion of a historic mosque ,which stood for 500 years into a temple.” Said A.G.Noorani in his article “Muslims Wronged” in Oct 22 ,2010 issue of Frontline . Noorani further says in the same article , “On the Babri Masjid ,for 60 years from 1950 to 2010, Muslims have been woefully wronged by every single court ruling ,including that of the Supreme Court after the demolition of the mosque on December 6, 1992”.

 An eminent jurist and Senior Advocate of Supreme Court T.R.Andhyarujina  in his article (The Hindu ) Oct 5, 2010 said “The absence of any condemnation of the vandalism of the demolition of the Babri Masjid on Dec 6, 1992 is a conspicuous aspect of the Ayodhya verdict of the Allahabad High Court .”  T.R.Andhyarujina further says in the same article :  “The  Ayodhya judgments  of the  Allahabad High Court make no note of the vandalism of Dec 6, 1992 .On the other hand ,they take the demolition as a fait accompli, as if the disputed 2.77 acre site was vacant land .After holding that the area beneath the central dome of the erstwhile Masjid must be allotted to Hindus because of their faith that Lord Ram’s place of birth was there ,and the areas covered by the Ram Chabutara and Sita Rasoi should be allotted to the Nirmohi Akhara ,the court has said that the remaining area of the disputed site should be divided, two-thirds to the two Hindu plaintiffs and  one third to the Muslim plaintiff by metes and bounds .These judgments, therefore legalise and legitimise the 1992 demolition, as the decree of the court proceeds on the basis that there is no Masjid on the disputed site today.

It is an elementary rule of justice in courts that when  a party to a litigation takes the law into its own hands and alters the existing state of affairs to its advantage,(as the demolition in 1992  did in favour of the Hindu plaintiffs ), the court would  first order the restitution of the pre-existing  state  of affairs .”

H.M.Seervai ,one of the most distinguished constitutional lawyer in a two-part article “Babri masjid” published in Economic Times on April 9 and 10, 1993, said:
“The destruction of the Babri Masjid put an end to all previous controversies raised by Hindu organisations about their alleged rights to erect a temple on the place where Babri Masjid stood. This is because no Court will give any assistance to those who unilaterally by criminal acts destroyed the subject matter of this dispute and violated the constitution and the law .”

The Allahabad High Court verdict came on September 30, 2010 during UPA-II regime. After Allahabad High Court judgment a grave and serious danger to Indian democracy appeared on the horizon. This verdict gave a legal shape to the political agenda of the Sangh Parivar “Mandir wahin Banaenge”  and has legitimised the Masjid demolition on December 6, 1992 giving them a way to claim to construct a “Grand Temple” at the sight of the demolished Masjid  and gave a boost to the BJP to contest 2014 Elections based on this issue.

Although against the Allahabad High Court judgments many appeals were  filed in the Supreme Court (which are still pending), and the question as to whether they could  construct a temple at the site of the Mosque had yet to be finally decided by the Supreme Court, the  Sangh Parivar continued  with their campaign for 2014 elections that they would   construct a Grand Temple . This judgment gave strength to the BJP and the power behind it- the RSS and the Sangh Parivar consisting of such organization as the Akhil Bhartiya Vidyarthi Parishad, the VHP and the Bajrang Dal. They gave to Indian politics a heady mixture of aggressive hindu communalism and an equally aggressive hindu nationalism. In that process they promoted enemity between the Hindus and the Muslims. The movement fostered by these forces  contains all the essential characteristics of fascism.

It was after about three and a half months from December 6, 1992 and the demolition of the Babri Masjid, that the 13^th J.P.Memorial Lecture was delivered by V.M.Tarkunde on March 23, 1993. The subject of the lecture was Communalism and Human Rights . V.M. Tarkunde said in that lecture: “ I am of the view that the communalist nationalism which is being propagated by the BJP and the Sangh Parivar represents a far greater danger to Indian Democracy than the personal authoritarian rule which Mrs. Indira Gandhi and the  Gandhi-Nehru family were likely to impose on the country.  A personal authoritarian rule is a lesser danger because it is largely external to the people. Most of the people do not approve it, although they are usually too afraid to stick out their necks and openly oppose it ….Communalism, however , particularly when it is the communalism of the majority and can therefore take the form of ardent nationalism as well , can find a positive response in the minds of the people who are still prone to religious blind faith and among whom the humanist values of democracy , i.e, values of liberty, equality and fraternity are yet to be fully developed. Communalism in such cases is an internal enemy in the human mind and it is far more difficult to eradicate it than an external enemy like an autocratic ruler .” V.M. Tarkunde cautioned about the possibility of the BJP coming into power in the next elections (after demolition of the Mosque in Dec 1992). In this context he said in his memorial speech “as the Congress –(I)  is now much weaker than before and the opposite parties are unable to unite –to form an anti-communal secular platform , the BJP expects to come to power in the next election. If this happens , the secular democracy in India is liable to be replace by a potentially fascist theocratic state.” However , it did not  so happen in the next election. But in 1999 BJP led coalition NDA formed the govt. with Atal Bihari Vajpayee as Prime Minister,with a strong opposition in Parliament. What VM Tarkunde apprehended in 1993 did happen in 2014: with the the victory of Modi with a huge margin to Parliament and faced with a weak and divided opposition.

Now after three years of the victory of Modi in the Centre , Yogi Adityanath, a Hindu icon has been elected as the leader of Uttar Pradesh Legislative Party and installed as Chief minister .The BJP has secured  a majority of 325 members in the Legislative Assembly having the strength of 403 . Yogi has the reputation of being a hardcore Hindu leader . His becoming the Chief Minister shows that Hindutva is sweeping the country. It also shows that secularism has not taken roots in our country. The Hindutva elements  are gradually sweeping the country. These developments are a serious threat to the state of human rights in the country and all concerned citizens need to seriously give a thought to how they have to meet this grave challenge.
 

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