Teesta Setalvad: Thank you so much. Very good and warm evening to Rajiv Dhawan and Mr. Mihir Desai, both senior counsels and extremely erudite jurists in their own right.

Mr. Rajiv Dhawan needs very little introduction but we have seen them in an absolute heroic role as far as some of us are concerned in the Babri Masjid case or in the recent defence of Prashant Bhushan in the contempt case, if we follow so closely. Mihir Desai is no less committed a hero when it comes to Constitutional cases. The extremely difficult Bhima Koregaon case is where you see some of our finest advocates, academics and activists being castigated through an unfair and extremely un-constitutional UAPA. Mihir has been defending, apart from the Gujarat, 2002 cases. Thank you both so much for being with us today (Constitution day).

I thought we should have this discussion on November 26, 2020 because I’ve heard both of you, on several occasions, talk about this issue and I think a lot of people have bothered by this question. Yes, we have a Constitution which we stand by, we revere, we need but is the Constitution enough?

Today article 19 1(a) (b) (c) (d) we saw was snatched away by the lathis and water cannons of a regime that has not even read the Preamble, and has no understanding of Ambedkar nor of democracy which is the will of people. Where do we turn and what do we do, Mr. Dhawan?

Rajiv Dhawan: I want to begin by saying that our Constitution is a miracle. If today we wanted to make a Constitution, we would not be able to do so. There will be no agreement and we will fight for all these points they could get. So, the first part of the Constitution is a complete miracle and when you read the debates and the select committees you see what a wonderful miracle it was. The second part of the Constitution is when we start with the Preamble which we have mentioned. The Preamble is like social contract theory where we surrender our power to our politicians and our judges. So, there is an element of surrender and that is why the Constitution became top down. We surrender ourselves to the leaders and we surrender ourselves to the judges and we hope that they will look after us. 

But the sad part of it is although people talk of the morality of the Constitution but we should think more specifically where the Constitution went wrong. You know that the Constitution has two parts- the political part of the Constitution for which custodians of the politicians and the juridical part or justice part of the Constitution, of which the custodian is the Supreme Court. So the question is, have our custodians failed us? And then we go to Teesta’s question: where is the failure and what do we do now? 

Failure is that every process, every institution of the Constitution lacks morality. By morality I mean something very specific. Supposing you have the President’s rule. It is a power and it’s a process. It has collapsed. You read the debates on the President's rule now and you read the debates in 1959 and you ‘ll come to the conclusion that this was done by yes- yes we pass this, no discussion whatsoever. When I wrote my book, I said that the 77^th amendment was passed in 20 mins in the Lok Sabha, amended to the Constitution and 10 mins in Rajya Sabha and what did the politician say in the Rajya Sabha, “Aap pass kar dijiye” and literally they say let’s have a discussion and they say "no discussion let’s pass it." 

Now you move on to every single process of the Constitution, every power that the Constitution has given. The 19 (1) (a) power, 21 power, the 22 power, the CrPC is in one sense a part of the Constitution, and it requires an inner morality to it. I am talking about morality that makes things possible for you and for me. So if every institution has collapsed, every process! When they feel like it, they issue contempt notices. When the Parliament feels like it, they issue privilege notices. In the Assembly, people are throwing chairs at each other. At the end of this day, somebody says that it is within our power to pass "ghar wapsi". The entire labour movement has been destroyed. What do you say to this? We don’t blame, we don’t go to that sympathetic understanding of Baba Saheb, that people we have given you a Constitution now deal with it. What he meant was to deal with every single part of the Constitution. Every single part has a meaning, every single part has a function and today every single part has purpose. 

Like the police, they come and they are heavily protected under art. 309 to 311, has they have any control over them. What happened Sabarwal’s judgement in which Sabarwal said “look control the police for god’s sake don’t make it a political force. No the police are law on to themselves and you cant have an art. 21 and an art.22 when the police behave in this way. There is a riot. Then a chief minister connives in the riot, and then what happens... nothing! And look at the way people are beaten up. 

The Gujarat riots you are familiar with, the Bombay riots you are familiar with and look at what happened in Shaheen Bagh. What did the supreme court say? That you cannot protest on the street? Is this what this is? The protest will be limited to where we tell you to protest. So when we look at each part, we have to ask ourselves what is the best practice of each part, each institution and each process and unfortunately there are no best parts left.

Teesta Setalvad: Mihir, I want to ask you at this point that we have majority government, a second term majority government and a majority government that seems to not quite understand niceties of Constitutional principles but has become majoritarian, particularly if you look at on art.421, art 15 when it comes to religious minorities you look at the 'love jihad' debate, Babri Masjid, both the land dispute case how it was handled and the criminal case where it appears that no crime was committed on December 6, 1992 where does an advocate or an activist go to push Constitutional framework forward Mihir?

Mihir Desai: Let me just begin with agreeing with what Dr. Dhavan said just now. The Constitution itself being a miracle, because the Constitution was born through a  varied process of

a)      nationalist movement    

b)     a social reality which was quite different from the social reality from any other country. You had a situation whereby you have a political power. At the same time, it was not a mere transfer which the Constitution depicted; it was also some kind of transformation. It was majorly a transformation of social and political power which happened to the Constitution and the whole issue of partition which was the backdrop.        

c)      lastly, the whole debate which was going on internationally on the international human rights post the second world war post the Nazi Germany etc, so it was a combination of all this factors which affected what went into the Constitution and therefore if you look at the Constitution, any liberal Constitution should devote quite a bit of its pages to rights of minorities, to the rights of equality, to the rights liberty and non-discrimination, etc. Is it a perfect document? No, it's not a perfect document. 

Within that space it gives protection to the citizens and all groups or groupings within the citizen, whether in terms of religious group or in terms of linguistic groups, whether in terms of caste group, whether in terms of gender equality etc. So you have a Constitution which gives equality, which promises equality to all as we talk against discrimination. Now, in that context though the word secular might have been added only in the 70’s when the amendment came in the Preamble when they say the Constitution was itself envisaged as a secular docx. We were envisaged, as a country which would not favor one religion over the other, which would not have an established religion etc, you know like it is done in secular countries. Now we are going back from that. 

Today what is happening without really amending the Constitution,  because of the way the judiciary interprets the Constitution many of the things which we were assured of 30- 40 years back are no more assured of though the Constitution remains the same. For instance there are three issues in which we can go into one is the whole issue of cow slaughter, second is the issue of conversion and third is the issue of love jihad. Cow slaughter and conversion the laws have been passed. The laws have been tested in SC and upheld in the supreme court. On various grounds, may be on economic grounds or may be on this ground. There has been a creeping communalism which has come into our Constitution through judicial interpretation and that is something and what will happen to the love jihad challenge; wherever it happens we don’t know today. 40 years ago we would have been struck down, but today we are not sure what will happen to such a challenge. Of course, these are the spaces we have as lawyers or as activists. 

Judiciary is the space we have and SC is ultimately the arbiter of the Constitution. But in order to constantly get some kind of a positive response from these institutions we have to also force them to be accountable to be transparent, and if we don’t do that, we will lose even that space. So as lawyers apart from the fact that we need to have struggles on the street which our Constitution guarantees etc., we also need to ensure to push the judiciary to be more accountable, to be more transparent and to be more Constitution-friendly, that is something very important. Thank you.

Rajiv Dhawan: Teesta may I come in?

Teesta Setalvad: Yes please.

Mr. Dhawan: Teesta you said majoritarian govt. Now narrow out the majoritarian government. Majoritarian governments exist, but they don’t have to be fascists. It is very important to remember that. We cannot use majoritarian gov't as the will of the people to have a fascist govt. It’s just not right this thing about we have the majority. You have the majority under the Constitution. To be Constitutional to protect liberties. The second point that I think Mihir was making, I will make it in the words of justice. See our Constitution is not a distribution of power. He makes a very fine distinction with asking if the Constitution is in the state of being, or is it in the state of becoming? 

The point is our Constitution is not just a Constitution in the state of being, it was a Constitution for the poor, it was a Constitution for the migrant workers. Let us be very very clear about being and becoming. 

The third is a very distinguished lawyer. I asked him, these judges... some of them are corrupt, some of them are insensitive and some of them have been bought by the executive. How did this person suddenly become a person in the Rajya Sabha please tell me this? Now a very interesting piece of research will be Donald Trump appointed a hundred and eighty-seven federal judges, this is disclosed in a book. There 170 appointed in the state of UP. Now can you imagine this government has appointed 170 judges and our system doesn’t say that look we do 50:50 with you. Now the government says these people will be appointed. So how can you keep faith in the judiciary.  

When I complained and complained about these judges, he said we have to take your judges as you final and this gets us to Mihir’s point about struggles. I don’t want judges to be more responsible, because they are not going to be. I want them to understand what the Constitutional process is which they no longer understand. Judges like J. Chandrachud play to the gallery. He wants to be recognised as the great jurist of the century. We call you Teesta the soldier of the Constitution because it gives us an idea as to where the struggle lives. The Constitution itself is a sight of struggle. I call it a forward looking Constitution in the state of becoming instead of liberal looking Constitution. The citizens have to take over. It is the citizens who have to create the site of struggles, and it is the citizen when we go to the SC we say alright SC, you have the power we know who some of you judges are we know you are biases we know your ineptitudes we know you are lazy but we will maintain our decorum before you but now you are not the custodians of the Constitution, you have become the sights of struggle. I don’t abandon the law, the  law is still in sight of struggle, but I do not with the benevolent of the judges alone will do it. You asked the question, "What do we do in these circumstances?" We are now the custodians of the Constitution. The problem of PIL practitioners is they are more competitive than capitalism and this creates enormous difficulties when you are bearing cases. Look at the advantage they have taken for covid by saying labour laws will no longer apply. What nonsense is this! It is utter and total nonsense! My concern is we believed  in a Constitution that has a pyramid, we are now at the base level all over again. This is a new struggle of the Constitution in every fora without disrespecting any fora. 

Teesta Setalvad: Mihir, I wanted you specifically to talk about Constitution and treason and Constitution and sedition. How do the two even go together? I mean can you even imagine that when you have a Constitution that talks about art.19, 14, 21 and so many transformative aspects, we still have been placed in a framework and a gov't that is constantly talking about seditious talk and seditious action and treason. Mihir.

Mihir Desai: During the Independence struggle, a number of nationalist leaders were charged with sedition whether it’s Tilak, Gandhi or Anne Beseant and it was a demand of the national movement that sedition should no more be part of the national movement. It was felt that after the Constitution which came in 19 (1) (a) and even with the restrictions in 19(1) (a) in the original Constitution, sedition had no place. I would have thought by now SC would have struck down sedition as being completely un-constitutional. I don’t think in any jurisprudence, sedition as the way it is crafted, can be treated as a reasonable restriction, and this was what two HCs decided in the 50s. When the matter went to the SC they said no, we dilute the..

Teesta Setalvad: Read it down.

Mihir Desai: But it did not make any difference to anybody in the ground level. People are daily being charged with sedition. In a democracy if you say anything about the government, you can be charged with sedition. According to me these kinds of laws have no basis in a Constitution where freedom of speech is guaranteed. So they have to decide whether it talks about sedition or whether it talks about UAPA. When it comes to gagging war against the country there are other provisions which are already available.

Teesta Setalvad: Mr. Dhawan I wanted you to add and I wanted you to talk about the lie where you say the Constitution was written in an atmosphere and framework of love and inclusion. Today we have a country which runs on hate and suppression and if you could also touch on art. 370 and the way it was abrogated and also CAA 2019, NPR, because those are very crucial issues.

Rajiv Dhawan: As per sedition is concerned, in 1962 they said it must be linked to public order. Now we follow a clear and present danger test where Cursus said in one his judgements that the threat must be eminent. The problem with the law of sedition is not just that they should go. They are not just colonial laws, they are heinous laws. But my friend Malcolm has a  very nice phrase: he says the process is the punishment. 

For example, the Bhima Koregaon case. The use and abuse of laws of sedition is not a misunderstanding of anything. These converted the law of sedition into a hoodlum law. Hoodlum law in which a govt is a party, the police are a party, brick backs are thrown. Therefore we have to remember how to demoralise people. You break their will. That is why the process has become the punishment. 

When you come to 370, it's an absurdity! You know the union territory is becoming a state, but you never heard states becoming union territories. If this permissible ever part of India can be broken down into union territory? This is something that we are about to understand that they are now playing with the Constitution in a way which is not just majoritarian, the fact that you have a vote in the Parliament does not give you the right to pass laws which is  insidious. To break up a province like Jammu and Kashmir, that has a border on five foreign states, what are you going to do as far as Ladakh is concerned? 

This what I was saying in the beginning the inner morality of exercise of  each power of the Constitution is disappearing. Therefore the onus now is upon us. Like Mihir, I believe we don’t give up. If there is a trial, we will go to it. I am not a trial lawyer and I don’t have past experience like Mihir has. His work is of a kind which is unparalleled.But these are people who are now the custodians because the custodian will not play and I don’t hope that the SC will disappear. The Constitutional power has a meaning, it has a being and a becoming. And as soon as you overlook and forget the fact that the Constitution is yours to interpret yours to improve. 

We are in a state of infinite progress and SC is the greatest court as far as jurisprudence is concerned.  When Chandrachud’s son wrote the book 10 cases that India forgot, what about the cases that forgot Indi? And today we are in a realm in the last few years where the cases have forgotten India. Now it is time for India to remind them that you forgot India. That is why I say the struggle will come from us, it is people like Mihir that will lead the struggle.

Teesta Setalvad: I think that’s a very very hopeful note on which you have concluded. I just want a couple of words because we had a lovely discussion. You know we have spoken a lot about the judiciary as we should. We have spoken a little about Parliament as also we should. What about the other institutions: it could be the Election Commission. It could be so many others. Should there not have been some process by which all these institutions of governance also bow to Constitutionalism, Constitutional morality which has failed to happen in some sense?

Rajiv Dhawan: There is no answer. Every institution has to be disciplined. Are we surrendering our environment to capitalists? Look at the clearances that are given by the government. I know that Maharastra is that of the centre of this degradation of the western ghats. So every institution, we need them. but people have become afraid, and once we become afraid and we do not conquer that fear and do what you people are doing. I respect both of you, for what you are doing is far more than I ever did in my life. But this is really the crux  of the issue now. You cannot make me or our group afraid and the groups should stop fighting with each other. 

Mihir Desai: Dr. Dhwan is being ultra modest. He is somebody one has looked up to all the time when one is grown up, when one has been in the practice. Somebody who is admired and respected and learnt from throughout one’s life. 

One other thing I just wanted to add, that because there is a lot of debate going around whether you can establish a Hindu rashtra dramatically amending the Constitution and I personally feel that a version of Hindu rashtra  even without dramatically amending the Constitution. You can have the same Constitution which you have today. You can have the same citizenship art 5 to 8 today and still have a CAA law which is upheld tomorrow by the SC within the existing Constitution.

Teets Setalvad: The NPR regulation of 2020

Mihir Desai: Correct. You can have the whole series  of things which can be within the framework of the Constitution. Ultimately it's our voices that make a lot of difference, and this is a time when we cannot shout down, or be shouted down. We have to be heard rigorously and much more forcefully as to what our opposition is, and why our opposition is. I think It’s very important in today’s time.

Rajiv Dhawan: By the way the point you have made is fraternity. Without fraternity we cannot go forward.  We must have fraternity. The fraternity will keep our voices together. It is optimism. I don’t want to lose this Constitution. Within the Constitution the Hindu rashtra is being produced. 

Teesta Setalvad: Thank you all of you particularly in the late evening of  November 26, when I must say all our workers and farmers had a spectacular general strike today. I would like to give a tribute to them because no amount of water canons and police barricades could stop thousands and thousands of locations and at least a large number of farmers and workers who said to the government that you have to listen to us. We are against these farm laws and we are against these labour laws. We fought 150 years for basic dignity for our workplaces and you can’t take that away. Thank you so much for inspiring all of us and thank you so much for today’s conversation.