Former Chief Justice (CJ) of the Allahabad HC, Justice Govind Mathur’s inaugural speech at the the PUCL Rajasthan State Convention on April 1, 2023
Just yesterday, my daughter asked me if “democracy” alone might not have sufficed in the topic of today’s speech. Was it necessary to include “constitutional”? I thought that was a significant question. We need to understand why we must stress on the Constitution, and why our democracy rests on the Constitution.
Some days ago, in January this year, the Vice President of India [Jagdeep Dhankar] stated during a meeting attended by presiding officers of state legislatures that the judiciary was intruding into the territory of the legislature. He commented on the verdict of a case that was adjudicated by the Supreme Court 48 years ago, that settled in law that the basic structure of the Constitution could not be changed.
He mentioned that if the elected representatives of the people of India in Parliament wished to change the Constitution, then that ruling of 1973, the Kesavananda Bharati case could not be cited to deny them that right. He contended that such opposition to changing the Constitution was against the principle of democracy. The judiciary, in the opinion of the Vice President, was extending its reach by ruling thus. According to the Vice President, the Parliament is free to alter the Constitution as it sees fit, according to its wisdom. That, to him, is democracy.
This is not the opinion of the Vice President of India alone – there are others who hold this view and in recent years, it is as if a whole movement has been orchestrated to mainstream this view. At occasions of national importance, we have speakers aligned to a particular worldview expressing the view that if the people of India wish to give themselves a new Constitution, they must be free to do that. It is as if the doctrine of the basic structure of the Constitution goes against the popular will.
Today, we must try to understand this point of view, where it springs from and the conspiracy that this represents. We need to understand the thousands of years of Indian history and the good and bad in our society. We need to understand the principles that inspired India’s struggle for freedom, and the basis on which that struggle proved successful.
Our struggle for independence was not targeted only at the end of imperialism – it was also a movement for reform within the nation. Our freedom fighters envisaged a nation where inequality would end – where all citizens had equal opportunity, where no distinction was made on the basis of religion, caste, region or colour. It was on the basis of these principles that, at the last meeting of the Constituent Assembly of India on 26 November 1946, the Constitution of India was signed and accepted.
It was on this basis that the preamble outlined:
WE, THE PEOPLE OF INDIA having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens:
JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity; and to promote among them all
FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;
IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.
The ideals that form the basis of this preamble have served to power the progress of our nation and society. The basis of the resolution draws from the insights of our freedom struggle. Our democracy rests on these principles. These are the principles that the Supreme Court defined as the basic structure of the Constitution; these principles thus cannot be changed. The Constitution of the land is Supreme, and no power can change its basic structure.
For 75 years, the Indian nation had adopted these principles and charted its path to progress. The democracy of India rests on these principles; ours is a Constitutional democracy that draws on the struggle for freedom, and is guided by the principles that underlay that struggle.
These are principles that cannot be sacrificed on the altar of majoritarianism. To accept a majoritarian diktat would be to proclaim the failure of our struggle for freedom. An India at ease with inequality, that does not care for socialism or secularism, would be an India untrue to her founding fathers.
Without those founding principles, India would lapse into rule by caste, religious divisions and inequity. That is why ours is a democracy that runs on Constitutional principles, and does not follow the law of the mob, or majority diktat. John Adams, who served as the president of the United States between 1797-1801 said that a Constitutional democracy runs on the basis of the law, not on the basis of what people in power – or out of it – might feel or think.
Friends, a system that runs on the law, where the Constitution is supreme, where equality is part of the basic structure – there are vested interests that would not like to see such a system function. Just as such a state emerges that works for the welfare of the people, forces are unleashed to topple it. That is the lesson we learn from history. Whenever the few in power find that democracy is empowering the many, a movement emerges to stem the march of democracy.
There were revolutions in the US and France in the 18th century; the 19th century brought revolution to many European nations; the Russian Revolution of 1917 is well known; democracy and the rule of law were the inspiration for many of these revolutions. At the core, these were movements for the freedom of the exploited and the suppressed. These revolutions were suppressed, and by the early 20th century, the movements for fascism and Nazism gained momentum, leading the world to war.
Using the methods of democracy, dictatorships arose that campaigned for the superiority of a certain race and nation. In Germany and Italy, fascist powers used propaganda that sold the lie that the people were of different and superior quality. It was that sense of superiority, based on the lies of dictators, that led to the horrible extermination of fellow-humans. Such lies are a threat to human civilisation and leave in their wake the ruins of war. It was felt after World War II that such lies would never again hold sway over people, and that the lessons of history would be learnt for good. But that is not the case.
After World War II, many countries of Asia and Africa were freed from the control of European imperial powers. Burma (Myanmar), Sri Lanka, Indonesia and India were among the newly freed nations after World War II. With India’s partition, Pakistan came into being. The Philippines too emerged free and was no longer a colony of the US. These were nations engaged in a peaceful globalization, choosing to tread the path of peace and progress through rule of law.
Yet, forces within these nations that were fascist were unnerved by the progress towards a constitutional order and unleashed chaos. On August 15, 1947, even as communal riots raged, India and Pakistan emerged as independent nations. On January 20, 1948, Gandhiji was shot dead at a prayer meeting in Delhi. In October 1951, Liaquat Ali Khan, Pakistan’s first prime minister, was shot dead while he was addressing an audience at Rawalpindi. Just a day ahead of his assassination, Liaquat Ali Khan had proposed an amendment to the Pakistan Constitution aimed at checking the influence of religious groups. In 1959, Sri Lanka president Bandarnaike was killed by a Buddhist monk.
There is a pattern to all these instances in the nations of our region – Gandhi was shot dead by a Hindu right-wing man; a Muslim extremist pulled the trigger of the gun that killed Liaquat Ali Khan; Bandarnaike was felled by a Buddhist monk. The assassins were all men with an affiliation to extremist organisations.
Social equality, a Constitutional democracy and balance in public life are not acceptable to those steeped in fascist ideology. Despite the attempts of such fascists to derail the march to equality and democracy, nations have progressed towards better governance through an acceptance of the principles of Constitutional democracy. The progress and empowerment of Dalit groups, religious minorities and other backward communities, however, would not be welcomed by right-wing extremists.
For the first time in world history, a black man became president of the US in 2008 when Barack Obama assumed that office. White supremacists then raised that old slogan of “Make America Great Again”, which until then the people of the country had not paid heed to. However, it was that slogan that caused Donald Trump to ride into the presidency of the US in 2016. Fascist forces have been on the rise not only in the US but in other parts of the world too, manifesting in different forms. The iconic Hagia Sophia in Turkey, a country once renowned for leaders like Kemal Ataturk, was converted from a museum into a mosque.
In India, there are groups that have been singing the praises of Gandhi’s murderer. A whole movement for the conversion of masjids into temples has been launched, and people of a particular religious persuasion are being targeted for no reason. The sad reality is that these forces of disruption and violence have the silent support of what appears to be a majority. The reason for such support is that lie lodged deep within, the lie that refuses to die a quiet death, and which tells us that we are superior.
Fascist powers make use of differences in culture or language to promote differences and sow the seeds of false pride. With the discourse turning to these, the real issues that people grapple with in their daily lives – inflation and joblessness, for instance, recede to the background. In our country, these fascist powers have much to feed on; culture, language, region, religion and other differences are all used to feed this project of creating differences and causing division.
Caste, for instance, is an insidious marker of identity that leaves people marked even without their knowledge or consent. Fascist forces draw on such markers of identity to entrench the divisions between people, causing murder and mayhem in the name of religion or whatever else fuels that false sense of superiority. Fascism stands at our door now, flexing its muscles. It is necessary that we recognise the dangers we face, for only when we strengthen our adherence to Constitutional values can we deal with the rise of fascism.
Just some decades back, caste and religion were bases on which discrimination was frowned on. These days, such discrimination is seen as virtuous. There was a time, not so long ago, when inter-caste marriage was encouraged and incentivised by [the] government. Kavitaji [Chairperson of the People’s Union for Civil Liberties Kavita Srivastava] tells me that there is still a scheme of Rs 10,000 reward for an inter-caste marriage – that’s a good thing. We must be mindful, though, that there are parts of the country where couples engaging in such relationships are punished.
What is worse, society even today does not accept, but instead punishes, young couples seeking to marry from outside their caste group. Young women fear entering into such marriages, for they risk boycott by their families. Girls fear that younger siblings will then find it harder to get partners, if they dare break traditional caste taboos. I would appeal to each of you to encourage such marriages in your own families. We hope to break such taboos and the fascists are nourished by these traditions.
PUCL [People’s Union for Civil Liberties] and other such organisations make it their business to take on the fascist ideology at all levels, and to relentlessly oppose the fascist agenda.
This is a struggle in which the judiciary has an important role. The judiciary is the custodian of the Constitution. The people of India have deep faith in the judicial system. An ordinary person takes on the powerful – whether individuals or institutions – with the faith that justice will be done by the Indian judiciary. That is why the fascist forces have their eyes on the judicial system too. Given the faith of the Indian people and the strength of India’s Constitution, however, it is not easy to end or dismantle the Indian judiciary.
The Bar Council, Bar Association, individual lawyers – all of them have a great role to play in keeping alive the fairness of the judicial system and defeating attempts to control it. These are the people who raise the torments of the common people under the Constitution, in the courts. These are people with close links to the common Indian, and can use the Constitution and the law of the land to bring them relief.
There are a few other small points I would like to bring to your attention.
There is a big disease of the enlargement of singular personalities to deities, which could cause much damage to the nation. This magnification of individuals has already reached scary proportions in India. We need to look for solace not in individuals but in the rule of law and that is a habit we need to develop as a nation. Otherwise, we are bound to face disappointment and destruction, and no one can then save us.
The cult of the personality, the tendency to exaggerate the power of individuals – that is a symptom of fascism, and we need to be wary of it. We have now come to the point of Vyakti Puja – worship of the individual – and that habit has set in very deep. If you look at streets in the US, UK or other nations, you will seldom find them named after individuals – in our country, you will be hard-pressed to find a street not named after an individual. Even hospitals and schools are named after individuals. All junctions have statues of individuals. What is sad is that since independence this worship of individuals has only deepened. This is a tendency that we need to counter – within this lie the seeds of fascism.
When it comes to human rights, if we can uphold our Constitution, there is no doubt at all that human rights will be secure in India. Part three of the Constitution [fundamental rights] offers a shield to human rights. The Supreme Court and other courts have only expanded on these protections. These days, we speak not only of the rights of human beings but of all things sentient. If anything remains to be covered, there are provisions within the Directive Principles that cover those areas too, quite comprehensively.
We need to ensure that the legislature makes laws in accordance with those principles, and that the executive implements them in right earnest. [Social activist] Aruna Roy has suggested that we form a human chain to ensure the protection of our rights – we need to see that this human chain works also to direct the legislature and the executive to work in accordance with the Directive Principles of State Policy.
Meena Kotwal is here on the dias – it is important to give a voice to the voiceless, and that is what she is doing through her channel, Mooknayak.
Please do not stay silent. If you see something wrong, speak up. Raise your voices for the right thing. I say this to you and to my friends in the judiciary. As the custodian of the Constitution, the judiciary has an important task. If Constitutional values are being violated, then the judiciary should take these matters up suo motu. That is the constitutional responsibility of a judge.
These days, without a proper understanding of their significance, public interest litigation is getting a lot of flak. PILs [public interest litigations] are an important means of protecting constitutionally guaranteed rights. Wherever necessary and appropriate, PILs ought to be used. This is one way of voicing pain. Whenever you feel you must speak, when you think silence would give free rein to injustice, do not remain silent.
Right in front of me, in this hall, is the picture of Ram Manohar Lohia. He had said, “Zinda komein paanch saal nahi intezaar karti” meaning “Living communities/nations do not wait for five years”. Please stay alive – if there is an incident where you think you need to speak out, then make it clear to people that you are alive and will react. Please stay alive, and where necessary, speak up.
Thank you for listening to me. I wish for the success of this assembly.
(The author, Justice Mathur retired in 2021 after serving as Chief Justice of the Allahabad High Court; the entire speech has also been published in the PUCL Bulletin of May, 2023)