The Enforcement Directorate and other agencies arbitrarily target those who are perceived as dissidents or political opponents in violation of the rule of law.

The not–so–silent aim is to convert India’s diversity into a pro- Hindu state. This affects our democracy, secularism, federalism and civil liberties.

I cannot speak with any authority of the ‘deep’ state which our distinguished chairman for this meeting, Mr [N.N.] Vohra knows about but may not disclose. It exists under the cloud of secrecy and confronts, even eliminates many in the name of national security. The deep state covers many deals, conspiracies and atrocities hidden from public exposure.

I was asked to celebrate the achievements of India’s constitution from 1950 over 75 years. Much can be written and said about this journey and many experiences can be drawn from it.

Nehru is much criticised these days, but his tenure should be remembered. He interacted with other non-Congress politicians, hostile journalists and those who opposed him.

When he spoke of the Seventh Fleet in a public statement, he was threatened with a privilege motion in parliament because in those days, all major matters had to be first placed on the floor of the house.

He confronted this with an apology. He faced a contempt motion in the Madras high court
with humility, was represented and won his case.

The infamous President’s Rule imposed in Kerala in 1959 during his tenure was at the instance of Indira Gandhi, then president of the Congress, and home minister Govind Ballabh Pant.

I saw a picture in Justice Krishna Iyer’s house where Krishna Iyer, then a minister in the ill–fated government, was presenting a memorandum to a passive, even sad, Nehru. I asked Krishna Iyer to explain this photograph to me. The judge told me that he had informed Nehru that the Left coalition which had come to power and was threatened by President’s Rule was prepared to accept all of the Union’s demands. Nehru then told Krishna Iyer to speak to Indira.

Be that as if, may Nehru cannot escape responsibility for destroying the first elected communist government in the world. But to his credit, unlike now, he allowed a strong debate in parliament which took the government apart even if the Congress majority in parliament sustained the imposition of President’s Rule.

This episode also reflects on the need to separate political governance from constitutional decision– making. I will dwell no more on this. Those interested in my views on Nehru can read my long introduction to a book called Nehru and the Constitution (1992) where I invoke Milan Kundera’s evocative statement: “Metaphors are not to be trifled with. A single metaphor could lead to love.”

Nehru’s was a metaphor in India’s formative years and remains so and to be admired. He cracked down on powerful corrupt ministers and gave his all to democratic governance. Mistakes? Of course there were. Who doesn’t make them? Our present controversies about Nehru are political because the BJP and the Sangh parivar feel that by denigrating Nehru, Modi’s status will be enhanced.

There is academic controversy as well on Nehru’s economic policy, as seen in Arvind Panagariya’s The Nehru Development Model –  History and its Lasting Impact (2024); and more generally by Tylor C. Sherman’s Nehru’s India – A History in Seven Myths (2022) and others. His photographs are being removed and replaced by Savarkar’s. But Aditya Mukherjee’s Nehru’s India – Past, Present & Future (2024) stands out at a time when history is being corrupted.

Mrs Gandhi did subvert the constitution in the sixties with uncalled President’s Rule against opposition– ruled states which came into power electorally after 1967. There was the dreaded Emergency (1975-77). But she was humbled by Indian democracy, the greatest gift by India’s constitution to her people.

Today we celebrate Modi, whose contribution to India’s democracy is winning elections through fundamentalism supported by crony capitalism, the Rashtriya Swayamsevak Sangh (RSS) and the Sangh parivar with ‘gifts’ to the poor –  all in the name of growth and economic progress.

But I do not want to indulge in ungainly political dialogue or compare Modi’s rise to Hitler who also chose the path to power through democratic elections to the Reichstag to become chancellor. Nor am I interested in analysing his foreign policy as that of a flying salesman not just for India but himself.

Amidst speeches and oratory he has little time for governance; and has collapsed the distinction between governance and a constitutionally established state. My concern is less on the constitution’s journey over the past 75 years and more on the contemporary challenge to constitutionalism,  whose basis is being challenged from within. The past informs the present which, in turn, informs the future.

II. Checks and balances

The challenges of our present discontents are characterised by the collapse of the system of checks and balances to discipline constitutional power. I believe that the principles of checks and balances are a visible and invisible basis for a successful democratic, secular and federal constitutionalism. Without this the constitution would sink into the abyss and give rise to promote an elected dictatorship established from within the constitutional framework.

I am not really concerned with the elected dictatorship in America, Turkey and other parts of the world, which are countries that have their own grievances, their own challenges and their own impossibilities. Trump raises important questions on India’s foreign policy and the global economy where India, for all Modi’s travels, is at sea. Trump summons. Modi responds. Weapons deals are made to bolster America’s military industry and war machine.

Let us see how this system of checks and balances works. The powerful executive is responsible to parliament. The judiciary is empowered to challenge any high– handedness by the executive or any authority of governance including parliament, to protect the liberties of the people, prevent religion from entering electoral politics and to defend a balanced federalism. It has overseen the conduct of the civil services and resolved their disputes and has taken on authoritarianism at different times, succumbing during the Emergency (1975-77).

Part of the checks and balances of the constitution protects the states in the hope that there will be cooperative federalism with equities. Unfortunately, we now have a coercive federalism which divides people, favouring these governments which side with Modi’s political
centre.

The Modi government supported by the RSS and other elements of the Sangh parivar has, in many ways, promoted a Hindu state. There is a 501– page report of Sanghi intellectuals to replace the present constitution with a Hindu constitution.

Is this really possible in India, which is the greatest experiment of governance over the most diverse multicultural, multi–linguistic and multi–religious nation– state, housing several civilisations?

India with its around 200 million Muslims, is demographically second to Indonesia along with Pakistan and Bangladesh. It dwarfs all Islamic countries of the Middle East. Its Christian population is greater than many states in the world. It houses Sikhs, Buddhists, Jains and many sects. People should realise that Hinduism is not a monolithic religion, but contains not only sects but religions within it. This is lost sight of by militant Hinduism and even the courts on which I am writing essays collected and titled  Conquest by Law:
Essays on Colonising Hindu Religious Endowments and Religious Freedom in India.

What is also disturbing is the aggressive linguistic dominance of Hindi. India has many officially recognised languages. Hindi is the official language, English is to be used for the ‘official purposes’ but surely is now an Indian language. Hindi is to be progressively used officially and developed. (Articles 343- 351). But few lay people can comprehend Hindi’s propagation in its neologised Sanskrit form, especially in government notifications, which is alien.

But there lies the rub. The Eighth Schedule of the Constitution officially recognises 22 languages to include Assamese, Bengali, Gujarati, Hindi, Kannada, Kashmiri, Konkani, Malayalam, Manipuri, Marathi, Nepali, Oriya, Punjabi, Sanskrit, Sindhi, Tamil, Telugu, Urdu, Bodo, Santhali, Maithili and Dogri. Of these languages, 14 were initially included in the original constitution. The Sindhi language was added in 1967. Three more languages, Konkani, Manipuri and Nepali, were included in 1992. Subsequently Bodo, Dogri, Maithili and Santhali were added in 2004.

These are the tip of the iceberg. The bewildering variety of Indian languages and their dialects can only amaze and define India’s diversity and linguistic federalism.

The Dravida Munnetra Kazhagam (DMK) has been at the forefront to protect Tamil. The assertions of BJP leaders including Modi will not absolve the party and its cohorts for promoting Hindi nationalism even in symbolic titles of legislations, the text of which is otherwise in English. On my impromptu test with lay Hindi–speaking, relatively poor people, they do not understand the ‘Hindi’ words for programmes and legislation promoted for acceptance. Linguistic federalism has become an important issue. DMK leader M.K. Stalin has led the charge against imposing Hindi nationalism.

We need to go back to controversies in the constituent assembly where K.M. Munshi and N. Gopalaswami Ayyangar agreed to Hindi being an ‘official language’, and Article 351 gives the duty to the Union to promote the spread of Hindi. But, as H.M. Seervai and others pointed out, given the diversity of languages in India, Hindi cannot be the “national language”.

I argued the case of Uttar Pradesh Hindi Sahitya Sammelan v. State of U.P., (2014) 9 SCC 716, where the issue was whether the state of Uttar Pradesh could make ‘Urdu’ a second official language. I was in favour of Urdu being added as an official language.

A constitution bench led by Chief Justice R.M. Lodha found this decision of the state to be valid and said that the “constitution does not foreclose the state legislature’s option to adopt any other language in use as official language”. It noted that many states have followed such an approach including Bihar, Haryana, Jharkhand, Madya Pradesh, Uttarakhand and Delhi, which also recognises Hindi, English, Punjabi and Urdu.

The test is that the first or second language should be ‘used’ in that state. Tamil is used in Tamil Nadu and other languages in their respective states. The court said: “It is said that law and languages are both organic in their mode of development. In India, these are evolving through the process of accepting legitimate aspirations of the speakers of different languages. Indian language laws are not rigid but accommodative – the object being to secure linguistic secularism.”

The Union should back off from its archaic three–language formula and allow Tamil Nadu and other states to develop their own languages as official languages to be taught in schools. At present, we do not have a ‘national’ language – nor can the Hindi states impose one. The link language that has been effective is English and Hindi if they are agreed by the states mutually.

This is where an undeserving linguistic dictatorship can wreak havoc. Hindi is supported by demography in the North; the rest of the country speaks through different cultures and articulates in different tongues. Linguistic dictatorship will destroy the federation. Healthy checks and balances are needed so that all Indian cultures are articulated, expressed and nurtured in their own tongues. It is not for the Centre to impose a linguistic federalism on those who view themselves differently but are passionately Indian.

I will not dwell on the present government rewriting history officially and unofficially ignoring checks and balances; and secularism which is a part of the basic structure of the constitution to protect India’s unparalleled diversity.

III. The underlying texts of the constitution

At first sight, it is difficult to fathom India’s sprawling constitution. It has 395 Articles, many Sub-articles, 12 elaborate Schedules –each the size of many constitutions in the world. It has been formally amended 106 times, and through various legislations, under different allied Acts of parliament and under other provisions of the constitution, 46 times without reference to the complex process of amendment in the constitution.

Some people say we should redraft our constitution, which was a creative compromise with many elements of democratic surrender by her people to constitutional authorities. I have described this in a book titled he Constitution of India: Miracle, Surrender, Hope” (2017). I dedicated that book to Fali Nariman, my distinguished friend, who used to say that we will never be able to draft a new constitution now if we want, because people will fight over everything and come to a conclusion only through unwelcome crude political majorities.

But, in his last book, he advised, “you must know your constitution”, and showed how to maneuver its complexities –a notable and commendable effort. His latest, beyond the Courtroom: Reflections on Law, Constitution and Nationhood reminds us of India’s democratic gift to itself.

I need to explain that all constitutions invoke a surrender of rights, liberties, hopes and expectations during constitution–making and after. It is left to those who work out the constitution to ensure that this, or any other surrender, is not inimical to the people the constitution serves. It is in civil society that we will find hope for the future.

To understand the underlying thread of the constitution, I identify the following texts:

1. The Democratic and Political texts
2. The Justice texts
3. The Federal texts
4. The Civil Service texts
5. The Military texts

Each of them are fundamental in their own right, but interact with each other under a system of checks and balances.

The democratic and political texts are huge and contain many provisions to include a common electoral roll without discrimination on grounds of religion, race, caste or sex (Article 325), and elections to the parliament’s lower house and state assemblies on the basis of adult suffrage, which now means a right to vote if above 18 years of age (Article 326).

There are no special seats on the basis of religion, the kind demanded by Muslims and others which led to Pakistan. I sometimes feel that in those heady pre-Independence days, we could have conceded special or general electorates for Muslims to preserve an undivided continent to keep it together and save us from the horrors of Partition. I read the accounts from July 1946 with anger and dismay; though it may well have been that by that time the die was cast.

I canvass better relations with our neighbours, especially Pakistan, which I visited. Our fundamentalist friends cannot understand the importance of this.

The Election Commission is an independent constitutional body to ensure free and fair elections. There is some contemporary concern about appointments to the membership of the commission, which has ousted the chief justices in the selection process and admitted it to political domination. This is a blow to electoral constitutionalism and the system of checks and balances which accords independence and autonomy to the constitutional body. We need a wide-bodied committee to suggest names which are confirmed by parliament to save the neutrality of this important commission.

A Delimitation Commission organises the constituencies; and the judiciary determines electoral disputes. The South, with more birth control and lesser populations, fears delimitation will diminish their strength in the elected legislature. All this will affect the checks and balances of the constitution in these texts. The South should not get lesser seats due to the demography of the North.

But there is cause for worry. Justice Madan Lokur has rightly pointed out that executive responsibility to parliament is decreasing. Richard Crossman elaborated that with the rise of prime ministerial power, there are strong presidential elements in the parliamentary system. One can see this in his posthumously published Crossman Diaries and a lecture in Harvard.

But though insightful, we still have a president who has to act on the aid and advice of the cabinet, with some independent powers. Another check and balance. But Crossman was concerned with the prime minister ascending power over his own cabinet and the latter’s discourse. To do so is a failure of checks and balances enshrined in India’s constitutional texts (Article 78, especially Articles 75(3), 78, 163, 164(2) and 167).

In India, the rise of a powerful Prime Minister’s Office centralises power in a disturbing way. Modi has appropriated considerable power to himself. This should serve as a warning.

There is also concern about the Delimitation Commission re-organising constituencies in a politically biased way and the danger of the Election Commission losing its autonomy due to political pressure. In a significant decision called Abhiram Singh (2017), Justice Lokur led a thin 4:3 majority to hold that appeals to religion in election were not permissible. This trumped the minority view of the then–Justice Chandrachud, Justice Lalit and Justice Goel – all of whom had some saffron connections or tendencies.

I leave this discussion on the political and democratic texts with apprehension because of the danger they portend. The apprehension deepens because debates in parliament are lessening. I demonstrate this in my book Reserved! How Parliament Debated Reservation 1995-2007 (2008) and other essays on other legislations.

Excessive control of parliament discussion weakens faith in this prime body. Quite apart from the paucity of debates on legislations and on President’s Rule proclamations, governments’ majorities dominate committees as we can see on the Waqf Bill.

Discussion on issues is stage–managed by speakers and the dreaded Vice President Jagdeep Dhankhar (a veritable hit man for Modi’s government who does not understand the importance of the neutrality of his role). The result is that when the opposition disrupts proceedings to demand discussion, they are blamed for subversion, overlooking the genuine demand for discussion and debate.

The justice texts: The justice texts are crucial for democracy, federalism and civil liberties. But two clarifications are necessary.

The justice texts are not just addressed to the judiciary but to all organs of government including the executive, parliament, civil services, the federal structure and the military.

There are special texts in the constitution to monitor and give justice to the untouchables (chedule Castes (SCs)) and Schedule Tribes (STs), who also have presence in the legislatures, and at a lower level in local government to SCs, STs along with the other backward classes (OBCs) and women.

Many years ago, I printed a long article arguing for one-third women’s representation in legislatures. That is now law waiting to be implemented.

There are several constitutionally appointed commissions to work towards the upliftment of the marginalised (Articles 338-342A). But there is concern that there is an over–concentration on ‘reservation’ by way of quotas in services and access to education. In many cases I have supported reservations but for principled limits on the inclusion and exclusion of claimants. I also feel that not enough is done regarding direct affirmative action programmes.

But the core of the Justice texts lies in the fundamental rights chapter (Articles 12-36). Here are provisions of equality, liberty, freedom, protection of religions, their faiths, beliefs and practice, enhancing cultural rights and, most important, reposing in the judiciary with the right to move to the high court and directly the Supreme Court when these guaranteed rights are in threat.

Crucial to the independence of the judiciary are appointments to the higher judiciary. In Nehru’s time, the executive consulted the judiciary and this worked reasonably satisfactorily even if Nehru bitterly complained that lawyers (surely including judges) had, in his phrase, “purloined the constitution”. The record of this cooperation is recorded in the second collegium case.

But although his parliament reversed some important judicial decisions, checks and balances were in play over judicial appointments. It was Mrs Gandhi who saw threatening clouds to her power that she wanted a “committed” judiciary. Committed to what? Her regime or the constitution? Principled constitutional governance? She fiddled with these appointments when she lost important judicial decisions, more so after her election to parliament was declared invalid by an Allahabad high court judge.

This led to the Emergency, where otherwise brilliant judges in the Supreme Court gave her unbridled powers over political and other preventive administrative detentions against the decisions of nine high courts.

The judiciary came out of the Emergency badly wounded. The judges responsible for the disaster apologised in different measures –some were defiant. I do not believe that the judiciary would have survived this debacle but for Justice Krishna Iyer inspiring Justices P.N. Bhagwati, Y.V. Chandrachud (those two being party to the Emergency decision), Chinnappa Reddy, D.A. Desai and others to rely on a new approach and jurisprudence.

But as far as judicial appointments were concerned, the end result was that the Supreme Court in three important decisions of 1982, 1993 and 1998 struck back to eventually give itself dominant control over appointment through high court Collegiums and finally, as the decider in the Supreme Court collegium.

But this dominant power has been thwarted by covert and overt government interference. In 2014 the constitution was amended to create an independent National Judicial Appointment Commission (NJAC). This was struck down by the Supreme Court as politically dominated in the Supreme Court Advocates-on-Record Assn. case (2016).

Although I participated in the case that led to the NJAC’s downfall, I am not sure if I was right. Maybe the NJAC would have been more transparent, as my personal faith in the collegiums has declined. But I remain unsure. What we need is a wide–based commission whose decisions are ratified by parliament.

I also believe that in Modi’s time, the judiciary has sought to be saffronised with independent judges like S. Muralidhar taken out and regime judges like Victoria Gowri and Shekhar Yadav brought in. How much saffronisation? I cannot say, as this requires more research.

The entire controversy over Chief Justice D.Y. Chandrachud’s tenure was really over his failure to protect the checks and balances of the constitution, in his decisions as master of the roster to allocate cases, in judicial appointments with perceived religious biases, and his almost psychotic love for publicity.

So how have the justice texts fared? In response, the Supreme Court has spread itself into too many areas. The judiciary is overburdened. But the courts, especially the Supreme Court, still have the respect of the people. If the courts act independently and remain independent, there is more than hope for the future. However, we must remind ourselves again that the justice texts are not just to the judiciary but also to the other organs of government; and, of course, all of us.

The federal texts reflect India’s diversity. India now has 28 full fledged states and nine Union territories administered by the Union with some democratic governance in Delhi and Puducherry. After the dismemberment of the state of Jammu and Kashmir (J&K), there is one less state and two more Union territories, J&K and Ladakh.

These constitutional divisions are based on linguistic and cultural differences and strengthen diversity, secularism, democracy and governance itself. However, the working of Indian federalism has led to critical attention through public discourse, the Governors’ Report (1971), the Tamil Nadu Report (1969), the Sarkaria Commission Report (1988), the Constitution Commission Report (2002) and the Punchi Commission Report (2010). Of all these, the Sarkaria Report is the deepest.

One cannot ignore the vast research done by academics, of which my friend Balveer Arora who is on the stage, and Zoya Hasan are examples, amidst so many others including state governments and a vigilant media.

India has been called a quasi-federal state. The term has gathered currency because of the dominance of the Union and its huge powers. This argument of central domination is partly unsatisfactory, because all large federations are centralised in their power distribution but should be more sensitive in their working. Elsewhere I have argued in 1966 that India is quasi–federal because territorial integrity is denied to the states.

Gautam Bhatia, a distinguished jurist, in his latest book Constitution of India (2025) shows that the Supreme Court has contributed to this centralisation. This is only partly true, but the court has also tried to arrest the abuse of political federalism and has recently given greater mining rights to the states and chastised the outrageous behaviour of governors appointed by the BJP to behave responsibly in the discharge of their constitutional functions.

Governors have become political ‘hitmen’ for the government in power at the Centre. More recently, their conduct has become embarrassingly perverse.

The federal texts demand “cooperative” federalism. We can see this in Canada and perhaps Australia, but less so in America after the election of President Trump. Cooperative federalism is partly through institutions like the Inter-State Council (Article 263) or where there is meaningful exchange at formal and informal levels in respect of the distribution of power, the allocation of finances, interaction and mutual respect for each other’s governance. But this requires political will, often lacking in Indian federalism.

The Inter-State Council, which was resurrected after four decades, has fallen into disuse. Political interference is manifest in many ways. It began aggressively during the first reign of Mrs Gandhi when she used the President’s Rule provisions in Article 356 to oust and demolish opposition parties that had succeeded at the polls to establish their governments in many states.

Other political parties have also used these provisions mercilessly. The Janata government dismissed nine opposition governments in 1977 claiming a massive electoral mandate and the Congress returned to do the same in 1980.

These travesties continue. President’s Rule has been imposed 134 times, including 11 during the BJP’s tenure since 2014.

I believe that Article 356, which houses the power to impose President’s Rule, should be abolished, because as a result of these impositions, democratically elected governments simply disappear and consequently the state is run by parliament and the executive at the Centre.

External threats and public order problems can be dealt with by cooperative means. The general Emergency provisions (Article 352) or financial emergency provisions (Article 360) can be invoked with caution, because under this use of Emergency powers, democratically elected state governments survive as they should. This is also a part of the sustained duty of the Union under Article 355, which states that “it shall be the duty of the Union to protect every state against external aggression and internal disturbance and to ensure that the government of every state is carried on in accordance with the provisions of the Constitution”.

Although this has been emphasised because of the need to deal with war and revolts and also justify the imposition of President’s Rule in erring states, it gives the Union ample power to protect the nation; and properly interpreted, imposes a duty not to take over the democratic governance of the state but enhance it without imposing President’s Rule and abolishing legislative democracy in the states.

At the core of the abuse of political federalism are the governors appointed by the Union government. I believe that earlier some governors acted with constitutional honesty even though it was often with disastrous results. When I interviewed governor Dharma Vira for a book, he told me that he may not have been wholly correct in not giving the Mukherjee ministry the 18 extra days it wanted to face the assembly. I also believe that my father, governor Shanti Swaroop Dhavan, should have allowed Jyoti Basu to have formed a minority government in West Bengal.

Some but not all governors acted with honesty. But the BJP’s governors like Jagdeep Dhankhar (West Bengal), R. N. Ravi (Tamil Nadu) and Arif Mohammad Khan (Kerala) are a disgrace to the office. Dhankhar as vice president continues to espouse the BJP’s politics, refusing to maintain the neutrality of his office.

I believe governor selection needs approval by an evenly politically distributed parliamentary committee after extended consultation with the state in question to result in the appointment of non-partisan governors who should not be transferred until they complete their five–year term unless impeached earlier. After their term, they should be ineligible for further gubernatorial office more than twice after going through impartial selection again for a possible second term.

Who should form a ministry after election or otherwise cannot be decided in Raj Bhawans. Even a minority ministry of the largest party or coalition should not be enjoined to face a ‘confidence’ motion. Once sworn in, they should only be toppled by a ‘non-confidence’ motion. This should be true of parliament and state assemblies. An instrument of instructions needs to be devised.

Abuse of political federalism was addressed by the Supreme Court in the Bommai case (1992) and the Rameshwar case (2005) to provide for judicial review of the decisions to impose President’s Rule. When the Uttarakhand President’s Rule was struck down by the high court, the BJP government was indignant and discriminated against the judge’s elevation to the Supreme Court.

We should remember that judicial review is a backstop. It would be better for the Presidents Rule provisions to be abolished.

A distinguishable feature of Indian federalism is its asymmetry. Not all states are alike and cannot be treated as such. This asymmetry is manifest in special provisions in the constitution for the states of Gujarat, Maharashtra, Nagaland, Assam, Manipur, Andhra Pradesh, Telangana, Sikkim, Mizoram, Arunachal Pradesh, Goa and Karnataka.

For Nagaland and Mizoram, even the parliament cannot interfere with cultural religious practices (Article 371 and 371 A to J). Areas of states with tribal populations are protected (Fifth Schedule) even if Supreme Court decisions in the Andhra and Chhattisgarh cases have been conservative in not providing for a protective shield in this Schedule.

Significantly for Assam, Meghalaya, Tripura and Mizoram, there are constitutions within the constitution in these states (Sixth Schedule), with other significant autonomies (Article 244A).

Given this, it should not surprise us that the state of J&K was governed by two interacting constitutions at the Union and state levels. The provisions for these two constitutions was called ‘temporary’ because the J&K state constitution was yet to be finalised not as the Supreme Court used this term to destroy the J&K state constitution through executive decisions and legislation passed hurriedly through parliamentary majorities.

Succumbing to the government, the Supreme Court upheld these decisions of a BJP majority parliament with no discussion. This merits an explanation.

In 1957, parliament enacted the Constitution (Seventh Amendment) Act, whereby two provisions (Articles 152 and 308) ordained that parts of the Indian constitution relating to the constitutional governance of state governments (some 100 Articles) and administrative services (some 50 Articles) would not apply to J&K because they were covered by the J&K constitution. These important provisions could only be changed by the rigorous procedure of constitutional amendment (Article 368).

But, subverting this, the Supreme Court decided that they could be changed by executive order without confronting this argument at the bar.

The J&K imbroglio rested on provisions in the constitution to alter state boundaries or change their status (Articles 3-4). These are draconian provisions which could be used to deny the territorial integrity or constitutional status of a state. These provisions may have been necessary because many aspects of the Indian federation were incomplete when the constitution was inaugurated in 1950. These provisions provide for consultation of the state legislature which, the Supreme Court in Babu Ram’s case (1960) diluted.

In the case of J&K, since there was President’s Rule in the state, parliament was unable to consult the state legislature and de-facto consulted itself as a substitute. Those provisions should be reconsidered and amended for more and better consultation.

It is time that India realised that except for large States like Uttar Pradesh or the singular case of Vidarbha, the territorial process that forms the basis of Indian federalism is now complete. When the J&K case reached the Supreme Court, the judges colluded to reduce a mighty and respected state with Muslim dominance but cultural diversity into two Union territories with a vague promise that statehood would be restored in some uncertain future. This was not the Supreme Court’s finest hour.

All governments need adequate finances. Much can and has been written about India’s financial federation, which provides for fiscal levies by the Union and states with greater powers of taxation in the Union and their distribution and grants by the Union government. Reports of the Finance Commissions have been pivotal.

The Planning Commission was a supra-constitutional body now replaced by the truncated NITI Aayog. The 15th Finance Commission, which came into play in November 2017 in the aftermath of the then–recently introduced GST, was reposed with a continuing function to examine grants and review tax devolution to honour the conditions under which it was created and with a caveat on performance–based incentives which may eclipse endemic need–based requirements. This commission favoured the Union government.

GST poses a problem as the GST Council has recommendatory problems and an essential dispute–settlement machinery has not been set up.

A distorted political federalism has joined hands with economic federalism. There is rank favouritism towards those political parties in power that have joined or allied with the BJP–dominated National Democratic Alliance in power in the Union government. The other opposition states are under–resourced. In federal matters, existing checks and balances are being undermined and old statutory mechanisms are being dismantled. New mechanisms undermine a healthy financial federalism.

The civil service texts are important for the selection of the civil services. These are the backbone of Indian governance. To obviate political interferences, the selection of civil servants was entrusted to Public Service Commissions for the Union and states to ensure the independent selection of civil servants, including the police (Part XIV, Articles 308-323).

To ensure that civil servants act independently, there are provisions to ensure that they are not dismissed, removed or reduced in rank without due process (Articles 311-312). The idea was that they should be able to stand up to the political executive without fear or favour.

Unfortunately, successive political executives have violated these provisions, with the result that there is mighty litigation by civil servants in tribunals, high courts and up to the Supreme Court. What a colossal mess. The very size of this litigation shows that members of the civil services are disgruntled by constantly arbitrary and discriminatory treatment by executive governments. This does not augur well for the performance and independence of civil servants.

Remedial litigation also shows how civil servants are transferred if not liked by the political party in power – an issue where the courts have protected the powers of the executive.

Now, the Union government seeks to make outside special appointments in a relatively arbitrary and unregulated way. Checks and balances have gone and need to be restored and innovated.

I now turn to the military texts. Army recruitment is by the Union government, which has generally respected the autonomy of the army, which unlike Pakistan has not converted India’s democratic polity to hand over total powers to the military. But there are provisions in the constitution to modify the fundamental rights chapter in relation to the armed forces and when martial law is in force (Articles 33-34).

Why is this important? The army has a huge presence in the seven northeast states and J&K. They have enormous powers. We challenged the Armed Forces (Special Powers) Act of 1958 with shoot-to–kill powers in the Supreme Court which demurred, refusing to interfere or even lay down guidelines.

At one stage, Justice M.N. Venkatachaliah, when chairman of the National Human Rights Commission, called a meeting of all the concerned top generals to meet with activists. This afforded a frank exchange, but the army did not yield to greater accountability even in respect of allowing independent observers in court martials.

Military operations also precipitate a ‘deep’ state where people are killed or illegally detained or imprisoned. This is hidden from view but surfaces. We need to know more about this deep state and have more accountability from the army and military without interfering in operations.

Since the topic for the day is federal democracy, I have addressed the issue more elaborately and mirrored my concern about checks and balances in the working of the constitution. The inauguration of more direct democracy at the village and city level is discussed in the next part although germane to India’s three–tier federalism.

IV. Separation of government from state

The state is created by the constitution which is permanent. Governments formed under te constitution come and go. The latter may make policies but must operate within the framework of constitutional limitations.

I was reminded of this by Balveer Arora’s recent and much publicised television speech. Today’s government and state are being unified as if the constitutionally created state is a play thing. I think Rahul Gandhi was prompted by his advisers to declared that the Congress will take its fight to the state itself. This was an ill-advised comment, which received much flak and reflects ignorance.

Our object is to save the state which is being taken over by the government to rewrite India’s history, diminish diverse cultures and claim absolute powers so that attention is diverted from the constitutional framework and its imperatives to the ambitions of the government in power and the iconisation of leaders to dwarf anything that stands in their way being undermined.

India is not Indira nor is Indira is India. Nor Modi is India and India is Modi.

V. Constitutional morality

When Ambedkar reviewed the constitution making of the Constituent Assembly, he expressed two caveats of considerable significance.

The first was that this ‘magnificent’ constitution would fail if good men failed to implement it.

The second connected concern was expressed by referring to George Grote’s view of constitutional morality in ancient Greece. This was generally ignored because the members of that august body believed that there were enough men and women of character amongst them and their successors who would take over constitutional governance even though they were wary that many constitutional provisions had flaws and could be politically subverted.

Even so, they believed that in the constitution’s processes and institutions with its checks and balances would work even after partition and Gandhi’s demise.

It is said that in one memoir written by someone other than Gandhi, it was projected that the latter believed in direct democracy at village levels which though inserted in the unenforceable Directive Principles emphasised the importance of panchayats at the grassroots level.

Perhaps this dream was fulfilled in part by the panchayats amendments in rural area and urban settings (Part IX – Article 243(H) to 243(T)). Added to this dream was the Panchayat Extension to Schedule Areas Act, 1996, which gives a dominant role to gram sabhas consisting of the entire village population to control predatory mining entrepreneurs and others.

My dear friend B.D. Sharma, in his weekly meetings with me, felt that the Act has lost its efficiency because the decisions of the direct democracy sabhas were not mandatory.

What our constitution needs are structural changes to promote democracy at all levels and also address the issue of an ‘operational’ morality to address not just the silences of the constitution but its operation across the board. This does not require a new constitution, but a partial re-examination based on consensus.

A new breakthrough came when the Fundamental Rights case (1973) decided that the basic structure of the constitution could not be altered by constitutional amendments. This could have been a doctrine of limited significance if it applied only to arrest constitutional amendments. But Bommai (1992) also used this doctrine to examine the executive action of imposing President’s Rule on various states and declaring that ‘secularism’ was part of the basic structure which was violated by these impositions.

Needless to say, democracy, judicial review and the independence of the judiciary are also part of the basic structure as well as aspects of fundamental rights as explained by Chief Justice Chandrachud (senior) in the Minerva Mills case (1978), which linked the equality, freedom and liberty provisions as part of a celebrated ‘golden triangle’.

It was not entirely clear whether the basic structure provisions could invalidate statutes and were only a means of interpretation. The better view is that it has more general application.

Perhaps born out of the basic structure doctrine, but standing tall as a self standing imperative for constitutional understanding and interpretation, it has bred more radical versions, described and articulated as ‘transformational’ morality on ‘constitutional novelty’. These are innovative doctrines not just, as Madan Lokur pointed out, to deal with the silences of the constitution, but of greater significance. It grew from Supreme Court decisions of Justices Dipak Misra and Chandrachud with some support from others.

My basic concern about constitutional morality is its relativism. Whose constitutional morality? The court’s? Or some judges’? Do Modi and the Sangh parivar have a different “Hindu” view of constitutional morality to rewrite history or legislate for change or even press for a new Hindu constitution which is being explored? Was a Uniform Civil code an issue of constitutional morality?

Judges have differed on its content and application. In the Sabarimala case (2019), Justice Chandrachud emphasised the egalitarian and libertarian provisions of the constitutional text as constitutional morality. Justice Indu Malhotra emphasised plural secularism. Both views led to different results.

At the end of my now dated book on President’s Rule in the States (1979), I talked all too briefly of institutional morality. By this I meant that every institutional authority, every constitutional or statutory functionary and every process of governance has a best practice.

Without elaborating, I wanted all those in power to yearn towards the best practice constituting institutional morality; and to advance the dharma of constitutional governance. Subjectively, this draws sustenance from the Mahabharata to ask each one to find their dharma and move towards its fulfillment of best practice. Many fall short of this requirement – as they do in our time. But I believe institutional morality to be a more workable solution.

VI. Conclusion

I will not attempt a summary of what I have said on elected dictatorship, the checks and balances of the constitution, its manifestation in the five texts of the constitution (the political or democratic texts, the justice texts, the federal texts, the civil service text and the military texts), the need to separate government from the state and exploring the morality of the constitution.

My concern reflects on our challenges in 2025 as they have now emerged after 75 years of governance with all their ups and downs. These challenges have to be addressed by civil and political society and all of us whose future destinies are invested in this great nation for now and generations to come.

To borrow from an American poet: India is large and contains multitudes.

This article is based on the author’s lecture delivered at the India International Centre on January 25, 2025.

Rajeev Dhavan is a senior advocate.

Courtesy: The Wire

The post India Is an Elected Dictatorship Where Constitutionalism Is Under Attack From Within appeared first on SabrangIndia.

He specifically points out that the country’s democratic and constitution values are facing a unique situation, where there are big challenges threatening sabotage on the one side and strong affirmation, on the other side, from sections of the population to protect these values. Hegde cites the 2024 Lok Sabha elections as a case in point. His talk was at the Chavara Cultural Centre, Kochi, Kerala.

Courtesy: The AIDEM

The post It is Time to Renew Our Constitutional Vows – Sanjay Hegde appeared first on SabrangIndia.

The ruling dispensation, the Bharatiya Janata Party (BJP), leaders within Parliament and its ideologues outside Parliament, argued that all the ills of society and violation of constitutional values began with Jawaharlal Nehru (amendment to stop hate speech), via Indira Gandhi (the Emergency), via Rajiv Gandhi (the Shah Bano Bill) to Rahul Gandhi (tearing the Bill) have been the violators of the values of Constitution.

BJP leaders and Hindu nationalist ideologues are stating that the Indian Constitution has been based on Western values, a colonial imprint on our society; it is a break from India’s civilisation and culture. They also argue that the Constitution and its application is the appeasement of Muslim minorities for vote bank purposes that has been done by the Congress party.

As we know, the Constitution was the outcome of the values that emerged during the freedom movement. It also kept in mind the long tradition of our civilisation. The understanding of our civilisation is very different for those who participated in the freedom movement, those who stand for its ideology, and those who kept aloof from the anti-colonial movement and bowed to the British rulers.

While the freedom movement saw India as a plural nation with rich diversities, those who stood aloof saw the civilisation as Hindu civilisation. For them, pluralism is a diversion and imposition by the educated, modern leaders.

Even the Rashtriya Swayamsevak Sangh (RSS) combine forgets that what they call as Hindu civilisation is undermining the contributions of Jainism, Buddhism, Christianity, Islam and Sikhism to our civilisation. Even the interpretation of Lord Ram, their major icon, is so diverse for Kabir, who saw the Lord as a Universal spirit, for Gandhi, who saw Him as protector of all the people, irrespective of their religion in his famous: Ishawar Allah Tero Naam (Allah and Ishwar are same).

Jawaharlal Nehru saw India, Bharat Mata, in his book, The Discovery of India, as an “ancient palimpsest on which layer upon layer of thought and reverie had been inscribed, and yet no succeeding layer had completely hidden or erased what had been written previously.” With great pride, he recalled the rule of Emperor Ashok, who in many edicts etched on stones, talked of equal treatment for Vedic Hinduism, Jainism, Buddhism and Ajivikas.

This is the core difference between the RSS combine and its ideologues who see India as exclusively Brahmanical Hindu, and those like Gandhi and Nehru, as a country belonging to all the people.

The Indian Constituent Assembly mainly represented the stream that struggled against the British, the national stream, while RSS was a marginal stream sticking to “India as Brahmanical Hindu nation”. This started getting reflected immediately after the draft of the Indian Constitution. B.R Ambedkar and Nehru were cautious and stated  that the implementation of its basic structure should be ensured by those ruling the country.

Prime Minister Atal Bihari Vajpayee of BJP, in 1998, formed the Venkatachaliah Commission to review the Constitution. K.R. Narayanan, the then President of India, aptly remarked: “It is not the Constitution that has failed us; it is we who have failed the Constitution!”

This is so true, particularly after the rule of the Narendra Modi government (2014 onward). It is during this period that though the Constitution has not been changed as such, though many from the RSS camp have expressed their wish to do so, without getting reprimanded from the top leadership. This was most blatantly stated to back up their slogan of ‘400 Paar’ (More than 400 seats in Parliament in the 2024 elections), meaning that ‘we want so many seats so that we can change the Constitution.’

The blatant rise of hate speech, lately most clearly stated by a sitting Judge of Allahabad High Court, Shekhar Kumar Yadav, when participating in a Vishwa Hindu Parishad event, saying: “The country will run as per the wishes of its majority.”

Justice Yadav made the remarks while delivering an address on “Constitutional Necessity of Uniform Civil Code”. “Only what benefits the welfare and happiness of the majority will be accepted,” Yadav said.

Worse than his stating so, has been the statement of BJP’s Yogi Adityanath, the Uttar Pradesh Chief Minister, who supported Yadav’ utterances. Mercifully, the Supreme Court has taken cognizance of Yadav’s communal hate speech. But, who will take cognizance of Yogi supporting him?

Commenting on the current state of affairs, Justice Aspi Chinoy made a very apt comment. He said, “The BJP being the government at the Centre and having an absolute and overwhelming majority in Parliament, sees no need to alter the de jure status of India as a secular country and Constitution. Being in control of the state and its diverse instrumentalities it has been able to achieve its goal of undermining India’s secular constitution and introduce a Hindutva based ethnocracy, even without amending and altering the de jure secular status.”

This sectarianism of the ruling BJP goes back to the time when the draft of Constitution was released. A couple of days’ later, the RSS mouthpiece (unofficial) Organiser stated on November 30, 1949. “The worst [thing] about the new Constitution of Bharat is that there is nothing Bharatiya about it… [T]here is no trace of ancient Bharatiya constitutional laws, institutions, nomenclature and phraseology in it”. Meaning that Manusmriti has been ignored by makers of the Indian Constitution!

The father of Hindu nationalist politics, V D Savarkar, was quoted by Rahul Gandhi while participating in debate, “The worst thing about the Constitution of India is that there is nothing Indian about it. Manusmriti is that scripture which is most worshippable after Vedas for our Hindu nation and from which our ancient times have become the basis for our culture, customs, thought and practice.”

The crux of the matter comes to the surface when we compare the chief of the drafting committee of Indian Constitution, Ambedkar, and one of the RSS sarsanghchalak, K. Sudarshan. Ambedkar burnt the Manusmiriti and drafted the Indian Constitution. The RSS chief went on to label the Indian Constitution as being “based on Western values” and called for the need to draft the Indian Constitution based on the Hindu Holy book!

The writer is a human rights activist, who taught at IIT Bombay. The views are personal.

The post 75 Years Down the Line, Whither Indian Constitution? appeared first on SabrangIndia.

India today is on the brink! There are fascist, fundamentalist and fascist forces at work, determined to take the country back to the ‘dark ages’ of history. At stake are India’s pluralistic traditions and democratic ethos! ‘Good governance’ is pathetically lacking! Article 19 (which guarantees freedom of speech and expression), Article 21 (the right to life and liberty) Article 25 (which guarantees freedom to preach, practise and propagate one’s religion), for that matter, all fundamental rights- are consistently denied to citizens. At the receiving end are the poor and the vulnerable, the marginalised and the minorities, the excluded and the exploited, the Adivasi’s, the Dalits and the OBCs; the small farmers and migrant workers; women and children; the differently-abled and other sexually-oriented persons; human rights defenders, journalists and all those who take a visible and vocal stand to protect and promote the idea of a democratic, pluralistic and secular India!

There is a serious lack of political will to address systemic burning issues; there are hurried legislation and draconian, prejudiced policies (all designed to decimate the Constitution) like the National Education Policy, the Citizenship Amendment Act, the anti – conversion laws, the anti-farmer (pro-Corporate) farm laws, the four labour codes, the Forest Conservation Amendment Act, the recent Uttarakhand Universal Civil Code, the ‘One Nation, One Election.’ Constitutional bodies like the Election Commission, the Enforcement Directorate, the Central Bureau of Investigation, the NIA, the police and even the judiciary are compromised; they have become ‘Caged Parrots’.

Corruption is the new normal; we have the most corrupt government since independence! First, it was demonetization; then, the scam of the Electoral Bonds. Fortunately, the path breaking judgement on the Electoral Bonds by the Supreme Court on 15 February, has exposed the corruption, the lack of transparency and accountability of this current Government. The State Bank of India (SBI) had to furnish the complete details to the Apex Court by 6 March. In a blatantly corrupt manner, on 4 March, the SBI has petitioned the SC – for an extension of time till 30 June to provide these details! Only an absolute moron will be unable to see the nexus between the SBI and the regime! Let’s see what the decision of the SC is and whether they will be openly complicit in this corrupt act!

Communalism is everywhere! ‘Hindutva’ is mainstreamed: from the proliferation of temples to the ascendancy of the RSS in every sector. The pluralistic fabric and the rich diversity of the country is being destroyed systematically. Early December, in Jaipur, one of the newly elected MLAs went round closing down non-vegetarian restaurants run by Muslims. On 22 January, with much fanfare, it was the launch of the Ram Temple by the BJP /RSS, using official Government of India machinery. There are numerous instances of minorities (Muslims, Christians and Sikhs) being targeted and attacked. In Manipur and elsewhere, Christian personnel and institutions are being attacked almost daily! The farmers and the ordinary labourers are on the warpath. Thousands of them, who at this moment, are outside Delhi are being forbidden to enter the capital city. The Government is using every ruse in the book to quell their protest

On 26 November 1949, we the people of India, gave to ourselves a visionary and path breaking constitution. Thanks to all the members of our Constituent Assembly, eminent women and men, from every section of India’s society, led by stalwart Dr. B. R. Ambedkar. On, 25 November 1949, the eve of the enactment of the Constitution, Dr. Ambedkar gave a long but very passionate speech to the Constituent Assembly. His speech set the vision and the spirit of what the new Constitution should be for the people of India. Ambedkar said, “If we wish to maintain democracy not merely in form, but also in fact, what must we do? The first thing in my judgement we must do is to hold fast to constitutional methods of achieving our social and economic objectives…. where constitutional methods are open, there can be no justification for (..) unconstitutional methods. These methods are nothing but the Grammar of Anarchy and the sooner they are abandoned, the better for us. The second thing we must do is to observe the caution which John Stuart Mill has given to all who are interested in the maintenance of democracy, namely, not “to lay their liberties at the feet of even a great man, or to trust him with power which enable him to subvert their institutions in politics, Bhakti or hero-worship is a sure road to degradation and to eventual dictatorship. The third thing we must do is not to be content with mere political democracy. We must make our political democracy a social democracy as well. Political democracy cannot last unless there lies at the base of it, social democracy”.

Ambedkar’s final words in that path breaking speech, sums up his views on the measure of responsibility owed to preserve the idea of India, as envisioned in the Constitution. “If we wish to preserve the Constitution in which we have sought to enshrine the principle of Government of the people, for the people and by the people, let us resolve not to be tardy in the recognition of the evils that lie across our path and which induce people to prefer Government for the people to Government by the people, nor to be weak in our initiative to remove them. That is the only way to serve the country. I know of no better.”

It looks as though, the visionary he was, Ambedkar was actually visioning and speaking of India 2024, when the Constitution is truly at stake! The sacred Constitution of India today, is not only being trampled upon and desecrated, but being torn to shreds. The Constitution guarantees fundamental rights (rooted in the Universal Declaration of Human Rights of 1948) to every single citizen of India; they are based on the four non-negotiable pillars of justice, liberty, equality and fraternity. These fundamentals which are enshrined in the Preamble with the pledge to constitute India into a Sovereign, Socialist, Secular and Democratic Republic; where dignity, unity and integrity are paramount. The promotion and the protection of human rights for ALL and the respect for pluralism and diversity, is sine qua non for good governance. Sadly, in the past few years we have witnessed the systematic erosion and the destruction of human rights, by those in power.

It is imperative that we the people, mainstream Constitutionality today, which could include:

• To promote and protect the Constitution in every way
• To study the Constitution: developing an ownership of it in letter and spirit;
• To organise in-depth training in social analysis and advocacy;
• To ensure that all official policies / legislation which are draconian anti- people, anti- poor and anti- Constitutional which go against the democratic and pluralistic fabric of the country be rescinded immediately and unconditionally;
• To ensure that all eligible voters are on the electoral rolls and exercise their franchise freely, for democratic, secular parties/individuals. It means that a regime which is fascist, fundamentalist and fanatic and is unable to ensure constitutional rights to all, must be voted out!

Many Constitutional challenges indeed! But only when we the citizens of India, realise and exercise our Constitutional mandate, will we be able to guarantee to our beloved nation, the change we want to see! In the meantime, we need to pray and act in the words of Rabindranath Tagore, “Into that heaven of freedom my Father, let my country awake!”                                                                     

(Fr. Cedric Prakash SJ is a human rights, reconciliation and peace activist/writer. Contact: cedricprakash@gmail.com )

The post Constitutional Challenges! appeared first on SabrangIndia.

In less than six months from now (around end-April, early-May 2024), the General Elections 2024 are due to be held in the country. These elections are expected to be crucial in the context of the future of democracy in India. One does not need too much of intelligence to realise that the country has reached abysmal depths on possibly every parameter necessary for a vibrant, meaningful and people-centred democracy.

It is imperative therefore, that every single adult citizen (above the age of 18 years) of the country exercises one’s franchise and does so wisely. Before that however, one needs to ensure that one’s name is registered on the Electoral Rolls.

As a starting point: FIRST visit the website of the Election Commission of India https://eci.gov.in/  for immediate, updated and accurate information regarding the entire election process. This website has all the necessary information. In some places, it has already been announced that 9 December 2023, will be the last date for registering one’s name on the Electoral Rolls.

Here are guidelines to ensure that people register themselves and engage meaningfully in the electoral process: which is the right and duty of every citizen! Some pointers, which may be helpful, include: 

I. THE ELECTORAL ROLL:

• if you are 18 years and above (or will turn 18 in the next few months) and a citizen of India, you must have your name on the Electoral Roll (ER)
• it is essential for every adult citizen of India
• check immediately whether your name is on the ER (by visiting the ECI website / your State CEO website / Taluka Office / Collector’s Office / the local branch Office of a national political party)
• for inclusion of one’s name on the ER, you will have to fill Form 6
• ask the concerned Officer on what date you should return to check whether your name is in the ER
• for any objection or inclusion of name/s, you will have to fill Form 7
• for correction of entries in the Electoral Rolls, you will have to fill Form 8
• write your complaints to the Chief Electoral Officer (CEO) of  your State and to the Chief Election Commissioner (CEC) Delhi (complaints@eci.gov.in)
• always retain copies of your application / letters, signed by the receiving Officer, for further reference
• ensure that you have the Elector’s Photo Identity Card (EPIC)
• remember having an EPIC does NOT mean that your name is on the ER
• Constantly check on the ER if your name is still  there –particularly 2 to 3 weeks BEFORE your Election Day; there  are several instances of the names of registered voters mysteriously disappearing from the ER , just before elections
• Organise in your institution a  competent team/s with a computer/s to help people to register themselves
• help the poor, the vulnerable, the differently-abled ,to register themselves on the ER

 II. POLITICAL INVOLVEMENT:

• get involved in mainstream politics
• encourage / support political parties which focus on governance and on issues related to transparency, human rights, justice, liberty, equality, fraternity, secularism, socialism, pluralism and peace and the safeguarding of the Constitutional Rights and freedoms of all.

BEFORE Election Day:

• check out complete details of the candidates, the parties plan to nominate
• organise public debates / dialogues with them and assess their views / opinions / promises / track-record
• study their Election Manifesto of the previous elections and based on that manifesto, see whether the ruling party / sitting candidate has fulfilled the promises made
• assess their views on all vulnerable/marginalized sections of society particularly, the poor the tribals/adivasis, dalits, women, children, small farmers/migrant workers/casual workers, minorities, LGBTQI community
• question(preferably in writing) the candidates on critical subjects which plague the country today like rising prices, growing unemployment, widening gap between the rich and the poor, the takeover of precious natural resources (particularly the jal, jungle aur jameenof the adivasis) and profiteering Government-owned enterprises by some of the corporate sector,  drinking water, education( particularly the National Education Policy),food, security, housing,  ecology( climate change, global warming, use of fossil fuels), employment, agriculture ( the situation of the small farmers; the anti-farmer policies) health, displacement,  migrant workers, casual labourers (the four labour codes) , electoral bonds,  demonetization,  rampant corruption ( like buying up  duly elected politicians from another party),anti-conversion laws, denigration of minorities, misuse of Constitutional/ quasi bodies (like the NIA, ED , CBI , Income Tax, police), military spending. nuclearisation, draconian laws like the UAPA, the incarceration of human rights defenders , the throttling of freedom of speech and expression
• Never fall for their empty promises or ‘freebies’

III.  ON VOTING DAY:

• cast your vote fearlessly
• encourage all others to freely cast their votes too
• vote for a party / individual that is NOT corrupt, criminal, communal and / or casteist  and is committed to protecting the sanctity of the  Constitution
• if you notice any bogus voting, rigging or booth capturing, bring it to the notice of the police / Election Officers immediately and preferably in writing
• ensure that there is photo/video/audio documentary evidence
• make sure that the Electronic Voting  Machine (EVM) you use – works correctly also demand that there is a Voter verifiable paper audit trail (VVPAT)
• you have the right to exercise your franchise as ‘None of the Above’ (NOTA) under Rule 49 – O

IV.  AFTER ELECTIONS:

• find out the details of your elected representative (name, address, telephone / fax nos., email, etc)
• arrange that organizations, villages / groups invite the person to share his / her views about the area for the next five years
• ensure that you keep in touch with him / her constantly
• remember that they have budgetary allocations for their constituency; find out for what programmes this money is being utilized
• insist that your views / concerns are voiced in the assembly / parliament
• ensure that they do NOT endorse any draconian or anti-people legislation
• remind the representative that as a voter you have a right to ask for his / her resignation for non-performance

On November 25, 1949, in a passionate speech in the Constituent Assembly the Visionary Dr. Ambedkar warned the nation of three things that could destroy the democratic structure and fabric of the nation, “If we wish to maintain democracy not merely in form, but also in fact, what must we do? The first thing in my judgement we must do is to hold fast to constitutional methods of achieving our social and economic objectives…. where constitutional methods are open, there can be no justification for (…) unconstitutional methods. These methods are nothing but the Grammar of Anarchy and the sooner they are abandoned, the better for us. The second thing we must do is to observe the caution which John Stuart Mill has given to all who are interested in the maintenance of democracy, namely, not “to lay their liberties at the feet of even a great man, or to trust him with power which enable him to subvert their institutions in politics, Bhakti or hero-worship is a sure road to degradation and to eventual dictatorship. The third thing we must do is not to be content with mere political democracy. We must make our political democracy a social democracy as well. Political democracy cannot last unless there lies at the base of it, social democracy”. In voicing his strong sentiments, Ambedkar would certainly visualized India 2023, when some are determined to destroy the entire Constitution

It is time for ‘we the people of India’ to wake up immediately , before it is just too late- we must ensure that as citizens of India, we  seriously pay heed to the warnings of Dr Ambedkar and protect the sanctity of our Constitution and our democracy, at all costs! 

(Fr Cedric Prakash SJ, the author, is a human rights, reconciliation and peace activist/writer).

The post Towards 2024: Citizens’ Responsibilities appeared first on SabrangIndia.

Rosary School in Vadodara (Baroda) Gujarat is one of the premier educational institutions of the state of Gujarat. It is co-educational and run by the Society of Jesus. It caters to about 2,300 students from all walks of life. The school that was begun in 1935, provides quality education to make students women and men for others. It also boasts of alumni, who have contributed significantly to the nation- in public service, sports, and academia and research engagements and in other important spheres. It is therefore, not without reason, that Rosary School, is much sought -after by parents, for the education of their children.

On November 4, 2023, 19 days ago, the school had its Annual School Day celebrations. The first part, which lasted for about an hour, was devoted to customary items like lighting of the lamp, prayer dance (performed beautifully by the school staff), the Principal’s report, the Chief Guest’s speech, the prize distribution etc. Then one would naturally have expected the traditional items of song, dance and playlets to hold fort the normal stage presentations so typical on such Annual Days in most schools.

But NO! The massive gathering: parents, alumni, well-wishers and friends of the institution were treated to a performance, which few will ever forget.

The theme of the Annual Day was ‘Promoting and Safeguarding Constitutional Values. The huge backdrop catchingly emblazoned the theme with a picture of Dr. B.R. Ambedkar, the father of the Constituent Assembly and a picture of the Constitution of India. The entire programme, which went on for a non-stop two hours, highlighted the four non-negotiable values of the Constitution: justice, liberty, equality and fraternity. It was a moving spectacle in song, dance and mime. Class after class (from the KG to Std. XII) they came; they regaled, engaged and conscientised the audience in meaningful ways. More than seven hundred students participated in a performance, which was simply brilliant, touching and heart stopping.

The tiny-tots of the kindergarten set the ball rolling. They were all beautifully dolled up in the image and likeness of those who fought for India’s freedom and ensured India’s independence from colonial rule on 15 August 1947. The children confidently paraded in royal style, to the cheers of the audience and with the commentator highlighting the significant role each of these played in making India a free nation.  From a mini Mahatma Gandhi to Jhansi ki Rani: they were all there! It was an out- of this world performance by tiny tots, who helped bring back memories of those who sacrificed so much for our freedom.

The audience was then transported to August  29, 1947, with the appointment of the seven members to be on Drafting Committee for the new Constitution .The members of this Drafting Committee were certainly look-alikes of the original. The student who played the role of Ambedkar was certainly a chotta version of the original. The accents and articulations of each of these members, besides their names, magnificently communicated their cultural and ethnic backgrounds, which spoke volumes of the wealth of diversity in India. They were the link that bonded the entire programme. It was evident that painstaking research was put in, to ensure that this group of students would create the necessary impact.

The post Celebrating Constitutionality! appeared first on SabrangIndia.

The resolution may be read here:

The post Madras Bar Association urges return to original names of India’s criminal laws: Bharatiya Nyaya Samhita appeared first on SabrangIndia.

Law, from any viewpoint, is the foundation of certainty, said the Italian jurist Giovanni Carmignani in his work Theory of the Laws of Social Security. This statement powerfully portrays the importance of the rule of law by connecting it to a sense of certainty. Here, we present a case for the upholding Constitutional supremacy as opposed to Parliamentary supremacy, arguing that, in order to maintain certainty in society, and through this equilibrium, the rule of law. Before this is discussed, it is important to understand why there is a necessity to discuss this seemingly well-established principle.

Recently, Vice President, Jagdeep Dhankar, addressing the All India Presiding Officers’ Conference, made vocal remarks on different institutions of Indian democracy.^[1] He (in) famously, said “You cannot script in legislature, a judgement of the court. Usi bhaavna mein(similarly) Court cannot legislate. It is as clear as anything else,” and he went on to talk about the Supreme Court’s judgement in the Kesavananda Bharati Case in which the Supreme Court laid out the Basic Structure Doctrine.^[2] The Vice President said, about this seminal judgement, “With due respect to the judiciary, I cannot subscribe to this. This house must deliberate. Can this be done? Can Parliament be allowed that its verdict will be subjected to any other authority?”

The Basic Structure doctrine is unequivocal – Parliament’s power to amend the constitution is not supreme since there is a basic structure that runs through the Constitution and Parliament cannot amend that basic structure. Elements like equality before the law, right to life, right to non-discrimination, the republican nature of the government, secularism etc come under the basic structure. The list is not exhaustive.^[3] In 2023, a high constitutional functionary openly challenging this established principle and saying that Parliament is the ‘supreme power yielding authority’ due to its representation of people; and, that ‘they’ (by which we take to mean the existing lot of parliamentarians) to one of the most significant judgements to be ever delivered by the Supreme Court is not just a warning signal towards where we may be headed. Dhankar’s words need to be engaged with.

Before we go further, it is important to present a clarification. This article or its arguments are not an argument to whittle down the powers of Parliament to either, amend the Constitution or to enact laws. That would be not be a fair reading of the Constitution with its fundamental sovereignty lying in the people.  The argument here is that the Parliament’s power to amend the Constitution does not extend to amend the basic structure, as underlined in the Kesvananda Bharati case. The exclusion of rich jurisprudence on basic structure, from this article, is deliberate because- quoting the Supreme Court or judiciary to support the argument that it must be the Supreme Court that is allowed to decide the constitutionality of cases on the basis of their standing with the basic structure doctrine- has already been attempted and accomplished multiple times. Moreover, given that the Vice President’s brazen declaration that he does not subscribe to the views of the Supreme court in the Kesavananda Bharati case, this is rather an attempt to engage with his statement irrespective of the rich jurisprudence the Indian judiciary has already produced.

This article is therefore about Society, the Constitution, Parliament and the Indian state rather than only legalities.

Certainty in a Society

Coming back to certainty, how important is certainty in a society? A simple and real life example would be the food security regime in India. Every month, crores of Indians are certain that food grains will be provided to them by the government. What does this certainty of receiving some amount of food grains do to the people? It provides them an opportunity to not fear starvation or dire conditions, gives them the freedom to look for jobs, perform at their workplace and in general, aim for a better quality of life. If not for the certainty i.e., distribution of grains every month, the scheme would not be beneficial. In fact, the absence of certain legal regime at the WTO level is preventing countries like India and China from bettering their Public Distribution Systems.^[4] Another example could be any nascent industry. Say for example, the Crypto or a Space sector industry in India. The foremost demand from these industries, to the government, has been that there should be legislation governing their sectors. Why is there such a demand? It is to ensure certainty in terms of how they are treated by the government.^[5] Such certainty provides them with a constant business environment and allows them to make better management and financial decisions. Although some scholars could argue that this kind of certainty facilitates the capitalist foundations and they are not wrong.^[6] However, certainty also benefits society as a whole and the facilitation of a capitalist foundation is a by-product. Uncertainty, on the other hand, brews discontent, disappointment and despair. There is no better example than the recent Covid-19 pandemic to demonstrate how disastrous absolute uncertainty can be. There is scholarship too, that argues that legal uncertainty leads to gender and “class-regressive and gender-regressive” side effects.^[7]

Certainty in Rule of Law and the Constitution

What then is Certainty in a constitutional sense or a legal sense? Rule of law denotes certainty in terms of how societies function and the rules they follow. For different relations between people i.e., between families, between individuals and state, between businesses, between the state and different sections of people- the law is the governing entity rather than a person or a group. However, if people and the relations are subjected to a constantly changing law, there is very little growth for such relations since much of the effort is spent in adapting to the new law. Therefore, one of the necessary elements of the concept of Rule of Law is certainty.^[8]

It is the Indian Constitution that lays down a clear line of some certainty for future generations of the kind of society and state India must evolve into. This has to be seen within the view of not merely the constituent assembly debates or the jurisprudence that has evolved since independence but also to be viewed within the context of the vast and myriad struggles against colonial rule and domination, the issues, concerns, demands and values they threw up. All these factors, then, united our people who are otherwise diverse and different, divided by regions, religions and languages. These certain elements of rule of law include Equality, Equality before the Law, Rights for All, Democracy, Secularism, Republican form of government, separation of powers and a commitment to the idea of India where citizens are empowered with rights, limitations are placed on the state to prevent it from engaging in excess etc. It is therefore important to have this certainty of a societal order, with respect to some very basic notions, so that Indian society can thrive.

The second moot question that needs to be explored is how the notion of Parliamentary supremacy will be or is, detrimental to this goalpost, of certainty.

Parliament is a volatile body. As an institution, it has the sanction of the Constitution but as a body, its constituents change within years and therefore, its agenda, functioning etc also changes. A simple example is how the Indian state is no longer wanting to engage in businesses which was an important function of it, in the era immediately after independence. Therefore, aided with this volatility, a Parliament can alter priorities and policies; however, controlled by temporal political forces, if it is allowed to do so, it can alter the basic (structure) principles and the certainty such principles provide.

Such change will only be detrimental to society because a Parliament changes periodically and with this change, basic principles also would and could change. If a Parliament at one time decides that the country has a state religion, and by the time people adopt it, another elected Parliament in another term roots for a state that is secular with no religion. Without the certainty of the basic structure, as provided in the Constitution, this changing notion of how countries (societies) should be, will have a detrimental effect on people since their relationship with each other and with the state will become subject to constant change without any time for adapting to such change.

In summary, societies need the Rule of Law to thrive. The Rule of Law needs Certainty. Certainty needs a Constitution’s supremacy to prevail rather than a Parliament’s volatile and fidgety nature.

A last question that needs to be answered in order to present a complete case for Constitutional supremacy. The question being that, since it is Parliament that is the supreme indicator of people’s will, why should a Constitution written decades ago, prevail over Parliament, a living institution? The answer is that the Parliament is a nascent institution that represents people’s choice between some political parties within an election whereas the Constitution is a culture machine that is not only living but also transforming itself to the changing needs of the society with the help of Judiciary.

If there is to be a fundamental change in the Constitution or in the Idea of India as a whole, that kind of change cannot be initiated or effectuated by a five year tenured body which was not formed for the purpose. The writ of the Constitution did not begin after the Parliament got elected. It was a separate, wide and distinct process which included public mass mobilisations, debates, public participation etc, then culminating into the formal process by the Constituent Assembly. Parliament’s purpose is to make laws while representing the people from all parts of the country. For Parliament to assume power to amend the fundamentals of the Indian constitution, it would need a wider, deeper sanction than a mere general election.

Conclusion

Parliament is given extensive powers within the constitution and for all practical reasons, many more powers have come to be vested with the Parliament and the Executive, since. In both of these organs, people and their ideas dominate for a fixed period of time, depending on people’s mandate, giving rise to potentially arbitrary decisions sometimes. For this huge (misuse of) power to be in check, the Judiciary acts as a protector of the Certainty the constitution provides for people.

While Law should not be rigid and be amenable, the processes to amend some basic principles which form the bedrock of societies should not and cannot be just placed in the hands of elected legislatures.

The post Rule of Law means Certainty that establishes Supremacy of the Constitution appeared first on SabrangIndia.

The Indian Constitution is reflective of India’s essential quality, that of a pluralist and tolerant people, said United Nations (UN) Resident Coordinator for India, Shombi Sharp, on Saturday. The UN representative had been invited to speak at the Human Rights Day celebrations organised by the National Human Rights Commission. Also in attendance were the chief guest of the event, President Draupadi Murmu, and the chairperson of the commission and retired Supreme Court judge, Arun Mishra.

As the world’s largest democracy that occupies crucial positions in international organisations, such as the presidency of the United Nations Security Council and the G20, the world is increasingly looking to India’s leadership in furthering human rights and sustainable development, added Shombi Sharp.

After reading out a message from António Guterres, the Secretary-General of the United Nations, about the urgent need for member states, civil society, and the private sector as well as other key actors to ‘put human rights at the heart of efforts to reverse today’s damaging trends’, Sharp observed, “Now, as member of the United Nation Human Rights Council, as the president of the Security Council, as president of the G-20, which will coincide with the 2030 Agenda for Sustainable Development midpoint stocktaking summit at the General Assembly next year, the world community looks increasingly to India’s leadership in furthering the principles of the Universal Declaration of Human Rights and sustainable development for all, leaving no one behind.”

Sharp said that India had, in past decades, been a champion both of the Universal Declaration of Human Rights itself and the concepts of dignity, freedom, and justice for all, which was the theme of this year. “These ideas permeate the Indian Constitution which itself reflects India’s essential nature as a pluralist and tolerant society,” the UN representative said. He especially noted the contribution of Mahatma Gandhi and B.R. Ambedkar and said that the world honours famous icons such as them. He added, “Thanks to an Indian woman, Hansa Mehta, Article 1 of the Universal Declaration of Human Rights recognises not the equality of men as originally drafted, but the equality of women and man, all human beings are born free and equal in dignity and rights.”

Message on Human Rights Day by NHRC chairperson, Mr. Justice Arun Mishra

Meanwhile this message from the NHRC chairperson is interesting:
“Greetings to all on the eve of Human Rights Day, which is celebrated on the 10th December every year since 1950 in commemoration of the Universal Declaration of Human Rights, UDHR by the United Nations in 1948. It is entering the milestone 75th anniversary this year and the Amrit Kaal to mark the global consensus on the importance of promotion & protection of human rights.

The Day is observed to remember and strengthen the tenets of UDHR that every human being, regardless of race, colour, religion, sex, language, political or other opinions, national or social origin, property, birth or other position, is born equal and has inalienable rights to life, liberty, dignity and equality. However, we have to co-relate every right to some corresponding duty to be performed.

Today amidst various new concerns of human rights, the climate change & environment degradation is emerging as a major cause of many human rights violations across the globe for which all stakeholders, nationally as well as internationally, need to contribute in the interests of growth and development of all equally.

The motto of the NHRC, India – “Sarve Bhavantu Sukhina”, i.e. let there be happiness everywhere, is the essence of life on earth. It is also rooted in the age old traditional Indian belief of ‘Vasudhaiva Kutumbakam’, i.e. world is one family. Let us join hands to guide ourselves through this path of seeking peace and harmony by valuing human rights and sentiments in our quintessential quest for a better world.

Jai Hind!”

Related:

“Every Indian citizen has the duty to prevent abuse of the Constitution”: Justice KM Joseph On Constitution Day

“Only accommodation of differences can promote Unity in Diversity”: Chief Justice DY Chandrachud on Constitution Day

The post Indian Constitution reflects India’s essential quality, a pluralist and tolerant people: United Nations Representative appeared first on SabrangIndia.

The Constitution of India is a dream, a vision, a set of promises. Written by Harsh Mander and illustrated by Priya Kuriyan, Our Constitution, Our People, takes its readers through the pages of Indian history to understand what this important document means for our present and our future, and what it means to be a citizen of this country.

The following are excerpts from the book.

2. The Constitution: A Dream, a Vision, a Set of Promises

Having thrown off the bonds of 200 years of slavery, the Indian people could now decide what kind of country free India would be. At the time of India’s freedom, the world was still rebuilding and healing from the devastation and wounds left by the Second World War. The holocaust had left around six million Jews, two-thirds of the entire Jewish population of Europe, dead — murdered by Nazi Germany, led by Adolf Hitler, from 1941 to 1945. The people of the world had learnt from this horrific and tragic genocide the dangers of what happens in a country when minorities — religious, racial, ethnic — are not protected.

They had learned the consequences of the politics of hate and division. These were also lessons for the Indian people.

Centuries of colonial bondage had reduced India from one of the richest to one of the poorest countries in the world, where famine and want stalked the countryside. For millennia, the cruel system of caste had made life a living hell for those unfortunate enough to be born into oppressed castes. Women were denied the right to property, education, work and dignity, and even sometimes to life itself.

Would we change all of this, and how?

Who would this country belong to?

Who would govern this country? How would the rulers be chosen? What powers would these rulers have? And what powers and rights would the people have? And would the country’s minorities — of religion, caste, tribe and gender — be protected?

The answers to questions like this were written into a book called the Constitution of India.

3. What is the Constitution of a Country?

It is a dream, a vision, a set of promises, a compendium of guarantees, a storehouse of aspirations. It is the collective imagination of the destination that the country pledges to reach.

It is a solemn articulation of the values that the country will hold close to its soul in its journey in the decades and centuries ahead.

Most constitutions, except of the United Kingdom, Israel, the Kingdom of Saudi Arabia and a few others, are written documents.

The Constitution of India was written by a body called the Constituent Assembly. They sat in the grand historic, circular building that became the home of the Parliament of the Indian republic. The Constituent Assembly had over 300 members; these 300 women and men were, in a sense, the founding mothers and fathers of the constitution. They were drawn from the people elected to the provincial assemblies of the time.

And about a third were nominated, to ensure that its members were drawn from people of every religion, caste, gender, culture, community and profession. The Constituent Assembly did not have members only from the Indian National Congress, but members were invited even from parties that were strongly opposed to the them.

Read the full story here.

These are excerpts from Our Constitution, Our People (2022), written by Harsh Mander, illustrated by Priya Kuriyan and published by Pratham Books. Republished here with permission from the publisher.

All illustrations by Priya Kuriyan.

Harsh Mander is a human rights and peace worker, writer, columnist, researcher and teacher.
Priya Kuriyan is a children’s book writer, illustrator, comics-maker and animator.

Courtesy: Indian Cultural Forum

The post Our Constitution, Our People appeared first on SabrangIndia.