The Supreme Court Tuesday issued notices to two persons for reportedly threatening senior advocate Rajeev Dhavan, who is representing Muslim parties in the Ram Janmabhoomi-Babri Masjid land dispute case. The court issued these notices following a contempt plea filed by Dhavan. “Notice,” said the five-judge Constitution bench headed by Chief Justice Ranjan Gogoi at the start of hearing on 18th day in the land dispute case. The bench has put up contempt pleas for hearing after two weeks.

Rajeev Dhavan, who represents lead petitioner M Siddiq and the All India Sunni Waqf Board in the Ayodhya case, has said that he received a letter on August 14, 2019, from N Shanmugam, a retired education officer, threatening him for appearing for the Muslim parties. He also alleged that he has been accosted both at home and in the court premises by several people, news agency PTI reported. A second contempt petition had already been filed by Dhavan against a resident of Rajasthan, Sanjay Kalal Bajrangi, for sending him a WhatsApp message, which, the senior advocate has said,  was also an attempt to interfere with the administration of justice before the apex court.

In his plea, Rajeev Dhawan said that by sending the letter the alleged contemnor has committed criminal contempt because “he is intimidating a senior advocate who is appearing for a party/parties before the apex court and discharging his duties as a senior advocate and he ought not to have sent such a letter.”

“Exercise suo motu powers under Article 129 of the Constitution of India and Section 15 of the Contempt of Courts Act taking cognizance of the criminal contempt on the basis of the facts placed on record against the contemnor/opposite party for committing criminal contempt,” the plea said.
 

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The BJP coalition government wants to change the Constitution. But why? On this, the BJP is obscure. The coalition partners, who used to be vocal in their pre–coalition incarnation, are silent. There is little indication about the need for or the area of change. There is no White Paper. No document. Even the constitutional changes proposed in 1976 during the Emergency were preceded by a long eclectic, anonymous, unsigned document which provoked a sitting judge, Justice Krishna Iyer, to demand that someone claim ownership of the illegitimate child. White Papers are not unknown to the BJP. They published an embarrassingly communal White Paper on Babri Masjid in 1993 which some of us were pained to read to the Supreme Court in the Babri Masjid proceedings. This time the BJP is silent.

There is to be constitutional change. But, for whom? And, for what? Are these changes to benefit the BJP? Are they to benefit the coalition partners? Are they for the nation? Are they really about constitutional changes? Or are they about governance? Or, is all this to be left to Justice Venkatachaliah who is to head the commission? We do not even have the benefit of a statement from the government, or a debate in Parliament.

We do have some glimpses about what the changes may be about. The first glimpse was about a possible switch to the presidential system. This has been in the air for some time, but acquires vitality in today’s electoral context. The BJP has failed on three occasions to get a single party majority — in 1995, 1997 and 1999.

Like Mrs. Gandhi in 1976, it feels that if it fields a directly elected President it might win. Yet, we think that the presidential system is a self–fulfilling prophecy. As in the US in 1992 and many other occasions, there could be a paralytic situation between the legislature and the President. With 200 years experience, the US could handle this crisis. In India, the 50 years of mal–experience suggests that we cannot handle it. Political capital will be made about confrontation to precipitate paralysis.

This is also true of the second glimpse of proposed change which vouchsafes continuity of the government in power (in our case, the BJP) unless there is a positive vote of no-confidence and a viable alternative. The requirement of a positive vote of no–confidence is no problem because that is how the system functions. Thus, Mrs. Thatcher was defeated on major policy matters on 21 occasions and the Narsimha Rao government was defeated on TADA and the Patents Bill in 1995 without yielding to a resignation.

However, a guaranteed term in the absence of an alternative government for three, if not five, years may deal with the problem of frequency of elections, but it does not deal with the problem of paralysis between the executive and the legislature. In fact, the interposition of a viable alternative will increase suitcase bribery from which the legislators will have criminal immunity after the Supreme Court’s judgement in the JMM case (1998).

The third glimpse of what is possibly on the agenda appears to relate to the electoral process. The BJP feels that despite a decline in the popular vote, it can command a greater proportion of the popular vote. But, in order to do this it needs to alter the electoral system. To its rescue comes a report of the Law Commission which seeks to run Indian democracy on German lines. The presence of independent candidates is seen as a nuisance.

So, Indian democracy is proposed to be run through political parties. Independents are out. It is not clear how new parties will come into being. More significantly, the Law Commission’s proposals suggest that the size of Parliament be extended by about 100 members to reflect the popular vote for particular parties. The Law Commission’s proposals were criticised. But, Justice Jeewan Reddy is adamant that he has found the German and cosmopolitan elixir which will cure Indian democracy.

He has a penchant for new ideas within an overall statist approach. Thus, on the bench he virtually nationalised technical education in 1993, provided for a limited judicial review of President’s Rule with awkward results by approving President’s Rule for states where there were no problems and has, recently, veered the Law Commission to support the revival of TADA. He is to be on the Commission on the Constitution. We do not know whether he is overtly committed to re–structuring India’s democracy on German lines. We know he is passionately committed to his own final reports on electoral change.

Fourth, there is the BJP’s agenda of silencing the President. In 1979, the Constitution was amended to give formal recognition to the power of the President to refer back matters for re–consideration by the Cabinet. The BJP were not happy when President Narayanan used this power to refer back the government’s decision to impose President’s Rule in Bihar in 1998. Nor have they been happy about some of the President’s pronouncements. But, both in general parliamentary practice, as well as due to the provisions of Art. 78 (which give the President the power to obtain information), the President has the duty to advise, encourage and warn.

As Justice Krishna Iyer, explaining the parliamentary system in Shamsher’s case (1973) put it: the President is not, and was not intended to be, a cipher. Indeed, it would be sad and inimical to governance if he became that.

Fifth, there is Ram Jethmalani’s agenda about bringing accountability in judicial appointments and misdemeanours by the higher judiciary. In the Third Judges case (1998) — provoked by a reference suggested by Attorney General Soli Sorabjee and perforce, Mr. Jethmalani and others — the judges have purloined and virtually taken over the system of appointment of judges. This has led to awkward results. Judges rejected by previous collegiums have found acceptance by recent ones.

Mr. Jethmalani and others (no less myself as a little inconsequential voice of a student of this process) feel a proper National Judicial Commission is required. No less, the ‘acquittal’ of Justice Ramaswami by a block Congress abstention in 1992 and Justice Venkatachaliah’s internal report that judges publicly accused of wrong behaviour cannot be denied work has led to a situation that judges of the higher judiciary cannot be disciplined; and, do not always exercise self–discipline. Here, there is a specific need for re–examination. But, one does not have to review the whole Constitution simply to deal with this.

Sixth, there is a fear that the Union may want to rewrite Indian federalism and the panchayat system to centralise power. We already have the Sarkaria Committee Report (1987) which has lain fallow for many years. Do we need another Commission? Surely, a White Paper on Sarkaria is overdue before we venture nebulously into yet another Commission?

Seventh, one of the great dangers faced by India is the lumpenization of its governance. This is startlingly affirmed by the Vohra Committee (1995), which expresses the concern of the major security agencies that India ‘s governance is run by thugs and hoodlums at every level of governance. This is a problem of governance and politics. Its needs examination; but not necessarily under the aegis of constitutional review.

Eighth, India’s democracy is imperfect and stunted in its rigour. It is a matter of tribute that the people of India have discerningly evolved the right to throw out their rulers from time to time. But, apart from this aspect of electoral democracy, Indian democracy is weak and lacks both the discourse and accountability to make it work in a strongly democratic way.

Information is not available. Reports on grievous atrocities and corruption are not dealt with. But, these are all matters of governance and of making democracy work. If the political parties want, they can include less, or no, thugs in the electoral process. When Mr. Jethmalani wanted to evolve a new democratic system of information–on–demand, he was shot down by the Cabinet secretariat.

These are all matters of governance. This is equally true of the ninth area of general — albeit not BJP concern — that social justice is denied to most Indian’s, especially the 350 million living below the absolute poverty line.

Finally, there appears to a somewhat arbitrary celebratory millennial and golden jubilee view that a review must take place after 50 years of the republic which coincides with the advent of a new century. There is a difference between reviewing aspects of governance and arbitrarily reviewing the fundamental law simply because 50 years have passed.

In the light of all this, it is understandable that the proposal to review the Constitution is looked at with suspicion. But, there is another reason to fear a sweeping proposal of this nature. It will open up Pandora’s box. As soon as one speaks of a general constitutional review, innumerable demands for change will be made. We have only to read the debates of the Constituent Assembly of 1946–49 to realise the nature and sweep of demands. We were lucky to pledge these demands to peace in 1949. I doubt whether we will be so lucky now. If India would even try to draft a new Constitution today, we would not succeed. We have not even been able to put through the Bill for Women’s reservation. Israel was not able to evolve a consensus for an agreed Constitution in 1949 or thereafter. Pakistan’s Constitution took 8 years to evolve (1947–56); and, that too, after the Constituent Assembly was dissolved in 1954! Since then in Pakistan as also in Bangladesh, constitutions have constantly been usurped into breakdown. The Constitution and constitutional change should not be treated as a political toy.

India’s Constitution has a theory of change. In 1973, a Supreme Court judge put it very elegantly when he said that a Constitution was not in a state of ‘being’ but ‘becoming’. The Constitution catered for adjustments and adaptations. This is what made our linguistic States possible. The Constitution also invited a re–examination of its working and strengthening of its democratic processes. Examples of this include the Anti-Defection Amendments (1985) and the Panchayat Amendments of 1992. There was a cap on changes of the basic structure by the Supreme Court in the Fundamental Rights case (1973). But, it is not clear what the basic structure is. In the Bommai (1993) and the Babri Masjid case (1995), the Court declared that secularism is part of the basic structure. In both the 1973 case and thereafter, judicial review has been declared part of the basic structure.

Presumably, democracy is part of the basic structure, but it may not follow that a particular form of democracy is part of the basic structure. ‘Socialism’ — in terms of social and distributive justice — may be part of the basic structure; otherwise the Constitution is meaningless for the millions living unequally, generation after generation, in penury below the poverty line. Yet, intimations of the ‘basic structure’ should not frighten us into not making Indian democracy and the rule of law more workable.

The contemporary proposal to review the Constitution began life as a political proposal to achieve political results. Justice Venkatachaliah’s interventions may have provided some focus. What we seem to fail to do is to make the vital distinction between constitutional reform and governance.

The governance of a nation requires constant re–examination — even more so the governance of a nation like India which has an imperfect democracy, is overrun by lumpen elements and which has failed to provide social justice to the bulk of its people. But to invite a general constitutional review has ‘Pandora box’ implications. India’s Constitution was devised for a complex civilisation. Neither the Constitution nor plans to change it should lend itself to usurpatory appropriation — least of all to suit the agendas of political parties.

Archived from Communalism Combat, February 2000. Year 7  No, 56, Debate

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