Opinion | The Constitution At 75: A Time For Reflection And Renewal
The truth is that protecting the Constitution is a serious business on a daily basis, and only vigilant citizens can do that job
November 26 was celebrated as Constitution Day. I was part of several media debates on the importance of this commemoration. As expected, the debates mostly reduced themselves to a mud-slinging fest between the BJP and the Congress. This year, the rivalry had a new salience, because the Congress party has made the threat to the Constitution one of its principal campaign agendas.
The BJP’s strongest argument, of course, is citing the Emergency of 1975-77, when the Constitution was stupendously misused, and all freedoms guaranteed by it brazenly asphyxiated. Fortunately, though, such a scenario has not been repeated. However, the real question is: has the threat to the sanctity of the Constitution truly disappeared since then?
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My own view is that in a competitive democracy, where the pursuit of power seems to have finessed all ethical restraints, the intent and spirit of the Constitution are perennially under threat, even if not as overtly as during the Emergency. A self-willed executive will always use the letter of the Constitution to erode its spirit. This tendency is applicable to all political parties when they are in power, and there are umpteen examples to prove it.
Democracy is a basic structure of the Constitution, as laid down by the Supreme Court (SC) in the pathbreaking Kesavanand Bharti case of 1973. To ensure this, the Samvidhan outlines an elaborate system of checks and balances between the three main pillars of governance: the executive, legislature and judiciary. In the case of the executive, a pivotal element is the bureaucracy, which Sardar Patel referred to as the ‘steel frame’ of India. Bureaucrats are mandated to be apolitical, and provide impartial and fearless advice to their political masters. Unfortunately, over the years, most bureaucrats have lost both their spine and conscience, becoming accessories to and collaborators with the politicians who rule them. This allows political leaders to use the very bureaucracy that is supposed to keep their powers in check, as collaborators.
Parliament makes laws. But such law-making, under the Constitution, was intended to be debated, examined and discussed in the House with a vigilant Opposition, and scrutinised, where necessary, by parliamentary committees. However, in situations—both now and in the past—where the ruling party holds an absolute majority in the Lok Sabha and a managed or actual majority in the Rajya Sabha, laws are passed without adequate discussion or reference to the extent necessary to parliamentary committees.
The functioning of the House has also regrettably reduced itself to a fish market, where there are almost daily disruptions and adjournments, leaving no scope for serious discussion. Although the treasury benches are supposed to be responsible for running the House, the Opposition cannot avoid blame for this sad state of affairs. Moreover, undemocratic methods such as denoting proposed laws as Money Bills so that the concurrence of the Rajya Sabha can be dispensed with, have also been resorted to.
The judiciary is required to act as a check to arbitrary law making which is violative of the Constitution. This requires an independent judiciary, but all governments seek a more pliant one, for the simple reason that the government is the single biggest litigator in courts. To retain their independence, the SC ended the earlier practice under Congress governments of the executive appointing judges.
India is the only country where judges appoint judges, whose desirability itself is a matter of debate. However, the government can always subvert even this process by indefinitely delaying its concurrence to the names recommended by the SC. The result is that ‘inconvenient’ names very often never get the chance to become judges. Rewarding retired SC judges to cushy tribunals and governors of states or members of the Rajya Sabha is another abominable practice of influencing the judiciary. The government has also resorted to the undemocratic practice of reinstituting laws rejected by even a full bench of the SC, through the route of an ordinance. This has been done by both the Congress and the BJP.
Independent institutions, which are non-negotiable aspects of the Constitution, stand deeply eroded today. Governors of states take an oath on the Constitution to be bi-partisan. However, Congress governments were notorious for misusing Article 356 of the Constitution to topple legitimate governments through the use of partisan governors. Even today, governors of Opposition-ruled states act as agents of the ruling party at the Centre. In several Opposition states, governors have sat for years on laws passed by state assemblies, or referred them to the President, provoking the SC to pass serious strictures on their unconstitutional conduct.
The perceived impartiality of the Election Commission of India (ECI) today is a far cry from what it used to be under impartial, hard taskmasters such as Chief Election Commissioner T.N. Seshan. When a five-judge bench of the Supreme Court, in March 2023, intervened to rectify the process by which the triumvirate of Election Commissioners are appointed, the current government, disinclined to see its influence over their appointments diluted, overruled it through an ordinance. Why? Similarly, independent investigative agencies like the CBI and the ED now seem to act more as extensions of the ruling party, thereby undermining the level playing field of democracy.
Finally, a fourth pillar for the protection of the Constitution is the media. Again, all governments seek to control it, and many members of the fourth estate succumb to that pressure. Dissent and criticism, such an important part of the spirit of the Constitution, are sought to be controlled by draconian laws, such as UAPA and PMLA, where anyone can be arrested without providing reasons and without the option of bail. The process of obtaining justice then becomes the punishment, with prisoners languishing in jail for years before their case even comes up for bail.
Congress leaders wave copies of the Constitution in rallies. BJP leaders profess their innocence on all matters citing the Congress promulgated Emergency. The truth is that protecting the Constitution is a serious business on a daily basis, and only vigilant citizens can do that job.
The author is a former diplomat, an author and a politician. Views expressed in the above piece are personal and solely those of the author. They do not necessarily reflect News18’s views.
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