Save Our Constitution

In times when the Supreme Court is selectively granting relief for wide-scale violation of constitutional rights, it is important to save the constitution by saving the Article which embodied the heart and soul of the Constitution according to Dr Ambedkar i.e Art 32, writes CEDRIC PRAKASH 

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Justice A.P. Shah is well known for his forthrightness and for his no-nonsense attitude. He demonstrated this as Chief Justice of the Delhi and Madras High Courts and then later as the Chairman of the Law Commission; he continues to do so courageously voicing his expert opinion on critical justice issues affecting the nation today. 

On the eve of India's 'Constitution Day', he gave a 50-minute interview to Karan Thapar for The Wire. Without mincing words, he categorically asserted that the "Supreme Court has let the people down, in abdicating its duty to defend Fundamental Rights"; adding that, "the priorities the Supreme Court gives to matters pending before it is a matter of some worry; there is a decline in the Supreme Court's role as a sentinel on the qui vive".

He maintained that the Supreme Court was right to grant bail to Arnab Goswami because "personal liberty is paramount"; however, he expressed his dismay that many other more serious, important and weighty matters pending before the court keep getting repeatedly postponed whilst Arnab Goswami was heard out of turn and given precedence.

Amongst the matters pending which have not got the Supreme Court's attention as yet Justice Shah mentioned Article 370, the Citizenship Amendment Act, concerns about electoral fraud, migrant workers, the denial of internet to Jammu and Kashmir, the prosecution of intellectuals and several habeas corpus petitions.

He also referred to the Supreme Court April 2019 ruling in the Zahoor Ahmad Shah Watali case which says "that an accused must remain in custody throughout the period of trial" if he or she is charged under the Unlawful Activities (Prevention) Act and that "courts must presume every allegation made in the FIR to be correct and the burden rests on the accused to disprove the allegations", saying that this is a "complete negation of Article 21 which is the right to personal liberty".

Justice Shah said that whilst former Justice Krishna Iyer had said bail is the rule and jail the exception, now, it seems, the Supreme Court has made jail the rule and bail the exception.

Justice Shah added, "it seems we are living in a state of undeclared emergency".  He went on to add that today "courts lack humanity and fundamental concern for the human rights of the accused".

In this connection, he cited the example of Varavara Rao and Stan Swamy. He was particularly astounded by the decision of the NIA Court to require two weeks to decide whether Stan Swamy can be permitted a straw or sipper.

With such strong statements coming from one of the best-known jurists that the country has produced; it is left to be seen now whether the Supreme Court will respond positively to this timely critique.

To put matters in perspective, on November 26 (the day the nation observed Constitution Day) Fr Stan Swamy's plea (by his lawyers) at a Special Court for a straw and a sipper cup which he needs as a Parkinson's Disease patient and winter clothes was once again put-on hold till 4 December.

The National Investigation (NIA) filed a reply on the petition of Fr. Swamy seeking the return of the straw and sipper confiscated during his arrest saying that the agency did not take them. "Stan Swamy was never taken to NIA custody so we never had any of his belongings. He was sent to judicial custody straight away so he has to request to jail authorities. We are not aware if he has made the same request to jail authorities," an NIA official anonymously told the media.

Interestingly, on Friday, 27 November, delivering its reasoning behind granting Republic TV Editor-in-Chief Arnab Goswami interim bail in the abetment to suicide case, the Supreme Court today held that courts should ensure that criminal law does not become a weapon for selective harassment of citizens.

The judgment was delivered by a Bench of Justices DY Chandrachud and Indira Banerjee said."Prima facie, on the application of the test which has been laid down by this Court in a consistent line of authority which has been noted above, it cannot be said that the appellant was guilty of having abetted the suicide within the meaning of Section 306 of the IPC…" adding that, "…we are clearly of the view that in failing to make even a prima facie evaluation of the FIR, the High Court abdicated its constitutional duty and function as a protector of liberty."

There is certainly, as Shakespeare reminds us in Hamlet, "something rotten in the State of Denmark". The judiciary cannot be selective in its judgments whilst giving pro-government media personnel his so-called "personal liberty" (justifiably so) and at the same time denying Fr Stan even a desperately needed sipper whilst in jail. Justice Shah has truly hit the nail on the head!

A few days earlier, what jolted millions of concerned citizens in the country, was the manner in which the members of the BJP, including high profile ministers, came to the 'rescue' of Arnab Goswami when he was arrested!

In the order, Justice DY Chandrachud correctly described the responsibility of the Apex Court saying, "forget Arnab Goswami for a moment, we are a constitutional court… If we as a constitutional court do not lay down law and protect personal liberty, then who will?"  No one can ever contradict this profound statement.

The irony of it is, does this statement apply to the thousands of other citizens (like Fr Stan Swamy and the others imprisoned in the Bhima -Koregaon conspiracy case, the anti-CAA protestors and others arrested under the UAPA) whose personal liberty is denied?

Is Goswami the only citizen in India whose 'personal liberty' is denied? The statement reeks of selectivity.

Further Justice Chandrachud added that, "If we don't interfere in this case today, we will walk on a path of destruction" and that a clear message must be sent to high courts.  He was indeed right on this point too!

Perhaps Goswami's arrest, both in timing and manner, was in the nature of political vendetta. It is however glaringly evident that Supreme Court, on several counts, has not held itself to its own high standard in several other cases of citizen vs state, ranging from habeas corpus petitions in Kashmir to detentions made on flimsy charges of sedition to the slapping of draconian laws on journalists for no other reason than that they were doing their job.

On November 25, 1949, in a passionate speech to the Constituent Assembly, the visionary Dr. B.R. Ambedkar, the father of our Constitution, gave three unambiguous warnings: the need to give up the grammar of anarchy, to avoid hero-worship, and to work towards a social – not just a political – democracy!

Ambedkar was, at that time, perhaps visioning what 'India 2020' would be like and of how these three aspects could not only destroy all that was sacred in the Constitution but could also mean the dismantling of the democratic framework which a new resurgent India was just born into and had committed herself to preserve.

In that famous speech, 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 the 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".

On the following day, \November 26, 1949, the Constituent Assembly adopted the Constitution of India – which is regarded as one of the most forward-looking and all-embracing ones in the world, thanks to the brilliant, bias-free and diverse women and men who comprised the Constituent Assembly.

The Constitution besides being sacrosanct to every citizen of the country is the bulwark of fundamental rights and directive principles, which are a prerequisite for any healthy democracy. The Preamble, with its emphasis on justice, liberty, equality and fraternity; and its commitment to India being and being a 'sovereign socialist secular democratic republic' spells out the vision and the intrinsic character of the Constitution.

In these past few years, however, the nation has witnessed, several efforts not merely to tamper with the Constitution but to negate its essence and even to destroy some of its key dimensions. The current BJP/RSS combine, including some of their ministers, have gone on record saying, they will be changing the Constitution.

On November 20, the hashtag #HinduRashtra (with the equivalent in Hindi) was trending on Twitter with clear demands, including bringing in a pan-India 'anti-conversion' law. There are constant statements for the establishment of a 'Hindu State' by 2025 (the centenary of the RSS); the annihilation of the minorities particularly the Muslims and Christians.

There is talk to abolish the words 'socialist' and 'secular' from the Constitution; to have a 'Common Civil Code' and that the rights of the minorities guaranteed in the Constitution should be scrapped immediately!

On November 24, the UP Government passed 'The Uttar Pradesh Unlawful Religious Conversion Prohibition Ordinance, 2020' which says, "religious conversions that use falsehood, force or an incentive, or take place solely for the purpose of marriage will be declared a crime."

This is blatantly a communal ordinance which is intended to address 'Love Jihad' pejorative term used by right-wing groups to target relationships between Muslim men and Hindu women, which, they say, is a ruse to forcibly convert the women. This ordinance is patently violative of Articles 21 and 25 of the Indian Constitution.

The fact is that the UP Government's SIT has found no evidence of what the UP CM Adityanath calls 'love jihad'. In a major judgement for mixed marriages, the Allahabad High Court said on 11 November "to disregard the choice of a person who is of the age of majority would not only be antithetic to the freedom of choice of a grown-up individual but would also be a threat to the concept of unity in diversity."  The bench of Justices Pankaj Naqvi and Vivek Agarwal further added, "We fail to understand that if the law permits two persons even of the same sex to live together peacefully then neither any individual nor a family nor even the state can have an objection to the relationship of two major individuals who out of their own free will are living together,"    

On November 18, the Madhya Pradesh Chief Minister Shivraj Singh Chouhan said the government had decided to set up a 'Gau Cabinet' for the protection and promotion of cattle. In a country where millions are starving –instead of responding to the cries of the people the BJP is more concerned about cattle!

The Supreme Court has also not yet dealt with the much-needed objectivity on the constitutional validity of the draconian 'Unlawful Activities (Prevention) Act – UAPA 2019 (Amendment Act)' which infringes on the fundamental rights of citizens.

The amendments allow the Centre to designate individuals as terrorists and to seize their properties; they are violative of the Right to Equality (Article 14), free speech (Article 19) and life (Article 21) of the Constitution.

Fr Stan Swamy and fifteen others who are 'allegedly' involved in the Bhima-Koregaon conspiracy case are in jail- some of them languishing for more than two years now. Besides these, there are several others imprisoned under the UAPA, and were also charged and arrested on the archaic 'sedition' law and even on 'contempt of court'

One sees it happening with frightening regularity, the manner in which many citizens all over the country, who have stood up for the Constitution and for the rights of the voiceless and the exploited, are harassed and hounded (in direct and subtle ways); fabricated cases foisted on them; charge-sheeted and arrested with bail applications denied to them on flimsy grounds; some are beaten up and even killed.

These include human rights activists and academics; rationalists and media professionals (like Siddique Kappan who was on his way to investigate the Hathras case and Patricia Mukhim of Shillong); students and professors from the JNU, AMU, Jamia and other prestigious institutions; anti-CAA protestors and reputed organisations well-known for their objectivity and authenticity, like Amnesty India; lawyers, former government officials (like Sanjiv Bhatt) and others from civil society.

The list is endless! Their only apparent 'crime' is that, on behalf of the exploited and the excluded, the marginalised and the minorities and for the sake of truth and justice, they have dared take on a fascist regime (with a sham of being a 'democracy') and in doing so, they also have to take on a corrupt, communal and prejudiced system which includes powerful vested interests.

Then there is the case of the comedian Kunal Kamra, who has the wit to joke on anyone. Post Goswami being given bail he tweeted some absolutely hilarious stuff which was retweeted by more than twenty thousand others. He is may now be charged with a 'contempt of court'– which is ridiculous and outrageous!

It is his constitutional right to practice this profession, and he seems to a better job of it than most judges do of theirs; he has the courage to hold a mirror to the powerful but with a dash of caustic humour. One wonders if his tweets can pose a threat to the democratic fabric of the country or for that matter add 'any value' to the bad name several of the judges have given themselves. As a citizen, Kamra has the right to express his opinion and also the right to dissent on any judgement!

Strangely enough, Goswami's case was cited as a rarest of rare case by the Supreme Court when it gave him interim bail albeit while hearing an appeal against the Bombay High Court order refusing him interim bail.

Journalist Siddique Kappan did not get any immediate relief in his Article 32 petition.

Article 32 'Right to Constitutional Remedies', states, that the Supreme Court "shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part."

The right guaranteed by this Article "shall not be suspended except as otherwise provided for by this Constitution". This Article was not allowed for journalist Siddique Kappan prompting many legal luminaries to say that the apex court uses one yardstick for the 'high and the mighty' and a different one for the 'hoi-polloi'!

Dr. Ambedkar had earlier said, "If I was asked to name any particular article in this Constitution as the most important — an article without which this Constitution would be a nullity — I could not refer to any other article except this one. It is the very soul of the Constitution and the very heart of it."

All these recent happening and pronouncements have naturally drawn a wave of protest and outrage from some of the leading citizens of the country. Senior Advocate in the Madras High Court Sriram Panchu puts it devastatingly in a brilliant article in the Hindu ( November 16), "Power (of the Supreme Court) comes not from Articles 32 or 226 but from the public esteem and regard in which you are held, and that proceeds from the extent you act as our constitutional protector. In direct proportion. Sans that, there are only trappings".

Courtesy: Indian Currents

(Cedric Prakash is a writer and renowned human rights and peace activist. The views are personal.)