A constitutional concern for all of us

Raj presses against the positivist construct of law, and elaborates that politics and law are entwined with each other.

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THE book Constitutional Concerns: Writings on Law and Life, published by Tulika Books in 2022, is a fine analysis of the challenges the Indian legal system faces. The book is an anthology of articles written by lawyer Kaleeswaram Raj in broadsheets and popular magazines. The author is a renowned legal practitioner, and his insightful commentary puts into perspective the political and legal debates that define our times.

A prolific writer, Raj has long been a prominent conscientious voice. His previous book Rethinking Judicial Reform: Reflections on Indian Legal System (2017) was an indictment of an all-pervasive judicial plutocracy. In the latest book under review, he furthers his arguments, indicating the dawn of the third wave of autocratisation which marks a systematic erosion of democracy.

Democracy in danger

Raj begins his book with the remark that "Democracies are in danger", pointing at several instances of pervading authoritarianism across the globe. He refers to Palestinian–American academic and public intellectual Edward W. Said's lectures and observes that "in the era of elected autocracies, mere intellectual autonomy, or generic wisdom, or moral authority of the critics, might not be adequate to understand the threats to democracy. It also needs to rely on the theoretical devices of the Constitution to watch its own institutions and their predicament."

The book is thematically categorised into five parts. The first part deals with enactments contrary to the essence of the Constitution. Raj makes a scathing critique of populism and legislation that aid the subversion of the Constitution. He notes, "A legislation reflects an ideology, an attitude and an approach." In the context of the current political situation in India, he asserts the ideological shift in enactments post-2014 which ostensibly serve the "aggressive Hindutva agenda blended with the capitalist ethos", and brings to light a slew of legislation which are nefariously designed to further the agenda of Hindutva and aid its corporate cronies.

Also read: Hindutva is a Political Movement, not a Religious One: Shashi Tharoor

Further in the book, Raj writes that the current degeneration of institutions is being done with the help of a sophisticated propaganda machinery that manages voters tactically. As a result of this, he writes, "the Central government also slowly manifests into an autocracy rooted in idolatry, [against] which Dr Ambedkar repeatedly warned."

Though the different parts cannot be strictly compartmentalised as they often overlap and intersect, they offer a detailed and fine-grained analysis of their respective subjects. For instance, the first part ('On Laws') and the third part ('On Freedom') complement each other and disentangle the complex relationship between the two.

In a chapter titled 'P. Chidambaram: Beyond Jail and Bail', Raj points at the bail order by the Supreme Court wherein the court found the practice of sealed cover erroneous. He notes that "the proceedings in a court cannot be reduced to a private affair." Similarly, the Supreme Court, while setting aside the ban on Media One, dealt with the sealed cover jurisprudence in India, and held that the practice departs from principles of natural justice and open justice.

Also read: Sealed cover jurisprudence is without a rationale

On judicial independence

The second part deals with the law inside courtrooms. Raj points out the deficiencies in the courtrooms and their judgements.

The post-retirement rehabilitation of judges had ensued a debate on judicial autonomy vis-à-vis the executive after Justice S. Abdul Nazeer was appointed as the governor of Andhra Pradesh. A similar controversy ensued when former Chief Justice of India (CJI) Ranjan Gogoi was nominated as a Rajya Sabha member.

Both the judges had been part of important constitutional Benches at the Supreme Court, which included the Bench that unanimously delivered the verdict in the Ayodhya title dispute in 2019.

Many had supported the appointment of the former CJI to the Rajya Sabha as a valid move, stating his experience in law would be indispensable. However, it has been reported that the presence of the former CJI in the Parliament has been bleak, with no popular intervention in debates, no questions asked in the Rajya Sabha, and below-average attendance. Raj remarks that "a system that creates and perpetuates an unholy nexus between the different branches of power is inherently partisan and undemocratic."

The rise of theocratic judges diverting from the Constitution to religious texts has soared. A lecture by Justice Nazeer in Hyderabad at the National Council Meeting of the Akhil Bharatiya Adhivakta Parishad was on 'Decolonisation of the Indian Legal System'. Justice Nazeer quoted Brihaspati, an ancient Hindu law giver, whilst addressing judicial corruption, stating that a "corrupt judge, a false witness and the murderer of a Brahmin" are at par with each other.

Raj calls out the lecture to be in tune with the political rhetoric of right-wing politics and deeply imbued with Brahminism. He writes, "Justice Nazeer's remarks have come at a time when the regime is trying to subvert the Constitution and the idea of the rule of law in multiple ways."

Further in the chapter, he refers to public comments made by Justice (retd) Arun Mishra, that Prime Minister Narendra Modi is a "versatile genius" and an "internationally acclaimed visionary", and by Justice M.R. Shah, referring to Modi as 'a model' and 'a hero'. Raj quotes American lawyer and former law professor Alan M. Dershowitz, in the chapter 'Addressing Judicial Misbehaviour' that "judges are the weakest link in our judicial system of justice, and they are also the most protected".

Also read: Strong Executive, weak courts: Collapsing edifice of judicial independence | Opinion

Interconnect of law and politics

For a democracy to survive and deliver its promise, the last citadel of democracy shall forever be on the qui vive, especially on issues of national importance. Raj presses against the positivist construct of law, and elaborates that politics and law are entwined with each other.

In the chapter 'The Supreme Court of India: In a Different Epoch', he interposes when the judiciary failed to discharge its duty on issues which were of national importance but were politicised, such as demonetisation, the dilution of labour laws, the arrest and detention of intellectuals and activists, and more. For such an onslaught, we the people must share the burden in a representative democracy. Raj writes that "we have defaulted in our tryst with destiny; the top court is just a reflection of that. We are governed by a regime that does not believe in the ideology of the Constitution. When we fail in politics, we fail in law."

In the subsequent chapters, Raj extensively writes on politics and life from the constitutional vantage point. About politics, he writes, "no Constitution can protect itself. But it can engage and perpetuate a political culture necessary for its preservation." He touches on a wide range of topics, including the creation of a surveillance State, and hate speech majoritarianism.

The last part is a nuanced exposition of contemporary social, legal and political trends. Raj covers the execution of the four convicts in the Nirbhaya case, which was extensively covered by the news media with countdown clocks. However, the celebration that followed on the streets reflected the deep-seated patriarchy which demands death for the loss of honour. Raj writes that "empirically, capital punishment has never been an effective remedy against crimes. It does not act as a deterrent. Amidst populist emotions, unpopular views may not be well received." He further adds that the convicts' social, educational and economic background, their criminal antecedents or chance of reforming, or the possibility of innocence remain the least discussed matters when such cases surface.

In a similar incident in Hyderabad in 2019 when a veterinarian was brutally raped and killed, the police killed the four accused in an alleged encounter. The officers, while dispensing justice, gave path to a vigilante justice system since the emotions of the masses had flown over the brim. This act of indiscretion on the part of uniformed personnel corroded the foundation of justice.

A Justice V.S. Sirpurkar-led Commission was set to probe the matter and was of the opinion that the policemen involved in the alleged encounter be tried and booked for murder. In the hue and cry, the possibility of innocence of the four accused was lost. In the same context, the public outrage remains selective, based on and restricted to the religion, class and caste of the victim.

Also read: Hyderabad fake encounter: How the Commission of Inquiry exposed the trigger-happy cops

On another note, in May 5, 2023 the World Health Organization (WHO), after three years, declared that COVID no longer remains a 'global health emergency'. In India, the line of freedom and liberty during the pandemic was smudged. The plight of workers due to lack of sustenance was a horrifying sight for any civilised state, while the government pressed for 'stay at home'. Raj writes "Stay at home is a hollow rhetoric for many Indians," supporting his argument with data from the 2011 census stating that 17 lakh Indians were homeless.

The suffering of the migrant workers could have been mitigated if the laws pertaining to the migrant workers had been implemented. There was indolence on part of several state governments and the Central government in integrating and complying with such laws, i.e., Inter-State Migrant Workmen (Regulation of Employment and Condition of Services) Act, 1979. Instead, the Central government resorted to the outdated law, Epidemic Diseases Act, 1897, which was enacted to contain the pandemic in the colonial days and is not conducive in today's globalised order, in dealing with the pandemic. Along with the Disaster Management Act, 2005, with penal provisions, the Executive used an iron fist to deal with the period of the pandemic.

In conclusion, the entries in the book are not only brimming with fresh legal insight(s), but also provide a tour de force for young advocates to comprehend law and politics simultaneously. As Russian revolutionary, politician and political theorist Vladimir Lenin had declared, "politics is the most concentrated expression of economics".

In India today, the law has become the concentrated expression of politics. Raj notes that the rise of Hindutva as an "ideology, lacking any egalitarian plan for a complex nation like India, is bound to fail. Indian majoritarianism, with its hollow rhetoric, is inherently incapable of fulfilling constitutional aspirations."

Lawyers who want to keep themselves up to date with current events and their critical analysis must regularly follow Raj's writings.