‘Intrinsic dharma’ has taken over constitutional values, says Indira Jaising at the sixth Neelabh Mishra lecture

Delivering the sixth Neelabh Mishra Memorial Lecture on Friday, eminent jurist and senior advocate Indira Jaising averred that the current regime has elevated intrinsic dharma above the Constitution without amending it, thus creating an ‘undeclared Emergency’ in India.

“The current regime has replaced core constitutional values without amending the Constitution, said senior advocate Indira Jaising at a lecture on Friday.

Jaising was giving the sixth Neelabh Mishra Memorial Lecture on the subject ‘From Ignoring the Constitution to Repudiating it: Failing Democracy’ chaired by economist Parakala Prabhakar. 

The memorial lecture is held each year on June 16 to celebrate the contribution of Mishra— who was a former editor-in-chief of the National Herald group and Outlook Hindi— towards ethical journalism.

Justice has been replaced by injustice, liberty by repression, equality by discrimination, fraternity by hatred and dignity by dehumanisation,” Jaising continued in a sobering reality-check on the current state of affairs in India.

From ignoring the Constitution to repudiating it

Jaising told the audience that the title of the lecture was self-explanatory: The idea of ignoring the Constitution, which reached its ultimate stage of repudiation on May 28. The new Parliament building was inaugurated on that day. 

Jaising clarified that she is not arguing that a new Parliament building cannot be or should not be constructed. “The question is how, in the House of People, can you install a Sengol— a symbol of power? It is the repudiation of everything for which republicanism stands. 

It is the rejection of the liberal code of the Constitution which found its affection in the Preamble. It is the republican spirit in its purest form which was sought to be vested in the heart of the Constitution. [Republicanism] is the source of power [in India],” she continued.

She added: “Of course, we are told the Sengol has been installed to remind us of our dharma… I am being told that above the canopy of the Speaker’s chair in the new Parliament, there is the Budha Sutra, which talks about dharma chakra and this dharma chakra must go on. Then why do we need another symbol to remind us of dharma? 

This new symbol will never symbolise the transfer of power because the Parliament is a creature of the Constitution of India. The Constituent Assembly did not derive its authority from any prominent edict.”

She remarked: “Someone was having a discussion with me [about the installation of Sengol in the new Parliament building] and said that it is a symbol of the Executive!

Jaising noted that the Constituent Assembly enacted the Constitution by bringing the “We the People of India” into the assumption of power. That is how power originated in the Republic of India and since then it is transferred through elections. Regime changes take place through elections, but sovereign power rests with the people and is only delegated to their representative in the Parliament.

She added that she felt heartbroken that even some judges attended the inauguration ceremony of the new Parliament on May 28.

Hindu mythology > Constitutional norms; fundamental duties > rights 

We all are brought up to believe that the Constitution is a grundnorm,” Jaising said. A grundnorm is a basic norm on which a legal system rests. 

But the discourse of the current ruling party says there is a norm above the Constitution. That norm, of course, is the Hindu mythology. It predates the Constitution. Since it predates the Constitution, as per the ruling party’s ideology, Hindu mythology can be used to interpret the Constitution,” Jaising averred.

She explained that the current government does not appeal to the Constitution, it appeals to a ‘higher norm’—i.e., an intrinsic dharma— which is above the Constitution and by which citizens are now supposed to judge the legality of their actions. 

Adoption of this methodology has allowed the current regime to repudiate the Constitution without having to amend it, she asserted.

Jaising gave the example of the beef ban case. A seven-judge Supreme Court Bench led by former Chief Justice of India Ramesh Chandra Lahoti imposed a complete ban on the slaughtering of cows, including unproductive bovine. The judgment, Jaising pointed out, used a methodology of referring to fundamental duties and stated that in the situation of a conflict between duties and rights, the latter must be harmonised considering the larger public interest. 

Jaising said: “Fundamental duties are now being used to deliver judgments forgetting that there was a chapter of fundamental rights! Intrinsic dharma has entered the courtroom and it holds that culture, and not the Preamble, is the norm by which the Constitution is to be interrogated.”

Even during the Emergency, the Constitution was not repudiated 

Jaising explained how the Constitution provides two broad sets of rights— political and civil rights, and social and economic rights. While the latter are progressively realisable, the former are immediately enforceable, she averred.

She said that her generation took political and civil rights for granted because the belief was that they will never be taken away. But were taken away during the Emergency. 

She pointed out that the Emergency was proclaimed by invoking Article 352 of the Constitution, which prescribes an internal structure for imposing a national emergency. 

There was no repudiation of the Constitution. Legitimacy of the Constitution was not denied. The Emergency was declared by an elected executive,” she stated.

She pointed out that during the Emergency, the law of sedition was not invoked against those arrested. She said: “They were detained under preventive detention law but were not charged with sedition. Today, sedition law is being used on every petty occasion.”

She drew attention to the fact that the imposition of the Emergency led to widespread protests, leading to its withdrawal and announcement of new elections. When the new party came to power, the Constitution was amended to remove the power to declare an emergency on the ground of internal disturbance through the Constitution. 

She pointed out that throughout the period of Emergency and immediately after it, the Constitution remained at the centre of the discourse. Both sides— those who opposed the imposition of the Emergency and those who favoured it— appealed to the liberal democracy.

Jaising confessed that she stands at a different juncture today, although before a similar audience, where her political and civil rights are being targeted and taken away.

An undeclared Emergency?

Jaising said that during the Emergency, fundamental rights were suspended. But now, the constitution itself is being suspended in what can only be described as an undeclared Emergency.

Comparing the situation to that in Pakistan, she said, “You know, at least Pakistan had the courage to suspend its Constitution, what India is facing is the suspension of the Constitution without a written document.”

The Constitution is denuded of its enforceability and reduced to a document of simple political intent to be enforced at the discretion of the Executive. The Executive are not held legally accountable. It should bother every thinking citizen as it bothers me, how can you bring about such vast changes without actually amended the Constitution, she lamented. 

So, with a combination of strategies, which includes divide and rule, they have succeeded in what I call the repudiation of the Constitution. Today I would say that the illusion of a Constitution is more dangerous than the absence of it,” Jaising concluded.

With inputs from Kartik Goel, who is an intern with The Leaflet.

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