Source: Legal Sarcasm

Is India governed by the principles and norms laid down in the Constitution of India?

The Constitution of India was adopted more than two years after independence from British rule. It provided a common vision and set goals towards which both the government and people of India could strive as well as the foundational principles of governance of a nation.

Along with celebrations, this day is also for introspection for Indians. How far has the vision and goals of the constitution been realised?

Are all the people of India able to enjoy the rights guaranteed by the constitution?  Is India governed by the principles and norms laid down in the “national scripture” as described by Prime Minister, Shri Narendra Modi?

Are the three pillars of democracy: the legislature, the executive and the judiciary along with the fourth pillar, the media, playing their roles as per the rules of the game?

Are the citizens of India aware of their constitutional duties and fulfilling them?

The preamble of the Indian Constitution is not a mere introduction, but it contains the vision, goals and aspirations of all Indians. The preamble unambiguously states that the sovereignty of the Indian nation is invested in the people of India and definitely not in the government. 

The people of India can be proud that in spite of many failures, India has remained a democratic country with periodic elections and changes of regimes without any hiccup.

India remained as a united nation, disproving the doom say of Winston Churchill: Indians will fight among themselves and India will be lost in a political squabble.

India has made commendable strides in many areas like food production, industrial development, information technology, literacy, education, and space research. The economy of India characterised as a developing market economy, is the world’s sixth-largest economy by nominal GDP and the third-largest by purchasing power parity.

India could remain united as the largest democracy in the world and make considerable progress in various realms because it has a firm foundation in the Constitution of India.

At the same time, the worrying developments during the last seven years have created great anxiety in the people about its future as a progressive liberal democracy committed to the protection of human rights and inclusive development of all Indians.

The preamble of the Indian Constitution is not a mere introduction, but it contains the vision, goals and aspirations of all Indians. The preamble unambiguously states that the sovereignty of the Indian nation is invested in the people of India and definitely not in the government. People have the power to change the government and all the laws and policies formulated and implemented by the government should be for the well-being of all people of India. Unfortunately, many laws and policies adopted by the BJP governments at the Centre and the States have not been in tune with the idea, “We, the People of India”.

The Times of India in an editorial on 24th November 2020 titled, ‘People First’, asked the Madhya Pradesh government to focus on Human development and leave the care of cows to voluntary organisations. The MP government is planning to impose a cess on the public to fund cow welfare. The Chief Minister, Shivraj Singh Chouhan has already formed a cow cabinet encompassing six ministries: home, revenue, animal husbandry, agriculture, panchayats and forests for greater synergy in ensuring cow welfare.

The editorial has pointed out the very poor indicators of human development in Madhya Pradesh. Union education ministry data indicates that only 2.57% of MP schools have a functional computer against the national average of 20.3%. Comparable figures are 87.5% in Delhi, 72.4% in Kerala, and 56% in Gujarat and Maharashtra. Higher education lags too: against the national average of 28 colleges per lakh population, MP has just 24. MP has the highest infant mortality rate and the third-highest maternal mortality rate in India. The editorial calls for “greater governmental intervention in education and health: both critical for uplifting human capital”.

The main opposition party, the Congress, instead of being critical of the government’s misplaced priority, has supported the move. Competitive Hindutva is feeding to the religious sentiments of the people, neglecting their welfare and in this process, the constitutional values are being compromised. Article 51 A (h) enjoins the citizens of India to develop the scientific temper, humanism and the spirit of inquiry and reform. The priority of political parties and the government has shifted from “We, the People of India” to something else that can attract votes, but divide the people.

Hindutva, the ideology of the BJP, the ruling party at the Centre and in many States, is diametrically opposed to the vision of India as envisaged in the preamble of the Indian constitution that ensures justice, liberty, equality and fraternity that ensures the unity of India and dignity of the individuals. The Hindutva visualises a nation where the minorities, the Muslims and Christians will be treated as second class citizens.

The BJP government resorted to several legislations, policies and executive decisions during the last seven years, which violate the constitutional vision and the concept of “We, the People of India”. They also violate the fundamental rights guaranteed by the constitution. Prominent among them are the Citizenship Amendment Act (CAA), National Register of Citizens (NRC) and the proposed National Population Register (NPR).

According to constitution experts, the CAA violates the fundamental right to equality (Article 14) and the right to life and liberty (Article 21), as it strategically excludes Muslim undocumented migrants from the neighbouring countries of Afghanistan, Pakistan, and Bangladesh from the possibility of seeking citizenship in India. This violates fundamental rights because the government cannot arbitrarily create unreasonable classification among equally placed groups.

A few BJP ruled states have declared to stop “Love Jihad”, a pejorative used by the Sangh Parivar to target relationships between Muslim men and Hindu women, which, they say, is a ruse to forcibly convert the women. The main purpose of the ordinance of the UP government, “UP Prohibition of Unlawful Religious Conversion 2020” is to target inter-faith marriages through ill-defined and extremely general clauses.

It is a violation of the fundamental right, the right to liberty. It is also a ploy to demonise the Muslims and divide the people of India in the name of religion.  Against this backdrop it is pertinent to recall the verdict of Allahabad High Court in a mixed marriage case. The Allahabad High Court on 24th November cancelled a case filed against a Muslim man by the parent of his wife, who converted to Islam last year to marry him. “Interference in a personal relationship would constitute a serious encroachment into the right to freedom of choice of the two individuals,” the court observed in its verdict.

The arrest of many social activists and student leaders and their incarceration for months and years in jail, filing cases against anyone who criticises the government and the ruling party under the draconian laws like Sedition Law, National Security Act, Unlawful Activities (Prevention) Act and putting them behind the bars without bail for many months and even years have become very common.

Dissent is demonised as anti-national by the government and the ruling party. The judiciary that is entrusted with the task of protecting the fundamental rights of the citizens is often shirking from its responsibilities.  It was reported that the Chief Justice of India, Justice SA Bobde, stated during the hearing of journalist Siddique Kappan’s bail matter, that the Court was trying to “discourage” recourse to Article 32, the fundamental right to constitutional remedies. In the words of Babasaheb Ambedkar Article, 32 is the ‘soul of democracy’.

The monsoon session of the Parliament passed 25 bills within seven days. These include the highly controversial three farm bills. There was no sufficient discussion on these bills. The parliament, which is supposed to devote enough time for a thorough discussion on the laws to be passed, has become a mere rubber stamp of the government.

The brute majority that the ruling party has in the Lok Sabha and the blind support of the regional parties to the government in the Rajya Sabha has converted the parliament into a rubber stamp.

Many constitutional experts, including retired judges of the Supreme Court, have expressed the view that the SC has failed in its role as a constitutional court in recent years. In the words of A P Shah, the former Chief Justice of Delhi and Madras High Court, the Supreme Court has “completely abdicated its duty to defend fundamental rights” and it is going to “affect the credibility of the Court and its prestige”.

The Supreme Court’s selective way of granting bail has become the object of severe criticism by many. Journalist Pratap Bhanu Mehta in an article termed it “judicial barbarism”. While many important and weighty matters are pending before the Court and they are repeatedly postponed, Arnab Goswami was heard out of turn and given precedence.

Varavara Rao and Stan Swamy who are in their 80’s are denied bail, even though both of them are suffering from serious health issues. It is a mockery of justice that the NIA court needs two weeks to decide whether Stan Swamy can be given a straw or sipper.

‘Bail is rule, jail is an exception’ is a legal principle that was laid down by the Supreme Court in a landmark judgment of State of Rajasthan v. Balchand alias Baliva in 1978. But today, in India, jail is the rule and bail is an exception.

The executive has become dictatorial in the absence of strong opposition and vibrant parliamentary discourse to make the executive accountable. Many verdicts of the Supreme Court indicate that the judiciary has become pliable, often being favourable to the government.

The verdict of the SC in the Ayodhya land dispute case is a classical example of favouring the government. Except for a few English newspapers and one or two TV channels, the media in general uncritically supported and extolled the government. Hence the public is not able to access facts. What is dished out to the people by the ‘godi’ media are often half-truths or distorted truths and sometimes even blatant lies? Thus the fourth pillar of democracy is also failing in its duty.

The overall political scenario appears to be bleak and the constitution is being often violated by those who are entrusted with the task of protecting it. When the institutional mechanisms fail, the responsibility of correcting them is with the people. In order to accomplish this role, the citizens must, first of all, fulfill their duties as mentioned in 51 A of the Constitution. Rights and duties are two sides of the same coin. India today needs responsible citizens who are ready to fulfill their duties while claiming their rights. Responsible citizens will not destroy public property while they exercise their democratic right to protest and express dissent.

Only when the citizens develop a scientific temper as mentioned in No. 8 out of the 11 duties, will they be able to make correct choices, especially in the election of the leaders and to assess critically the policies and actions of the government. Otherwise, they could be easily brainwashed by the political leaders.

Our educators have failed in educating people about the Constitution of India. If young people had imbibed the core values of the Indian Constitution, the political leaders would not have succeeded in dividing people in the name of religion, caste, culture and language.

People should motivate themselves to the core values of the Indian constitution, especially pluralism, unity in diversity so that, “We, the People of India”, will remain as the sovereign and not a particular group or caste. Enlightened Indians must make efforts to create awareness among the people about the noble values of the Indian constitution and motivate them to live those values, particularly, Vasudhaiva Kutumbakam.

Courtesy: Indian Currents

(Jacob Peenikaparambil is a trainer and consultant to NGO’s and is a team member of Universal Solidarity Movement. The views are personal.)