Can the Indian Constitution defend itself?
The asymmetry in the organs of Governance — the Executive, (carved out of) the Legislature and the Judiciary and the constant attempt to overpower the Constitutional Spirit by exerting this asymmetrical power begs the question — Can the Indian Constitution defend itself?
In many ways, Republic Day has a greater significance than the Independence Day of India as a nation. While the Freedom strugglers got rid of the historical colonial tyranny on 15th Aug’ 1947 and gave us a ‘sovereign country’, it was on 26th Jan’ 1950 that the newly independent country charted a course as the ‘National Republic’ called India — by providing for itself, the Constitution.
A constitution born out of deliberation, discussion, intense debates, and resilient stands for what was just and fair, which brought about a guidebook for all future rulers of India to steer the national journey. It captured vividly the climate that the colonial tyrants left our country in; and the aspirations of the citizenry:
· A ‘Socialist’ Constitution — for the countless downtrodden who were chained in poverty due to the centuries of loot by the colonial dictators
· A ‘Secular’ Constitution — for the countless insecure religious communities who suffered persecution as a result of conscious communally divisive polices spewed by the colonial tyrants
· A ‘Just’ Constitution — for a citizenry for whom justice had been kept inaccessible
· A ‘Liberty’ Ensuring Constitution — for the countless voices which were maimed for centuries just because they spoke against tyranny
· An ‘Equality’ ensuring Constitution — for the countless who had been left behind in all spheres of social, political, educational and economic life
Such was the importance associated with these tenets of governance that the Constitutional framers deemed it absolutely essential to preface our constitution with these words in the Preamble.
The leader, however, were not unconscious of the flexibility to allow the constitution to adjust itself to the times of future generations.
The Flexibility given:
Article 368 of the constitution allows for and details the procedure for amendment of Constitution.
The Bulwarks they placed:
It was a conscious attempt of the framers of the constitution that the adjustments for the future generations must not come at the cost of Constitutional Values, therefore they placed defense mechanisms to ensure this:
1. Voice to everyone: by making the Right to Vote Universal for all eligible voters
The best way to ensure that all voices are heard, is to empower everyone with the ultimate right to vote. This, potentially, gives every voter a say in the legislative process and prevents the legislature to be painted in a uniform colour making it difficult for legislature to change the constitutional values.
Thus, universal adult franchise itself was supposed to act as the initial bulwark against any constitutional amendment.
2. Greater deliberation in Legislature: By placing a Higher Voting requirement for Constitutional Amendment Bills:
As the freedom strugglers were both the providers of the constitution, as well as the legislature, they had immense faith in the legislature acting as guardian of the Constitution. Therefore, they trusted that any adjustment to the constitution, that may become essential for the betterment of this nation, should happen through a greater discussion in the legislature -
For this, any constitutional amendment requires more than 50% of the total strength of the house and more than 2/3rd of the members present and voting in both the houses (67%).
The wisdom behind this step is that even though the majority party is in power, the consensus of the non-major party and by extension — the people represented by them — is not disregarded; as the constitution is for all of India — not only the majority.
Thus, the deliberation and consensus of the legislature potentially, assures that the law being passed captures the aspirations of all the citizens.
3. Judicial review: By Allowing the Supreme Court to act as final Bulwark
The Constitution framers were conscious to necessitate any piece of legislature impacting the constitution and thus the direction of national journey, to pass through the greater process of review. So, they empowered Supreme Court to validate the constitutional validity of any legislature.
This ensured that the power of legislature with regard to amending the constitution is checked and therefore, not absolute. Thus, they allowed for any legislature repugnant to the spirit of the constitution as void for being ultra-vires.
The Bulwarks they missed:
Backdrop of constitutional framing— Hatred for colonialism, both by the people and the legislature; an automatic stand for the constitutional principles enumerated above; faith in the democratic process ensuring the representation of a plurality of India in the Legislature.
It is in this backdrop, the constitution was framed, therefore the framers of the Constitution, had immense faith in the national conscience of representatives of the people; i.e. even if needed to utilize the power to amend the constitution — it would be for the welfare of all people in the nation.
They saw the image of future legislature cast in the present legislature i.e. themselves, who will always seek to move the nation farther and farther away from the colonial tyranny and the divisive politics unleashed by them over the previous decades. Thus, from their ideal viewpoint, the legislature must always stand for the constitutional principles.
This unwavering idealism led them to overlook some of the possible dangers to the constitutional spirit:
1. What if the democratic process does not ensure the plural representation of Indians in the Parliament?
2. What if a party with a non-constitutional manifesto is voted to power?
3. What if such a party becomes large enough to have a majority of 2/3rd present and voting — and the need for Deliberation is completely bypassed?
4. What if the final bulwark — the Judiciary — is overpowered by other organs of a party?
To answer these questions, we have to have a look at some of the relevant developments in the course of our national journey.
2014 and 2019: A look into the electoral process and result
In the 2014 general elections:
The party which formed the government had won only 21% of the votes of the total eligible voters.
Even then, it commanded a set share of 282 out of a total — 543 in the parliament. Taken together, the like-minded NDA had a vote share of 25%, but commanded 336 out of 543 seats (62%).
Therefore, 75% of the eligible voting population did not vote for NDA, however, this 75% will never be represented in the course of legislative process, as the government enjoys a comfortable house majority without the votes of these 75%, during the tenure of this government.
So, even though the process seems democratic since everyone votes, the representation in the legislature tells an altogether different story.
The votes garnered by NDA was only 30% of the total eligible voters. Despite that, it had 353 of 542 seats contested (65%). A similar equation of leaving out of majority — 70% of the eligible voters — from the legislative process took place.
What is even more worrisome is the social engineering that went behind the seclusion of the majority. The consolidation of votes in both these elections has come by not only appealing to the identity of a particular community but also by projecting a different community as a danger to fellow citizens.
This has been done by carefully drafting a manifesto to appease the majority through a sadist way of the promise of persecution or ‘othering’ of minorities — the minimum number of eligible voters required were identified at each constituency and were made to hate the same people as the powers seeking these votes — through campaigns both in open and on social media — providing custom hate content to each of the member of target electorate, brainwashing them to a point that the community with the largest population by far, better education and socio-economic status were successfully made to believe to be in existential danger from an already destitute, downtrodden and socio-economically handicapped minority.
The result of 2014 proved this experiment successful, wherein the democratic process was toyed around with communally divisive politics for vote consolidation to award the power of governance to a political party with an un-constitutional manifesto, for which 75% of the eligible voters didn’t vote.
These rewarding electoral tactics of communal divisiveness were replicated in the 2019 elections, with an even better outcome for the powers but a grave danger to the constitution.
The legislature now comprises of 65% of uniformly painted legislators — eerliy close to the fraction required to pass the constitution amendment bills.
Can these legislatures, which leaves out a majority of the electorate, while hell-bent on persecuting a section of the electorate be considered as Representatives of the Citizens? And can this nature of Government trusted with the absolute authority of enacting Constitutional Amendments?
Unconstitutional Spirit of the current Government:
While othering of a segment is just one of the unconstitutional aspect of the manifesto, a look at some of the policies suggest that we are moving in times worse than colonial era:
Unsocialist: The systematic reclusion of the current government from the market viz a wave of privatization of even the profitable PSUs in key areas like Coal, Railways, Petroleum, Sea ports, Airports, Power shows a dangerous trend of handing over the national assets and essential services to capitalist for a one-time remuneration. This has effectively left procurement of essentials to the whims of capitalist forces, for whom the ‘concept of welfare’ is as elusive as the ‘feeling of being poor’.
This has created too-big-too-fail private monopolies for which the tax payers money is utilized as providing loan waivers in the guise of fancy names as haircuts, asset restructuring.
In a country with crores of the population living on or below subsistence income, the role of government can simply not be just of a facilitator of market forces i.e. to ensure capitalists can sell goods to those who can pay for them while absconding its actual role of providing a safety net to the countless citizens who cannot even pay for basic necessities.
The capitalist with its profit motive will ensure that the divide in all the politico-socio-economic affairs between the affluent minority and the deprived majority, keeps perpetually increasing.
Unsecular: i.e. Communal, a government that believes as its core ideology that two different communities cannot peacefully co-exist, an idea championed by the colonial tyrants to further their policy of divide and rule; and was then adopted by the father organization of the current political party in power.
Just: The Tussle between the Executive cum Government vs Judiciary has been evident in the last few years more than ever. Those who were not ready to break their conscience against the constitution were made to bend with post-retirement offers by the government.
Non-libertarian: The current government regime feeds on the successful experiment that othering of communities need not result in electoral failures. Therefore, all the criticism of the government — whether by general citizens or by isolated media houses — are first labeled as anti-national and then are legally charged with it.
The blatant use of Sedition law, which was procreated in the dark Colonial era to maim and persecute some of the tallest leaders of freedom struggle — Subhash Chandra Bose, Lok Manya Tilak, and even the father of the Nation, Mahatma Gandhi — has been so indiscriminately used in the current regime to target the slightest criticism of Government, that it would have put even the colonial counterparts to shame.
Well, the above discussion paints a grim picture regarding the Safety of Constitution as the answers to the first 3 questions -
1. Is there a possibility that the democratic process does not ensure the plural representation of Indians in the Parliament?
2. Is there a possibility that a party with non-constitutional manifesto is voted to power?
3. Is there a possibility that such a party becomes large enough to have a majority of 2/3rd present and voting — and the need of Deliberation is completely bypassed? — in the present scenario is dreadful — ‘Yes’.
It then leaves the Constitution’s safety in the hands of Judiciary — the final bulwark.
The Tussle between The Judiciary and The Legislature (including the Executive):
While the other dangers to constitutions have become stark very abruptly, nevertheless very recently, the danger to this final line of defense to the Indian constitution has been looming for long.
Responsibility (without Power) to Defend the Constitution:
During the course of the National Journey, there has been a continuous attempt by the Legislature to exert its authority of amending the constitution as absolute.
The most significant of these is the 42nd Constitutional Amendment Act wherein the legislature declared — “there is no limitation on the power of Parliament and no Amendment can be questioned in any court on any ground.”
This was rightfully rejected by the Supreme Court in the Minerva Mills case (1980) noting that — “Since the Constitution had conferred a limited amending power on the Parliament, the Parliament under the exercise of that limited power cannot enlarge that very power into an unlimited one. In other words, Parliament cannot under Article 368, expand its amending power so as to acquire or repeal or abrogate the Constitution or to destroy its basic features.”
The Supreme Court, then through its various judgements had set to affirm the Republic nature of Indian Governance i.e. Supremacy of the Constitution over any organ of the Government — be it legislature, the executive or the Judiciary itself. Some of the notable ones are:
a) Kesavananda Bharti Case (1973) (Fundamental Rights case)
b) Indira Gandhi Case (1975) (Election Case)
c) Kihoto Holohan Case (1993) (Defection Case)
The tussle clarified two basic nature of Power. Authority corrupts and authority tends to feed on itself.
The Representatives of the people, through their temporary seat in an organ of government, will always tend to seek more and more authority over the ones who gave them this authority in the first place.
The innate wisdom of placing the Judiciary as a bulwark against the destruction of the Constitution was also redeemed.
The Supreme Court then also acted as the Guardian of the Constitution and had to define the Principles that formed the spirit of the Constitution and cannot be trifled with.
To affirm this, they defined a ‘Basic Structure Doctrine’ which is out of even the purview of the constitutional amendment under Article 368. Some of the principles forming this Basic Structure, which is incidentally the reaffirmation of the Preamble of our constitution are:
a) Welfare State: a government for equitable welfare of all the citizens of the country
b) Secular State: a country for all the religious communities
c) Supremacy of the Constitution: governance of law, not of men
However, the organizational structure of the organs of Government machinery in India has ensured that both the hands of this final bulwark remain perpetually tied to its back.
The failing notion of ‘Checks and Balances’:
While discussing the powers, we tend to seek a comfort that the philosophy of ‘Checks and Balance’ keeps the authority of all organs checked and at its rightful place.
However, for this it requires the 3 government organs — the Executive, the Legislature and the Judiciary as functioning ‘separately’ and ‘independently’ from each other with equal control in their domain.
However, in the Indian governance setup, the executive is carved from the Legislature.
The separation of power of Executive with a vague ceremonial notion of ‘Oath of secrecy’ to façade a sense of separation of power viz-a-viz the legislature.
Therefore, the setup which was supposed to be triangular balancer of power, has become a linear tug of war with legislature, government, the executive, the military on one side vs the Judiciary on the other.
In such an asymmetry of powers, the responsibility to defend the constitution is with Judiciary — an organ, which is themselves dependent on the executive for implementing any of their orders, who report to the government.
Thus, it seems that the responsibility which they wrested out from the government, doesn’t seem to be accompanied by commensurate authority.
The lag between the enactment of law and repeal of an un-constitutional adjudication:
A much deeper concern is the orders, which seem to be never passed. This is quite easy to look over, but is one where the Dependence of the Judiciary on the Government is quite clear, and its impact — the gravest. The Judicial appointments have to be passed by the executive who can simply delay it just for the purpose of tying the hands of the Judiciary.
This invisible dependence of Judiciary on the Government cum executive has ensured a freehand to the Legislature to pass legislation and the Executive to enact them, ‘without the time’ for constitutional validation. The already cripplingly over-burdened judiciary cannot be expected to automatically call in the legislature via suo-moto cognizance and thus, these unconstitutional legislations enjoy being the law of land till a PIL is filed against them and the verdict is delivered on them.
This method of rejection of an unconstitutional law is akin to finding a land mine by stepping over it — the mine has been found alright, but the collateral damage extracted in terms of unconstitutional principles unleashed on the citizenry is substantial and in most cases irreversible.
A lag between enactment and rejection of some legislations can stretch over decades without closure. A case in point is the ‘Abrogation of Article 370’ through a Presidential Order has not been taken up by the Judiciary for over 18 months, and the order stays in operation as the law of land, which would have already made irreversible changes to the demography and land ownership structure of an entire state of the country.
The Independence:
To ensure the independence of an organ, the appointments, remuneration, tenure has to be insulated from other organs of the Governance.
While all the three seem to be insulated, the Government cum Executive enjoys a lot of discretion in ‘not acting’ on essential actions, creating a dependence on the Executive:
1. Not ensuring a proper Judicial Recruitment Infrastructure
2. Innovative post-retirement prizes for subservience.
The Verdict on Judiciary:
Therefore, the Government cum Executive has effectively overpowered the Judiciary by creating invisible dependencies through the already asymmetrical power dynamics.
So, that’s it, even the final bulwark — the Judiciary — is at one of the gravest dangers which hinder its authority to execute its responsibility of being a Guardian of the constitution.
The present status — is something unprecedented in Independent India’s history — A government in power, electorally engineered through communally divisive politics resulting in a non-democratic representation, with blatantly clear unconstitutional manifesto and policies, with an unchecked majority in the Legislature, with executive cum government dwarfing Judiciary at each turn.
The warning signs have occurred in the past, but for the first time all these nefarious dangers have occurred concurrently to form the perfect storm to legislatively disarm the constitution and replace it with an ideology that comprises the worst elements of the colonial era:
· Non-socialist: benefit of few at the expense of many
· Anti-liberal: the compulsion to brand all dissenting views, criticism or even stating of mere facts as sedition
· Communally-divisive: to consciously work for communally dividing a harmonic citizenry and then proving that different communities cannot co-exist peacefully — just for a narrow agenda of being continuously voted to power.
What’s the way out?
To defend the Constitution and to ensure its sustainability, additional bulwarks need to be placed:
1. Reforming the Electoral Process: We need to switch to a new electoral system known as ‘proportional representation’, wherein elections are held in a manner that ensures that the number of seats won by a party or group of candidates is proportionate to the number of votes received. This ensures wider representation of diverse opinions in an elected assembly, reflecting a true democracy.
2. Additional Deliberation: The Indian Body politic has clearly betrayed the faith of the framers of the constitution by passing the Deliberation and Consensus-building exercises for even the most important of the legislative decisions, at every possibility available.
A political party gets an option to do exactly that even for the Constitutional Amendment Bills once it crosses the mark of 67% of the seats in the legislature.
Therefore, in cases where a single political party/coalition crosses 60% strength, the requirement of the passing of Constitutional Amendment bills must be pushed upwards to 85%. This will ensure that deliberation occurs at each step.
3. Providing symmetry in Organs: Judiciary has championed itself bravely as the defender of the constitution. However, it is abysmally understaffed and severely outpowered by the Executive-Legislature combine.
a. Addition in Capable Judicial workforce: Increase in number of Judges at all levels. This must be supplemented by an increase in quality education for Judicial staff
b. Insulation of Judiciary from post-retirement benefits: by charging the retirement remuneration of Judges to CFI and an oath of not joining Government offered jobs. A statutory mandated cool-off period of at-least 5 years (tenure of one government) post-retirement before taking up any other appointments on offer.
c. Judicial Control over the Executive: Either providing a different wing of executive to execute Judicial orders or manning and providing scheduled report to Judiciary on its orders
d. Prevention of lag: The operation of an Act must be contingent upon review and clearance of Judiciary rather than suo-moto action or PIL to judge the validity when the law seems to already have caused the damage.
But how:
The reforms mentioned above are the essentials for the continuance of India as our framers imagined it. In a democracy, the power to govern is derived from the governed; so, the route to reform flows through the ballot.
Politics is too serious a task to be left to politicians:
The existing body-politic has proven too unfaithful to be trusted with a conscientious task of protecting the constitution. It leaves the citizenry to rise up to the occasion.
No more complaining of the best man not being available for electors. A country with 136 crores must be able to find 545 willing eligible legislators ready to give few years of their lives for guardianship of the letter and spirit of the Constitution of India, for which countless freedom leaders gave their entire lives.
Fresh blood needs to be pumped into the murky waters of the Politics of India, untouched by the compromises, unwavering in its commitment to defend the national values, gritty and resolute for what is just for all. The electors are anxiously waiting for such candidates — it is for us to provide them.
§ With the candidature screened out of candidates — popular for their capabilities, rather than popularity being their capability.
§ Armed with an electoral outreach budgeted in advance and seeded from the people — to reach out to all the people — transparently visible to the electorate
We must realize that only a capable Government truly of the people, by the people will be willing and able to work for welfare of ‘all the people’.
So, the next time, when we as citizens go out to vote, look out for these in the manifesto.
