Dushyant Dave

Liberty, equality and fraternity are becoming subservient to a new idea of sovereignty

The Constituent Assembly formation was the culmination of the final stage of the struggle for freedom and Independence, which was won by the supreme sacrifices made by millions of Indians. People across the length and breadth of the country made sacrifices in one way or the other. On January 26, 1950, India got its Constitution. Every succeeding generation in India owes an eternal debt of gratitude to the country’s forefathers for this ‘sacred text’. There is absolutely no doubt that we must keep the spirit of this text as well as the letter, while also protecting Constitutional values and its morality.

However, the current state of affairs in the country is an example of how the Constitution is slowly and steadily being made to wither away. Parliament, the judiciary and the executive are all under stress. Things are going wrong in these fast-changing times. People are moved, and getting moved, by an ideology which is apparently in conflict with constitutional ethos and basic human values. As a result, people are tired of a government by the people and are instead leaning to support a government for the people. They are indifferent to whether it is a government of the people and by the people. Dr. B.R. Ambedkar warned us “not to be tardy in the recognition of the evils that lie across our path and which induce people to prefer Government for the people to Government by the people”. But have we paid heed to this warning?

A missing debate

Today, liberty, equality and fraternity are becoming subservient to a new idea of sovereignty. Ultra-nationalism has trampled over basic human rights and the dignities of citizens, especially of the “downtrodden” and the “minorities”. Constitutionalism is being forgotten. As a result democratic principles are unable to check legislative, judicial and executive powers. Each organ is paying lip service to this fundamental principle. Examples are writ large in front of us and happen everyday.

The government’s focus on certain ideological issues to drive home its agenda is a serious point to be debated. A political party that is in power can push through its policies. But when it becomes an obsession to the point of neglecting real issues, it poses a challenge.

The ruling party cannot be satisfied with chest thumping on Triple Talaq or the abrogation of Article 370. Where are the much-needed discussions on poverty, the economic slowdown, hate crimes, the rise in population and agrarian distress? Why not ‘wage war’ on these issues?

The government’s strategy on the abrogation of Article 370 is by far the most serious challenge to federalism. The bifurcation of Jammu and Kashmir is most condemnable. Does this not pave the way for any government with a majority to carve up States based on a whim?

Stepping back

The judiciary, especially the Supreme Court of India, is the custodian of the fundamental rights of citizens under the Constitution. But the problem is not the absence of the law but of its implementation. The judiciary’s blanching over protecting the fundamental rights of the citizens of Jammu and Kashmir points to its abdication of carrying out its duty.

The judiciary itself has held that a judicial review of actions by the Executive is a part of the basic structure and has even proclaimed that “there are no unreviewable discretions under the constitutional dispensation”. If one can go by various judgments, it is dutybound to inquire into the legitimacy of the exercise of powers.

Article 21, which is about the “protection of life and personal liberty”, has been infused with new and enriched life by the judiciary. But in Jammu and Kashmir, restrictions virtually amounting to a deprivation of the liberties of the citizens of Jammu and Kashmir over the past fortnight are not “according to procedure established by law”. Using Section 144 of the Code of Criminal Procedure Code, 1973 in a blanket manner is wholly insufficient as a justification for all that has been done.

Then why is the silence of the higher judiciary so deafening? The reason is not far to fathom. The distance between the judiciary and political and executive leaders is blurring. Where is the expected aloofness?.

It was B.R. Ambedkar again who said, “Because I feel, however good a Constitution may be it is sure to turn out bad because those who are called upon to work it, happen to be a bad lot.” His strong warning — “It is quite possible for this new born democracy to retain its form but give place to dictatorship in fact. If there is a landslide, the danger of the second possibility becoming actuality is much greater” — does not seem to have registered with our constitutional functionaries. The election result of 2019 is the proof of Ambedkar’s prophecy coming true. But sadly, the real protectors of the Constitution do not seem bothered. They are content with allowing the government to have either the last say or the last laugh. Democracy is certainly losing out to populism.

Dushyant Dave is Senior Advocate, Supreme Court of India

Courtesy- The Hindu