Ideas drive a nation. Dreams lead to innovation and strategic planning. Vision defines the aspirations of people. The life and breath of a nation draw its strength from a vibrant economy, a bustling environment of opportunities, a cascading graph of human achievements in areas of mental and physical strain, a robust governance model, and flourishing meadows of public opinion.
India, on the eve of January 26, 1950, through a momentous act of adopting the Constitution of India, turned a new leaf upon the sands of history and time. India truly, in a legal sense, was now a sovereign republic, or, in other words, the purveyor of its own destiny.
The Preamble of the Constitution reflected the ideals and ethos of the new republic in the comity of nations. Ideals of justice, equality, and fraternity were extolled as the guiding virtues for governance, and crafting the path of development and progress.
One of the greatest challenges of forging the nation into one whole has been to bring about an accord among competing claims of diverse communities. Affirmative action, envisaged to ensure equality in public employment, through some of the constitutional provisions like Article 15 and 17, directly set out to uproot the curse of caste and class discrimination, by throwing open temples and public places to all citizens of India, and making the disease of ‘untouchability’ punishable by law.
At the same time, Article 21 was designed keeping in sharp focus the prescient understanding of Justice Felix Frankfurter of the United States of America, who advised B.N.Rau, the advisor to the Constituent Assembly of India, to avoid the ‘due process’ clause requirement which insisted upon a stringent check on the untrammelled powers of the state.
However, in the case of Maneka Gandhi v. Union of India (1978) the expansive understanding of ‘due process’ was interpreted to mean a “just, fair, and reasonable” procedure to be in place. Famously, in this case, the passport of the petitioner was impounded and she sought to know the grounds of same, as no substantial reasons were furnished. The journey of several other constitutional provisions over the period of the last seventy-one years of the republic have been equally interesting.
Ultimately, the idea was to ensure that the three supreme organs of the state, namely, the judiciary, the executive, and the legislature work in harmony with one another. However, on questions of removal of judges, the appointment of judges, and high constitutional functionaries and policy issues, there has been apparent tension on more than one occasion.
The Constituent Assembly, while debating the power of the removal of judges of superior courts, decided that impeachment power should vest with the parliament. Sir N Gopalaswami Ayyangar had observed that such a power should be only used in rarest of rare instances. In his words, “Whatever procedure you prescribe for the removal of Judges for proved misconduct or misbehaviour, that procedure is likely to be used only in the rarest of contingencies and very probably will not be used within my lifetime or even the lifetime of those who are much younger in this House than I am,”.
To ensure that the voice of the weak doesn’t fizzle out under might of state machinery, Dr.Ambedkar made a case for Article 32 and called it the soul of the Constitution as it provides for a legal recourse to an aggrieved citizen to move superior courts (High Courts and Supreme Court of India) by invoking their writ jurisdiction.
India of the twenty-first century is bedevilled with strategic socio-legal problems. We are witnessing a scenario where institutions are seemingly at loggerheads and are struggling to maintain the desired rectitude and dignity envisioned by the Constitution of India.
Broad-based pre-legislative consultation needs solid encouragement and support in India. We are not looking at diverse ways of igniting meaningful public discussions on vital issues like questions on citizenship laws, internal security, and access to justice.
Should not the ‘elected’ gentry reach out to the people and explain to them about the nitty-gritty of the proposed laws before giving it the shape of law which after becoming law remains amenable only to judicial scrutiny on limited grounds? Should we not devise concrete methods of building consensus on a particular law, even before it is passed?
Should the freedom of speech-guarantee, enshrined in the Constitution under Article 19(1)(a), under all circumstances mean ‘popular’ or ‘dominant narrative’ in the political discourse? What is the objective of worshipping democratic ethic, if the state apparatus cannot ensure the free flow of ideas, views and counterviews in the public spaces?
Why should anyone fear repercussions for speaking their mind? Why should ‘reason’ and ‘logic’ be kept hostage to thuggery and the perverse manifestation of social media? Dissent is the essence of any fledgeling democracy.
In the Bhima Koregaon case, Justice DY Chandrachud articulated the need of dissent by observing that “Dissent is a symbol of a vibrant democracy”. It has been observed that, at times, the government machinery makes a mountain out of a mole-hill. Who is speaking ill against the state? When does a speech actually slip into the ‘anti-national‘ mode? Are there any limits to criticism of government-policies or laws? These questions continue to rake up the political cauldron of India. Understandably, there is a need to give a push to informed debates across the cross-section of society.
Insecurity, fear, and chaos should not reign at the heart of a democratic experience. These are the traits well associated with tyranny and nepotism. Democracy, and more importantly, the idea of India as a nation, must bank more and more upon wider public engagement of government (centre and state) with civil society, encouragement of dialogue, and opting for more bolder experiments in democracy as it matures.
Traditionally, India as a democracy has not been a risk-taker. We continue to rely on the ‘first-past-the-post’ system and it is commonly agreed that leaders break bread with commoners or try to connect with public grievances only when elections are around the corner. This trend certainly needs to be put on the backburner.
Options, like having a referendum on contentious issues and addressing the requirements of access to justice need of the marginalised, should be the leitmotif of any legitimate government. In a heightened atmosphere of state surveillance, supporting structures of dialogue, debate, and dissent must pave the way for greater public participation in socio-political affairs of the state.
Should a citizen always need to take to the streets to compel the government to listen? Civil protests may be manifested in multiple ways.
The right to peaceful protest is a Constitutional right.
Worshipping demigods and indulging in hero-worship, without adhering to the Constitutional vision, is not going to take us anywhere. As Oliver Wendell Holmes poignantly put it, “The life of law is not logic but experience.”