Open Essay

Dont’t Burn the Book of Freedom

Shashi Tharoor is a Member of Parliament and the author, most recently, of Why I am a Hindu
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Has Indian democracy fully tapped the creativity of the Constitution?

The Oxford Handbook of the Indian Constitution | Edited by Sujit Choudhry, Madhav Khosla and Pratap Bhanu Mehta | Oxford University Press |Pages 1,120 | £125 

OUR CONSTITUTION IS in vogue these days as never before. Scarcely does a ministerial speech fail to make a ritual genuflection to its all-pervasive majesty. Prime Minister Modi even used the occasion of his recent address to the two houses of Congress in Washington to inform the world that the Constitution was his only holy book. (Though it is the Bhagavad Gita, and not the Constitution, that he prefers to hand out on his visits to foreign leaders, the sentiment deserves applause.)

Last November 26, Parliament held an unprecedented special session to celebrate (though largely through unvarying expressions of consensual admiration) the day 66 years earlier, on 26 November 1949, when the Constituent Assembly finished its work and agreed on a Constitution that was to be formally adopted two months later, on January 26, 1950.

Why did the leaders choose January 26? Simply because of the fact that for the previous seventeen years, the Indian National Congress had celebrated January 26 as Independence Day. This commemorated the Declaration of Independence issued by Jawaharlal Nehru, as President of the Lahore session of the Congress, in 1930, which called for ‘Purna Swaraj’. When Independence actually came on August 15, the special associations of January 26 were preserved by making it our Republic Day, the day when the Constitution of India came into force.

November 26, 1949, marked the conclusion of the long process of Constitution-making. The nationalist movement that gave our Constitution its legitimacy and sanctity had itself used many arguably non-constitutional methods in its struggle against Imperial rule—non-cooperation, civil disobedience, satyagraha. Yet it culminated in a democratic Constitution, the world’s longest and (or so many thought at the time) its most imperilled. On that occasion, Dr BR Ambedkar, Chairman of the Drafting Committee of the Constituent Assembly, rose in what is now the Central Hall of Parliament to address his colleagues, his fellow Founding Fathers, with a prescient warning to the nation: ”However good a constitution may be,” he said, “it is sure to turn out bad because those who are called to work it, happen to be a bad lot. However bad a constitution may be, it may turn out to be good if those who are called to work it, happen to be a good lot. The working of a constitution does not depend wholly upon the nature of the Constitution.” It is a sobering reminder that the Constitution we celebrate today can be distorted and misused by ‘wrong-minded’ people in power.

As a staunch defender of democracy in both principle and practice, Ambedkar recalled the history of the Buddhist Bhikshu Sanghas, and added: “This democratic system India lost. Will she lose it a second time? I do not know. But it is quite possible, in a country like India… there is danger of democracy giving place to dictatorship. 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.”

His words haunt us today as we see a situation in which the affirmation of constitutional democracy through a landslide at the polls has been followed by statements and actions unleashing intolerance and undemocratic values to run rampant in our society.

Political rhetoric by individuals unchallenged by the ruling party has demonised entire religious communities. Irresponsible statements of powerful members of the ruling party, including Ministers, have served to divide our nation and our people, as communal polarisation has been promoted for political reasons. The deaths of innocent people because of their faith, their professions or even their alleged eating habits, have cast a shadow on our democracy.

The publication of The Oxford Handbook of the Indian Constitution (Oxford University Press, 1,120 pages, £125), edited by Sujit Choudhry, Madhav Khosla and Pratap Bhanu Mehta, could not, for this reason, have been more timely. While India is more conscious than ever before of its Constitution, since it is being discussed and debated as a source of political legitimacy and democratic contention, the 65 essays in this fat volume span the gamut from separation of powers to PILs, and from discussions of the ‘demosprudence’ of the Supreme Court to the not-always-reasonable restrictions imposed on free speech. It is breathtaking in its span and range, authored by writers of eminence and often brilliance, which include well-established names (like Upendra Baxi and Gopal Subramaniam), formidable public intellectuals and activists (like MR Madhavan, Flavia Agnes and Lawrence Liang) and rising stars in the academe (like Madhav Khosla, author of a much shorter work on the same subject, and Tarunabh Khaitan).

Dr Ambedkar, of course, had a solution for the problem that he anticipated 67 years ago. He urged Indians to respect the principles of the Constitution, to resist one-man rule, to stand against attempts to divide the nation along lines of religion or caste. His timeless wisdom must guide us as we contemplate the reality of what is being done to our democracy in the onrush of events. Yet his very assumptions are contested ground today, and open up rich veins of intellectual inquiry. ‘Almost all the issues that arise in the course of thinking about law in modern constitutional democracies find their most intense expression in the evolution of Indian constitutional law’, as the editors argue in their ‘Introduction’. The authors in this volume go well beyond what some might consider to be prescriptions of the obvious, engaging in discussions which, though written for scholars and experts, wear their erudition lightly enough to be accessible, and invaluable, to every thinking Indian.

The Constitution we celebrate today can be distorted and misused by ‘wrong-minded’ people in power.

THE CONSTITUTION, to risk a cliché, has stood the test of time, even if it has to undergo repeated surgery in the process—112 Amendments constituting some sort of global record. The Constitution, of course, created itself as a self- generating and self-correcting entity, a living document that allowed for its own amendment to meet the changes of the times. In a way, this reflected the Founders’ confidence in the people of this land to make the necessary adjustments and rise to meet every new challenge to society. The small-minded may consider the large number of amendments as a sign of constitutional weakness, but those with a broader vision would understand that it was actually a sign of its inherent strength— a strength that derives from the Constitution’s ability to be flexible without the risk of self-destruction.

The adaptability of the Constitution to the ever-changing realities of national life has effectively made it a vehicle of social change. It has the exemplary in-built ability to adjust to the needs of the times and the fact that this is enabled through a democratic and representative process has been the key to its effectiveness in moving our society forward in a democratic and reasonably efficient manner. In this it has fulfilled the three purposes Granville Austin identified in one of the earliest seminal studies of the Indian Constitution—to build a strong state, to promote democracy and to facilitate a social revolution.

Courts have crafted remedies to various problems in which the state was deemed to be acting inefficiently or insufficiently, from human rights to environmental practices. Public interest litigation is an extraordinary development, under which individuals with no locus standi on an issue can petition the Court to take cognisance of, and issue orders on, matters of public policy that are arguably the domain of the Legislature and the Executive. The Supreme Court has also evolved the concept of the ‘basic structure’ of the Constitution which cannot be altered even by constitutional amendment, a far-reaching doctrine whose full implications we are yet to discover. But this in turn has given rise to issues of judicial over-reach and the sovereignty of Parliament, which have not yet been resolved despite the victory of the Judiciary on the matter of judicial appointments (which the Government sought to regulate through its National Judicial Accountability Bill).

Our Constitution has been written for a plural society. It has protected and defended that pluralism by enshrining and expanding the rights of various minority groups, notably religious minorities, Dalits and women (but not yet gays and lesbians). It is true that the tension between the Constitution’s upholding of individual rights and liberties coexists uneasily with its framework of defence of communitarian and group rights. Yet constitutionalism has become the principal means of embodying justice to Dalits and the Constitution remains their own preferred tool to undo injustice. But recent events have proved that it can still be subverted, if not in principle then certainly in practice, by those who disrespect its pluralist convictions.

For decades the Constitution has worked to promote our people’s progress through debate and consultation, respect for the opposition and minority points of view, deference to legal process. Such constraints are sadly disrespected today—and not only by the ruling Party’s desire to promote a narrow- minded and sectarian nationalism that brooks no dissent, and which for the first time has made some Indians feel unsafe to be themselves in India. They are also challenged by disturbances in the street, ranging from the hartals called (and enforced by intimidation) by Kerala Communists, the sit-in strike led by Delhi’s own elected Chief Minister against his state’s police (who are accountable to the Central Government) and most notably by the Anna Hazare movement that invoked a higher morality than the Constitution provides for.

The recent debate in India on the role of civil society in our law-making—prompted by the Anna Hazare movement and the extraordinary impact of demonstrations, televised daily and whipped further into prominence by sympathetic media and opposition leaders, on the political establishment—should be seen against this broader context. To some degree, however, it appears to be based on a misunderstanding about the workings of our constitutional system. In our democracy, there are specific rights accorded by the state to our citizens to help them exercise their political freedoms: freedom of speech and political association and related rights allow citizens—in other words, members of civil society—to get together, argue and discuss, debate and criticise, protest and strike, and even go on fasts and hunger- strikes, in order to support or challenge their governments.

This is an essential part of promoting governmental accountability between elections: no one can seriously argue that a citizen’s democratic rights begin and end with the right to choose his government through voting alone. Indeed, as Amartya Sen so brilliantly pointed out in The Argumentative Indian, it is through such discussions and engagement that a deliberative democracy is created. There is often a useful distinction between law and legitimacy: the greater the extent to which ordinary people are engaged with, concerned by and empowered to determine their own political destiny, the more they accept the decisions of the state institutions and the more legitimate the law becomes to the people.

So to that extent, civil society does and should have an influence on law-making. But that is not the same thing as saying it should have a direct role. In Switzerland, for example, ordinary citizens can actually bypass the elected legislature and write laws by voting for them in referenda that are organised by the state and whose outcomes are recognised by the government as having the full binding force of law. (This practice made the news again in early June, when voters overturned a proposal for a ‘national minimum salary’.) That is not the case, however, in our democracy, where civil society’s impact is confined to the influence it is able to bring to bear on the elected law-makers, through the shaping of public opinion, effective lobbying, media campaigns and mass movements.

The demand that ‘civil society’ ought to be allowed to write certain laws goes far beyond a mere challenge of the supremacy of Parliament

Under the Constitution of India, Parliament is the supreme legislative body at the national level. Only Parliament makes laws that affect the entire country and therefore help shape its society. The most important aspect of legislation lies in its vital social or sociological ramifications—think, for example, of the reservations policy for certain castes, decided by Parliament, which has proved a remarkable tool of social mobility and political transformation. Parliament has also not been found wanting in creating through legislation many institutions and mechanisms which today address issues crucial to the well- being of our society.

The process of democratic elections in India, involving a multiplicity of political parties organised to reflect any conceivable interest and ideology in society, ensures the representative character of Parliament—and this in turn is reflected in the manner in which its members perform their legislative functions. This is why laws must be made by law-makers who are truly representative of the society they are seeking to regulate, and who are bound by oath to act for the fair and equal welfare of all sections of the people they are constitutionally elected to represent.

Parliament is a microcosm of the nation. The question that was posed by the civil society agitations was why the Executive Government was ‘not listening to the voice of the people’. It may be argued that the mass mobilisation witnessed in the streets, or in the Ramlila Maidan in Delhi, behind Anna Hazare’s demands, pointed to a disconnect between the Government and popular sentiment on the Lokpal issue, just as the mass protests near Parliament Square and Rashtrapati Bhavan over the Nirbhaya killing pointed to estrangement between the mobilised public and the guardians of law and order. But that does not mean, in a functioning democracy, that laws can be dictated by crowds in the street or the fast of a respected figure. Parliamentary debate is necessary and legitimate, for in the parliamentary democracy envisaged by our Constitution, only elected MPs can make laws. To allow any unelected group, however virtuous and idealistic it may be, to substitute its will, through demonstrations and fasts, for that of Parliament would be an assault on the very foundations of our republic and fundamentally violative of our Constitution.

In our democracy, there is an efficient, well-tried and constitutional law-making system in place. It is hardly perfect, but then we can remember the famous remark attributed to the 19th- century German Chancellor Otto von Bismarck, “If you like laws and sausages, you should never watch either one being made”.

Nonetheless, the important point is that nobody is excluded from having an influence, or bringing their point of view to bear, on this process. And yet, it is true that in a dynamic and responsive polity like ours, extra-constitutional pressures often cannot simply be ignored. The most famous example of moral pressure outside Parliament causing an executive to bend was in 1952, when Prime Minister Jawaharlal Nehru’s Government reversed its position and constituted a States Reorganisation Commission in response to a fast-unto-death by the Gandhian leader Potti Sriramulu, who fasted to demand the creation of linguistic states and died in the process. That Commission’s report led to the redrawing of India’s administrative and federal map in 1956. Ironically it was another extra-constitutional agitation, including the disruption of Parliament by pepper-spray, that led to this being undone with the creation of Telangana in 2013.

But exceptions often prove the rule, as the cliché goes, and the rule remains that law-making in this country is connected to civil society through the process of consultation and debate by people’s representatives elected through democratic elections. The demand that ‘civil society’ ought to be allowed to write certain laws goes far beyond a mere challenge of the constitutional provisions or of the supremacy of Parliament. That is objectionable enough. But in my considered opinion it goes further by attempting to obfuscate the core issue of representation. Elections are not easy; each Parliamentarian knows this from his or her personal experience. The MPs’ claim to represent the people, whose votes they have campaigned for and won, cannot be lightly disregarded in favour of those who are not willing or capable of surmounting the essential first step of achieving a representative position through victory in an election. The notion that the ability to mobilise a crowd on the streets, or attract the television cameras to a cause, is enough to supplant the results of democratic elections, only reveals an attitude of contempt for the democratic rights of the people of this country. Those who do so are in effect advocating a dictatorship of the minority, an oligarchy which was never agreed to by the learned and visionary founding fathers of this nation, who had unhesitatingly reposed total faith in the electoral wisdom of the ordinary masses of this land.

If members of ‘civil society’ want to have a determinant voice in law-making, what they need to do is to organise themselves politically and not merely agitationally, contest elections and come into Parliament—where they can write and pass the laws they were trying to dictate from the street. This is precisely what a section of Anna Hazare’s supporters did in forming the Aam Aadmi Party (AAP) and sweeping to power in the Assembly elections of Delhi in 2013. But the challenge of converting their burning passion to rid the nation of corruption to effective legislative and governmental action became apparent when the AAP Chief Minister Arvind Kejriwal found himself fleeing his own mass meetings as they got out of hand, agitating in the streets against his own police, and resigning impetuously after a mere 49 days in power. Civil society agitation is not the same as the responsible use of governmental machinery and legislative authority to pursue the same aims. He appears to have learnt better how to conform to the Constitution when the voters gave him a second chance as Chief Minister in 2015.

OUR CONSTITUTION frames a political process that is itself reflective of our society. Parliamentarians are in that sense themselves products of civil society. I have no doubt that India’s law-makers, as consumers of mass media and targets of agitational protests, will find themselves influenced in the future by the passions visible in the street and on their television screens. But it is still up to them to devise, amend and vote the laws that ultimately govern the nation. And legislation, like salad, is best served cold, not overcooked in the heat of the political kitchen. Civil society can provide the impetus of the moment, but under our Constitution, only elected legislators can determine the laws that shape the future.

And yet there is no substitute for an independent professional judiciary to keep a watch over this process, to ensure that Parliament is not swept away by an imperious executive with a landslide majority—the prescient warning that Ambedkar issued to the nation in 1949. Checks and balances can be frustrating for the impatient, and I have argued elsewhere that a directly- elected executive would be far more effective in achieving results in our fractious polity. But we have to make a success of the Constitution we have, and my frustration is with the inbuilt checks within the Executive, not between the Legislature and the Judiciary. Here the balance is necessary, in my view, though it will always be a matter of dispute how far it is reasonable for the Judiciary to go before we can legitimately accuse it of overreach.

This creative tension among the respective roles of Parliament, civil society and Judiciary in law-making is an issue that I would like to have seen receive fuller treatment in this impressive volume. There are few other examples, however, of omission— and several of provocatively intelligent and at the same time well-researched essays that marry serious scholarship with the authors’ strong individual points of view. A special mention, in this context, of Lawrence Liang’s magisterial essay on the freedom of speech and expression, which also makes the broader point that a shared set of principles is the starting point, and not the end, of democratic participation.

Our Constitution provides us a magnificent structure beneath which all Indians, of all castes, creeds and languages, can equally seek shelter. This Handbook is an invaluable contribution to codifying our experience, recording our practice and developing the theory of how our Constitution has worked for the people of the world’s largest democracy.