Dushyant Dave
is Senior Advocate in the Supreme Court of India and former President of the Supreme Court Bar Association
The nation may have celebrated “Azadi ka Amrit Mahotsav”, on the completion of 75 years of Independence and the 74th anniversary of the founding of the Republic, but there are still deep contradictions in the country. Abject poverty prevails, there is a deepening divide between the rich and the poor, precarious conditions affect the rule of law, and not-so-good governance poses grave challenges to the very existence of democracy and the republic.
The nation stands polarised on religious and caste lines, resulting in the creation of deep distrust, if not animosity. The party in power at the Centre is unwilling to cede an inch to the Opposition to maintain a vibrant democracy. There is a constant targeting of the Opposition, as verbal attacks and political destabilisation of governments in Opposition-ruled States, through political machinations and “raids” and “checks” by several core central agencies.
With weakened constitutional safeguards and institutions, the judiciary, including the Supreme Court of India, has been slow to stop these attacks. For example, the floor test that the judiciary applies only seems to aid the efforts of the ruling party in bringing down Opposition governments, and is a completely futile judicial weapon. The judiciary needs to innovate to stop the luring of elected MLAs, in order to protect the power of the “little man” in a democracy, as Sir Winston Churchill described it.
From the pages of the past
So, where is the Amrit? Our constitutional framers had envisaged a different India, as Constitutional Assembly debates show. H.V. Kamath on November 5, 1948, had said, “I hope that we in India will go forward and try to make the State exist for the individual rather than the individual for the State...At least let us try to bring about this empire of the spirit in our own political institutions. If we do not do this, our attempt today in this Assembly would not truly reflect the political genius of the Indian people... India of the ages is not dead nor has she spoken her last creative word; she lives and has still something to do for herself and for the human family.”
Have we marched in this direction over seven decades? For those who perpetuate polarisation, an incident narrated by H.V. Kamath is the answer. Referring to the 1927 Congress session in Madras, he narrates, “Pandit Madam Mohan Malviya asked Muslims, ‘What safeguards did you ask from the Secretary of State for India or from the Government of India? We are here. What better safeguards do you want?’” After that speech, Maulana Muhammad Ali came to the rostrum, embraced Pandit Malaviya and said, “I do not want any safeguards. We want to live as Indians, as part of the Indian body politic. We want no safeguards from the British Government. Pandit Malaviya is our best safeguard.”
Constitutionally, the republic that was envisioned by the framers was what George Grote the historian had desired. B.R. Ambedkar quotes him reverentially (on November 4, 1948), “a paramount reverence for the forms of the Constitution, enforcing obedience to authority acting under and within these forms yet combined with the habit of open speech, of action subject only to definite legal control, and unrestrained censure of those very authorities as to all their public acts combined too with a perfect confidence in the bosom of every citizen amidst the bitterness of party contest that the forms of the Constitution will not be less sacred in the eyes of his opponents than in his own”. But then, B.R. Ambedkar expresses his fear thereupon, saying, “The other is that it is perfectly possible to prevent the Constitution, without changing its form by merely changing the form of the administration and making it inconsistent and opposed to the spirit of the Constitution. The question is, can we presume such a diffusion of Constitutional morality? Constitutional morality is not a natural sentiment. It has to be cultivated. We must realize that our people have yet to learn it. Democracy in India is only a top-dressing on Indian soil, which is essentially undemocratic.”
Opposition, a ‘necessary evil’
The failure of the constitutional and administrative authorities to work as per the letter and spirit of the Constitution shows how undemocratic India is. Discussing the importance of Opposition members of the Constituent Assembly, Z.H. Lari, said on May 20, 1949, “... everyone knows that power corrupts and absolute power corrupts absolutely... It is also a truism to say that every party that comes into power tries to make its hold permanent. The only check on the degeneration of party government into despotism is the existence of another party that keeps a strict eye on the doings of the cabinet and the party and thereby prevents the degeneration of a party government into a dictatorship. Besides, there cannot be a proper functioning of any party government unless there is constant criticism of the doings of that party.”
T.T. Krishnamachari said, “I have no doubt the future parliament and those who are going to be in charge of the destinies of this country would bear in mind the suggestion of Mr. Lari to pay a salary to the Leader of the Opposition, if that would encourage the creation of an Opposition, of a healthy Opposition Party.”
M.A. Ayyangar said, “I agree there ought to be a healthy opposition… I am really surprised to see ... the very protagonist of this healthy opposition had ample opportunity and I do not know why he did not start an opposition... Are their actions calculated to improve the welfare of the Country, much better than what the Congress party has stated in its manifesto?” Biswanath Das felt that the “opposition is a necessary evil and that the function of the opposition is to give the party in power full work”.
The Congress, which dominated this country for almost four decades, sought to perpetuate its power, post-Independence, by preventing a healthy Opposition. The dismissal of governments in Opposition-ruled States was its key weapon. Yet, today, the Congress and other members of the Opposition have been forced to complain about the state of democracy.
But are they collectively a healthy opposition? Their utterances and actions cause bewilderment. Are their actions calculated to improve the welfare of the country? Their not speaking in one voice only leaves a clear path for the ruling party to win election after election.
The challenge before the nation is on how to make citizens aware of their duties to defend the Constitution. People are now just bystanders before the political class which is making freedom irrelevant. In Israel, the proposals of Prime Minister Benjamin Netanyahu to undermine the judiciary are being strongly resisted. But what do we have in our nation today?
The failure to have a strong and healthy Opposition is causing the ruling party to perpetuate its position in a dictatorial manner. Constant attacks on the Supreme Court of India by Ministers and others show the scant regard for a healthy democracy. The ruling party must remember what Ram Narayan Singh once said, “In this country we have just got freedom, and our own party, i.e., the Congress Party, has got no opposition to it. I have seen how things have been going on here and I feel that there must be a strong opposition to criticise our actions and review them.... A Government which does not like opposition and always wants to be in power is not a patriotic but a traitor Government.”
Let us hope and pray that the party in power and the Opposition will realise their duties and responsibilities towards the Constitution, respect the wishes of the framers of the Constitution, and work for the welfare of the people of India.
The real challenge before the nation is how to make citizens, now bystanders, aware of their duties to defend the Constitution
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