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‘Salvaging The Constitution!’

‘Salvaging The Constitution!’

‘Constitution Day’, 26 November, was indeed historic for the country this year!

In a significant order a Supreme Court bench (comprising Justices NV Ramana, Ashok Bhushan and Sanjiv Khanna) directed that Maharashtra chief minister Devendra Fadnavis (who was ‘unconstitutionally’ sworn in on 23 November) should prove his majority on the floor of the assembly on 27  November, in an open ballot, after completing the swearing in of  legislators by five pm.

The bench also said a pro-tem Speaker should hold the floor test, in a verdict that is in line with the apex court's earlier stand on the Uttarakhand Assembly issue. Whilst reading out the verdict Justice Ramana said, “members of the House are yet to take oath even after a month after the results were declared. To contain horse trading a floor test is needed as soon as possible." Further adding that, “ at this interim stage, we may note that it is imperative for this Court to be cognizant of the need to take into consideration the competing claims of the parties, uphold the democratic values and foster constitutional morality, “The court said the legal contentions raised by the petitioners such as the governor's powers and discretion and separation of powers, would be decided within eight weeks. The apex court also requested Maharashtra Governor Bhagat Singh Koshyari to ensure that all elected members of the house are sworn in on Wednesday 27 November itself.

What took place in the Raj Bhavan of Maharashtra in the wee hours of Saturday 23 November, was patently unconstitutional. How else can one explain the way, the President threw all Constitutional propriety to the wind and revoked, without a Cabinet meeting and a resolution, ‘President’s rule’ in Maharashtra. In a matter of time, the Governor of the State swore in the next Chief Minister. How does one explain this ‘tearing and unprecedented hurry’? The support came from a ‘turn-coat’ of the NCP, who has several cases of corruption against him, and with an earlier commitment by the Maharashtra CM, to put in jail! (Strangely enough, in just about twenty-four hours, after this ‘swearing-in’ the State’s Anti-Corruption Bureau “closes” the corruption cases against him).

The ‘Maharashtra case’ came up before the Supreme Court on 25 November, on a petition filed by the Shiv Sena, Congress and Nationalist Congress Party, challenging the Maharashtra Governor's decision to invite the BJP to form the government in the State. On ‘Constitution Day’, the highest Court of the land agreed to the petition of the combined opposition. The Supreme Court highlighted the importance of Constitutional morality and questioned why “ the swearing in of a Chief Minister had to take place, in the secrecy of the night”; ordering an immediate live floor test, obviously to lessen the possibility of ‘horse trading’!

In delivering this order, the SC struck a body-blow to the nefarious deeds of the BJP who since assuming power in May 2014 have been trying to dilute provisions in the Constitution and even abrogate them in some cases. The order is clear attempt to salvage, what is lost from the Constitution, for the people of India!

In several instances, the BJP has destroyed the mandate of the people and usurped power, which puts both the Constitution and democracy to shame. The Maharashtra imbroglio points out to several unconstitutional and unacceptable facts! On expected lines, both the unconstitutionally sworn in CM and Deputy CM resigned, a few hours after the Court order. Thanks to the Supreme Court order, a new Government headed by Shiv Sena chief Uddhav Thackeray, as Chief Minister  was sworn in on 28 November at a mammoth public rally in Mumbai. The Sena-NCP-Congress alliance is now together under the banner of the ‘Maharashtra Vikas Aghadi’.

The MVA have already promulgated the much-awaited Common Minimum Programme (CMP); it begins with a stress on ‘secularism’. Despite Shiv Sena's initial disagreements on using the word 'secular' in the CMP, the final version has in the first line the word 'secular' and the first paragraph talks about upholding secularism. The preamble states, “The alliance partners commit to uphold the secular values enshrined in the Constitution. On the contentious issue of national importance especially having repercussions/consequences on the secular fabric of the nation, the Shiv Sena, the NCP and the Congress will take a joint view after holding consultations and arriving at a consensus.”

Sonia Gandhi and the Congress Party have certainly played a major role in ensuring that the Shiv Sena which has also been one of their Hindutva ‘bête noires ’, as at least theoretically, become ‘secular .’A significant salvage for the Constitution! The CMP highlights the importance of putting Maharashtra and farmers first. It promises, eighty per cent reservation in jobs for local/domicile youth and to bring in a law to ensure reservation. All this marks a major departure from the hardcore ‘Hindutva ‘agenda of the Shiv Sena.

The BJP (particularly the ‘two’ so-called leaders) are embarrassed, singed and very hurt. Their egos and pride have been stymied, at least for the moment. However, given their track- record, with their unlimited amount of money, muscle and their manipulative skills, they will stop at nothing. They are desperate to ‘regain’ power in Maharashtra at any cost. Whether they will succeed in their nefarious designs is anyone’s guess. A floor test is scheduled for Saturday 30 November. The ‘Maharashtra Vikas Aghadi’, obviously have the numbers and they are bound to romp home unscathed. Given the ‘lust for power’ and the fact that corruption is today in the DNA of most of the political class, the people of India have not yet witnessed the final episode of this ‘Maha drama!’

Looking back at the past ten days in Maharashtra and realising that the President and the Governor have not been serious  about Constitutional basics, to whom do “we the people” go to? It is not that one did not see or read the writing on the wall. It has been coming slowly but surely. There are several instances when the spirit and letter of the Constitution has not been adhered too. But this most recent anti-Constitutional ‘episode’ out of Maharashtra is on several counts, the proverbial “last straw”.  The moot question, we need to ask ourselves at this juncture do we have the courage to stop the fascists who are not merely tearing the Constitution to shreds, but are doing all they can to destroy the very idea of India and its pluralistic fabric.

The National Register of Citizens (NRC), as announced by Union Home Minister, is again blatantly violative of the Constitution. The NRC together with the ‘Citizenship Amendment Bill’, assuring citizenship to all undocumented persons except those of Muslim faith, risks tearing the country apart, reopening the wounds of Partition, and ultimately destroying the secular and democratic tenets of the Constitution. The country today stands at the brink of catastrophic human suffering and injustice, if the government as it plans to do, begins implementing it nation-wide.

Many subtle and direct efforts are consistently being made to tamper with the Constitution, to negate its essence and even to delete core dimensions like the words ‘secular’ and ‘socialism’ which are deeply interwoven into the pluralistic fabric of Indian society. The current BJP/RSS combine, including some of their ministers and leading functionaries have often gone on record saying that once they have the pre-requisite numbers in Parliament, they will have no qualms of conscience to change fundamentals of the Constitution like that of ‘secularism’ and equal rights for all. There are consistent proclamations for the establishment of a ‘Hindu State’ by 2020; the annihilation of the minorities particularly the Muslims and Christians; ‘lynching’ of minorities is the ‘new normal’. There is talk of a ‘Common Civil Code’, of a national anti-conversion law and of abrogating the rights of minorities. Pragaya Thakur anointing Nathuram Godse (the murderer of Mahatma Gandhi) as a ‘patriot’, is part of a well-strategised game plan!

The reality in Kashmir continues to fester! Writing on the recent developments in Kashmir, (‘ Business Standard’Nov.18, 2019) Bharat Bhushan says, “ The revocation of the special status of Jammu and Kashmir, dividing it into two centrally governed provinces and the military clamp down have tipped the balance against the Modi regime. The world can see that the asymmetric federalism which was the basis of the Indian Union’s strength has been junked for a unitary vision. The government’s and pliant media’s celebration of “normalcy” in Kashmir Valley is nothing but self-deluding propaganda. The fact is that the international community is perturbed with the developments in Kashmir, especially the communication restrictions and the continued incarceration of the state’s political leadership”.

There have been some great judgements by the Supreme Court. Some recent pronouncements however, like those on ‘Ayodhya’ and the ‘Rafale scam’, have raised many serious questions. In January 2018, four seniors most judges of the Supreme Court (including Justice Ranjan Gogoi, the recently retired Chief Justice of India) held an unprecedented Press Conference asserting that unless things are set in order and that the Government stops interfering in the judiciary, “democracy will not survive in the country!” That the Government has been interfering in the working of the judiciary is without doubt. Bhushan adds, The rule of law and impartial judiciary that India prided itself on have also come under question. In a stinging indictment, The Washington Post in a recent report remarked that “BJP partisans increasingly dominate the courts.” This has been evident to Indians for quite some time. One only has to glance at the global media headlines on the Supreme Court’s Ayodhya verdict to fathom how the Indian judiciary is being viewed”.

The regime has spared no efforts to destroy the independence and the autonomous functioning of several Constitutional and statutory bodies. The Election Commission of India is today obviously a pawn. The Central Bureau of Investigation (CBI) and the Enforcement Directorate (ED)have become ‘caged parrots. The Reserve Banking of India (RBI) is browbeaten to bend backwards to cater to the whims and fancies of a Government that has sent the country into an economic spiral downwards! Media, the fourth pillar of a vibrant democracy, has been made impotent. Only a handful of those in the electronic and print media will dare take on the Government today. Other important bodies, like the Information Commission, have been made toothless and filled with their pliable henchmen!

Seventy years ago, on 26 November 1949, Dr B.R. Ambedkar, the father of our Constituent Assembly said, “will Indians place the country above their creed or above their country? I do not know, but this much is certain that if the parties place creed above country, our independence will be put in jeopardy a second time and probably be lost forever. This eventuality we all must resolutely guard against. We must be determined to defend our independence with the last drop of our blood!” and   “ If we wish to preserve the Constitution in which we have sought to enshrine the principle of Government of the people, for the people and by the people, let us resolve 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, nor to be weak in our initiative to remove them. That is the only way to serve the country. I know of no better”.

For now, the sanctity of the Constitution has, in part, been salvaged; there is much more work left ahead, for the Judiciary and for the people of India, to ensure that it is no longer tampered with or desecrated!

( Fr Cedric Prakash SJ is a human rights & peace activist/writer. Contact: )

(Published on 02nd December 2019, Volume XXXI, Issue 49)