In February 2019, Justice D. Y. Chandrachud (who recently assumed office as the 50th Chief Justice of India) delivered the Justice K. T. Desai Memorial Lecture at the Bombay High Court. His address ‘Why Constitution Matters’, will perhaps go down in history as one of the most incisive addresses in Indian jurisprudence. He said: “The people who work the Constitution may go terribly wrong and sometimes they do as when we jail a cartoonist for sedition or when jail instead of bail is given to a blogger who is critical of our religious architecture. When a mob lynches a person for the food that she or he eats it is the Constitution which is lynched. When we deny to human beings the power of lover for reasons of religion or caste it is the Constitution which is made to weep. That is exactly what happened yesterday when a groom belonging to the Dalit community was asked to climb down from a horse in a wedding procession. Let’s make no two bones about it. It is the Constitution which weeps when we read of such incidents.”
One year later, in February 2020 striking a similar note at the Justice P.D. Desai Memorial Lecture at the Gujarat High Court, he said: “When the Constituent Assembly was called to decide the fate of separate electorates in independent India, they decided that its inclusion was not essential to and even contrary to the requirements of a pluralistic society. They rejected separate electorates and dismissed the relevance of numerical disadvantage in a polity. The framers of the Constitution rejected the notion of a Hindu India and a Muslim India. They recognised only the Republic of India….…Protecting dissent is but a reminder that while democratically elected governments offer us a legitimate tool for development and social coordination, they can never claim a monopoly over the values and identities that define our plural society…Inherent in the liberal promise of the Constitution is a commitment to a plurality of opinion. A legitimate government committed to deliberate dialogue does not seek to restrict political contestation but welcomes it…. taking democracy seriously requires us to respond respectfully to the intelligence of others and to participate vigorously, but as an equal in determining how we should live together.” All this was in the wake of massive anti-CAA protests all over India!
Interestingly, in August 2022, just three months before he became CJI, Justice Chandrachud at the 11th Convocation Ceremony of the OP Jindal Global University Delhi said: “Our constitutional culture does not maintain itself. It is for each one of us citizens to participate in the slow but vital task every day of transforming our Constitution from a charter of ideals to a reflection of reality… The judiciary has a greater role to play in promoting social democracy. However, the quest for a constitutional culture is not limited to the courtroom or black letter of the law.” Invoking Dr B R Ambedkar, he described social democracy as a way of life that recognizes social liberty, equality and fraternity as the principles of life.
CJI Chandrachud seems to be wedded to ‘Constitution Matters’ and rightly so, which should be non-negotiable for anyone professing to be part of the legal fraternity. Seventy-three years ago on 26 November 1949, the Constituent Assembly of India adopted and gave to “we, the people” a landmark Constitution which is the only sacred book of every Indian citizen; it is a bulwark of fundamental rights and directive principles, which are a prerequisite for any healthy democracy. The Preamble, with its emphasis on justice, liberty, equality and fraternity and its commitment to India being and remaining a ‘sovereign socialist secular democratic republic’ spells out the vision and the intrinsic character of the Constitution. The Constitution, with its minute details, is undoubtedly a unique one. Thanks to the vision of women and men of the Constituent Assembly, we can take genuine pride in a Constitution which is forward-looking and all-embracing and which respects the pluralistic fabric of the country.
After many years of having and being guided by a masterpiece of Constitution, unbelievable events have been unfolding in India in the recent past. The sanctity of the Constitution is being systematically destroyed and CJI Chandrachud has been on-target referring to them.
The regime has spared no efforts to destroy the independence and the autonomous functioning of several Constitutional and other statutory bodies. The Central Bureau of Investigation (CBI), the Enforcement Directorate (ED) the National Investigating Agency (NIA) have all become ‘caged parrots’. The army has been compromised and the police have been taught to kowtow to those who have made them spineless! All these agencies together with the Income Tax Department are systematically used to throttle voices of dissent and anyone who stands up for truth and justice. 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 largely made impotent, completely godified. Other important bodies like the Information Commission, the National Human Rights Commission (NHRC) and even the National Commission for Minorities (NCM) have been made toothless and filled with pliable henchmen.
The Election Commission of India has become a pawn in the hands of the Government. On 24 November, a five-judge Constitution bench of the Supreme Court, headed by Justice KM Joseph, reserved its verdict on a batch of pleas seeking a collegium-like system for the appointment of Election Commissioners and the Chief Election Commissioner and asked the parties to file written submission in five days. During the hearing the bench made some strong remarks questioning if the Election Commission was actually an independent body. It had a pointed "hypothesis" for the central government: “Do you think the Election Commissioner... if he's asked to take on none less than the Prime Minister — it's just an example — and he doesn't come around to doing it: Will it not be a case of complete breakdown of the system?”
The Apex Court said the Election Commission is "supposed to be completely insulated", and referred to how the government had spoken of appointing “a man of character"; it noted that, "character consists of various components... one particular characteristic required is independence." The current Election Commission has demonstrated how partial it is: Instead of announcing the dates of voting to the Himachal Pradesh and Gujarat Assemblies at the same time, it deferred the announcement of the Gujarat election dates till early November, only after the Prime Minister had completed his tasks of ribbon-cutting and inauguration of some populist schemes in Gujarat.
There are several other efforts being made to tamper with the Constitution, to negate its essence (justice, liberty, equality and fraternity) and to destroy some of the key dimensions of its democratic framework (sovereign, secular socialist) 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 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 2025 (the centenary of the RSS); 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 (scheduled for hearing on 28 November) and that the rights of the minorities guaranteed in the Constitution should be scrapped immediately. There is the anti-constitutional Citizenship Amendment Act; the abrogation of Articles 370 and 35A where Kashmir is concerned; labour codes which favour the corporates. Thanks to the farmers’ agitation, the anti-farmer policies are for the time being in cold storage. The proposed Adani port at Vizhinjam in Kerala will affect the livelihood of more than 56,000 fisher folk. The Unlawful Activities Prevention Act (UAPA) is used selectively to target dissenters and human rights defenders who stand up for truth and justice on behalf of the exploited and excluded of the country. Governors of States, instead of safe-guarding the Constitution, have become ‘yes-men’ of the regime. The list of anti-constitutional policies and acts are endless.
On the eve of the enactment of the Constitution, 25 November 1949, in a passionate speech to the Constituent Assembly, Dr B.R. Ambedkar, the father of our Constitution, gave three unambiguous warnings: the need to give up the grammar of anarchy, to avoid hero-worship, and to work towards a social – not just a political – democracy. Ambedkar was, at that time, perhaps visioning what India could become in 2022, and how these three aspects could not only destroy all that was sacred in the Constitution, but could result in the dismantling of the democratic framework which a new resurgent India was just born into and committed to.
Ambedkar said: “If we wish to maintain democracy not merely in form, but also in fact, what must we do? The first thing in my judgement we must do is to hold fast to constitutional methods of achieving our social and economic objectives…. where constitutional methods are open, there can be no justification for (..) unconstitutional methods. These methods are nothing but the Grammar of Anarchy and the sooner they are abandoned, the better for us. The second thing we must do is to observe the caution which John Stuart Mill has given to all who are interested in the maintenance of democracy, namely, not to lay their liberties at the feet of even a great man, or to trust him with power which enables him to subvert their institutions in politics. Bhakti or hero-worship is a sure road to degradation and to eventual dictatorship. The third thing we must do is not to be content with mere political democracy. We must make our political democracy a social democracy as well. Political democracy cannot last unless there lies at the base of it, social democracy”.
Ambedkar added, “Will history repeat itself? It is this thought, which fills me with anxiety. This anxiety is deepened by the realisation of the fact that in addition to our old enemies in the form of castes and creeds, we are going to have many political parties with diverse and opposing political creeds. 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.”
Ambedkar’s final words in that path-breaking speech, sums up his views on the measure of responsibility owed to preserve the idea of India, as envisioned in the Constitution. “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.”
On 26 November, as we observe ‘Constitution Day 2022’, we must pledge to fight the fascist and fundamental forces who are destroying the sanctity of our Constitution. We can no longer sit in our comfort zones; “We, the People of India” must rise as one people, for our Constitution is all that matters; in the words of Ambedkar “we are determined to defend it with the last drop of our blood.”
(The author is a human rights & peace activist/writer. Contact email@example.com)