The Constitution of India was formally adopted on 26th November 1949 by the Constituent Assembly. Since 2015, this day is celebrated as Constitution Day or National Law Day. For an essentially undemocratic nation, Ambedkar and the Constituent Assembly envisioned to cultivate democratic values/virtues through constitutional morality. However, India faces numerous challenges to its democratic virtues today ranging from the curtailment of fundamental rights; lack of transparency at the supreme court, flouting of parliamentary norms; the unwarranted exercise of executive powers to the rise of hatred and right-wing nationalism. Amidst this, it becomes extremely important to reclaim the values enshrined in the Constitution and promote constitutional patriotism.
The establishment of constitutional democracy in postcolonial India was carried out inter alia through codification, argues Madhav Khosla in his seminal work India’s Founding Moment. Codification aimed to codify rules into a canonical text in order to create common meanings and explicate norms. The constitution was not merely guiding and forming political actions, it was conceptualized as a pedagogical tool. It was envisioned as a means to achieve political education which would culminate with the development of a new civic culture. However, India is far from achieving this growth of new civic culture and we constantly need to appeal to nationalism as our only option for promoting solidarity.
Quis Custodiet Ipsos Custodes?
When the Constitution aimed to achieve this new civic culture, it established institutions to bridge the gap between the current state and the future of Indian democracy. The Supreme Court of India and High Courts were placed at the helm, as the guardians of the Constitution. The question today, however, is who watches the watchmen? (Quis custodiet ipsos custodes) Lack of transparency at the Higher Judiciary corrodes this bridge today. Removing selective assignment of cases and delay in listing of cases involved personal liberty and democratic norms becomes extremely important considering that 45-70 per cent of the litigation involves the government. It would not be an exaggeration to say that by resisting transparency in its functioning, the judiciary has evaded its accountability to the people of India. The problems at the courts extend to judicial appointment controversies, rejection of Right to Information applications, allegations against sitting judges not being investigated impartially et cetera.
Bail applications and habeas corpus petitions are not being treated through a uniform frame of reference by the higher courts. Earlier in November, heard mammoth pleadings in a dash while refused to even entertain certain pleas. Habeas Corpus petitions from Jammu and Kashmir were not decided in time. Writing for the Bloomberg Quint, Abhinav Chandrachud remarked that – “If justice delayed is justice denied, then a habeas corpus petition adjourned is a habeas corpus petition decided in favour of the government. By adjourning habeas corpus petitions today and failing to deliver judgment in time, the Supreme Court is exposing itself to the judgment of history.”
Furthermore, the court is constantly failing to take cognizance of matters which are of utmost importance. For instance, the migrant workers’ crisis during March 2020. The pendency of electoral bonds (these bonds allow corporates & foreign powers to interefere with political parties) case for more than 2 and a half years. Based on such pro-government stands, Anuj Bhuwania observed that the Supreme Court is a ‘potent ally to the authoritarian populism and suffers from vices of judicial populism’.
The Lost Parliament
Traditionally, a parliamentary form of government is where the legislative proposals are brought before a democratically elected parliament in form of bills, the parliament then conducts debates/discussion/question over it and when it is approved by both the houses and given assent by the President it becomes a law. The sound of this utopian idea is certainly melodious in principle unless the state of affairs matches India in practice. This idea is compromised by the concept of Ordinances under Articles 123 and 213, through which the President and Governor respectively have the power to promulgate ordinances having the same effect and force as parliamentary legislation. One might be impressed with this concept during times like COVID-19. Indeed, ordinances become useful at such times. However, these are now used to bypass the legislature. Professor K.T.Shah argued in the Constituent Assembly (¶8.89.59) –
“I particularly wish to draw attention to this aspect that any power the Head of the State or the Chief Executive has should be of an executive character. If any other powers are proposed to be put in under this article, it should be clearly understood that they are extraordinary; that is to say, they are not to be employed in normal times, in ordinary circumstances…..the law making powers of the President are any but extraordinary powers.” (emphasis supplied)
Irrespective of the purpose, nature and character of the power, ordinances are promulgated without the existence of extraordinary circumstances and since the scope of judicial review on President’s/Governor’s subjective satisfaction is minimal, the abuse of power becomes easier. Writing for Law and Other Things, I have argued how the Uttar Pradesh Temporary Exemption from Certain Labour Laws Ordinance, 2020 was ultra-vires the Constitution on this count. Apart from UP, Madhya Pradesh also suspended or ‘relaxed’ labour laws in May-June 2020. Few states did so through executive notifications. Recently, the UP cabinet passed an Ordinance on anti-conversion law whereas, Kerala promulgated Kerala Police (Amendment) Ordinance, 2020, the implementation of which is on stay.
Furthermore, apart from individual states, the record at the Union level is even more concerning. From 2014-2019 on average 10 ordinances were passed per year which increased from the average of 5 from 2009-2014. This is only the first prong of the problem. Since the ordinance must be approved by the Parliament within six weeks of reassembly, abuse of power can be minimized. Unfortunately, there are two issues here as well- firstly, the government at the centre passes it in whatever form it pleases to and secondly if there is a threat that it will be blocked in the Upper House, parliamentary rules are disregarded. For instance, passing of Farm Bills through voice vote.
Lawmaking involves drafting, readings in both houses, committee hearings and amendments. Through the process of discussion and deliberation, the bill is refined into law. In absence of such discussions, loopholes are bound to be present in legislations. To assume the legislation to be in perfect form and intentionally bypass the process is the government’s mistake of assuming its own infallibility. Today, the parliament is lost. India needs to find its Parliament.
What do we celebrate this Constitution Day? The failing guardians or the lost parliament or infringement of fundamental rights or the rise of hatred?
We celebrate the promise of the preamble of assuring the dignity of the individual which evidenced that unless dignity of the individual is assured, the nation cannot be united (Dr Ambedkar envisioned justice and dignity in the preamble in Kantian sense i.e. treating persons as ends in themselves). We celebrate the message of the preamble rooted in Ambedkarite philosophy that Indian civilization has struggled and fought for equality since time immemorial. We celebrate the adoption of liberal constitutional democracy, of which secularism, is an inherent part. Lastly, we celebrate a liberal constitution with an aim of promoting the common good.
In a conversation with Economics Law and Social Sciences Review, Prof. Aakash Singh Rathore observed that the reading of the preamble during protests is a re-appropriation of national symbols, they flip the terms of the engagement so that they, as protesters are showing that they’re living up to the spirit and values of our constitution and the foundation of the Republic, which by implication suggests that there is something deeply wrong with the government and administration.
Thus, we must remind ourselves that –
“Our Constitution matters because it works even for those who may not believe in it.”
Views are personal.
Image credits: The Wire.
ABOUT THE AUTHOR
Prakhar Raghuvanshi is currently pursuing law from National Law University Jodhpur and is a founding editor at ELS Review.