Our Constitution: The struggle for our soul!
The current BJP/RSS combine, including some of their ministers have gone on record saying, they will be changing the Constitution. On Friday 20 November the hashtag #HinduRashtra (with the equivalent in Hindi) was trending on twitter.
Medha Patkar is a woman of indomitable spirit! She is a person who has sacrificed a career in order to spend her life, accompanying the Adivasis and other vulnerable and excluded groups, particularly those who have been displaced by mega-projects. On Monday 23 November, addressing a webinar ‘Celebrating the Constitution of India’ she was at her fiery best. The webinar organised under the aegis of the ‘FORUM of Religious for Justice and Peace’ had over 250 participants. Medha unequivocally asserted, “we as citizens of India need to fight today to save the Constitution because the very persons who are elected and take an oath to safeguard the Constitution are those who are guilty of violating it!” She highlighted the fact that some of the key articles were being violated including the Right to life, livelihood and liberty (Art. 21), the Directive Principles of State Policy (particularly Art. 39 & Art. 43) and Art. 243 which details the powers and responsibilities of local bodies. For Medha, the only way to save the Constitution is for the citizens of the country to come out on the streets and to be visible and vocal on behalf of the poor and the marginalised and for the future of India!
One necessarily has to look back: on 25 November, 1949, in a passionate speech to the Constituent Assembly, the visionary 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 2020’ would be like and of how these three aspects could not only destroy all that was sacred in the Constitution, but could also mean the dismantling of the democratic framework which a new surgent India was just born into and had committed herself to preserving.
In that famous speech 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 enable 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”.
On the following day, 26 November 1949, the Constituent Assembly adopted the Constitution of India – which is regarded as one of the most forward-looking and all-embracing ones in the world, thanks to the brilliant, bias-free and diverse women and men who comprised the Constituent Assembly. The Constitution besides being sacrosanct to every citizen of the country is the 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 being a ‘sovereign socialist secular democratic republic’ spells out the vision and the intrinsic character of the Constitution.
In these past few years however, the nation has witnessed, several efforts to not merely to tamper with the Constitution but to negate its essence and even to destroy some of its key dimensions. The current BJP/RSS combine, including some of their ministers have gone on record saying, they will be changing the Constitution. On Friday 20 November the hashtag #HinduRashtra (with the equivalent in Hindi) was trending on twitter with clear demands including bringing in a pan-India ‘anti-conversion’ law. There are constant statements for the establishment of a ‘Hindu State’ by 2025 (the centenary of the RSS); the annihilation of the minorities particularly the Muslims and Christians. There is talk to abolish the words ‘socialist’ and ‘secular’ from the Constitution; to have a ‘Common Civil Code’ and that the rights of the minorities guaranteed in the Constitution should be scrapped immediately!
On 24 November, the UP Government passed ‘The Uttar Pradesh Unlawful Religious Conversion Prohibition Ordinance (2020)’ which says “religious conversions that use falsehood, force or an incentive, or take place solely for the purpose of marriage will be declared a crime”. This is blatantly communal ordinance which is intended to address ‘Love Jihad’ pejorative term used by right-wing groups (and lapped up by ‘godified’ media) to target relationships between Muslim men and Hindu women, which, they say, is a ruse to forcibly convert the women. This ordinance is patently violative of Articles 21 and 25 of the Indian Constitution. Will the Supreme Court do a Suo Motu on this Ordinance or on the Cow Cabinet of Madhya Pradesh which goes against the secular ethos of the country?
The Apex Court has also not yet dealt with the much-needed alacrity, objectivity and judicial on the constitutional validity of the draconian ‘Unlawful Activities (Prevention) Act - UAPA 2019 (Amendment Act)’. which infringes on the fundamental rights of citizens. The amendments allow the Centre to designate individuals as terrorists and to seize their properties; they are violative of the of the right to equality (Article 14), free speech (Article 19) and life (Article 21) of the Constitution.Fr Stan Swamy and fifteen others the Supreme who are ‘allegedly’ involved in the Bhima-Koregaon conspiracy case are in jail- some of them languishing for more than two years now. Besides these, there are several others imprisoned under the UAPA and also charged and arrested on the archaic ‘sedition’ law and even on ‘contempt of court’
One sees it happening with frightening regularity, the manner in which many citizens all over the country ,who have stood up for the Constitution and for the rights of the voiceless and the exploited, are harassed and hounded( in direct and subtle ways); fabricated cases foisted on them; charge-sheeted and arrested with bail applications denied to them on flimsy grounds; some are beaten up and even killed. These include human rights activists and academics; rationalists and media professionals (like Siddique Kappan who was on his way to investigate the Hathras case and Patricia Mukhim of Shillong); students and professors from the JNU, AMU, Jamia and other prestigious institutions; anti-CAA protestors and reputed organisations well-known for their objectivity and authenticity, like Amnesty India; lawyers, former Government officials (like Sanjiv Bhatt) and others from civil society. The list is endless! Their only apparent ‘crime’ is that ,on behalf of the exploited and the excluded, the marginalised and the minorities and for the sake of truth and justice, they have dared take on a fascist regime(with a sham of being a ‘democracy’) and in doing so, they also have to take on a corrupt, communal and prejudiced system which includes powerful vested interests.
Fr Stan Swamy suffers from Parkinson’s. On 7 November, in a written submission his lawyers of moved the Special Court saying in Swamy’s words, “I cannot hold a glass as my hands are unsteady due to Parkinson’s and seeking permission that Swamy be allowed to use the sipper glass which he was using before his imprisonment. In a response that defies human compassion and logic, the National Investigation Agency (NIA) sought twenty days to respond to Fr. Stan’s plea; and the Special Court in a move which contradicts the very notion of jurisprudence, has fixed the next hearing for 26 November (which ironically is ‘Constitution Day’). Could the court have granted Fr Stan’s plea? Of course, it could have on multiple reasons. Earlier, Fr. Stan’s application for health grounds was also rejected.
Then there is the celebrity case of Arnab Goswami: the blue-eyed boy of the ruling Bharatiya Janata Party (BJP), their ilk in the Sangh Parivar and their crony capitalist friends. Arnab is the editor-in-chief of Republic Media Network (a BJP channel) and the self-proclaimed ‘don’ of Indian news television; his core competency seems to be spewing falsehood, hate and divisiveness against the minorities and all those who take a stand against the ruling regime. Towards the end of October, he was arrested in a suicide abetment case; his arrest did smack of some kind of political vendetta; in some ways, it could have been challenged on its own merits!
What jolted millions of concerned citizens in the country, was the manner the members of the BJP including high profile ministers came to the ‘rescue’ of Goswami! They tweeted furiously, spoke openly to the media and came out with statements in support of him. Their contention was that it was an assault to ‘freedom of speech and expression’ – which was a falsehood since he was arrested in a ‘suicide abetment case. Goswami should have been booked long ago for abusing freedom of speech and because of his public vitriol also creating enmity between different communities. What pained several concerned citizens however was the alacrity and the extremely selective manner with which the Apex Court responded to Goswami’s application and the ‘justification’ in the accompanying order whilst granting him interim bail in record time!
In the order Justice DY Chandrachud correctly described the responsibility of the Apex Court saying, “forget Arnab Goswami for a moment, we are a constitutional court… If we as a constitutional court do not lay down law and protect personal liberty, then who will?” No one can ever contradict this profound statement. The irony of it is, does this statement apply to the thousands of other citizens (like Fr Stan Swamy and the others imprisoned in the Bhima -Koregaon conspiracy case, the anti-CAA protestors and others arrested under the UAPA) whose personal liberty is denied? Is Goswami the only citizen in India whose ‘personal liberty’ is denied? The statement reeks of selectivity. Further Justice Chandrachud added that, “If we don’t interfere in this case today, we will walk on a path of destruction” and that a clear message must be sent to high courts. He was indeed right on this point too! Perhaps Goswami’s arrest, both in timing and manner, was in nature of political vendetta; what however is glaringly evident is that Apex Court on several counts, has not held itself to its own high standard in several other cases of citizen vs state, ranging from habeas corpus petitions in Kashmir, to detentions made on flimsy charges of sedition to the slapping of draconian laws on journalists for no other reason than that they were doing their job.
Then there is the case of the comedian Kunal Kamra, who has the wit to joke on anyone. Post Goswami being given bail he tweeted some absolutely hilarious stuff which was retweeted by more than twenty thousand others. He is now charged with a ‘contempt of court’- which is ridiculous and outrageous! It is his constitutional right to practice this profession, and he seems to a better job of it than most judges do of theirs; he has the courage to hold a mirror to the powerful but with a dash of caustic humour. One wonders if his tweets can pose a threat to the democratic fabric of the country or for that matter add ‘any value’ to the bad name several of the judges have given themselves. As an independent citizen Kamras has the right to express his opinion and also the right to dissent on any judgement!
Strangely enough Goswami’s case was cited as a rarest of rare cases by the Supreme Court when it gave him interim bail under Article 32 ‘Right to Constitutional Remedies’ which states, that the Supreme Court “shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part”. The right guaranteed by this Article “shall not be suspended except as otherwise provided for by this Constitution”. The same Article was not allowed for journalist Siddique Kappan prompting many legal luminaires to say that the apex court uses one yardstick for the ‘high and the mighty’ and a different one for the ‘hoi-polloi’! Dr Ambedkar had earlier said, “If I was asked to name any particular article in this Constitution as the most important — an article without which this Constitution would be a nullity — I could not refer to any other article except this one. It is the very soul of the Constitution and the very heart of it.”
All these recent happening and pronouncements have naturally drawn a wave of protest and outrage from some of the leading citizens of the country. Senior advocate in the Madras High Court Sriram Panchu, puts it devastatingly in a brilliant article in the Hindu (16 November), " Power (of the Supreme Court) comes not from Articles 32 or 226 but from the public esteem and regard in which you are held, and that proceeds from the extent you act as our constitutional protector. In direct proportion. Sans that, there are only trappings”.
In that famous speech to the Constituent Assembly exactly seventy-one years ago, Dr Ambedkar, 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”.
We can no longer sit in our comfort zones and allow the values enshrined in our Constitution to be destroyed by these anti-Constitutional elements! Our Constitution is our only hope! Every citizen must then be concerned about what is happening to the Constitution of India. ‘Constitution Day’ is an appropriate one, to pledge that one needs to do all one can, to safeguard and promote the spirit and sanctity of our Constitution! Medha Patkar is certainly right: “We, the People of India”, must rise as one people and get out into the streets, in order to save our Constitution- the soul of India!
Fr Cedric Prakash SJ is a renowned human rights & peace activist/writer. He may be contacted at cedricprakash[at]gmail.com)