Recently the Chief Justice of India (CJI) lamented the lack of adequate space for the opposition in the nation’s political scenario. He also expressed concern over the lack of democratic discourse in Parliament. Though on the face of it the observations would appear to be political, they are essentially constitutional concerns.
The CJI’s is not a lone voice. Many citizens, including those who are supportive of the ruling dispensation at the Centre, are unhappy about the erosion of political morality. The very parliamentary system is based on adult franchise, and the will of the people is expressed through free and fair elections. It is substantially based on the multi-party system. Therefore, ‘purchasing’ elected members amounts to purchasing democracy. Poaching has become a fine art, where dishonesty which is indefensible is not only defended but even glorified with new hashtags. This poses serious credibility issues for the fundamental values of electoral democracy.
Constitutional offices are no longer conventional. Often, Governors play political rather than official or administrative roles, and they are rewarded for doing what they should not have done. They openly encourage and appreciate the turncoats and convey the message that capturing power by any means is commendable and that the end justifies the means. Often, power is also a commodity in democracy’s supermarket.
The Constitution is essentially a check against majoritarianism, for majoritarianism could turn tyrannical at any point in time. The Constitution demarcates clear boundaries between the government as an entity on the one hand and the political party running the government on the other. Pandit Nehru, on the eve of the formation of the first Cabinet, said that the Congress government would not be totally “a government of Congressmen.”
But subsequently, the nation witnessed rampant abuse of power by Congress. Misuse of Article 356 of the Constitution resulted in the dismantling of elected governments in the states. Nehru, too, had an egregious share in this. Indira Gandhi invoked Article 352 to proclaim National Emergency purely for political reasons and to safeguard power. The rest is history. The slogan “India is Indira and Indira is India” inflicted a deep wound on the Constitution.
The saga does not end there. As legal scholar Tarunabh Khaitan said, the present regime inflicted “a thousand cuts” on the nation’s Constitution. When a political party or its unquestionable leader identifies with the state, it essentially is a negation of democracy. When religion merges with the state, there is no secular Constitution at work. When the Union intrudes into the constitutionally guaranteed Centre-state division of power, there is no federal Constitution. When religious difference, instead of socio-economic inequality, is at the helm of political discourse, there is no constitutional fraternity. When the executive can create and perpetuate a committed judiciary, there is no longer an independent umpire to safeguard the system. As hate speeches and hate crimes are abetted by the state, “we, the people of India” vanishes. Let us face the reality: Many apprehend that we are turning into an electoral, ethnic autocracy.
This, in turn, poses questions over the future of the country’s Constitution. One cannot be euphoric about this. Constitutions are not eternal. Scholars Thomas Ginsburg, Zachary Elkins, and James Melton found in a study that the “national constitutions have lasted an average of only seventeen years since 1789” (The Lifespan of Written Constitutions, the University of Chicago, 2009). According to them, factors that destabilise the constitutions include military subjugation and merger or secession of the states and incidents like change in regime or leadership and institutional crises.
The Constitution is not a set of barren provisions or blunt prescriptions. It is founded upon the debates in the Constituent Assembly, which started prior to Independence, on December 9, 1946. The Assembly approved the Constitution on November 26, 1949, at the end of massive deliberations reflecting multiple and even conflicting opinions. The beauty and richness of India’s basic law lies in its foundational discursive character. It was not a mechanical adoption of the Government of India Act, 1935. The Constitution is a document of compassion and understanding. It is the negation of hate in black and white. It is a unifying force, not a divisive weapon. It is a “living tree”. Deviating from the originalist view of the Constitution, the courts in India have adopted a “living tree” approach, meaning that its provisions are not subjected to textual reading but rather imaginative, pragmatic, and contextual interpretation.
Even in the past, when the nation was confronted with the excesses of power, it was the political metabolism facilitated by the Constitution and its institutions that maintained us as a democracy. It happened through the people. “The little man, walking into the little booth, with a little pencil, making a little cross on a little bit of paper”, as Winston Churchill put it, guarded the system and its foundational law against the mischiefs of power. Therefore, the Opposition matters. Right in the Constituent Assembly, members like Ramnarayan Singh from Bihar emphasised the political and constitutional role of the Opposition. The new normal in India’s resort politics negates the idea of electoral democracy with the Opposition as its integral part. This is an additional threat to the nation’s fundamental perspective. We cannot imagine our Constitution as an election manifesto as has happened elsewhere.
Lawyer, Supreme Court of India