Let Us All Defend the Constitution Against the Times

Those that were cognisant in the mid-1970s would remember that the Indian Express group played a stellar role in pushing back against the unconscionable excesses of the Emergency imposed on the nation by the Indira Gandhi government, following the adverse ruling of the Allahabad high court against her alleged breach of electoral propriety.

If, therefore, this same daily chose the other day to publish a long excerpt from L.K. Advani’s book, bearing on the egregious attempts made then to subvert the supremacy of the constitution in favour of “despotic” executive rule, this must be because it sensed a kindred moment facing us now, although without formal notice, unlike in the case of the old Emergency.

As Advani notes, among the usurpations was the proposal to override the adjudication of an 11-member constitution bench of the Supreme Court in 1973 (the Kesavananda Bharati case), laying down the principle that a “basic structure” resided within the Constitution without which secular-constitutional democracy could not have any legitimacy worth its salt. The bench thus gave us historic protection against dictatorship by propounding the law that no authority, parliament included, could have the power to amend any provisions of that “basic structure”.

The Indian Express made it known to us that the author, Advani, is a member of the Margdarshak Mandal (Group of Guiding Worthies) of the ruling Bharatiya Janata Party.

One hopes of course that both Jagdeep Dhankar, the honourable Vice-President of India and chairman of the Rajya Sabha, both high constitutional offices, who has in recent days been unfettered in challenging the well-established remit of the judiciary in more than one arena, and Kiran Rijiju, law minister, equally outspoken in the matter, took time out to read the above excerpt.

Also read: What Is the Basic Structure of Jagdeep Dhankhar?

Nor is it to be thought conceivable that Narendra Modi’s and Amit Shah’s silence on the current fracas can be purely incidental.

News now comes that the honourable law minister has written a letter to the honourable Chief Justice of India asking that nominees of the government be included in the Collegium charged by law to make judicial appointments. This clearly is a move that further intensifies the looming crisis of constitutional governance. It remains to be seen how the judiciary will respond to the ask.

Israel

Now who doesn’t know that perhaps the most favoured nation in the world for the Indian right-wing is Israel.

Interestingly, Israelis have recently elected the most extreme right-wing combination of parties to power.

The new Netanyahu cabinet inevitably includes people who mean to expand Israeli settlements in the West Bank and those whose agenda it is to annexe the West Bank in toto in order to snuff out any Palestinian hopes of ever having a state of their own.

Netanyahu, the “strong” prime minister, has been undergoing a court trial on corruption charges (this too can happen in the militarist Israel, think). No surprise then that he wishes to find a way out of that most embarrassing conundrum.

So, you guessed it, the new Israeli cabinet is proposing legislation that would subordinate the Israeli supreme court to the Knesset (Israeli parliament), chiefly by taking over the power to appoint judges.

That may sound uncannily coincidental.

How else may the “strong” chief executive escape a likely comeuppance from the Israeli judiciary that could pronounce him guilty and send him to the slammer, would you believe it.

But, here is the point: even as we write, a hundred thousand Israeli citizens are now protesting on the streets of the capital, Tel Aviv, against this proposed usurpation of the powers of their Supreme Court.

Their slogans are focused: they want democracy, and they want the Supreme Court to remain supreme so that they have democracy.

Naturally, you would be wasting your time if you looked to watch for yourself this historic outpouring of the politically conscious citizens of Israel on any of India’s mainstream media channels. Go to Al Jazeera for a full blast of this inspiring people’s pushback against totalitarianism.

Like Nadav Lapid of The Kashmir Files fame, these protesting Israeli citizens have yet again disabused many of the notion that all Israelis do only as their generals say they must do.

It has been said famously that “power corrupts, and absolute power corrupts absolutely”.

The route to that eventuality among “democracies” of our time is defined by the executive keeping in place an electoral façade, using lucre, ill-gotten or not, canny manipulations of satraps, cautionary threat, outright purchase of elected legislators, false propaganda, even more false promises, the hobgoblin of “enemies” within and without, endangering “national security” to grab state power – and then proceed to co-opt and emasculate all those agencies of the state whose statutory/constitutional writ it is to preserve and protect the constitutional scheme and the rule of law without fear or favour.

Also read: VP Dhankhar, the Judiciary and the Clash of Legislative Will and Basic Structure of Constitution

This route, once taken, only further increases both the appetite and the clout to progress from nulling state agencies to breaching the principle of the separation of powers. And what makes that agenda possible is a brute majority in parliament and a media world that now scurries for its own mercenary survival against the overbearing and unchallenged power of the executive/corporate combine.

What makes the current moment different, though, is the near-total apathy and absence of any organised democratic resistance to the goings-on.

Indeed, we seem to have come to a pass when we as citizens have internalised the official dictum that any people’s protest, however peaceful and authorised by the “basic structure” of the constitution, is ipso facto unpatriotic and deserving of punishment.

Particularly noticeable is the fact that the number of Indians who now feel drawn to hit the streets on issues such as the current challenge to the Constitution must be miniscule.

Perhaps we Indians may learn from the example of our beloved Israelis, and wake up to the unabashedly voiced desire to curtail the highest judiciary, all the way from its system of judicial appointments, to its defence of the “basic structure” doctrine – one that includes a slew of “fundamental rights” which, if made negotiable, cannot but take the heart out of both the Constitution and the democracy it legitimates.

Tailpiece

Our rulers of today are those who have never ceased to laud Justice H.R. Khanna of old for his lone heroic stand against the capitulation of the judiciary in the “despotic” days of the old Emergency.

Well, memories truly can be short.

It is for the hoi polloi to renew them.

Badri Raina taught at Delhi University.

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