Saturday, December 3, 2022

Letter From The Editor

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India’s Republic Day is commemorated each year with pomp and circumstance and is associated increasingly with a jingoistic display of military muscle in order to impress the potentates—last year the President and First Lady of the US and this year France’s Francois Hollande—of the striking power of the world’s most populous democracy. Last year symbolized the growing bilateral ties between India and Uncle Sam, the world’s largest democracies. This year’s exercise, perhaps, is to demonstrate India’s solid support for Europe, especially France, following the Islamic State’s terror activities and the Paris mayhem.

All well and good. But the gaping hole in celebrating the occasion seems to widen with each successive year. This is the nation’s failure as a whole to introspect on where it is headed. Have we failed our democracy or has democracy failed us? Does the nation’s political system build the character of its people or does the national character build the political system?

One of America’s greatest intellectuals and a founding father of that nation’s constitution, Benjamin Franklin, tried to answer this question in the summer of 1787. As Jonathan Turley, professor of law at The George Washington University Law School, recaptures the event, a crowd had gathered around Independence Hall in Philadelphia then to learn what type of government their representatives had formed for the new nation. When Benjamin Franklin walked out of the Consti-tutional Convention, a lady who called herself Mrs Powel could wait no longer. “Franklin was one of the best known of the Framers working on the new US Constitution. Powel ran up to Franklin and asked, ‘Well, Doctor, what have we got, a republic or a monarchy?’ Franklin turned to her and said what were perhaps the most chilling words uttered by any Framer. He said, ‘A republic, Madam, if you can keep it,’” recounts Turley.

Franklin’s words were more than a boast, Turley reminds us. “They were a warning. The curious thing about a democratic system is that it contains the seeds of its own demise. Freedom is not something guaranteed by any parchment or promise. It is earned by each generation which must jealously protect it from threats, not only from outside, but from within a nation.”

Some 226 years after those fateful words were uttered, observes Turley, the true import of Franklin’s warning has become all too real for Americans. “The last 10 years has seen the rise of a security state of unprecedented size and the diminishment of privacy and core protections for citizens. Recently, a federal judge ruled that the massive NSA surveillance program was unconstitutional. US District Court Judge Richard Leon not only said that the collection of ‘metadata’ constitutes an unreasonable search or seizure, but that the Framers like Franklin would be ‘aghast’ at the very thought of it,” says Turley.

As France’s Hollande prepares to visit India, we should introspect on our nationhood—not just internal and external security which are givens but on what makes us even more powerful as a people—our ability to safeguard
our freedoms, our rights, our liberties and our dignity. These precepts are embodied in our constitution. But do we honor, obey and practice them?

Nehru supported the idea of independent legislators who could haul up ministers for misconduct, malfeasance and misfeasance.

Have Indians “kept” the republic bestowed on us by Nehru, Patel and Ambedkar? Is the administrative and political system that was shaped by and evolved from the Indian constitution so sacrosanct that it cannot be tweaked or altered if, unforeseen by the Founding Fathers, it has produced perverse consequences? Would the Foun-ding Fathers, were they alive today, have perhaps opted for some other system of governance in which basic rights and good governance are better preserved and more zealously safeguarded?

The French, after all, gave the world the slogan of “Liberty, Equality, Fraternity”. But even that nation is now on its fifth republican constitution. As an excerpt from Bhanu Dhamija’s new book, Why India Needs The Presidential System, in this issue of India Legal points out: “They adopted their current hybrid system in 1958 because, as (political scientist) Beyme says, ‘De Gaulle was realistic enough to see that in the current system he would have a considerably stronger position than he would have had in the presidential system.” The German constitution is only about 60 years old “and the nation is nowhere as large or diverse as India. The current Swiss constitution was adopted only recently, in 1999”.

NEW DELHI, JAN 26 (UNI):-President Pranab Mukherjee, U S President Barack Obama, Michelle Obama,Prime Minister Narendra leaving the venue after attending the Republic Day parade at Rajpath in New Delhi on Monday. UNI PHOTO-102u
President Pranab Mukherjee, U S President Barack Obama, Michelle Obama,Prime Minister Narendra leaving the venue after attending the Republic Day parade at Rajpath in New Delhi.

Why then are the Indian constitution and system of governance considered holy cows? Amend-ments are welcome because they often are convenient to political parties. But talk about an entirely new system and you’ll see that the ox of the entire political ruling class is gored. The system protects them and they protect the system. One good reason for not touching the current constitution and system is that it embodies fundamental rights, freedoms and the Rule of Law.

Nothing could be truer. No true Republican or Democrat would want these touched. Those seeking change argue that change is needed for the very reason that a growing illiberal state operating within a culture of impunity is playing fast and loose with these lofty principles. Notwithstanding party discipline, Nehru had actually supported the idea of independent legislators who were free to express themselves and haul up ministers and ministries for misconduct, malfeasance and misfeasance.

We need not report here the frauds perpetrated on our Republic by the abuse of the democratic system itself—scams, bureaucratic skullduggery, judicial improprieties, the abuse of the prison system, the criminal-police-politician-business nexus. They thrive in an Indian system which is for all purposes today an executive dictatorship which thrives and rests on an assertion of Executive Privilege (a Royalist concept) that combined the obeisance of an oligarchic sub-structure. What many reformers seek, therefore, is a systemic change which will promote rather than dilute the cause of individual freedoms and collective progress.

Actually, not too many years ago, even without the promulgation of a new constitution, we came within inches of losing whatever freedoms and fundamental rights we now enjoy. And this Republic Day, many of us should pay homage to Supreme Court judges who ruled so wisely in the case that saved Indian democracy. As Senior Advocate Arvind P Datar wrote in The Hindu several years ago: “Exactly forty years ago, on April 24, 1973, Chief Justice Sikri and 12 judges of the Supreme Court assembled to deliver the most important judgment in its history. The case of Kesavananda Bharati v State of Kerala had been heard for 68 days, the arguments commencing on October 31, 1972, and ending on March 23, 1973. The hard work and scholarship that had gone into the preparation of this case was breathtaking. Literally hundreds of cases had been cited and the then Attorney-General had made a comparative chart analysing the provisions of the Constitutions of 71 different countries!

In Solidarity : This year’s Republic Day chief guest French President Francois Hollande, during a memorial service in Paris.
In Solidarity : This year’s Republic Day chief guest French President Francois Hollande, during a memorial service in Paris.

“All this effort was to answer just one main question: was the power of Parliament to amend the Constitution unlimited? In other words, could Parliament alter, amend, abrogate any part of the Constitution even to the extent of taking away all fundamental rights?

“Article 368, on a plain reading, did not contain any limitation on the power of Parliament to amend any part of the Constitution. There was nothing that prevented Parliament from taking away a citizen’s right to freedom of speech or his religious freedom. But the repeated amendments made to the Constitution raised a doubt: was there any inherent or implied limitation on the amending power of Parliament?

“The 703-page judgment revealed a sharply divided court and, by a wafer-thin majority of 7:6, it was held that Parliament could amend any part of the Constitution so long as it did not alter or amend ‘the basic structure or essential features of the Constitution.’ This was the inherent and implied limitation on the amending power of Parliament. This basic structure doctrine, as future events showed, saved Indian democracy and Kesavananda Bharati will always occupy a hallowed place in our constitutional history.”

“The curious thing about a democratic system is that it contains the seeds of its own demise.” —Jonathan Turley, professor of law, The George Washington University Law School

Has India ever repaid its debt to these judges by ensuring that we use these freedoms to progress into a more liberal and fairer state? Perhaps not. Dhamija’s book posits that the concentration of powers in a select few is what is wrong at the core level, making the present parliamentary system non-participatory and virtually designed by oligarchs for oligarchs. He says: “The Indian system has failed because efficiency without effectiveness is no virtue, and responsibility without oversight is not possible. Without a genuine separation of institutions and powers it is impossible to achieve these qualities in governance.”

He makes a book-long argument for a presidential system of government to replace the current dispensation. Whether that is an alternative is another matter. What is important, though, is that on Republic Day, instead of only watching a parade of armor, all concerned Indians should cogitate on a seminal matter: how to make governance more accountable and ensure better safeguards to prevent the system from succumbing to any further oligarchic control.

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