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Home > 2023 > Our Times, Our Challenges and Our Options | Ravi Kiran Jain

Mainstream, VOL 61 No 24, June 10, 2023

Our Times, Our Challenges and Our Options | Ravi Kiran Jain

Friday 9 June 2023, by Ravi Kiran Jain


The first years of Indian Independence were very fraught indeed. Jawaharlal Nehru became the prime minister serving for sixteen years. Nehru promoted parliamentary democracy, secularism, and science and technology during the 1950s. In January 1950 a new republican Constitution came into being. The Congress under Nehru’s leadership established a democratic constitution and oversaw a series of mostly fair elections. Another great gift it gave to the people of India was a positive ideology of Hope. The Congress of the 1950s and the1960s is best regarded as the school of democracy. During this period Indian people learnt to vote and speak their minds freely. They learnt also to craft and entrust independent, impersonal, rule-bound institutions such as the judiciary, the press and (not the least) the Election Commission. Thus, through the 1950s and 1960s, the specific contours of democracy and national unity were intensely debated in all parts of the country. Nehru’s Congress party won successive general elections from 1952 to 1962. Lal Bahadur Shastri became the prime minister after the death of Nehru in 1964 and on his death in January 1966 Indira Gandhi became the prime minister. The 1967 general elections, which were held under the prime minister ship of Indira Gandhi, cut the Congress’s majority in the Lok Sabha to twenty five, it lost 264 seats in state assemblies and its majority in 8 states.

Till 1967 the elections of the Parliament and all the State Assemblies used to be held simultaneously and much money was not required to contest election. Politics was an instrument of service. The elections used to be contested on ideologies of political parties. In 1967 elections Congress suffered reverses as a result of anti-Congress wave. It started becoming apparent that in the next elections, which were due in 1972, the Congress Party was bound to lose power in the Centre and many states.

In 1969, Indira Gandhi split the Indian National Congress into two: the one led by Indira Gandhi came to be known as Congress (I), and the other which comprised the then stalwarts in the Congress, came to be known as Congress (O). In 1977, the Congress (O) merged into the Janata Party and thereafter ceased to exist.

In 1971, Indira Gandhi, politically shrewd as she was, was fully able to sense the impatience in the people about removal of poverty, gave a deceptive slogan of ‘garibi hatao’, delinked the parliamentary and the assembly elections, surprisingly, by preopening the same, which otherwise were due in 1972. She dumped huge amount of money in elections for her party candidates and secured thumping majority, giving severe blow to the process of political polarisation on ideological basis. She secured 352 seats in the Lok Sabha in these elections.

A series of events since 1971 that led finally to the destruction of the Babri Masjid in Ayodhya on the 6th of December 1992 demonstrate that both the major political parties-the Congress and BJP-have shown little regard for the rule of law and the country’s judicial institutions.

Both the said parties wanted judiciary to be weak and have been making attempts to make the Court obedient to their governments, both unbalanced the power equations among the three branches of the state. Both the parties also wanted to change the basic structure of the Constitution. Mrs. Gandhi’s government superseded the three senior most judges of the Supreme Court for their ruling in Kesavanand Bharati case, laying the basic structure doctrine.

During 1971-77 Mrs. Indira Gandhi ruled the country in an authoritarian way. The 23rd March 1977 is regarded as the day of India’s liberation from authoritarianism as on that date Mrs. Indira Gandhi had lifted the Emergency. In 1977 elections Mrs. Indira Gandhi suffered a crushing defeat and for the first time a non-Congress government of the Janata Party came into power. The Janata Party government could not survive on account of its internal contradictions and in 1979-80 mid-term elections of the Lok Sabha were held. In these elections Indira Gandhi secured majority votes.

The danger of authoritarianism reappeared with the success of Mrs. Gandhi in the post-Emergency elections of 1979-80. In 1984 Mrs. Indira Gandhi was assassinated. Thereafter, Rajiv Gandhi was sworn in as the next prime minister for only two months.

In 1984 elections, in which Rajiv Gandhi had a clean sweep, BJP could secure only 2 seats in the Lok Sabha.The Sangh Parivar started a campaign for the construction of a magnificent Ram Janam Bhoomi Temple at the site of the Babri Mosque and by 1985 built up a sizeable support in the Hindu community. In January 1986, locks were removed from the mosque and Ram bhakts were permitted to offer prayers to Ram Lala. It is said that the Prime Minister Rajiv Gandhi ordered the Chief Minister Veer Bahadur Singh to do so who got the district administration to ensure this. Thus, these parties, the BJP and the Congress, started pandering to communal Hindu sentiments. In 1988, Hindutva organizations led by the RSS organized a mass campaign for building a grand temple exactly where the Mosque stood. They claimed that the Mosque stood at the precise site where Lord Ram was born. By the time the fifth and the final suit was filed on 1.7.1989 and all the 5 suits were transferred to the High court to be tried by a Full Bench by order dated 10.7.89, the political climate had changed beyond recognition.

Union Home Minister Buta Singh signed an agreement with the VHP on the 17th August 1989, that bricks for constructing the temple would be allowed to be brought from all over the UP without hindrance and collected at plot No. 586 near the Mosque. This agreement was in violation of an order of the Allahabad High Court dated14th August that no construction activity could be taken at that spot.

Later, the VHP announced that ’kar sewa‘would be performed to lay the foundation stone. This was also a violation of the judgment given two days ago, prohibiting any such activity. This repeated defiance of the orders of the court did not weigh with the Prime Minister, Rajiv Gandhi, who inaugurated the campaign of the Congress party the next day from twin city of Faizabad, and announced that the objective of the Congress party was to establish Ram Rajya. Soon thereafter the BJP president Advani at Palampur, after the National Executive Meeting, announced that the inclusion of the construction of the temple in its Election Manifesto “would fetch votes” for it. It would thus appear that the two major political parties were in a race on this issue.

The race between the two was lost by Rajiv Gandhi and won by L.K. Advani. The next elections were to be held in 1989. The Congress could secure 197 seats only as compared to 404 seats in 1984, and the BJP got 85 seats as compared to only 2 seats in 1984. Thus a non-Congress government came into being in 1989.

The masculine, militaristic, ultra Hindu nationalism, which is being propagated by the BJP and the Sangh Pariwar, represents a far greater danger to the Indian democracy than the personal authoritarian rule which Mrs. Indira Gandhi were likely to impose on the country. The movement for the construction of a Sri Ram Temple by destroying the Masjid was clearly a movement for encouraging Hindus to humiliate Muslims. The main reason why the Babri Masjid was destroyed on the 6th December 1992 was that the Narasimha Rao government at the centre did not like to take any firm action against the so-called Kar Sewaks because it was reluctant to alienate Hindu votes.

Looking back, we find that the people of this country had an urge to participate in the political process. This was evident in the elections that took place till 1967, and then in 1977. Until this time, a common man could hope to get elected, because by that time electoral politics had not come in the vicious grip of casteism, communalization and criminalization. It was in 1989, when the 5th suit was filed and all the suits were transferred to the High Court that the poll politics came in the vicious grip of casteism communalization and criminalization.

The controversial judgment in the Ayodhya case by the Supreme Court came on the 9th November 2019. Now Home Minister Amit Shah has declared the construction of the temple would be completed by the 1st January 2024. That means in parliamentary elections they would use this as an achievement and claim that the grand Ram temple has been built due to their efforts. The BJP thus is still keeping the issue of Babri Masjid alive, but Congress is out of race.

The Constitution Bench which decided the Ayodhya case comprised of Chief Justice Ranjan Gogoi, Justice Bobde, Justice S. Abdul Nazeer, Justice Ashok Bhushan and Justice D.Y.Chandrachud. Chief Justice Ranjan Gogoi has been nominated as Rajya Sabha member, Justice S.Abdul Nazeer has been made a Governor within a month of his retirement and Justice Ashok Bhushan is currently the Chairperson of the National Company Law Appellate Tribunal. These are post-retrial benefits given to the judges deciding the case in favour of the government.

The judgment in the NJAC case came on October 16, 2015. Unfortunately, till N.V.Ramanna took over as the Chief justice of India, at least 4 of his predecessors were seen as standing with the government, even when the fundamental rights and civil liberties of the people were under attack and dissent was being suppressed under the UAPA and the draconian law of sedition. It was only after Justice Ramanna took charge that some faith in the judiciary was restored. During his tenure, Supreme Court agreed to revisit the sedition law and urged the government to refrain from lodging FIRs under the said laws. Justice U.U. Lalit, who had a tenure of less than 3 months, made sincere efforts to bring about the much-needed reforms in the listing of cases with a view to ensuring that important cases no longer remained on the back burner and were heard expeditiously. The present Chief justice of India is known for his commitment to the Fundamental Rights and civil liberties of the people. The government had no problems with the Supreme Court so long as it was docile and was by and large toeing its lines. But now fearing a more assertive court, the Union Minister of Law and Justice and the Vice President find the collegium system of appointment of judges to the High Courts and Supreme Court opaque and not accountable. The Law Minister, Kiran Rijiju, has also questioned the court’s order putting the sedition laws in abeyance.

When the Modi government was formed in 2014, they announced that the appointment of judges by the collegium should go. With this objective, the NJAC Act 2014 was enacted. Its validity was challenged. The Supreme Court declared the NJAC Act and the consequential amendment to the Constitution as unconstitutional on the ground that it was against the judicial independence and thus contrary to the basic features of the Constitution. The Court did what it is ordained to do under the Constitution. Nothing more nothing less.

Most politicians, while in power, are allergic and intolerant to an independent judiciary. It requires a politician to rise to the level of a statesman and a visionary to understand how vital an independent judiciary is to the functioning of a constitutional democracy. Authoritarian regimes want that the judiciary should be executive-minded. Indira Gandhi also wanted to have a committed judiciary. ‘Committed’ here means committed to the executive. The re-emergence of Indira Gandhi after her authoritarian and personal rule, especially between 1972 to 1977, started after 1979-80 elections when Indira Gandhi defeated the Janata Party in the elections. Granville Austin in his book ’Working a Democratic Constitution’wrote “During January 1980 Justice Bhagwati wrote ‘Dear Indira ji’ letter to the Prime Minister congratulating her on her election and praised her ‘iron will…..uncanny insight and dynamic vision, great administrative capacity and…… heart which is identified with the misery of the poor and the weak’. The justice continued that: “ The judicial system in our country is in a state of utter collapse. We should have a fresh and uninhibited look at [it]… and consider what structural and jurisdictional changes are necessary. …….”

The unfinished task of having a ‘committed judiciary’ which Mrs. Gandhi wanted to accomplish during 1971-77 was completed on her re-emergence with the help of the judgment of a constitution bench of the Supreme Court headed by Justice Bhagwati in the S.P Gupta case. In that case, known as the First Judges case, the Supreme Court appeared virtually to surrender itself to executive power exercised through the President. According to the decision in the First Judge case, under the Constitution the prime responsibility for the appointment of judges was upon the executive, which meant the executive government and opinion of the executive government was to prevail over the views expressed by the Chief Justice of India. The position of the Chief Justice of India in the matter of appointment of judges was reduced to a nullity. ‘Consultation’ meant little more than passing on information and definitely did not imply consent. The S.P Gupta case judgment was delivered on the 31st December 1981 and it continued to hold the field for about 12 years, up to October 1993, when the judgment in the Second Judges case was given. Thanks to the Second Judges case, the Supreme Court, realising the great mistake committed in the First Judges case, virtually reversed the judgment in the case holding that the judiciary shall have supremacy in the matter of appointment of judges, and not the executive. The Third Judges case arose out of a reference made by the President under Article 143 (1) of the Constitution as it was thought that the decision in the Second Judges case created some complications. The questions posed by the President were answered by a unanimous opinion of 5 Judges of the Supreme Court. (Judgment delivered by Bharucha J). The ultimate effect of the Third Judges case at the end of the day was the substitution of a collegium of five judges instead of three, that is to say, the Chief Justice and the next 4 senior-most judges. With these judgments the Congress Party gave up the issue of appointment of judges and the power of the executive.

Now Vice President Jagdeep Dhankhar sparked a debate on the separation of powers between the executive and the judiciary. He criticised the Supreme Court for using the doctrine of basic structure to strike down the constitutional amendment that introduced the National Judicial Appointments Commission Act. On December 7, 2022, in his maiden speech in the Rajya Sabha, Dhankar called the striking down of the NJAC Act a “severe compromise” of parliamentary sovereignty and disregarded the “mandate of the people”. It is well-known that in the constitutional scheme of things in India, there is no such thing as a parliamentary sovereign’. If at all it is, it is the ‘constitutional sovereignty’, though we often talk of national sovereignty, which is correctly said. The law minister had also written to the Chief Justice of India seeking government representation in the collegium.

The law minister and the vice president questioned the judgment of the Supreme Court which came to be known as the Kesavanand Bharati case. The said judgment was delivered 50 years ago. In this judgment the court has held that while Parliament has the power to amend the Constitution, it does not have the power to amend its basic structure. It was and is held as one of the finest judgments delivered so far. The law minister and the vice president attacked the basic structure doctrine not only to challenge the NJAC case but for more sinister design. The BJP really wants to change the basic structure of the Constitution, The BJP, for example, is against the words ‘secular’ in the Preamble of the Constitution. Although this word was not in the Constitution, as it stood initially, it was inserted in the Preamble by the 42nd Constitutional Amendment Act. The BJP does not want that India should remain a secular country. They want that the word ‘secular’ to be omitted in the Preamble of the Constitution, facilitating the declaration of India as a Hindu state.

It is worthy to note here that Chief Justice Sikri and Justices Shelat, Grover, and Khanna had declared secularism as one of the basic features of the Constitution even before the Forty-second Amendment, by which the word ‘secular’ was inserted into the Preamble of the Constitution. That the ‘secular’ nature of the Constitution is one of its basic features has subsequently been emphasised in innumerable cases.

Subsequent to the Kesavananda Bharati case, the Supreme Court made occasional exploratory searches to identify the basic features of the Constitution. In the Kesavananda Bharti case itself, Chief Justice Sikri enumerated what he considered were some of the basic features of the Indian Constitution:

1) supremacy of the Constitution;
2) republican and democratic form of government;
3) secular character of the Constitution;
4) separation of powers between the legislature, the executive and the judiciary;
5) federal character of the Constitution.

Illustrating the statement that the basic structure of the Constitution could not be altered, Khanna J, said:

“It would not be competent under the garb of an amendment, for instance, to change the democratic government into dictatorship or hereditary monarchy nor would it be permissible to abolish the Lok Sabha and the Rajya Sabha. The secular character of the State according to which the State shall not discriminate against any citizen on the ground of religion cannot likewise be done away with.”

In State of Rajasthan v. Union of India, independence of the judiciary, judicial review, and separation of powers were held to be the basic features of the Constitution. This was reiterated in Subhash Sharma v Union of India, by a seven-judge Bench.

Now let us discuss about the present political scenario. The present political parties have no will or capability to think beyond the centralised system of governance. They are incapable to maintain the integrity of the Constitution and its secular character, and their calculated political actions towards weakening the key democratic institutions are ruinous.

I suggest a new civic movement must emerge with the aim of defending the Constitution and democratic institutions. Human rights defenders, activists and the people, who respect the Constitution should come to gather to fight to secure it.

A people’s movement should be developed on a non-party basis against the present government’s anti-constitutional policies, tactics, governance, and ultra-Hindu nationalism which is the main tool. And it can be done. Such endeavours have already started in the country. Bharat Jodo Abhiyan is one of them.

A large number of persons, who are in non-government organizations (NGOs), who believe in democracy and secularism, and who are determined that India must never turn into a theocratic or semi-democratic state, have joined the Bharat Jodo Abhiyan. A few such persons are:

Yogendra Yadav, Prashant Bhushan, Admiral Ram Das, Ram Puniyani, Medha Patkar, Amol Palekar, Irfan Engineer, Nikhil Ray, P.V. Rajagopal, Pooja Bhatt, Sunilam, Gauhar Raza, Shabnam Hashmi, Professor Anand Kumar, Kumar Prashant, Prof. Shekhar Pathak, Kavita Srivastava, Ajit Bhuian, Manoj Kumar Jha, Prahlad Tipania, Ashok Kumar Pandey, Rajeev Dhyani, Bhanwar Meghwanshi, Dr Subhash, Surendra Pal Singh, Ramchandra Rahi, T.M. Krishna, Roop Rekha Verma, S.P. Kumar, and Justice Kolse Patil.

It is timely now that we talk a bit about Rahul Gandhi, who has now generated some hopes and expectations for the better of the Indian democratic scenario and who is for long unleashing unrelenting attacks on the ultra-nationalism, crony capitalism, and who is delivering hammer-blows to the Indian government’s present fascistic policies, tactics and aims.

Rahul Gandhi was only 20 years of age when his father Rajiv Gandhi expired in 1991. He came in active politics sometime in 2004 when Atal Bihari Bajpayee was the Prime Minister of the NDA government. In the 2004 elections, nobody expected that NDA would not return to power. A significant political scenario emerged after the Lok Sabha elections of 2004. After years of sheer disgust and frustration with the system, which the Indian polity had remained plagued with, the unexpected poll results had revealed that the voters had finally delivered a hard blow to the high-profile politics, based on an emotive communal divide, which had literally dumped the basic issues into the dustbin of electoral politics.

Rahul Gandhi had just entered politics when his mother, Mrs Sonia Gandhi in 2004, delivered a master stroke, either guided by strategic reasons or out of a sense of sacrifice, when she refused to become Prime Minister of India and instead nominated Dr Manmohan Singh as the prime minister. During the prime ministership of Dr Manmohan Singh, there were large-scale violations of human rights. In 2009 drastic amendments to the UAPA were made under which human rights activists remained in jails for a long period of time. Rahul Gandhi did not join the government after the Lok Sabha elections of 2004 and 2009.

In the 2014 and 2019 elections, the Modi government remained in power. During this period, there was virtually no opposition in the Lok Sabha. A group of senior Congress leaders, known as G-23, made the Congress further weak. The situation made Rahul Gandhi and his mother as the main leaders of the Congress. Unlike his father Rajiv Gandhi, who was sworn in as the Prime Minister on the death of his mother Smt. Indira Gandhi for a short period of a month. In the elections that followed, he had a clean sweep in the elections after a month. However, Rahul Gandhi had to compulsorily remain in politics and he consistently kept raising people’s issues as the Leader of the Opposition. For the 2024 elections, it became necessary for him to have Bharat Jodo Yatra. The aim of this yatra was to unite India and come together to strengthen our nation. The yatra began on the 7th of September 2022, from Kanyakumari to Jammu and Kashmir spanning a distance of 4000 kms over the course of about 136 days. The yatra received an overwhelming response: lakhs of people have joined the yatra to raise their voice against the economic, political, social issues that are afflicting our nation today. The yatra sought to address rampant unemployment and inflation, politics of hate and division, and over centralisation of our political system. People from all walks of life came together to be a part of this historical movement. After Bharat Jodo Yatra a Bharat Jodo Abhiyan has been launched on the 6th February 2023 in which about 600 people participated came from around the whole country. The draft resolution for the National Convention of Bharat Jodo Abhiyan says:

“Today We the People of India embark upon a mission, a seven-year-long journey, to defend the future of India. Today we launch a movement, the Bharat Jodo Abhiyan, that can reclaim our republic, renew our Constitutional values, rescue our democratic institutions and rekindle the spirit of our freedom struggle. A movement of resistance to the unfolding assault on our Constitution, our nationalism, our civilization – indeed, the very idea of India. A movement of national reconstruction that extends its horizon from helping political change to fostering socio-cultural change and indeed combating climate change, that offers a credible hope to secure the constitutional promise of justice, liberty, equality and fraternity for every Indian.

We are a group of citizens who have worked with various peoples movements, voluntary organisations and political formations. Many of us have participated in the historic Bharat Jodo Yatra from Kanyakumari to Srinagar, from despondency to optimism, from keeping quiet to expressing ourselves, from finger-pointing to taking personal responsibility and from apolitical stances to explicit assertion of our political role as citizens. The unprecedented success of this yatra places an extraordinary responsibility on everyone who shared this journey with their body, mind or soul. We launch Bharat Jodo Abhiyan to fulfill this responsibility, to exercise our right to protect our hard won freedom and to discharge our sacred duty to defend our Constitution.”

It seems to me, nay, my belief is, that the menace that is hovering over our Constitution is very real and very serious, and ignoring the same would tantamount to ignoring the imminent dangerous changes that may be effected not long before in India’s civilisation and cultural fabric and firmament.

In these circumstances, the immediate role, and the response of, “WE, THE PEOPLE OF INDIA”, would decide at the end of the day whether we survive as a secular, federal, republican nation. Only our response to the situation would determine whether the gains and achievements that we earned through thousands of years of continual struggles and odyssey survive or are destroyed.

(Author: Ravi Kiran Jain is a Senior Advocate and National President of PUCL)

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