Is there a Threat to the Constitution?

On January 13, 2018, four Supreme Court of India justices ranked in seniority immediately after the CJI, addressed the media concerning problems within the Supreme Court. Among other things, they asserted that democracy was in danger. Quite naturally, this created a public furore, with articles and statements for and against what the judges had said and also about the propriety or otherwise of their airing matters internal to the apex judiciary.

One may note two important allegations from the four justices’ public statements, namely, interference by the executive in the functioning of the judiciary and consequent loss of independence of the judiciary, and corruption among some members of the judiciary. Predictably, this is a body blow to the credibility of our judiciary, especially coming from the apex level.

The credibility of and public trust in the constitutional executive and legislative at all levels, has been at a low since many years past. But public trust in the apex judiciary had survived, despite known cases of malpractice and corruption in the lower judiciary. Allegations of corruption in the higher judiciary have been aired by members of the legal fraternity, and also by Justice C.S. Karnan. But allegations of “bench-fixing†etc., coming from members of the Apex Court itself, are much more serious.

The CJI, speaking about the transfer of the Judge Loya death case to the Supreme Court, was reported in the media as having said that the Bench would take an objective view and that the media would never be muzzled. The fact that the CJI needed to mention objectivity is itself indication of a sense that judicial credibility was at a low. As far as muzzling of the media is concerned, one recalls that after Justice C.S. Karnan, who alleged “high corruption†among members of the higher judiciary, was tried for contempt of court by a seven-judge Constitutional Bench and sentenced to six months imprisonment in May 2017, the Bench directed the media not to report Justice Karnan’s statements.

The media, which informs the public with news and studied views, is already suffering under the burden concerning fake news and paid news, and in any case, almost all of the mainstream print and electronic media houses are under corporate ownership and control. Most of what we get as news and views is anything but objective. Thus, the pillars of the Constitution may today be viewed as pale and anaemic versions of the vision of its founding fathers.

Democracy, which the four justices believe is under threat, is one of the four defining characteristics of our Republic, the other three being sovereignty, secularism and socialism. More holistically, it would not be wrong to say that the Constitution itself is under threat because the secular and socialist characters of the Constitution are also under threat.

Although the words “secular†and “socialist†were added to the Preamble only in 1976, the character of the Constitution is ab initio secular and socialist, because “secular†is supported by the preambular liberty of thought, belief, expression, faith and worship, and “socialist†is confirmed at the very least by Article 38 of the Directive Principles of State Policy, according to which, “the State shall strive to promote the welfare of the people by securing and protecting as effectively as it may, a social order in which jusice, social, economic and political, shall inform all the institutions of national life†.

The ruling BJP-led NDA Government has already denied—although perhaps not explicitly—the validity of “secular†and “socialist†as constitutional characteristics, and there have been public pronouncements by senior BJP functionaries that the party will steer a change in the Constitution so as to transform India into a Hindu Rashtra.

As for sovereignty, it is an attribute which at the core, belongs to the individual biological person’s privacy and physical integrity and autonomy. [The term “biological person†is used to distinguish people from corporations which enjoy the legal fiction of personhood, and should have no part in the formation or sustenance of the Republic]. This individual sovereignty aggregated over the whole population plus territorial sovereignty amounts to the soverei-gnty of the Republic which is mentioned in the Preamble.

The Indian Nation

The Republic of India is the Indian nation as the synergistic sum of its People, its political-territorial spread and its Constitution. To the question “What kind of Republic?†, we point to the Prembular characteristics of “sovereign†, “secular†, “socialist†and “democratic†. All of these characteristics together guarantee to We the People, Justice (social, economic and political), Liberty (of thought, belief, expression, faith and worship), and Equality (of status and opportunity), and further enjoins upon us to promote the cause of Fraternity in the interest of individual dignity and national integrity.

These values of Justice, Liberty, Equality and Fraternity which shall “inform all the institutions of national life†can only be ensured through democratic processes. The democratic processes are essentially based upon the social, economic and political awareness of We the People, and upon participation in the democratic processes through representation (voting), informed debate and non-confrontational discussion. That is, through cogent dissent. However, since the UPA days and continuing even today, it is precisely dissent which is not merely unappreciated but actually targeted. With the erstwhile Congress-led UPA and the earlier and current BJP-led NDA, both being against dissent, it is difficult to not link their common aversion to the influence of corporate pressures on the economics-driven politics of today’s India.

Defining Years

There are several negatively defining landmark years in our history after independence. The more important ones, which have impacted adversely on the values of the Constitution, are:

1958. The Armed Forces (Special Powers) Act (AFSPA) was enacted in 1958 and imposed by the government (not by the Army) in the NEFA to control Naga forces which questioned India’s control. Even now, 60-years later, the AFSPA remains invoked, demonstrating continuing failure of governance. It was also invoked, though later, in Jammu and Kashmir, and remains invoked. The State and Central governments needing to call the army in aid to the civil power continuously over decades adequately demonstrates the political and administrative ineptitude, chicanery and corruption in successive governments.

1975. Indira Gandhi, as the PM, declared Internal Emergency in the country in June 1975. It lasted 21 months, during which PM Indira Gandhi ruled by decree, suspending elections and curbing civil liberties. This delivered a body blow to India’s democracy, with the legislatures and judiciary effectively emasculated.

1984. In May 1984, PM Indira Gandhi ordered the Army’s Operation Blue Star on the Golden temple at Amritsar to capture the Sikh separatist Jarnail Singh Bhindranwale. The damage to the Golden Temple caused heart-burning among the Sikh population, and on October 31, 1984, PM Indira Gandhi’s own personal guards—who happened to be Sikhs—assassinated her. This triggered off huge anti-Sikh riots all over the country, leaving an as-yet-unhealed wound on the democratic character of the Republic.

1991. PM P.V. Narasimha Rao’s Congress Government introduced the New Economic Policy to remedy the severe economic crisis caused by an adverse Balance of Payments situation. NEP-1991 irrevocably pushed India into the market-oriented globalised world through economic reforms of liberalisation and privatisation, which were corporate-friendly and neglected the poverty in India. The essentially socialist nature of the economy was ditched in favour of a capitalist model. The NEP-1991 marks the commencement of economic inequality within India, which grew such that today, one per cent of India’s population owns 73 per cent of the wealth. This gross inequality directly violates the spirit of Article 38 of the Constitution as well as the preambular guarantee of equality of status and opportunity.

1992. On December 6, 1992, Hindu kar sevaks demolished the 16th Century Babri mosque in Ayodhya (in Uttar Pradesh), after a 1,50,000-strong political rally at the site went out of control. One version has it that the kar sevaks were actually exhorted to demolish the mosque. The aftermath of this was outraged Muslims going on a rampage, resulting in large-scale, nationwide, weeks-long communal violence between Hindus and Muslims involving burning and looting homes, shops and places of worship with many rapes and deaths. All this was outright violation of constitutional values of liberty and fraternity, not to mention democracy.

2002. Beginning with the burning of a train at Godhra railway station on February 27, in which 58 Hindu kar sevaks returning from Ayodhya were killed, the violence between Hindus and Muslims rapidly escalated, with alleged complicity of the State Government. Over a month of mayhem, according to official figures, the riots ended with 1044 dead, 223 missing, and 2500 injured. Of the dead, 790 were Muslims and 254 Hindus. The 1992 Hindu-Muslim tensions were irreversibly aggravated, violating all constitutional values.

This “list†is by no means comprehensive. There are surely more such defining years, but the foregoing should suffice to demonstrate that there has been mis-governance, mal-governance and non-governance at the Centre and in the States over the decades, all in violation of the constitutional oath taken by the People’s elected representatives. Of course, there have been some positives like enactment of the Panchayats (Extension to Scheduled Areas) Act of 1996, the RTI Act 2005, and the NREG Act 2005, but these are effectively hobbled by bureaucratic machi-nations, and flagrantly violated by the nexus between politicians, bureaucrats and corporates, to the detriment especially of poor Adivasis and Dalits.

The Threats to the Constitution

At present, it may be said that there are six credible threats to the Constitution. The threats manifest in different ways but all adversely affect the integrity of the Republic.

Growing strength of neo-liberal economic and political forces. The Congress-led NEP-1991 placed India firmly on the capitalist path, with subservience to the dictates of the IMF, World Bank and GATT (later the WTO). This impinged steadily on India’s economic and political sovereignty, and this continues even today. The “mantra†of this force is development by economic (GDP) growth through industrialisation and mega-projects. This is inevitably accompanied by mass-displacement of people and rape of the environment. Here, the political power of democratically elected people’s representatives is in nexus with the big money of corporate power. This is a direct assault on democracy.

Controlling the population. Henry Kissinger had famously said that if you want to control the people, you must control their food. The IPR on life forms brought the genetic modification (GM) technology to India, along with agricultural and economic control over seeds. The big GM corporates had direct access to the highest in the land and introduced GM cotton (Bt-cotton) and clandestinely, other GM crops. This has affected farmers adversely, besides posing a threat to the people’s long-term health.

Control over people includes government’s capability of 24x7 untargetted surveillance on the people. This has been made possible by IT-enabled Aadhaar linked to various aspects of the people’s day-to-day lives. The surveillance through databases is made possible by the Central Monitoring System (CMS), the set-up called NATGRID, and other intelligence organisations which are not accountable to Parliament.

The proliferation of “godmen†needs to be viewed with caution. Some of these “godmen†use their imposing personalities, along with IT tools of social media, to influence their very large, gullible followings into unquestioning obedience. This can be at odds with the individual’s liberty of thought, belief, expression, faith and worship, and pre-empt questioning and dissent in public life, which is at the core of democracy.

Suppressing peaceful dissent. Governments of all political hues at the Centre and in the States, are locked into the neo-liberal development model. When people peacefully dissent or protest, the superior might of the government (police) is used by the elected representatives to suppress the very people who voted them to power, by beating or shooting, by arresting and imprisoning, by foisting false criminal charges, or by using draconian laws.

SLAPP (strategic litigation against people’s protest) is also used to silence individuals or groups which are inconveniently vocal. Eliminating such people in “encounters†is also one method used. In more recent times, social media trolling and mob power are tools of suppressing peaceful dissent.

Controlling the media. Several electronic media channels are owned by powerful politicians, and are used to project their political agendas. This also applies, although somewhat differently, to the print media, which is owned by big corporates in nexus with leading politicians. Thus the mainstream media often feeds the people with news and views with a strong bias. This is possible because of poor literacy and education levels and/or low social, economic and political awareness due to compulsions of caste, custom, religion, language or region.

Fortunately, the so-called alternate media, which consists of small, struggling print journals and crowd-funded internet journals, is able to provide the “balance†, but here again, big money has created and funded some internet journals which are designed to counteract the alternate media and further their own agenda.

Also, there are reported moves afoot of government taking control of the internet itself, allegedly in nexus with corporate power, to control the alternate media.

Destroying political Opposition in legislatures. Legislatures can serve the people only if there is dissent, discussion and debate in the State and Central legislatures. However, as happened in the past with the Congress party and at present with the BJP, the ruling party has an overwhelming majority. This has also happened in several States with regional parties. Such a ruling party can ram through legislations which will give them more power or lessen the power of the Opposition. So far, only the decency of parliamentary discourse and procedures has prevented large-scale misuse of such political power.

However, very recently, the ruling BJP has passed legislations in the Lok Sabha as “money bills†, to avoid their being tabled in the Rajya Sabha. Such actions are part of killing off the political opposition.

Another method is to use the nexus with corporates to receive donations towards political activities including election campaigns. The creation of Electoral Bonds, and legislating that donations to political parties can be anonymous and without upper limit, gives the ruling BJP extremely powerful leverage to decimate the political Opposition, and assume total political control. The Wire reports that the BJP alone received 89 per cent of the total corporate donations to political parties via electoral trusts in 2016-17.

The tools of surveillance used on political opponents will surely assist in destroying democracy.

Changing the basic character of the Constitution. With overwhelming majority in both Central legislatures, the BJP’s agenda of changing the Constitution to create a Hindu Rashtra, will become possible. Since the Supreme Court has ruled that the basic nature of the Constitution cannot be tampered with, the ruling party may form a Constituent Assembly to draft a new Constitution. This will be “debated†and passed by brute force in the Lok Sabha and Rajya Sabha, receive the consent of the President of India, and supercede the Constitution of January 26, 1950.

In the Islamic Republic of Iran, the Islamic Revolutionary Guard Corps (IRGC) is an ideological institution to safeguard the Islamic regime. It has the constitutional mandate to engage in economic and educational activities. Creating a similar mandate for the RSS in a new Constitution cannot be ruled out.

Such a new Constitution would be by today’s “We the People†, and perhaps even be technically and legally correct. However, it would be a travesty in terms of the values of democracy, justice, liberty, equality and fraternity, which our founding fathers built into the January 26, 1950 Constitution of India.

Windows of Political Opportunity

One wonders whether the four judges had these threats to the Constitution in mind when they spoke out their fears regarding democracy.

The non-BJP (non-NDA) political parties are “united†in their aim of pushing the BJP out of power in the 2019 general elections. But they are hopelessly divided by the larger-than-life egos of their leaders, their regional focus and lack of national stature and perhaps also lack of understanding, the still-stinking stigma of corruption, and deficit of political integrity. The Left parties are a divided house due to ideological rigidity and more talk than action with and among the people. The Opposition’s performance in several upcoming State elections will be closely watched.

Whether defeating the BJP is at all feasible is a million dollar question, but recent political events indicate that the BJP’s juggernaut under PM Modi’s strong leadership is not unstoppable.

The threats to the Constitution of India have caused a resurgence of “constitutional nationalism†to counter the BJP’s majoritarian nationalism, although it may be too little too late. 2019 promises to be a defining year, though its nature is as yet in the womb of time.

Major General S.G. Vombatkere, VSM, retired as Additional DG Discipline and Vigilance in the Army HQ AG’s Branch. His area of interest is strategic and development-related issues. He is a member of NAPM and PUCL.