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Mainstream, VOL LVII No 6 New Delhi January 26, 2019 - Republic Day Special

Crossing the Constitutional Line on the Eve of Republic Day

Monday 28 January 2019, by Badri Raina

Until a week or so ago, the chief fare on the nationalist menu was clearly the Ram Mandir. Till the Kumbh took its place.

A frenetic onslaught on the nation’s attention was in evidence, as diverse recipes for a quick execution of the building of the temple were unleashed by the many outlets of the Hindutva Parivar.

One stalwart of the parivar went about feverishly recommending on television channels that since the Narasimha Rao Government had already acquired the land at the disputed site in Ayodhya, all that the Modi Government needed to do was to commence construction of the temple.

Others sought to persuade the government of the day to bring in an ordinance to side-step the Court proceedings on the issue.

It is to the Prime Ministers’ credit that, at the risk of annoying his ideological mentors, he took the sagacious and constitutionally correct position that nothing ought to be done till such time as the matter was not adjudicated by the Supreme Court.

Regrettably, however, the Prime Minister thought it fit to dump that stance towards the institutional life of the republic as authorised by the constitutional scheme when he spoke on the Sabarimala issue in Kerala.

Mr Modi thundered that only one political party, namely, his party, was unequivocally on the side of the “devotees” defying the Supreme Court order to allow women of all ages entry into the shrine.

Now, what is the law-abiding citizen of the republic to make of this? Is the Supreme Court to be obeyed only when its orders favour the ideological predilections of any given party in power? What if the deliberations of the Court on the “title suite” before it in the disputed site issue were to favour the position of the Sunni Waqf Board? Would the deference shown by the Prime Minister to its deliberations still hold?

The anguish here is not merely a speculative one. Not a day passes when the state does not enjoin upon its citizens to live their private and public lives in accordance with the majesty of the law; in all matters, “let the law take its course” comes indeed to occupy a central place in official discourse. And quite rightly. But how is the citizen to feel inspired to do so when she/he hears her/his Prime Minister disregard a constitutional order of the highest Court in the land as he did in his speech at Kerala on the question of entry into the Sabarimala shrine?

Even more crucially, how does such a stance square with the authority of the Chief Executive of the republic whose validation, after all, comes from his solemn oath to uphold the constitutional scheme rather than from any majoritarian public predilection outside the regime of law?

AT a time when one state institution after another keeps coming into the ambit of controversy, where else but to the Prime Minister does a law-abiding citizen go for consolation that the constitutional regime will remain sovereign and continue to be the guarantee of law-abiding citizenship, regardless of undemocratic, strong-arm, majoritarian campaigns to appropriate and displace the constitutionally validated state?

There is need here to understand that India is a parliamentary democracy rather than a direct democracy; not that any direct democracies exist in the world.

The dangers of ignoring this distinction are nowhere better underscored than in what has been happening in Britain recently. Having held a referendum on remaining in or leaving the European Union—all in a funky haste—that mother of all democracies is now saddled with a desperate constitutional issue: does that referendum hold or does the decision belong to the British Parliament? How indeed may they square that round hole? Should the sovereignty of Parliament now be again superceded by another referendum? And so forth with all kinds of decisions.

The recent tendency in our own republic to place unauthorised mob opinion, however unauthorised, over the constitutional mechanisms of Indian parliamentary democracy can well lead to an anarchy in which state institutions either become handmaidens or open targets of mob frenzy.

Our public leaders need to recognise that, however large or enthused the mass gatherings they address on any issue, they must resist the temptation to take such gatherings and their zestful endorsement as authorisations that supercede the Constitution and rule of law.

Already a respected name in the corridors of the world’s democracies, the Indian citizen looks to Mr Modi to show the way.

Imagine how pathbreaking it would have been had Mr Modi applauded the Kerala Government for seeking to uphold the rule of law with respect to the Sabarimala shrine—something that, conceivably, Nehru or Lal Bahadur Shastri, or Sardar Patel would have done—instead of accusing the “Communists” of subverting “culture”.

After all, in this country, untouchability, other forms of caste-based apartheid and violence, female circumcision, instant triple talaaq, child marriage, atrocities on widows, sati, even tantric human sacrifice have been aspects of “culture”. It is incumbent, therefore on an enlightened democracy governed by the principles of law, human equality and dignity to think which aspects of culture may be worthwhile or not— a process that has willy nilly been underway in history regardless of any attempts to perpetuate such culture.

We look up to the custodians of law and democratic institutions to constantly further that rational and egalitarian revolution.

As the nation prepares to celebrate Republic Day, it must seem particularly piquant that the Prime Minister’s speech in Kerala should have shown a rather blatant disregard for constitutional injunctions to which he owes his office.

The author, who taught English literature at the University of Delhi for over four decades and is now retired, is a prominent writer and poet. A well-known commentator on politics, culture and society, he wrote the much-acclaimed Dickens and the Dialectic of Growth. His book, The Underside of Things—India and the World: A Citizen’s Miscellany, 2006-2011, came out in August 2012. Thereafter he wrote two more books, Idea of India Hard to Beat: Republic Resilient and Kashmir: A Noble Tryst in Tatters.

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