Does the nation not reflect the sentiments of the Republic?

February 4, 2017

Sixty seven years ago, “We the People” constituted India into a sovereign democratic republic by adopting the longest written Constitution in the world. The creation of the republic represented our commitment to being governed by our elected representatives according to the rule of law.

The length of the Constitution was a testimony to the drafters’ effort in bridging India’s colonial past with her democratic future; retaining some colonial institutions and laws that would provide stability to the fledgling nation, while creating rights and institutions that would enable us to experience freedoms we had only dreamt of during colonial rule. The bureaucracy, police, and the RBI were colonial retentions; the Parliament and the Supreme Court were constitutional creations.

The executive composed of the President and the Governors, the Prime Minister and his cabinet were constitutional creations with colonial features. But the most significant constitutional creation was the chapter on “Fundamental rights”.

Part III of the Constitution guarantees to all nationals, and in certain cases only to citizens, rights to life, liberty, equality and property. The Constitution imposed a duty on Parliament, executive and the SC to ensure respect for our fundamental rights. But since its adoption, the constitutional commitments of Parliament, executive and the judiciary have been severely tested. Never more so than during the emergency, when Parliament was suspended, the Indira Gandhi-led Congress government violated our fundamental rights with impunity and in the infamous ADM Jabalpur case, the SC failed to protect them.

In 2015, on the 40th anniversary of the emergency, the NDA government commemorated the Jana Sangh and Janata Party’s resistance to the emergency and articulated its commitment to our fundamental rights. However, today, we find the NDA government too subverting the rule of law and infringing our fundamental rights, and both Parliament and the SC inconsistent, and therefore ineffective, in holding the government accountable for violating our rights.

Constitutional Subversion
The first instance of constitutional subversion is misusing the government’s ordinance power, which is a legislative power, to be exceptionally exercised by the President as the executive head, only in situations of “immediate necessity”. 

 

In 2015, through the thrice promulgated Land Acquisition Ordinance, 2014, the central government sought to eviscerate protections with respect to consent and social impact assessment enshrined in the democratically negotiated and legislated Land Acquisition Act, 2013. 

 

This was in clear opposition to parliamentary will as Parliament had refused to pass the ordinance into law in two successive sessions, which had necessitated the repromulgation. Eventually, the NDA government abandoned its attempt to pass the ordinance into law. Only this month, a seven judge bench of the SC has reaffirmed that repromulgation of an ordinance is a “fraud on the Constitution” and subversion of the democratic legislative process.

The second instance is pursuit of executive actions without any legislative backing in violation of the Constitution. The NDA government has continued the UPA government’s Aadhaar project, the world’s largest national identification project, which was started in 2009 without any legislative backing in subversion of the rule of law. This project involves the collection of our biometric and demographic data in prima facie violation of our fundamental right to privacy as articulated by the SC. 

 

In 2011, the Parliamentary Standing Committee rejected the Aadhaar bill, and in 2013, the SC ordered that the government could not make Aadhaar mandatory for availing any government service, whilst referring the constitutional validity question to a constitution bench. Nevertheless, in February 2016, the NDA government, in a tortuous twist to the meaning of a “money” bill, gave legislative sanction to the Aadhaar project, bypassing the Rajya Sabha where it did not have a majority.

Subsequently, in May 2016, the SC referred petitions challenging the constitutional validity of the Aadhaar law to a constitution bench but has not pronounced a verdict in that case. Meantime, a few central and state government institutions continue to implement Aadhaar in contempt of the Court’s orders. The SC has admitted the contempt petitions but has again failed to pronounce a verdict or stay the implementation of Aadhaar encouraging the culture of government impunity.

The third instance of subversion of the Constitution is through a combination of the first two, that is, misuse of the ordinance power, and pursuing through executive action what can only be done by the legislature. The NDA government has pursued this double subversion in the demonetisation exercise. 

 

Demonetisation, involving three actions, namely the declaration of 500 and 1,000 rupee notes as illegal tender, the extinguishment of the RBI’s liability on the notes, and restrictions on people’s ability to access their money as part of its conception and implementation, required legislative backing. Knowing they did not have this backing, the government divorced these three actions, introducing the first and third through executive notifications followed by innumerable RBI circulars while Parl ..

As I have written previously in this column, the demonetisation exercise involves a prima facie violation of the fundamental rights to liberty and equality and the constitutional right to property.

Yet the parliamentary debate on demonetisation was more disruptive than dialogic, and focused primarily on the economic blunders of the exercise rather than the deliberate debilitation of our fundamental rights.

The SC also refused to stay the demonetisation exercise, again referring the matter to a constitution bench which despite the urgency of the issues before it has not even been constituted.

As we celebrate our republic, we must remember that the Constitution is only as good as the paper on which it is written, unless “we the people” are committed to it in letter and spirit. When subversion becomes the norm, rights become meaningless, and so does the republic.

–The author is Fellow at Centre for Policy Research, Delhi.