Interview: Rewriting Constitution Means Breaking India Apart
[Karan Thapar for The Wire interviewed noted constitution expert Fali Nariman on September 13, to mark the publication of his latest book ‘You Must Know Your Constitution’. The 50-minute interview covers a broad sweep of issues, including the calls for a new constitution, simultaneous polls, questions raised on the Basic Structure of the constitution, the prevailing climate of intolerance in the country, the changing relationship between judiciary and executive, opposition’s role in the democracy, parliamentary functioning, among others.
On the situation in India today, Nariman says it is like the Emergency of 1975 except “behind a veil”. However, he adds that there is one critical difference between the situation today and during the Emergency of Indira Gandhi’s time is that today there’s an anti-muslim, anti-minority mood prevailing, if not increasing, in the country. Nariman said this “does not gel with India’s prominence in world affairs”.
The following is the full transcript of the interview.]
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Karan Thapar: Hello and welcome to a special interview for The Wire. My guest today is arguably India’s greatest living expert on the constitution with a book that he published earlier this month on the constitution. It is called ‘You Must Know Your Constitution’. It is a profound exegesis of every single article in the constitution. So if you want to know how the constitution should be understood, this is a book that is a compulsory read for you. Joining me now to talk about aspects of the constitution as well as politics and politicians is the one and only – Fali Nariman.
Mr. Nariman, let’s start with the constitution. I’ll come to politics and politicians after that. Now, in chapter 3 you write the preamble is the most important part of the constitution. Given that most people tend to ignore it and Indira Gandhi —some people say— controversially amended it, why do you believe the preamble is the most important part?
Fali Nariman: Well for one thing the preamble is a statue. The constitution is ultimately compared to a statute except that it’s on a loftier footing, that’s all is. A preamble gives you an idea of what is sought to be achieved by the document, whether it’s a statute or it’s a constitution. Generally, there are preambles to the constitution and this preamble has been called by our Supreme Court the “conscience of the constitution”. Preamble’s Part 3 Fundamental Rights, Part 4 Directive Principles of State Policy, which are not enforceable by the court but are nonetheless binding, they are all part of the conscience of the constitution.
KT: So, you believe that the preamble is conscious because it expresses the intent of the framers of the constitution?
KT: Now the interesting thing and this is a controversy at the moment is the preamble uses the word India, not Bharat. It says we are the “people of India.” Bharat appears in Article I, does that suggest that in the minds of the framers of the constitution, India was the prior name?
FN: No, I don’t think so. You remember that there was a grave controversy about whether there should be a national language for the new independent country, after the British left. The question always was what should it be? There were protagonists of Hindi in a Devanagari script or some other script. Then there was English and then there were regional languages. It almost was that the constitution never would have been framed. It was almost at the end of July 1949 when this question was again taken up about what should be the language. One of the chapters in the constitution said ‘we won’t have a national language but we’ll have two official languages’ – Hindi in the Devanagari script and English. So actually the mere fact that the preamble says India doesn’t mean anything except that when it’s in English but if you read it in Hindi it will be Bharat.
KT: Okay, so the fact that the word Bharat doesn’t appear in the English version of the preamble is not an important thing.
FN: Not at all.
KT: Now, you also believe and I’m quoting you that ‘it’s the way judges have interpreted and helped sustain a constitution that has been framed for only 350 million people most of whom are not even alive today, that is one of the ways in which a written constitution is made to grow into a dynamic living document’. In other words, the breath of life comes from judicial interpretation.
FN: Yeah, absolutely correct! That is why it is “We the People”. It is of course borrowed from the American constitution; We the People. Now if you think of the people as those who were born before the constitution, like I am today, you would find very few left. Most of them are subsequent to the constitution. After 75 years you hardly find many people. So this We the People doesn’t mean anything except that as I have mentioned one Congresswoman in America said, “I was wondering why I was left out by the framers of the constitution” and she then came to the conclusion that “Ah, I wasn’t left out but because our Supreme Court has interpreted the constitution as applying to every living person.” That is, I have been included. Now that is exactly what has happened here.
KT: What you are saying is the interpretation of the phrase ‘We the People’ incorporates people born long after the constitution was promulgated. Otherwise, ‘We the People’ would refer to those who were alive at the time and now dead.
FN: And who is not even alive today, yeah!
KT: This also means that you don’t subscribe, I imagine, to the literalist interpretation of the constitution which is the present fashion in the United States. You believe that there is the duty to interpret the constitution in the context of the time and in the context of the issues of the day.
FN: Oh absolutely, absolutely! There has to be! Because it is a living instrument, a living thing. Although there are doubts about how long a constitution should last, etc., and it was expected the American constitution wouldn’t last for more than 19 or 20 years, it has now lasted for 200 years.
KT: Well over!
FN: Exactly, well over 200 years. We are in the 75th year, so hope we continue. The problem, of course, is that we will never be able to devise a constitution like this for or of any type at all.
KT: I’ll come to the issue of whether we can devise a new constitution or whether we should devise one in a moment’s time. But what you’re saying is that judges have a duty to read richer, fresh meanings into the Articles so that they remain relevant to the period of our time?
FN: Yes, absolutely —
KT: This means judicial interpretation is critical to understanding the Constitution. It’s not given in stone and frozen forever.
FN: Apart from it being critical, in fact, the only final interpreter of the constitution is the Judiciary. In India, the highest judiciary is the Indian Supreme Court. It started off with only eight judges on the Supreme Court and now it’s about 34 or 35.
KT: The criticism that is made that judicial interpretation is going too far is actually mistaken. The object of a judge, the duty of a judge is to interpret in the context. You can’t say he’s going too far.
FN: That’s right. Not only on the fact of how it would behave right at the start of 1950. we have long passed 1950, we are now in 2023. An entirely different century and therefore everything is different and the judges are also different. Most of them were not even born in 1950. So, the interpretation that they give is what makes it a living constitution which it’s meant to be.
KT: In fact, interpretations keep changing, people keep adding to existing questions and revising new meanings.
FN: Absolutely! Courts as you know go by precedent, so what five judges say today, seven judges can say tomorrow or have nine judges say the contrary to that, two years later.
KT: This is what makes the constitution a living, dynamic object.
FN: Absolutely!
KT: Now, this brings me to an issue that is of tremendous political salience at the moment. The retired Chief Justice has questioned, in public, whether there is a Basic Structure to our constitution. In your book, not only do you cite the case of ‘Kesavananda Bharati’ judgement which first propounded the Basic Structure theory but you also cite other instances such as ‘Bhim Singh, Kuldip Nayar, Indra Gandhi versus Raj Narain’, and of course the ‘National Judicial Admission’ case, in each of which the Supreme Court reiterated there is a Basic Structure. Then my question is a simple one: What do you say to the doubts Chief Justice Ranjan Gogoi has raised when clearly the Supreme Court judges and cases and precedents contradict him?
FN: May I just first put it this way? You are absolutely right that in Kesavananda which was in 1973 when this question, this phrase, first came in – the Basic Structure of the constitution – it was by a very narrow majority. Seven to six in a bench of 13 judges, the largest bench that then sat. But there is one thing which is missed by most people there was a postmortem on this judgement. This postmortem took place at the instance of the then Chief Justice A.N. Ray and he constituted once again a bench of 13 judges who were entirely different because after 1973, eight out of the 14 had retired.
The question that he framed was whether we should now continue with this decision, which was a very troublesome decision. The answer given is very peculiar. There was no answer to this question. The Bench of 13 judges sat for the first time with these eight new judges on the 10th of November, 1975. Arguments were carried on and on. On the 11th of November, they once again assembled and sat the whole day. On the morning of the 12th of November of 1975, when the courtroom was marked in, unknown to all the other colleagues of Mr. Ray, he announced this Bench was dissolved.
Now, therefore, you won’t find what happened because there was no tape recording in those days. Nobody knows who argued what because it was the great Mr. [Nani] Palkhivala who argued for the petitioners and Mr. Niren De who argued for the other side. But the question only was what did this mean, what did he say and hats off to our constitutional historian H.M. Seervai, who was a great man, he gives the answer in his book and that’s the only answer we have ever.
The answer is that all 12 out of the 13 judges except the Chief Justice perhaps were of the considered view that the Basic Structure doctrine that had been propounded was not erroneous and ought to be followed. That’s what he has said and that’s always missed by everybody including Chief Justice Gogoi.
KT: The interesting point is that if 12 out of 13 judges in that Bench believe that the Basic Structure theory is not erroneous, it is correct. It must be followed. It would have meant that the Chief Justice would have been a minority of one.
FN: That’s why he said when he came on the 13th that the bench was dissolved.
KT: Because he wanted to save his face. It would be embarrassing.
FN: Possibly! Because he was embarrassed and one other thing, please remember, that H.M. Seervai at that time had argued this case on behalf of the government. This is most important. Most people don’t know that H.M. Seervai had been especially asked to lead the Attorney General, Niren De, and argue this case of Kesavananda in 1973.
KT: So the findings were the opposite of what he was supposed to do.
FN: A little bit. He was an honest, decent individual and –
KT: This actually underlines the point that he made that the vast vast majority of judges were not in favour of overturning the Basic Structure.
FN: That’s right!
KT: The Chief Justice acted to avoid embarrassment but that was only the first instance. There have been several instances that the Supreme Court has stood by this.
FN: Right up to 2007, when, unanimously, a bench of nine judges again contested and they unanimously affirmed the decision on the Basic Structure doctrine.
KT: Correct me if I’m wrong but didn’t the National Judicial Commission case happen when Justice Gogoi was at least on the bench?
FN: No, he wasn’t.
KT: He wasn’t but he was in the court?
FN: No, he wasn’t on the bench.
KT: But he was in the court?
FN: I mean he was a judge of the court at the time.
KT: So, when he now says or questions whether the Basic Structure theory holds, he’s going against not just one precedent but 50 other precedents set by the court.
FN: Yes, absolutely. But quite frankly people have their own views. They want to stick to them and one can’t say anything about it. It may well be that he genuinely believes this. You see, all that arises, Karan, out of the fact that in India people don’t realise no one organ of the state is sovereign. Parliament in India is not sovereign, the judiciary also is not sovereign, and the executive is, of course, not sovereign at all. Apart from the commonwealth countries, in England, the Parliament is sovereign because it is called the High Court of Parliament. That’s the other name for the English Parliament. In fact, there was a very interesting case years ago in 1965 where the Allahabad high court, two judges were hauled up for contempt of the House Legislative Assembly of Allahabad and on a presidential reference specially made ultimately the Supreme Court decided Chief Justice [inaudible] sitting on the bench unanimously that India’s Parliament is not sovereign, unlike England’s Parliament.
KT: Is the constitution sovereign?
FN: Yes absolutely. The constitution is supreme. We don’t say sovereign because it doesn’t govern anything but supreme.
KT: So in your opinion, has Justice Gogoi made a bad mistake claiming there’s no Basic Structure?
FN: I’m afraid so, but that’s all right. Different people may have different views. I think so.
KT: People have a right to hold different things but his view in your opinion is wrong?
FN: Yes, totally wrong!
KT: In this context, let me ask you. Would one nation, one election which is again something that’s being talked about at the moment, breach the Basic Structure of the constitution? Because we assume state assemblies are autonomous and sovereign in their own right?
FN: Autonomous not sovereign.
KT: One Nation, One Election would require them to hold their elections synchronised with the Lok Sabha, which they may not want to do, which may mean that they have to curtail their terms or expand their terms. Would this affect the federal or quasi-federal structure of our country?
FN: I haven’t examined it but perhaps it might or it might not. I mean that would depend upon how the Supreme Court looks at it. But I would like to only put this that one election business is going to be an extraordinarily difficult task for any government to hold. Namely, for this reason, there has to be security during every election and we don’t have all the personnel to have security for each and every constituency in the country, whether it is a state constituency or a Lok Sabha constituency.
KT: So, in a practical sense, this would be close to impossible?
FN: Yes, and there is an article only in this morning’s one of the newspapers which mentions all this.
KT: What about in terms of the constitution? I know you haven’t examined the matter but what’s your hunch? Would one nation, one election breach the Basic Structure because of the impact on state assemblies and their autonomy?
FN: I can’t say this offhand. Whether it would be a breach or not a breach. It is because of this federal structure that there’s a problem with breaches.
KT: Because the federal structure is definitely part of the Basic Structure
FN: Yes absolutely. That’s been held.
KT: And central to the federal structure is presumably the autonomy of state assemblies?
FN: Yes absolutely, absolutely!
KT: And if that autonomy is impinged upon because you require them to curtail their time or expand their time, and ….
FN: You see apart from that. What happens when no-confidence motion is moved and passed in one state assembly? An election has to be held within a stated time and how does that coordinate with every other state? This is going to be a big problem.
KT: People say that the way around the fall of a government prior to five years is a German-style – what’s it called – a constructive vote of confidence. The problem is in theory…
FN: That is to say who else will take its place?
KT: Absolutely! You can’t vote out one government unless you can vote one in. In theory, it works. But what happens if the ruling party splits and the breakaway does not join the opposition?
FN: And we have too many splits today!
KT: Absolutely! Remember in that situation, you’ll have a minority government which doesn’t have a majority but the opposition can’t create one either because the breakaway refuses to join. You’re left with an absurdity.
FN: There’s no governance and that’s the problem. Therefore, you see, this is some newfangled idea. I don’t know whether or how it will work. Whether it’s practical, whether it’s legal, whether it undermines the Basic Structure.
KT: But do you have serious qualms about it?
FN: I have serious doubts about whether it would work. Serious doubts, that’s all I can say at this stage.
KT: You also make another important point. You hinted at it a moment ago. It has to do with the question of do we need a new constitution. I’m going to quote what you say in your book, “We will never be able to piece together a new constitution in the present day and age simply because innovative ideas, however brilliant and howsoever encouragingly expressed in consultation papers and reports of commissions, can never give us an ideal constitution. In constitution-making there are hidden forces that must not be ignored.” These are you say “the spirit of persuasion of accommodation and of tolerance in India as in the rest of the world is at a very low ebb today.” Can you explain that further?
FN: Yes, I will. See, I’ll take the last first. The spirit of tolerance. Although we have the word fraternity in our constitution, the spirit of tolerance amongst us is getting worse and worse over the years. What is the reason? Why should it be? It is, at the moment, not relevant. The fact is that there is very little tolerance for any view which is contrary to an official view, call it a governmental view, call it a particular view, a group of individuals’ view, etc. Therefore, the spirit of accommodation, that your view may also be right, I may also be right, etc., is not there. That is why constitutionalists, people like Sir Ivor Jennings who had written a brilliant book on cabinet government, have said that it is deliberately why in England you have the leader of the opposition called his the leader of his Majesty’s opposition or Her Majesty’s office. Why? Her majesty has nothing to do with the opposition. It’s just the government but it is essential in a democracy. According to the Westminster model that we have, you must have an opposition which opposes whatever the government does so the rest of the public may make their own decision.
KT: And for this to be possible, tolerance is essential. You’re saying that that spirit of tolerance is missing today. We’ve become polarised. We see opponents as enemies. Therefore, in this atmosphere, it is close to impossible to devise and create a new construction.
FN: I regret to say this but you see over the years, ever since 1960-65 onwards – whether under the Congress party government or under the present BJP party government, makes no difference – this lack of tolerance has been showing, and has been visible. I think even majoritarian governments, therefore, have not worked in India.
KT: You are saying that because this spiritual tolerance is missing, because the desire to accommodate other views is missing we cannot write a new constitution. The environment to do that…
FN: Yes, absolutely correct! Absolutely because the environment to do that’s just not there.
KT: The problem is that you’ve written this at a time when actually there are increasing calls for a new constitution.
FN: Oh absolutely. For a presidential form of government.
KT: In fact, none other than the chairman of the Prime Minister’s Economic Advisory Council, a gentleman called Bibek Debroy has written an article, suggesting the need for a new constitution. What do you say to Mr. Debroy?
FN: I say that this is a kite flying exercise, that’s all, with great respect to him. He’s a very brilliant person, I really read all his articles but the problem is that when you say I want a new constitution, I would ask how shall we frame it. Who would be the person who would frame it? In India, today among a large number of people, everybody amongst two people there are four opinions. There are no two opinions. The whole thing breaks down at the very start. Please remember that it is this written constitution that we have that worked through or half worked through that keeps the country together. It’s very important.
KT: Don’t jettison it because you can get yourself in peril.
FN: Yes! Because you won’t be able to ensure that India won’t be split up and that’s such a disaster. Unity is the most essential element in our constitutional working. That is why we are not quite federal but quasi-federal.
KT: You’re saying two very important things. First, you are saying we do not have people like the founding fathers who created the 1950 constitution, who we respect and look up to who can create a new constitution. Secondly, you’re saying if you jettison this constitution, the silken threads that bind us together as a nation will snap, and we’ll split. Don’t take that risk!
FN: Yes, please don’t. You see because this idea of persuasion also has left us. Both parties, all parties, bully today. Everybody wants to make his word count. That can’t be in any group that we’re talking about. You look at the world today and the world is in that situation.
KT: Let’s look at this point, Mr. Nariman, come to how the constitution and perhaps more importantly the rights that it confers on the citizens of India are defended by our judges. You quote in your book “Chief Justice Chandrachud” — he wasn’t Chief Justice at the time in 2017 in the ‘Puttaswamy’ judgement he said and I’m quoting him — “A constitutional democracy can survive when citizens have an undiluted assurance that the rule of law will protect their rights and liberties against any invasion by the state and that judicial remedies would be available to ask searching questions and expect answers when a citizen has been deprived of these most precious rights.”
But does the Supreme Court, leave lower courts, does even the Supreme Court live up to this? In 2019, when there was a spate of habeas corpus cases from Kashmir, it virtually ignored them. In 2020 when tens of millions of people walking on the roads during the lockdown were trying to get home, their plight was ignored by the Supreme Court. Critical issues like the Citizenship Amendment Act or Electoral Bonds are not being heard. It took about five years to hear the Kashmir case. Not just the Supreme Court, but all the courts down the hierarchy, have made it increasingly difficult to get bail. It should be bail, not jail but people stay in jail for years. Hence my question Mr. Nariman: Are these glorious resonant words from Justice Chandrachud just rhetoric?
FN: You see, I know that from the constitution that has worked for so many years – in America, it’s the same thing. You look at one 10-year period, you look at another 10-year period, look at the third 10-year period, different judges state different things. At different times, all over the world in the same situation. But we are today talking about a constitution which has been framed, which is in existence and which works in a way at least. So whether we can now speak of some other constitution, ideally that will suit everybody, it can only be an autocratic constitution.
KT: I’m not using Justice Chandrachud’s words to say we need a new constitution. I’m using them to ask do judges defend the rights of the constitution? Are they dilatory? I mean habeas corpus they ignore…
FN: Sometimes yes but hopefully no.
KT: I mean there are people like Omar Khalid whose bail case is not going to be heard by the Supreme Court for weeks hence. The poor man’s been in jail for two years. He’s not convicted, he should have been out on bail but there was no urgency.
FN: You see Justice Krishna’s famous dictum was ‘bail, not jail!’ Fortunately, I find one or two judges today do follow this and they have on that assumption granted bail for various people. But if you look at the number of persons who are under detention or in jail before trial, they have not even been convicted which is most unfair.
KT: And languishing for 15-20 years…
FN: And languishing, yes! Then this is brought out by Mr. Bibek Debroy himself.
KT: Absolutely, which is why I asked, do our judges do enough to defend the rights the constitution confers on us? It seems to me, occasionally they do, but there are probably worrying instances when they don’t.
FN: Yeah, hopefully it will be better. Hopefully!
KT: Is this to do with the fact that we have an uneven quality of judges? Some good judges but quite a few are not good judges.
FN: You see there is a question about the organ of appointments. How are judges appointed? That’s another big controversy. Does the collegium system work? Did the original system work? Why did it break down? Although it is a different question on which I have written something here as you will see in the book itself. But these are questions to be solved, I say, and they can only be solved by a person who assumes the office of Chief Justice and decides that ‘I will continue to do something that will help the progress of the country’.
KT: But the problem is, in the recent past, two or three years ago – I’m not talking about history – we’ve had judges even at the Supreme Court level, who whilst being judges have been praising the prime minister.
FN: That is extremely unfortunate. They should completely stay away from this. This is something which creates an absolutely wrong impression; that you are buddy-buddy with somebody high up in political office.
KT: Then you have the Justice Chalameshwar case who organised a press conference because they were so concerned about the way rostering was happening. They organised a press conference which was unprecedented. Doesn’t it suggest that there is a deep rot in the system that must be removed?
FN: Must be removed and who can remove it? Well, I don’t know who can remove it. Not Parliament. I don’t say this only because of one Chief Justice, there was a person whom we had many years ago in my time, Chief Justice Venkatachaliah. Now, the judges themselves looked up to him as a person of great learning and of great integrity. The Bar looked up to him as a person of learning and of great integrity. That sort of thing helps a great deal because then he or she, whoever that person is, whoever heads the judiciary only, can deliver the goods. Not any collegium system or [unclear] system.
KT: Mr. Nariman, there is an impression that Justice Chandrachud is acquiring some sort of similar position. He’s looked up to for his learning. The problem is there are many instances even when he’s been head of the collegium, when recommendations made have been ignored by the government or delayed transfers have happened without permission and there was that dreadful case of Justice Murlidhar who was removed from Delhi, overnight sent to Haryana and then retired pretty quickly there.
FN: I wrote about it.
KT: Why doesn’t our judge system, the collegium system fight back? Why don’t they hold the government guilty of contempt in court when the government deliberately refuses to give authority and approval for an error that’s been reiterated, not once, twice but three times even?
FN: Worse still why do they withdraw what they said before? Which is even worse! The gentleman was transferred to the Chief Justice of Madras, one of the premier posts in the country, and yet the government didn’t approve. So the collegium withdrew that recommendation, this is akin to self-destruction.
KT: Absolutely! This is what I mean. Judges don’t stand up for their own rights. Leave aside the fact they don’t stand up for my right or your right. We are secondary. They’re not standing up for their own rights! Is there an element of pusillanimity or intimidation or fear? Why can’t they stand up and nothing can be done to them?
FN: Nothing can be done!
KT: So, do they lack a spine?
FN: I don’t know! But you see we had the Emergency and we had if you remember, I lived in through it, the bandwagon judges. We had what I used to call the bandwagon judges, who would jump on the bandwagon and say we must observe the 20-point programme and things like that.
KT: And ADM Jabalpur was an embarrassment for the Supreme Court. Why are judges not standing up? I mean afterwards they believe the collegium system is the right system? They overturn the National Judicial Commission. Now the very rules of the collegium system are being flouted by this government and they’re doing nothing. They’re accepting it! Why does this not worry you?
FN: Despite the fact that the major judgement of Chief Justice Verma in the Judges case was really that if the government in a given case refuses the assumption is that that refusal is malified. All the more reason to stand up.
KT: This is why I come back to this question a second time, are our judges becoming pusillanimous? Do they lack a spine? Are they intimidated?
FN: In England, they used to have a theory that judges are judges under the throne. You see now, unfortunately, there have been occasions when we’ve had these judges under the throne. Especially when I lived through the Emergency, this was definitely the position. Relatively this situation continues from decade to decade.
KT: It’s particularly sad, isn’t it? When judges can’t stand up for their own rights?
FN: Yes. it is. I quite agree.
KT: So, this is a sad situation.
FN: It is sad but who can remedy it is a very difficult thing, except the judges themselves…
KT: Absolutely and you need a couple of judges with spine.
FN: Yeah, they need to be able to stand up because there’s nothing the government can do to them.
KT: There’s no way they can be punished. There’s no question about it. Let’s come to how our governments respect and adhere to the constitution. In your book with great approval, you quote Ambedkar. Ambedkar said, “However good constitution may be, it is sure to turn out bad because those who are called to work it, happen to be a bad lot. However bad the constitution may be, it may turn out to be good, if those who are called to work it, happen to be a good lot”. In your opinion, have our governments been a good lot or a bad lot?
FN: You must put it on both grounds. If the judges have been a good lot or a bad lot and has the government been a good lot or bad lot?
KT: Tell me the answers to both.
FN: Yeah, quite right. Well, at times yes at times no. One can honestly say that.
KT: This is like the wretched curate’s egg.
FN: That is quite right. It is good in parts.
KT: But at the end of the day, judges don’t do as much damage, I imagine, as governments can do to the constitution?
FN: Tremendous.
KT: So, in the majority of cases have we had good governments or bad governments?
FN: The assessment, I think, varies from decade to decade. We have had at least one very important bad time which we have never ultimately remembered and that was during the Emergency. You see very few people today. Probably many of them were not even born and remember the bad times during the Emergency. If you reflect on those bad times and think of how to improve things which should never happen again. Then perhaps there may be some way in which things could improve.
KT: Some people say that in the Emergency you had outright censorship. outright intimidation of the courts, arrest of politicians, arrest of students. It was done outright. Because it was done outright, in a sense, it was done upfront. Today you have virtually the same thing happening but by subterfuge.
FN: In a veiled manner.
KT: Absolutely! Which is worse? Today when it’s happening in a veiled manner or then?
FN: They are as bad, yeah!
KT: So in other words, in your opinion, the situation today is like another Emergency?
FN: Yes, yes, you can say that. You can say that because, you see, internally we have a government which unfortunately despite everything, despite its great success outside the country, has no tolerance within the state and this is reflected in the governments also in the states.
KT: Let me put one difference to you. Just as in the Emergency, we have intolerance, we don’t like dissent, and we have a government battling against institutions and weakening them. Parliament itself is disregarded. All of that happened in the Emergency too but there’s one thing that’s happening now that didn’t happen in the Emergency. We have a mode of intolerance of minorities. There’s an anti-Muslim atmosphere that did not exist in the Emergency. It is prevalent and it’s increasing today. Doesn’t that make a significant difference?
FN: Yes, it does. I don’t know why this somehow doesn’t gel with India’s increasing prominence in world affairs. This doesn’t somehow gel but it has to gel. Someone has to take the bell to the cat.
KT: We don’t talk about it in our country, because by and large our media and our channels are intimidated by the government. They don’t want the rocks of Mr Modi to descend on them. However, the Western media is only too aware and the Western media is frequently telling whether it’s Biden or Sunak or Macron, these are issues you should point out in India. The Western media chides their leaders for turning a nelson eye to the way Modi treats Muslims in India. The world is aware, we don’t want to make ourselves knowledgeable of it!
FN: Yeah, that’s absolutely true. I quite agree with you.
KT: In your book you make a very interesting distinction between two types of government India has had. Majoritarian, as you call them when the ruling party had an outright majority, and coalition governments when they didn’t have a majority unless they coalesced. Do I think that you believe coalition governments were better respecters of the constitution than majoritarian ones?
FN: Under present circumstances in India, yes definitely! That’s been our experience throughout. You just have to look at it.
KT: So would you say, given the way we’ve developed and given the character perhaps of our politicians particularly when they have outright power, that India’s constitution and the rights that constitution confers are in better hands when we have a coalition than when we have a majoritarian government?
FN: Yes absolutely! There’s no doubt about it, which is an unfortunate thing but it is true. Autocracy, you see, is a trend in the world today, Karan. We all speak glibly of a democracy but the autocratic trend is very distinct and that wind is blowing and it is very alarming, quite frankly. I mean I’ve lived my whole life but for the younger people it’s going to be quite alarming.
KT: Which is why a coalition government, which is necessarily a weaker government, is better?
FN: Perhaps the best government. Perhaps, in the state of affairs that we have, there is no doubt about it.
KT: I want to touch on one last issue because you’ve hinted at it a moment ago. You have in your book some very interesting things to say about the role of the opposition in a democracy. You’re quoting Sir Ivor Jennings, he went on to be master of Trinity Hall Cambridge, and you quote him with great approval. He says, “It is not untrue to say that the most important part of parliament is the opposition. The opposition is at once the alternative to the government and a focus for the discontent of the people. Its function is almost as important as that of a government. If there be no opposition, there is no democracy.”
FN: Absolutely correct!
KT: How would you persuade Mr Modi to accept this view?
FN: I don’t know. I’m too old to persuade anybody, quite frankly and I’m certainly not in a position to persuade the Prime Minister. That’s why I said that this move towards an autocratic state of affairs is not confined to this country. It is a trend all over the world.
KT: But in our country, with the exception of the Nehru years, mercifully there were 17 of them, and perhaps with the exception of the Vajpayee years, the opposition has been looked upon as an enemy. Mrs. Gandhi didn’t tolerate them, she didn’t like them, she hardly consulted them and certainly, our present Prime Minister seems to look upon them with disdain. He mocks them, crudely at times, even a customary politeness is missing. How do we teach our politicians that it is a critical sentence that “it is not untrue to say that the most important part of parliament is the opposition”? How do you convince the Prime Minister, that you and the ruling party are not the most important, the most important part is your opponents.
FN: I can’t tell you. Perhaps you can answer that question. I wish I was the person who was asking the question.
KT: You go one step further and once again you’re quoting with great approval, Sir Ivor Jennings. He says and I’m quoting him. “Attacks upon the government and individual ministers are the functions of the opposition.” That’s so important I want to repeat it for the audience “attacks upon the government and individual ministers are the functions of the opposition” and then he adds “the duty of the opposition is to oppose.” So when for example Rahul Gandhi ….
FN: May I just add to you that exactly all this has been quoted in a book published by the Rajya Sabha itself. All these quotes of Ivor Jennings are not from England only, they have been adopted by our Parliament. The Rajya Sabha itself has quoted this in a booklet which expressly says all this. The question is do we live up to it? That’s the problem.
KT: Absolutely! When you say the Rajya Sabha has quoted this in a booklet, this is therefore part of our custom, practice, and belief.
FN: That’s how I’ve quoted it. I’ve quoted it from our book from the Rajya Sabha. It may be Ivor Jennings’ words…
KT: But these are not British positions, these are Indian positions!
FN: Yes! In the Westminster model of our constitution, which is common to all the commonwealth countries, is the only safeguard for the democratic setup.
KT: Something very interesting follows from this. When Rahul Gandhi vehemently and fiercely criticises the Prime Minister,and he does it with frequency and regularity, people turn around and say this is a personal attack, this is a vendetta. It’s not. That is what an opposition leader is meant to do.
FN: Therefore we don’t know. We all are not quite educated on what true democracy is. That’s the problem. We have to be better educated.
KT: But you also have an important caution or warning for the opposition and once again it may be from a British document, but I believe it’s also part of our system. You say and I’m quoting you “the opposition has no right to obstruct in the sense of making Parliament barren or unproductive” and that means, does it not, that the viewpoint originally propounded by Arun Jaitley and Sushma Swaraj that obstructing Parliament is a legitimate parliamentary tactic is a completely mistaken view?
FN: That’s a mistaken view. That’s absolutely correct.
KT: Opposition can oppose, and opposition can criticise. They can be vitriolic if they want to but obstructing the functioning of parliament is not permitted.
FN: Yes and then carrying all those placards in the parliament is totally wrong. It never happened when I was there as a member but this has all been subsequent to that and it’s getting worse and worse.
KT: The interesting message you’re sending the opposition is, “I uphold as Sir Ivor Jennings says, your right to oppose. You are perhaps the most important part of parliament. I uphold your right to criticise fiercely, rudely, however. But I do not believe you have a right to obstruct. you have to let parliament function. You can’t shout it to silence.
FN: You’re absolutely correct because otherwise, the parliamentary system of government breaks down. These are things which ultimately lead to an autocracy. Call it a dictatorship, call it what you like but it has reached a type of autocracy, which is already unfortunate.
KT: This is very interesting what you’re saying. The opposition doesn’t realise that if they carry on ceaselessly obstructing the parliament, paving the path to autocracy.
FN: Yes absolutely! This is being mentioned time, out of number, by those in charge of government; state governments or central government.
KT: If you make Parliament futile and unproductive the government will be given an excuse on a platter to take Parliament non-seriously.
FN: It’s the sort of thing that happened in England when Cromwell came to power, if you recall.
KT: I do, indeed. “You have sat too long here for any good you have been doing. Depart, I say, and let us have done with you. In the name of God, go.” Thank you so much, Mr. Nariman.
FN: Thank you!
(Fali Sam Nariman is an Indian jurist. He is a senior advocate to the Supreme Court of India since 1971 and was the President of the Bar Association of India from 1991 to 2010. Nariman is an internationally recognised jurist on international arbitration. Karan Thapar is a well known journalist, television commentator and interviewer. Courtesy: The Wire)
