The framers of the Constitution had never imagined that one day, two out of the three organs of the state will virtually stop functioning. But, that is exactly what is happening in India today.
Only the executive is attempting to perform its function. Parliament is in recess. The judiciary is in a state of coma. Consequently, the executive has a free hand in the functioning or malfunctioning of the nation.
No one can deny that the country, or for that matter, the world, is facing the greatest challenge to its existence — if not physically, at least economically. The government of India and the prime minister are trying to do something good for the country.
But, there is a flipside to their action as well, and it needs to be debated. Some may argue that in times of crisis, there is no place for critical debate. But they forget that in the absence of it, a lot of good things or actions are missed, while a lot of bad things and actions go on unchecked.
We tend to forget that the Constitution of India is a living document. It created the executive, legislature and judiciary with the objective that the wings of government will maintain checks on each other as well as a balance among them. As Thomas Jefferson once said, “The principle of the Constitution is that of a separation of Legislative, Executive and Judicial functions, except in cases specified. If this principle be not expressed in direct terms, it is clearly the spirit of the Constitution, and it ought to be so commented and acted on by every friend of free Government.”
So, then, why is it that the two powerful organs — the Parliament and judiciary — are totally silent on the present suffering of hundreds of millions of citizens? Why is it that workers, the poor and the downtrodden, and farmers, are completely left to fend for themselves when the state boasts of unlimited supplies of foodgrains and other resources? These are serious violations of the constitutional and legal rights of teeming millions, taking place on a daily basis since March 24. And yet, there are no serious questions being raised by these two organs, much less compelling the executive to provide redress forthwith.
How is the nation going to compensate these people for their sufferings? Not by silence. Not by inaction. And, certainly not by giving the executive a free hand. The nation saw, in the past, the incalculable harm to citizens — including avoidable deaths, loss of millions of jobs and permanent damage to the economy — on account of demonetisation. The Parliament and judiciary remained mute spectators while the citizens suffered. Yet, no lesson has been learnt by those who are constitutionally obliged to protect us, the citizens. They continue to look the other way.
These organs of the state cannot absolve themselves of their failures while the nation bleeds. Look at the situation of India’s largest minority, Muslims. We have even criminalised their health sufferings. They are increasingly isolated and socially ostracised. Was it their fault that COVID-19, a foreign virus, was allowed to enter India? The government of India did not act in January when it should have, once China declared the pandemic in Wuhan, on January 23. It should have ensured that all those entering India from abroad either be denied entry altogether — except for returning Indians — or be compulsorily quarantined for 14 days before mingling with the citizens, including attending the Markaz in Delhi.
Further, with just four hours’ notice before the lockdown came into effect, with all means of transport shut down, where could they go? Yet, the nation is inflicting criminal charges on them instead of healing their sickness, under the watch of the very constitutional organs created to protect them. On November 25, 1949, Ambedkar told the constituent assembly in his closing speech: “Because I feel, however good a Constitution may be, it is sure to turn out to be bad because those who are called to work it, happen to be a bad lot.” He, and the 388 other great Indians who formalised the constituent assembly, must be so disappointed today. One can only say to them, “We, the citizens of India, offer our unconditional apology to you for failing you”.
According to Ambedkar, “The factors on which the working of the organs of the state depend are the people and the political parties they will set up as their instruments to carry out their wishes and their politics. Who can say how the people of India and their parties will behave?”
He had also prophetically said, on December 17, 1946: “Let us leave aside slogans, let us leave aside words which frighten people. Let us even make a concession to the prejudices of our opponents, bring them in, so that they may willingly join us on marching upon that road, which as I said, if we walk long enough, must necessarily lead us to unity.”
Far from this path, sections of the civil society, media and political class are all raising slogans to damage, if not destroy, unity. The judiciary has a duty to step in, even by way of suo moto proceedings. It must be remembered that the judicial review of administrative and legislative acts is a basic feature of the Constitution. The doctrine of Parens Patriae is writ large in its functioning.
The judiciary must not take the colour of whatever may be popular at the moment. Parliament too must reconvene, or at least the members must play their role as guardian angels from wherever they are. Let us hope and pray that they will act.
Nothing else can guide the executive towards the right direction. A failure to do so will result in avoidable chaos and, perhaps, anarchy.
This article first appeared in the print edition under the title ‘A one-horse state’. The writer is a senior advocate and president of the Supreme Court Bar Association. Views expressed are personal.
📣 The Indian Express is now on Telegram. Click here to join our channel (@indianexpress) and stay updated with the latest headlines