Former Prime Minister Lal Bahadur Shastri once famously reminded the nation to hold dear the rule of law “so that the basic structure of our democracy is maintained and strengthened”. Like other statesmen of that era, Shastri knew that the continued existence of a democracy was (and remains) inextricably linked to its adherence to the rule of law. A democracy can only function if the constitution on which it is founded — and from which flows this rule of law — is treated as inviolable and sacrosanct. That certain lines cannot be crossed if a democracy is to flourish in the truest sense.
And yet, the last week has seen a litany of unprecedented assaults by institutions that were once charged with holding the line. These institutions have not just acquiesced but also participated in the crossing of a Lakshman rekha in a manner which, either willingly or unwillingly, benefits the interests of a single political party, all the while flagrantly flouting long-standing legal precedents.
First, the conduct of the Rajasthan governor. A government is willing to prove its majority on the floor of the House, through the constitutionally-prescribed method and asks for a session to be called. However, the governor, instead of discharging his obligations which are clearly circumscribed by the Constitution, chooses to raise arbitrary and unrelated issues (qua period of notice, pending case etc.) to buy time and delay the process. This action stands out for its lack of constitutional sanction. The Constitution simply doesn’t give the governor the authority to raise these concerns. There is similarly no provision or precedent that allows the governor to defy the calling of a session of the Assembly. Multiple benches of the Supreme Court have confirmed this (including a seven-judge bench in Shamsher Singh in 1974 and a five-judge bench in Nebam Rebia in 2016).
During the Constituent Assembly debates, Babasaheb Ambedkar (May 1949) explained that “According to the principles of the new Constitution he (the governor) is required to follow the advice of his ministry in all matters… We felt that the powers of the governor were so limited, so nominal, his position so ornamental that probably very few would come forward to stand for election”. This is just one reference out of many which explain the limits placed on the office of the governor by the Constituent Assembly.
It is telling that there is no statement or concern expressed by those who appointed the governor in question. The Modi-Shah run Union government has chosen to remain silent at a time when the governor’s new-found eloquence clearly benefits them. However, no one is in doubt about the conspirators and collaborators behind these attempts. What should worry us as a country is that there is an almost pathological political desperation, even in the face of a pandemic, a devastating economic spiral and a border crisis, to seize power in yet another state through means that are neither honourable nor legal.
Second, we saw a high court, in a manner never witnessed before, disregard the decision of a constitutional bench of the Supreme Court (Kihoto Hollohan, 1992) just to halt the disqualification of individuals who are openly working to destabilise a government.
The high court, after indulging a specious constitutional challenge, intervened to “stay” the Speaker’s notice in a manner that was, in this writer’s opinion, premature and without jurisdiction. The decision, almost immediately, invited widespread and legitimate criticism given that it went, inexplicably, against the categorical direction of the five Supreme Court judges (in Kihoto Hollohan) that “[H]aving regard to the constitutional scheme in the Tenth Schedule, judicial review should not cover any stage prior to the making of a decision by the Speakers/ Chairman; and no quia timet (that is, interim interventions) are permissible”. No reasoning whatsoever is provided for this striking departure from established precedent by the high court. No plausible justification is provided to explain why the constitutional precedents presented before them were disregarded.
The very fact that foundational constitutional principles are being casually re-visited is a cause for concern. Democracy will cease to have any meaning if all constitutional institutions fall to the wayside and capitulate in this manner. By betraying the offices created and upheld by great men and women and by committing acts that border on rewriting the law based on convenient opinions instead of precedent, we are set on a dark path.
But the Constitution of India can survive this assault. Indeed, it was designed to do so. We will maintain our vigil as a parliamentary opposition should. And in doing so, we will hope that other institutions, which are sought to be bullied and undermined, stand together and uphold the rule of law.
This article first appeared in the print edition on July 28, 2020 under the title ‘On a dark path’. The writer is an advocate and the AICC in-charge, media and communication
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