Opinion J Sai Deepak is wrong: Indian democracy is not Hindu will

Despite the article’s focus on Hindu majoritarianism, it falls short in providing concrete examples that illustrate instances of injustice towards any community. The absence of such evidence weakens its central argument. Furthermore, the article fails to substantiate claims regarding significant historical omissions within the Constitution that may have adversely affected the majority of the population. This lack of supporting evidence hampers the article’s overall effectiveness in conveying its message. The article also shows a lack of understanding of the expression of will in a constitutional democracy. Its outright rejection of judicial review of Parliament’s exercise of power is dangerous, to say the least.

Constitutions worldwide have been codified to rectify past injustices and ensure equal opportunities and dignity for all citizens. A notable example is the German constitution, which entrenched the dignity of an individual as an inviolable principle. The introduction of this principle was primarily motivated by the Holocaust, serving to address historical injustices inflicted upon the Jewish community. Similarly, in the case of the Indian Constitution, its codification signified a transformation of people from subjects to citizens. It further provides for affirmative action for those who have suffered due to the caste hierarchy. The act of codification was legitimised by subsequent voting by citizens.

In his influential work, India’s Founding Moment, Madhav Khosla highlights the pervasive dominance of localism in pre-Independence India that prevented the formation of a collective will. Khosla argues that localism inhibited individual agency and hindered political empowerment among natives, impeding their path to self-rule. Recognising the detrimental effects of localism, the framers of the Indian Constitution sought to liberate Indian villages from its grip. Localism, intertwined with the caste system, hampered collective agency and restricted individual participation in political affairs.

B R Ambedkar identified the village system as a primary obstacle to the development of Indian nationalism. He contended that the structure of villages nurtured local particularism and patriotism, leaving little room for a broader civic spirit. To address this issue, the framers of the Constitution aimed to establish a platform for collective agency, enabling individuals to actively engage in political processes and contribute to the decision-making that would shape India’s future.

Therefore, the commencement of the Constitution symbolised an expression of the collective will of the people. The Constituent Assembly, which drafted the constitution, served as a platform for extensive deliberations, where individuals from diverse backgrounds were elected through democratic processes to represent the interests of different groups. Within the Assembly, concerns and suggestions from various segments of society were thoroughly debated and examined. As a result, the Constituent Assembly embodied the original will of the people, which was subsequently integrated into the codified Constitution. Consequently, the Constitution places the individual (People), rather than any particular group, at the centre of its focus.

Parliament, judiciary, and executive branches are products of the Constitution. When amending it, Parliament does not exercise the original will but a derivative constituent power, which is subject to the Constitution itself. The judiciary plays a crucial constitutional role in reviewing amendments, serving as a check on the powers of Parliament. This system of checks and balances is an inherent feature of democracy, where each organ of the Constitution monitors and balances the actions of the others. Therefore, the argument that judicial review of amendments undermines democracy lacks a solid foundation, as democracy itself incorporates mechanisms for maintaining balance within the constitutional framework.

Given that Parliament represents the will of the people, it is fundamentally erroneous to suggest that it should possess unrestricted power solely to represent the will of the majority community. Parliament represents the will of the people as a whole, ensuring the protection of minority rights as well. To prioritise the unfettered authority of the majority would be contrary to the principles and responsibilities inherent in democratic governance.

Sai Deepak also expressed criticism of the courts’ inclination to look towards Western jurisprudence while neglecting the texts of Hindu civilisation in their judgments. However, this claim is unsubstantiated. An example contradicting this claim can be found in the case of Vishu Aggarwal vs State of UP (2011), where the Supreme Court invoked Brahspati to interpret laws. Further, the use of external texts in judicial decision-making is not inherently invalid. In fact, it is a valid technique to rely on comparative literature in order to understand the application of principles worldwide. Such comparative analysis aids in ensuring a comprehensive and well-informed approach to decision-making.

Therefore, to say the least, the article was misinformed and failed to substantiate the claims it made against Indian constitutional democracy. To even suggest Parliament has unfettered power to determine and establish majority will is the antithesis of democracy and perilous thought.

The writer is Advocate in Supreme Court and Madhya Pradesh High Court and represents India in the Young Commonwealth Lawyer Association