Rekindle the spirit of constitutional fidelity

Many political scientists, legal experts and analysts have called the current political climate in India an 'undeclared Emergency'

India has achieved a fairly well-functioning parliamentary democracy as it celebrates its 74th Republic Day. However, various international agencies apprehend that Indian democracy is slipping into majoritarianism and authoritarianism, with the denial of the rights of minorities and marginalised sections and the withdrawal of the State from its responsibility to protect them. Sweden’s V-Dem Institute calls India an “electoral autocracy” in its Democracy Report of 2022.

Many political scientists, legal experts and analysts (Arvind Narrain in India’s Undeclared Emergency: Constitutionalism and the Politics of Resistance and Christophe Jaffrelot in Modi’s India: Hindu Nationalism and the Rise of Ethnic Democracy) have called the current political climate in India an “undeclared Emergency”, equating it with the situation that prevailed during Indira Gandhi’s Emergency. The Union government has refuted these claims and has sought to project India as the “mother of all democracies”, instead. Babasaheb Ambedkar has emphasised that individual rights and their protection by the State and its institutions of governance is critical and it is the reason why he referred to Article 32 as the “soul” of the Constitution.

Goodwin Liu et al. (2009), in Keeping Faith with the Constitution, have brought out the concept of constitutional fidelity to understand the spirit of the Constitution in the context of the United States. According to them, “to be faithful to the Constitution is to interpret its words and apply its principles in ways that preserve the Constitution’s meaning and democratic legitimacy over time.” Basically, constitutional fidelity is an approach to interpreting the Constitution’s provisions in a progressive way so as to reflect the social changes in a polity and society.

To put this in context for India, the following incidents and events paint a stark contrast between those who observe constitutional fidelity and those who do not.

Scenario 1: In 2000, KR Narayanan, the then President of India, refused to act upon the government’s proposal to confer Bharat Ratna on VD Savarkar. Later, the same was acknowledged and accepted by the Atal Bihari Vajpayee government gracefully, in spite of the denial of the government’s proposal by the President. In this instance, both the constitutional authorities, the President and the Prime Minister showed fidelity to Constitutional
values.

Scenario 2: In many states, the governors are in direct conflict with the elected governments, especially in Kerala, Tamil Nadu, West Bengal, and Maharashtra, raising the question of who governs the governors. This is also threatening the federal scheme of the Constitution, where the office of Governor is responsible for ensuring constitutional governance in the respective states and is regarded as the guardian or custodian of the Constitution.

Scenario 3: The Vice President of India, the Union Minister of Law and Justice, and other cabinet ministers are continually attacking the collegium system (though reforms are required) in appointing judges to the higher judiciary. This amounts to a weakening of Montesquieu’s separation of powers and an attempt to interfere with judicial functioning in order to seize control of the judiciary. The concern must not be the question of the supremacy of one organ of the State over the other; it seems that all these constitutional authorities have forgotten the supremacy of the Constitution and citizen sovereignty in our republican system of democracy.

Scenario 4: In the 105th Constitution Amendment Act of 2021, popularly known as the “Other Backward Classes (OBC) Bill,” the extension of reservation benefits to the socially influential communities has considerably reduced the reservation space available for the communities that are facing jaati-based discrimination and exclusion in political governance, even within the OBCs.
The Constitution (103rd Amendment) Act, 2019 adds economic criteria to extend the benefits of affirmative action to the economically weaker sections (EWS) even among the socially
influential communities. The Act was upheld by the Supreme Court in its verdict in Janhit Abhiyan vs. Union of India, delivered on November 7, 2022. The minority verdict states that the “impugned amendment and the classification it creates are arbitrary and result in hostile discrimination of the poorest sections of society that are socially and educationally
backward and/or subjected to caste discrimination.”

In the first instance, the practice of constitutional fidelity is visible, and the same was upheld by the highest constitutional authorities in 2000. Almost two decades later, the same is lacking among constitutional authorities.

In the above scenarios, especially 2, 3, and 4, the Governors, Vice President, Union cabinet ministers, and the Union government — through its legislation—, alter the basic and original intent of the Constitution-makers, reflecting their non-commitment to constitutional fidelity.

The deviation from constitutional fidelity is alarmingly visible in the rise of conflict between the governors and the elected state governments, border issues between the states, growing divide between the Union-state relations, widening gap between the executive and judiciary, regional disparity in terms of fiscal devolution especially post-Goods and Services Tax (GST) regime, unsettled issue of statehood to Jammu & Kashmir and reluctance of state governments to empower the local governments. These are also some of the crucial issues and challenges before the Union government.

The Union government, which enjoys a brute majority, will do well to listen to the cautionary words of GV Mavalankar, the first Speaker of the Lok Sabha: “If we are to go merely by majority, we shall be fostering the seeds of fascism, violence, and revolt,” while suggesting the cultivation of democratic spirit through Parliament as an independent institution rather than as a place of change of party or regimes. The practice of constitutional fidelity is paramount to preserve and protect our democracy.

(The writer is PhD Fellow in Political Science at, Institute for Social and Economic Change (ISEC), Bengaluru)