Siasat.com brings to you an imaginary debate between two individuals, one who believes in the Constitution as it is and the one who says it can and should be changed to suit the changing times and the political demands.
The protagonist as well as the antagonist here is a well-known Hyderabad-based lawyer Shafeeq Rahman Mahajir.
Neil Kinnock, leading Labour in the UK’s elections, famously said “They say we only want power. Yes, we want power!” Labour, he said, wanted the power to change the country, for bringing about which change, political power was needed. What is the relevance of that? In India, that is exactly what the BJP is saying. How is it then faulted for that stand? How will it change the country to become whatever it wants it to be, unless it has power to do what it seeks to do? Well, two imaginary Indians are talking.
One thinks the other is anti-national.
The other thinks the one is anti-Constitutional.
Their controversial conversation follows:
The BJP, a political party, comprises individuals all bound by Article 51 of the Constitution. That makes it mandatory for them to follow what the constitution says regarding minority rights, honouring Directive Principles of State Policy, etc. They cannot manufacture an India at variance with that Basic Structure which cannot be changed.
Why cannot that be changed? Can the Constitution not be amended?
That cannot be changed because the Constitution cannot be changed. It can be amended. Amendment is distinct from destruction.
BJP never said it would destroy the Constitution.
Several political functionaries from various organisations comprising parts of the Sangh Parivar have repeatedly called it a firangi document, not entitled to be continued. They have said that they want a Hindu Rashtra.
What is your problem with the majority of Indians wanting a Hindu Rashtra? How does it bother you?
I have with it the same problem that the majority of Indians would have if someone were to want to make India an Islamic nation, or a Christian nation or, for that matter, any other type of nation.
Are any of your rights being affected? Are you having fewer rights under that Hindu Rashtra than what the present Constitution gives you?
We can hardly begin to address that until we have that alternative constitution ready and placed in advance in the public domain for years of discussion and deliberation as happened during the Constituent Assembly Debates. You cannot say that there will be a Hindu Rastra when there is nothing to say exactly what it will be like. You expect me to answer a question on information which you want to keep hidden?
We are not keeping anything hidden: when the time is correct we will produce it.
It appears as if you don’t want a careful analysis of whatever it would mean and how provisions might be interpreted by the courts in the context of judicial pronouncements of the past. You want to spring a surprise and go the fait accompli way.
Judicial pronouncements of the past would have been based on the present constitution and they would not be of any precedential value for a Hindu Rashtra, going forward.
Good grief! What you are saying is all the judicial pronouncements upholding constitutional rights of minorities will not be of any value whatsoever and can be considered deadwood.
That is not what I am saying. Ultimately the courts will have to decide whether they will be of value or not.
Based on our experience of the past decade and a half where courts have consistently passed judgments suggestive of their approval of certain views, would there be justification for assuming that a similarly facilitating, approving interpretation would be placed on similar matters going forward, this time without possible criticism of decisions being contrary to the Constitution, and in fact applauded as being consistent with the philosophy of that new constitution?
Well, that is a possibility but it all depends on what the judges decide. How can I anticipate things that might arise in the future and what the courts might decide?
Well, they would decide in accordance with the constitution, and every legislation including past legislations would be tested for constitutionality, validity, etc., on the touchstone of that new Constitution. So, it would be obvious what the result would be like.
Are you saying that the judges will not do their job properly?
Far from it. On the contrary if a judge were to have to decide whether an act or a law is in accordance with the constitution then the constitution that that judge then has before him will have to be the determinant of the constitutionality or legality of that act or legislation.
What is your grievance if the Constitution is changed?
When we started the journey after independence these are the rules we gave ourselves as the Constitution. If anyone tries to change that to create an altogether different objective will that not be a fraud practised against the part of the population which does not agree with that view?
Well, everyone is subject to article 51 of the constitution but what exactly it means is a matter which is open to interpretation. Why fault members of the BJP for interpreting it the way they want to interpret it?
Look, it’s not a matter of interpreting it the way they want to interpret it. In every case there will either be a correct interpretation, or an incorrect interpretation, an honest or dishonest or motivated interpretation, or even a misinterpretation.
When there is a competing claim as to what is the correct interpretation who is to decide which is correct?
That is a no brainer. Obviously in any matter like this only the judiciary will have to decide.
Precisely! The judiciary has time and again upheld what you people call unconstitutional laws. Take for instance laws regulating right to freely practise and propagate religion, or reservations under articles 15 and 16 of the Constitution. Like, some people think that there should be reservations for Muslims and the BJP thinks that there should not. The courts have decided that those reservations should be struck down, so what is your grievance?
Babri Masjid issue was decided by the court and rights of Muslims stood restricted. Hijab was decided by the court and rights of Muslims stood restricted. Gyanvapi is decided by the court and rights of Muslims may be restricted. Constitutionality of laws regulating conversion was decided by the court and rights of Muslims and Christians stood restricted. Article 370 was decided by the court and even people like retired Justice Rohinton have criticised that. All habeas corpus petitions which remain pending are pending in the courts.
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