Constitutional conversation—Part Two

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It is not the BJP which is keeping them pending. It is not BJP which decided Babri Masjid, Gyanvapi, Article 370: the judiciary did. So, it looks like your grievance is actually against the judiciary. Don’t you realise what those judgments indicate is that whatever the BJP has been saying all along has always been correct and people like you who have a different viewpoint are the people who are not in touch with practical, political and legal realities and therefore make a grievance out of everything?

To start with the fact that certain decisions are rendered by the judiciary does not make those decisions either legally sustainable or correct. Where the decision is taken by the Supreme Court as the last adjudicator it may be true that that decision has necessarily to be followed but that is no reason to conclude that that decision is either correct or constitutionally and legally sustainable.

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You are attempting a baseless hypothesis that in all these cases the Supreme Court was either incorrect or did something legally unsustainable and if so you are effectively criticising the Supreme Court which in terms of article 51 you ought not to since it is an opinion, adjudicatory at that, rendered by the court after a keenly contested adversarial proceeding in which you could have participated if you wanted to.

I did not criticise the Court. I expressed an opinion about judgements delivered in certain cases. When unusual things happen within a government in a matter which is sub-judice as for example in the Election Commission case, where it can be suggested that the government action was an instance of executive overreach, if the court chooses to allow what happened to continue to exist and does not even express its displeasure, and the result appears to favour a certain political organisation or agenda,does it not go contrary to the adage that “justice must not only be done but it must be seen to be done” so that public confidence in the institution of the judiciary is upheld, people’s faith in the judiciary is not only not shaken, it is reaffirmed and reinforced with greater emphasis?

See, Courts are meant to do justice and while doing justice judges can hardly be expected all the time to look over their shoulder to think what the public might think.

The public is to the extent of 80% or more largely uninformed about these matters, and almost completely disinterested.

Don’t you realise that what judges pronounced through judgments establishes that the majority’s views in causes espoused by the BJP are believed by the courts to be the correct views and therefore those are upheld? Assume a new constitution comes into being in 2024 or 2025 and is tested in Supreme Court which has the right to allow it to exist or strike it down. So are your rights not protected and safe?

The abrogation of article 370 was tested immediately and it came to be decided years later by which time everything that was done had become a fait accompli. There would be no way of reversing what has been done and there would be little likelihood of the judicial and political will to reverse what has already become entrenched. The habeas corpus petitions are not being heard as of date and may be heard later despite the urgency normally attached to an individual’s Liberty. That being the case would it not be safe to say, assuming such a constitution is brought out into the open and tested, by the time an adjudicatory result emerges that constitution would have remained in force for a sufficient amount of time to entrench itself and undo all the liberal secular inclusive pluralistic initiatives and manifestations of the last 70 years plus?

That may be or may not be but the point is that if such a constitution does come into force this is the only manner by which its sustainability can be tested. In that case what would you like the judges to do?

To start with what I would like judges to do is of no consequence because judges are not guided by what I or anyone else would like but if the judges are to deliver a verdict which enables the public to be satisfied that their decision is based on the correct interpretation of the law then perhaps the die would be cast.

Considering that this will be a contested claim there will certainly be part of the population that will not be satisfied with the judgement regardless of which way it goes.

I believe there will be a more fundamental question that will fall for consideration before the court and that is that these judges having taken the oath of office on the basis of a constitution which they swore to uphold can they proceed to hold in favour of a different constitution which does away with the minority protections and the judicial independence that the original constitution guarantees.

Did they swear their oath of office on the constitution which they referred to as “this constitution” or the constitution that exists as amended from time to time?

The constitution that existed at the time was the constitution that we gave ourselves in 1950 and not any other constitution. This constitution which you now refer to as a possibility of 2024 or 2025 was not even in existence at that time and therefore this constitution could hardly have been the constitution on which they took their oaths of office or which they had visualised when they took their oath of office.

This constitution had not even seen the light of day as of that date. So what would they be then required to do?

I suppose they would then be required to first lay down office since they were being asked to base their decisions on something which is inconsistent with and alien to the constitution on which they took their oaths of office and which they swore to uphold. Since the hypothetical constitution of 2024 or 2025 is not that constitution they would perhaps be compelled to recuse themselves leaving a vacuum.

Good then we can have a complete absence of judges and instil a presidential form of government which I think will put all these competing claims to rest.

That’s like seeking a convenient vacuum.

A vacuum of political will existed from 1947. In 2014 we began to see a different nation. Some people seem to think that the Congress has ruled properly and should not have lost in 2014.

Absolutely incorrect. No one said the Congress has ruled properly. We are talking about the present regime as we then talked about the then regime. I don’t need to be told nor to tell you about Moradabad, Jamshedpur, Nellie massacres, Babri Masjid gates being opened during the time of the Congress, Babri Masjid demolition during Congress rule and the promise by the then prime minister that it would be rebuilt on the same spot and his back-tracking when asked about it one year later. If the Sachar Commission report revealed that the place of Muslims went from a good status to below SCs, STs and BCs in terms of education, jobs, representation in the armed forces, political office, etc. obviously there was nothing good happening for minorities at the time. That being the case on what basis do persons supporting the BJP talk about minority appeasement? No appeasement has been done for the minorities. Which additional rights have been granted to them or have improved their position in the last 74 years?

Which rights did you seek or your leaders and which were not granted? You always kept yourself aloof thinking you were different from the rest of us, and expected to be treated differently. Well you are now being treated differently, so what is your complaint?

The issue is not what our leaders of the 1940s or 1950s sought or we did or whether or not we thought and believed ourselves to be different. We are in fact different because we do not subscribe to the religious affiliation of the majority but that is precisely guaranteed and saved by the constitution and you cannot deny us that right. We have a right to equality under article 14 and you cannot deny us that right. We have to be placed as equals before the law in any competition in a court or on the administrative side and that cannot be denied to us. The Constitution mandated that the state shall protect the educational and economic interests of the weaker sections and if those had been protected we would have been not educationally and economically so backward.

Well there are any numbers of government schemes for minorities and nothing and nobody prevented you from accessing those. Nothing prevented your leaders from guiding and advising you to take advantage of those. You can take a horse to the water but you cannot make it drink. The political will was implemented by providing the schemes. The government could hardly force you to avail of that opportunity. That was the job of your leaders who should have given you that guidance.

A government worth its salt proactively pursues those agendas which the constitution mandates and if it is not achieving the result that it is expected to achieve then it investigates the matter and identifies the causes. If you provide a scheme for minorities but staff it with people who are disinterested in promotion of those minorities don’t you realise that this is paying lip service to a constitutional guarantee and a statutory requirement?

Assuming it is a disinterest in implementation what prevented your leaders from approaching the courts demanding whatever it is that you needed? You have no hesitation spending massive amounts of money on weddings and dinners and such celebratory events instead of investing on education, skill development, engaging with people from other affiliations, etc. If you become and remain insular, don’t you realise that you do a disservice to yourself?

That still does not explain why the government of the day did not take steps to bring the minorities on par with the rest of the population as it progressed.

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