By Kitdor H. Blah
India is often called the world’s largest democracy. We never hear it being said that India is the world’s largest Republic. And that is part of the problem that has led to our current political situation. The problem lies in the political thought that emphasizes India as a Democracy, rather than a Republic. Fundamentally, what differentiates a Republic from a Democracy is the securitisation of the rights of the Individual. And what this means for India as a Constitutional Republic is that the rights of the individual should form the basic structure of the Constitution, and thus the rights of the individual is the chief principle that should effectually reign over the Legislative, the Executive and the Judiciary.
In a Democracy, the authority of law reigns over the rights of the individual through the mandate of the people. The democratic process, by the will of the majority, gives the elected representatives the mandate to rule and this mandate gives them absolute power to make laws or amend and repeal existing laws, even if it dilutes the rights of the individual. In reality, the chief governing principle in a Democracy is not even the will of the majority but simply the mandate to make laws.
This problem of emphasizing India as a Democracy, rather than a Republic, is not perceived by the common citizen, nor is it addressed by the members of Parliament, nor does it make it to the ideologies of the political parties that span this nation. Yet, the word ‘Republic’ is paid homage to every year on the occasion of Republic Day, which marks the anniversary of that historic day on 26th January, 1950 when the Constitution of India effectually became the governing document over all the political affairs of the nation, defining and governing the Legislative, the Executive and the Judicial.
It is this political thought, emphasizing India as a Democracy that has marred our Republic, and this problem has persisted in both the Congress party and the Bharatiya Janata Party, right from Indira Gandhi to Narendra Modi. Case in point, the Janata government under Morarji Desai abrogated our Fundamental Right to Property in Articles 19(1)(f) to a mere Constitutional Right in Article 300A through the 44th Constitution Amendment Act, 1978, as well as removing the subheading ‘Right to Property’ from Article 30 and the provisions of Article 31 for the compulsory acquisition of property. This disdain for the Fundamental Rights is what can be justified in a Democracy where the mandate to rule or the authority of Law reigns over individual rights. The Moraji Desai government removed our Fundamental Right to Property as private land owners were litigating against the government over acquisition of land for infrastructure projects and land reforms. The socialist policy of the government was at odds with the Fundamental Right to Property. But it was this abrogation of the Fundamental Right to Property that ultimately empowered the BJP government under Narendra Modi to implement Demonetization on 9th November, 2016 and the subsequent regulation and control of our bank accounts. The Fundamental Right to Property secured the individual’s right over his money and bank accounts as well. As a mere Constitutional Right, our Right to Property can now be overruled by authority of law without challenge.
But this kind of political thought that allowed for Demonetization under Narendra Modi and for the abrogation of our Fundamental Right under Moraji Desai, can be traced back to the policies of the Congress government under Indira Gandhi, that favoured authority of Law over the Constitution, and government policies over Fundamental Rights. The permanency of our Fundamental Rights and other similar sections of the Constitution was forever violated by the 24th Constitution Amendment Act, 1971 which gave Parliament the power to amend any provision of the Constitution, including those protected by Article 13 which are our Fundamental Rights, and made it mandatory for the President to assent to any amendment made under Article 368. The most ridiculous aspect of this Act is that it not only exempts future amendments from the provisions of Article 13, but it also exempts itself from the same, by appealing to no other provision or rule, but itself. The 25th Constitution Amendment Act, 1971, gave the Directive Principles of State Policy precedence over our Fundamental Rights, further diluting the nature of India as a Republic. The effect was that this changed the way that political parties look at the Constitution. The Constitution was now a “living, breathing document” that is subject to the authority of law rather than being the very governing principle of the law. The Constitution was now governed by those who have the mandate to rule, rather than it governing them. But this political thought is rooted in the socialist policies of Jawaharlal Nehru himself, whose government was the first to dilute our Fundamental Rights through the very first Constitution Amendment Act, which allowed State acquisition to unconditionally take precedence over any individual right to property.
The Judiciary has not helped the case of individual rights or the idea of the Republic either. In Shankari Prasad vs Union of India (1951), the Supreme Court upheld the power of Parliament to amend any part of the Constitution under Article 368. But this was overturned in 1967 when the Court held that Article 368 does not give absolute power to the Parliament to amend any part of the Constitution, and asserted the precedence of our Fundamental Rights over authority of law. But following the 24th Amendment, the Court again upheld the power of Parliament to amend any part of the Constitution, but subjected it to judicial review and the basic structure of the Constitution. The Indira Gandhi government responded to this judicial ruling with the 42nd Amendment Act, 1976 which sought to exempt any amendment under Article 368 from judicial review. However, in 1980, the Court upheld judicial review of Constitutional Amendments as a part of the basic structure of the Constitution. Then, in Indra Sawhney vs Union of India (1992), the Court declared Rule of Law as the basic structure of the Constitution. What all of this means to us as citizens, and what the reader can take away from this is that there is now no limitation to the power of Parliament to amend any part of the Constitution, including our Fundamental Rights, or any other provisions, if the rule of law permits it. And the rule of law means the common law and the body of case laws and court rulings.
In conclusion, we have moved away from the reality of a Constitutional Republic to a Democracy, where the authority of law of the Legislature, and the rule of law of the Judiciary, take precedence over any provision of the Constitution, including any of the Fundamental Rights, and Special Provisions. We moved away from the reality of a Constitutional Republic to a Democracy, because our political thought moved away from the idea of a Republic to this idea of a Democracy. And this political thought is rooted in the socialist policies of the Jawaharlal Nehru government, and has persisted through every government, from Indira Gandhi to Narendra Modi. It is often said by people on the Left that Democracy is under threat in the current political climate, to which this writer would only respond that the real threat came about decades ago, and whatever threats we may perceive today is nothing but the result of living in the aftermath of having moved away from the idea of a Republic and having violated the permanency of our Fundamental Rights and the permanency of certain provisions in the Constitution. In its place, we have embraced the idea of a Democracy, where the mandate to rule and the rule of law govern the Constitution.
Regionalism is the final solution:
Neither the Congress Party nor the BJP will restore the Republic. The sanctity of the Constitution as the governing document has been violated. The Congress party does not feel the effects of this problem as deeply as the common citizen, even if he cannot understand it, and not as deeply as the minorities and other backward classes. With calls for a Hindu state, with calls for regulation of religious conversion and proselytization, with threat of restoring of anti-national provisions in the Constitution, with the abrogation of article 370, and the threat posed to other special provisions for other minorities and backward classes, with the rise of the corporate media, this dilution of the most sacred features of the Constitutional Republic is most deeply felt by minorities, other backward classes, individual states and autonomous regions. And thus, the final solution is Regionalism.
The Constitutional Republic of India has as its salient features not only the Fundamental Rights of the individuals, but also the special provisions related to minorities, backward classes and autonomous regions. It is the sanctity of these provisions that define India as a Republic. The violation of the permanency and precedence of Fundamental Rights also poses a threat to every other provision related to minorities, backward classes and autonomous regions. Thus, if at all, this great Republic is to be restored, it will not be by the Congress party, or the BJP or any national party, but by regional politics. And since the 42nd Amendment was enacted to combat the rise of regional politics throughout the country, it is only the reemergence of a strong regional politics throughout the country that will restore our Constitutional Republic.
The Fundamental Rights need to be restored to their preeminent status. The duty of the President as the First Citizen, to stand between the Legislature and the citizens, must be emphasized, and his/her power to withhold assent to any bill that would violate the rights of individuals must be restored. The provisions relating to minorities, backward classes and autonomous regions must be strengthened. We need a Member of Parliament who will not only fight for current regional issues like inclusion of Khasi language in the Eight Schedule, Inner Line Permit, strengthening of Sixth Schedule, but also for the future of the Constitutional Republic, and for the rights of every citizen throughout the country, who are being fooled by the corporate media and the political parties.
Vote on April 19th, and vote well.