The looming crisis on the Indian Constitution

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When the luxurious resorts are out of the news and words like “horse-trading” and “MLA poaching” are not uttered frequently then you know that another batch of MPs has reached the Parliament. Results of 19 seats of the Rajya Sabha were declared on the 19th of June. BJP won more seats than the Congress. BJP is reaping its dividend for its outstanding performance in several assembly elections. The performance I’m talking about has a very wide ambit and doesn’t necessarily mean only electoral victories. Its tendency to topple democratically elected governments comes under this ambit. “Operation Lotus” is the main stimulus through which governments are toppled. It seems that this operation has a certain energy that compels the MLAs from opposition parties to join the BJP. Political pundits have often talked about bait and baton to be the main workforce of “Operation Lotus”. Representatives, after being elected, change their allegiance towards the BJP. To put it simply as an organized defection of rival MLAs to BJP to grab power is the real essence of “Operation Lotus”. One of the intriguing points of “Operation Lotus” is that it is activated only before electoral contests. News channels talk of “Operation Lotus” with a sense of euphoria as if it was very important for the Indian democracy. But sadly it’s the other way around. “Operation Lotus” is so effective that the anti-defection law seems ineffective.

What happened in Karnataka is result of the same. The MLAs from the ruling coalition of Congress and JD(S) submitted their resignation to the speaker. The speaker in return disqualified them and barred them from re-election in the ongoing legislative session. The disqualified MLAs in return approached the Supreme Court pleading to be allowed to contest the by-election. The judgment by the Supreme Court following the high profile drama in Karnataka didn’t help either in strengthening the anti-defection law. The disqualified MLAs were allowed to re-contest and unfortunately, they were elected by the voters. When every other constitutional institution was failing to uphold the essence of democracy it was upon the voters to punish the opportunist politicians and uphold the democratic essence.

Nevertheless, BJP is cruising ahead to establish itself as the single largest party of India with no real challenger. After the election results were declared of the19 Rajya Sabha seats, BJP now has 85 seats. BJP has some extra seats than anyone would have thought of, just after the fresh assembly elections in MP, Karnataka, and Gujarat. This was made possible only because “Operation Lotus” was given the mud to bloom. These extra seats came at the cost of democratic values and respect for people’s mandate.

After this victory through unscrupulous means, it is believed that BJP will find it easy to bring in laws without much difficulty. But the truth is BJP never found it hard to promulgate laws at its whims even when they were not well placed. Sometimes they presented bills which were essentially finance bills as money bills to bypass the legislative scrutiny in Raj Sabha. GST Bill and The Aadhar Bill are two stark examples of the same. The Adhaar Act was so controversial that it eventually ended up in the Supreme Court. One of the many questions that were raised regarding the Act was whether the Act was rightly passed as “Money Bill”. Although the majority viewed it as a money bill, Justice Chandrachud dissented. He struck at the very heart of the BJP’s motive to delegate the Rajya Sabha to a nullity by tracing in detail the historical reasons of Article 110 of the Indian Constitution. It further emphasized the significance of bicameral legislation and the importance of Rajya Sabha as a check against the abuse of power by the Lok Sabha. Furthermore, it could be noted that the BJP successfully nullified Article 370 which provided special status to the erstwhile State of Jammu and Kashmir. It went on to bifurcate the State into two union territories. The discriminatory Citizenship Act also sailed through the Rajya Sabha with ease. The Bill criminalizing Instant Triple Talaq also got astounding support in both the houses. So there never was a problem for the BJP to further its agenda.

In Andhra Pradesh and Goa, almost the entire Congress leadership joined the BJP. But the question which begs an answer is why is the BJP so power-hungry? The answer can be found in a speech given by a senior leader of the BJP Anant Hegde. In his speech, he talked about how the BJP has come to power to change the constitution. Changing the Indian constitution and pushing India towards the path of Hindu Rashtra are two good reasons for trying to gain political power by hook or by crook and it seems the BJP will be never satisfied with what it has achieved till date, until the task is done.

Even when the BJP had not much influence in 1998 it appointed the Venkatchaliah Commission to review the Constitution. The determination of each citizen resulted in the dumping of Commission’s report never to be spoken again until 2014. When the BJP again came back to power in 2014 it issued an advertisement on the occasion of Republic Day with the preamble of the Constitution in which two words Secular and Socialist were missing. That was one instance of BJP’s deep-seated intention of changing the nature of the constitution. Now that the BJP is close enough to gain control of the Rajya Sabha after managing a brute majority in the Lok Sabha it will come out with great vigor to rewrite the Indian Constitution. This will also be an ode to their ideologies and Margdarsaks who were never content with the nature of the Indian constitution. MS Golwalkar in his book ‘Bunch of Thoughts’ has praised Manu as the “the first, the greatest, and the wisest lawgiver of mankind”. But the constituent assembly on 26th Nov. 1949 went on to adopt a kind of constitution that was averse to the thoughts of Manu. The Organiser, a mouthpiece of the RSS, also lamented the non-inclusion of the essence of Manusmriti in the newly adopted constitution. Deen Dayal Upadhya noted that the current Indian Constitution was all borrowed and “a un Indian element had crept into the constitution”. 

Although the road ahead towards rewriting the India Constitution is going to be more complicated than it seems because of the SC’s historic judgment of Keshavanada Bharti Case but it is achievable. The SC in Keshavananda case had held that the basic tenets of the Constitution can’t be altered. But the way the SC has responded to the constitutional matters in the recent past is worrisome. Many constitutional matters are in limbo. The question regarding the constitutionality of scrapping of the special status of J&K needed urgent answering but there is no answer in sight with 5th Aug 2020 approaching when J&K will complete one year without special status. The CAA also begged an answer with the same urgency. It is pertinent to add that CAA makes it legal to grant fast track citizenship to illegal immigrants based on their religion. Not all religions though. It had specifically barred Muslims from three foreign nations from availing the benefits of CAA. Moreover, the Keshavananda judgment in itself is not final. It can be revisited and its essence can be changed. It won’t be surprising at all if a petition is filed to reconsider the landmark judgment. It won’t be surprising as well if the Supreme Court agrees to entertain the petition by constituting a more than 13 judge bench just as the then Chief Justice A.N. Ray had done to satisfy his appointer. If that ever happens then it will be upon the citizens of this country to do their bits to safeguard the true nature of India.

Fahad Ghani is a law student at Aligarh Muslim University. He tweets at FahadGhani6.

Also from the same author:

Talking hypocrisy: the case of two pregnant lives

Degeneration of Labour laws: a workers epidemic

A Breach in Freedom: Understanding UAPA



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