India’s Constitution And Internal Unrest

Many of us were disturbed and shocked from the comments made by a Justice from the bench of the Supreme Court against Ms. Nupur Sharma.

Before her trial had even commenced, a judge from the highest court of the country had engaged in language which was unmistakably inculpatory. While the Justice later clarified that his views were personal, the very airing of these views, that too within the precincts of the court as he sat on its hallowed bench, is anathema to fair trial.

Willingly or otherwise, the context of the Justice’s comments would make the common man of the country believe that he was speaking in institutional capacity, sending a chilling message across the nation.

The story does not end there.

Even as Ms. Sharma faced a barrage of death and rape threats, the Supreme Court declined to club sundry FIRs filed across the country against her, going against their own precedent established in Arnab Ranjan Goswami vs. Union of India, 2010.

As the CJI had said in 2010, “subjecting an individual to numerous proceedings arising in different jurisdictions based on the same cause of action is a violation of fundamental rights.”

However, the bench dismissed her plea with puzzling reasoning: as she was not a journalist, the 2010 precedent did not apply. The Court’s own stance on anti-arbitrariness, which has rendered yeoman service to this nation, stood diluted.

After immense public outcry, the Supreme Court relented in August 2022, and gave a brief order which granted her the relief which she was denied just two months prior. The order missed a critical opportunity to correct perceptions by expressing discomfiture and disapproval at the earlier comments.

The Supreme Court has time and again harkened back to Justice Hewart’s iconic words in Rex vs Sussex Justices, 1924, that “Justice must not only be done, but must also be seen to be done”; the lack of an institutional response to aggravating, albeit personal, comments coming from the bench inflicts an injury upon the law.

As expected, there was deafening silence from the woke corners of the legal fraternity throughout this sordid saga. It seems that for many, the fair and equitable rule of law counts ideology as an exception.

Four questions spring to mind from this entire saga, which frame the entire discussion we are having today.

1. The Constitution itself does not recognise journalists as a separate class of persons; the same protections which any citizen enjoys, a journalist enjoys as well. Yet, why was Ms. Sharma’s lack of journalistic background held to be sufficient to exclude her from procedural protections?

By no means is the above example isolated, or an outlier in relation to the general trend.

Bengal, time after time, has witnessed attacks on Hindus. Its Chief Minister, Mamata Banerjee, organized a grand Eid spectacle this year. Dressed in pristine white, and sporting a culturally alien head covering with clear religious symbolism, she proudly presided over an explicitly Islamic congregation in Kolkata where Namaz was included in its proceedings.

Her verbal message was even more disturbing than her presence: "Today they (the BJP) are changing history, they are changing the Constitution. I ask you all (Muslims) to promise to fight against them and not be scared”.

On the very same day, a sadhu’s body was found hanging outside a temple in Birbhum district.

The above use of her Constitutional position in a communal, inflammatory, and anti-national manner is dishearteningly yet to invite any action from this country’s judiciary, or scorn from its ‘eminent’ jurists.

The same chief minister more recently has banned the screening of the movie The Kerala Story on the grounds that it might affect the sensibilities of the Muslim community even after the screening of the movie was passed by the censor board.

Mercifully the Supreme Court has held this ban to be ultra vires but the entire sequence of decisions and statements made by this chief minister over the years betrays some extra-constitutional concern towards a community who she perceives to be an important vote bank for her electoral fortunes.

The protectors of the Constitution, as the judiciary has pronounced itself to be, granted bail to Kanhaiya Kumar from JNU, as he, in the words of the presiding judge, “might have introspected about the events that had taken place” during his custody.

AltNews’ founder, Mohammed Zubair, too is is free after spearheading informational warfare on the Indian people, and repeatedly insulting Hindu deities.

Such bad faith actors have abused the protections of Article 19(1)(a), and used the cover of freedom of speech and expression to foment unrest.

Similarly, while victims of anti-Hindu pogroms on Ram Navami were shown the way to the High Courts, the Court had previously gone out of the way to organize an extraordinary hearing within a matter of hours to grant an out of line bail to Congress spokesperson.  

All of the above instances are not merely judicial or constitutional failures. They are active instances of propagating internal unrest through the misuse of the Constitution by mala fide players, to which the legal response is wholly inadequate.

Unrest is not merely physical violence and disturbances, which obviously will increase in such a scenario. It is also mental and civilizational unrest raising damaging doubts about one’s culture, society, even identity.

The Supreme Court hosts a whopping 70,000 pending cases today, which is a major factor for the negative popular perception regarding its efficacy.

Who we are---as individuals, as communities, and as a nation---is being methodically deconstructed into oblivion by proliferated vested interest groups who misuse constitutional protections. It certainly sows unrest.

1. A Constitution Unmade

In each of the above cases, the nebulous, and perhaps rightly so, right to the freedom of speech and expression enshrined in Article 19(1)(a) stands central, orbited by the various restrictions present in Article 19(2).

What were plainly worded and fairly straightforward instruments of maintaining social peace have been rendered toothless and nigh non-existent over the years, except for when one commits the sin of espousing the wrong ideology or religion as Ms. Sharma did.

Thus, Salman Rushdie’s Satanic Verses remains banned, while Wendy Doniger’s drivel remains in circulation.

One does not need expertise in constitutional law to agree with the jurist Scanlon: one cannot place blame when an act of expression leads a third person to believe, or increased their tendency to believe, these acts to be worth performing.

If Ms. Sharma’s factual expression alone is sufficient to establish her culpability for the horrible acts of persecution performed by persons unknown to her, the same principle ought to apply uniformly.

However, judgments such as Kaushal Kishore vs State of Uttar Pradesh & Ors., 2023, show that is not the case. If the Court had stuck to the Nupur Sharma standards, the legions of the dubious elements and useful idiots which comprise the 'tukde-tukde gang' are to then be held responsible for all of the internal unrest they have unleashed.

Let us return to the limitations on the freedom of speech and expression.

Few people realize, but Article 19(2), which contain the eightfold restrictions on the right to freedom of speech and expression enshrined in Article 19(1)(a), were considered transitionary by their draftsmen.

The formidable quartet of Vallabhbhai Patel, B. R. Ambedkar, Jawaharlal Nehru, and Alladi Krishnaswamy Iyer had assured the Constituent Assembly that the State would not misuse powers under 19(2).

While some may call it short-sightedness, what it instead points towards is that these provisions were designed to be transient, flexible, and subject to a wide interpretation based on national exigencies. The authors of the Constitution expected at least this particular provision to evolve with amendments, and perhaps wholesale substitutions from time to time. 

The Supreme Court’s dependence on Anglo-American jurisprudence and alien ideologies, which espouse an innate distrust of the State as well as limit social control over individuals, came to be reflected almost immediately after independence.

1950 witnessed an important case by the name of Romesh Thapar vs. State of Madras.

In the interests of public safety and public order at a time which was severely chaotic and volatile to say the least, an inciteful magazine was banned from circulation.

In a gravely disappointing verdict, the Court stated that while the security of the State was a reasonable restriction enumerated in Article 19(2), public order and public safety was not. The Supreme Court endorsed the extremely narrow interpretation that the security of the State was limited only to attempts at violent overthrow of the State apparatus, and not the nation.

Thus, the very first amendment to the Indian constitution was made to override this view, which included “public order” as an entry under Article 19(2).

The ghost of Romesh Thappar continues to haunt the informational, social, and cultural security of the nation; the Supreme Court today holds the limitations under Article 19(2) to be exhaustive per Kaushal Kishore vs State of Uttar Pradesh & Ors., 2023.

Accordingly, even other parts of the constitution such as the Directive Principles of State Policy or the Fundamental Duties cannot inform the application of limitations on speech. 

The Supreme Court’s jurisprudence on the matter leaves very little left to imagination.

Ranging from specific insults to Hindu deities (such as in Kamal Haasan v Aadhinatha Sundaram, 2021 Mad., where the Pandavas and Draupadi were presented in a tainted light) to an explicit protection of terror sympathisers (wherein Shyam Balakrishnan vs State of Kerala, 2015 Ker., the court stated that “being a Maoist is of no crime”.), the field is left open for all forces inimical to India to work freely, with full constitutional protection.

There has to be accountability and course correction for all the unrest which puzzling judgments such as Balwant Singh v State of Punjab, 1995 spawn, where something as grave as openly shouting secessionist slogans in public was decriminalized.

A good constitution in the hands of bad executors becomes a bad constitution; unscrupulous elements have time and again used the law as a shield for their anti-national activities.

Cynically speaking, a "constitution is whatever the judiciary makes of it", as an American judge, Charles Evans Hughes, once said.

Effectively, it means that a constitution is but devoid of any intrinsic meaning whatsoever; once its makers have left the corridors of power, the judiciary speaks on the constitution’s behalf.

Any decently drafted constitution is of necessity, selectively ambiguous. But if linguistic ambiguities lead to outcomes that can lead to public unrest, then the judiciary itself must be called to task.

One must ask why English and American judicial tests have been transplanted into our legal system, when our society is of a fundamentally different nature.

Likewise, the question needs to be asked as to why the individual opinions of officeholders and celebrated lawyers prevail over existing social mores, opinions, and voices of elected representatives during the interpretation of the constitution. We are supposed to be a democracy. Asking this question is an inalienable right of a citizen. 

Current judicial interpretations of words and phrases like "free speech", "sedition", "public order", "public safety", "calculated tendency", "opinions that might persuade", and "incitement" have unanticipatedly resulted in a continuous stream of demonstrations, street violence, killings, and disturbances; bad faith subversives use constitutional protections to weaken the nation through actions which often have sectarian undertones and political underpinnings.

The inevitable consequence of transplanting foreign jurisprudence and an obsession with individualism is unrest.

The judiciary has turned Articles 19(1)(a) and 19(2) into ever-expanding absolutes chipping away at necessary social control, where self-contradicting judgments which stretch thin the language of the constitution beyond recognition have been normalised.

The problem is not with the wording of the law. The problem is with the methodology of those who decide on what those words mean. Why call ourselves a democracy when the society is robbed of the choice to decide the limits of social discourse, and unelected and self-appointed bodies dictate fundamentally social determinations?

A jurisprudence based on India’s civilizational understanding is the need of the hour.

2. Legacy of the White Man’s Burden

The makers of the constitution presumed that they will be succeeded by fellow paragons of virtue, who will be sufficiently anglicized to respect archaic and largely unwritten institutional limits inherited from the British.

Therefore, the wholesale adoption of the Government of India Act, 1935, as the basis of our constitution was pushed through.

What followed were repeated violations of social Lakshman rekhas, and an attempt to shape Indian society along Anglo-American lines. Under the guise of a so-called “transformative” constitution, there have been instances social engineering.

Whither Bharatiya civilization?

The Macaulayist project of civilizing the barbaric, backward Hindu continues under post-colonial management---political, bureaucratic, and others.

The constitution’s provisions were freely used to systematically destroy Hindu cultural and religious life, especially in southern India. An activity as central to the temple as appointment of temple priests has been handed over to the State’s caprice in Raja Birakishore vs. State of Orissa, 1964, and the ancient laws of Sabrimala were crushed under the weight of legal ingress in Indian Young Lawyers’ Association & Ors. vs The State of Kerala, 2018.

The oddity of the sole woman judge on the latter case’s bench dissenting and standing up for Hindu religious rights in a case concerning the entry of women in temples warrants no further comment.

The artificial separation of “secular” and “religious” functions in a religious organization vide the Shirur Mutt case of 1954, as also the strangeness of those trained in English law deciding upon the tenets of Dharmic faiths to determine what practices constitute “essential” in line with Sardar Sarup Singh vs State of Punjab, 1959, has devastated the social fabric of Dharmic communities.

The constitution is being used to invent methods of interfering in matters of faith such as in Sabarimala, or matters of deep social consequences such as sexuality and marriage (Supriyo Chakraborty & Ors. V Union of India, ongoing).

The rajya has been made powerless, and more tragically, the rashtra has been rendered invisible. Indeed, when one can enshrine “security of the State” and “sovereignty and integrity of India” as grounds for limiting speech, why is it that the security of the nation, namely the rashtra, is left completely unprotected when interpreting the entry “public order” present in Article 19(2)?

There is a pressing need for the judiciary to respect the popular mandate.

This is not about executive or legislative overreach, or judicial activism; it is about the right of the society to tread its own path, and the right of citizens to shape the direction which the nation must take.

A society and its infinite constituents embedded within a civilization necessarily enjoy a significant degree of autonomy from the State, which is the only reason why Bharat has survived despite countless onslaughts.

There are matters which are for the society alone to adjudge, independent of the institutions of the State. There was a reason why the Supreme Court’s motto is Yato Dharmastato Jayah (where there is Dharma there is victory).

3. Reverting from a Republic to saying “Your Lordship”

Despite many early failings, overall, the judiciary rightly accepted the fundamental premise of a democracy, namely that the ideological, social, and overall political direction of the country is vested exclusively with the people of this country, and is reflected by its duly elected Parliament.

The British doctrine of parliamentary sovereignty was replaced with a more substantive doctrine of popular sovereignty, i.e., the supremacy of 'We, the People of India', as the preamble goes. Thus, in Rustom Cavasjee Cooper Vs Union of India 1970, the Supreme Court held that the court is only required to adjudicate the legality of the policy, its coherence with the Constitution, and not its contents, merits or demerits.

Then came the shock of Kesavananada Bharati v State of Kerala, 1973, after which the judiciary became veto holders on any popular move to amend the constitution in a manner which is more befitting of the society’s views and opinions.

The media was profusely extolling the virtues of this judgment a few days ago, on its anniversary. T

he judgment, to simplify, essentially says that there is a so-called basic structure to the Constitution which is so sacrosanct that no amendments may be allowed to distort the constitution beyond this basic structure.

Most importantly, what exactly constitutes this basic structure? No one knows.

The issue is indeterminate to this day.

Even in 1973, the judges who gave the verdict could not agree on what specific things constitute basic structure. Thus, there is a dangerous possibility that any warranted constitutional amendment may be struck down by invoking an undefined, vague, basic structure.

The basic structure doctrine suffers from arbitrariness arising from its definitional ambiguity, and also a hazardous rejection of popular sovereignty in a democratic republic.

The jury is still out on judicial overreach inherent in this judgment as well.

The Constitution has thus slowly drifted away from being a faithful reflection of their aspirations.

Thus, there is a complete imbalance of powers in the three wings of government at the moment; the will of the people has become immaterial in the face of the judiciary’s pronouncements. 

Judicial accountability has also emerged as a key source of unrest.

The self-appointing nature of the judiciary is deeply distressing. The constitution’s words are plain and simple in Article 124: “Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose”.

Come 1998, in SCAORA vs. Union of India, the judiciary read the word consultation to mean concurrence, i.e., the President is bound by the names which the judiciary advances for appointments.

Furthermore, the opaque, unaccountable, and extra-constitutional system of the collegium was set up, where the Chief Justice along with his four senior-most judges, behind closed doors and little transparency, decide who will join their ranks.

The resultant debate concerning apparent nepotism does have a point. One only needs to draw the family trees of present judges and trace them back to the 1950s to see why it faces such criticism (rightly or wrongly, the authors do not comment on this).

Justice Ruma Pal, a former Supreme Court judge herself, called it as “one of the best-kept secrets in the country” in 2012. The severe pushback to the stillborn National Judicial Appointments Commission was a step backwards.

Therefore, today, the judiciary maintains a monopoly on meaning, and thus power, itself.

When the Chief Justice says that “We've never seen ourselves as bound by the original interpretation of the constitution. So then should we be bound by the original interpretation of a statute?”, such ontological concentration of power is destabilising in a society as complex and decentralised as India.

The residual, almost petulant defence undertaken by some is repeated ad nauseam: the judiciary’s independence protects us from majoritarianism and defends democracy.

How is it that having no right to vote for a decision having immense impact on the nation is undemocratic, and a majority ought not to have its way?

What is the pressing need to protect us from ourselves? Is India’s prajatantra and ganatantra so fragile that we need judicial microcontrolling?

Our frank analysis is that Indira Gandhi’s excesses had horrified the nation to such a deep extent, that when the judiciary overreacted in limiting governmental abuse, Indians supported it wholeheartedly.

It was a counterreaction to the dark days of the Emergency and its preceding horrors.

The pitfalls of letting this process continue unabated have of course led to the problems we have delineated.

Is today’s India still the India of Indira Gandhi? Are we really this foolhardy that we made absolutely no progress in 40-odd years?

The society has been rendered helpless and devoid of informational control when faced with increasingly subversive speech. As the use and manipulation of the Internet and technologies such as AI progress, the present views of the judiciary leave the rashtra vulnerable to enemies of all hues, within and without.

We face an increasingly hostile world, which finds India’s civiliSational and economic rise to be too dangerous.

From Soros to Stan Swamy (who was infuriatingly described as a ‘political prisoner’ by Western press), threats to the nation are multiplying rapidly. The present judicial approach, in general, will compromise the interests of the society in the face of individual rights being used by savvy subversives as a masquerade for anti-national activities. We require a national, and not just a judicial, consensus on this matter.

4. Towards a Civilizational Constitution

As Judge Holmes in Gitlow vs New York, 1925, correctly stated: “Every idea is an incitement”.

It is the society’s sole prerogative to choose what to expect and what not; the extent of rights and their scope need to be in the hands of society as a whole, not just the judiciary.

What society generally agrees on should be the prevailing definition/ opinion; generality and accuracy are mortal enemies, and the use of microscopic exceptions to demolish the general norm is unacceptable.

For India to survive, it must reimpose the dominant social view notwithstanding the Supreme Court. In other words, the government must carry out its duty to exercise informational control on behalf of the society. The individual must be made secondary in favour of the collective.

The most immediate, low-cost, and perhaps most pressing need is to altogether circumvent the judiciary when exercising informational control.

It is well known that in the U.S.A., extra-legal actions to shape the online discourse are employed. These measures, which are made so invisible that a judicial challenge rarely arises, take one of two forms.

Firstly, social media platforms themselves tend to be open to under-the-table government dealings; all social media companies hire an unusually high number of Western ex-intelligence services officers, moderation teams are known to take direct instructions from intelligence handlers, and lackeys such as Vijaya Gadde of Twitter can actively shape the platform itself.

Secondly, one can go one step further: instead of publicly banning people, the government can ‘shadow-ban’ subversives, i.e., the visibility of specific accounts go practically to zero without any discernible change for the users of a platform.

More effectively, the use of chatbots can be used to give a fake, robotic audience to irritants to sequester them away from real people without them noticing is a method which is almost impossible to trace.

We need these out of the box solutions which have plausible deniability from the government side. In short, one may need to take actions which fulfil objectives of informational control in a manner where these matters don’t even reach the legal system.

Problematically, every government after Indira Gandhi, without exception, have emboldened the judiciary by consistently submitting themselves to the courts in matters where the courts have interrupted social conversations.

Whether it is the Ram Janmabhoomi matter or the ongoing same sex marriage matter, our institutions, including the judiciary, ought to reflect a social determination and exercise patience until the same emerges in a clear fashion.

Courts may not always be the appropriate forum for many key issues, and the courts too ought to exercise caution in taking up these matters.

India’s civilizational nature has imparted a decentralised, autonomous nature to the society, which must be respected by the institutions serving it. Social questions should be allowed to naturally circulate, and a quasi-general decision by the majority should be institutionalised.

This organic process is both our strength and a historical feature to which the English Common Law and its American interpretations do no justice.

For example, we pose an open question as to whether the Ram Janambhoomi decision, welcomed as it was by one and all, would have made a longer term impact on the future of our country if it had been arrived at on the basis of civilisational grounds rather than the the merely archaeological.

The Gyanvapi case seems to be proceeding on similar lines. Will the outcome depend on scientific findings about the age of the lingam, rather than matters of faith that hold that the place has divine sanctity?

The judiciary, as an organ of the State, should be receptive to bona fide criticism.

It occupies a position of power having great consequences for all of us; the right to criticise and speak truth to power is inherent in a democracy.

Axing the Indira Gandhi era Contempt of Courts Act, 1971, and replacing it with a drastically limited statute is an immediate need. Judicial appointments too must be made transparent with at least an executive veto, absolute independence invites questions on accountability.

In the U.S.A., the President recommends names for the SCOTUS, which are confirmed by the Senate. In England, they have a public appointment system with essays, recorded interviews etc.

Our judiciary too should abandon its furtiveness, and allow space to the executive and the legislative.

The problem goes even deeper, however. Our constitution, in itself, is singularly lacking in any Dharmic content. Its preface is taken from the French, its Emergency powers from the Germans, and its scheme of governance from the British origin Government of India Act, 1935.

When compounded with the impact of America’s ongoing social psychosis, the Constitution is rendered an unrecognizable document to which a common man cannot relate.

Summarizing the Upanishads, Dharma is that which upholds, and the Constitution, has relegated Dharma to its margins (quite literally to the margin illustrations which depict scenes from the Ramayana). Without Dharma, no constitution can properly be called a Bhāratiya constitution; the imperatives of the rashtra are what inform the rajya, not the British legacy garnished with Western interpretation.

The endless worship of the constitution needs to be terminated immediately; no document which has been amended upwards of 100 times has anything eternal about it.

A fresh look at a new constitution, which fixes known problems such as appointments, is unavoidable. A truly Dharmic constitution, with a Dharmic jurisprudence mandated thereon, is an inevitability.

As Von Savigny had proclaimed, the source of all law is the volksgeist, or the shared spirit of the people; this has to be indelibly enshrined in our legal system. Preparing the groundwork for the same is a sustained social process, which I hope all of us present here will consider going forward.

By no means do we mean any insult to the judiciary, nor demean it in any way. Our views, we believe, constitute fair criticism under the Contempt of Courts Act, 1971, and no contempt is intended.

Dharmo Rakshati Rakshitaha