In an exclusive interview with India Today's Consulting Editor Rajdeep Sardesai, senior advocate and Rajya Sabha MP Mahesh Jethmalani discusses the state of the Indian Constitution and its democratic institutions.
00:00How do you see this debate between those who say today constitution is in danger and those who are saying the constitution is the sentinel of our democracy, we should celebrate our constitution?
00:14Well, I don't think the constitution has really ever been in danger except during that brief period during the emergency.
00:20But, you know, I mean, people may have nuanced differences about how institutions are performing their duty, whether they're performing their duty well or not, or at all, is possibly a subject matter of debate.
00:40But the constitution by and large has took the test of time.
00:44In fact, if you ask me, Rajdeep, its very existence, you know, instills in people the idea of popular sovereignty.
00:57So the fact that you had the people of this country, right, once overturn or overthrow a government that subverted the constitution.
01:08And secondly, that we have periodic elections every time, which by and large are fair and free.
01:15I know there's the odd carping about EVMs, which is now buried, and, you know, then about the new SIR and all that.
01:23But by and large, I think the constitution itself has given people a sense of their own power.
01:29And that, for that very reason, I think it survived the test of time.
01:33You're saying the constitution has given people a sense of their own power.
01:36Let me challenge you on that by saying there are those who believe the institutions of our democracy under the guise of the constitution have been captured by whoever is in power and particularly by all powerful governments like the one we have now.
01:50And these captured institutions, whether they're the election commission or an enforcement directorate, all of them become subservient to those in power.
01:58And that's where the Savidhan is in danger.
02:00That's when people's rights are in danger.
02:03Do you agree or not?
02:04Well, I don't know.
02:07See, if you're saying that the criticism is that people who should be manning institutions more independently are, in fact, becoming more subservient, there may be an element of truth in that.
02:24There may be an element of truth in that.
02:25And, you know, I mean, I suppose when you talk about subservience and capture and all that, you're really talking about the judiciary, right?
02:35You're really talking about the judiciary because the judiciary is supposed to be the empire between compliance and transgression of the constitution.
02:44Sir, Mr. Jaitpalani, the judiciary is supposed to be the empire and supposed to protect our fundamental rights.
02:51But I'll tell you, yesterday I interviewed Justice Gawai, former chief justice who just retired.
02:55And he said firmly that this country must be run on rule of law and not on rule of bulldozer.
03:01And then I asked him, why is it then that bulldozers are still allowed to be used to demolish houses without due process?
03:07And he said, that's a question you should ask to those who are meant to implement the laws,
03:11effectively passing the buck on to governments and the executive, the elected representatives who are not doing their function in implementing the laws as laid down by the Constitution, the rights and by the Supreme Court.
03:25But look, first of all, let me tell you, this is a aspect, perhaps, of sometimes overzealous executive action.
03:36All right. That's an aspect.
03:37But that doesn't define the, you know, the Constitution, the operation of the Constitution covers a much wider canvas in this whole country.
03:47Right. And essentially what it is really a charter, it is really a charter for responsible government.
03:55Right. And the if government sees to be responsible, the Constitution is, you know, is premised on the principle,
04:04on the principle that at the end of five years, right, if you are dissatisfied, then popular sovereignty at the polls
04:13has a right to, if there is constitutional overreach, to remove those who are guilty of that overreach.
04:20Sir, sir, but, you know, do we have a level playing field in what you call free and fair elections, given the massive use of money power,
04:31the massive use or abuse of state power, the alleged misuse of agencies like the enforcement directorate?
04:36So you have a free and fair election and constitutional democracy in name, but is it free and fair in reality 76 years later?
04:46I believe it's free and fair in reality.
04:51And look, there's, you know, there's no test.
04:55If somebody has an opinion, right, unsupported by any evidence, then, you know, one can't, one can't, there's no argument here.
05:05We are not, there cannot be a rational debate.
05:07Right.
05:07And it has been tried and tested, as I pointed out, first EVMs were questioned, right?
05:14Now it's this, you know, vote theory business that's going on.
05:19But let me tell you, there's no evidence, A, if there has never been any evidence put forward, right?
05:25I mean, file an election petition, give us instances of that.
05:28And I'm with you.
05:29I think that's, I mean, that's a test of a democracy, a fair and free election.
05:33The litmus test is a fair and free election.
05:35But if you just cop about it all the time, right, you are actually doing a great disservice for the own democracy, which you are a part of.
05:42You participate in elections and predetermined from the very outset, you say this is a big result, then don't participate.
05:49Mr. Jaitmalani, let me raise another contentious issue.
05:53Are minority rights protected?
05:55Ambedkar spoke of fraternity, equality and liberty as the centerpiece of his constitutional vision.
06:05Do you believe that today minority rights in this country are adequately protected in our constitution?
06:10Or is the flaw or fault lies with those who implement them?
06:14Because Nani Palkhiwala, I come back to it, said it's not the constitution that has failed the people, but the electorate representatives who have failed the constitution.
06:21Do you agree that on concepts like secularism, fraternity, minority rights, we have failed?
06:26Radheep, he did say that, and to a large extent, yes.
06:34But Nani Palkhiwala was not talking at a time when Hindutva, right, was a predominant doctrine, right?
06:41So I don't know what he had in mind, but certainly I think he was talking more about curtailing of freedoms.
06:49He was a champion of individual liberty and so on and so forth.
06:52So I think his perspective came from there.
06:55But sir, it's those individual liberties one fears that are still compromised.
06:59You're a lawyer, you know, a respected senior lawyer.
07:02How even the basic principle of bail not jail, as Krishna Iyer said it out, is getting reversed.
07:09Individual liberties are being compromised.
07:11People spend years in jail without a trial, without access to a fair trial.
07:15Don't you believe all of this undermines the constitution?
07:19Let me put it even more directly.
07:20As a senior constitutional lawyer who's appeared for the government also at times,
07:25can you firmly today put your hand on your heart, sir, and say that the soul and spirit of the constitution,
07:30as drafted by Dr. Ambedkar, is perfectly safe in today's India?
07:35Put your hand on your heart.
07:36I can put my hand on my heart and say with conviction that all democracies and all constitutional democracies in general, right,
07:49have severe imperfections, right?
07:51But it still means that while it's an imperfect form of government, it is still the best form of government.
07:59Razit, can I just ask you a counter question?
08:01I don't like to do that normally.
08:02What is a better system of government than that which we have, right?
08:06And let me tell you, if there are men who fail that constitutional system in our country,
08:11there are equally more men who do it in other countries.
08:15Actually, if you ask me today, we are a much better functioning democracy than both the UK and the US.
08:22You're saying that we are a better democracy, constitutional democracy, than the US and the UK.
08:27It's a big claim you're making.
08:28You're claiming Indian democracy is more effective than the United Kingdom and the US.
08:32Yes, yes, because let me tell you something.
08:39There are two things that are happening overseas, right?
08:42One is there is tampering with the judiciary to a bigger scale than here, right?
08:47Actually, the system permits it because any party in power actually has the advantage of fixing the final court, right,
08:58with their own nominees.
08:59That is the US Supreme Court, right?
09:02So that's one aspect.
09:04The second aspect is, right, that we have a more robust, we have a more robust electoral system than anybody else.
09:12Sir, you know, Mr. Jaitpalani, we may have a more robust electoral system,
09:16but I would contend we don't have enough checks and balances within that system, whether it's the nature of our policing,
09:22whether it's the nature of our judiciary at different levels, which is accused, incidentally, of having got compromised, not independent enough,
09:30whether it is the fact that the executive has become more dictatorial and authoritarian,
09:34whether it's the legislature, which many believe is reduced to a notice board,
09:38whether it's the media, which is seen by many to have been captured.
09:41But, Mr. Jaitpalani, you tell me, where is the real pushback in our system?
09:45Where are the checks and balances that are there in the United States or possibly even in the United Kingdom?
09:52What great checks and balances have you had in the United Kingdom?
09:58I mean, there you have, in the United States, you've had a president, ex-president,
10:04who has pardoned both himself and his entire family.
10:08That's never happened.
10:09That kind of self-interested nepotism has never taken place in this country.
10:17So, the judiciary there has been a party to it.
10:20They've not, they've not, till today, I don't know whether you can,
10:25whether the U.S. judiciary can go into the question of pardoning, right?
10:30But it certainly hasn't done anything to stop this very, very blatant abuse, the most blatant abuse.
10:36So, what you're saying, Mr. Jaitpalani, we have a first-rate constitution.
10:41You believe that the dangers are exaggerated.
10:43But at the same time, you do accept that we need to see stronger institutions that are more robust.
10:48Am I broadly correct?
10:51Yes, substantially more robust.
10:53Let me add an adjective and say that, yes, I go to that extent, that we are still a far cry from being at least a pretty good democracy, right?
11:05We are among the top few democracies in the world today, right?
11:09And I pride myself, I pride India, I take pride in the fact that I'm an Indian.
11:13And I can criticize people sometimes, of course, you're right, that the police will come down at the behest of some politician and crack down on you.
11:22But those are instances, by and large, which country you have a leader, which get incessantly going on, saying things like,
11:29I mean, you've not only put unproven charges or unsubstantiated charges against a top leader of this country, but you fail to come with evidence against a systemic, what you allege is a systemic abuse.
11:45So, let me ask you in conclusion, very quickly, do you really believe there's enough space in Indian democracy for true dissent?
11:51Yes, I think there's enough space for dissent, but dissenters will always feel, right, until they come to power, that the system is not perfect.
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