00:00This debate that I've ignited today, the opposition saying samvidan khatre mein hain,
00:05the government saying this is a day to celebrate our constitutional democracy.
00:09Do you believe the constitution has served India well over the last seven decades and a half
00:14or are there infirmities in the way the constitution is actually being implemented
00:19by the executive in particular?
00:23Radheer, there are two questions which shouldn't be conflated.
00:28The constitution has served us well.
00:31The answer is an unequivocal yes.
00:34Have we served the constitutional well at all times?
00:37Questionable.
00:38What do you mean by we?
00:41Because I used this quote earlier of Nani Palkhiwala, the great jurist who said,
00:46we have a first-rate constitution, but it is the people who have in a sense failed the constitution
00:53or rather the elected representatives who failed the constitution.
00:57Of course, when emergency was declared in 1975, it was not the failing of the constitution.
01:04Every constitution has provisions to deal with emergencies.
01:09Now, if we declare a phony emergency, it's we who are failing the constitution.
01:14It's not that the constitution is failing us.
01:16The constitution is meant to accommodate all kinds of thinking.
01:26You can have leftist leaning, rightist leaning.
01:29You can have different definitions of government.
01:36And it is for good reason that the framers of the constitution didn't add controversial
01:40and ambiguous words like secular, socialist, and all this in the preamble.
01:47And I've personally always been a trenchant critic of these amendments.
01:52And I don't know whether you read, if you read Mr. Palkhiwala's speech,
01:56he was a trenchant critic of the amendment to the preamble also.
01:59And nobody can doubt his commitment to constitutional values.
02:03Right.
02:03So, have we served the constitution?
02:08Well, I must say, we are 75.
02:10India is 75.
02:13We've changed so many.
02:15In two recent lectures, I did a little research and found out.
02:20We have changed 15 prime ministers using a ballot.
02:23We had 15 prime ministers, I think, in the last 75 years.
02:27We've changed government.
02:28We've changed from all complexions of government.
02:30We had Congress-dominated majority governments.
02:34We had coalition governments.
02:36Now, you have a BJP-dominated majority government.
02:40You've had majoritarian governments.
02:42You've had Rajiv Gandhi with, I think, he had possibly the largest.
02:46That's right.
02:48And the constitution accommodates all of this.
02:55The fear, Mr. Salve, is are we now conflating the fact that
03:00we have elections every five years, prime ministers across parties are elected
03:05with the criticism that slowly but surely we are becoming an electoral autocracy
03:11where fundamental rights of the citizens get undermined,
03:15where it's no longer a level playing field when it comes to Indian democracy.
03:21Are we an elected autocracy?
03:23Do you believe that we are veering towards that?
03:25Is there a democratic recession that you see?
03:27Sir, first of all, the constitution, no constitution in the world,
03:32unfortunately, which provides for elected government has a level playing field.
03:39Do all the people who contest elections, and there's so much talent out there
03:43which never makes it to parliament, because you don't have a level playing field.
03:48There are certain things inherent to an electoral democracy.
03:52Do you think every American has equal right to become president of America?
03:57In theory, yes.
03:58In practice, no.
04:00Do you think everybody in the United Kingdom,
04:01United Kingdom is much smaller with a much larger number of MPs,
04:05your cost outlay is much lesser?
04:07I have for decades been an advocate of state funding of elections,
04:12and when I say state funding of elections, you don't necessarily have to write checks.
04:16You can make common facilities available,
04:18which the election commission can disburse, etc., etc.
04:21That's a debate for another day.
04:23But we don't want to talk about that,
04:25because everybody, when he is in government,
04:27doesn't want to create a level playing field.
04:29You realize the unevenness of the field,
04:32only when you are on the wrong side of the field.
04:34Sir, but, you know, the concept of elections
04:36is only one part of the constitution.
04:38It's about ensuring that the fundamental rights of citizens are protected.
04:43Concepts that Ambedkar put out of equality, liberty, fraternity.
04:46Do you believe those concepts are really being observed in letter and spirit
04:51by, indeed, the lawmakers, or, indeed, the law of this country,
04:56the judges of this country, or are there serious lacunae there?
05:01Well, in theory, the constitutional rights are all in place.
05:07And after the Koelo judgment, we have lucked in the constitutional rights.
05:10They cannot even be amending.
05:12How are the constitutional rights to be protected?
05:14The one area, and the one area where the judiciary has, in one sense,
05:18supremacy, is enforcement of constitutional rights.
05:21That is why Ambedkar did something very unusual for the Indian constitution.
05:26A, he expressly conferred the power of judicial review of legislation.
05:31We didn't have to invent it like the Americans did in Barbary and Paris.
05:34Our courts have a right to strike down legislation if it violates fundamental rights.
05:38That is a very important step.
05:40And two, the right to move the Supreme Court itself was made a fundamental right in Article 32.
05:49So, by which the signal of the constitution was,
05:52when it comes to constitutionally defined fundamental rights,
05:57the judiciary is the last word.
05:58And I must say, especially post-Krishnaya,
06:03the development of our fundamental rights jurisprudence is a marvel.
06:09And the world respects for what our courts have developed, our system.
06:14We've read in gender justice.
06:15We've read in due process.
06:16We've read in the right to privacy and so on and so forth.
06:19But if you find today that there is an overall feeling that the Supreme Court is failing to protect the constitution,
06:25we need to go back and see.
06:26And there is a lot which is troubling the judiciary today.
06:30So, what is the biggest challenge?
06:32You know, in conclusion, what, according to you, is the biggest challenge in a way
06:36that will, for those who would like to see the letter and the spirit of the constitution
06:42actually translate into concrete action on the ground?
06:46See, first of all, I think our political system needs to be a little more responsible.
06:55If the last word on the constitutional rights has been given to the judiciary,
06:59you cannot say I, as a politician, will define what is my understanding of the fundamental right.
07:04And if the Supreme Court doesn't agree with me, the system doesn't work.
07:07Today, we've reached a, either you're with us or you're with them kind of an attitude in public life.
07:13Either it's my truth and your truth.
07:15If you agree with me, you're a great judiciary.
07:18If you don't agree with me, you're a subservient judiciary.
07:21Now, that's not the way for approaching, at least for senior people in public life, for approaching.
07:28Yes, you can criticize a judgment saying, here are the intellectual flaws in this judgment.
07:34And we have a debate.
07:37Democracy is all about many voices.
07:39Democracy is all about debate.
07:41And the Supreme Court, least of all, should be about criticism.
07:46Least of all.
07:47Because the Supreme Court is the last word of the law.
07:49And they have to be criticized.
07:51Their judgments have to be criticized if you find them wrong.
07:55Not on a broad base saying, oh, I'm so sorry, the Supreme Court has decided against me.
07:59But go to the judgment and say, this is where they've gone.
08:01And I say, for example, the Supreme Court judgment, which upheld some draconian powers of the enforcement directorate, is a disaster.
08:10I say so.
08:11And I can give you very strong, it's a debate for another day.
08:14But I can give you strong intellectual reasons, where the Supreme Court has gone wrong.
08:19Not because I don't like the face of the judge, but because I say, this is where the Supreme Court has gone intellectually wrong.
08:25Bail cases where the Supreme Court has denied bail.
08:27I've always said, where did this drift happen from Krishna Ayers bail, not jail?
08:33Where have we gone into jail, not bail?
08:35So, that's exactly where, you know, you've hit the nail in the sense in that last answer.
08:41What you're calling for is at least some element of introspection amidst the celebration of Constitution Day.
08:47Am I correct?
08:48Of course.
08:49See, I celebrate my Constitution because it calls for introspection every single day.
08:56Since you started by quoting my guru, let me tell you what he always said.
09:00He used to always say, democracy is a ceaseless endeavor.
09:06It's not a safe harbor.
09:08Democracy means debate all the time.
09:12Very, very, you know, very fascinatingly put there.
09:17And I think quoting Nani Palkhiwala is a nice way on this Constitution Day to remember one of our foremost jurists.
09:24And he, in a sense, sends out a message to all of us that we have to continue to be sentinels in a way to ensure that our Constitution is not...
09:34I will end with only one thing.
09:36Yes.
09:36Only one last thing.
09:37There's only one time when the Constitution was seriously under threat.
09:41And that was 1975.
09:43And the court catapulted.
09:45Who saved democracy?
09:48You and me and our previous generation saved democracy.
09:52Ultimately, even the political system knew this was unsustainable in India.
09:57Till that fire of democracy burns in your heart, burns in my heart, and burns in the heart of our fellow Indians, our Constitution is safe.
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