Constitution has unequivocally served the people: Harish Salve

India Today

On Constitution Day, former Solicitor General and Senior Advocate Harish Salve discusses the Indian Constitution, asserting that while the constitution has served India well, it is questionable whether its people and elected representatives have.

Transcript

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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