- 2 days ago
Senior Advocate and Congress MP Abhishek Manu Singhvi discusses the state of the Indian Constitution with India Today's Consulting Editor Rajdeep Sardesai.
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00:01But my top story tonight.
00:03Today is the day when the republic was given a constitution,
00:07a document that many believe transformed this country.
00:12It's an important day, therefore, in India's history,
00:15and the nation celebrated the 76th Constitution Day.
00:19But it also should come with some introspection.
00:22Is the constitution in danger, as the opposition parties suggest,
00:26or does it still remain a strong and thriving protector of our democracy?
00:31That's the question I'm going to raise with some of the country's top legal minds today.
00:36But first, to remind you that our political leadership sparked off a debate on this occasion.
00:41While a special event was held at the Central Hall of Samvidan Sadhan,
00:45attended by the President, Vice President, Prime Minister, and Leader of Opposition and MPs,
00:50President Draupadi Murbu claimed the constitution helps India move away from a colonial mindset
00:55and embrace a nationalistic approach.
00:57Prime Minister Narendra Modi, in an open letter, also paid tribute to the constitution,
01:01saying it enabled a person like him to serve for 24 continuous years.
01:07But the opposition, on the other hand, has also hit out.
01:10Leader of the opposition, Rahul Gandhi, took a pledge once again to protect and shield the constitution
01:15from what he said was an assault it was facing.
01:18He urged everyone to take a pledge not to allow any kind of attack on the constitution.
01:24So the big question I want to raise,
01:28Samvidan khatre mein hain, or is the constitution a true protector of our democracy?
01:35My first guest joining me now is Abhishek Manu Singhvi,
01:39fourth-time sitting MP of the Congress, but also himself a senior lawyer
01:44and someone who has studied the constitution over the years.
01:48Appreciate your joining us, Dr. Singhvi.
01:51Is it an exaggeration on this special day to say, as your leader Rahul Gandhi said,
01:56that Samvidan khatre mein hain?
01:58Is that not fear-mongering?
02:03You're on mute, sir.
02:05You're on mute, Dr. Singhvi.
02:06There are no binaries in such debates.
02:11You know, we frame it, black and white, never.
02:13Constitution undoubtedly is our protector.
02:15Constitution undoubtedly is a fantastic concept, commitment, idea.
02:20And I have a personal, you know, remembrance about it,
02:25because my father drafted the charter for the Law Day,
02:28which has now become the Constitution Day, rightly.
02:30After almost 30 years, it was celebrated across the country
02:33in the Supreme Court and the High Courts as Law Day.
02:35And he had hand-drafted that charter.
02:38But ultimately, we have to...
02:41Nobody who's debating today is entirely wrong or right.
02:45Nobody's saying that it's a binary of black and white.
02:47But we certainly have huge areas,
02:50humongous areas of operational improvement.
02:54It's a Constitution...
02:55Give me one example.
02:56No, no, let's be...
02:57I'll give you more than one.
02:58It's not me who struck the binary.
02:59It's the politicians who have given me two or three areas
03:02where you specifically believe that Constitution is in danger.
03:06I'll give you more than one.
03:07But only one sentence before that.
03:09We, as Ambedkar said,
03:12a Constitution by itself is neither good or bad.
03:14It is man who is vile.
03:16How you operate it and the institutions,
03:18man or woman by person.
03:19So let me come to my examples.
03:21There are, Rajdeep,
03:23institutional pillars of Indian democracy
03:25and there are non-institutional pillars of Indian democracy.
03:28Non-institutional are sometimes more important.
03:30Secularism.
03:31A very little known word of our fraternity.
03:35Federalism.
03:36Now, you put your hand on your heart
03:38and tell me
03:39the much abused word secularism,
03:41the much misunderstood word,
03:42by any reckoning,
03:43can it not be said that large parts of it,
03:46large facets of it
03:47are endangered daily in our lives?
03:50That's one.
03:51Fraternity,
03:52which is the antithesis of divisiveness,
03:54of doubt and suspicion
03:55on brother against brother,
03:58is a very closely linked concept to secularism.
04:01That also is,
04:03in everyday incidents,
04:04we find endangered.
04:05And so also,
04:06I would say,
04:07with all the nice rhetoric about cooperative federalism,
04:10competitive federalism,
04:10actually,
04:12federalism from the governors
04:14to the,
04:15you know,
04:16the fiscal transfers
04:18to
04:19the nature of the actions
04:22of sometimes governors,
04:23sopari agents of the center,
04:25etc.
04:25All three
04:26non-institutional pillars
04:28are clearly endangered.
04:29Let's come to the institutional pillars.
04:31There are very many
04:32from parliament,
04:34election commission,
04:35judiciary,
04:36CAG,
04:37the investigative agencies,
04:40and so many more.
04:42Now,
04:43again,
04:44we don't have time
04:45to go into individual examples,
04:46but can you really say
04:47that in the last many,
04:49many years,
04:49there has not been a diminution
04:51of several institutions?
04:52Why?
04:53Because
04:54you have
04:55an overriding sense
04:56of control freakism.
04:58You must control
04:59an institution,
05:00the whole object
05:01which is not to be
05:02designed for control.
05:03It is designed to
05:04run the constitution,
05:06not for your control.
05:07That is found
05:08in investigative agencies
05:09which are one smaller part
05:10of our constitutional scheme.
05:12But certainly parliament,
05:13the kind of overarching
05:14divisiveness we have
05:15in parliament
05:16as if
05:16a majority
05:17gives you the right
05:19to do anything you like
05:20and however you like it.
05:22The election commission
05:23has come in
05:23for a lot of question marks
05:24and you can always
05:26have a debate
05:27that this is all wrong
05:28and the election commission
05:28is being attacked.
05:30But today,
05:31the attitude
05:31of the election commission
05:32is another competitor
05:34in the political scene
05:35which should never be.
05:35It's an empire.
05:36So you're talking about
05:37institutional elements
05:38of the constitution
05:39and non-institutional
05:41elements
05:42that you believe
05:43are under some kind
05:44of siege or threat
05:46some of which
05:47are basic structure
05:48features
05:48of this constitution.
05:50I'm reminded
05:51and I'm going to ask
05:51all my guests this.
05:53Nani Palkhiwala,
05:54legendary jurist
05:55saying it is my firm
05:56conviction
05:57that it is not
05:57the constitution
05:58which has failed
05:59the people
06:00but it is our
06:01chosen representatives
06:02who have failed
06:03the constitution.
06:04So we have
06:04a first class document
06:05which has been
06:07over the years
06:08eroded including
06:09by your party
06:10in the 1975 emergency.
06:12Dare I remind you
06:13all of which
06:14have led
06:15at some way
06:15to an assault
06:16on the constitution.
06:18So while you tell me
06:18about democratic rights
06:19today and institutional
06:20infirmities today
06:22there will be those
06:23who will say
06:23those infirmities
06:24also existed
06:25when congress governments
06:26were in power.
06:27every government
06:27has in some way
06:28or the other
06:29assaulted the constitution.
06:31Absolutely.
06:33Nobody can say
06:34that anybody
06:34is completely
06:35blemishless
06:36but let me tell you
06:37is this not
06:38water vautery?
06:40So something
06:41happened
06:41in 1977
06:43which may be
06:44considered
06:44a constitutional
06:45aberration
06:46though constitutional
06:47aberration
06:48is an oxymoron
06:48but let's take that.
06:50Does it have
06:51any charter
06:52or license
06:52for what to do today?
06:53What kind of
06:54water vautery is this?
06:55Why should you
06:55take you back
06:56to then?
06:57We are concerned
06:58with here and now.
06:59We are concerned
07:00at least with 2014
07:01to 25
07:02a clear decade.
07:03Is it an answer
07:04to say that something
07:05wrong happened there?
07:06Of course wrongs
07:06must have happened.
07:07But today
07:08I have no hesitation
07:09in saying
07:10that the degree also
07:11that is one
07:12is that argument
07:12of water vautery
07:13the other is the degree.
07:15The degree
07:15the consistent degree
07:17the invariable degree
07:19the unvarying degree
07:21of several of these
07:22institutions
07:23starting from
07:24the non-institutional
07:25pillars of fraternity
07:26and secularism
07:27and federalism
07:28has been consistently
07:29eroding.
07:29With new regard
07:30should they not
07:31be protected
07:31by the profession
07:32which you are
07:33a part of
07:33the judiciary
07:34if there are
07:35these transgressions
07:36taking place
07:36of the constitution
07:37if there is a
07:38violation of the
07:39fundamental rights
07:40of the individual
07:40I would have
07:41presumed that is
07:42where the Supreme
07:43Court is supposed
07:43to step in
07:44has it done
07:45what it should do?
07:46What do you think
07:47we do every day
07:48Rajdeep?
07:49The court does it
07:49and we do it
07:50as lawyers
07:50but there is
07:52an important point
07:53to be remembered
07:53adjudication
07:55through courts
07:56is individuated.
07:58It is not the
07:59class mass
08:00for the whole nation
08:01as a whole.
08:02So you have a problem
08:03you go to court
08:03there is a notice
08:04there is a reply
08:05there is a rejoinder
08:06and maybe you get
08:06relief
08:07maybe you don't
08:07get relief.
08:08That is not a
08:09satisfactory way
08:10to turn to the court
08:11saying why are you
08:12not the bomb
08:12for all our ills?
08:14No no the courts
08:15I am sorry
08:16I am sorry sir
08:16the courts
08:17my argument is
08:18the courts have
08:19not done enough
08:20to protect the
08:20fundamental rights
08:21of citizens.
08:22When article 370
08:24was abrogated
08:25and many Kashmiris
08:26spent years in jail
08:27what happened
08:28to habeas corpus
08:29petitions?
08:30They were kept
08:30pending for years.
08:31What happens to
08:32the whole doctrine
08:33of bail not jail?
08:34So let's be honest
08:35we can blame
08:37parliament and the
08:38government in power
08:39but what about
08:40the institutions
08:41that run this country?
08:42including the
08:43judiciary
08:44or indeed
08:44the media?
08:45So the answer
08:45the honest answer
08:47Rajdeep is
08:47that you are
08:49only very partially
08:50right.
08:51I disagree to
08:51about 67 to 70
08:53percent with your
08:54remark but yes
08:54you are right to
08:5530 odd percent
08:56because the courts
08:57are ultimately
08:58you are right about
09:00the fact that
09:01the courts may not
09:02have stood us in
09:02good stead in every
09:03case maybe 25
09:0430 percent
09:05but if we did
09:06not have the
09:07bulwark of the
09:08judiciary
09:08the whatever
09:09protection you
09:10have against
09:11erosion of these
09:12pillars
09:12institutional
09:13would be rampant.
09:15Today if there
09:16is a protection
09:17maybe lesser than
09:17it should be.
09:18You are right
09:19individual judges
09:20give us sermons
09:21and give the
09:22right judgments
09:22on bail not jail.
09:24Individual aberrations
09:25equally nullify
09:26those sermons.
09:27So those are
09:28aberrations but on
09:29the whole the
09:29judiciary has I
09:30would say stood
09:31us in good stead
09:32to a very large
09:32percentage.
09:33Is India's
09:36constitutional
09:37democracy in
09:38recession sir?
09:39Do you believe
09:39it's in recession?
09:40Are we heading
09:40towards an
09:41electoral autocracy
09:42or is that
09:43fear mongering?
09:43Because I hear
09:44these words
09:44mentioned by
09:45opposition leaders
09:47we are an
09:47electoral autocracy
09:48democracy is in
09:49recession not only
09:50constitution
09:51but as I said
09:52I hate to use
09:56binaries because
09:57all binaries are
09:58generalizations and
09:59all generalizations
09:59are untrue.
10:00But let me tell
10:01you that clearly
10:02the degree of
10:04erosion of these
10:06institutional and
10:07non-institutional
10:07values the degree
10:09of erosion of the
10:10institutions the
10:12degree is much
10:13higher now in the
10:14last 10 years than
10:15it has ever been
10:16and it's been
10:17consistent.
10:18It's not a
10:18temporary
10:19constitutional
10:20aberration like
10:21the emergency.
10:22It's consistently
10:23eroding.
10:24Well the solution
10:25is to realize
10:26that a majority
10:27is not the
10:29answer and a
10:30license to do
10:32everything.
10:32On the contrary
10:33the constitution
10:34is created
10:35precisely for being
10:36anti-majoritarian.
10:38There'd be no need
10:39for a constitution
10:39if the majority
10:41was to prevail.
10:42Of course the
10:43majority must
10:44govern but the
10:45whole idea of
10:46creating a constitution
10:47in the first place
10:47is to be anti-majoritarian
10:49in so many areas.
10:51So you're making a
10:52distinction between
10:52majority and
10:53majoritarian.
10:54Getting a
10:55parliamentary majority
10:56does not allow you
10:57to become a
10:57majoritarian government.
10:58Absolutely.
10:59Absolutely.
11:01Absolutely.
11:01Let me leave it there.
11:03Dr. Singhvi as
11:04always I appreciate
11:05your taking the
11:06time off on this
11:07very important debate.
11:08A majority
11:09government cannot
11:10lead to a
11:11majoritarian outlook
11:12to the constitution.
11:14Every individual
11:15must have equal
11:16rights.
11:17Let's then turn to
11:18the other point of
11:19view.
11:19Mahesh Jaitpalani
11:20now another senior
11:21lawyer and of course
11:22he's been with the
11:23BJP for years
11:24joining me.
11:25We appreciate
11:25your joining us
11:26Mr. Jaitpalani.
11:28How do you see
11:29this debate between
11:30those who say
11:31today constitution
11:32is in danger
11:33and those who are
11:35saying the constitution
11:36is the sentinel
11:37of our democracy
11:39we should celebrate
11:39our constitution?
11:43Well I don't think
11:44the constitution
11:44has really ever
11:46been in danger
11:47except during that
11:48brief period during
11:48the emergency.
11:50But you know
11:52I mean people may
11:53have nuanced
11:53differences about
11:54how institutions
11:58are performing
12:00their duty
12:01whether they're
12:01performing their
12:02duty well or not
12:03or at all
12:04is possibly
12:06a subject matter
12:07of debate.
12:08But the
12:10constitution by and
12:11large has took
12:12the test of time.
12:13In fact if you
12:14ask me Rajdeep
12:16it's very existence
12:18you know
12:19instills
12:20in people
12:22the idea of
12:24popular sovereignty.
12:25So the fact
12:27that
12:27you had
12:29the people
12:30of this country
12:30right
12:31once
12:32overturned
12:34or overthrow
12:34a government
12:36that subverted
12:36the constitution.
12:37and secondly
12:38that we have
12:39periodic elections
12:40every time
12:41which by and
12:42large are
12:43fair and free.
12:44I know there's
12:44the odd
12:45carping about
12:46EVMs which is
12:47now buried
12:47and you know
12:48then about
12:49the new
12:50SIR and all
12:51that.
12:52But by and
12:52large I think
12:53the constitution
12:54itself has given
12:55people a sense
12:56of their own
12:57power and that
12:58for that very
12:59reason I think
13:00it survived the
13:01test of time.
13:01You're saying
13:02the constitution
13:03has given people
13:04a sense of their
13:05own power.
13:05let me challenge
13:06you on that
13:06by saying
13:07there are those
13:07who believe
13:08the institutions
13:09of our democracy
13:10under the guise
13:11of the constitution
13:12have been captured
13:13by whoever is in
13:14power and
13:15particularly by
13:16all powerful
13:16governments like
13:17the one we have
13:18now and these
13:19captured institutions
13:20whether they're
13:21the election
13:22commission or
13:22an enforcement
13:23directorate
13:24all of them
13:24become subservient
13:25to those in
13:26power and that's
13:27where the
13:27savidhan is in
13:28danger.
13:29That's when
13:29people's rights
13:31are in danger.
13:32Do you agree
13:32or not?
13:33Well, I don't
13:35know.
13:36See, if you're
13:38saying that the
13:39criticism is that
13:41people who should
13:44be manning
13:45institutions more
13:46independently are
13:47in fact becoming
13:48more subservient,
13:49there may be an
13:50element of truth
13:51in that.
13:52There may be an
13:53element of truth
13:54in that.
13:56I suppose when
13:58you talk about
13:59subservience and
14:00capture and all
14:01that, you're
14:02really talking
14:02about the
14:03judiciary,
14:04right?
14:04You're really
14:04talking about
14:05the judiciary
14:05because the
14:06judiciary is
14:07supposed to be
14:07the umpire
14:08between compliance
14:10and transgression
14:11of the
14:12constitution.
14:13Sir, Mr.
14:14Jaitpalani,
14:14the judiciary is
14:15supposed to be
14:16the umpire and
14:17supposed to
14:18protect our
14:18fundamental rights.
14:19But I'll tell
14:20you, yesterday I
14:20interviewed Justice
14:21Gawai, former
14:22Chief Justice who
14:23just retired and
14:24he said firmly
14:26that this country
14:27must be run on
14:27rule of law and
14:28not on rule of
14:29bulldozer.
14:30And then I asked
14:31him, why is it
14:31then that
14:32bulldozers are
14:32still allowed to
14:33be used to
14:34demolish houses
14:34without due
14:35process?
14:36And he said
14:36that's a question
14:37you should ask
14:38to those who
14:38are meant to
14:39implement the
14:40laws, effectively
14:41passing the
14:41buck on to
14:42governments and
14:43the executive,
14:43the elected
14:44representatives who
14:45are not doing
14:46their function in
14:46implementing the
14:47laws as laid
14:48down by the
14:49constitution, the
14:50rights and by the
14:51Supreme Court.
14:54Look, first of
14:55all, let me tell
14:56you, this is a
14:57aspect perhaps of
14:59sometimes overzealous
15:03executive action.
15:05All right, that's
15:05an aspect.
15:06But that doesn't
15:07define the, you
15:08know, the
15:09constitution, the
15:10operation of the
15:10constitution covers a
15:13much wider canvas in
15:15this whole country.
15:16Right.
15:16And essentially, it is
15:19really a charter.
15:20It is really a
15:21charter for
15:22responsible government.
15:23And if government
15:26sees to be
15:27responsible, the
15:28constitution is, you
15:30know, is premised on
15:31the principle, on the
15:33principle that at the
15:35end of five years,
15:36right, if you are
15:37dissatisfied, then
15:39popular sovereignty at
15:41the polls has a
15:43right to, if there is
15:45constitutional
15:46overreach, to remove
15:47those who are guilty
15:48of that overreach.
15:49Sir, but, you know,
15:52do we have a level
15:53playing field in what
15:54you call free and
15:55fair elections, given
15:57the massive use of
15:58money power, the
15:59massive use or abuse
16:01of state power, the
16:02alleged misuse of
16:03agencies like the
16:04enforcement
16:04directorate.
16:05So you have a free
16:06and fair election and
16:07constitutional democracy
16:09in name, but is it
16:11free and fair in
16:12reality 76 years
16:14later?
16:17I believe it's free
16:19and fair in reality.
16:20And look, there's,
16:21you know, there's no
16:22test.
16:24If somebody has an
16:26opinion, right,
16:27unsupported by any
16:28evidence, then, you
16:30know, one can't, one
16:31can't, there's no
16:32argument here.
16:33We are not, there
16:34cannot be a rational
16:35debate, right?
16:36It has been tried and
16:38tested.
16:39As I pointed out, first
16:41EVMs were questioned,
16:42right?
16:43Now it's this, you
16:45know, vote theory
16:45business that's going
16:46on.
16:46But let me tell you,
16:49there's no evidence,
16:50A, if there has never
16:51been any evidence put
16:52forward, right?
16:54I mean, file an election
16:55petition, give us
16:55instances of that.
16:57And I'm with you.
16:58I think that's, I mean,
16:59that's a test of a
16:59democracy, a fair and
17:00free election.
17:01The litmus test is a
17:02fair and free election.
17:03But if you just cop
17:04about it all the time,
17:05right?
17:06You are actually doing a
17:07great disservice for the
17:08own democracy, which you
17:09are a part of.
17:10You participate in
17:11elections and
17:12predetermined from the
17:13very outset.
17:15You say this is a
17:16big result, then don't
17:17participate.
17:18Mr. Jaitmalani, let me
17:19raise another contentious
17:20issue.
17:21Are minority rights
17:23protected?
17:23Ambedkar spoke of
17:24fraternity, equality
17:27and liberty as the
17:30centerpiece of his
17:31constitutional vision.
17:33Do you believe that
17:35today minority rights
17:36in this country are
17:36adequately protected
17:37in our constitution?
17:39Or is the fault lies
17:41with those who
17:41implement them?
17:42Because I come
17:43back to it, said
17:44it's not the
17:45constitution that has
17:46failed the people, but
17:47the electorate
17:48representatives who have
17:49failed the constitution.
17:50Do you agree that on
17:51concepts like secularism,
17:52fraternity, minority
17:54rights, we have
17:55failed?
17:58Rathip, he did say
17:59that and to a large
18:00extent, yes.
18:02But Nani Palkibala was
18:04not talking at a time
18:05when Hindutva, right,
18:07was a predominant
18:08doctrine, right?
18:10So I don't know what he
18:11had in mind, but
18:12certainly, I think he
18:14was talking more about
18:15curtailing of freedoms.
18:18He was a champion of
18:19individual liberty and so
18:20on and so forth.
18:21So I think his
18:22perspective came from
18:23there.
18:24But sir, it's those
18:25individual liberties one
18:26fears that are still
18:27compromised.
18:28You're a lawyer, you know,
18:29a respected senior
18:30lawyer.
18:30How even the basic
18:31principle of bail, not
18:33jail, as Krishna
18:35said it out, is getting
18:37reversed.
18:37Individual liberties are
18:39being compromised.
18:39people spend years in
18:41jail without a trial,
18:42without access to a fair
18:43trial.
18:44Don't you believe all of
18:45this undermines the
18:46constitution?
18:47Let me put it even more
18:48directly.
18:49As a senior constitutional
18:50lawyer who's appeared for
18:52the government also at
18:53times, can you firmly today
18:54put your hand on your
18:56heart, sir, and say that
18:57the soul and spirit of the
18:58constitution as drafted by
19:00Dr. Ambedkar is perfectly
19:02safe in today's India?
19:03Put your hand on your
19:04heart.
19:05I can put my hand on my
19:09heart and say with
19:10conviction that all
19:13democracies and all
19:14constitutional democracies
19:15in general, right, have
19:18severe imperfections, right?
19:20But that's, it still means
19:22that while it's an imperfect
19:23form of government, it is
19:25still the best form of
19:27government.
19:27Rajdeep, can I just ask you
19:28a counter question?
19:29I don't like to do that
19:30normally.
19:31What is a better system of
19:32government than that which we
19:34have, right?
19:35And let me tell you, if
19:36there are men who fail that
19:37constitutional system in our
19:39country, there are equally
19:41more men who do it in other
19:42countries.
19:43Actually, if you ask me
19:44today, we are a much
19:46better functioning democracy
19:48than both the UK and the
19:49US.
19:51You're saying that we are a
19:52better democracy,
19:53constitutional democracy,
19:54than the US and the UK.
19:55It's a big claim you're
19:56making.
19:57You're claiming Indian
19:57democracy is more effective
19:59than the United Kingdom and
20:00the US.
20:03Right?
20:03Yes, yes, yes.
20:04Because, let me tell you
20:06something, there are two
20:09things that are happening
20:09overseas, right?
20:11One is, there is tampering
20:13with the judiciary to a bigger
20:14scale than here, right?
20:16Actually, the system permits it
20:17because any party in power
20:21actually has the advantage of
20:24fixing the final court, right,
20:26with their own nominees, that
20:28is US Supreme Court, right?
20:30So, that's one aspect.
20:33The second aspect is, right,
20:35that we have a more robust,
20:37we have a more robust electoral
20:39system than anybody else.
20:41Sir, you know, Mr. Jaitpalani,
20:42we may have a more robust
20:43electoral system, but I would
20:45contend we don't have enough
20:47checks and balances within that
20:48system.
20:49Whether it's the nature of our
20:50policing, whether it's the
20:51nature of our judiciary at
20:53different levels, which is
20:54accused, incidentally, of not
20:56being, of having got
20:57compromised, not independent
20:58enough, whether it is the fact
20:59that the executive has become
21:01more dictatorial and
21:02authoritarian, whether it's the
21:03legislature, which many
21:04believe is reduced to a
21:06notice board, whether it's the
21:07media, which is seen by many
21:08to have been captured.
21:10Mr. Jaitpalani, you tell me,
21:12where is the real pushback in
21:13our system?
21:14Where are the checks and
21:15balances that are there in
21:16the United States or possibly
21:18even in the United Kingdom?
21:21What great checks and
21:23balances have you had in the
21:25United Kingdom?
21:26I mean, there you, in the
21:27United States, you've had a
21:30president, ex-president, who
21:32has pardoned both himself and
21:34his entire family.
21:36That's never happened.
21:38That kind of self-interested
21:41nepotism has never taken place
21:43in this country.
21:46So the judiciary there has been
21:48a party to it.
21:49They've not, till today, I don't
21:52know whether you can't, whether
21:54the U.S. judiciary can go into
21:57the question of pardoning, right?
21:59But it certainly hasn't done
22:01anything to stop this very, very
22:02blatant abuse, the most blatant
22:04abuse.
22:05So what you're saying, Mr. Jaitpalani,
22:07we have a first-rate
22:08constitution.
22:09You believe that the dangers are
22:11exaggerated.
22:12But at the same time, you do
22:13accept that we need to see
22:14stronger institutions that are
22:15more robust.
22:16Am I broadly correct?
22:17Yes, substantially more robust.
22:22Let me add an adjective and say
22:24that, yes, I go to that extent,
22:27that we are still a far cry from
22:30being at least a pretty good
22:32democracy, right?
22:33We are among the top few
22:36democracies in the world today,
22:37right?
22:38And I pride myself, I pride India,
22:40I take pride in the fact that I'm an
22:41Indian, and I can criticize people
22:43sometimes.
22:44Of course, you're right that the
22:46police will come down at the
22:48behest of some politician and
22:50crack down on you.
22:51But those are instances by and
22:53large, which country you have a
22:55leader, which can incessantly
22:57going on saying things like
22:58Chokidar Chor Hai, Vote Chori.
23:00I mean, you've not only put
23:04unproven charges or unsubstantiated
23:06charges against a top leader of
23:08this country, but you fail to come
23:09with evidence against a systemic,
23:11what you allege is a systemic
23:13abuse.
23:13So let me ask you in conclusion
23:15very quickly, do you really
23:17believe there's enough space in
23:18Indian democracy for true
23:19dissent?
23:23Yes, I think there's enough space
23:24for dissent, but dissenters will
23:26always feel, right, until they
23:28come to par, that the system is
23:30not perfect.
23:32Mahesh Jett Malani, for joining me
23:34on the show today, I appreciate
23:35you joining me.
23:36You seem to suggest that
23:37Samvidan khatre mein nahi hain,
23:40and you seem to believe therefore
23:41that we are still a strong and
23:43robust democracy.
23:45Free and fair elections are an
23:46intrinsic part of it.
23:47Whether they are free and fair,
23:49I leave to viewers to debate.
23:50Thank you very much, Mahesh Jett Malani.
23:51Let's move on now to the next guest
23:53on the Constitution Day debate.
23:56And our next expert constitutional
23:59voice on this special
24:00constitutional day is Harish Salve,
24:03former Solicitor General of the
24:05country.
24:06I appreciate you joining us here,
24:08Mr. Salve, this debate that I've
24:11ignited today, the opposition
24:12saying Samvidan khatre mein hain,
24:15the government saying this is a
24:16day to celebrate our
24:17constitutional democracy.
24:19Do you believe the Constitution
24:20has served India well over the
24:22last seven decades and a half,
24:24or are there infirmities in the
24:26way the Constitution is actually
24:28being implemented by the
24:30executive in particular?
24:31Radheer, there are two questions
24:35which are, which shouldn't be
24:37conflated.
24:38The Constitution has served us
24:40well.
24:41The answer is an unequivocal yes.
24:43Have we served the
24:44constitutional well at all times?
24:47Questionable.
24:48What do you mean by we?
24:51Because I used this quote earlier
24:53of Nani Palkhiwala, the great
24:54jurist who said, it is not, we have
24:57a first-rate constitution, but it
25:00is the people who have in a sense
25:02failed the Constitution or rather
25:04the elected representatives who
25:06failed the Constitution.
25:07Of course, when emergency was
25:09declared in 1975, it was not the
25:13failing of the Constitution.
25:14Every constitution has
25:15provisions to deal with
25:17emergencies.
25:19Now, if we declare a phony
25:21emergency, it's we who are
25:23failing the Constitution.
25:24It's not that the Constitution
25:25is failing us.
25:26The Constitution is meant to
25:31accommodate all kinds of
25:33thinking.
25:36You can have leftist leaning,
25:38rightist leaning.
25:40You can have different
25:42definitions of government.
25:46And it is for good reason that the
25:47framers of the Constitution didn't
25:49add controversial and ambiguous
25:51words like secular and socialist and
25:56all this in the preamble.
25:57And I've personally always been a
25:59trenchant critic of these
26:01amendments.
26:02And I don't know whether you read,
26:03if you read Mr. Palkhiwala's
26:05speech, he was a trenchant critic of
26:07the amendment to the preamble also.
26:09And nobody can doubt his commitment to
26:11constitutional values.
26:13Right.
26:13So, so have we served the
26:17Constitution?
26:17Well, I must say, we are 75.
26:20India is 75.
26:21We've changed so many, I, I, in two
26:26recent lectures, I did a little
26:28research and found out, we have
26:30changed 15 prime ministers using a
26:32ballot.
26:33We've had 15 prime ministers, I think,
26:34in the last 75 years.
26:37We've changed governments.
26:38We've changed from all complexions of
26:40government.
26:41We had Congress dominated majority
26:43governments.
26:44We had coalition governments.
26:45Now you have a, BJP dominated
26:48majority government.
26:50You've had majoritarian governments.
26:52You've had Rajiv Gandhi with, I think,
26:54he had possibly the largest.
26:56That's right.
26:57The largest.
26:58And the Constitution accommodates all
27:02of this.
27:03And it allows all of it.
27:06No, but the fear, the fear, Mr. Salve,
27:08is are we now conflating the fact that
27:10we have elections every five years,
27:13prime ministers across parties are
27:14elected, with the criticism that
27:17slowly but surely we are becoming an
27:19electoral autocracy, where fundamental
27:22rights of the citizens get undermined,
27:25where it's no longer a level playing
27:27field when it comes to Indian
27:30democracy.
27:31Are we an elected autocracy?
27:33Do you believe that we are veering
27:34towards that?
27:35Is there a democratic recession that you
27:37see?
27:37So, first of all, the Constitution, no
27:40constitution in the world, unfortunately,
27:43which provides for elected government
27:45has a level playing field.
27:49Do all the people who contest elections,
27:51and there's so much talent out there
27:53which never makes it to Parliament,
27:55because you don't have a level playing
27:57field.
27:58There are certain things inherent to an
28:01electoral democracy.
28:02Do you think every American has equal
28:04right to become president of America?
28:06In theory, yes.
28:08In practice, no.
28:09Do you think everybody in the United
28:11Kingdom, United Kingdom is much smaller
28:13with a much larger number of MPs,
28:15your cost outlay is much lesser.
28:17I have for decades been an advocate of
28:20state funding of elections, and when I
28:23say state funding of elections, you
28:24don't necessarily have to write checks.
28:26You can make common facilities available,
28:28which the election commission can disburse,
28:30et cetera, et cetera.
28:31That's a debate for another day.
28:33But we don't want to talk about that
28:35because everybody, when he is in
28:37government, doesn't want to create a
28:38level playing field.
28:39You realize the unevenness of the field
28:41only when you're on the wrong side of
28:43the field.
28:44Sir, but, you know, the concept of
28:46elections is only one part of the
28:48constitution.
28:48It's about ensuring that the fundamental
28:50rights of citizens are protected.
28:53Concepts that Ambedkar put out of
28:54equality, liberty, fraternity.
28:57Do you believe those concepts are really
28:58being observed in letter and spirit
29:01by indeed the lawmakers or indeed the
29:04law of this country, the judges of
29:07this country, or is there serious
29:09lacuna there?
29:11Well, in theory, the constitutional
29:14rights are all in place.
29:16And after the Koelo judgment, we have
29:18locked in the constitutional rights.
29:20They cannot even be amending.
29:22How are the constitutional rights to be
29:24protected?
29:24The one area and the one area where the
29:26judiciary has, in one sense, supremacy,
29:28is enforcement of constitutional rights.
29:31That is why Ambedkar did something very
29:34unusual for the Indian constitution.
29:36A, he expressly conferred the power of
29:39judicial review of legislation.
29:40We didn't have to invent it like the
29:42Americans did in Marbury and Madison.
29:44Our courts have a right to strike down
29:46legislation if it violates fundamental
29:47rights.
29:48That is a very important step.
29:50And two, the right to move the Supreme
29:53Court itself was made a fundamental right.
29:56in Article 32.
29:58So, by which the signal of the
30:00constitution was, when it comes to
30:03constitutionally defined fundamental
30:05rights, the judiciary is the last word.
30:08And I must say, especially post-Krishna
30:11Iyad, the development of our fundamental
30:16rights jurisprudence is a marvel.
30:18And the world respects for what our
30:21courts have developed, our system.
30:24We've read in gender justice, we've read
30:25in due process, we've read in the right
30:27to privacy and so on and so forth.
30:30But if you find today that there is an
30:32overall feeling that the Supreme Court is
30:33failing to protect the constitution, we
30:35need to go back and see.
30:36And there is a lot which is troubling the
30:38judiciary today.
30:39So, what is the biggest challenge?
30:42You know, in conclusion, what, according to
30:44you, is the biggest challenge in a way that
30:46will, for those who would like to see the
30:50letter and the spirit of the constitution
30:52actually translate into concrete action
30:55on the ground?
30:56See, first of all, I think our political
30:59system needs to be a little more
31:01responsible.
31:04If the last word on the constitutional
31:08rights has been given to the judiciary,
31:09you cannot say I as a politician will
31:11define what is my understanding of the
31:13fundamental right.
31:14And if the Supreme Court doesn't agree
31:15with me, the system doesn't work.
31:17Today, we've reached a, either you're
31:19with us or you're with them kind of an
31:21attitude in public life.
31:23Either it's my truth and your truth.
31:25If you agree with me, you're a great
31:27judiciary.
31:27If you don't agree with me, you're a
31:30subservient judiciary.
31:31Now, that's not the way for approaching,
31:34at least for senior people in public life,
31:37for approaching.
31:38Yes, you can criticize a judgment saying,
31:41here are the intellectual flaws in this
31:43judgment.
31:44And we have a debate.
31:47Democracy is all about many voices.
31:49Democracy is all about debate.
31:51And the Supreme Court, least of all,
31:54should be about criticism.
31:56Least of all.
31:57Because the Supreme Court is the last
31:58word of the law.
31:59And they have to be criticized.
32:01Their judgments have to be criticized.
32:02If you find them wrong.
32:04Not on a broad base saying, oh, I'm so
32:07sorry, the Supreme Court has decided
32:08against me.
32:09But go to the judgment and say, this is
32:11where they've gone.
32:11And I say, for example, the Supreme
32:13Court judgment, which upheld some
32:16draconian powers of the enforcement
32:18directorate, is a disaster.
32:20I say so.
32:21And I can give you very strong, it's a
32:23debate for another day.
32:25But I can give you strong intellectual
32:26reasons where the Supreme Court has gone
32:28wrong.
32:29Not because I don't like the face of the
32:30judge, but because I say this is where the
32:32Supreme Court has gone intellectually
32:33wrong.
32:34Bail cases where the Supreme Court has
32:36denied bail.
32:37I've always said, where did this drift
32:40happen from Krishna Ayers bail, not jail?
32:43Where have we gone into jail, not bail?
32:45So that's exactly where, you know, you've hit the
32:49nail in the sense in that last answer.
32:51What you are calling for is at least some
32:53element of introspection amidst the celebration
32:56of Constitution Day.
32:57Am I correct?
32:58Of course.
32:59See, I celebrate my Constitution because it
33:02calls for introspection every single day.
33:06Since you've started by quoting my guru, let me
33:09tell you what he always said.
33:11He used to always say democracy is a
33:14ceaseless endeavor.
33:16It's not a safe harbor.
33:18Democracy means debate all the time.
33:22Very, very, you know, very fascinatingly put
33:26there.
33:27And I think quoting Nani Palkhiwala is a nice
33:30way on this Constitution Day to remember one
33:33of our foremost jurists.
33:34And he, in a sense, sends out a message to all
33:38of us that we have to continue to be sentinels
33:41in a way to ensure that our Constitution is not
33:43abused very quickly.
33:44I will answer only one thing.
33:45Yes.
33:46Only one last thing.
33:47There's only one time when the Constitution
33:49was seriously under threat.
33:51And that was 1975.
33:53And the court catapulted.
33:55Who saved democracy?
33:58You and me and our previous generation saved
34:01democracy.
34:02Ultimately, even the political system knew,
34:04this was unsustainable in India.
34:07Till that fire of democracy burns in your heart,
34:10burns in my heart, and burns in the heart of our
34:12fellow Indians, our Constitution is safe.
34:15Okay.
34:16Harish Salve, always a pleasure talking to you.
34:18Thank you so much for joining me here on the news today.
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