'We Have Veiled Emergency, Judges Often Lack Spine, Writing New Constitution at This Time Impossible'

Fali Nariman, who is widely considered India’s greatest living expert on the constitution, said that it is impossible to write a new one in the atmosphere that prevails in the country today.

Fali Nariman, a noted expert on the constitution, says the “opposition is the most important part of the parliament” and it is its duty to “attack the government and individual ministers” but, he adds, “the opposition has no right to obstruct in the sense of making parliament barren or unproductive”.

Nariman has also said that the situation today is like the Emergency of 1975 except behind a veil. However, he agreed that one critical difference between the situation today and during the Emergency of Indira Gandhi’s time is that today there’s an anti-muslim, anti-minority mood prevailing, if not increasing, in the country. Nariman said this “does not gel with India’s prominence in world affairs”.

In a 45-minute interview to Karan Thapar for The Wire, to mark the publication of his latest book You Must Know Your Constitution, Nariman said that it is impossible to write a new constitution in the atmosphere that prevails in the country today. He said the “the spirit of tolerance and accommodation”, which is necessary for writing a constitution, is missing.

Speaking about comments made by former Chief Justice of India, Ranjan Gogoi, that the constitution does not have a basic structure, Nariman said whilst everyone is entitled to his view Justice Gogoi’s view is “wrong”. Nariman gave fascinating details of how, under Chief Justice Ray in 1975, a bench was set up to reconsider the basic structure doctrine of 1973 but after two days of hearings was dissolved without explanation.

Quoting Seervai, Nariman said the bench was dissolved because CJI Ray realised that 12 out of 13 judges hearing the matter were firmly in support of the basic structure doctrine and he would be reduced to a minority of one.

Nariman argued that it is judicial interpretation of the constitution that is it’s breadth of life. He says it’s interpretation by judges that make the phrase ‘We the people’ relevant to generations born after 1950. He says it’s the duty of judges to interpret the constitution in the context of the time and the issues of the day. Literalistic  interpretation, as is the present fashion in the United States Supreme Court, is not something he endorses or subscribes to.

There’s a sizeable section of the interview where Nariman discusses the fact that often judges, even at the Supreme Court level, fail to stand up for the rights the constitution has conferred on citizens. This discussion also includes a sizeable section about how the present Collegium allows itself to be overruled by the government in appointment of judges and transfer of judges. Justice Muralidhar’s case is discussed, in particular. Nariman believes that this is “particularly sad”. He agrees that when judges fail to stand up for their own rights (to appoint judges) it shows a lack of spine.

The questions asked to Nariman were:

1) Let’s start with issues and concerns you raise about the constitution before we come to issues and concerns about the way the constitution has been implemented and adhered to by our politicians. First, you say in Chapter 3: “The preamble is the most important part of the constitution”. Given that most people ignore it and it’s been amended by Indira Gandhi – and some would say controversially – why do you think it’s the most important part?

2) Now you also believe – and for some this may be controversial – that it’s the way judges “have interpreted and helped sustain a constitution that had been framed for only 350 million people, most of whom are not even alive today … (that) is one of the ways in which a written constitution is made to grow into a dynamic living document”. Can you explain this further?

3) So I take it you do not accept literalistic interpretations of the constitution, as we increasingly see in the United States Supreme Court? You believe that each generation must interpret the constitution in the context of the time and the issues of the day.

4) This brings me to an issue that has suddenly acquired considerable salience after a former Chief Justice questioned whether there’s such a thing as a basic structure of our constitution. Your book cites not only the Keshavananda Bharti case but several other instances, such as Bhim Singh, Kuldeep Nayyar, Indira Gandhi vs. Raj Narain and, of course, the National Judicial Commission case, where the Supreme Court clearly ruled that there is a basic structure. So how would you respond to the doubts Chief Justice Gogoi has raised?

5) Would One Nation One Election breach the basic structure because it requires state assemblies to synchronize with the Lok Sabha? And, secondly, because it requires artful ways of ensuring that even if a government loses its majority the assembly or parliament will still complete five years.

6) You also make another important point. You write “We will never be able to piece together a new constitution in the present day and age simply because innovative ideas however brilliant and howsoever encouragingly expressed in consultation papers and reports of commissions, can never give us an ideal constitution. In constitution-making there are hidden forces that must not be ignored, viz., the spirit of persuasion, of accommodation, and of tolerance. In India – as in the rest of the world – all three are at a very low ebb today.” Can you explain this further?

7) Now you have written this at a time when there is some talk that India needs a new constitution. No less a person than the Chairman of the Prime Minister’s Economic Advisory Council has suggested this. What would you say to him?

8) Let’s now come to how the constitution and the rights it confers on citizens is defended by our judges. In your book you quote Chief Justice Chandrachud, who in 2017 in the Puttaswamy judgement, said: “A constitutional democracy can survive when citizens have an undiluted assurance that the Rule of Law will protect their rights and liberties against any invasion by the state and that judicial remedies would be available to ask searching questions and expect answers when a citizen has been deprived of these most precious rights?” But does even the Supreme Court live up to this? In 2019 it effectively ignored habeas corpus cases in Kashmir. In 2020 it turned a blind eye to the plight of tens of millions of workers who had to walk home during the lockdown and its postponed critical cases like the Citizenship Amendment Act and Electoral Bonds. And right across the judicial system bail has become pretty difficult to get. So are Justice Chandrachud’s ringing words just rhetoric?

9) Let’s come to how our governments respect and adhere to our constitution. You quote with appreciation Ambedkar who said: “However good a constitution may be, it is sure to turn out bad because those who are called to work it, happen to be a bad lot. However bad a constitution may be, it may turn out to be good if those who are called to work it, happen to be a good lot.” In your opinion have our governments been a good lot or a bad lot?

10) Finally, you have some very interesting things to say about the role of the Opposition in a democracy. You quote Ivor Jennings with approval when he says: “It is not untrue to say that the most important part of parliament is the Opposition … the Opposition is at once the alternative to the government and a focus for the discontent of the people. Its function is almost as important as that of the government. If there be no Opposition, there is no democracy.” How would you convince Narendra Modi to accept this view?

11) You go one step further. Again, quoting Jennings you say: “attacks upon the government and individual ministers are the functions of the Opposition. The duty of the Opposition is to oppose.” So, for example, when Rahul Gandhi fiercely attacks Narendra Modi he’s doing what his job requires him to do and people who call it a personal attack or vendetta have misunderstood the role of an Opposition?

12) But you do have one caution or warning for the Opposition. Quoting a British document you say: “The Opposition has no right to obstruct, in the sense of making parliament barren or unproductive.” So does this mean that the Arun Jaitley and Sushma Swaraj view, now practiced by the Opposition, that obstructing parliament is a legitimate parliamentary tactic, is deeply mistaken?

Watch the interview here.