“Judicial Diktats Alone May Not Be Able To Defend A Constitutional Culture”, Says Advocate And Author, M.P.Raju [PART 1]

Supreme Court advocate, M.P.Raju’s new book, India’s Constitution: Roots, Values & Wrongs, [Media House, Delhi, 2017] starts with a simple question: “India has a Constitution.  Does she have a constitutional culture?”.  Attempting to answer this in 464 pages of his book, Raju takes the readers to the social and moral dimensions of India’s Constitution.

Today, most of us take India’s Constitution for granted.  Raju reminds us, quoting Justice H.R.Khanna, that behind it, there is a story of sweat, blood and tears, of untold suffering and sacrifice.

Here, in this conversation with Livelaw, Raju answers questions about the concerns of his book, and the future of India’s Constitution.

LIVELAW:  Can you tell us why it is important for students and practitioners of India’s Constitution to read your book?  In other words, what does the book say which has not been said earlier?

M.P.RAJU: Social, cultural and moral moorings of the Indian Constitution and its values have been dealt with partially and incidentally in different contexts by a few authors like N.A. Palkhivala, in India’s Priceless Heritage (1980), Justice H.R. Khanna in Making of India’s Constitution (1981), Subhash C. Kashyap in Basic Constitutional Values (1994), and Justice R.C. Lahoti in Preamble – the Spirit and Backbone of the Constitution of India (2004).  A few judgments of the Supreme Court like those delivered by Justice V.R. Krishna Iyer have referred to these in the exposition of their reasoning.  A very recent example is the judgments by different judges in the nine-judge verdict on privacy (Puttaswamy case)  identifying the constitutional value of dignity/ autonomy of the individual as the bedrock of the new found fundamental right to privacy.

The value-based approach was made very clear at the outset:

“Nine judges of this Court assembled to determine whether privacy is a constitutionally protected value.   The issue reaches out to the foundation of a constitutional culture based on the protection of human rights and enables this Court to revisit the basic principles on which our Constitution has been founded and their consequences for a way of life it seeks to protect” (2017) 10 SCC 1 (para 2).

Another example is Justice S.A.Bobde’s reliance in the same case on the cultural values and “a well-developed sense of privacy” in the various traditions of India to fortify his findings in support of the value of privacy.

The present work can be seen as an attempt to provide these concepts of ‘constitutional values’ and ‘constitutional culture’ with a further and more comprehensive deliberation.  It can also be understood as one of the rings in the chain of endeavours which earnest and eager citizens have been undertaking to disseminate and inculcate the constitutional values into the arteries of the Indian polity. This book is intended to be useful not only to lawyers and law students but also to all those who want to use the Constitution for value education, citizenship training and nation-building.

LIVELAW:   From your preface to the book, it appears your initial interests were in Hindi poetry and literature.  What drew you to study of law? Was it a mere accident?

M.P.RAJU: The interests in literature and law may be seen more as simultaneous than as in a sequence.  Even my studies and writings in these two fields have been interspersed and alternating.  During the school days, the teachers thought that Mathematics was my forte. Then Philosophy and Hindi literature took me into their grip. Side by side, the appeal and urgency of human rights made the embrace of law unavoidable. There may be some truth in the comments made by some to the effect that the book is an outcome of the melting pot of my interests in philosophy, literature and law.

LIVELAW:   You were a part of the three members’  Lawyers’ Commission,  appointed by the Supreme Court, to visit, study and report on the bonded child labourers in carpet industries in Mirzapur, Badohi and Benares districts of Uttar Pradesh in the case of Bandhua Mukti Morcha v Union of India, in 1991.  Who were the other members of this commission?  What were the constitutional values which you witnessed in those early days?  You say in your book that these values often remain a mirage and even disappear into thin air in real life situations.  Can you explain?  Are they unrealisable goals?

M.P.RAJU:  It was a PIL filed in 1984 by Bandhua Mukti Morcha alleging mainly that the employment of children by various carpet weavers in Varanasi, Mirzapur, Jaunpur and Allahabad areas was violative of fundamental rights under Article 24.

During one of the hearings in the said case before a bench presided over by Justice Ranga Nath Misra, he doubted the complete correctness of the already available report on the number and plight of the allegedly bonded child workers in carpet industries. It was on August 1, 1991. I happened to be in the court room at that time. The court decided to a send a three member commission consisting of the lawyers of the Supreme Court to report on the matter. One each was picked up from both sides. From the petitioner’s side Advocate Dr Jose P. Verghese was taken. From respondents’ side advocate Mrs Gyan Sudha Mishra, (Justice Gyan Sudha Mishra subsequently retired as a Judge of the Supreme Court of India) who was representing the State of Bihar was chosen. The bench asked whether any one of the advocates present in the court room would volunteer as the third member. My interest in human rights, especially those of children, prodded me to raise my hand.

We visited some of the looms accompanied by officials and travelling in government vehicles. The looms were found idle without anybody weaving. On inquiry we were told that they all were family owned looms operated by the members of the family in their leisure time.

However, we came to know from the social activists that this was a false plea and on getting information of our visit the working children were made to hide in the fields or in nearby houses.  Then we changed our strategy, we left the vehicles at faraway places and walked into villages pretending to be agents of carpet companies. There we found little tribal children of about six or seven years of age upwards sitting at the looms and filling in the wool threads with their nimble fingers, fear in their faces and tears in their eyes.  They were brought there from tribal habitations of then Bihar mostly from Palamu and nearby areas either kidnapping them or tricking the illiterate tribal parents on the false promise of jobs and money. We found that the children were made to almost starve on the pretext that if they were allowed to eat substantially, they would fall asleep on the loom despite the sticks of the overseers. Village after village we witnessed these inhuman and pathetic scenes. These were taken note of in one of the reported judgments of this case. [(1997) 10 SCC 549.]

Our report submitted on November 18, 1991 together with that of the earlier committees disclosed the enormity of the problem of exploitation to which the children were subjected.

One of the initial instances was that of the children ranging between 5 to 12 years having been kidnapped from Village Chhichhori (Patna Block, District Palamau in Bihar) in January and February 1984 in three batches and taken to Village Bilwari in Mirzapur District of U.P. for being engaged in carpet-weaving centres. They were forced to work all day. Virtually, they were being treated as slaves and were subjected to physical torture revealed by the presence of marks of violence on their person.

Visits were made in 42 villages and it was found that 884 looms were engaging 42 per cent of the work force with the children below the age of 14 years. The total number of children were 369; 95 per cent of them were of  tender age ranging between 6 to 11 years and most of them belonged to the Scheduled Castes and Scheduled Tribes. Despite persuasion, they could not be released and continued to languish under bondage. There were many such instances involving numerous children.

The Commission visited several villages, personally contacted the parents of the children in different places and found that the children were taken against their wishes and were wrongfully forced to work as bonded labour in the carpet industries.

For me personally this was an eye-opener not only to the efficacy of the PIL jurisdiction of the apex court as the sentinel qui vive but also to the fact that the Constitution and its values, not to speak of the fundamental human rights, are tragically non-existent to the majority of the masses especially the deprived millions. This was one of the myriads of instances where constitution and its values proved to be a mere mirage.

If concerned people had cared for a little about the values of dignity and fraternity, those children would not have been pushed into this kind of slavery. It just dawned on me that unless a campaign or something similar makes the constitutional value of the dignity even of the little individual Indians and the value of caring fraternity to get imbibed into the private lives of the whole polity, the Constitution would remain a teasing illusion and nothing might be able to stop the tragic though gradual reversion of our hard earned constitutional democracy and human rights.

LIVELAW:  Reading your book inevitably draws the reader to the contemporary realities.   One dimension of this is majoritarianism in politics and society.   Your book shows that it is inconsistent with constitutional culture, although democracy’s literal implication would be rule by majority.  Can you clarify?

M.P.RAJU:  Democracy ordinarily understood is a rule by majority. Governance is destined or condemned to function on the side of the winner of the majority votes.

This would be regardless of the fact which side the values/dharma lie. That is the reason why the mankind has developed the system of a value-based democracy instead of pure and simple majority rule. Such democracy which is based on values and principles we call constitutional democracy.

We place a system of values to the front and require both the winning and losing sides to be battling for the values. India like all the modern constitutional democracies has accepted this challenge and is going the way of a constitutional democracy, in other words, a value-based democracy.

Constitutional democracy is a hybrid of both democracy and constitutionalism.  Indian subcontinent, like other civilizations, had from ancient times experimented with different forms of government and state. We had some kind of democracy in so called ancient republics. There had been examples of some kind of governance by kings on certain principles and value-systems as primitive forms of constitutionalism or rajadharmashastra or dandanitishastra as we find in Arthashastra, Shantiparvam of Mahabharata and the edicts of Ashoka. One of the main objectives of a state or government was to provide protection to people from other persons and groups ie protection from the law of the jungle (Maatsyanyaya). But the need to be protected from the very state and government itself was felt from the early times. So the systems were evolved both to empower the government and to limit it. In the process we had experiments with democracy in different forms.

In democracy there is a danger of the tyranny of the majority. A rule by the majority can become dangerous for the rights and freedoms of the individuals and minorities. One way out is to have a government bound to established principles and values ie a constitution either written or unwritten. But a government based on a constitution can be autocratic, authoritarian and tyrannical depending on the values and principles adopted in the said constitution. Thus different experiments were made throughout the world.

Indian subcontinent also had its experiment with a state on the style of constitutional democracy, a marriage between democracy and constitutionalism and at the same time improving it with a composite constitutionalism. The constitutional principles would be on the basis of a composite culture that is agreeing on a minimum agreed universals taking into account and even promoting the small and little relative cultures and lifeways. This composite constitutional democracy is the natural outcome of the synthesis of both the centripetal and centrifugal energies in work in the evolutionary march of the nature itself which has human species as its fountainhead for the moment till a supermind or the next species is not evolved.

A democratic government without values and principles is suicidal. A value-based government without the democratic enrichment can be despotic and murderous. So a healthy hybrid based on a composite value-system taking into account and enriched by all different value-systems including the small and little queer value systems may be the most sound and salutary bet for the future.

But there are several threats to this composite constitutional democracy.  We, in India, had the example of such a threat in the form of Internal Emergency, during 1975-1977. We can call such a threat authoritarian reversion as a rapid wholesale collapse into authoritarianism (Aziz Huq and Tom Ginsburg, 2017).

Then we have the most recent examples of constitutional regression which may be large but gradual reversals from rule of law, democracy and composite culture. This we experience recently as a worldwide phenomenon assisted by transnational and intra-national business interests.

Examples of this threat are found in the gradual dismantling of constitutionally democratic institutions and conventions and the push of majoritarianism in India, USA and Turkey. However, like all other civilizations, Indian sub-continent also has been opting for a value-based composite constitutional democracy instead of a majoritarian rule.