Judiciary Must Defend And Protect Political Freedoms, Says Anupama Roy, Author And Expert On Citizenship Law - [Interview:Part-2]

Q. In your book, there is an interesting discussion about Gandhi’s support to a moral right to rebel and resist an unjust government at the core of the duties of citizenship and Ambedkar’s famous plea in the Constituent Assembly in 1949 to abandon the methods of non-cooperation, civil disobedience and satyagraha. Today, if India is to experience something like the Internal Emergency of 1975-77, what are the options to citizens? Can they claim a right to rebel against a Government, which imposes Emergency, and tramples democratic rights?

A: When Gandhi elaborated the craft of civil resistance, he was articulating an ethics of citizenship which was based on principles of justice and reasonableness, which made it immoral to submit to an unjust government; at the same time the rules of civil resistance were such that involved willing submission to the penalties which followed the breaking of unjust laws. At the core of the duties of citizenship therefore, was eternal vigilance.

Ambedkar’s notion of constitutional morality is consonant with the principles of civil disobedience and not antithetical to it. When Ambedkar suggested the abandonment of non-cooperation, satyagraha and civil disobedience, he was not doing so in a vacuum. Abandonment was appropriate only in those conditions where such forms of resistance would be detrimental to constitutional democracy, and they could be resorted to only when all other constitutional avenues and means had been exhausted.

Indeed, if one looks at the history of Parts III and IV of the Indian Constitution, it is possible to see them as providing an evaluative framework of critical morality constraining actions by governments including declarations of specific or permanent states of emergency as serving ‘compelling’ state interests.

Indeed, Ambedkar quoted Grote to emphasize that the diffusion of constitutional morality throughout the entire community (especially the dominant minority) was an indispensable condition for ‘fair and peaceable’ government. It can be assumed then that in a community permeated with constitutional morality, the citizens will consider it their duty to ensure fair and peaceable government through constitutional means. When such means are not available, as in an emergency, it is the duty of citizens to display political courage to reinstall conditions of freedom.

Q. While ending Chapter 2, you are critical of the Supreme Court’s recent judgment in Rajbala v Haryana, for creating two classes of citizens, one that could vote but not govern, and the other that could do both, reducing franchise to a mere statutory privilege, subject to the whims of those in power. In this context, you mentioned how Ambedkar warned against contradictions in Indian democracy. Can you elaborate whether and how Ambedkar would have disapproved of the Supreme Court’s decision in Rajbala, had he been alive today?

A: It is instructive that Rajbala v. Sate of Haryana was an appeal in the Supreme Court contesting the constitutional validity of the Haryana Panchayati Raj (Amendment) Act, 2015, on the ground that it violated the fundamental right to equality in the constitution. Much of the argument in the judgment upholding the constitutionality of the amendment was based on the hierarchical ordering of rights in the constitution, leading to the conclusion, that the right to franchise was a constitutional right and was not entitled to the same protection which were given to fundamental right.

The judgment, moreover, effectively created two classes of citizen, one which could vote but not govern and the other which could do both, reducing franchise to a mere statutory privilege, which could be subject to the whims of those who hold political power. The petitioners had pointed out that the amendment was discriminatory for putting in place arbitrary restrictions, which excised more that 50 per cent of the rural poor, especially women and dalits, from contesting elections.

When Ambedkar cautioned that on 26^th January 1950 the nation was entering into a life of contradictions, he was referring to the contradiction between formal equality in the political domain which was a constitutional promise, and a deeply unequal economic structure, which rendered the promise hollow. This contradiction, Ambedkar asserted, if denied for long would imperil Indian democracy.

The description of the constituent moment by Ambedkar as a contradiction, as distinct from Nehru’s ascription as a transcendental moment, may be seen as anticipating a distinctive democratic politics of recognition and redistribution within the space of constitutional democracy. Indeed, the political excision of the socio-economically disadvantaged is a betrayal of the promise of equal citizenship and transformative constitutionalism, which requires that all of us, especially those who are in power, live the ethic of transformation.

While deciding the eligibility criteria for election to political office is the prerogative of the legislature, the amendment has effectively converted a political right into a privilege taking citizenship back to its association with status which was enjoyed by the propertied elite.

Q: In the recent Cauvery case, the Supreme Court banned even peaceful protests and agitations against its decisions, following violence in Karnataka and Tamil Nadu, saying agitations have no place when further legal remedies are available to aggrieved people. The Court’s ban came about, without hearing parties on its merits. You have dealt with such restrictions on the right to protest of the citizens in your book. Do you think citizens ought to resist such restrictions?

A: It is not a simply of question of whether or not citizens have the right to protest or whether they should or should not resist restrictions to their fundamental right to freedom of speech, expression and peaceful assembly. These rights are at the core of citizenship and must be guarded against all possible erosion, equally by the courts and by citizens themselves.

The Supreme Court’s responsibility to uphold the constitution and rule of law cannot be inconsistent with the right to freedom and a ‘reasonable’ restriction to these rights is itself subject to the scrutiny of the constitutional provisions. On the other hand, such scrutiny and evaluation are equally applicable to people’s protests. The evaluative framework for both – the judiciary’s orders and people’s protests – and most importantly of the political regime in power - comes from the constitution itself.

As a general principle, political freedoms must be defended and protected by the judiciary; the more robust such defense is, the closer the correspondence between constitutionalism, democracy and citizenship.

The Part I can be read here.

This article has been made possible because of financial support from Independent and Public-Spirited Media Foundation.