Illiberalism Biggest Threat To Constitutional Democracy : Justice Gautam Patel At Constitution Day Event

The judge drew attention to the 'Idea of India' as envisaged by the Constitution itself and stressed on the need to protect it:

"Beyond a territorial and geographical description, what is India? It seems almost incredible that this enormous landmass without a common language, ethos, culture, regional history or practice should even exist as a single unit of political entity. India is different things to different people and people have different ideas about what it means to be Indian and what it means to them. But there is only one idea of India and that is the Constitutional idea of India."

Noting that this Constitutional Idea of India lies beyond the tropes of Part III, fundamental rights, equality, liberty somewhere more fundamental-Article 1 of the Constitution.

"Everything in the Constitution flows from this Article. This has to be THE Idea of India for without it India cannot exist. What it tells us in this incredibly compact sentence is that while we may differ from state to state and region to region- all of us are one."

Painting a very vivid picture with his words as only Justice Patel does, he continued:

"Imagine it as a patchwork quilt-colourful, varied, apparently disordered, delightfully different and yet all stitched together. If we lose this conceptualisation, this Idea of India, we are the world of Ian McDonalds River of Gods."

Justice Patel noted that there is a unique provision which informs the Constitutional Idea of India- that the governments have a limited shelf-life meaning that every five years the government must seek a mandate for continuance from the electorate. He stressed that it is this power which makes governments "anxious" and thus is subject to various strategies in order to undermine it.

"This concept of time-limited governance is critical because it necessarily informs our rights and our fundamental rights. These concepts of India being a Union of states and governance having time-limited period of existence are precisely the concern that worry all dispensations. It is this that every dispensation seeks to conquer or to subvert and allowing it to happen would undermine the Idea of India."

He goes on:

"What could be more terrifying to a politician or his party than the knowledge that his/her continued political existence is every so often in the hands the great unwashed? This temporality of power and the risk of its interruption is a threat to every government."

While speaking of governments and governance, Justice Patel exhorted everyone to shun the colonial linguistic baggage:

"Because of this constitutional structure it is time we stopped talking of the 'ruling' party or 'rulers.' "India has no rulers. India is not ruled and so long as the Constitution exists. It may be governed for a limited period of time but never ruled."

Noting that the power of this choice makes government anxious, Justice Patel drew attention to the self-preservation strategies and invidious methods adopted by governments across the world wherever government perceive themselves to be under threat. The first strategy, he pointed out, was the idea of domestic succession.

The second strategy, Justice Patel explains, is to criminalise dissent and disagreement altogether. Elaborating further, he adds:

"This takes different forms- the deployment of harsh criminal and anti-terror statutes beyond their avowed purpose and the invocation of sedition law."

He adds that the latter has been much criticised by scholars like A.G.Noorani and Dr.Abhinav Chandrachud.

"Whether it is in the context of a protest or cheering this or that team in a cricket match the commentaries argue that the law on sedition is outdated and out of step with fundamental constitutional concepts of liberty and freedom."

Another approach, Justice Patel explains, is to weaponize ordinary laws like taxation laws which are are openly used to muzzle disagreement of dissent and to ensure that a contrary voice remains unheard. Withstanding these attempts requires great resilience and a formidable financial and legal arsenal. The third tactic is to entirely trivialize the disagreement opposition or dissent, Justice Patel observes.

"The protest is often a physical disruption of everyday activity- blocking a road or a highway for instance. When protestors are portrayed as a lunatic fringe or as causing unnecessary discomfort to people's daily routines it is easy to marginalise them and to divert attention away from the substance of their disputes."

Justice Patel observes that this endeavour to trivialise is assisted when those who support the dissenters and protestors manage to get it wrong on facts or law or both. Elaborating on his observation, Justice adds:

"A recent example was the consternation expressed about the Farmers Bills by one commentator with no familiarity with legal statutes. He wrote a recent piece critiquing the Bills and led what he considered the most striking provision- the bar on jurisdiction on civil courts. He conveyed that this was an egregious statutory provision that did not exist in any other law. As any law student will tell you, it is not and such provisions have received judicial interpretation for many years. It is this kind of wrong-headedness that feeds neatly into all attempts at marginalising dissent."

The final tactic, the judge notes, is to promote an entirely faux nationalism based on religion or ethnicity and to warp the concept of nationalism to a purpose never envisaged by our Constitution. The judge elaborated on "the most innovate" attempt to muzzle dissent seen in recent times.

"Last week a serving bureaucrat said that the news frontiers of war, something he called fourth generation warfare, is Civil Society. Especially Civil Society can be subverted, divided and manipulated to hurt the interests of a nation."

"As one of the critics also pointed out the term Civil Society is also unclear. I confess I myself have no idea what Civil Society means. What is a Civil Society? And as opposed to what? An uncivil society where everyone is perennially rouge? Is this Civil society as opposed to a criminal society? A criminal society poses no threat but a civil society does? And who is or is not a member of civil society? Journalists, historians, builders and cart pullers, does it include the police itself and how about the bureaucrats and judge's? Are judges Civil Society? Are judges a threat to the government?"

Ideas are dangerous but Ideas are also bulletproof so is this Idea of India.

Justice Patel notes that it is this dangerousness inherent to Constitutional Idea of India which takes governments to attempt this censorship and suppression of dissent."These are first acts of self-preservation by governments but an intelligent and nimble government will use these to force broad spectrum illiberalism especially in culture, art and religion", he adds.

Quoting W.BYeats from The Second Coming- Mere anarchy is lose upon the world..the best lack all conviction and the worst are full of passionate intensity-Justice Patel notes that not all is doomed and that there are yet some defenses in our arsenal. The first, he notes, is the Judiciary as an institution.

"It is the Judiciary. And it is at its doors that successive governments have always balked. The Judiciary frightens the government seeking to cling to power like nothing else does. Our own history shows repeated attempts to weaken the Judiciary, most specially during the Emergency. And we are again, by no means alone. We find that the Judiciary has in its own startling way come to the defence of the Idea of India."

The second defence, Justice Patel observes, is something we tend to take for granted- Technology, especially the Internet.

"Its power is very real and formidable. For there is today one thing that obliterates geographical boundaries and makes impossible the kind of censorship territoriality we saw in the 1950s in Romesh Thapar v State of Madras- a local Madras ban on a Bombay based publication."

Justice Patel notes that unlike newspapers of the past where they could be controlled and dictated, it is almost impossible to control or choke content on the Internet. Speaking of personal experience, he notes- "That is why I have had before me in court half a dozen so-called defamation cases almost all of them by companies of businesses complaining of critical comments on Youtube and social media."

"Therefore it does not matter today if someone in America speaks of two Indias or ten or twenty nine! Like the smog in our cities, the message will get through and will creep in even under the most solidly closed doors. If illiberalism is the biggest threat to Constitutional democracy then the Internet is the biggest threat to Illiberalism."

"The counter-points and counter narratives are, thanks to technology, impossible to silence. There may be more adverse comment and more noisiness now than before but is that not the point? Is that not what the Constitution contemplates or even demands when it says that the Idea of India is embedded in these concepts of a Union of States and of a constitutionally mandated choice to give any government its marching orders at a defined interval. In the constitutional scheme of things, there is simply no thing as too much noise or too much dissent. If there is one thing that the Constitution does not contemplate it is the comfort of conformity or the tranquility of the familiar."

Justice Patel, cautions that while the seed planted in our Constitution has taken hold, and attempts to uproot it have not succeeded yet, we should not be too sanguine for there will be continued attempts by every government everywhere to maintain control, to transition from government to ruler. "That is something we must always guard against," he says.

As erudite as ever, Justice Patel ends his address by exhorting everyone to protect the Constitutional Idea of India:

"Governments will come and governments will go but the Constitutional Idea of India, resilient though it has proved to be, must be protected. History will not judge us by our Highways or bridges or statutes. It will judge us by how well we have preserved this Constitutional Idea of India and saved it from being undermined."

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