Post 2014, The Ruling Dispensation Does Not Pretend To Defend India's Liberal Democracy: Senior Advocate Indira Jaising

Senior Advocate Indira Jaising, while referring to the Central Government on Saturday said that the "ruling dispensation no more pretends to defend liberal democracy and instead tries to convince us that the freedom struggle never happened and is rather happening now." 

Jaising was speaking at the 'Save the Constitution, Save the Country' convention organised by the All India Lawyers Union in Delhi. 

Ms. Jaisingh started off her speech at the Convention by informing the audience that she sensed some fatigue on the issue. She said, "We have been talking about saving Constitution and saving Democracy since 2014. We are still in defense mode. I don't know when we will get into the offensive mode."

The ruling dispensation is ignoring the Constitution

Jaising said that the ruling dispensation was ignoring the Constitution. "They are quite simply ignoring the Constitution of India", she said.

"This is the challenge before us. How do you deal with a ruling dispensation that chooses to ignore the Constitution of India. Remember that the Constitution has not been amended since 2014 except in the case of abrogation of Article 370. All other changes we have seen by way of an attack have come through legislation and through ordinary practise", she added.  

Explaining what she meant by 'ignoring the Constitution', Jaising further said, "We know that the Constitution was the outcome of a struggle of the freedom movement. What that brought in was a Rule of Law. Today the rule of law is being ignored, and we have to confront the question are we a country of rule of law? In my view we are not."

Lawyers have a very big role to play in defending the Constitution

Casting a huge responsibility on lawyers, Jaising remarked, "As lawyers, we have to play a very big role in defending the Constitution. We need to bond together and realise that we are at the cusp of history, where if we fail the nation, we only have ourselves to blame. All the challenges that have happened in the last 10 years have happened in the court and they will continue to happen in the court so long as the Constitution is attacked. Therefore, as lawyers we need to recognise the horrendous nature of our duty that is cast on our soldiers."

Two episodes when India's liberal democracy has been attacked

Ms. Jaisingh then came to the most important part of her talk where she said, "There are two significant episodes when the Constitution of India has been attacked. One was during the emergency and the other is starting 2014. And yet I think it is important for us to understand the difference between these two attacks."

Battles against Emergency strengthened the Constitution

While explaining the nature of the battle that existed during Emergency, Jaising said, "During the emergency our battles revolved around the implementation of social and economic rights. Our generation fought for social and economic rights at the Courts. We took our civil and political rights for granted because internationally these rights were directly protected and enforced. So, we thought that social and economic rights is what our battles were for. The emergency of 1975 gave us a huge shock. The legitimacy of all our protests and the legacy of our struggles was brought to a brutal end when the emergency was declared. The emergency brought in a transformation in our understanding of a liberal democracy. We saw the end of liberal democracy."

However, she added, "Despite its attempt, the Emergency did not succeed in delegitimising the Constitution. On the contrary, the emergency and the struggle against it, I believe, strengthened the Constitution as both sides claimed they were defending liberal democracy."    

Post 2014, ruling dispensation does not pretend to defend liberal democracy

Distinguishing the Emergency from the situation today, Jaising said, "After 2014, the ruling dispensation...actually say in all their utterances that they do not believe in liberal democracy. They try to convince us that the freedom struggle never happened and is rather happening now, that all our rights and democratic practices originate from the Vedas and we are in a continuity that was paused, that the word secularism must be dropped from the Constitution and that we must be governed by cultural nationalism instead of a Constitution." 

"Emergency was on a piece of paper and we could contest it in a court of law, but not now", Jaising later added. 

Judges too are contributing to the attack on the ethos of our constitutional democracy

Adding to the above distinction, Jaising further pointed out the role of judges post 2014. She said, "While politicians may play games with the Constitution, I have noticed that some of our judges have also, in their extra judicial utterances, started speaking a similar language."

While referring to the lectures of Madras High Court judge Justice GR Swaminathan and Supreme Court judge Justice Surya Kant from the recently conducted Adhivakta Parishad where the judges had quoted from Ramayana and Kautilya, Ms. Jaisingh said, "It is ahistorical to suggest that there is continuity in political thought between the Vedas and the Constitution. In India, there was a sharp contrast between the past the Constitution when for the first time we talked about values such as equality, democracy and integrity of the individual. The values in the Constitution were cemented by Dr Ambedkar. There was a conscious attempt to de-brahminise the Indian society and abolish the caste system. What Justice Surya Kant said about legal realism, it is a direct attack on the ethos of our constitutional democracy."

Jaising further also quoted from Kautilya's Arthashastra to argue that the text specifically called for preservation of Varna Dharma which promoted caste system. She said, "If Kautilya is what our judges quote, it is a direct attack on our Constitution. This is clearly against Constitutional Morality. It is against the values enshrined in the Constitution. It is against what the Constitution set out to do."

We have an unamended constitution which is actually amended in practise

Jaising added, "We've reached finally at the position of an unamended constitution which is actually amended in practise. Liberal democratic character of the Constitution has not been altered by amendments but, minorities are lynched, journalists are prosecuted or worse, killed. Lawyers are attacked for doing their professional duties, activists from civil society are thrown behind bars and the ED is unleashed against all."  

Abuse of criminal law has been institutionalised

Pointing towards the illegal arrests and detentions and abuse of investigating agencies by the Centre, Jaising said, "Then there is targeted prosecution for some and impunity for others. Abuse of criminal law has been raised to the level of a policy. You do not need a gun to be a terrorist. You can be thrown into jail for the thoughts in your mind. You, as a lawyer can argue a case in court and be thrown in jail...The legal profession is in danger. We all know what happened in the Delhi riots, Elgar Parishad and Bhima Koregaon cases; these cases represent the transformation of the victim into an accused in a Court of law by the use of UAPA."  

Read what former SC judge Justice Gopala Gowda said at the event - Track Record Of Supreme Court In Last 8 Years Is Disappointing : Former SC Judge Justice Gopala Gowda