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

Speaking at an event celebrating Constitution Day 2021, Justice Gautam Patel of the Bombay High Court noted that the text of the Indian Constitution does not contemplate anything as "too much dissent". Justice Patel was speaking at The Leaflet's Constitution Day Talk titled 'Undermining the Idea of India: Which way forward?'.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. "Domestic succession is an attempt to limit people's options and curtail their freedom of choice. If you cannot vote for the father/mother then vote for the son."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...

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

Sneha Rao

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