Disregard of Constitution Mars Celebration of Foundational law

Since 2015, India has marked Constitution Day on 26 November, but instead of celebrations, the day has morphed into a reminder of how the Constitution is being trampled. No less than constitutional functionaries, including some governors of states ruled by opposition parties, have repeatedly come under the scanner of the top courts for violating the letter and spirit of the Constitution. 

For example, the governments of Tamil Nadu, Punjab, Kerala, and Telangana have approached the Supreme Court against their respective governors. They have sought a time frame within which governors must decide on Bills--either return them to the legislature or grant consent. They say doing anything else, such as delaying their decision indefinitely, would blatantly contradict the Constitution. The controversy did not start when Tamil Nadu Governor RN Ravi dismissed Minister Senthil Balaji without the recommendation of Chief Minister MK Stalin. Nor did it begin when the Governor of Punjab, Banwarilal Purohit, did not convene the Budget Session of the Assembly despite the Punjab Cabinet’s recommendation. However, both events have marked new lows in the relationship between the state governments and the constitutional post of the Governor.

When there was outrage across the nation against Ravi, he kept his decision on hold and reportedly followed Union Home Minister Amit Shah’s advice to seek legal opinion from the Attorney General of India. This sequence of whimsical choices is beyond the comprehension of the Constitution, which provides that the ‘pleasure’ doctrine applicable to a governor (regarding the continuance of a minister) must be exercised on the chief minister's advice. 

In Punjab, the state government charged the Governor with disregarding the Cabinet’s recommendation to convene a session. The state government has also complained that seven Bills were pending with the governor. This stasis led the Punjab government to move the Supreme Court in a challenge. Once the matter reached the apex court, the Governor called the Assembly session. However, just this week, the Governor reportedly informed the state government, which has been sending reminders on five still-pending Bills, that they were "under consideration". The Punjab government led by Bhagwant Mann also reminded the Governor's office of the Supreme Court's observation during a 10 November hearing that a “Governor cannot be at liberty” to keep a “Bill pending indefinitely without any action whatsoever”.    

Governors take an oath to “preserve, protect and defend the Constitution”. So, it is crucial to ask ourselves what Constitution Day means when it is disregarded and governors do not express remorse even after the Supreme Court’s critical observations that such actions would imperil democracy. 

Supreme Court on Thwarting Law-making Process

The governments in Tamil Nadu, Telangana, Kerala and Punjab moved the Supreme Court saying that the respective governors were not making decisions on Bills passed by the elected legislatures, contravening Article 200 of the Constitution. This article mandates governors to act on Bills “as soon as possible.” Hearing the Punjab government’s petition, the Supreme Court observed on 23 November, “The expression ‘as soon as possible’ is significant…It conveys a constitutional imperative of expedition”. The court said, “Failure to take a call and keeping a Bill duly passed for indeterminate periods is a course of action inconsistent with that expression.” 

It also said, “Constitutional language is not surplusage…The Constitution contains this provision bearing in mind the importance attached to the power of legislation which squarely lies in the domain of the state legislature.” The court said, “The Governor cannot be at liberty to keep the Bill pending indefinitely without any action whatsoever.”

In April this year, the Supreme Court's (upcoming) intervention assured the governor's go-ahead for a few pending Bills in Telangana. 

Such observations demonstrate why these state Governors were seen to have acted contrary to the Constitution. It raises the question of why the Modi regime’s celebrations of Constitution Day contradict the ground situation when governors it has appointed are no less than reprimanded by the Supreme Court over “thwarting the power of legislation” of the elected legislatures. Any such celebration must accompany the defence of the Constitution. It must encourage the “cultivation of constitutional morality,” in BR Ambedkar’s words. However, the highest constitutional functionaries remain silent when Governors commit such violations. 

Crisis of Constitutional Morality in Manipur 

The Supreme Court, while taking suo motu cognisance of the ethnic clashes that began in Manipur this summer, observed that there was an “absolute breakdown of constitutional machinery in the state to the point that one could not record an FIR”. Even the Governor of the State observed that she had never seen such a situation anywhere in the country. Despite the Supreme Court’s observation, the President’s Rule was not imposed in the state as mandated in Article 356. Even now, violence sporadically breaks out in Manipur. The functioning of the state government has not been able to restore the inalienable right to life of citizens living in the state. 

When neither the state government nor the Centre have been able to stop the violence, what significance does Constitution Day have today?

Religious Slogans in Elections 

In the election campaigns in Himachal Pradesh, Karnataka, Madhya Pradesh, Chhattisgarh and Rajasthan, even the Prime Minister and Home Minister invoked religious issues and slogans to seek votes. A campaign anchored in making religiously-tinged appeals violates The Representation of the People Act, which prohibits invoking religious, caste and linguistic issues to garner popular votes. More so, it violates the Constitution, which upholds the neutrality of the state vis-a-vis religion. Those who occupy official positions cannot violate the Constitution with impunity, but it has, sadly, been happening regularly in elections across the country.

People in Defence of the Constitution 

There is no denying the profoundly worrisome developments concerning the flagrant assault on the Constitution. These endanger the idea of India and the foundational values of our republic. But the hope to salvage it comes from people who read the Preamble, which begins with the words, “We the people”, and who engage in movements that defend the constitutional vision of India. On this Constitution Day, let us again remember Ambedkar’s refrain that adopting a constitutional method to pursue constitutional objectives is a categorical imperative. Only that can save the Constitution from the powers that dismiss its basic tenets and recklessly undermine its provisions. 

The author was Officer on Special Duty to President of India KR Narayanan. The views are personal.