Justice Gogoi Joining Rajya Sabha Points to a Constitutional Crisis
Justice Gogoi Joining Rajya Sabha
Points to a Constitutional Crisis
25 Mar 2020 Newsclick
With Justice Ranjan Gogoi taking oath as amember of the Rajya Sabha and many commentators pointing to a pandemic of
Constitutional crisis makes the stiff fight we are facing between
Constitutional morality and an impending populist reality evident. These two
frames are a distinct ways of organising political and institutional life in a
modern democracy. While the lament of Constitutional crisis and the threat it
poses to a liberal democratic imagination is real, to merely point it out
cannot suffice unless we analyse it in light of what populist reality has to
Constitutional arrangements in the parliamentary
form of democracy that India had adopted are based on the principles of rule of
law, and more importantly, on the separation of powers between Parliament, the
executive and the judiciary. Separation is a way of organising the collective
power of the State in a manner so as to not centralise power, but it also
recognises differentiated interest groups in the polity that would necessarily
remain in conflict or tension with each other.
The productive tension between the organs of
government is supposed to reflect the conflict of interest that also exists on
the ground. As part of constitutional morality, it is expected that such an
arrangement would not only be inclusive, but also recognise that some of the
conflicts are irreducible. It recognises that such an arrangement is necessary
to balance between collective goals and individual rights. Every society
requires common values and a consensus to achieve stability, but this in itself
can pose a danger to individual rights and the right to free speech. The
separation of powers is a way of maintaining this tension without spilling over
into violence, but also without achieving any resolution of the tension.
Tension is assumed to be constant and irreducible.
Similarly, in managing institutional affairs,
our procedures reflect the need for tension and conflict of interest to
co-exist with an assumed consensus. For instance, the way the post of Speaker
of Parliament has been envisaged is of prominence and also intriguing: the
Speaker of the House is supposed to be neutral even as he continues to belong
to a party and hold his position of being an MP representing a particular party
and its ideology. The Speaker is guided by the rules of the House, and not by
partisan interests of his or her party. One could recollect Somnath
Chatterjee's refusal to resign as Speaker when his party walked out of the
government. He argued that he, as Speaker, is "above party politics", while his
party sensed his position as a betrayal of his commitment to its political
decisions. He was later expelled from the party for indiscipline and not
following the party line.
Chatterjee's case highlights the nature of the
tension on which Constitutional morality is based. Was he being true to his
Constitutional position or was he reflecting a bhadralok sensibility that
belies the popular or populist reasoning of a political outfit, that it
represents "the people" that elected it? Constitutional principles, even as
they are represented in and as sovereign power, remain in a necessary tension
with popular democracy. Sovereignty is torn between being inalienable from the
popular will and the necessity to uphold constitutional norms.
Constitutional norms themselves are not abstract
principles but the result of a nation's history. They represent the vision of
the past waiting to be achieved in future and a transition, or historical
process, that connects the past with the future. It is our allegiance to
historical memory that makes us an authentic collective.
In postcolonial democracies the two processes of
popular representation and constitutional morality remained at variance. The
idea was to merge the two in course of time, but that also depends on how
equitous we make society. In India, social and economic inequalities remained
intact, while the journey to merge the two also continued. British Colonial
rule, since it lacked popular will, drew its legitimacy by ostensibly upholding
principles of rule of law and procedural neutrality, which it offered by
arrangements such as the separation of powers. This historical imprint
continued in postcolonial times.
The crisis we are witnessing today-the abject
impunity with which the principle of Separation has been compromised with
Justice Gogoi's acceptance of his nomination to the Rajya Sabha-is a
continuation of the unsettling tension between constitutional morality and an
underlying populist reality. Justice Gogoi has not violated the law but
Constitutional morality, which, in part, is self-conscious and voluntary.
In contrast to constitutional morality is the
populist reality. The current political regime is guided not by Constitutional
morality but by the imperatives of populist reality-even if for rhetorical
purposes the Prime Minister refers to and pays obeisance to the Constitution.
As part of populist reasoning, the very organising principles of Constitutional
morality are under stress and remain suspect. Productive tensions, as a way of
achieving stability and providing for inclusivity, are replaced by authenticity
of unity of purpose and commonness of identity. In fact, the very policy frame
under the current regime is driven by populist reasoning.
If one were to even look at the way schemes are
devised or electoral slogans are projected, it represents populist reasoning.
The recent Tax scheme 2020 is referred to as "Vivad se Vishwas" or Resolving
Disputes by Instilling Trust. Here it is about resolution and not maintaining
tension; it is about trust not balancing conflicting interests. It is about
intention, not procedures. This is projected as a more direct and authentic way
of building the nation.
In a similar vein, Justice Gogoi remarked that
his nomination now allows Parliament and Judiciary to work closely, in tandem,
towards a common goal of "nation-building". Instead of maintaining the
distance, it is about achieving a new kind of "anusandhan".
Does this connect better to a popular
imagination of who we are or who we are supposed to be: a more unified and
undifferentiated whole that signifies unity and strength? It is a different
matter that this allows for a majoritarian construct that not only compromises
the rights of the minorities but also excludes many from the majority community
and will also compromise the right to free speech and individual rights.
The question that we need to really ask is do
these sensibilities of not centralising power, maintaining different identities
and individual rights not matter in the popular imagination? Or is it that they
matter, but operate in a different cultural idiom, which those who vouch for
constitutional morality did not care to learn but only saw themselves as
preachers of a higher order?
The author is associate professor, Centre for
Political Studies, JNU. The views are personal.