Threats to Constitution

Print edition : March 02, 2018

THE anticlimax would be hilarious if it was not preposterous. The rabble, which goes by the name of Karni Sena, withdrew its agitation against Padmaavat because it, at long last, figured out that the film was not only no slur on the fair face of the Rajput but actually glorified Rajput pride! Maybe someone who finally bothered to see the film told the agitators what it actually was all about. Or maybe some of them sneaked into the cinemas they were boycotting, and no doubt hoping to burn down when the insulting scenes began unfolding on the screen, and saw for themselves that it was not what they assumed it would be. And perhaps they felt a tad foolish that they had been acting like the marauding Khilji villains on the screen when they were, instead, supposed to be like the dignified and chivalrous Rajput heroes and heroines.

Many of them must no doubt be dismayed at this abrupt end to their exciting run—of vandalising the film’s shooting sets, destroying any public and private property they could lay their hands on, and torching or stoning vehicles on the road. What does it matter if the film that triggered this mad spree of violence turned out to be the opposite of what they had made up their minds it was? It was well worth the adrenaline rush while it lasted. Who would have heard of the Sena if its members had not taken to the streets like they did? Did they not grab the attention of the nation, literally by the collar? Did they not hog the headlines as they went berserk on the streets even as the Republic was being celebrated with orderly pomp and panoply in the grand parade on the only street that mattered, the Rajpath?

Did they not cock a snook at the Constitution and demonstrate that they cared two hoots for the Supreme Court, which ordered them to stop obstructing the release of a film duly certified by the censor board? Did not the State governments concerned look the other way when the court asked them to implement the law? Did not political parties across the board defer to the agitators’ street power and make excuses for whatever it was they imagined they were hurt about? With so much to show for their agitation, what does the material loss and disruption of life inflicted on the public matter? Should not the trauma a busload of schoolchildren underwent when they came under the hail of stones hurled by the mob, when they had to creep under the seats in fear and panic, and the scar it must have left on their tender minds, be set aside as unavoidable (okay, avoidable, so what?) collateral damage?

This latest exhibition of tyrannical street power underscores the importance of insulating our Constitution from the tempestuous and impetuous moods of challenging times such as these. That, fortunately, has been done with the basic structure doctrine coming into force through successive judgments of the Supreme Court so that when a heavyweight Bharatiya Janata Party leader and Minister boasts that his party has come to power to change the Constitution we know it is not all that easy. Significantly, the idea of restraints on the amending power emerged from the chastening experience of the Nazi era in Germany, and Article 79(3) of the Basic Law of the Federal Republic of Germany adopted in May 1949, six months before the drafting of the Indian Constitution was completed, forbade amendments that undid the federal structure and basic principles relating to human rights and the democratic and social order.

Basic doctrine principle

The idea, and the inviolability, of the basic structure of the Constitution was mooted in 1964 by Justice J.R. Mudholkar in his dissenting judgment in Sajjan Singh v s State of Rajasthan, where he raised the question “whether making a change in the basic feature of the Constitution can be regarded merely as an amendment, or would it be, in effect, rewriting a part of the Constitution…”. In 1967, reversing its earlier decision in Golaknath v s State of Punjab, the Supreme Court gave the Fundamental Rights a “transcendental position” in the Constitution, beyond the reach of Parliament, and held unconstitutional any amendment that “takes away or abridges” a Fundamental Right. The basic doctrine principle was reinforced by the historic judgment by Justice H.R. Khanna in Kes avanand a Bharati v s State of Kerala in 1973, which essentially held that the powers of Parliament did not extend to the power to nullify the basic elements and fundamental features of the Constitution.

When to combat the Kesavananda Bharati judgment, Indira Gandhi enacted the 42nd Amendment seeking to whittle down the Supreme Court’s power of judicial review, Nani Palkhivala moved the court to declare unconstitutional Section 4 of the Amendment, which prioritised the Directive Principles over the Fundamental Rights, and Section 55, which prevented any constitutional amendment being questioned by “any court on any ground”. The matter was settled in the judgment by Chief Justice Y.V. Chandrachud, which in effect held that Parliament could not use its limited amending power to enlarge that very power into an absolute power and thereby abrogate the Constitution or its basic and essential features. “Three Articles of our Constitution,” Chief Justice Chandrachud elaborated, “and only three, stand between the heaven of freedom into which Tagore wanted his country to awake, and the abyss of unrestrained power.” He referred to Article 14, which speaks of equality before law; Article 19, which speaks of freedom of speech and expression; and Article 21, which speaks of the right to life and personal liberty. But we are now at a pass where the notion of equality before the law guaranteed by Article 14 is wilting before the naked coercive power of religious majoritarianism promoted by the active collusion of the state. As for the other two Articles, the exercise of the one, freedom of speech and expression under Article 19, leads to forfeiture of the other, right to life and liberty under Article 21, as Gauri Lankesh and others after her are stark reminders.

The larger brighter point is that in India the Constitution is supreme. Judicial prescience protected the Constitution from even the political class, including legislators. This is in contrast to the situation in the United Kingdom where parliamentary supremacy is absolute; so absolute that as the British constitutional pundit Professor Dicey, quoting an 18th century writer, put it: “Parliament can do everything but make a woman a man and a man a woman”; so absolute that the system has been called an “elective dictatorship” (Lord Hailsham).

It is the Constitution that, in the final analysis, protects our democracy and our Republic. But the kind of illegal licence and imperviousness to legal action with which self-appointed guardians of morality and culture of late repeatedly drag the authority of statutory bodies and Acts, like that dealing with film certification and the Cinematograph Act, to the street and ride roughshod over it places a premium on the unconstitutional and the extraconstitutional. It may appear simplistic or exaggerated or alarmist to suggest that the fate of the Constitution hinges on that of the release of a film. But Padmaavat is not an isolated case, and films and what happens to them, however irrelevant in the grand constitutional scheme of things, capture the public imagination far quicker and far more than arcane interpretations of the text of the Constitution and the letter of the law. Of course, there is no constitutional crisis anywhere in sight nor may there be one in the making. But there is an uneasy sense of a constitutional helplessness, especially when the intent of the current state seems pitted against it.

Paean to feudal values

All this is not to exonerate the Sanjay Leela Bhansali film. There is a lot about it to be agitated about but for reasons precisely the opposite of what got the Karni Sena going. It is a retrograde, culturally relativist paean to decrepit feudal values. It is a startling idealisation of the practice of jauhar, or so-called voluntary mass self-immolation of women to save their honour when faced with certain defeat and conquest and/or when male warriors have fallen on the battlefield. It is the kind of idealisation, almost romanticisation, that can lead to renascence of a blighted, obsolete custom. Already, somewhere along their agitation, some Karni Sena male worthies were exhorting their womenfolk to threaten to commit jauhar to ramp up the pressure to ban the film. The men themselves must, of course, live on to fight another battle another day.

Deepika Padukone as Rani Padmavati comes across as more in obsessive love with the fire that is to consume her than with her husband. In the ignominious final sequences of the film, she and her cohorts are impelled to the blaze that has been lit up with about as much self-volition as fireflies taking to fire. The horrendousness of the act is creatively short-changed into an apotheosis of a cruel and inhuman custom. It is given glib gloss as some precious tradition that has been lost, as something to almost culturally aspire to. This is criminality of aesthetics, like Leni Riefenstahl’s alluring take on fascism. Or it is downright ridiculous. Or both.