The new and dark interpretations of ‘We the People’ Premium

The determination shown by the ruling party to dominate States and chip away at a Constitution framed by some of the best minds in India will only lead the country further away from the precious ideals of democracy

The raging controversy over the very meaning of ‘We the People’, after the speech made by the Vice-President of India and Chairman, Rajya Sabha, Jagdeep Dhankhar at the 83rd all India conference of presiding officers’ in Jaipur, Rajasthan, on January 11, needs a closer look. With its particular reference to the judiciary, Mr. Dhankhar’s speech was of the view that ‘We the People’ essentially gives primacy to elected members of Parliament and the State legislatures.

The Speaker of Lok Sabha supported Mr. Dhankar’s view that the separation of powers (as enshrined in the Constitution) gives this primacy. Expatiating on this theme, Mr. Dhankhar implied that the separation of powers does not equate the three pillars of democracy: Parliament, judiciary and the executive. In his view (although he did not explicitly say this), as the judiciary and the executive are appointed and not elected directly by the people, they are inferior.

Let us first sort out the meaning of ‘We the People’. The Constitution does not define ‘people’. Its concern is about citizens and not any group or a particular institution. There are people in the judiciary, in the executive and in most other constitutional institutions. There are also those in the military, the police, public enterprise and the vast private enterprise. They are all people no less. To identify representatives in the legislature to be the sole representatives of the people is a travesty. Apart from being enshrined in the Constitution, the theory of a separation of powers is basic to any democratic society, more than the letter of the Constitution. It is a case of staggering irony that over seven decades after Independence, the Indian nation is being subject to a re-education of what the essence of democracy is, from a person who as Governor, caused innumerable problems for the elected government of West Bengal.

Since the issue of primacy of Parliament along with the judiciary and the executive came into the discussion, let us look at two countries with which Indians are familiar. In the United States, the President has the power to appoint judges, although this should be endorsed by Congress. But the President is directly elected by the people and has prerogatives in several issues which do not apply to a parliamentary democracy. The Prime Minister-in-cabinet does not have the powers of the U.S. President. And hence the possibility of a judicial review to check the suitability or otherwise of the candidates nominated.

In the case of the United Kingdom, it is run by time-honoured conventions and laws passed by the House of Commons. It does not have a written Constitution which gives judicial review. But strong conventions are in place in spite of the primacy of Parliament. Conventions in the United Kingdom have an inviolable tradition. Laws can be changed, violated and repealed. Even in Parliament, the Speaker of the House of Commons is elected, but becomes a non-party man, choosing when to retire from office.

In India too, the first two Speakers, G.V. Mavalankar and M. Ananthasayanam Ayyangar and later Neelam Sanjiva Reddy resigned from the ruling party to give the entire Parliament a sense of impartiality in ensuring a proper place for minority parties. The point is that in the United Kingdom, the House of Commons retains the Speaker if he continues to hold office. This, alas, does not happen in India, in spite of the first two Speakers of the Lok Sabha having tried to set a convention. This lack of convention has drastically affected the running of Parliament. The reluctance to honour conventions made our laws and Constitution strive for greater specificity, often leading to quibbling in language and meaning.

Democracies cannot be run only by the laws passed in representative Assemblies. They need conventions. B.R. Ambedkar realised that Orientals cannot be trusted with conventions. Unless conventions are solidified into constituent laws and bound by strong threads, institutions may even be destroyed, endangering the very purpose of a Constitution protecting the citizen. Indeed, there is a price to be paid converting conventions into law and B.R. Ambedkar knew it. Today’s onslaught on the judiciary is aimed at a powerful constitutional authority which is, by and large, refusing to deviate from its constitutional responsibilities. The fate of the Election Commission of India, independent investigating agencies and the civil service and police are a classic example of a dereliction of constitutional and other legal responsibilities.