Fali Nariman, India’s eminent jurist, writes that the country is on the verge of becoming a Hindu state.  He says it might be unconstitutional, and calls on us to “preserve our non-sectarian constitution.”  But how is India’s Constitution ‘non-sectarian’ when it gives a majority unfettered powers to rule?  India is a Hindu majority nation, and, by definition, in parliamentary governments the largest faction rules.  Hence we crawl.  Here’s Mr. Nariman’s full article…

Written by Fali S. Nariman

With the recent elections in Uttar Pradesh, the BJP has effectively replaced the century-old Congress party as the national party of India. And the time has come — not to talk of anything else! Because, as I see it, we are on the threshold of a Hindu state (unconstitutional though it be). We are moving — not towards the soft Hindutva that Justice J.S. Verma spoke of in his judgment in the Manohar Joshi vs N.B. Patil case (1995), “not a religion but a way of life”, but the hard Hindutva of V.D.

Savarkar — “Hindu Rashtra (state), Hindu Jati (race) and Hindu Sanskriti (culture)”. This is plainly not the state envisaged in the Constitution of India: A constitution that was framed mainly by those who professed the Hindu religion — in a Constituent Assembly of 299, 255 members (85 per cent) were Hindus! You might well say, “What’s surprising about this; after all, it is a country where the overwhelming majority of its citizens are still Hindus” (about 80 per cent).

Yes. And for me, for this reason alone, this is a time to recall the days of the internal Emergency. It was the high courts (nine of them) that almost saved the day in protecting citizens’ freedoms — only to be overruled by a bench of five of the senior-most judges of the highest court: Not unanimously (thank God) but by majority (4:1). The majority through Chief Justice A.N. Ray had glibly said that liberty was the gift of the law, and by the law, it could be taken away. But not Judge No. 2 H.R. Khanna — that is why he is revered by one and all as the hero of the Emergency era (but only after the Emergency ended, not during its painful existence).

I believe it is necessary at this time of the (justified) political triumph of India’s majority party — to recall briefly a couple of true stories of that internal Emergency. I believe they will help strengthen us all (lawyers, judges, journalists, editors of newspapers and of news channels) to resist the admonition then administered by the great-gentleman-statesman of our time, L.K. Advani.

After the end of the internal Emergency of 1975, he told a group of editors: “You were all asked to bend — but why on earth did all of you crawl?”

Before the internal Emergency of June 1975, I had appeared (as law officer of the Union) in a group of matters in the Delhi High Court for the government, where preventive detention orders on persons, later acknowledged to be smugglers, were challenged in writ petitions under Article 226. The matters went on for many days and judgment was ultimately reserved. It was delivered by the high court on a Friday: The grounds of detention, the judgment said, were insufficient. The detention orders were quashed.

In the afternoon on that fateful Friday, I interrupted a part-heard matter before a Constitution bench presided over by Chief Justice Ray and requested that their lordships stay the order of the Delhi High Court — undertaking that an SLP (special leave petition) would be filed by Monday but this was denied. The chief justice pompously said: “This is a matter of personal liberty and we have neither the judgment nor any written application from government and we cannot on a mere oral application grant a stay”. So be it. I convinced myself (as the chief justice had said) that this was a matter of personal liberty and on personal liberties, there could be no compromise. All this was in March or April 1975.

A day after the proclamation of internal Emergency of June 26, 1975, I resigned my post as additional solicitor general of India. The Supreme Court was in vacation. When the court reopened in July, the first week after the reopening, I happened to be present in the same chief justice’s court, when I was witness to a case presented by the-then Solicitor General Lal Narayan Sinha. The case concerned municipal councillors in the Municipal Corporation of Bombay who had been detained under MISA (the-then current preventive detention law). There was a mayoral election in which the Congress party had nominated its candidate. If those councillors who had been detained under the preventive detention law had been permitted to exercise their franchise and vote, the Congress would have lost the mayoral election.

A writ petition was filed in the Bombay High Court on behalf of these detenues, contending that they had not lost their right to vote though detained, and they should be permitted to exercise their vote either at the detaining centre or brought under guard to the voting centre. This application — which seemed eminently reasonable — was granted by the Bombay High Court.

This was on a Monday. The decision was reported in the newspapers the next day. The following morning, the Solicitor-General of India appeared in the Supreme Court, without any papers, without even the judgment of the high court, and orally asked the judges for a stay. The same Supreme Court, the same chief justice, and to the best of my recollection, the same set of judges, orally granted a stay of the decision of the high court — which resulted ultimately in the Congress nominee for mayor being elected.

So much (I then said to myself) for the court’s abiding concern for personal liberty! The lesson, then, for us lawyers is loud and clear (like the UP election results). As Learned Hand, one of America’s greatest judges (who never sat on its Supreme Court) once said, “do not rely too much on the courts to save your liberties — instead rely on yourselves”. In the end, not political parties but only civil society acting in a spirit of constitutionalism can sustain and preserve our non-sectarian constitution.

[The writer is a constitutional jurist and senior advocate to the Supreme Court] 

This article was first published on The Indian Express on 25/03/2017