DailyPost 2397
UNCONSTITUTIONAL!
As in any other country, there are any number of functionaries at different levels who adorn constitutional positions, after by being sworn by it, and they form the major bulwark of the functioning of the democratic nations in all its dimensions. This is radically different from any other system of governance. Besides, the political or executive authority as the case may be, also provides moral authority, that nothing is being done by the whim and fancies of the person who holds it. As a final touchstone it can be said that it is being run in accordance with the constitution of India, that ensures equality in everything and basic rights guaranteed and enforced.
From this basic benchmark to the running of the legislature or taking the people even at highest positions to task, if need be, or to provide democratic fairness and accountability in every institution is the hallmark of our democracy. Everybody swears by constitution day in and day out, without talking about the nitty gritty of it, whatever they do is declared as constitutional and if they have to be proven wrong, you will have to go through the arduous process of doing it. It can happen in one or two instances and not in any number of them. The question is why constitutional powers are not used with the application of mind and restrain, which spirit of the constitution provides for it.
Given the track record of constitutional propriety one in forced to raise a very relevant question; is swearing by the constitution is a swearing in ceremony tantamount to all constitutional provisions being followed by the person. Being partisan has been the biggest complaint against many constitutional authorities, and it keeps hitting the public domain, with astonishing regularity. Instead of being an exception, it has become the rule. The stretch of lack of constitutionalism (a feeling or a mindset issue) extends from the misuse of the powers to proclaim President’s rule in the past to queer ways government formation / breakdown /reformation which has been seen in few recent cases.
Is appointing of persons not conversant with the constitution for constructional positions constitutional? How does he function then? Constitution is not a rule book or a SOP which can be followed in a mechanical manner. Even to be functionally conversant with it, needs an element of legal acumen and an understanding of the governance of this country. First is the psychological understanding of his / her independent role, rather than doing a calculated batting for someone else. For what purpose immense powers are vested in them, also needs to be understood. Exploiting powers for all unconstitutional purposes cannot be taken as the done thing. It is like the fence eating the crop. Taking action based on vested political gains and keeping proving it absurdly by the constitution is often seen. Can constitution be debated by ones who use it wrongly? Finally, a constitution bench has to decipher its constitutionality validity of actions which smack of political and other vested interests, taking days together, engaging topmost lawyers.
CONSTITUTIONALITY IS NOT BATTLE OF TOP LAWYERS TO DEFEND INDFENSIBLE ACTIONS, IT IS THE BIGGEST TOOL TO USHER IN THE RULE OF LAW IN ALL ITS DIMENSIONS.
Sanjay Sahay