More than 800 years ago, an agreement was created in between the king and his subjects in England that no one would be deprived of their liberty
devoid of the due method of law and even the king would be subjected to
restraint by written words. This agreement, more than a period of time came
to be identified in history as the Magna Carta. After the loss of land to
France in a war, King John of England imposed extraordinary taxes and
forcibly confiscated lands of the potent barons, which resulted in a
revolt against the monarch and lastly, by the mediation of the church
of Canterbury, a truce was declared in between the king and the barons
and a written document was signed in between the two, with an
understanding that the king would abide by it.
This document, which was signed on June 15, 1215, was the declaration
of the rights of the liberty and equality of the typical man and
everyone would be equal prior to the law. The king was the ruler but not
a law unto himself. Lord Denning described it as “…the greatest
constitutional document of all times – the foundation of the freedom
of the individual against the arbitrary authority of the despot”. The Magna Carta replaced the idea of absolutism and paved the way for constitutionalism.
Checks and balances
When American freedom fighters decided to cast off the yoke of the
British monarchy and spelt their intent to have their personal government,
the Magna Carta was a important supply of inspiration for their
constitution. Learning kind the British encounter, the founding
fathers of the American Constitution ensured that no ‘one’ man ought to
come to be so potent that he could trample on the rights of the person,
so they devised the Montesquieu’s theory of ‘separation of powers’ and ‘checks and balances’. For the smooth functioning of the state, it is incumbent upon the 3 arms of the state to workout their powers in harmony. The fifth amendment of the US constitution clearly states, “no person shall be deprived of life, liberty or property, without the due process of law.”
In 1947, when India attained Independence, a consensus was arrived at –
that it would be a democratic state which would assure the rights of
equality and liberty as spelt out in the Magna Carta and the
constitutions of evolved democracies. The framers of our Constitution also
ensured that except in an emergency, citizens’ basic rights would
not be suspended and if the executive attempted to snatch these rights, the
remedy was obtainable in courts. Mrs Indira Gandhi did attempt to play
with fire from 1975 to 1977 when she imposed Emergency, but, then she paid a heavy value.
Since then, no Government has dared to repeat the errors created by Mrs.
Indira Gandhi but in the final couple of years, the state has come to be more
discriminatory in the execution of laws it has evolved more
sophisticated institutional tools to curtail the basic rights of
the citizens and legitimise their actions and indicators of an authoritarianism are acquiring a monstrosity of unmatched proportions which, if not checked in time, might lead to the destruction of the pretty ideals that our Constitution makers had dreamt of. It is in this context that 2020, in retrospect, depicts a grim image of the state of affairs, with the rule
of law getting itself in suspended animation and the Constitution, it
appears, disbelievingly, has been hijacked by a potent couple of.
State of suspension
A couple of years ago, it was unthinkable that an complete state would be place
in a state of suspension devoid of any remedy obtainable. Jammu and
Kashmir, all through the year, remained below extreme lockdown devoid of
any rights. Thousands of individuals have been place behind bars for no fault
of theirs. Hundreds of petitions of habeas corpus kept lying in the
larger courts devoid of any resolution. The Press was ruthlessly muzzled
and these who dared query authority have been subjected to unqualified
state repression and trauma. It was worse than the Emergency imposed
by the Mrs Gandhi. But the worst was that the forces of nationalism
outdoors the State rejoiced at their trauma. It was sadism at its most effective.
In a democratic state, the voice of dissent is respected and disagreements
are resolved via peaceful suggests but when anti-CAA protesters hit
the streets, they have been brutalised and untold miseries have been heaped on Muslims and their sympathisers, so considerably so that even pregnant ladies have been not spared. In UP particularly, they have been targeted, their properties have been confiscated, posters with their names and addresses have been plastered on the walls of the city as if they have been hardened criminals.
‘Love Jihad’ law
Now, a new law in the garb of like jihad has been pulled out, to target
a certain neighborhood. Other BJP-ruled states are also marching on
the similar route. The Constitution clearly states that
governments have no enterprise to interfere in the private matters of the
citizens — whom they want to marry or mingle with or to what religion
they want to belong or convert to. Despite repeated orders from the higher
court, governments, in their majoritarian zeal, continue to turn a blind eye.
The state has come to be so discriminatory in the execution of laws that
Dr Kafeel Khan is place behind the bars for nine months below sedition laws,
for a fictional offence of incitement to violence, but BJP leaders like
Dilip Ghosh, Kapil Mishra, Anurag Thakur and other individuals, are provided no cost
rein to incite individuals against the minority neighborhood. 83-year-old
activist Stan Swamy, suffering from Parkinson’s illness, is denied his
standard want of a sipper and straw for more than 3 weeks,
intellectuals like Sudha Bharadwaj and Anand Teltumbde are in jail
devoid of any charge sheet, for two years. Gautam Navlakha may as properly
live like a blind man but will not be permitted spects by the authorities
for days.
Rule of the law?
When 3 premier investigative agencies of the nation – the CBI, the ED and the NCB – are unleashed on a 26-year-old actor, Rhea
Chakraborty, for months, to discover out whether or not she or her household members
conspired to kill Sushant Singh Rajput, to settle scores with the
Maharashtra government with the support of Television channels then, why ought to
it not be assumed that the Government has freed itself from the
‘shackles’ of the Constitution and the state no longer believes in the
rule of the law.
It was believed that when investigative agencies turn rogue, the
highest court will discipline them, but the conduct of the latter, to say the
least, has been named ‘judicial barbarism’ by the major
intellectuals of the nation. There is outrage against the behaviour
of the Supreme Court. It has revived the memories of the days of
Emergency, when alternatively of guarding the rights of the citizens, it
sided with the government. Today I am reminded of the law commission’s
14th report that wrote about the qualification of the Chief Justice
of India – “A Chief Justice should be a judge of capability and encounter
… a competent administrator… a shrewd judge of males and above all,
a individual of sturdy independence and towering character who would …
be watchdog of the independence of the judiciary.”
I can understand that enthusiasts of nationalism may find the Magna Carta
a foreign concept, but they should certainly ponder over the words of
Granville Austin in the context of Indian Constitution – “Social
revolution could not be sought or gained at the expense of democracy.
Nor could India be truly democratic unless the social revolution had
established a just society.” A just society is essential to the soul of the Constitution. Unfortunately, that pretty soul is threatened today.
The writer is an author and Editor, satyahindi.com