Citizens must guard their own interests

It was 19 May 2024, a day before Ayodhya was to vote in the Lok Sabha elections. Journalist Venkitesh Ramakrishnan found himself watching a swelling crowd make its way up the steps of Hanumangarhi temple. He assumed they were all BJP voters. They looked undeterred by the sweltering heat and cries of ‘jai Shri Ram’ rent the air. The rebel in him couldn’t resist crying out ‘jai Bhim’. A man on the road near the steps, accompanied by his wife and young son, turned around and echoed: ‘jai Bhim, jai Samvidhan’.

When an amazed Ramakrishnan asked if he was not afraid to stand out in this crowd, the man said there were at least 50 of his mates in the crowd going up the steps who’d all gladly do the same. My flummoxed friend persisted: “These devout temple-tourist Hindus will vote against the BJP?” Pat came the reply: “Aastha apni jagah hai, aur humara vote apni jagah (our faith does not dictate our vote)."

Trying to decode the message of the general election of 2024, I think the Indian voter is finding a new balance between his religious faith and his belief in the Constitutional practice of voting. The voter has not surrendered his reasoning to those who seek his vote solely on the basis of his faith. Nor has he given up his faith and its rituals. If anything, the Constitution has acquired a new halo, is possibly being seen as another holy book and efforts to change it or hollow it out will be looked at with great disfavour.

Most importantly, the voter is not allowing the cacophony of opinion to swamp his own judgement. Voters seem to be demanding respect as individuals; they will no longer be herded; they don’t belong to anyone and they will hold everyone accountable.

What this means for the polity is that individual rights and entitlements won’t be subsumed under an authoritarian regime’s conception of the greater public good. Institutions, including the courts, can no longer ignore individual rights; they’ll do so only at the risk of losing their credibility.

Eminent jurist Fali Nariman told me once that a government with a majority of its own would see a conformist judiciary; it has to be seen whether the reverse is true as well. Over the past decade, the judiciary has often seemed to be negotiating with power, rather than acting as a restraint on executive excess.

Even in the case of judicial appointments and transfers, the judiciary has chosen to not precipitate matters when the recommendations of its collegiums have been bypassed or ignored. It has chosen to turn a Nelson’s eye when causes of the moment have sought injunctive relief. Courts have agreed to examine matters but not restored status quo, and allowed, with masterly inactivity, to let the cause itself fade on the public radar.

The first task of the Constitutional courts, in a republic that has reaffirmed its faith in the Constitution, must be to reinforce that faith. Courts would do well to address and correct egregious denials of liberty in cases launched with a political motive. Whether it is Bhima-Koregaon, Umar Khalid, Sharjeel Imam or even Arvind Kejriwal and Hemant Soren, the State’s impunity to incarcerate without trial cannot continue.

If the courts do not lean towards protecting the liberty of citizens, they may soon be reduced to an instrument of executive excess. Freedom of speech can only be a myth if freedom cannot be assured after speech. It is the Constitutional courts’ zealous defence of free speech that lays the foundation of all other freedoms. As George Orwell wrote in his dystopian novel 1984: "Freedom is the freedom to say that two plus two make four. If that is granted, all else follows."

The people of India have voted not to be silent but to have their voices heard. They have voted to defend the Constitution. Somewhere, subliminally, a message has been transmitted that our Constitutional democracy needs to be defended against people out to demolish it.

The message that needs to be amplified is that the ownership of the Constitution rests with the electorate and not with their elected representatives. The Constitution is as much a compact between citizen and citizen as it is a charter of government. The very word samvidhan breaks into ‘sama’ (applicable to all) and ‘vidhan’ (scheme of law). Citizens need to appreciate that the Constitution is a common system of law applicable to all citizens to keep them engaged in a society and country.

Citizens need to realise that the Constitution serves every citizen’s interests. A Constituent Assembly, nearly 80 per cent of which were orthodox Hindus, wrote a charter of rights and governance against the backdrop of great violence. They wrote it as a safeguard against the madness of their own times.

Three or four generations of largely Constitutional governance may have ensured that the citizenry now has a propensity to guard against the dilution of those guarantees. But citizens cannot relax and rely on institutions created by the Constitution to defend them against executive excess. It is only when citizens guard the institutions that they work in the interest of citizens. Otherwise, these institutions easily lapse into becoming appendages of the executive.

The results of the general election have opened a small window of hope in an overwhelming wall of authoritarianism. One can only pray that the window is not slammed shut by the storms that appear on the political horizon. The jambs and hinges that keep the window in place must be checked from time to time. Jai Bhim, jai Samvidhan!

Sanjay Hegde is a senior advocate at the Supreme Court of India