Senior Advocate Dushyant Dave on Saturday said that all political parties across the board have no respect for the constitution and constitutional morality, and that they have collectively tried to weaken every constitutional institution.
Delivering a lecture on ‘Basic Structure of the Indian Constitution and the Present Day Challenges’, organised in Kochi by the Ernakulam Govt Law College Old Students and Teachers Association, Dave said political parties across the board lived for their existence, not for the people.
Speaking about the multi-party system, he said it was the basic feature of the Constitution, which cannot be destroyed by use of national agencies, such as the Central Bureau of Investigation (CBI) and the Enforcement Directorate (ED).
Dave said India had democracy in form, but not in substance, mentioning the ‘targeted’ attacks on critics, stand up comedians and minorities.
He said if the politicians were allowed to amend the Constitution as suited to their interests against the people, then ‘We The People’ would not survive. When Dr. B.R. Ambedkar and his colleagues framed the Constitution, they never thought that in future, Parliament will take away the fundamental rights of the people, he added.
Dave said today’s political parties did not put India beyond their political ideologies. The farm laws were passed without a debate and repealed without debate. He said it was ‘shocking’ that in the past eight years, there has hardly been any debate on the laws passed in Parliament.
Stating that he considered the Constitution as sacred as the Bible, Quran or the Gita, Dave said there was no need for its amendment. He further said that as lawyers and law students, it was their duty to take the Constitution to the people.
Judges were very right in not allowing unbridled power, even though the Parliament wanted to do so. Judges realised what the body polity had become, he added.
The Senior Advocate quoted constitutional theorist Albert Venn Dicey as saying in 1940 that trust in legislative assemblies was dying and suggesting a veto on legislative majority. Dave says Dicey apprehended that a majority party might destroy the constitution using its powers and hence, suggested some checks on majority powers.
He said Dr. Ambedkar had warned that if there was no limitation to parliamentary powers, there would be tyranny and complete oppression. Ambedkar and his colleagues were clear in mind that Parliament should have powers to amend the Constitution.
Calling every word spoken by Dr. Ambedkar on November 25, 1949 as golden, Dave said everybody should read it. Everything he feared then, was happening in India today, he added.
Dave said for the first two decades, the Supreme Court rigorously followed the principle that Parliament has absolute power to amend the Constitution, including the Fundamental Rights. Then came the Golaknath decision, which held that Fundamental Rights cannot be tinkered with by amendment powers. The government did not like the Golaknath judgement.
To overcome this, Indira Gandhi brought amendments to virtually take away judicial review over constitution amendments. Then came the landmark Kesavananda Bharati decision. It was almost impossible to decipher the ratio of this decision. Here, the Basic structure theory was introduced for the first time, he added.
The Senior Advocate said majoritarian parties, be it under Indira Gandhi or under Narendra Modi, could pass any law by using brute majority. The effect of Kesavananda Bharati case was that the Parliament could amend the Constitution, but not so as to change the basic structure, he added.
Dave alleged that the Supreme Court, under the then Chief Justice of India Ranjan Gogoi, delivered judgements after judgments in favour of the ruling dispensation, be it Rafale or Ayodhya, in an attempt to cover up his sexual harassment charges. The citizens have been greatly affected by this. He further said that under CJI S.A. Bobde and N.V. Ramana, there have been many disappointments.
Regarding the collegium system, he said the country had lost the moral fibre. It was difficult to put truly independent people in power. Today, the kind of judges being considered were the ones with a certain ideological bend. The Collegium members were themselves influenced by certain political ideologies, he claimed.
As per Dave, the political class hated the judiciary. He mentioned the Vishaka judgement, which addressed harassment of women in offices. He said the Parliament could not pass any law until then. Media was also silenced.
The judiciary would continue to do good work. In the past few years, the judiciary has done great things to protect the basic structure in many cases. Judges may be singled out but the judiciary as an institution has to be respected, he added.
Regarding the judges taking up public positions after retirement, he said Justice Nazeer being made Governor was a clear case of quid pro quo. Justices obliged the government and big corporations in many ways and they were rewarded, noted the Senior Advocate, adding that this practice of judges taking up positions after retirement should stop.
The event was inaugurated by Law Minister of Kerala P Rajeev. Inaugural address was given by Senior Advocate V.K. Beeran, while Justice Jayasankar Nambiar, Judge of the Kerala High Court, delivered the presidential address.