Mohan Katarki is a Senior Advocate designated by the Supreme Court of India. He is the Honorary Visiting Professor of Law at Bangalore University’s Law College.
Katarki is a well known expert in transboundary water law on sharing of federal and international river water resources.
Katarki has served as a member of the Academic Council of National Law School of India University, Bangalore. At present, he is the Vice President of Bar Association of India, member of the Board of Management and Planning, Karnataka State Law University and member of the KSLU’s Student Law Review and Bangalore University’s Law College Journal. In an interview with Abhish K. Bose he discusses on how the Indian democracy can be more transparent, the provision of right to recall the elected representative, and the recent mass complaints sent by the lawyers to the Chief Justice of India.
Excerpts from the interview
1. How can Indian democracy be made more transparent and politicians be made more accountable to the people to prevent them from deciding the scheme of things in a partisan manner?
At the outset, let me recall what Dr. B.R Ambedkar said in the Constituent Assembly on 25th November 1949 – “However bad a Constitution may be, it may turn out to be good if those who are called to work it, happen to be a good lot”.
The Indian democracy, as designed in the Constitution of India is intended to promote transparency and accountability and the rule of law. We have a parliamentary system where elected representatives in the Cabinet exercise the ultimate executive power. We have elected legislatures such as the State Assembly and Parliament where laws are enacted. We have an adult franchise system and a common voters list to ensure equal opportunity. We have an inclusive system since reservations are provided in favor of the marginalized section of society. We have an independent Election Commission to supervise elections. We have declared fundamental rights which mandate equality and freedom. We have an independent judiciary to enforce the rule of law.
However, despite this constitutionalized democracy guaranteeing transparency and accountability and the rule of law (not rule by law), the perception in the public after seven decades is that the institutions created for enforcing these objectives have failed partly, if not fully. Hence, many say that democracy is at a crossroads in India!
The perception is largely based on the gross misrule. The elections have turned out to be a commercial event management. The divisive politics is openly promoted by encouraging speeches that steer up hate. History is distorted by fake narratives. A feel-good factor is generated by manipulating the statistics allegedly. The alleged extortion has been normalized. The debates in the legislatures are reduced to exchanges and barbs. Unfortunately, a politician has become synonymous with an illiterate!
If governance is a continuing affair, reforms to fix the system are part of the process. I’m sorry to say, that the liberals are to be blamed for failing to fix the system before it slipped into the hands of those who have less faith in reason and evidence or scientific temper. What reforms are necessary is a matter of debate. However, reforms to ensure more accountability are not possible in the present political atmosphere. But, it should be an agenda on the nation’s political table.
The present political system is based on the system of first past the post voting. As a result, half of the Members of Parliament are reportedly elected with less than 50% of the votes. The BJP (Bharatiya Janata Party) won 303 seats in the last parliament election but percentwise, it garnered only 37.3% votes. I think a referendum on important issues was the way to test the will of the people. The United Kingdom has employed a non-binding referendum to gauge the mood of people on several issues confronting the nation. If so, why not in India also?
2. What’s your view about the right to recall the elected representatives? Do you think, it is a better weapon of constitutionalism to discipline the manner of governance?
The right to recall is not merely a constitutional artifice but is a democratic right inherent in the people to ensure transparency and accountability to people, who are ultimately said to possess sovereign power. The process is known as a direct popular check on the legislators.
We all know, that modern democracy is a construct of liberalism. Departing from the historic belief that the power of the King comes from divinity, the liberals beginning from political philosophers Rosseau, Hobbes and Locke propounded that the power flows from the people, and they conceptualized the State as born out of a social contract between the governed and the governing class. This paved the way for injecting elements of normativity into the political constitutions whether the constitution is written like in USA, India, etc, or unwritten law like in the United Kingdom.
I see no legal or constitutional difficulty in enacting a provision enforcing the right to recall in the people. If the people are dissatisfied with their elected representative whether a Member of the Assembly or Member of Lok Sabha in the Parliament, a provision can be enacted to initiate the right to recall by following the two steps process: (i) 25% of the voters on the electoral roll in the constituency must express support for initiation of recall process by voting online on a dedicated website maintained by the Election Commission of India; and (ii) in the recall voting held in the constituency on the question of whether representative X should be recalled and a fresh election be held, 51% of the voters on the electoral must say “yes”.
The right to recall of representatives as suggested is not inconsistent with the Constitution prima facie. This can be achieved by Parliament by enacting a law under Art 102(1)(e) of the Constitution in the case of members of Lok Sabha and Art 191(1)(e) in the case of members of the State Legislative Assembly. These articles deal with disqualifications. I think a representative of people who have lost the confidence of the people should incur disqualification to continue as a member.
3. What’s your take on cultural nationalism and do you think, it is inconsistent with our Constitution and or constitutional ethos which advocates pluralism and unity in diversity?
I think this issue needs to be examined deeply. The answer does not lie in scratching on the surface by merely countering talk of cultural nationalism. Probably, the Bharatiya Janata Party (BJP) itself has not fully thought of what is meant by cultural nationalism!
Nation and State are different political concepts. The subject of international law is the State, not the nation. Nationalism is not even a criterion for recognition of a State. Even the right of self-determination in international law does not recognize nationalism as a criterion for the claim. Based on ethnic identity there cannot be a claim to self-determination in international law.
The State is a historical political entity. The sense of nation or national belonging originated in the 18th century when States in Europe started crying for identity.From ancient times, the dynasty, fiefdom, or tribal affiliation was the identity of a State.With the French Revolution and the rise of liberalism and republicanism, the identity of a State surged to mobilize people and eventually to stabilize the State. It became a hot cake in the political field. It stands to reason because if a non-monarchical State has to sustain itself, it needs a national identity based on shared values.
Anderson Benedict said national identity is not an inborn trait but it is a social construct. The historical association, culture, and ethnic affiliation emerged as strong contenders for the identity of a nation.
We all know, that India emerged as a single political entity during British imperial rule. However, when the freedom movement started for self-governance, the what is the national identity of India was the question that British power tried to pose to Indians. The imperialists predicted doomsday and said, the day we leave, India will fall like a pack of cards with hundreds of princes and feudal lords claiming different parts of the territory.
At this point, the religious tension between the Hindus and Muslims was exploited by the hardliners on both sides. Hindu conservatives spoke of Hinduism or Hindutva as a glueor basis of Indian nationalism. However, the Muslim League advocated the theory of two separate cultures Hindu and Muslim. Indian National Congress (INC) propounded a secular concept of shared culture based on equality. INC argued there is unity in diversity that acts as a glue to hold multi-ethnic Indians together when the British leave. INC’s slogan gained wider acceptability. Hindu hardliners’ Hindutva didn’t find many supporters because it is no secret that Hindus are deep down divided by the caste system which is hierarchical and discriminatory. Hindutva was and is seen as a device of the upper caste to retain their privileges.
If you ask me, this debate on what national identity didn’t end with either partition or independence, but it lost its relevance with the emergence of the constitutional State after 1947.
The reason d’être is that the termination of the British Raj didn’t leave a political vacuum in India. It was not like the United States of America walking out of Afghanistan leaving Afghans to fend themselves in 2021. India (without areas transferred to Pakistan) continued as a successor State in the eye of international law. The Constituent Assembly seized power that was transferred constitutionally under the Indian Independence Act of 1947 by the British Parliament. It successfully enacted, nay imposed its version of liberal constitutional order. The INC’s idea of India as a secular State was peacefully transformed into a normative order. Religion was kept away from the State by the Constitution. The Part III of the Constitution mandated equal treatment to all religions. The freedom to practice the religion of his choice was granted to all. Lastly, the protection of the religious and cultural rights of minority communities was guaranteed. Thus, the Constitution shut off cultural nationalism based on Hindutva and adopted secularism based on shared culture as the national identity.Didn’t cultural nationalism lose the plot in 1950?
However, the Constitution makers were not autocratic. They believed in democracy and true to their liberal agenda guaranteed freedom of speech. The free speech allowed space for the lost-out Hindutva proponents as well as emerging communists to speak out and build their movement but on peaceful terms. Now, after seven decades Hindutva forces have risen posing serious challenges to the idea of India. Unlike in pre-1947, Hindutva has a better platform now because Hindus are partly organized after the removal of caste barriers under the reservation and a series of pro-poor welfare policies implemented by INC. The INC may take credit, but its opponent BJP is the beneficiary. A political paradox!
The current political slogan of the BJP– is baar 400 paar, is not innocent. It is to acquire the necessary power to amend the Constitution through Art 368 of the Constitution and implement its Hindutva agenda by undoing what it couldn’t do in 1950 when the Constitution was adopted.
I hope we will not depart from our secular basis of the Constitution which is the idea of India and adopt a sectarian agenda.
4. Given the general perception that the constitutional institutions are failing to act, do you think the judiciary has also failed to act?
The constitutional institutions are not acting to uphold the constitutional values has been a part of a larger grievance as we have already discussed. The majoritarian political party – BJP has a different political perspective based on cultural nationalism and the said political perspective is at odds with the liberal political values of freedom and equality which form the basis of the present Constitution of India. Even though the BJP does not openly say so, their Government adopts the Western conservatives’ stand that collectivism or collective interests should override individual rights while interpreting and enforcing the Constitution.
The adage is – judges are not infallible but are final. The legitimacy of the judiciary stands on faith. The political commentator Prasenjit Chowdhary said criticism of the judiciary that is held sacrosanct is “heretic”. However, the present constitutional judiciary is founded on people’s consent and is not divinely-ordained to become sensitive to criticism. The fair criticism or comments against the judiciary are, therefore, constitutionally permitted.
However, the charge that the judiciary has “failed to act” needs analysis. There is no such legal term as the judiciary has failed to act. Because there is nobody above the Supreme Court of India to say that its judgment is erroneous or has failed to render justice. Nevertheless, as a part of the constitutional institution, the judiciary cannot be immune from people’s perceptions of its role in upholding the Constitution.
Undoubtedly, the Indian judiciary plays a preeminent role in upholding the Constitution. While vesting with the power of judicial review to uphold the Constitution, the Constitution makers have insulted judges from political influence by protecting their tenure and judicial acts.
When we talk of upholding the Constitution, what do we mean by it? In simple words, it should mean enforcing constitutional rights if these rights are found to be wrongfully denied by the legislature or executive.
The constitutional rights are many. The political and civil rights are first-generation rights. The socio-economic rights are second-generation rights. The solidarity rights which include the right to clear air and the right to protection of the environment from unreasonable exploitation are third-generation rights. The constitutionalists strongly view that political and civil rights have priority since the denial of these rights is nothing but knocking down democracy. The Indian judiciary, no doubt has played a stellar role in enforcing second-generation and third-generation rights after the historic Maneka Gandhi Case in 1978.However, the same is not the opinion when it comes to first-generation rights namely political and civil rights.
At present, the most talked about issue in political and civil rights is the right to bail and the right against persecution of political persons. A strong feeling among human rights activists is that the judiciary is insensitive to the incarceration of the accused before trial. The widespread cry is judiciary is unable to uphold the constitutional role of opposition leaders. Even the Chief Ministers of States are arrested by the Central agencies like the Central Bureau of Investigations and Enforcement Directorate but the courts are not rising to deal with unprecedented situation. Why can’t courts see through the game is the constant talk?We have no answer except saying that courts are reading mechanically all are equal before the law. If the courts cannot take judicial cognizance of the persecution of the opposition, I must say it’s a sad day.
5, What’s your view on the Uniform Civil Code? Does it not result in a majoritarian imposition of their laws on minorities?
The Uniform Civil Code(UCC) is a politicallysensitive issue. Hindu hardliners see the UCC as a device to bar polygamy prevalent among Muslims.
The Constituent Assembly did not think of the UCC as the imposition of majoritarian laws or even an amalgamation of all personal laws. UCC was mooted by the member of the Constituent Assembly Minoo Masani as a progressive law based on the concepts of freedom, equality and human dignity. After some debate, UCC was included as a non-justiciable obligation of the State under the Directive Principles of the State Policy under Part IV of the Constitution in Art 44.
The Constitution makers didn’t want to make UCC a state’s responsibility but at the same time, they didn’t want to accept the argument that UCC should be voluntary.
The impact of UCC on freedom of religion guaranteed under Art 25 (1) was considered by the Constitution makers and finally, they thought that UCC constitutionally fits into the exception carved out in Art 25(2)(a) which enables the competent legislature to enact a law to promote “secular activities” to regulate freedom of religion.
At present, our personal laws are precedents and laws made by the legislature. From 1773 onwards, when the then governor General Warren Hasting issued a historic decree, the personal laws were developed by the judiciary on a case-to-case basis. The body of precedents constitutes unwritten laws for Hindus, Muslims and others. Unlike in the development of laws of contract, property and torts, the judges don’t directly apply principles of justice and good conscience. They are applied if there is no proof of custom. While developing the personal laws judges went by the evidence of religious scriptures and customs. If the laws declared by judges appeared unjust, it was open to the legislatures to intervene. The legislatures in India have indeed intervened several times beginning from the 19th century.
Whenever the legislature thought that the public interest required its intervention to cure the injustice, it intervened. Way back in 1850, the Caste Disabilities Removal Act was enacted. In 1939, the Dissolution of Muslim Marriage Act was passed. After independence, the Hindu Marriage Act was passed in 1955.
The enactment of UCC based on liberal ideas of justice would bring sea changes in how Indians marry and dissolve marriages, how they pass on property to their successors, how they shoulder the responsibilities of minor children, and how they devise pre-nuptial agreements. The individuals of same sex may marry. The marriage becomes a contract that can be terminated at will like any other contract. The separated spouse will become entitled to an equal share in the property earned during the subsistence of marriage. The children will be treated equally irrespective of sex for succession. Many more such rights will follow.
The Supreme Court in Mohammad Ahmad Khan vs Shah Bano in 1985 regretted that Art 44 has become a “dead letter”. Even after decades, the UCC remains a proposal mired in political controversy. It is caught in the crossfire between Hindu and Muslim hardliners. I hope, UCC will be implemented in true spirit soon.
6. Do you think that the vilification of the Muslim community and the resultant Islamophobia in India is West-centric thinking?
The word islamophobia has its origin in French. It has many connotations. I wish to view it from a wider perspective.
The conflict between empires backed by religious groups has been a part of a long history in Europe and West Asia. The Christian and Islamic forces have been crossing swords for centuries.
Muslims established the Ottoman Empirein Constantinople after overthrowing the Eastern Roman Empire and tried conversions in Europe. The Christian-dominated Allied powers finally dismantled the Ottoman Empire after the First World War. The Allied powers partitioned the Ottoman empire as spoils of war under the Sevres Treaty and the Sykes-Picot Treaty. The mandate territories under the British and French were established by the League of Nations in the Arabian Peninsula. With the support of the British and French, the erstwhile Emirs under the Ottoman Empire seized power and founded their sovereign regimes in Saudi Arabia, Trans-Jordan, Syria, Iraq, Iran, etc. After the Second World War,Israel as a Jewish homeland in Muslim-dominated Palestine was recognised by the Western powers. The Americans entered the scene due to precious Oil. In 1970, the American Dollar became the currency for trading in Oil and this deal put Oil producing Muslim regimes in a Dollar trap. Since then, Americans have been supporting the unpopular regimes established with the support of the British and French when they were imperial powers.
From the beginning, the Muslim fundamentalists have been trying to overthrow these Western powers-influenced regimes in the Arabian Peninsula. They succeeded in Iran in 1978. This has led to Islamic terrorism. These Islamic fundamentalists – though anti-West, became friends with America to fight the Soviets in Afghanistan apparently to stop communism from spreading. But, after the collapse of the Soviet Union in 1980, these Islamic terror groups turned their gun against the Western powers. The series of terror acts leading to the 9/11 attack in New York, has given rise to Islamophobia in the West.
India is a multi-ethnic society. But there is unity in diversity. Nevertheless, the Hindu hardliners exploiting the wounds of Partition have abetted in spreading Islamophobia into India threatening the secular character of the nation. I hope it is a passing phase.
7, How do you respond to the allegations of 21 retired judges to the Chief Justice of India?
The views of 21 former judges were preceded by the views of 600 lawyers. The Prime Minister endorsed what 600 lawyers said. In my opinion, these views are prima facie unjustified because they appear to be contumacious.
The gravamen of the charge of 21 former judges and 600 lawyers is that the legal activists are trying to browbeat the judiciary. But, their complaint itself is an attempt to browbeat the judges prima facie. What is the purpose of complaining if not to tell judges to dismiss their PILs exposing alleged scams? The timing is important. Because the complaint is after the bold decision of the Supreme Court declaring the Electoral Bond Scheme unconstitutional. Without any disrespect, I say, whoever is not shocked by what is revealed after the disclosure of names and the amount of money involved in buying an electoral bond, probably needs counselling!
Abhish K. Bose is a journalist
