Examining some key constitutional concerns

CONSTITUTIONALCONUNDRUMS — Challenges toIndia’s Democratic Process:V. Venkatesan  

The Indian Constitution, a document of immense political significance, is both complex and prone to tremendous incongruities. This demands that each of the state’s three limbs — Parliament, the Executive and the Judiciary — indulge in an interpretive exercise. Because the Constitution, as an act of the people, lays down mandatory rules for governance, these incongruities are often at the forefront of the very functioning of the Indian democracy. Some of these concerns that are often overlooked in the hubbub of our 24X7 news culture find focus in V. Venkatesan’s new book.

Venkatesan, a journalist with the Frontline magazine, and a lawyer by qualification, has imbued into topics of substantial legal intricacy a journalistic and academic rigour. The aim of the book, in the author’s words, is to “overcome [the] limitation of periodical journalism, by seriously reflecting and following up themes,” which has interested him during the past decade. This, one can conclude on reading the book, Venkatesan achieves.

Divided into four parts that broadly deal with the separation of power between the Executive and Parliament, federalist tensions between the states and the Union, judicial activism, and the Election Commission’s role, Constitutional Conundrums is a collection of 24 essays. Each covers a topic of current significance, and Venkatesan both introduces the urgency of the subject to the reader, and delves into a constitutional analysis of the issues using both the practice of government and the Supreme Court’s case law.

For instance, when writing about the then President APJ Abdul Kalam’s decision to return to Parliament for reconsideration the Parliament (Prevention of Disqualification) Amendment Bill, 2006, Venkatesan includes an analysis of Article 111 of the Constitution, which allowed the President such a prerogative. Here, he probes into the Constituent Assembly’s debates on the provision, which is so rarely used that it was almost forgotten by presidents preceding and succeeding Kalam.

What’s more, Venkatesen also considers the scope of the phrase “office of profit” in Article 102, which had formed the subject matter of Parliament’s amendment, as well as the decision of the Supreme Court in Consumer Education and Research Society v. Union of India, where the constitutional validity of the Act, as ultimately enacted, was upheld. In so doing, Venkatesan travels beyond the constraints of regular journalism to analyse an important issue of political significance with care.

Venkatesan’s essays on India’s higher judiciary, which he believes has been excessively meddlesome in some areas, while far too placid in other areas, are of particular value to the reader. In invoking, for example, an aside from Justice O Chinnappa Reddy’s autobiography, where the judge expresses a concern that the Supreme Court has never had occasion to rule over a journalist’s right to express his or her views freely, Venkatesan argues that in-house use of prior restraint can often have a chilling effect on professional independence. “… The control exercised by the editors of newspapers and magazines over the free expression of views by the journalists,” he writes, “…flies in the face of Constitutional guarantees of liberty of thought and expression.”

In his essay on freedom of expression, Venkatesan examines case law pertaining not merely to prior restraint of speech, as was the case when the Delhi High Court recently injuncted the media from publishing headlines associating Justice Swatanter Kumar with allegations made by an intern, but also with the more significantly disturbing effects that ‘blasphemy’ laws such as Section 153A of the Indian Penal Code tend to produce.

Here, he also analyses the ban against the publication of James Laine’s book on Shivaji, rightly overturned by the Supreme Court, as also the ban on the Kannada novel Dharmakaarana, which was upheld by the court in what Venkatesen describes as a “deeply flawed judgment.” Through his analysis, Venkatesen presents the fractured free speech jurisprudence of India’s courts, which, in being inconsistent, tends to curtail democracy as opposed to promoting its most cherished values of inclusiveness.

Venkatesan also devotes an essay to showcasing how the Supreme Court is often more activist in matters pertaining to civil and political rights, while showing less interest in matters that impinge on the enforcement of economic and social rights.

With the welfarist role of the State having diminished in neo-liberal India, Venkatesen argues that there is a particular challenge that the judiciary is today faced with in developing a jurisprudence of economic and social rights in keeping with the goals of our Constitution. This essay is a microcosm of the book as a whole: it adds perspective to a subject often examined with little depth and seriousness by the news media.

CONSTITUTIONAL CONUNDRUMS — Challenges to India’s Democratic Process: V. Venkatesan; LexisNexis; 14th Floor, Building No. 10, Tower B, DLF Cyber City, Phase II, Gurgaon-122002. Rs. 495.

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Printable version | Jan 18, 2021 2:03:08 PM |

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