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A guarantor of free speech

Kerala Minister Saji Cherian addressing the media in Thiruvananthapuram.

Kerala Minister Saji Cherian addressing the media in Thiruvananthapuram. | Photo Credit: Special Arrangement

The LDF government’s biggest mistake was to get Kerala Minister Saji Cherian to resign over his remarks on the Constitution. Mr. Cherian had said the Constitution is “British-crafted and anti-working class.” The writers of the Constitution inserted a few words such as “secularism” and “democracy’’ here and there, but this did not take away from the fact that the Constitution is a “tool to exploit the common man,” he said. Is there any evidence that Mr. Cherian reneged on the oath he took as an MLA and as a Minister?

Amendments to the Constitution

The Indian Constitution is fundamentally liberal. There is no stipulation that makes contempt of the Constitution a serious felony. In fact, Article 19(1)(1) guarantees freedom of expression with which one can even criticise the working of the Constitution. Criticism over Mr. Cherian’s remark that the British dictated the Constitution does not hold water. The Constituent Assembly, which drafted the Constitution, borrowed heavily from the Government of India Act, 1935, which was introduced and used by the British for over 12 years in this country. The Constitution is not a holy scripture, but an organic document. The word ‘secular’ was not found in the original text adopted, but was inserted under the 42nd Amendment.

Many amendments have been made in the Constitution to remove the bias of judgments of higher courts. When Indira Gandhi as Prime Minister announced that 14 banks would be nationalised, the move was challenged in court by the affected banks. The Supreme Court held the Act void. The Mrs. Gandhi government’s bill to abolish privy purses was passed in the Lok Sabha, but defeated in the Rajya Sabha. President V.V. Giri then withdrew recognition of all rulers under Article 366(22), which the Supreme Court held unconstitutional. These court decisions led Parliament to introduce the 24th and 25th Amendments to the Constitution. While speaking in support of the amendments, many members of Parliament criticised the judiciary and expressed their dismay over the inadequacies found in the Constitution. P. Ramamurthi of the CPI(M) even went to the extent of describing the Constitution as a representative of the bourgeois landlord state. In the light of these developments, the Marxist party’s Central Committee discussed proposing substantial amendments to the Constitution. Just because party cadres contest elections, it does not mean that they are satisfied with the working of the Constitution. They are entitled to criticise the Constitution and work for changes as per their theory of social justice.

In 1967, when E.M.S. Namboodiripad, or EMS, said that the judiciary cannot rise above the economic system and is always subordinate to it, a contempt case was filed against him and he was punished by the Kerala High Court. The Supreme Court, which upheld the conviction, said that EMS did not have a full grasp of Marxism. Nowhere was the judiciary’s subordination to the economic system mentioned in Marxism, it said. The Marxist party fully supported EMS then. Today, however, it has left Mr. Cherian, who expressed similar sentiments, high and dry.

There are examples of people being taken to court for constitutional infringement. In 1986, for instance, while protesting against the imposition of Hindi, K. Anbazhagan and nine other DMK legislators burnt Part XVII of the Constitution. A case was filed to remove them from the legislature. The Madras High Court accepted the plea and they were disqualified from the legislature. The charge against Mr. Cherian does not come anywhere near this. If his speech was not palatable, his party members could have given him an advisory and told the agitating Opposition workers to try their luck with the judiciary.

Changes to the Constitution

It is not as if the Constitution has never been questioned. After the Babri Masjid demolition, the Sangh Parivar started a campaign saying all matters cannot be decided by courts and demanded changes to the Constitution. In 2000, the NDA government appointed retired Chief Justice M.N. Venkatachalaiah to head a committee to review the working of the Constitution. The present NDA government has amended the Constitution to implement its own agenda. By repealing Articles 35A and 370, it has done harm to the integrity of India. Deviating from the constitutional norm of rendering affirmative justice to the socially and educationally backward classes, it introduced the 103rd Amendment to provide reservation for economically poorer sections. No one demanded that the BJP leadership quit for these actions; instead, aggrieved persons took the issues to court. Similarly, if Mr. Cherian’s statement was offensive, the agitating persons should have gone to court. His speech was not against Marxist theory on the character of the state and its working Constitution. Removing him from the Cabinet gives the message that the party doubts even the Marxist understanding of the Constitution.

Justice K. Chandru is a former Judge of the Madras High Court


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Printable version | Jul 13, 2022 1:17:50 pm | https://www.thehindu.com/opinion/op-ed/a-guarantor-of-free-speech/article65631251.ece