Having to cultivate affection for government is the antithesis of democracy: Fali Nariman

Fali Nariman, Senior Supreme Court advocate Image: Ilaksha

Fali Nariman started his legal practice the year the Constitution of India was enacted in November 1949. The senior advocate, Supreme Court of India, is arguably the greatest living expert on the Constitution today. He spoke with Forbes India about his new book, You Must Know Your Constitution, for the podcast From the Bookshelves. He discussed how we can take the Constitution to the masses, whether we need larger judicial benches to decide on important cases and national vs official languages, among other pertinent issues.   
 
He also discussed whether it’s time for India to have a new Constitution, and whether it is possible, in this day and age, to even draft a new Constitution. “Remember that it is the Constitution that has kept this country as one country and we have not broken up into what we were in the Middle Ages,” he says. Edited excerpts:  
 
Q. What would you say is the purpose of your book and who is it addressed to?  
Well, it's certainly not addressed to very senior lawyers and advocates, people who profess to know the Constitution. The idea is to acquaint the cross-section of people, as far as possible, to know something about the Constitution, which is the longest in the world. So people get a little worried about it. It's like the Bible. Nobody wants to get into it, but yet you sometimes find quotations from it. You find people referring to it and so on.  So it was sort of a breakdown for people who want to know something about it [the Constitution], including, of course, young lawyers.  
 
Q. You also say it’s easier to frame a Constitution than to work it. How successful would you say has India been in making the Constitution work?  
In making the Constitution, there were problems. In making the Constitution work, there are greater problems. And that is so [evident]...where people keep changing, where political subjects keep changing, where politicians keep changing, and where the world has kept changing. So, it's quite an enormous task to keep it working, and it can only be kept working with a steadfastness of purpose.  
 
Q. How do you think the judiciary has performed in terms of interpreting the Constitution over a period of time?   
Sometimes good, sometimes not so good. But you see, the problem about the Constitution is that when you get the final interpretation of the last court, then the ball lies in the politicians’ court to see whether there should be more amendments to the Constitution in order to bring out what they conceive to be the right path. So, it’s a constant, sort of, travel along. You have to travel along. It's not as if the political wing has no say at all in the Constitution.   
 
Q. In fact, that’s what happened recently, where the Supreme Court said that there will be no marriage equality for the LGBTQ community...  
That’s one glaring instance where there was a great deal of thought put in, a great deal of argument also went around. But then almost by a majority of three to two... But this is the problem. You see, in important matters perhaps there should be larger benches to deal with the matter effectively. So as to prevent disappointment of large number of people.  

Because now we have a Supreme Court with 34 judges, which includes the Chief Justice. Although the Constitution says that the Constitution bench will be of five judges, it has always been five, seven, nine, 11, and once or twice, as much as 13. So important questions ought to be kept for larger benches to decide, especially with the Supreme Court. You must remember, our Supreme Court started with only seven judges, that was the original constitution, with the Chief Justice, eight, and several benches of seven judges, which was almost a full court, sat for determining quite a large number of cases. And now we have five judges deciding certain important questions, which ultimately ought to have been decided by perhaps larger benches.  
 
Q. You’ve made the point that India has this problem of majoritarian governments virtually since Independence, right? Does that work to the disadvantage of minority communities? We’re seeing that with LGBT and probably we’ll see that in the Uniform Civil Code...  
Yes, it does. Apart from LGBT, even religious minorities, definitely, yes. But you see, the problem with majoritarian governments is that if it is a narrow majority, generally the majoritarian government tends to take solace from, assistance from other sections of politics. Whereas, if it is a super-majority like we have at present at the Centre, there are more difficulties. And the super-majority doesn’t really work in our state of affairs, quite frankly.   
 
Q. So, coming to the universal Civil Code, you have taken the minority view, right? You say that you're opposed to the Uniform Civil Code; that we do not need the code as we already have in place a uniform set of laws applicable to all.   
That’s right.   
 
Q. So why then, do you think, the Constituent Assembly decided to include it in the Directive Principles at all?  
You must realise that the Directive Principles contain a very important article, which says that although Directive Principles are fundamental to the governance of the country, they are not to be taken into account in courts of law. It's a very important thing. The stage is not yet set. When the stage gets set, you may think of a Uniform Civil Code, because a Uniform Civil Code in a country like ours is a mind-boggling event. You have tribals, you have small religious communities, you have separate sets of personal laws etc.   
 
Q. So you say we are still not ready for it?  
It looks like it, because whether our country is ready for it or not doesn’t depend upon how many years go by, but whether there has been that cohesion, that leadership, which invites a particular aspect of coherence among people.  

Also read: Ambedkar backed a UCC, in future Code may be "purely voluntary" to begin with
 
Q. Ambedkar had said that the code could be framed, although not enforced on all citizens. Do you think that’s a mid-path we could take?  
That’s quite right. As a starting measure, certainly. That was very wise, you see. There was much greater wisdom amongst many of the fathers of the Constitution.  
 
Q. I want to ask you about the National Judicial Commission. You were in agreement with retired justice MN Venkatachaliah’s proposal that the National Judicial Commission should have just five members; the Chief Justice of India, two judges who are next in seniority, along with the law minister and one eminent citizen nominated by the President in consultation with the Prime Minister. Do you think this is the best option in front of us—and if so, why aren’t we moving ahead with it?  
I don't know why we are not, but I think that that is a very wise thing. And besides, you must realise, that in 2003, the then government, which was a BJP-led government, the NDA government, actually introduced the Constitution Amendment Bill, incorporating this identical suggestion and it only fell through because elections were announced. Not for any other reason. Therefore, that has to be picked up and done, because the appointment of judges is not really the task of judges. The task of judges is to decide cases, not decide who should be judges.  
 
Q. You have become a critic of the collegium that you had championed in court, right?   
It doesn't work. It doesn't work as it was expected to. You're quite right, and in fact I've written in my memoirs that this was a case that I wish I had lost and not won. But that makes no difference. These are all the ifs and buts of history.  
 
Q. You’ve also written that as long as poverty continues to stalk the land and gross disparities between the rich and the poor remain, the ideal of an egalitarian society, as envisaged in our basic document of governance, will remain, at best, an aspiration. Some 17 years later, does the aspiration of social justice appear more tangible, less elusive?  
I think so, because if you look at particularly Articles 15 and 16, which go along with Article 14, the main article about equality, Articles 15 and 16 are, as it were, exceptions to the equality clause. And we have gone on incorporating more and more exceptions to the equality clause. This is unfortunate because we are an unequal society. And caste has not helped at all. It has hurt the aspiration of the people. This is the unfortunate part of our system. Articles 15 and 16, you’ll find, even now, there’s a 103rd amendment that was upheld recently, has put in a greater percentage for a certain type of backward classes. And we have now the Bihar example, which says ‘Extreme Backward Classes’. How far will we go?  
 
Q. In that case, what is your take on the caste census?  
The politicians are all wanting it everywhere, but I’m not sure whether that will work at all. Perhaps it is a good way to dislodge one government and install another, but other than that, it doesn’t advance the constitutional concept. The caste system has cast a huge cloud on the Constitution, and we have not yet been able to cope with it, much less conquer it.   
 
Q. But the original objectives of reservation were noble, right? It was a seen as a means to secure social and economic justice...  
And it was expected to last 10 years. Those 10 years have gone on multiplying by 10*10*10, going on and on, and it will be almost perpetual. Unfortunately, the creamy layer has not evaporated as it was expected to. The creamy layer amongst the members of the [backward] caste, because they want to hold on to their privileges.   
 
Q. Is there a solution even today, to make sure that it doesn’t spiral out of control? Is there a limit we could draw, probably?   
There was a limit of one or two lakh, today it is Rs12 lakh, the least limit of a backward class, for removal of the creamy layer. That is people who fall within that backward class status but have come out of it. But no one wants to recognise that we have come out of it. We want to go on putting more and more people into backward class rather than taking people out. It’s an ideal system to take people out, but we haven’t succeeded.  
 
Q. Taking off from there, we have this huge mass of people, most of whom are not aware of their basic rights that the Constitution gives them.   
That's why this [the book] is a step to get people, at least who are reasonably educated today, to acquaint themselves with the Constitution. You have to know something about it. It is the Constitution that has kept this country as one country and we have not broken up into what we were in the Middle Ages.   
 
Q. Does it have to be English or is it time to take it to the regional languages?  
Good point. English is not the language of the Englishman in India, it is the language of Indians in India. Because the Constitution might have never been formulated at all for India, but for the compromise formula where there was no national language, just official languages, which is Hindi and English. Because there was an enormous controversy about what script Hindi should be written. That itself occupied about 200 amendments in the Constituent Assembly.   
 
Q. The Centre recently introduced three bills in the Lok Sabha to replace colonial era laws. While those are welcome, there were some reservations about writing these laws in Hindi, right? One can argue that it is the best time to write laws in Hindi, but wouldn’t that be a problem for non-Hindi speaking states?  
It’s good to have laws written in Hindi, I have no objection to it. But you must understand that we have borrowed the Westminster-type Constitution as most of the former British colonies. There are 56 British colonies that constituted the British empire around the world. Concepts there are all British, in that sense, which are in one sense, untranslatable. Of course, they can be translated, literally, into another language, but somehow the ethos of it, how it is practised etc., is purely a matter that is linked up firmly with language as well.  

So whilst introducing Hindi, improve the English language. We have to improve our knowledge of the English language, and that can only arise if people are better educated also in English in addition to being educated in Hindi. This happens all over the world. In the Scandinavian countries, for instance, almost every child speaks three languages.   
 
Q. The voices that claim the Constitution is a colonial document pieced together from various Constitutions of the West have increased of late. What, then, are the options before us? To draft a Constitution that is more Indian, or dare I say, more Hindu?  
It’ll be a disaster, because it will never be agreed to. You must realise that we have now worked a Constitution written in English with a Hindi version as well. For 75 years. We cannot remake our history. How do we now adopt and introduce these new concepts of Hindu shastras into our Constitution, I don’t know how that can be done.   
 
Q. In your book you say that ‘We will never be able to piece together a new constitution in the present day and age, even if we tried’.
That’s correct. Because every educated Indian today has more than two opinions on every subject. And remember, the Constitution was drafted at a time when there were only 350 million people. Today, we are four times or five times that number.  
 
Q. Let’s talk about freedom of speech and expression, which is a fundamental right, subject to the restriction by law in the ‘interest of the security of state’. In this day and age, can showing bad feelings towards a particular government be construed as undermining the security of the state?  
Of course not. That is why, when someone says colonial, they are referring to that. Because when you are a British colony, the people in British India were not expected to have enmity for their government. Mark the word government, not state. That’s the origin of Section 123A of the Indian Penal Code, which is almost retained now under the new dispensation. It requires every citizen to have affection for his government. One needn’t have disaffection, but one certainly cannot cultivate affection for one’s government because that’s the very antithesis of a democracy.