Monday, June 27, 2022

Are India’s Constitutional values really under threat?

Dr Subramanian Swamy and Asaduddin Owaisi

(A debate between Dr Subramanian Swamy and Asaduddin Owaisi, who really need no introduction, was moderated by J Sai Deepak, a lawyer who is today widely respected for his logic and reason on matter affecting our society.  This debated happened last year but is worth recalling in today’s troubled times. The entire video could be seen here. Below is the transcript.) 

Subramanian Swamy: Well, the posed issue is about constitutional values under threat now, which means it wasn’t under threat before? Would you say the state of the emergency that was declared? Was that a threat or not?  And the fact that in 1951 against the advice of Dr. Ambedkar and everybody else. Jawaharlal Nehru brought in the amendment which is called the First Amendment of the Constitution, where he said that Liberty, freedom of speech all would have to be subject to certain conditions. The second article was inserted into the Constitution called 19(2), which now outlaws speaking about seditious matters; it outlaws protesting, which is of breaking laws. It’s a whole lot of restriction which was not there in the original Constitution adopted on the 26th of January 1950. So, the threat to the Constitution has been going on for a long time. 

But we also have noticed that people have struggled and fought against it. For instance, The emergency had to be withdrawn and the people showed what democracy means to them because the most educated sections of India, that is South India, the four states of South India, voted for Mrs. Gandhi the election, and the most uneducated part of India, which is not India, voted against Mrs. Gandhi, and defeated her. So it’s wrong to say that education is what prepares you for the Constitution. Most Indians have not read the Constitution. The Constitution has many things which I’m sure Mr. Owaisi will never agree that are constitutional values. For instance, Article 48 says there shall be a ban on cow slaughter. I’m not sure you will agree with that. Constitution Article 44 says there shall be a Uniform Civil Code. I don’t know whether you’ll agree to that. Article, 351 of the Constitution says that Hindi, which will be the link language, shall have largely Sanskrit words and secondarily words from other languages. I don’t think that many people in our sophisticated world would agree with that. So the real problem today is, what do you mean by constitutional values?Can you sit in Dharna with children when the Juvenile Justice Act says that taking children to Illegal demonstrations is a crime punishable by seven years? I have not seen anybody being published yet on this Shaheen Bagh or whatever place demonstrations have taken place. So our Liberty has gone much beyond the Constitution, and there is under no threat whatsoever.

Asaduddin Owaisi: I have five minutes to make the introductory remarks. I am of the opinion that, yes, there is a threat to Constitutional values. Mr. Swamy did not substantiate what the Constitutional values are? Number one is constitutionalism. That is, the prime minister is one among the equals. And I say that there’s a threat to the values of the Constitution; in the present political setup, Prime Minister Mr. Modi is from 1 to 100 and is the only person that contradicts that the prime minister is one among the equal. Secondly, What is the Constitutional value? It is federalism. Now, here you have a classic case wherein the President’s Rule was imposed in Jammu and Kashmir, and through the back door, our state was divided and converted into Union territory. So, this is the second example where there’s a threat to Constitutional values. Third. in our constitution, the Preamble talks about one in the value system—Justice, Liberty, equality, fraternity, what we have seen. Now, when it comes to Justice, The Honorable Supreme Court, in a reasoned judgment, especially in paragraph 8, says that the reservation is not a right with which the BJP agrees. In fact, This is the third example. Where in the Constitution values involve certain to, for example, is freedom of expression. Freedom of expression is a fundamental right under our Constitution, which can rightly be called constitutional value. You have seen, I have seen. You have read how under the pressure of this government many editors have been changed. I’ll give an example of how Liberty is threatened that you have a school headmistress and a parent of a daughter who had been put in prison because the daughter of that woman, who’s a widow, had said something against the prime minister. So the mother was punished, the headmistress was punished, and they were lodged in jail for two weeks. That is a threat to Liberty. So, these are important issues. There is a definite threat to Constitutional values, and no one can deny that. Last important point is that when I say to the threat to constitutionalism, that is, we have separation of powers, which is again, part of our basic structure of the constitution. You have a prime minister who has weakened legislature, who has weakened Judiciary, and now what we hear is that the prime minister is a genius. I don’t agree with that statement. In fact, I can say Mr. Swamy is a genius, but he made wrong political decisions throughout his life. Please remember, constitutional values are fundamental rights. They are not directive principles. To counter the point of Mr. Swamy, as far as the protection of cows is concerned, when the Constitution was being drafted, it included Shyama Prasad Mukherjee. The Constitution doesn’t talk about Hindu values when it comes to the protection of cows; it talks about the economy, how it should be protected. 

(After Opening remarks, Sai Deepak had a series of questions with both the speakers, Beginning with Dr. Swamy.)

Sai Deepak to Subramanium Swamy: Since the topic of the debate happens to be constitutional values. I remember you making a statement, and in fact, perhaps you’ve even written on it. The Constitution at the heart of it is a Dharmic document, and it sees India as a Hindu Rashtra. And I suppose that this entire conclusion comes from your experience with handling constitutional matter. Could you please enlighten us as to what is the basis of the statement?

Subramanium Swamy: First of all, I must repeat again. This topic that you frame. The critical word is now and whatever Mr. Owaisi said, while I don’t disagree with it, but I will say this has been happening all through the last 70 years, but he is only bothered about the last five years. That is the problem. The threat to the Constitution will always be there because we are a country, which has come out of imperialism and foreign invasions and therefore your mindset to being prepared for abiding by the Constitution, is going to take time and that means through struggle. 

First of all, Directive Principles doesn’t say individual citizen cannot go to court and say these directive principles I want to enforce because it is my fundamental right too, but it also says the provisions contained, in this part, “which is the directive principle shall not be enforceable by any court but the principles laid down are nevertheless fundamental to the governance of the country and it shall be the duty of the state to apply these principles in making laws.”

So, it is not a fundamental right, but it is binding on the government to implement it. So, it is a mandatory provision. Number two, When I spoke about this question of this being already a Hindu Rashtra in the Constitution. I don’t need a new constitution because people are saying there should be a new Hindu rashtra Constitution. I said why if what all that a Hindu Rashtra would require is already there. 

First of all, in the Preamble, they have said, faith is a fundamental right. So in this Ram Janmabhoomi, we won the case because my petition, which came in and said that my faith is, that Ram was born here and that I have a fundamental right to pray there while mosque is a place to read Namaz and Namaz can be read anywhere including in my drawing room even on this on this place. So this was this distinction showed that we were able to use the word faith for a religious purpose, which is dear to us. The Uniform civil code has to be enforced by the government. 

That’s what the Constitution says. Also, for the protection of cow,  It’s not on agriculture. It’s a ban on cow slaughter. I’ll read it out because Owaisi, he is, you know, a highly educated lawyer and lawyers, never tell the truth, so Let me read out what exactly. 

Article 48 -Protection Improvement of environment and safeguarding of forests and Wildlife- “The state shall endeavour to protect and improve the environment and Safeguard the forest with life. The state shall endeavour to organize agriculture animal husbandry on modern and scientific lines and shall in particular take steps to preserving improving breeds and prohibiting the slaughter of cows and calves.”

 So prohibiting the slaughter of cows, they didn’t mention Buffalo, pigs or any other thing. 

Next article 351 Sanskrit. This is another Hindu rashtra demand. They have said Devnagri shall be the script that should be used in Hindi and not any other script. That is also in the Hindu rashtra demand. They never said that we want all should follow Hinduism. All religions lead to God. So we have no problem if there are Jews, Parsis, Christians, or Muslims here. They want to worship. We will allow it. They want to build a masjid. Of course. They have a right to build it. There are Muslim countries where I can’t build a temple, but this country, you can build a masjid anywhere you want. So that is the issue. 

Sai Deepak to Asaduddin Owaisi: How have AIMIM, and you managed to chart the journey from an entity that was for the creation of Pakistan to the entity that supports the Indian Constitution?

Asaduddin Owaisi:  I don’t know which History books you’ve read, but I can give you some good history books to a correct understanding of history. This is a political party AIMIM which has no relation whatsoever with the earlier MIM. There were people who were called as Razakars. They went to Pakistan. We have no connection whatsoever with them. AIMIM was established and registered in the election commission of India. We started our political journey from 1958 onwards. And when, you know, when you register a political party, you have to subscribe and accept to India’s Constitution. And that is how this political Journey has started from 1958 onwards.

Sai Deepak to Owaisi: Since you mentioned that under this particular government, there has been a lot of, let’s say, sabotage as far as the Constitution is concerned, your father was a contemporary of Indira Gandhi. So I’m trying to understand the position of your party as an organization towards the policies of Mrs. Indira Gandhi, during the regime, especially during emergency and subsequently. 

Asaduddin Owaisi: Well, you see the these are journeys varying. Sometimes you are in the weather of winter or autumn. So politicians have to travel to various weathers, We supported Mrs. Gandhi and this has been the reality, and that is why even Mrs. Gandhi came to our party office for the Sikandarabad by-election. Shiv Shankar was contesting, so she came to our office and we supported her at that time, then we opposed her as well. And now I am a bitter opponent of Congress. And that is why I carry this baggage of being B team, C team whatsoever. So this is what politics continues.

Okay, now, to respond to Dr. Swamy’s point about calling that Constitution validates the concept of Hindu Rashtra. For me. The Constitution is not a religious book, and it is not even a piece of literature. For me, religious text is what governs my relationship with my God, who I believe in. 

The Constitution is the legal text, which says that India has no religion. India celebrates all religions. India even celebrates people who don’t believe in God. So on that point Mr Swamy is wrong. Secondly. Mr. Swamy. Read from the Constitution. He is reading some directive principles. What is the word you use? The state shall endeavour . Now, as a legal student, the word shall and word may. May means mandatory and the word shall is not mandatory.

(Sai Deepak interrupts Owaisi to correct the meaning- May is not mandatory and shall means compulsory).

When it comes to cow slaughter, please remember that when Constitution was being made Shyama Prasad Mukherjee was there and then Mr. Swamy is against protest. How did we get our freedom? Did we not protest? Didn’t Mr Swamy’s party protest with Anna Hazare ( not you in person, you argued.) You don’t come out on roads, you go to courts. What will be the Uniform Civil Code? Can you ensure that the Hindu undivided family tax rebates are given to every religion. Isn’t that contradicting right to equality? Please tell me sir. I want one answer from you this present government How much allocation has been made for protection of cow?

Subramanian Swamy: he has read different from whatever is written here. It is mentioned here “shall in particular prohibits the slaughter of cow and calves…” You say this is not a religious document but it’s a secular document and we believe a and what the Constitution says that all religions are equal as a Muslim. Do you agree that Hinduism can lead to God as much and as efficiently as Islam?

Asaduddin Owaisi: I started my initial remarks by saying that India has no religion. India celebrates all religion. You are entitled to your religious belief. I am entitled to my religious belief and no one can interfere in your practice of your religion. This is this is the beauty of our Constitution that you cannot superimpose my views on him. Do not super-impose and make this country a Hindu Rashtra. Do not make this country a country  of one religion or one culture or one language. 

You are in power in all the northeast states. Can you please bring a bill over there? You’re not doing it.

Subramanian Swamy: You have repeatedly said this many time. We Hindus believed that the breed called Bos Indicus is the sacred cow and in Northeast it’s (different) Taurus. We have no reason to protect them and Bos Indicus is the only breed that we shall protect which is sacred and Northeast is free to eat the cow. They call it cow, but it is not a cow. 

Sai Deepak: So since you seem to have a fundamental problem with the concept and idea of a Hindu Rashtra, and I’m assuming that you have a problem with it, after understanding what it is about. Could you please explain for me? what do you understand by the word Rashtra? 

Asaduddin Owaisi:  When you talk about Hindu Rashtra, then you go to the Savarkar  ideology, what he wrote that Muslims and Christians do not believe because India is not a holy land or their ‘Matrbhumi’. when you talk about Hindu Rashtra, then you go back to what Golwalkar said in 1930s. He said that if we Muslims have to live in India, they should be denied citizenship. One step has been taken under CAA. Now, when you talk about Hindu Rashtra, it was the RSS that said that we don’t believe in this flag colors because they aren’t auspicious. Rashtra is to change the India diversity, its pluralism and domination of one religion. It means to change the basic structure of the Constitution. 

Sai Deepak: When it comes to interpretation of non Hindu religions in India, under law or in any of the Islamic seminaries, which book, which traces its Origins to India, is relied upon for interpretation of whether Islamic law or Christian canon law? Let me make it simpler for you- When you issue a fatwa, Do you use Quran or what are you using?

Asaduddin Owaisi: Do you believe that the Islamic law is only Quran and Sunnah? There are schools of thought – Hanbali, Hanafi, Maliki, and Shafei. Then Fatawa-e-Alamgiri

Sai Deepak: What is the basis of the schools of thoughts? 

Asaduddin Owaisi: Majority of Indian Muslims are Hanafis. We follow Fatawa-e-Alamgiri and it comes from article 26. 

Sai Deepak: What is the basis of the Fatawa-e-Alamgiri?

Asaduddin Owaisi: Fatawa-e-Alamgiri is based on Quran and Sunnah. If you don’t find an answer in Quran and Sunnah, then the that is what the scholars give their opinions. 

Subramanian Swamy: The question is, either you say, Secularism will tolerate all other religions, but my religion is superior or you will say what the Hindu say that all religions lead to God. Islam does not believe that all religions lead to God, neither does Christianity. 

Sai Deepak: Is that a political statement or a theological stages based on theology?

Subramanian Swamy: It is based on theology. He is a Muslim. I’ve no doubt about that, right? But in Saudi Arabia, you can’t even celebrate Diwali. You cannot keep a picture of bhagwan Ram in your pocket. You cannot have Satyanarayan Katha inside your house. If you bring any Idol from India and they detect you in the customs area, they’ll put you in jail for five days. So, there is a clear and I have spoken to Saudi Arabians. They say, this is our religion, 

I am only asking him would he say that Hinduism leads to God, just as much as Islam leads to God? He will not be able to say that because the theology will prevent him from that. And if he says it, then you’ll have to give him Z security protection. 

Sai Deepak to Swamy: Mr. Owaisi believes that the amendment of article 370 is effectively an act of subversion of the Constitution. So I am asking myself this question, keeping my legal experience. What was India expected to do to put an end to the problem with respect to article 370? If status quo was not a solution. What is it that India could have done? Is there an option other than what the government has done?

Swamy:  (From now onwards, This part of the conversation is translated from Hindi to English) You get clue from two places of what steps to be taken. First one is constituent assembly. Constituent assembly completed their entire work and changes regarding Constitution till November 26, 1949. On November 16, a new amendment was brought which stated to draft Article 370. Ambedkar said I am not a traitor, I won’t do that. I won’t draft Article 370. Then Prime Minister Jawaharlal Nehru got a member of his cabinet, N Gopalaswami Ayyangar, to do the job done. There was very strong opposition.  Then Sardar Patel said that Nehru has gone UN to sort things, the article will be discarded later. It must be noted that there is only one article in constitution that can be removed through President’s power. It is mentioned in the headline of Article- “temporary provision to state of Jammu and Kashmir.” There was another constituent assembly for Jammu and Kashmir that drafted the constitution for Jammu and Kashmir. Even in that it is mentioned that Jammu and Kashmir is an integral part of India.  There is no link of Article 370 anywhere in that. So when it is a temporary provision, how can we make it permanent? We did not release any “Fatwa.” We brought the approval bill in the parliament to approve the Rashtrapati’s notification. Whatever we did, we did with regards to Constitution. So merely shouting 370 is of no use. There is no base in that. It was temporary. It remained temporary for 70 years. We have ended it in five years. 

Asaduddin Owaisi: 370 gave Kashmir a special status and your government has dissolved the assembly. You haven’t discussed it with assembly despite the fact that there is a mention of  discussing and taking opinions from Kashmir assembly. You have not taken that. You dissolved the assembly. You took all the decisions without discussing it with assembly. Coming to 370, why are you going to make a law that no one can purchase a land there? You are again applying 35(A) in Kashmir. 

Sai Deepak: In India, irrespective of their religion and culture, any one can become a Prime Minister. Thanks to this civilization! Now if you were the Prime Minister and 370 was there at your time and let’s consider that whatever Bhartiya Janata Party has done is incorrect and wrong. So how you would have solved the matter of 370? Or there is no problem in 370 according to you?

Asaduddin Owaisi: First of all, I wouldn’t have made an alliance with Mehbooba Mufti. 

Subramanian Swamy: I agree with that

Asaduddin Owaisi: BJP made a document where they mentioned that they won’t touch or make any changes with Article 370. I would have done discussions there. You ( referring to BJP) are not doing anything there, You are not talking, not discussing anything. It was during your government only that there were so many terrorist attacks. You even made a record of an Internet ban. Do you have any idea how much it affected the economy? According to a report by Economic Times, there was a loss of more than 100 crores. So 370 was an empty shell, by doing this how have you improved the situation? Elections are postponed, people are arrested. There is no solution to it. Things will further worsen. 

Sai Deepak: You say there could be discussions but what is the result of the discussion that happened for the last 70 years?

Asaduddin Owaisi: In 70 years, the first mistake we did was to arrest Sheikh Sahab. In 1986-87 there were elections and we had to face the consequence of that. Kashmiris are very clever. They won’t react when you want them to react. They have a history of this. 

Subramanian Swamy: No I will say even Madrasi and Brahmins are also clever. It is not about cleverness. Do not mix two things. I will read the constitutional provision for you as there is no mention of assembly there

“Notwithstanding anything in the foregoing provisions of this article. The President may by public notification declares that this article shall cease to be operative or shall be operative only with such exceptions and modifications and it’s from such date as you may be specify provided that the recommendation of the constituent assembly of the state referred to enclose to shall be necessary before the president issues such as notifications.”

Now constituent assembly completed its deliberation and presented a constitution in that there is no reference to Article 370. There is only one in the Preamble, which says that Jammu Kashmir is an integral part of India. there is no question of insulting the assembly of Jammu and Kashmir.

Asaududdin Owaisi: Jammu Kashmir is and will always be an integral part of India. By dissolving the assembly and then dividing the state, you can’t do that. It is my stand.

Subramanian Swamy: You say Kashmiris are very clever and they’ll fight at the right time. now when five lakh Kashmiri Pandits were assaulted, their genocide was performed, What Kashmiris were doing there?

Asaduddin Owaisi: It is the responsibility of your government, Mr. Swamy, to rehabilitate all the Kashmiri Pandits in Kashmir. Now tell me, In the last five years how many Kashmiri Pandits have been settled in Kashmir by your government? I agree that Kashmiri Pandit should go back and I hope they go there. 

Sai Deepak to Owaisi: Has your party passed any resolution regarding Kashmiri pandits?

Asaduddin Owaisi: there is my speech in parliament where I have said that take Kashmiri Pandits back to Kashmir. 

Sai Deepak: So as a party, your stand is Kashmiri Pandits should be taken back to Kashmir

Asaduddin Owaisi: Absolutely Yes!

Subramanian Swamy: You are not Kashmiri. Why Kashmiris are not saying that Kashmiri pandit should come back?

Asaduddin Owaisi: No, a lot of them have said. Your Mehbooba Mufti has also said that. 

Sai Deepak: Since you represent a significant portion of Hyderabad which has a significant Muslim population which Hyderabadi Muslim according to you is going to be affected by the CAA?

Asaduddin Owaisi: Any law which is passed, which is unconstitutional, which goes against the basic structure of the Constitution. It will affect every Indian irrespective of Hyderabadi Hindu, Hyderabadi Muslim, or Christian. Secondly. Why do you oppose CAA? Because in the 70 years of our Indian Lok Sabha, not a single law has been made on the basis of religion. This has been done in, in my opinion, and in the opinion of many legal luminaries, it violates the right to equality. Fourthly this country cannot have two principles

It is discriminatory and it violates article 14 of equality because in Assam NRC has been done and 19 lakh people name did not come up. See, out of that only 5 lakh are of Muslims. The BJP intends to give citizenship to all those non-Muslims. And not to the Muslims. Why? Again, all of them are illegal migrants because they have come. CAA has to be looked to the prism of NPR and NRC because it relates to the citizenship act. These are the rules which were framed when Atal Bihari Vajpayee was in power. That is why we oppose CAA NPR and NCR.

Subramanian Swamy: He said equality before the law. There are a number of Supreme Court judgments that interpret article 14, but I will not read them. I’ll give you a very simple example and ask him how he would treat that example. Today, there is a reservation for Scheduled Castes in jobs in education, but there are no reservations for Brahmins. So can I say equality before the law? I should also get reservations if they do get reservations. What the Supreme Court says is article 14 would apply only when invidious discrimination is meted out to equals and similarly circumstance to people without any rational basis. 

In this particular case, these people who have come from Pakistan and they were original, there was a statement of Mahatma Gandhi in the prayer meeting that he would like to see this Partition undone, and he plans to go in February, that is few days after this assassination, so you could not go therefore. He said those who are here can stay there. But after that Gandhiji was assassinated, they never had a meeting. Then the prime minister of Pakistan Liaquat Ali and Nehru both resolved that the minorities of both countries will not leave because they will be safe. They’ll be protected, but Liaquat Ali was assassinated. And after that, the persecution started, and this is not only on the Hindu Sikhs, Buddhists Christians. There were 30% of Pakistan’s population and slowly over a period of time, there now them down to 3% and therefore these persecuted people who have been coming from 1947 onwards have been living in camps because they are being treated as stateless. They’re being treated as illegal immigrants. They can’t get another card. They can’t get a passport. So they have to get a dole from the government and live in tents. So in order to end this, and laugh, Manmohan Singh, as leader of the opposition in Rajya Sabha said, please Mr. Advani. Please have some kindness for these people and give them citizenship. And therefore, that is what all we did. It is only restricted to that group of 31,313 in which no Muslim came from Pakistan saying that is he is religiously persecuted. 

Other Muslims who came, we offered them citizenship on an individual basis, like Tarek Fateh, he said, no, he took Canadian citizenship. Taslima she took her Swedish citizenship, but Adnan Sami he took Indian citizenship and even then we were criticized. So, therefore, please don’t connect this with equality. Article 14 does not apply here at all. It is no question of unequal things.

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