The country should be open to using both ‘India’ and ‘Bharat’ as the official names since there is no consensus on the same, Arghya Sengupta, founder of Delhi-based think tank Vidhi said in an interview.
The constitutional expert also supported the government’s bill to replace the Chief Justice of India (CJI) from the committee to select the Chief Election Commissioner (CEC) and Election Commissioners by saying that the CJI should remain above party politics.
In a recent interview, Sengupta, who is also the author of ‘The Colonial Constitution’, talks about the federalism, holding simultaneous elections and the India vs Bharat debate.
Here are edited excerpts from the interview:
Q: Recently, the appointment of Chief election Commissioners was in the news. While the Supreme Court said that the Chief Justice would be included in the committee to advise CEC appointment, the government brought a bill to replace the Chief Justice. Do you think that this order of putting the Chief Justice in the committee was a case of judicial overreach or do we need the apex court to be in this process of appointing constitutional functionaries?
I found Justice K M Joseph’s order on the constitutional bench very balanced. The judges didn’t say that the Chief Justice of India has to be part of the committee for all times to come. The judges, instead, say that we are now giving time to the government and to the Parliament, to come up with a mechanism for appointment. But for the interim, there is going to be the committee. I found it a very balanced order. It was not like several other cases where there was an actual judicial overreach, where judges set up committees and these committees started administering institutions. I think the order was good as an interim measure.
There is nothing unconstitutional in what the government has done by not having the Chief Justice of India in its proposed selection committee. I think that the Chief Justice of India should not get embroiled in a committee of this nature that involves the political fortunes of political parties in the country. The Chief Justice of India has to remain an office above party politics. Now, of course, there will be political cases that come before the Chief Justice. So, in that sense, it is even more imperative for the Chief Justice of India to remain above all this.
We need to get rid of the mindset that getting the judiciary involved is the only way to get good appointments. The people you elect are the ones who even have the control over the decision to deploy nuclear weapons. If you are giving them (the representatives) the power, then how can you not trust them with the appointments?
They can make bad appointments, but if they do it then they are accountable to you. If you think it is a major issue, then act on that.
Q: In your book, you have discussed at length the emergency provision and the president’s rule. Do you think that it’s time to do away with it?
I think after the SR Bommai judgement, Article 356 has not been used. In terms of statistics, it’s clear that there’s been a steep decline after 1990. The lack of emergency powers is not in any way going to inhibit governance. Because emergency power essentially involves a dissolution of the Legislative Assembly and running of the government of that state from Delhi.
Now, the fact remains that Delhi can always and should always play a supportive role. Article 355 of the Constitution says it is the duty of the Union of India to protect states from external aggression or internal disturbance by ensuring that there are greater police forces if required or there should be other reinforcements. In terms of resources, when dealing with the situation of a natural calamity or if there should be monetary resources.
But I think that we need to prop up responsible government in states and not remove them. We don’t need to do away with responsible government because they have proved incapable. If it’s not working absolutely, then try and call the quickest possible election in that particular state, or put an interim government and call an election. I don’t think that the government in a state needs to be run from Delhi is ever a viable solution. Also, I do think that this provision needs to be done away with.
Q: There’s a move to hold simultaneous elections. As a legal expert, what constitutional challenges the government will face to implement it?
The simultaneous elections question needs to be thought very carefully before it is implemented. As far as the data is concerned, in simple terms, it shows two large trends in simultaneous elections across the world.
First voter turnout increases significantly. We can all agree that increased voter turnout is a good thing. Second, voter congruence also increases. That means people tend to vote for the same party. But what is interesting is which party do they vote for?
Now, if the national election is dominant in their minds, then they tend to vote for the national party. But if the state election is dominant in their minds, then they tend to vote for that state party also in the national elections. So, this view that it will only help the Bhartiya Janata Party is actually not true, and may be disproved.
I believe that that it has to be studied by both the government as well as parties in the opposition very carefully. This is a long and a far-reaching change. Hence, there needs to be a great degree of consultation and consensus that needs to develop.
Q: There is a recent debate on Bharat and India. One of the arguments is that the preamble starts with ‘We the people of India’. Do you think that in the minds of our constitution makers, India figured first and then Bharat?
It’s not a question of first or second. If I were to be very succinct, I would say that, in the minds of the framers of the Constitution, it was India when they were thinking and speaking in English. And when they were thinking and speaking in Hindi or Indian languages, it was Bharat. So, there was a clunky formulation that India, that is Bharat.
The debate went on for a long time in the Constituent Assembly. And there were many people who said that let us make up our mind. Let us say, if it is India, it is India, If it is Bharat, it is Bharat. Let us not say “India, that is Bharat”. But in India, the middle path has always been a very popular option in governance. So, we chose the middle path.
The Constituent Assembly used both these names as official names of India. And I think we should also be open to using both these names as official names of India because I don’t think there is any consensus in the country, particularly in the south, that we should not use India. India has become a kind of default over the course of the last 75 years. I believe we should be comfortable in using both.
Q: Your first book- Colonial Constitution- An Origin Story is very well received and now many of us are looking forward to the next book. So, what is the idea of the next book?
The next book, I hope will be The Operation of the Colonial Constitution and how it has worked over the course of the last 75 years of the country. when I wrote the current book, people were quick to point out and say that it has worked so what is wrong if it is colonial? I hope to answer that question in the next book.
This interview is the second of the two-part interview series with Arghya Sengupta. You can read the first part here.
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