Constitutional controversies in Kerala leading to democratic dynamism or diminution?

Saji Cherian

“Constitution is not a mere lawyers’ document, it is a vehicle of Life, and its spirit is always the spirit of Age.” B.R. Ambedkar

It’s said that a living constitution enlightens present and future generations of citizens of a country and its multiple organs of governance of different time and tenure. It shall also empower those who have traditionally been deprived of their rights and opportunities. That is, constitutions are bound to give vulnerable people opportunities to regain rights deprived in the past. In this context, the recent controversies surrounding the constitutional criticism of ex-minister of Kerala, Saji Cherian deserve further deliberations.

Extempore in an unstructured discussion and constitutional sanctity

The current contentions arose following Saji Cherian’s choice of an extempore in a public meeting to open up an unstructured discussion on constitutional clauses. A video of his speech went viral creating confusion about his intentions in the midst of the version contained in the speech. On the one hand, it provoked challenging debates among the public on constitutional sanctity. On the other hand, there are people who view that his tongue might have got slipped or he made statements unaware of the risk of falling into a legal fiasco. Nevertheless, all these made him vulnerable to allegations of violations of constitutional oath. Hence, he had to later resign from the ministry.

Leaving apart the legal dimension, thought leaders and legal luminaries shall reflect on and review the following two questions: Did he question the constitutional aim of existence of democracy? Or did he intend to enable constitutional discourses towards fostering democratic dynamism?

Dynamic constitution for a vibrant democracy

Practically speaking, the Indian constitution is not a rigid document susceptible to breakage whenever there are stringent evaluations or criticisms. Rather, it’s a flexible document which can recognize opposing views and embrace best practices from constructive criticisms. It can promote divergent views coming from across the spectrum of experiences of legislators, legal luminaries and executive.

It’s not a narrow document. It’s an inclusive document of the past, present and future with sufficient provisions for review and reflection of existing and emergent inadequacies and for their corrections. These inadequacies or limitations might have got crept into the constitution as the members of the drafting committee possibly had a partial cognizance of the future implications of the then-existed scenarios. Those who had penned the constitutional draft down might have made some contrasting procedures part of the constitution unintentionally due to their oversight of the future. Similarly, the founding fathers might have committed some reasonably justifiable human errors when they were developing such a complex document for a huge country like ours. These are imperfections that only a diminishing democracy can overlook to acknowledge and endorse at its own peril. Fortunately, dynamic democracy like ours has the advantage of the availability of the original intent of the founding fathers to guide generations to course-correct all these imperfections and accommodate value additions even in future. That intent is readily traceable from documents of debates of the constitutional assembly.

Idea of existence and achievement of excellence of ideologies

Historically speaking, many ideologies and their entities, models and paradigms have been aiming for excellence in human destinies. It may be true that all of them could not reach excellence and pass the test of time in an ever-changing world. But, all their fundamental deeds and foundational documents of all such robust ideologies existed and survived at the minimum. Conversely, the Indian constitution and its foundational values have also tried to provide promises for a kind of egalitarian excellence and in pursuit of that fundamental human value, it is still surviving 70-plus years as well. But, whether it could fulfil its promise of excellence is still a debatable question.

Taking lessons from the above logic, the goal of a democratic document of the constitution in any emerging and evolving democracy should not be limited to ensuring the mere existence of the basic form of democracy (political democracy) alone. Instead, it should further envisage the idea and ideals of acting as a guiding goal in building up the democracy as a robust and excellent social democracy. In other words, boasting of mere existence is not very promising for a developmental document and developing democracy;  rather, the spirit should be on the transformation of democracy and its document into a dynamic one. It can never be a stagnating and existential one alone. For example, deliberate debates on the democratic promises of achieving social rights for women and weaker sections shall be encouraged to make our democracy dynamic. Such a move will activate accommodation of amendments in the law system to ensure constructive provisions and procedures in the constitution.

Is the constitution a scripture? Review of articulations in the light of constitutional morality

The idea of the excellence of an entity in a democracy cannot come into reality if such entities are only revered or worshipped as holy scriptures,  celebrating their existence alone. Rather, politicians, people and parliamentarians shall actively and deliberately pursue excellence by promoting divergent and opposing views, recognizing them as indicators of improvement and letting a fair review and reconsideration of views of everyone within different organs of governance.

Politicians in this endeavour shall be guided by the principle that our institutions should always accommodate disadvantaged social classes. These core values are promises very much enshrined in the preamble of the constitution. Hence, they shall act upon these values of equality, equity, freedom and fraternity, and translate them into concrete, inclusive and meaningful community measures.

This transition is possible only when discussions and debates on constitutional morality are stretched out to grass-root levels. In such deliberations, ineptitude in legal terminologies experienced by representatives of people and their inability to coin arguments in a legally defensible way shall not matter and should not be used as a litmus test against them. That is, ignorance of representatives of people to use legal terminologies shall not stop them from facilitating forums for the articulation of problems, pains and pulses of the people. In fact, such forums act as a feedback loop of the governance system. Hence, political leaders and parliamentarians must alert the other organs of the government including the judiciary and executive and vice versa about their active role in promoting discursive democracy, in order to widen the scope of dynamism of democracy within the boundaries of constitutional morality.

And sometimes, rural usages and styles sans legal compatibility work well for encouraging exercises of brain-storming in communities. In fact, suggestions or opinions in these kinds of open discussions let them mature very well to become more meaningful decisions. Such outcomes will be much more creative than the results of a high-end, structured, canned-in and monotonous passing over of information used in some top-down elitist communications. However, in order to extract the benefits of brainstorming, even an extempore shall be encouraged from among people though it carries the risk of slip of tongue.

Incubation period – legal draft Vs legal document

And there is a tendency among media to make all aberrations in speeches viral these days as the market for viewership is characterized by stiff competition. Therefore, what is more, prudent for a society with civic sense is to put such statements in a one-day incubation period as a ‘digital draft’ upon getting viral coverage. If the conclusions drawn from such discussions are found to be misleading and are negated by the speaker immediately thereafter, there should be a legal provision to forgive any unintentional aberrations in oral expressions. This kind of reformation in the existing law will help people focus more on the intent of the initiator of such discussions and save them from getting trapped in unproductive utilization of their time.

In the purely print-media dominant past ages, excerpts from any raw discussions/deliberations used to carry room for either endorsement or refutation of statements if found to be divergent from the original intention of the speaker and thereby helping to save the speakers from plunging into the risk of running behind prolonged controversies arising out of legal flaws. However, in the more modern digital era, the freedom of expression is restricted in a way that everything spoken out has the vulnerability to stay as a digital document acting as a witness or counter-witness. Hence, all extempore expressions, if misspelt, carry the increasingly alarming risk of legal actions in a world defined by digital documents (evidence). This is what happened with the speech of Saji Cherian.

Inclusive constitutional clauses from the grass-root level

He aired his voice for taking care of the rights of women, the working class and weaker sections in order to strengthen the constitution. His intentions might have been to generate discussions on the need for rediscovering inclusive constitutional clauses by stretching out the ideals of constitutional morality. In fact, this kind of democratic discussion at grass root levels shall help to arrive at a consensus on the need for enhanced participation of the under-represented groups in the democratic process and forums. Hence, the parliamentary privilege shall be extended beyond the premises of parliament to both digitals as well as decentralized discussions and all deliberations happening even a three-tier system of local governance in a democracy. In this context, legally differentiating a lawfully enforceable digital document from a digital draft of a speech can be thought of.

Dissect flaws from fruits of complex communication

There are thought leaders who get guided by the understanding of the profoundness of legal and moral dimensions of this complex communication starting from grass-root levels. They are able to dissect communication flaws from the fruits of this open communication process and hence, they view the intention of constitutional reflection of Minister Saji Cherian as positive and productive. They see the essence in his intention to get protective provisions of laws and affirmative actions evolved from the voice of the unheard and suitable laws enacted for the welfare of the weak. Therefore, criticism of Minister Saji Cherian shall open up avenues for constructive discussion and debates on the scope of constitutional morality in search of re-imagining existing laws.  

Rationale of public meeting and the law of libel

Conversely, there will also be lawyers who would argue that the text of the minister’s statement does not come under the protective privilege available to parliamentarians based on the existing laws in the country. And hence, they will not subscribe to the rationale of choosing a public meeting for opening discussions intended to make a democratic consensus on the need for constitutional amendments.  They might say that what was understood to be spoken based on the content in the video is not in alignment with what law enforcers normally expect listening from a seasoned public speaker looking at the current limits of the law of libel.  

Constitutional role of the legislature

Conversely, there could also be leaders with vision who could argue that their constitutional role is not just to interpret what the law is. Instead, they are also duty-bound to initiate discussions and deliberation in political platforms and parliament on what changes should be there to the existing laws. They may opine that legal luminaries can suggest changes even in the procedures and provisions of the constitution in the best interest of foundational values and constitutional morality.

Expert lawyers might empathize with the minister saying that he should have initiated such a discussion in the legislative assembly and tried to form opinions among lawmakers initially. Or else, if he wanted to present it in a public forum, he should have spoken that weaker sections and women are getting exploited due to the vulnerable environment existing in the system and the legal loopholes are maliciously misused to make wrong-doers scot-free and hence appropriate anti-exploitation shields shall desirably be embedded in the constitutional procedures in order to forestall recurrence of persecutions in future.  

Legal vs. Ethical dilemma -discussion from people or parliament

There is a dilemma as to whether such an opinion-formation should start with people and end in parliament or start in parliament and end with peoples’ mandate. Coming out from such a dilemma calls for weighing the pros and cons of both existing ethical as well legal dimensions, as it involves both legal and ethical aspects playing out in conflict.

No matter whether the trigger for challenging the existing paradigms and changing them into progressive forms is initiated in public or in parliament, it’s undeniable that there is always room for improvement and amendments in the constitutional clauses. And some improvements might sometimes have been made from critical evaluations and creative suggestions facilitated by some hard-earned lessons. Perhaps, external threats, internal criticisms or lived-in experiences of people in the struggle over a period of time might have contributed to these renovations. Nonetheless, all these will help to realize organizational excellence in any democratic country.

Parliamentary Privilege -tenure specific?

The parliamentary privilege of free and un-censured expression and articulation available to legislators is restrictively limited as of now to discussions made within the physical platforms of parliament. If the intent of discussion is genuinely reflective of the constitutional morality, the privilege shall be widened to elevate its scope into a tenure-specific privilege of legislators. Such a reform in the law shall disregard platforms (virtual or physical platforms) and consider only articulations made by the legislators for the collective good of the country. In the future peeping into a more digitally prone parliament, such reforms will be well ahead of time. Just because there is no law in the past or at present does not mean that such a law cannot come in the future as well. What matters here is whether such legislators have a positive and creative intention to respect the original intent of the founding fathers of the constitution and its core values.

Setting a progressive paradigm in the domain of democracy

Hence, it is suggested here that the Kerala Legislative Assembly, of which Saji Cherian is a member, shall complement the current controversies much more creatively by initiating an inspiring precedent which could be emulated not only by assemblies of other states and parliament of India but also rest of the democratic daises across the globe. It shall open an exemplary debate in the assembly in order to enable its members to air their divergent views supporting protecting and promoting the interest of the weak. In this context, discussions in the assembly shall be guided by an understanding that there is a need for extracting and enacting additional constitutional provisions from the foundational values respectful of constitutional morality.

The honourable Speaker of the Assembly may initiate such a deliberation preferably in the presence of specially invited legal luminaries who could interpret the intricacies of the existing provisions and those political visionaries with a scholarship to re-imagine required provisions in the constitution in the best interest of building up our democracy into further excellence. Besides, the discussion shall also cover the need for enacting more border and time-relevant parliamentary privileges as well. The speaker may come up with some guiding framework to make sure that discursive deliberations do not fall into a diminutive debate driven by the partisan interest in petty politics. Conversely, a dynamic debate if conducted can make the session one of the most sensible debates commemorative of the constitutional assembly debates. Meanwhile, Media shall also be alerted to carry forward the proceedings of such an event in the best interests of society at large. Initiating discussions and deliberations at grass-root levels as well as at the elevated level of assemblies will hopefully transform our constitution into a historic document rather than just helping to sustain it as a historical one alone.

Dr Munirudheen A, works for the Kerala State Civil Service Academy, Trivandrum. Earlier, he had taught at Government Law College Calicut and was the Director of AI International College, Malappuram, Kerala. He can be contacted on [email protected]