 In 2019 or 2018 and 19, we have x-rayed the entire constitution to tell us what is wrong. People on the other side often say, look, look what Nehruji did, look what Indira Gandhi did, forget it. Our x-ray to the constitution starts in 2014. It gathered speed in 2018 and that is why this lecture is called 2019. Let us just review the events. The great strike that took place, Balakot Yuri. Well, the point about that strike, whether it did take place in Yuri, whether it did not take place is actually irrelevant for my purpose. The point is that if anybody said that it did not take place, they were supposed to be guilty of treason. And please remember that freedom of speech at that point in time in one of the greatest democracies of this country managed to get an entire parivar together and tell people who questioned the why and the wherefor. They were told you are traitors. Your freedom of speech is seditious. It is treasonable. And we know that that accusation of treason continues. Let us take the last events, which are the events of today. Oh Maharashtra, what have they done to you? What have they done to you? A party which could claim a seat. And I owe it to Ashok Rao as to why the BJP was so keen on Maharashtra. When you take the total statistics that he sent me of over 4,000 MLAs in this country, only 1,500 plus were those of the BJP, that is BJP proper. Of all the governments, if you include the northeast governments, 11 or so, only 6 are BJP governments. Now why do they collaborate with the NDA? The answer is very simple. Because they need the money and the muscle of the NDA in case they force defections. This is not something in my mind or in your mind. It happened in Arunachal where a chief minister committed suicide. How were they able to persuade without that money and muscle of the BJP, how were they able to persuade a government to fall? Uttaranchal, how did they persuade a government to fall? And the high court had indicated very clearly, president's rule should not have been established. And today we have Maharashtra. What have they done to Maharashtra? Why do they want it? Why do they not say, Shiv Sena, you occupy this chair for 5 years, we don't care as long as we are in power? Because the BJP wants to rule the third largest and most prosperous state in India. It doesn't want to give it to an ally. It wants to give it to themselves. Take Gujarat away and Maharashtra away and you have the little kingdoms of the BJP. And they will topple any kingdom because if they don't succeed in these little kingdoms, they have the money and the muscle. Karnataka, I was involved originally in the Arunachal case. The governor sent a letter after president's rule, Mr. Dhawan will not appear for us anymore. Take the brief, I was appearing free anyway. Karnataka, that total unholy mess that you see there, how did it happen? And what does the Supreme Court say now? The Supreme Court says all the defections were induced. Now put that aside for a little while because I'll go chronologically and let us see whether this chronology helps us to understand why the Constitution is in trouble today. The second event of course was the victory of the BJP in this massive election. What did it mean? Parties with power come back? Of course they do. But look at the president's speech when the house was called. Knowing that they are a majority government, knowing very well that they are a majority government, they decide we will now unfurl an agenda which we could not have unfurled if we didn't have a majority in the looks about. And what is that agenda? Triple-talak. Triple-talak is an invalid, void action. Did you have to double it up and say it will now be a crime? Cognizable crime which means you can be arrested by the police. Therefore, majoritarianism and to acquire a majority are two entirely different things. The majority was converted into the most odious majoritarianism that we know. And look at that agenda because the sound of democracy was turned off. We are friends now. What happened to Indra Jai Singh? What happened to amnesty India? The moment they said something about Babri Masjid, Amnesty India, immediately the troops of the FCRA went to them. So we go a little further. Do I need to explain to you and I hope someday, somehow, somebody will tell all of you that how the media has been suppressed. There should be information coming out to you on that. Look what happened to my dear friend Indra Jai Singh. Her husband Anand Grover was a United Nations repertoire on public health. He then spent some of that money on a ticket and they said this is FCRA money, this is a violation. I know that the repertoire in Malaysia, a dear friend of mine, Parampara Swami, much sat upon by the government of Malaysia, travelled on money that they had received and of course it was a matter of reimbursement. How did this come about? This came about because a mischievous solicitor general supporting a mysterious organization called Lawyers Voice on the 6th of May last year came before Chief Justice Gugui. Now of course the case has been dismissed. But the reason for it was what? The reason was Justice Gugui then said you can take any steps you want according to law. The steps were to raid the Bombay office, to raid the Delhi office, to raid the chambers and to upset people. Now what does this in fact do to people? I'll tell you what it does. The effort of this exercise is not just an example of suppressing voices. The object of the exercise and I have talked to many friends who have been made subject to this is to make you lose your motivation to fight. Because that is the ultimate loss, not a censorship here or a censorship there. The ultimate loss is to silence activists so that these activists lose their motivation to fight. What happened to me in Babri Masjid? I'll tell you. There is Chakeel Ahmed sitting there. Mr. Jilani and I were fighting this case together in the middle of the hearing. The chairman of the Sunni Vak board who has a little FIR against him and because he has an FIR against him, he is subject to the pressure of Adityanath. In the middle of that hearing, they wrote a letter to Chakeel sitting right here and said change the AOR, change the solicitor. Which means change Jilani, who is really the superstar by the way of this case. I have very little to do with it. Because Mr. Jilani has seen this case right from the beginning, every day in and out. He is the superstar. Jokingly I tell him you are the supreme leader. How can I possibly disagree with you on anything? Now what happens? It fails. An effort being made, yogi on the chairman, chairman on Chakeel. And so Chakeel came along. I said you put this letter, let them come to the court and let the court decide whether we should go out or coming. What would it have done to our motivation? You tell me. Because if that motivation is lost, forget the exigencies of free speech. If that motivation is lost then everything is lost. And there are people sitting here who know how the motivation has been damaged and injured. I talk of some lawyers against whom this is done. I see them in tears that they have not shed for 40 years. And the object of the exercise, lose any will to speech. Not speech. Just the will to speech, the will to associate, the will to movement. All of that will be taken away. Now you might say, am I a reporter for Reuters that I'm giving you all this information? No I'm not. This is the constitution as it is working today. This is the constitution. The constitution of a publisher and I can see them there. The constitution as applies to lawyers who are all sitting there and without whom this case would not have happened. So the pressure is far greater than we understand it to be. Now as soon as they started with this program, triple the luck, what is this business about conversion? Conversion is alright as long as there's some conversion towards Islam or Christianity. But Gharwapsi is okay. Gharwapsi is fine. And what is that if not an attempt to convert back? So as we go through all these particular events of which, as we run through them, a muscular nationalism, or let it be muscular, I'm telling you as far as I'm concerned, let me make my views on Pakistan clear. I come from the northwest frontier as indeed my sister sitting here does. There are problems with Pakistan and I'm not giving a flip to Pakistan. As far as I'm concerned, I with Asma Jange later earlier Jalani sat in a conference in which I said Pakistan Jive. Let Pakistan live. We criticize them for everything else. But if I say it now and if there's somebody sitting here who will rush out and say, look what Mr. Dhawan has said Pakistan Jive. That is my view and in my view under our constitution and otherwise, this should be in fact the policy of India. I have no quarrel with the people in Pakistan. I have a quarrel with terrorism. And I quarrel with wanted terrorism. But if we want to make relationships out of our neighbors, then follow what the constitution says about secularism also in your foreign policy. But you know, it goes a little further. I don't know, media people will tell you about Pegasus. It's not for me to comment on it. We have the sense, of course. But look at the lives that have gone since 2015. Pansare, Davulkar, Lankesh. Now you can't have a secular constitution without a secular people. If people are being murdered because of their free speech, and pretty little is in fact being done about it. Look at cow lynching. You just kill somebody. Because you say that's the way it is. What grounds is it done? On religious grounds. We know very sadly what this really does. Take a little part of a poem from Chandramohan where he says, my harvest of poems will not be venerated. It'll come back onto the tray, become fire in the belly. This is how poets today feel. I want this to become a fire in my belly. I asked Vivaan Sundaram once, as he took me around one of his artistic creations. I said, Vivaan, why is there no anger in our voices? Where is the anger that you saw in Spain in the 1930s where a huge arm comes out and holds people to attention? Where is Faiz in India today? Faiz is the poet of Pakistan because he's the poet of rebellion. We have to ask ourselves this question and we have to ask ourselves this question again and again and again. Where is the story, I would say, rebellion, I would say the story of revolution according to the constitution? It is in this train that Sachidanandan says, pardon me for writing, but if you want to assert your rights, invent a God, invent a language, invent the alphabet. We don't have to explore too much into the history of meaning to know that we live in an interpreted world. It's a world where meaning today is not described by us. Meaning today is described by those in power in the constitution. We have no control over it. And if we have control over it, there will be enormous difficulties as far as this is concerned. As we look through this, one notes with some pride because this is history, in fact, dealing with the past, the Sahitya Committee. Look at what Nantara Seigal and all of them did, one after the other, one after the other, one after the other. If this is rule under the Indian constitution as we know it, then we don't want your Sahitya Academy awards. What do people say? They say, oh, this is just nothing. It's a stunt. What do we want? I would like to build a monument to all those people who have been killed. Certainly I would like to build one to Muhammad al-Khlaq. But I had an idea which I shared with Vibhan earlier. Those stones in Babri belong to the Muslims. The land they have given away, but the stones in Babri belong to the Muslims. As far as I'm concerned, I'm not their spokesman, but I would certainly tell them that take those stones, get artists like Vibhan and others to build this great monument of injustice that has been perpetrated. Now what is this judgment as we see it? And then I'll come and say a few things about the constitution if you will permit me. Effectively it is an order to destroy. It is a mandamus to destroy. Why do I say this? The reason is, assume that in 1992 the masjid was not destroyed and it was still standing today. The title in 1992, according to this judgment, would have been with the Hindus. If that monument was standing today but for this destruction, the order of the Supreme Court properly read, in fact means destroy it and move it. And that is something we have to understand about this order. Now look at this judgment, balance of probability. They say between 1528 and 1857, you have no evidence to prove that you prayed there. A wakf is a wakf. If tomorrow I don't pray there for a century, it doesn't cease to be a wakf. But the fact is that from 1528 onwards, first the Mughals and then the Nawab's rule there, why on earth would there be on a balance of probability a masjid that was not prayed to when the Muslims were in power? Ridiculous. The reason as far as this is concerned, is they say the Hindus in fact had complete access to the whole site. How is it possible? And at least the outer courtyard. Well, in order to reach the inner courtyard where the Muslims used to go, you have to cross the outer courtyard. So the choice is a very simple one. The mosque was there, it's a walled mosque. It was owned by the Muslims. And an 1885 judgment says that as far as the Hindu right is concerned, they cannot build a temple there. And all that the Hindus had was a prescriptive right of prayer. They reversed it. They said Hindus owned this walled mosque, but there's nothing to do with it. Why? Because some gentleman called Tiffan Hala said that he had heard they pray there. I was asked this menacing question by Justice Chandruchud. Well, according to Professor Irfan Habib, he's not a great traveller as the Supreme Court says he is, in fact, a nobody. So Tiffan Hala says that the Hindus prayed there before 1857, and therefore it was Hindu. I mean, the sheer ridiculousness of this argument is only there to be seen on the surface of the judgment without going there lower. We were able to prove what did they actually want out of this? Swambhu. They said the whole area is, in fact, Swambhu, it's a god. I said it's not a juristic personality and that was the end of that. I tell you what I think exists today, two questions. I don't know what the Sunni work board have decided today. I'm told that with one dissent they have said that they will not file a review. It makes no difference. Because there were eight petitioners. This was an Order 1 Rule 8 case. Order 1 Rule 8 says the Muslims were in their representative capacity and the Hindus were in their representative capacity. By the way, I put these aside because I learnt in court, if you speak like this, like, you know, dancing musicians, then nobody actually hears you. You just hear a call. So at the end of this process, you please tell me what is it that we have to do? Why do I want a review file which is my right under the Constitution? Now maybe some people on this side, not meaning this metaphorically speaking, support the judgement. Some people on this side don't support the judgement. Review is a way in which the people who were before the court will state their problems with this judgement. It is the only authoritative way in which the Muslim community can tell the court, not the media, but the Muslim community can tell the court, by the way, this is wrong with the judgement. This controversy should come to an end. If the Sunni Walk Board under pressure, and I've indicated the kind of pressure it would be, doesn't want to file a review. Let them not. M. Siddique, the lead, he's from the Jamiat, I think Mr. Mahbool's client, he's going to file. So are the others. And why do they want to file? They want to file because I think the people of India have a right to know that as far as these people are concerned, this is why they say that the judgement is wrong. It will be an authoritative statement on record, not a statement in a newspaper, not a statement in a television program. It will be the authoritative statement, which will be on record. And I don't really care whether they throw out the review or they don't. I heard a little whispering lullaby, but it is possible that they will entertain the review. Well, better still, better still. But why do people not want a review to be filed? Peace. Can there be peace without justice? Can you ever accept a peace without justice? It's simply not possible. That is the kind of peace, and that is why I started with Balakot and Yul. That is the kind of peace that is now being attached to Article 19, the free speech movement provisions. The next question is, do you take that site? Why do you want five acres? People say, no, it's a symbolic gesture. Who wants that site? To borrow from the first Old Testament? I think the Muslims have told me. I would tell myself this again and again. I don't want that birthright taken away from a mess of potting. Don't take the site. But unfortunately, this is in the hands of the Sunni Watt Board, because the court has said, you take the site. There is still, as far as the Babri case is left, there is still something to be done about it. And it's not a small something. It is something that reflects on our secular fabric. Now I will explain of how I view the Constitution. In this book, I think actually Prabhat didn't like the book very much. If you read his review, after that I put it in the corner of my library and said if Prabhat doesn't like it, and the only other person who read it is that fellow there, and he read it in draft. So it's a book that actually shouldn't be taught it around, but I'm going to do it anyway. In my analysis of the Constitution, there are two texts to the Constitution. The first are the political texts. The political texts of the Constitution are your elections, the parliament going all the way up to the cabinet. And the custodianship of these texts belong to our political rulers. But there are another set of texts in the Constitution as well. I call them the justice texts of the Constitution. The rule of law texts, the justice texts, the transformative texts, they are all under the custodianship, I'd like to believe, to all of us. But the ultimate custodianship of the justice texts is with the Supreme Court of India. As the Supreme Court failed us. Unfortunately, again and again and again. So when I think you people said let us not speak to empty chairs, I spent 25 years of my life speaking to empty minds so it actually doesn't make any difference to me. But what have they done with the justice texts of the Constitution? Have they obliterated them? We've seen a series of cases and that is why I say the distilling factor is 2019. What did they do to the CBI that famous cage parrot? They knew they had done something wrong. So what does Chief Justice Gogoi do? He says, look, I'm sending justice secretly and you're going to appoint somebody else. What happened in all the activist cases that went before the court? What happened in Anurachal? What happened in the simplest and simplest of matters? What happened about corruption? I think there is a political corruption also every time a defection takes place. And I think it is a corruption under the prevention of corruption act. Why? Because you are doing something contrary to law and inducing somebody for the benefit of that somebody, that is 420 or other 416 of the IPC. Now what are we faced with as far as the texts of the Constitution are concerned? What we are faced with is a total takeover of the political texts. We call it a democratic, alright. But democracy doesn't stop at an election. There is a democracy in elections and a democracy, tell him I'm busy, I won't take the call. Democracy begins after the election also. If we think that the political texts of the Constitution are exhausted in an election then the very concept of a democracy disappears. And what have we seen after this? We've seen pressure on the media, pressure on activists, pressure on lawyers, pressures across the board, pressures on Muslims. I'll tell you, it's a simple thing. When I talked to Professor Abid, when Rajan gave the phone to me and I said to him the Muslims must do X, Y and Z and he very rightly said he said you know the Muslims are a frightened community. I don't want to use second class, it is in third class etc. And I told my Instructing Council a little story. Next to my house there is a park, which we call the Tinkonia Park. I found that as far as the new friends colony part was concerned the gates were open for us. But when I found that the other gate, which was to the Muslim colony, they said Bandhe? I asked the gardener, the Mali, why do you do it? And his answer was, he is from Pakistan. Now I'm not on the rhetoric of his reply. I'm on, I stopped walking in that park. I sent it to all the authorities. I said I'm not going to walk in this park until the gate is open and mercifully the gate is open now. But I talked to the kids there. I said why don't you go to school? Why don't you, you know, you play your games? Why are you smoking here? And they said, what do you have for us? I'm not saying it, you know, in an emotional sense. I was trying to add experience to this little sentence that came from Irranovi. A fear somewhere that nothing is going to come out of it and nothing, nobody will come to our defence. So forget about the sacrilegies. After all, what did Justice Chandrachuth in a minority decide in the representation of people's act case? It was a seven-judge bench. Four judges, they had to interpret the words, you cannot religion, you cannot appeal to religion of their religion. Majority said this is all nonsense led by Justice Madan Lokur. I mean their religion, there should be no religion in elections. Simple. Justice Chandrachuth, Goyal Lalit, decided no, no, no, no. You can, if you like, talk about your religion. In other words, I'm a Hindu. I can talk till the cows come home and make appeals on that regard. But as far as the Muslim religion is concerned, if we don't talk about it, that's fine. So when I say that the justice texts have been tweaked and tweaked and tweaked, that is a cause for tremendous concern. But you know, there has been a tendency on our part in what could be called classical constitutionalism to find two answers for democracy. The first answer has been that the political texts are located with the Prime Minister, the Cabinet and Parliament. You concentrate on those political texts. If you have any problems, go to Sitana. Sitana. He will take it forward. Then if you have problems with the justice texts, you go to the judiciary. So the two guardians become, the maibabs of the Constitution become either the power of the people who are the custodians of the political texts or the power of the judges. Now this is, in my view, an entirely mistaken view of the Constitution. Shalini Rabato. I'm going to give you four scraps of paper if you don't mind. Where am I? Rabato, Rabato. Just distribute them. Help them. Help them as much as we can. While this is being done, I'll continue. In the classical view of the Constitution, relying on social contract theory, we have surrendered our power to our rulers. This is well known. We were drilled into our heads, you know, when we were at university. And that is why the book that Prabhat I don't think liked very much is called Miracle Surrender Hope. That we have a Constitution today is a miracle. Israel doesn't have a Constitution. New Zealand doesn't have a Constitution. England, they have now, of course, put in the Human Rights Act of 1998 and they've changed the terms of Parliament Act. They don't have a Constitution. Pakistan's Constitution came in in 1956 and was destroyed in 1958. And the judges, in Doso's case in Pakistan, said, oh, the whole system has changed. They relied on some Venezian chap who said the Gurn norm has changed, everything has changed, so it's fine. And, of course, the Constitution continued. Some modification was made, very rightly so, by the bravery of a then student called Asma Jilani. Who filed a case in 1969. She later is known to us as Asma Jhangir. Now, these changes finished with Begum Bhutto's case. It's happened in Nigeria, it's happened in Ghana, it has happened everywhere. We are lucky that we have a Constitution at all. If tomorrow a Constituent Assembly meets, we will not be able to agree on a Constitution. This is what we have, and this is what we have to work with. It doesn't matter what has been done to the political texts, in which I include the administration and the justice texts. My understanding of the Constitution in our time in 2019 is the Constitution is a site of struggle, not necessarily a stride of welfare and justice. It is a site of struggle. We don't just go to Parliament as the custodian of the political texts, we don't just go to the court as the custodian of the justice texts. Every part of our civil liberties in article 19, 21, 20, 40, every single area. I've learned such a lot from Ashok Rao when we worked on the dismantling of the public sector. Were we right when in the WTO campaign on a decision we jammed the email of the Prime Minister? Just jammed it. To my mind, that is a site of struggle. Therefore, we have to invent this top-heavy Constitution which gave us only two custodians to say this Constitution does not belong to them. It belongs to us. And how is it that we are going to retrieve this Constitution? Let me just take you to these pieces. See, this is, the first one is the preamble. We, the people of India, et cetera, et cetera, gave all this to ourselves. In this constituent assembly, 26th day of November 1949, do hereby adopt and act and give ourselves this Constitution. Turn over the page. This is my version in the book. And why there has to be a retrieval of the Constitution. We, the people of India, and that is the reality, we, the people of India who had little say in the making of the Constitution but were represented by people selected without mandate have been informed to accept this Constitution lest there be chaos. We realise that our Constitution, part of which is a British India clone, makes unreal promises about justice, liberty, equality, fraternity, sovereignty, socialism, secularism and democratic republicans. We have no choice but to accept this arrangement which the constituent assembly declared on the 26th of November 1949. Then is a promise that at least I will make to myself. We promise we will overcome any attempt to oppress us by and through this giant which our leaders have given to themselves to rule over us. We will overcome. We have to turn this Constitution upside down. Now let me make good what I have said in the beginning. Kindly turn to the last page. The Constitution took two years, 11 months and 17 days. Do you think Parliament has this kind of time today? When I wrote my book on President's Rule, the most elaborate discussion was on the Kerala President's Rule of 1959. After that it has all become mechanical. I am appearing for the people's conference but it will turn out to be a fast because I don't have faith in what the judges are going to decide when this hearing starts on the 10th of December. Consider how discussions take place in Parliament. Why has the triple Talaq bill not gone to a select committee? GST went because they wanted it. Why is the matter of the entire rewriting of the labour law? The ultimate empowerment that our workers etc. had and our people have. Why is it not being examined in finite detail? Because the political texts are in the hands of people who know they have a majority. The majority becomes majoritarianism. Now let us see how many members they were. 389 members originally. There were 299 after they went to Pakistan. The amendments were 7,635 and the amendments disposed of were 2,473. We won't get another constitution. We are not going to get it. We live in a global economy where anytime somebody makes some kind of change what happens? This great imperial power of our time will send troops, withdraw troops, whatever they will do. So this is the constitution and now come to the second last page. The top is a cartoon from today. This is we the people. Remember the famous speech of Ambedkar. We have given political equality but if we cannot give economic equality this entire fabric of the constitution will fall down. Now can you run an economic policy because our constitution by the way was a constitution founded on love. Borrowed from here there and everywhere it doesn't make any difference. The constitution today as it is being administered is based on hate. Majoritarianism, suppression, division. Now how do we retrieve the constitution? The second by the way is really from a publication of mine called The Amendment which was published in 1978. Chad goes to the government bookstore and he says can I have a copy of the constitution? And he says sorry we don't sell periodicals. Now somebody converted this constitution at their convenience into periodicals and today they have a power. It is that power that was used in Kashmir. Hardly any debate. Hardly any debate whatsoever on the 6th August act that was enacted. Now at present we have a very strange situation in Kashmir. We have two constitutions. We have the Jammu and Kashmir constitution which took seven years. That cannot be destroyed. And we have the union constitution. If I say Indian somebody will say what a horrible man you are. We have the union constitution. Suddenly an entire constitution has disappeared. Why on the writing of two orders by President Govind on the 5th of August and the 6th of August. It's gone. The great province has disappeared. The constitution has disappeared except it's still there. I really want us to come back and align to a constitution which I believe was made on luck. We're not concerned with absolute figures of poverty. I remember certainly when I was in Cambridge and I think you were there at the time questions of relative poverty as well. It's the differences. It's the differentials that destroy a nation. We will deal with relative poverty but how long can you sustain it? Now whether Mrs Gandhi brought into this constitution socialism and secularism we are a secular constitution except that we have to fight for it. We are a socialist constitution not in the clause 4 cents of the Labour Party constitution which is now gone that we must nationalize everything. We are a socialist constitution. Without redistributive justice it cannot take place. But how do we get this all back? When this great country is up for auction and I have only this to say this is not their constitution. It is our constitution. Power structures, this constitution is not founded on power structures on the two custodians that I spoke about. It is a constitution where the situs of struggle is no longer just parliament or the courts. The situs of struggle has to be in every administrative office in every decision making body out in the streets out in the newspapers out in the media and unless we retrieve this constitution where today as we have seen in Karnataka Maharashtra and Kashmir federalism disappears at the drop of a hat. Democracy disappears. You know I have often wondered if you can have parliamentary democracy at the centre without President's rule why can't you have it at the states? The British imposed it in four provinces including I think when the Congress and you're the expert on it when the Congress ministry is resigned why do we have President's rule? Why? Because no assembly can function in that particular state. It is the ultimate denial of democracy.