 Hello and welcome to NewsClick. I am Paranjoy Guha Thakurtha and the guest who's with me here today from Hyderabad is Professor Madabhushi Sridhar Acharya Nour. Professor Sridhar is currently Professor and Dean of the School of Law at Mahindra University in Hyderabad. It is a former Central Election, I beg your pardon. Former Central Information Commission. I stand corrected, I beg your pardon. Today I'm going to... By stage or it is equal, at that point of time. All right, all right. Yes, I know you had a rather unusual and a controversial stint over there and I recall interviewing you on that occasion. But today, Dr. Sridhar, I'm going to be talking to you on a different subject. I'm going to talk to you about an article which you wrote for live law, where it was written on the 73rd Republic Day of India and you pointed out 73 issues where you believe that the government, the state is committing wrongs, violating rights and reaching duties with the perspective is, of course, that of the Constitution of India. And it may not be in the limited time that we have to go into great depth in all the 72 points that you've touched, but let us club a few points together and discuss. So you first talked about the preamble. You talked about the sovereignty of this country, the violation of the socialist principles, the danger that secularism is currently facing in this country because of communalism, communal tendencies becoming very, very prominent. You're talking about how democratic norms are under attack, parliament debates are being scuttled in parliament and the head of state, the head of the Republic, I beg your pardon, is the head of the, he is just not hesitating to sign ordinances and we earlier had the proclamation of the emergency, but that was in 1975, but even today we are seeing that happening. Social justice norms are being violated, economic justice is not there, political justice is also not there, elections are being influenced, the media is being influenced and you quote the world inequality, the world equality, I beg your pardon, world equality report of 2022, to say India is today the most unequal country in this world and we are seeing the norms of fraternity being violated, especially in the wake of the COVID pandemic, corpses being floated on the river Ganga, ordinary people not being able to, I mean their rights being blatantly and brazenly violated. And last of all, and not the least, this whole issue of the citizenship and people are being asked to prove whether they are citizens of this country or not because of the amendment to the Citizenship Act. So if you can summarize, why do you think the principles, the opening lines of the constitution of India, the preamble to the constitution of India, how the norms, how the values, how the principles that are in this preamble to the constitution of India, how they are being violated today, if you can summarize your views in this report. The preamble is an essential component of constitution which gives out essence of the constitution. And then it also talks about the basic structure. What is this constitution stands for? That is explained by the preamble. There were several litigation before the Supreme Court whether preamble forms part of the constitution or not. After several decisions, the Supreme Court concluded it is the essential part of the constitution and it also can be amended. Earlier it was thought that preamble cannot be amended. Then they said, no, no, you can amend. When preamble is part of the constitution, why not you amend it? You can amend it. Absolutely, in 1975 it was amended. The words secularism, the words socialism inserted. Today we are talking, do we need to remove those words? There is discussion. Correct, correct, correct. But whether socialism, socialist principles were included in 1975 into the constitution, whether the secular principles were introduced in 1975, no, they were there inherently available in the constitution whether they specifically stated it or not. If you look at the minority rights and rights of religion in part three of Indian constitution, you will find equal distance with all religions and equal freedom to all the religions. That is the essential composition of secularism. So constitution is basically secular. And if you look at the constitution assembly debates, we will understand that it is secular. And secularism is considered to be basic structure of the constitution. In SR Bombay case, the Supreme Court very specifically stated that you cannot disturb the secularistic idea of the constitution. You cannot do something which is violative of secularistic character of the constitution. That is the essential component. And that is the reason why the principle of secularism has been manifesting as the essential component of the constitutional feature of this country. So Dr. Sunder, why do you argue in your article that this basic, the preamble, the essential, the summary, that the essence of the constitution is currently being violated by those who are in positions of power? If you remember, reading preamble in public was considered as a crime and people were slapped with criminal cases, reading preamble. And then Delhi High Court has to say, reading preamble is no offense. Look at the situation of how we have grown into such a wonderful place where Delhi High Court has to dig. You're talking about those who were protesting against the amendment to the situation in fact. Correct. And they were reading the preamble. And reading preamble with an intention to protest against the amendment to the constitution, amendment to your law has been considered as a crime. Sometimes tradition, sometimes new EPA, sometimes something else, National Security Act, something else. So how can it be? Preamble has to be read. In fact, my complaint is people are not reading preamble. People are not reading the constitution properly. So there should be enormous awareness created about the norms of the constitution. And because people do not know that the rulers are attacking it. And you point out that articles 15 to 11 that deal with the Citizenship Act, today people are being doubted. Their citizenship is being doubted. 5 to 11 sir, articles 5 to 11. The burden is on them to prove their date of birth, their place of birth, the parents where they were and grandparents. Otherwise they are being incarcerated in detention centers for indefinite periods of time. We have seen what is happening in Assam and other countries. So you are saying that even though the government has been silent of late about the amendment to the Citizenship Act, this is a violative of the basic preamble and the principles of the constitution. Am I correct sir? It is striking at the root of it. Now, if you read the preamble, we will come to understand who gave it to whom it was given. Damn clear. We the citizens of India have written it and we are dedicating it to citizens of India. That's what it says. We the people of India. Now, most of the citizens are asked to prove the citizenship and the conditions are changed. So the requirements are changed. Eligibility conditions are changed. So if a citizen is in because of his incapacity to prove the date of birth of his father or place of birth of his father, if he loses the citizenship of his father and because of that, he will lose his own citizenship also. How can anybody protect this constitution? Where is that these fellows have to go? You are creating a kind of a situation where statelessness will be staring at you. See, it is not that we are not talking about protection of the constitution. We are talking about the persons who are eligible for the protection of the constitution. That is the situation today. If I'm a citizen, I'm entitled to protection of the constitution. If I'm not entitled to rights, they are fundamental rights having taken away from them. Together, wholesale at once, that is the point. See, if one's fundamental right is being violated, we can agitate and we can talk about it. But a whole lot of constitutional protection is being deprived of because I could not prove my citizenship. If that is the situation, what will happen? This is more baffling than anything else that affects the constitutional scheme of our country. Okay. Professor Sridhar, in your article, you say that article one is being breached almost on a daily basis. And you say that India is supposed to be a union of states. But the union is ignoring the constitutional fact that the states and the central government are supposed to be on a more or less equal footing. But they look on the central government or the union government, looks on itself as superior to the state governments. And therefore, this is in your opinion, weakening the federal structure, which is in the constitution of India. And you give as an example, the change in the deputation rules pertaining to civil servants, those in fact belonging to the elite Indian administrative service, the IAS. Would you like to elaborate? See, the civil service system in our country is supposed to be an independent steel frame. They are regular in service. They will not retire at five years. And they are supposed to guide the political executive based on the norms and constitutional principles. That is their job. So irrespective of the political affiliations and political beliefs, these civil servants are expected to serve the nation. And for that, they are supposed to be independent. That is one point. And once you have allocated, when you are appointed, you are allocated to a particular cadet. That means you have to go to a particular state and serve them. And that's again, we have to remember the meaning of union of states. Because it is union of states, the central civil service are, I can say, national civil service has to work in states because there is no other territory where they can work. There are a few departments in the control of central government, like defense, external affairs, and national telecommunications and so on, railways, et cetera. Except there, everywhere you have state cadres. And once you have allotted him to a state carder, how can you reserve a right to call him, all of a sudden, and you don't, you want to say that state doesn't have any role to play and not even consent is required of the state's consent. State, he was serving state for the last decades, two or three decades, and you want him to come out of, even against his will, against the will of the state, how can it be a federal principle? So you are striking at the roots of administration. That is the problem. So there you are striking at the root of citizenship identity, and here you are striking at the internal service matters, where you are supposed to be independent. So that is the problem. These are all, they are challenging basic structure, I can say basic machinery of administration. If that is abstracting the basic structure, this is abstracting basic machinery of administration. The administrative structure, the administrative machinery. Correct. Professor Sridhar, you know, you've been teaching law for several years, I should say several decades. You here talk about the state, and you talk about Article 12, which defines the state. But the judiciary is not specifically included within this expression, the expression that is that of the state. According to you, this means that even if wrongful judgments, which are delivered by courts or actions taken by courts, violate the fundamental rights of a citizen of this country, the citizen has no remedy under the law. And you then talk about various issues, including the AFSPA, the Armed Forces Special Powers Act, you talk about the UAPA, the Unlawful Activities Prevention Act, and you also talk in your article about the right to speedy trial, how literally hundreds of thousands of people are not only being denied the speedy trial, which is part of the fundamental right to life, criminally charged politicians benefit from this whole tardy legal system, the poor suffer the most, the privileged are benefited, and you pick and choose those who you don't like and put them behind bars. And you forget, there are literally hundreds and thousands of ordinary citizens who are behind bars and they've already served the maximum outcome that they would have been eligible to under the offenses under which they have been charged. I mean, this is complete denial of justice. Your comments. See, this is the problem. You are again on the affecting basic areas, another basic area, or that is state. State means it doesn't mean provincial territory. State means the machinery that runs the government in entire country, that is called state. It includes center also. So public authority in a way, state means public authority. When public authority doesn't include a very, very substantive part of judiciary specifically, it is creating lots of problems. There are two kinds of judgments from the Supreme Court. In some of the judgments, they agreed that, no, you are a protector of the constitution. And if something goes wrong within the, by the order of a judicial institution, there must be some mechanism to correct it. But they say, there is mechanism. Because there is a review petition, there is a revision petition, and you can take a letter, patent appeal, and you can ultimately, you can also file a curative petition. There are so many remedies lined up available under the, not only under the constitution, not only under the civil procedure court, but generally by convention also, you have several remedies. And they are also calling back judgments sometimes. They're canceling the judgments. They're sometimes they're amending their own judgments. So what judiciary says is, we have a mechanism to deal with it. But if other state, other state that is executive or legislature, violates the constitutional frame. And if I can't hear, because of lack of availability of time and because of huge pregnancy, what will happen? So that authority, that area is dynamically creating a vacuum. And in that vacuum, justice is not achieved. And people are incarcerated as under trails, and people are enjoying the power as the decision is not finally coming out. This is the problem. Poor, uninfluential, resourceless, will be languishing in jails. And those who can have capacity to fight the cases up to Supreme Court, they'll simply use dilatory tactics and continue the power as chief ministers, ministers, and MPs and MLAs. This is the problem. So the delay in dispensation of justice is causing a serious problem, crisis, I can say, to the entire polity and entire political machinery of, first I was talking about citizenship machinery, citizenship resource, authority, and second administrative machinery. Sir, political machinery is also suffering. May I now move on to another subject? You have said, you're very strong language you used, you have said the right to life in this country has become an authority to kill. And you cite several examples. You talk about the rights of the victims of the pandemic, the COVID victims. You talked about migrant labor, laborers, crores of them. And here we have the Solicitor General of India quoting the Home Secretary of India, telling the Chief Justice of India, not a single migrant labor is on the hype. I mean, if there was a blatant lie that was uttered, it is this one. You're talking about how the armed forces in Nagaland ambushed ordinary citizens. You're talking about women being gang raped and the perpetrators getting away. Her body in Hatras, the Dalit woman, being cremated without the consent of the family. You were talking about the heat speech that took place in a recent gathering at Haridwar. And you also talk about how Union Minister, Union Minister of State's son, he drives a heavy vehicle into a procession of farmers and people are killed in the process. And it takes a lot of time before he's put behind bars. And you say in these cases, in this particular case, the Supreme Court has been compelled to perform the duties of a collector, a superintendent of police, the Home Minister and the Chief Minister. See, in a system, we have delegated authorities to different levels of officers and they are supposed to perform their duty. They take example of Haridwar. More than an isolated crime, it is assuming serious propositions. If somebody says some talk, no nonsense talk and it's provocative and it might result in violence, he is arrested, he will be arrested, something will happen and there is a possibility of control, but if a state machinery is silent about it and they talk openly that, okay, we'll go to jail. We know that it is, what we are doing is a crime. We'll go to jail and we'll come back and do it again and state doesn't do anything. What will happen? And it takes a long time for the local authorities to take action even after he utters, he uses language purely, it violates. I mean, it is the Supreme Court of this country. I mean, it is questioning the Supreme Court of this country and it's authority. In our country, according to criminal procedure court, investigating officer is supposed to be very powerful and independent. If he comes to know that a cognisable offence is being committed, he can on his own take action, but the situation is like sumoto on his own. No need to wait for a complaint. If he knows that a cognisable offence is being committed and violence is supposed to be escalated because of somebody's speech, he has to come into the field and take preventive steps. He should not allow crime to happen. When you know that crime is happening, you have a duty to prevent it. So prevention, forget about prevention. Crime is committed and action is delayed or denied. We do not know why it is being done. That means he's not independently acting. Then who's the next person to act independently is superintendent of police our district magistrate. Generally what happens, superintendent of police will not have judicial powers. Judicial powers and administrative powers, police powers are separated in our constitution and that separation is required because a gun holding powerful personality must be reviewed by the other person who is refusing. That is the second balance that we have got in our constitutional setup. Today you have created commissioner rates of police. The difference between police, superintendent and commissioner of police is superintendent of police is not having judicial executive magistrate powers. Whereas superintendent of police in the form of commissioner, police commissioner has executive magistral powers. That means they will also have quasi-judicial powers. And this is the most dangerous combination. It is something like joining the executive and judicial powers. It's a quasi-executive or completely executive, absolutely executive power and quasi-judicial power. You are not supposed to mix it. Article 50 of Indian constitution specifically says never mix executive with judiciary. Never mix article 50. The very, very important article 50. Those powers are clearly being separated. Immarchated. And you're mixing up. And nobody knows what the difference between SP and commissioner of police. And this is the difference. Now obviously then you have been connected to this subject that we're just talking about. You've talked about how article 23 is being violated every day and every night. And these pertain to third degree torture, extracting confessions under duress using third degree tactics, which my police persons against those who are in custody. And this is not just violating the constitution of this country. It is as many, many court orders by the Supreme Court having clearly violated. And you give an example how the Supreme Court of India had ordered that in every center of custody there should be a CCTV, a closed circuit television kind of set up to prevent torture. But it is one of the orders of the Supreme Court which hasn't been implemented yet. And article 21 says nobody should be prosecuted without there being a law declaring that the act is crime. But as you mentioned that third thousands of criminal cases registered and magistrates allowed them to be prosecuted. I mean the classic case you, heaven is the information technology act sector 6068 which was struck down by the Supreme Court of India as unconstitution, but it is still, it is still being quote unquote used, your views. 21, article 20. Article 20 is a very, very important article as far as criminal justice administration is concerned which we generally do not bother about it. What it says is unless there is a definition available for a crime and conduct that fits in that definition has been committed by a person. And unless a declared punishment is available in a criminal law, you can't take action against him. Now look at 6068 when Supreme Court has stuck it down it doesn't exist from the beginning. It is assumed that there is no such provision at any point of time. Ab initio, it is called ab initio. That means from the starting point of time when it was inserted in information technology act it is presumed to have been non-existent. That means what? There is no law to punish a person under 6068 which is struck down. And look at the thousands of cases it is a very clear example of violation of 21, 20 within brackets one, not 21, 20 within brackets one. That means article 20 is sub article one. It's a clear violation. Professor Sridhar, this is something very close to your heart because as the member of the CIC the Central Information Commission you had several occasions and we know how you were hounded out or among other things digging deep into trying to find out the educational qualifications of Prime Minister Narendra Modi. We know about the issues you took as far as the Reserve Bank of India wasn't exactly happy with what you did. But what we are seeing is the right to information act. It has been diluted. It has been attacked. Activists are, they have been killed. They have been physically intimidated. We are supposed to have a law for whistleblowers but the rules haven't been put together. Information even pertaining to say the PM cares fund is not being disclosed and the whole electoral bonds mechanism completely says so I mean the whole right to information act which was enacted if I'm not mistaken about more than 12 years ago or 13 years ago is today an act which has been so decimated and diluted that those who are in power and the people who have been appointed to administer this act, I mean they've made a mockery out of this law. If you remember you were talking about the lack of information about migrant labor with the government of India. They say there is no migrant labor at all and they don't have any information about the existence of migrant labor. It's a great information issue and because it's a great information issue it's a great administration issue and a great right to life issue also because when you don't know that migrant labor are existing and you don't do any measure you don't take up any measures for them and they go on to the roads and they die because there are no measures in front of the part of the government. So if administrator ignores information, ignores data, not only that he discloses it but he doesn't know, by himself he doesn't know. The administrator doesn't know and it will create lots of problems for the country's people right to life related issues. I'll give you one example. They have used RTI in two of the states in Andhra Pradesh and Telangana. They have used RTI to know what is the vacancy position in the commission and what is the burden of second appeals. And the figures were revealing, figures were revealing and the RTI activists simply took those figures based on the official document released by the, luckily released by the government about the existence of vacancies and the burden increasing, the dependency increased. High court has simply granted, given a direction to the government when are you appointing the commissioners? And when they hesitated, they say, and then we are going to impose a fine. And then they have to appoint commissioners. Look at the power of RTI. In spite of its diluted form, they could get some information and that some information has helped the people to get the information commission appointed. Okay. So that is the power of information. I showed you two examples where information is not available, administration collapsed, migrant labor. Information is available where machinery has been created to deal with. So this is the value of the information and it has to be, it has to be valued further and RTI has to be strengthened and weaknesses that were kept in are deliberately kept in should be removed. Then only a democratic setup will survive. Let's talk a little bit about freedom of expression. Article 19, 1A and Article 19, 2. We've seen how writers, journalists, students, social activists, all kinds of cases have been foisted on them. Some of them... Social media writers. Absolutely. Social media writers. Many years later, after a long and tortuous process, many of these cases are found to have been false. But the process is the punishment. The way the law of criminal defamation is being used or misused, let me put it this way. I myself have a victim in some more ways than one. You also talk about the penises issue, the right to privacy. And the parliament of this country continuing to dilly-dally on enacting, enact the protection of personal data. I mean, today we are having an environment which is completely not willing, which believes in... I mean, we just don't believe in freedom of expression. Pays lip service to it, but acts in exactly the opposite manner. And far from promoting transparency in public life is making it more and more opaque. Your views on this, sir. The reasonable restrictions, which are supposed to be reasonable, have been coached in ambiguous expression. The expression right is affected by ambiguous expressions used in the constitution. Our ambiguous expressions incorporated, deliberately added by amendments, various amendments. This is the reason. If you look, go deep into the problem, you will find one expression like public order. What do you mean by public order? How it has to be interpreted? A constable interprets public order. That a particular situation is disturbing the public order. So I'm going to take action. And that's what happened in Nagaland or Samaritans or all your, most of your fake encounters. They say because of the situation, crisis situation reacted, number one. Second, in exercise of private defense, we have acted. The police officers in armed forces are using self defense, section 100 of Indian Penal Code, which is available for all, including the police officers. I'm not denying that they don't have, I'm not saying that they don't have right to private defense, but right to private defense comes when it is proved that there is a killing, there is an attack. And then if after the attack is proved, the accused is given an opportunity to say that he did it in his self defense. But look at all the cases of false encounter, fake encounter and the issues like Nagaland. No murder cases booked. First of all, no cases booked against the persons involved in killing. I don't say murderers. I'll not use that expression. So the officers involved in the incident of incident, wherein some people were killed. I'm not even saying that they have killed. You are supposed to have resisted a case against them, but instead, do you know what police do? Police resisted the cases against the deceased persons, deceased in the encounter. And they say, because they were attempting to murder us in exercise of self defense, you're correct. So what this is the narration. The action is being taken not against the perpetrators of the crime, but the victims. Victims are narrated as culprits. And to save ourselves from the culprits, we were in a compelling situation. Okay, all that has to be proved. I'm not saying that every time it is not correct. I'm not saying that. But where is that you have to prove it? Should I simply accept your narration or should there be any mechanism to prove it? And only mechanism to prove it is trial. Will you get into trial? Nowhere. Nowhere you don't get into. Will you get into trial at all? Okay. So we are almost out of time. So I have only one question to ask you. Here is the government. Here is the prime minister telling the people how their duties are more important than their rights. We are also seeing the economy in a very bad state. And you're saying even under colonial rule, India was never as unequal as it is today. Access to social services, education, healthcare, you've had both in great detail and you talked about what article 39 says, is various sections about livelihood, about ownership and control of the material resources. You've talked about prevention of concentration of wealth and means of production. But we are actually seeing the way the country's economy has been functioning. It is working in just the opposite direction. And therefore we are today where we are. So I'd like you to elaborate a little bit about the lack of economic justice and please give us your concluding remarks about what ordinary citizens, what they need to do because their fundamental rights are being violated day in, day out by those who are in positions of power and authority and they are being lectured and they are being told how they should be very, very concerned about their duties. So far we were discussing how certain amendments and certain expressions used in legal documents like laws, statues, amendments, how they were misinterpreted. They were ambiguous, giving enormous power to the persons holding guns and powers. So far I explained that. Now, if you come to direct to principles of state policy you will find a situation where without amending the constitution without even thinking of amending the constitution we are getting certain decisions which are exactly opposite in direction of direct to principles of state policy. This is what is happening. Now, Prime Minister was talking about duties. I totally agree with him. Duties are important. That's a general statement and I'm fully in agreement with him. Then constitution talks about two kinds of duties. A set of duties for citizens and a set of duties for state. These duties of citizens are listed in the last part of direct to principles of state policy but a little before that you will find direct to principles of state policy and article 37 specifically says it shall be the duty of the state. It shall be the, the language is shall shall be the duty of the state to make laws in accordance with direct to principles of state policy. You read out 39. That means your law, your policy must be according to 39 but your policies, your laws are totally against 39. The constitution wanted state to prevent concentration of wealth in few hands and we are pursuing policies which will increase concentration of wealth in few hands. This is the one example I can give you that's blatant violation, blatant breach of duty of the state by the state which is supposed to be implemented according to direct to principles of state policy. Our governments, I'm not on political parties names our governments at the union. They think that they are supreme governments central governments and superior governments but they are governments of union. They are supposed to remember it. The union of what, union of states. Union means what you without, without imagining the existence of, without recognizing existence of states you can't imagine a union. And government of that union cannot take away the rights of the union, the states. Number one, government of that union cannot behave like a superior government. You are supposed to follow the duties listed out in direct to principles of state policy. So people should ask for it. People should use their expression right to demand implementation of direct to principles of state policy. People should question the policies and laws which are made against the principles of state policy. People should question policies. There are no laws to question but there are policies and people also should ask for strict adherence to lists, three lists, union lists, central lists, sorry, union lists, states lists and concurrent lists. They can't use the entries of state lists and make law at the central level, at the union level. Farmers' laws are examples of it. Agriculture is a state subject, clearly a state subject. And you can't make a law. You make law and there's one year agitation. Supreme Court stays there and you withdraw finally. So the constitutional principles are very good principles basically. You implement it up. That is the demand. So if you want people, citizens to adhere to their duties, my request is state also should adhere to its duties listed in direct to principles of state policy and every citizen should ask for it. And it is, if you ask for it, it is part of the duties prescribed and you're exercising them. You're not only exercising the freedom of speech and expression under 19 one year, but you're also raising scientific inquiry under fundamental duties. Thank you so much, Professor Sridhar for giving us your views and summarizing your thoughts on how the provisions, the principles, the basic values that are enshrined in the constitution of this country, values and principles that make all citizens of this country very proud. But these are the same values, the same principles, the same norms that are being violated day in, day out by those who are in positions of power and who are also weakening the federal structure of this nation. Thank you very much. Keep watching NewsClick. You've just heard Professor Sridhar Acharnu. He's Dean School of Law Mahindra University, Hyderabad Former Central Information Commissioner speaking about how the constitution of India, its provisions are being violated. Stay with us. Keep watching NewsClick. Subscribe to the channel. Thank you very much for being with us.