History will not judge us by our highways, but how well we preserve the Constitutional idea of India: Justice Gautam Patel

On the occasion of Constitution Day 2021, Justice Gautam Patel of the Bombay High Court reminded citizens that history will not judge us by highways, bridges or statues, but by how well we preserved the Constitutional idea of India and saved it from being undermined..Justice Patel was speaking at The Leaflet's Constitution Day talk titled Undermining the idea of India: Which way forward?.The judge drew attention to the linkage between freedoms and liberties found in Part III of the Constitution and the power to affect a particular government’s term of office. He stressed that this power to make electoral decisions requires safeguards and guarantees of liberty.“If we merely have the freedom to choose without the right to act on that freedom, then the freedom of choice is an empty promise. To put it even more bluntly, perhaps in a phrasing no government would like, the right to choose one’s own government is an express recognition of the right to disagree with the present government. It is the right to dissent, but it goes further.”.Noting that the power of this choice makes governments anxious, he drew attention to self-preservation strategies adopted by them in the face of the unsettling and uncomfortable unpredictability of results. The first strategy, he pointed out was one of criminalising dissent and disagreement altogether.“This takes many forms, the deployment of harsh criminal and anti-terror statutes beyond their allowed purpose and, where it still exists, the invocation of sedition law. The latter has been much criticised.”.The second approach he spoke of was one where ordinary laws, such as taxation laws, were weaponised and used to muzzle disagreement, dissent and to ensure that contrary voices remain unheard.“Withstanding or confronting these attempts demands great resilience and yes, a formidable financial and legal arsenal.”.The third, and very effective, tactic the judge took note of was one where disagreement, opposition and dissent are trivialised altogether even when it takes a widely visible form. He observed that when protestors are portrayed as being part of a lunatic fringe or causing unnecessary discomfort to people’s daily routines, it becomes easy to marginalise them and divert attention away from the substance of their disputes..Justice Patel found that the cause is further harmed when those who support the dissenters and protesters get it wrong on facts, law or both. In relation to this, he took an example of a journalist who criticised the controversial farm laws.“He wrote a piece critiquing the bills and led with what he considered its most shocking provision - the bar of jurisdiction of civil courts. He conveyed that this was an egregious statutory provision that did not exist in any other law. As any law student will tell you, it is not, and such provisions have received judicial interpretations for over 50 years. It is this kind of wrong headedness that feeds neatly into all attempts at marginalising dissent.”.Finally, the High Court judge noted another step to self-preservation where an entirely faux nationalism, based on religion or ethnicity, is promoted for a purpose never intended by our Constitution..Justice Gautam Patel ended his address by saying that the text of the Indian Constitution does not contemplate anything as “too much dissent”.“In the constitutional scheme of things, there is simply no such thing as too much noise or too much dissent. If there is one thing the Constitution does not contemplate, it is the comfort of conformity or the tranquillity of the familiar.”