New India is exactly the same as old India. On May 27, two young girls go into the fields to relieve themselves. Their great-grandmothers probably did exactly this. What was true then is true today — men of a higher caste brutalised them as game and hanged them from the village tree, as a way to
leave an imprint of their power and impunity.
In 1950, with the adoption of India’s Constitution, new India made a promise to be unlike old India. The Constitution promised all citizens equal dignity, equal value of life, and an equal access to opportunities. The silent pact behind the adoption of the Constitution was that let’s keep your revolution and the need for revolution on hold, while we use this document as an enforceable promise to achieve our collective and individual dignities.
Despite the enormity of the events in the Badaun case, Uttar Pradesh chief minister Akhilesh Yadav, apparently a face of new India, reacted in the manner of an old India feudal overlord. He admonished the journalist who questioned him about the situation and the breakdown of law and order in the state. The apathy, inaction and disdain to his duty that the chief minister had displayed is clearly a violation of his constitutional obligations.
‘Public order’ and the ‘police’ are both areas within the domain of the state government, as per Schedule VII of the Constitution. Therefore, the legislation and resultant regulation of both these areas are within the domain of the chief minister’s government and not the one at the Centre.
Article 356 of the Constitution provides that when the President upon the report of either the governor or the state itself, is satisfied that a situation has arisen in which the government of that state cannot be carried on in accordance with the provisions of our Constitution, then President’s rule can be proclaimed. Article 356 stems from Article 355, which carves out the duty of the Union government to protect every state against external aggression and internal disturbance and to ensure that the government of every state is carried on in accordance with the provisions of the Constitution.
The Supreme Court in SR Bommai v Union of India in 1994 has considered the diverse situations that would qualify as constitutional breakdown. Justice K Ramaswamy listed four situations among others that would be relevant for our purpose. According to him, constitutional breakdown can be inferred from one, large-scale breakdown of law and order or public order situation, or two, gross mismanagement of affairs by a state government and three, corruption or abuse of power and finally four, subversion of the Constitution while professing to work under the Constitution or creating disunity or disaffection among the people to disintegrate democratic social fabrics. The applicability of these markers of constitutional breakdown must be tested in Uttar Pradesh.
The refusal of the government to act presumably given the caste composition of the accused and the fact that two of the accused are policemen — indicates an abuse of power. The fact that the sitting two-term MP from Badaun and the chief minister are from the same caste as are a majority of the accused, and both functionaries have not acted in a way that the Constitution demands, seriously impinges our democratic social fabric. It is now time that Prime Minister Narendra Modi ensures that our constitutional pact is not ruptured irreversibly. He must initiate the conversation as to whether the governance of Uttar Pradesh is being carried on in accordance with our Constitution.
(Menaka Guruswamy practises law in the Supreme Court of India. The views expressed by the author are personal.)
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