We should not go back to being ruled from being governed because of the benefits of technology: Devashish Bharuka

The journey from being ruled by the British - and the kings and emperors before them - to being governed in independent India has not been a simple one..Senior Advocate Devashish Bharuka, in his book titled The Indian Makeover: From Being Ruled to Governed - conceptualised by his father, former Karnataka High Court judge Justice GC Bharuka - attempts to distil this crucial period of Indian history into a more accessible package..Bharuka takes the complex journey of "constitutional movements," as Attorney General for India N Venkataramani puts it in the foreword, boils it down to the essentials, arranges it chronologically and eliminates much of the legalese.In conversation with Bar & Bench's Giti Pratap, Bharuka speaks about his book, the wisdom of the Constitution makers, the future of governance in India, the Indian mindset and more..Giti Pratap (GP): Tell us a little about yourself..Devashish Bharuka (DB): I did my law in 2000 from the Bangalore University law college. After that, I went on to do a Master's in law from Harvard University, and since July 2001, I have been practicing law in the Supreme Court of India. I was an Advocate-on-Record since 2006 and on January 19 this year, I was designated as a Senior Advocate. Apart from whatever professional work I do, I always had a strong inclination for writing. This is the most recent publication, which my father started. He unfortunately couldn't finish it, so I started to take it up. It took a couple of years to sit down and work on it, because of the extensive research that had to go into it. I had to understand how it began and the thought process behind it..GP: What prompted your father, the late Justice Bharuka, to begin writing this book?.DB: My father was a commercial and constitutional law expert when he started his practice in 1968 at the Patna High Court. He became a Senior Advocate in the 80s, and a High Court judge in 1990. He always imported constitutional principles even in his commercial law practice. That is something a lot of senior lawyers keep telling me. He strongly believed in this document of governance and he always believed, even when he became a judge and eventually retired as Acting Chief Justice of he Karnataka High Court, that the Constitution is one that ought to be understood in simple words by the citizens. Not everybody would read the document itself because of the legalese etc. He wanted to put it into simpler words, so he decided to write a book that people can read. It is of course good for law students and lawyers, but at the same time, he wanted to put it in a way that even a common man who is interested to know about this document would be able to read and understand it. .GP: Could you define being "ruled" and being "governed" in the context of the book?.DB: Let's put it this way. Whatever was there before independence - right from the ancient times, the Mughal era, and the British times - was about a gentleman who would rule over the masses and would not have any accountability as opposed to the governance system under the constitutional regime, where accountability is important. That is why the members of the Constituent Assembly made sure that there was some kind of transparency and accountability involved in those governing the masses. People of the country would elect them, so that's why the democracy principle was adopted. And thereafter whatever they do, they would have to do within a certain norm which the Constitution provides. Nobody can act beyond that. There is no institution of governance which is beyond the Constitution. Nobody can say that they have a sovereign power or an inherent power over and above this document. That is the difference between being ruled and governed..One can think that they have the capacity to rule over the masses because of the seat they sit on, or maybe because of their birth into a certain family. Governance says you are to be governed within certain structures and norms and, most importantly, in case you cross those lines, there will be an institution - in this case the judiciary - to bring you back within the norms. .GP: In the process of researching and writing this book, what are the main trends you noticed in India's journey from being ruled to being governed?.DB: When I was going through the Constituent Assembly debates, I realised - and this is really opposed to the idea in that book The Colonial Constitution (by Arghya Sengupta) - that the ideas in our Constitution were picked up from various constitutions; the makers were extremely well-read; they knew what kind of revolutions had happened across the world; what happened in India; and what are the legal requirements of the masses in India. They took the principles of those different constitutions to see how they could be imported into the Indian context and then moulded the provisions of the Indian Constitution in a manner that it can sustain over the decades to come. If you start right from the beginning, Article 1 of the Constitution - "India, that is Bharat, shall be a Union of States". That single Article went through over 50 pages of detailed discussion; why it is India, why is it a Union and doesn't have the federal structure like the United States, etc.A very interesting story that has been crafted into the book is about the princely states. When the princely states had to be merged into the Indian system, there was a give-and-take, because these states were sovereigns in themselves with their own revenue system. So what was offered to them to get them into the fold was the privy purse. The privy purse provision was debated intensely. But Sardar Patel stood up said that the give-and-take is extremely critical to get the states on board so as to ensure the sovereign integrity of the country as a whole. The learned Attorney General called it "constitutional movements" because of how the Government of India Act, 1935 was picked up, to how it was then discussed in terms of requirement and how constitutional principles are evolving in other countries across the world and finally how the entire movement merged into this document of governance. .GP: What role has the judiciary played over time in these constitutional movements?.DB: Lets take the example of Article 21. It is the skeleton that the Constitution makers offered to us and the judiciary has been responsible for putting in blood and flesh depending upon the social context of the time. As situations developed and whenever the demands from the masses came in terms of certain disputes before the courts, the judiciary interpreted the provisions of the Constitution keeping in mind the vision of the Constitution makers. As they say, it is a living document. When you call it a living document, you have to breathe in life afresh everytime a new situation arises. So as every new situation arose, they kept breathing in life to that very provision which otherwise wouldn't look like the right to life now. It was earlier just in terms of liberty. Then once PILs came, they interpreted it so that we had right to food, right to shelter, right to environment and now more recently, the right to privacy. .GP: Towards the end of the book, you touch on some concerns regarding the impact of social media and technology on governance going forward. Could you please elaborate?.DB: E-governance has come in a big away and social media is here to stay. E-services are there for the benefit of citizens. But to what extent can one go deeper into somebody's life? I think Justice Subbarao said once, 'my house is my castle and I don't want people to be peeping in'. Similarly, there are concerns around the right to privacy on the internet and how one might be able to misuse data.Another concern is about data protection. There is always a discussion and narrative going on about Aadhaar. Aadhaar, of course, has been responsible hugely for the purposes of giving benefits directly to the citizens like the social security number in the USA. But at the same time, to what extent are the biometrics and other data protected in the governance regime?The third concern is something I experienced personally during my practice in Karnataka during COVID-19 - the digital divide. The government at the time banned online classes citing the digital divide. The then Karnataka High Court Chief Justice noted that instead of the government trying to bridge the divide, it has gone the other way and banned it.My father, it so happens, was the pioneer of introducing computers to the Indian judiciary. In 1980, when he became a judge of the Patna High Court, he introduced computers to the Court. When he was transferred to Karnataka, he introduced computerisation again. After his retirement, the first chairman of the e-committee was my father. .GP: One of the quotes that stood out towards the end of the book is "Freedom from colonial rule ought not in less than a century, turn into slavery under digital governance...".DB: Yes, you're right. The colonial rule was only the physical part as opposed to slavery under digital governance, where you are being completely controlled by the system itself. Whatever we want to do, big brother is watching and he has all the control over all the data. So the idea is that we should not go back to being ruled from being governed because of the benefits of technology. .GP: What role do you see courts playing in the future to protect India's makeover from being ruled to being governed..Bharuka: Courts and judges would have to be alive to the possibility of governments having their own role or purposes.Actually this reminds me of a book, Supreme Court in Quest of Identity by Gobinda Dass, in which he showed that when there is a majority rule, the government is likely to have an upper hand over the courts as opposed to when there is a coalition government. If you remember, PILs started coming in great numbers when the coalition government started. When there is a majority rule of the government, courts have to be more alive to the the fact that it is easier for the government to trample on fundamental rights of citizens when the government feels it has the upper hand, even though it's the same citizens who voted them into power. That thin line between governance and rule has to be protected by the courts. .Only courts can inspire hope and confidence in the citizens that they are still being governed, that there is a a Constitution which protects us, that there is no other institution that is above the Constitution. So long as the courts are upholding the Constitution, citizens can feel comfortable and safe enough. .GP: At the beginning of the book, you speak of the Indian mindset of bowing down to a single-person authority. Do you think it has changed?.DB: It cannot be denied that we still do believe in some kind of a single person and we do get swayed, and it is not just in India. We see it all across the world and across all democracies. When there is a strong leader, one tends to get influenced by that personality. In Indian democracy, we have seen certain specific leaders who influence the people more. The approach of that comment in the book is that we were in a situation where all through, we were being led by the Rajas or kings or individual rulers and overnight, all of that changed. The Constitution makers and people like them were very few in the country. Most people were in rural areas so the mindset in general was that there would always be at least one person who is at the helm of affairs. So there was a question of whether the citizens understand the power of the right to vote that they have been given or are they just following one single person instead of the philosophy or development agenda of the party. .GP: Any final comments on the book?.DB: I believe this book offers an understanding of how we have progressed over the years. There is a lot of material scattered all over, so this was an attempt to put it all in one place so that readers are able to understand what a beautiful system the Constitution makers have offered us after such extremely heavy work and intense debates. We, as citizens, are also responsible for ensuring that we sustain this system and uphold this phenomenal document of governance. We need to understand this document, we need to respect it and we need to uphold its values.