As we celebrate ‘Azadi ka Amrit Mahotsav’ marking the 75th year of Indian independence, serious questions regarding constitutional order and morality underline the observances. At one level, these questions have been provoked by debates on democracy backsliding and rising majoritarianism in India. Global publications like Economist Intelligence Unit and Varieties of Democracy show a drastic decline in the quality of democracy. The Economist report shows India’s position deteriorated from 27 in 2015 to 53 in 2021. At a more quotidian level, news of lynching over food, imprisonment of activists, journalists, even comedians, the passage of laws without parliamentary deliberations, and religious polarisation has reinforced opinions about the subversion of the constitution. Such a grim prognosis is vehemently countered by the incumbent regime and its supporters, who argue that the Constitutional procedures and structure remain robust in India. They assert that the infractions reported in the media are efforts to undermine the regime, and nothing similar to the constitutional subversion under the National Emergency of 1975-1977 exists today. At the centre of the bitter and contested debate is the constitution that underpins democracy in India.
Constitution as a scaffold
The constitution of any country contains the fundamental laws, outlines the defining values and provides the institutional structure of governance. The Indian Constitution was adopted under difficult circumstances when the country faced intractable challenges. The immediate objectives were preserving national unity, realising the promises of the nationalist movement and overcoming pervasive deprivations and divisions. The most immediate and consequential divisions were between religious communities, particularly the Hindus and the Muslims, discords among caste groups, and disagreements between the centre and the periphery-based ethnic, cultural, and linguistic differences. The country also faced substantial challenges with widespread poverty, starvation, and disease worse than the war-devastated regions in Europe and Asia (Das, 1947; Archer, 1947).
The constitution sought to synthesise all these contradictions, underscoring the republic’s future. It provided the institutional scaffold of the state; the fundamental values of the republic assuring dignity, and sovereignty of the people; the strategies for the management of social conflicts; and an outline for the social revolution to eradicate inequality, ensure freedom and establish democracy (Panda, 1948; Ahmed, Kundu, and Peet, 2011).
Consequently, the Indian constitution adopted a distinct republican character with the principle of federalism, parliamentary democracy, separation of powers and fundamental rights to the people. The preamble to the constitution expressing the republic’s core values characterised India as a Sovereign Democratic Republic (Bhaskar, 2020). The Drafting Committee explicitly rejected suggestions for the inclusion of ‘in the name of God’ as it would amount to a compulsion of faith and resemble narrow sectarianism. Instead, the preamble proclaimed the people as the authority, the source of sovereignty for the constitution. The section emphasising justice, liberty and equality was included, highlighting the commitment to removing inequalities and discrimination, and correcting historical injustices. The provisions of justice, liberty, and equality were an enunciation of a free India and safeguards for the depressed classes as well as the minorities.
Institutionally, the constitution conceived the state as a federal republic with quasi-federal tendencies to ensure both representation of diverse communities as well as subdue secessionist fears. The peculiar division of the powers with the central government occupying a commanding position along with Constitutional safeguards for the states reflected the anxieties of the founding fathers about the superimposed democratic structure. They were unsure about the moral claims of the electoral majority and wanted to ensure a system that equalised majoritarian tendencies with the ethos of republicanism (Mahmood, 2022).
Evidently, the constitution of India was a radical document that enshrined the promises of the freedom movement, made a commitment to democratic and liberal ideals (Mehta, 2021) and pledged to the citizens the conditions necessary to transcend ascriptive identities, such as caste and religion to be part of a democratic, secular community (Patnaik 2013). It was the embodiment of the social and national revolution. It sought to bring about a social revolution to eradicate millennia of institutionalised inequality and place free and equal citizens as the sovereign in parliamentary democracy. Notably, the commitment to democracy, liberalism and social justice in the constitution was radical in the context of the partition of the country. While Pakistan foregrounded its religious identity, India let the legacy of the freedom movement define itself (Mehta 2021). To realise the vision of social and economic justice, India accepted state-led development to bring about balanced growth, with a degree of egalitarianism in the distribution of assets and incomes and alleviating existing inequalities (Mahmood, 2022).
The constitution in practice
During the last 75 years, India’s constitution has provided a stable foundation for the Indian republic. The longevity of the constitution is remarkable when compared globally as, on average, constitutions have an average lifespan of 17 years (Elkin, Ginsberg and Melton 2009). Despite some apparent limitations, the constitution has established a parliamentary democracy and constitutional morality. This is in no mean part due to fundamental values and the normative basis laid down by the constitution.
As a living document, the Indian constitution has undergone many changes and amendments over the years. To date, the Indian Constitution has undergone 105 amendments since its enactment and adoption in 1950. Without going into the details of every amendment, it can be said that most amendments have been procedural. Much of the early amendments were directed towards refining the state’s institutional framework, expanding the executive’s ambit, and furthering the cause advancement of socially backward classes. A substantial reform occurred with the 42nd Amendment Act that sought to expand executive and legislative power and removed the Fundamental Right to property.
A set of major reforms occurred in the 1990s, but it was not at a formal level. Economic liberalisation was a radical break in the constitutional vision as market principles of development were adopted, abandoning growth models with equity. In terms of formal constitutional amendments, there have been 40 constitutional amendments since 1991. Some of these amendments have been ostensibly towards deepening democracy, empowering citizens such as the 73rd and 74th amendment Acts establishing local self-government institutions, establishments of the National Commission for Scheduled Castes and Scheduled Tribes (65th amendment), Right to Education (86th amendment), reservation for Other Backward Class (OBCs) in government as well as private educational institutions. (93rd amendment). Clearly, the constitutional vision has evolved over time as the doctrine of economic justice has been relegated but social and political justice has remained firmly foregrounded.
Developments in recent years with the ascendence of the BJP have, however, put strains on the social and political justice enshrined in the constitution. Since 2014, formal amendments have sought to change the established constitutional settlement, such as the separation of power with the National Judicial Appointments Commission (nullified by the Supreme Court in 2015) that sought to change the process of judicial appointment; centre- state distribution of resources with Goods and Services Tax that has altered the fiscal structure (for the better); identification of new social categories for affirmative action such as Economically Weaker Section. What is evident is a shift in the federal dynamics and a new governmental logic of social mobilisation eschewing scheduled caste and tribe categories.
The constitution in ideas
The formal amendments to the Indian constitution in recent years are by no means radical. But the constitution is not only a book of laws; it encompasses some original essential spirit that shapes the lives of citizens. In this sense, the evaluation of any constitution should be in terms of its impact on the people’s lives.
It is in this regard that one can identify a concerted attack on the established values of India. The attack is led by Hindu nationalists who seek to convert India into an ethnoreligious democracy (Jaffrelot 2017). In ethnoreligious democracy, norms of multi-party elections and a semblance of liberal democracy, such as free media and independent judiciary, exist, but the ethnic majority (defined by religion, language or race) is recognised as dominant, and minorities are marginalised. Consequently, principles of Equality, Liberty, Justice and fraternity are undermined consciously and consistently.
Notably, the idea of secularism and inclusive citizenship was delimited through Citizenship Amendment Act in 2019, introducing religion as a criterion for citizenship. BJP-ruled states have passed laws such as ‘inter-community love marriage’ ostensibly to create hurdles in ‘inter-community love marriage’. The State of Jammu and Kashmir was trifurcated through the ‘J&K Reorganisation Act’ without debate or discussion. All these developments challenge the established constitutional principles of federalism, secularism, and minority rights.
Aside from these significant legal infractions, everyday violations of constitutional values in the form of harassment, arrests and prosecution of human rights defenders, activists, journalists, students, and others critical of the government have become regular. On the one hand, the government has used laws against cow slaughter and anti-conversion to target minorities; on the other hand, sedition and counter-terrorism laws have been used to target critics. Unsurprisingly India today ranks third among the most dangerous countries for journalists, after Mexico and Afghanistan, in a report by Reporters without Borders. The Modi government has cancelled the foreign contribution licenses of more than 20,000 NGOs, making them ineligible to receive foreign funding. The government has also used criminal defamation and even more diabolical colonial-era laws, such as sedition, to silence the media.
Oxford Don Tarunabh Khaitan characterises contemporary developments in India as Killing a Constitution with a Thousand Cuts (Khaitan 2020). Arguing from the perspective of Liberal doctrine, he contends that democratic constitutions have three primary mechanisms to ensure accountability and check the powers of the political executive; a) vertically, by demanding electoral accountability to the people; b) horizontally, by subjecting executive to the accountability of other state institutions like the judiciary; and c) diagonally, by requiring discursive accountability by the media, and civil society. Khaitan shows that the Modi government has sought to undermine all these three strands of executive accountability. The incremental assaults on democratic governance were typically justified by a combination of managerial rhetoric of efficiency and good governance and a divisive rhetoric of hyper-nationalism (Khaitan 2020).
Importantly, the mode of operation of the Bharatiya Janata Party government is subtle, indirect, incremental, and systemic, which makes it appear less pernicious than the assault on democracy during the Emergency in the 1970s. Undoubtedly the imposition of a national emergency between 1975-1977 was a dark period for Indian democracy when the rule of law was undermined through constitutional amendments, and executive actions threatened the lives and liberties of citizens. Objectively the decline in civil rights and liberties has been less spectacular compared to the period of national emergency, but it has been incremental and systemic.
Arvind Narrain considers the contemporary period as India’s Undeclared Emergency and cites numerous cases where intellectuals, students, and IPS officers have been arrested under stringent national security Acts (Narrain 2022). He documents the case histories of those arrested under the Bhima Koregaon “conspiracy” to show how the state conjures up a false narrative with the help of the “complicit media” to turn victims into perpetrators. The end result is that the process becomes a punishment for the dissenters. We cannot surely forget the injustice meted out to octogenarian social worker Father Stan Swamy by the Indian state, who had to appeal to the court for a straw and died in prison awaiting justice.
The subversion of democratic values of the constitution also takes place through institutional attenuation. The role of the Parliament in legislation and discussion has been progressively marginalised. A case in point is the amendment to the Foreign Contribution (Regulation) Act in 2016, which redefined a foreign company surreptitiously via clauses slipped into the Finance Act. The amendments legalised not only foreign funding of political parties but also created electoral bonds that ensured complete anonymity of donors to the party. The government has used the executive veto in the appointment of High Court and Supreme Court judges, and the executive–judiciary tussle has come out in the open. The much-maligned practice of using the office of the Governor to undermine the federal structure has made a comeback as obliging governors of Uttarakhand, and Arunachal Pradesh imposed Art 356, dismissing the opposition party government in 2016. In both cases, the Supreme Court intervened to restore the dismissed governments. The role of the Governors of Maharashtra, Karnataka and Goa are vivid in our memory to help the BJP form the governments in the state. The valid criticism of the subversion of the constitutional values by the BJP government must not, however, blind us to the use of a similar repertoire of control and domination by many other regimes across states.
Constitution and Power
In conclusion, it is imperative to mention that the subversion of constitutional vision by the executive and the extraordinary executive powers to curb dissent and media stem from the constitution itself. It is common knowledge that none of the fundamental rights of Indian citizens is sacrosanct and reasonable restrictions apply to all. It is a fact that liberalism was not a decisive value of the Indian constitution even though it was broadly liberal and democratic in nature ensuring property rights and civil and political freedoms. As Sudhir Krishnaswamy notes, liberalism was barely invoked in the constitution drafting process as an explanation or justification for constitutional choices made in the Constituent Assembly (Krishnaswamy 2019).
The Indian constitution, during its inception, was marked by a deep concern with national unity, anxious preoccupation with social issues such as poverty, illiteracy, and economic development, and an intense concern with India’s standing in the world (Chandra 2011). Chandra (2011) points to the tension in the constitution between the promise of collective freedom and national unity along with social upliftment that makes freedom conditional on an uncertain period of gestation. Freedom and rights could be restricted to bring about social and economic transformation towards improving citizens’ lives. The framers were convinced that liberty, equality and fraternity principles would promote democracy and ensure the nation’s unity. Liberty was contingent on equality and justice, and the state had an important role in mitigating the tensions between these values.
The centralising tone of the constitution, evident in India being described as a Union of States, a Union government exercising control over legislation/administration of States, reflected the anxieties of the founding fathers about the democratic experiment without adequate democratic ethos and structures. The constitution makers wanted to balance dominant interests and majoritarian tendencies in the various regions through a dominant centre marked by the ethos of republicanism. The constitution sought to ensure social reform reflected in political representation and public jobs for the marginalised, establish liberal democracy evident from the protection of the people from public power and recognise social and economic rights. But at the same time, it was very much part of a State building project.
Evidently, the constitutional settlement provides significant leverage to the state and, in turn, the executive. The judiciary has been essential in this process since the Keshavananda Bharati Verdict 1973, which requires another article to elaborate. Suffice it to say that executive powers in India have been constrained by the judiciary at times but faced with a strong executive, the judiciary has preferred stability over confrontation.
Finally, despite the centralising tendency evident in the various constitutional provisions and intrinsic potential for executive dominance, we cannot lose sight of the eclectic and liberal tenor of the constitution. The constitution, while reflecting the spirit of the nationalist movement, incorporated values and legal provisions from across the world. It was created to serve Indian needs, but cosmopolitan in nature and premised on universal principles of liberty, equality, and fraternity.
Thus, when the constitutional provisions are used to reinforce the powers of the state, create a vision of India that is ethnic, majoritarian and particularistic, when poverty, illiteracy and ill health remain unattended, and violence is perpetrated against Dalits, minorities, marginalised workers, and forest dwellers, it is the spirit of the constitution that is being contorted and corrupted. The attack is not in terms of the institutional structure or distribution of powers but in the values and principles that define India.