India's constitution isn't saving it from Narendra Modi's assault on rights

A couple of winters ago, I was asked to take part in a public debate in Delhi entitled: “Is India a ‘rule of law society?’” I made the case that India was not, contrary to its self-image, a rule- or law-based society. I was supported by a young scholar from a national law school. Our foes were formidable: establishment intellectuals close to the Narendra Modi government, one a Supreme Court lawyer, another a journalist turned parliamentarian. This David versus Goliath debate was refereed by a television celebrity presenter. At the end of 90 minutes, the argument was decided by a popular vote: my side won the big crowded hall overwhelmingly. The schoolgirl debater in me was thrilled. 

But a deeper disappointment soon overwhelmed me. The voting audience were all stakeholders in the Indian legal order: lawyers, policymakers, the odd politician and law students. The venue was the venerable Constitution Club of India. If those responsible for upholding the law did not believe in its efficacy, then what really is the status of Indian law or its constitution? 

Since its inception in 1950, the Indian constitution has been celebrated in academic and popular books alike. The political scientist Madhav Khosla’s pithy new book is the latest—and one of the more eloquent—of such celebrations. India’s Founding Moment repeatedly salutes its special status—a status that reinforces India’s international image as a tolerant, working, mass democracy. This special image of India, as the anthropologist Arjun Appadurai recently pointed out, is hard to shake off despite the overwhelming facts to the contrary—especially the nation’s corrupt, compromised judiciary and criminalised legislative sphere. This has always been true but there are special dangers with this sectarian government. Modi himself benefits from this obsolete image even as the vaunted constitution does nothing to thwart his authoritarian, Hindu-nationalist agenda. So the timing of Khosla’s celebratory book is jarring to say the least. 

In late 2019, within six months of being installed as prime minister for a second term with a resounding mandate, Modi overturned longstanding legal principles and paved the constitutional path for India—for centuries a multi-faith society—to become a nation defined by Hinduism. He started with the abrogation of the special status of Muslim-majority Kashmir in August 2019. Since its contested incorporation into the union of India, Kashmir had been administered under a different dispensation from other Indian states, as enshrined in article 370 of the constitution—now abolished. In the autumn, the Supreme Court sanctioned the erection of a Hindu temple dedicated to Lord Ram at the site of the 16th-century Babri mosque in Ayodhya, which was violently torn down by Hindu nationalist mobs nearly 20 years ago. 

By December, a new statute—blatantly anti-Muslim in character—allowed fast-tracked citizenship for Hindu, Christian and Sikh minorities from India’s Islamic neighbours. This Citizenship Amendment Act (CAA), together with the new National Register of Citizens (NRC) that will ask every Indian to prove their citizenship credentials, has enshrined religious discrimination at the heart of the Indian state. 

The Act triggered visible nationwide street protests by a wide coalition, which included India’s low castes, civil society activists and students as well as Muslims. These protests, which remained leaderless, tellingly made the Indian constitution their icon: large groups were filmed chanting from its preamble in clips that were shared widely online. Even in its current crisis, the symbolic power of the constitution remains high. 

The relationship between Indian democracy and its constitution is paradoxical. India’s founding fathers deliberated for nearly three years before finalising a flexible constitution. The hope was that flexibility would allow for democratic change to be reflected in the law. But with over 100 amendments made to date, the constitution has become subservient to partisan majorities of the day: there is nothing to ground the ground rules. From the preamble that declares India as a “sovereign, democratic, secular and socialist republic” to the re-organisation of provincial state boundaries to issues of taxation and now citizenship, every aspect of it has been changed over the years. The idea that the constitution and public law more generally ought to be entrenched against the vagaries of electoral swings never acquired a force, let alone an institutional reality. It is the longest constitution in the world with approximately 150,000 words (the original version of the US constitution was 4,500) but in some senses also the least consequential, because much of it can be rewritten by a simple majority in the legislature. For example, a short parliamentary session with little deliberation introduced the CAA in December. There is no protection against brute majorities, democracy being effectively equated with winning an election—which is dangerous in this populist moment. 

[su_pullquote]“The Citizenship Amendment Act has enshrined religious discrimination at the heart of the Indian state”[/su_pullquote]

This flexibility might sound familiar to British readers, but centuries of precedent regarding parliamentary privilege and the independence of the courts created a more balanced political culture, even before innovations such as the Human Rights Act. By contrast, India’s “rewritable” constitution has stripped the nation’s capacity to reproduce enduring legal norms. But it has also—ironically—given enormous powers to the Indian Supreme Court. It is not just that constitutional changes require interpretation, but also the centrality of “recognition” at the heart of Indian politics—witness the increasing number of social groups seeking special status for positive discrimination. The terrain is divisive, legislation is politically risky, and so the buck gets passed to judges. The court and judges have thus increasingly arrogated to themselves the power to make the law. But the corruption and political embroilment of India’s judiciary is as transparent as it is complete. 

The constitution was certainly ambitious in enshrining equality, social justice and liberty as fundamental principles, alongside the zealous pursuit of sovereignty. Khosla highlights the generosity and grandness of vision of India’s founders. The book cites universal adult suffrage as the main evidence for India’s democracy—a “surprising” outcome, he argues, in a largely illiterate society. India’s nationalist elite, Khosla writes, “shared the sense” with their outgoing colonial masters that “the people had to be educated. But the British had offered the wrong remedy, for the path to education lay not in the deferment of freedom and the imposition of foreign rule. Instead it lay in the very creation of a self-sustaining democratic politics.” 

The Indian constitution, the book argues, overturned the imperial mindset that regarded Indians as unfit for self-rule. The British had locked India in the so-called waiting room of history, as they sought to excuse postponing the nation’s independence. Most self-respecting nationalists, regardless of their exact orientation, could appreciate that it would take an ideological revolution to throw open the door to national sovereignty. 

[su_pullquote]“The constitution sought to neuter the potent spirit of protest that the Mahatma had tapped to free the nation”[/su_pullquote]

And thus it was that the constitution enshrined the individual as the bearer of rights. This challenged a longstanding assumption that India was merely a scaled-up village republic and—more radically—made caste discrimination illegal. At the same time, caste-based positive discrimination or “reservations,” as they are called in India, became the centrepiece of India’s social justice programme. The Indian constitution also overturned communal representation, abandoning colonial-era separate Hindu and Muslim electorates. 

In practice, however, this bold constitution eventually proved to be an inadequate protection for minorities. The country is now on the precipice of abandoning fundamental principles, especially in the direction of religious discrimination and upending equality of citizenship. This radical revision is dispiriting, but it is democratic, in the narrow sense that it has been vindicated at the ballot box.

To understand Indian democracy, we need to look away from the constitution’s hoary origin myths. Anti-colonial mobilisations led by Gandhi and others laid its foundations. Arguably, democracy was the only way to hold the diverse, vast and unequal body of independent India into a unified sovereign entity. The exorbitant length of the constitution then is a testament to the compromises entailed. Noble aims such as economic equality and the right to work were incorporated as “Directive Principles” meant to guide future legislation. Such worthy ideals, though, have never had any serious bite. 

In addition, the constitution sought to neuter the potent spirit of protest that the Mahatma had tapped to free the nation. The retention of colonial-era sedition emergency laws was not merely a colonial hangover the founders were too lazy to leave out. 

On the contrary, the decision to include and indeed amplify such laws was the result of deliberate policy. The guilty parties include the Dalit (or “untouchable”) leader BR Ambedkar and Sardar Patel—the strongman architect of independent India’s political structure and unity—but their role receives no attention from Khosla here, causing him to miss the decidedly mixed legacy of the constitution. 

The infamous law of sedition was retained because Ambedkar and Patel were acutely attuned to India’s potential political future. Civil disobedience, the hallmark of Gandhian politics, had rested on the principle of peaceful law-breaking. As ardent practitioners of satyagraha, India’s founding fathers were acutely aware of its powers. Little wonder, then, that on taking control, Patel and India’s first prime minister Jawaharlal Nehru sought to put down strikes and other protests from 1947 on.

The likes of Khosla argue that the founding constitutional ideas were brilliant, innovative and even brave, and that it is their implementation, or indeed the democratic whims of the Indians themselves, that fail to live up to the ideals. Khosla concludes by warning the reader that the greater enemy of freedom is not “extremism” but “cynicism.” What he takes to be cynicism, others would regard as critical thought. 

To view Indian democracy solely through the lens of the constitution is profoundly misleading. The mutual suspicion of law or the state and politics is the most enduring legacy of anti-imperial mass nationalism. In independent India, the law has retroactively been forced to play catch-up with political change. The example of positive discrimination is instructive. The 1950 constitution had set aside a 25 per cent quota for India’s historically deprived low castes in various jobs, educational and other public institutions. By 1990, due to democratic pressure that flowed through several parties dedicated to lower castes, the quota limit was legally raised to 50 per cent, thus creating the world’s largest programme of positive discrimination.

Law and democracy in India are parallel entities, each moving through time with different bouts of change and stasis—and each with a profound potential antagonism towards the other. It is thus no surprise that having been mobilised for at least 20 years, both violently and through the ballot box, Hindu nationalism is subsuming the law. Modi’s government wants to legalise such Hindutva. It is on this path because Indian democracy has overwhelmed its constitution.

 

India’s Founding Moment: The Constitution of a Most Surprising Democracy by Madhav Khosla (Harvard University Press, £36.95)