Jonah Patel
The Indian Constitution, which became effective on 26 January 1950, is considered to be under threat by several experts and politicians. The Constitution is under threat from the institutions that are expected to safeguard it, including the legislature, executive, and judiciary. The Narendra Modi government has been accused of introducing and passing legislation that negates the essence of the Constitution, undermining parliamentary processes, and attacking secularism and freedom of rights. There are also concerns about the independence of the judiciary and threats to journalists and freedom of speech. Protests from Indian farmers against newly introduced farm laws further highlight the perceived threats to the Constitution.
| Characteristics | Values |
|---|---|
| Secularism | Under threat by the BJP government, according to Bhushan and Rahul Gandhi |
| Freedom of speech | Under threat by the exponential rise in vigilante groups, according to Bhushan |
| Equity and justice | Flagrantly violated by the institutions of governance, according to Upendra Baxi |
| Independence of judiciary | Misused by the government for their personal interest |
| Freedom of the press | Under threat by the murder of journalists like Sujat Bukhari |
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What You'll Learn
The Modi government and BJP
The Indian Constitution, which is based on democratic principles, is under threat from the very institutions that are expected to safeguard it. The Narendra Modi government and the Bharatiya Janata Party (BJP) have been accused of capturing the country's legal system and rewriting history in their image.
The BJP has replaced Congress as India's party of welfarism. The Modi government has been criticised for passing a series of politically partisan government policies and contentious laws that have the potential to abuse civil liberties and human rights, violate freedom of expression, and target opposition forces. The intertwining of political agendas with academia and media, the suppression of dissent, and the undermining of judicial and legislative independence collectively pose significant risks to the democratic fabric of India. The Modi government has also been accused of normalising the brutal handling of protesters, with law enforcement agencies misusing existing laws to prevent most protest gatherings and increasingly using the provision of 'preventive detention' against protesters.
The BJP's introduction of a new criminal legal structure in India, which came into force in July 2024, has further solidified this claim. In Modi's version of India, law now exists on two parallel planes. While Constitutionally, India remains a secular democracy committed to the idea of social and political equality, Indian state law has become a site where majoritarian Hindutva ideologies have reshaped ideas of justice and belonging. The Modi government's near-complete takeover of constitutional institutions has resulted in a decline in India's freedom of expression and the protection of minority communities and vulnerable groups.
However, some argue that Modi is no danger to the Constitution. They claim that the amendments made during his time in office have brought stability and that he has a vested interest in the preservation of India's constitutional democracy and electoral system, which made his ascent to power possible. It is argued that an amendment made through due process is not a threat to the Constitution but rather strengthens it. During the past decade, the Constitution was amended eight times, all with the support of the Opposition parties.
The argument that Modi and the BJP pose a threat to the Constitution falls on two counts. Firstly, in the decade that the BJP has ruled the country, it has not harmed the Constitution and has been less prolific in amending it. Secondly, Modi has been a significant beneficiary of India's constitutional democracy and electoral system, suggesting that he has a vested interest in their preservation.
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Vigilante groups and state-sanctioned violence
Vigilantism in India, often targeting religious and ethnic minorities, has claimed the lives of many citizens in recent years. Cow protection groups have been responsible for much of this violence. Since beef is predominantly consumed by religious and ethnic minorities, strong statements by BJP leaders about the need to protect cows have enabled and, at times, incited communal violence.
The rise of Hindu nationalism in India has resulted in a surge in cow vigilante violence. Many vigilante groups feel "empowered" by the victory of the Hindu nationalist BJP in the 2014 election. Cow protection groups formed in Haryana in 2012 see themselves as "acting upon the mandate of the government". Scholar Radha Sarkar has stated that the bans on beef "tacitly legitimize vigilante activity."
The state's response to vigilantism often influences its prevalence. Pro-majoritarian governments may embolden vigilantes to respond to perceived offenses with violence, leading to a reduced fear of state sanctions. The government's perceived ideological leanings may also affect support for vigilantism. For instance, the Narendra Modi government has been accused of introducing and passing legislation that negates the essence of the Constitution, with mala fide intent.
The failure of India's central and state governments to protect minority communities from communal attacks by cow-protection vigilantes or take adequate steps to prosecute those responsible violates the rights to life, non-discrimination, equal protection of the law, and the right to pursue a livelihood. The government should not endorse or be complicit in using religious belief to advance discrimination against minority communities.
Correcting misinformation and rumours that precede anti-minority vigilantism can reduce support for vigilantism and increase the desire to hold vigilantes accountable.
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The independence of the judiciary
The Constitution of India provides for the separation of powers among the legislature, executive, and judiciary, ensuring each branch operates independently. This independence is further reinforced by immunities and privileges granted to judges, such as immunity from personal lawsuits for actions taken in their official capacity, which allows them to make decisions without fear of retribution. Additionally, the judiciary has financial autonomy to manage its budgetary needs, reducing the potential for external influence.
However, despite these constitutional safeguards, judicial independence in India faces several challenges. A report by the International Commission of Jurists (ICJ) highlights increasing executive interference, a lack of transparency in judicial appointments, and weak accountability mechanisms. The report also criticizes the Collegium system, which is meant to protect judicial independence, for lacking clear and transparent selection procedures and objective criteria for appointments.
Judges in India are appointed until the age of 65 for Supreme Court judges and 62 for High Court judges. They can only be removed through impeachment by Parliament, which helps protect their independence from political pressures. Nevertheless, judges who rule against powerful entities may face threats or physical harm, and their safety is a critical issue that needs attention.
To maintain the independence of the judiciary, it is essential to address these challenges and ensure that judicial appointments are transparent and based on merit. The judiciary must also remain vigilant against political pressures and uphold its duty to impartially interpret and protect the Constitution.
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Freedom of the press
The freedom of the press is a cornerstone of India's democracy, allowing journalists and media organisations to operate without censorship or government interference. However, this freedom has evolved over the years, and there are certain restrictions in place. For example, media bias or misleading information is restricted under certain constitutional amendments. Additionally, there are laws that can be used to restrict press freedom, such as defamation laws, sedition laws, and laws related to national security.
In recent years, India's ranking in terms of press freedom has slipped. In 2022, India ranked 150 out of 180 countries in the World Press Freedom Index, released by Reporters Without Borders. This decline has been attributed to several factors, including the killing of journalists, restrictions imposed on news media, censorship in Kashmir, and the ongoing conflict in Jammu and Kashmir.
The Indian press has faced challenges such as censorship, government pressure, threats of violence from extremist groups, and economic pressures. There have also been instances of government interference in the editorial independence of media outlets, with governments using advertising budgets to reward or punish certain media organisations. Journalists in India often face physical threats and violence, especially when reporting on sensitive issues like corruption or organised crime.
Despite these challenges, the vibrant and diverse Indian media landscape continues to play a critical role in upholding democratic values and holding those in power accountable. The press seeks to advance public interest by publishing facts and opinions, allowing citizens to make informed judgments.
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Secularism and minority rights
India is a secular state, and its constitution guarantees legal equality to all its citizens, regardless of their religious beliefs and practices. It also prohibits any kind of discrimination based on religion. The Indian Constitution, however, does not define the term "minority". Articles 29 and 30 refer to linguistic and religious minorities. The Central Government of India recognizes six religious communities as minorities: Muslims, Christians, Zoroastrians, Sikhs, Buddhists, and Jains.
The implementation of affirmative policies for religious minorities has been argued to favour one community over another, going against the secular ideology of the nation. This has resulted in the exclusion of religious minorities from the benefits of such policies. The varying interpretations of "secularism" have also created conflicts between minority rights and secular principles.
The United States Commission for International Religious Freedom (USCIRF) 2018 report designates India as a "Country of Particular Concern" due to the extent and nature of violations of religious freedoms that the government tolerates or promotes. The report attributes responsibility for anti-minority violence to Hindu nationalist organizations, including the governing Bharatiya Janata Party (BJP). These concerns are shared by other international organizations such as the United Nations, Amnesty International, and Human Rights Watch.
Prime Minister Narendra Modi has been accused of strengthening the executive branch of the government, undermining the autonomy of political institutions, and emboldening militant Hindu nationalist organizations. His government has been accused of ignoring and even instigating anti-minority violence, threatening minority rights and religious freedoms.
The Indian Constitution includes provisions that fuel anti-minority sentiment, such as anti-conversion and cow protection legislation. The expansion of executive power and the strengthening of affiliated civil society organizations with quasi-judicial functions have further contributed to the threat against minority rights.
Despite these challenges, India's secular nature paves the way for effective democracy. The Constitution safeguards the secular nature of the state, and the protection of minority rights is essential to maintaining this secularism.
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Frequently asked questions
Yes, according to various sources and experts, the Constitution of India is under threat. Institutions of governance are deliberately undermining the Constitution, violating equity and justice, and introducing legislation that contradicts the Constitution's essence.
The Constitution is under threat from the very institutions that are meant to safeguard it, including the legislature, executive, and judiciary. There is also a rise in vigilante groups attacking freedom of speech and the state using sedition laws to suppress dissent. The secular nature of the Constitution is at risk, with efforts to pass laws that reduce the rights of religious minorities and promote a Hindu nationalist agenda.
The consequences of these threats are far-reaching. The undermining of the Constitution puts democracy in peril. The failure to uphold the independence of the judiciary and the freedom of the press has led to injustices, such as the failure to protect migrant workers and the suppression of reporting on crimes like the Hathras case.
