Sunday, 14 August, 2022
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Indian Constitution was bulldozed between Ram Navami & Hanuman Jayanti. It needs to be rescued

Modi govt has opted for an informal approach to abandoning the Constitution — trespassing its boundaries and making sure there is no one to enforce it.

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There are two ways of rewriting a constitution. You can take a formal route, as Indira Gandhi did, via the infamous 42nd Amendment, and mutilate the original Constitution. Or you can take an informal route, as preferred by the Narendra Modi government. You need not change the text, but simply abandon the Constitution altogether, trespass its sacred boundaries, repudiate its guarantees and make sure there is no one to enforce the original contract.

In many ways, the informal route is more effective. For an ordinary citizen, the Constitution is what the local thanedaar says it is. The text called the Constitution is relevant only if the station house officer (SHO) and the district magistrate (DM) — or the chief minister and the prime minister, for that matter — are expected and forced to abide by it. Otherwise, a shift in the thanedaar’s conduct is as good as an amendment to the Constitution. For the privileged few who can access courts, the judiciary’s failure to enforce constitutional provisions is as good as its abrogation.


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Between Ram Navami and Hanuman Jayanti

Let there be no ambiguity about it. What we have witnessed between Ram Navami (10 April) and Hanuman Jayanti (16 April) this year is a de facto repeal of the bedrock of the Constitution — its guarantee of equal citizenship. Other parts have already been annulled, redacted and distorted, or are in the process of being disfigured. The Constitution that came into force on the 26 January 1950 could soon turn into a rulebook that has no relation to the ground.

This is no rhetoric. The role of a written constitution in a constitutional democracy is not just that it lays down rules of governance. Dictators too need a rulebook for orderly governance. The sacred rulebook in a constitutional democracy is about constraining democratically elected governments. Democratic constitutions draw inviolable boundaries of spheres of influence: More than who does what, it specifies who cannot do what. Democratic constitutions do not simply provide for majority rule; they spell out what a majority cannot do. If a constitution does not constrain the rulers, it is no constitution at all. This is exactly what we are witnessing.

What happened across India during the week between Ram Navami and Hanuman Jayanti was no accident, local conflagration or mere hooliganism. There was a clear pattern and an unmistakable design to this ritual of humiliation. Step one: Organise a religious procession, with or without permission, armed with loud DJs, lathis, swords and possibly firearms. Step two: Take the procession through Muslim localities and ensure a stopover outside a mosque, with the acquiescence or collaboration of local police. Step three: Provoke, provoke and provoke. This could be a verbal provocation by way of hate-filled slogans, bigoted songs or direct action, by way of desecration of the sacred place or planting saffron flags, etc.

Muslims have only two choices: being bullied or bulldozed. If they put up with this public humiliation, they are cowards in their own eyes. If they retaliate, they are criminals to be swooped down on by the police that have been sleeping all this while. There is nowhere they can turn to.


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Violation of Constitutional order

Just consider the multiple violations of the Constitution that make this public ritual possible. “Hindustan me rehna hai to Jai Sri Ram kahna hoga”, the war cry of these organisations, is a direct denial of the Right to Freedom of Religion. More than that, the State’s failure to protect the minority community against orchestrated attacks is a denial of the Protection of Life and Personal Liberty guaranteed under Article 21. While self-styled representatives of the majority community violate all legal restrictions on hate speech and incitement to violence, others dare not even think about it. This is a plain annulment of the Right to Equality and the constitutional prohibition of discrimination on grounds of religion.

Cutting across all these violations is a fundamental division between two classes of citizens: Hindus and non-Hindus. First-class citizens enjoy constitutional protections and rights, if not impunity. Second-class citizens may enjoy some of these protections but only if the government and the majority so desire. This is as deep a stab into the heart of the Constitution as one can imagine.

This latest violation comes on top of a series of contraventions that we have witnessed, especially since 2019. The state of Jammu and Kashmir was split without the constitutionally-mandated reference to the state assembly (Article 3). Since the Supreme Court has shown no willingness to hear this case and enforce the Constitution, we can only assume that some key provisions in Part I of the Constitution stand annulled. The Citizenship Amendment Act 2019, not reviewed so far by the Supreme Court, has already struck a blow at Part II of the Constitution. Part III, which provides for Fundamental Rights, has too many holes to recount. Equality before Law (Article 14), Freedom of Expression (Article 19), Protection from Conviction for Offences (Article 20), Freedom of conscience and free profession, practice and propagation of religion (Article 25) and Remedies for Enforcement of Rights (Article 32) are all de facto suspended or scrapped. The State’s duty to reign in economic inequalities and concentration of wealth (Article 38(2) and 39 (c)) has always been a bit of a joke and now is a complete farce. It seems that new unsaid insertions have taken place in the Fundamental Duties (Article 51A): a duty not to dissent.

Not to put too fine a point on it: The Constitution is being stabbed to death, every day, on the streets. For all practical purposes, the citizens, especially those who belong to the religious minorities, are living under a new arrangement. The republic that Babasaheb’s Constitution gave birth to is all but over.


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Can we save the Indian republic?

Is there a way out? Can the Constitution still be defended? Can the republic be reclaimed?

Yes, but this is not going to be easy. The Constitution was a grand arrangement built on the edifice of an ideological consensus forged by our freedom struggle and a political equilibrium sustained by the rainbow coalition of the Congress party. Both these pillars are on the verge of collapse. Our Constitution is meant to be a self-sustaining arrangement, with the judiciary in charge of enforcing it.

Over the last few years, we have learnt a hard lesson about the fragility of this arrangement. We now know that the highest level of the judiciary cannot resist pressure from the all-powerful government, nor is it immune from the new ideology that seeks to undermine the Constitution. In the last instance, the Constitution cannot be rescued unless there is a realignment of power, rebuilding of the social coalition and re-articulation of the constitutional values. Ultimately, the Constitution cannot defend itself. There are no internal or external guarantees that can save it. The public must be mobilised to defend the republic.

The last few days have been a grim reminder that the time is running out for the defenders of the republic.

Yogendra Yadav is among the founders of Jai Kisan Andolan and Swaraj India. He tweets @_YogendraYadav. Views are personal.

(Edited by Srinjoy Dey)

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