In one of the biggest tests for global democracy, 40 countries, including India, will hold elections this year. The predictions are grim. In India, general elections will follow the consecration of the Ram temple on January 22 and Republic Day celebrations on January 26.
The Constitution of India was adopted on January 26, 1950, which means that the country will complete 74 years as a republic this year.
But what is the soul of the Constitution? It is constitutionalism, the idea that a government can and should be legally limited in its powers and that its authority or legitimacy depends on observing these limitations.
The second aspect of constitutionalism is to declare and safeguard the natural or fundamental rights of the citizen. The apparatus of the state and the government is carefully designed to safeguard the natural rights of the individual.
But as American political scientist Charles Howard McIlwain pointed out decades ago in his Constitutionalism: Ancient and Modern, perhaps never before in its long history has the principle of constitutionalism been as questioned as it is today, never has the attack upon it been as determined or threatening as it now is.
From the liberal perspective, upholding the rights and dignity of individuals is the ultimate aim of a constitution and the government is merely a means to achieve this. Thus, a constitution devoid of the spirit of constitutionalism is reduced to a shell – empty, hollow.
Constitutionalism and state legitimacy
In Constitutional and Administrative Law, legal academic Hilaire Barnett writes that constitutionalism has four major components. The first is the doctrine of intra vires, according to which those who exercise governmental power are accountable to law. The second principle stipulates that the exercise of power – irrespective of legal authority – must respect the rights of the individual and citizens.
The third principle provides that the powers conferred upon state institutions – whether legislative, executive, or judicial – are sufficiently dispersed to avoid the abuse of power. The final principle is that the government in formulating policy, and the legislature in legitimating that policy, are accountable to the electorate on whose trust power is held.
These cardinal principles of constitutionalism are being and systematically undermined in India. The rule of law has been selectively ignored, the power structure has become increasingly oligarchic and individual freedoms are muzzled. What is touted by the ruling Bharatiya Janata Party as India’s “amrit kaal”, or an era of nectar, has sounded the death knell for constitutionalism.
Thomas Paine, one of the founding fathers of the United States, said in the Rights of Man that a constitution is not the act of a government, but of a people constituting a government. “A government without a constitution is power without right,” he wrote.
The constitution is antecedent to a government – meaning, that it has existed before the government, he said. “A government is only the creature of a constitution,” wrote Paine. By undermining the spirit of constitutionalism, as has been happening in India, the government is diluting its legitimacy.
Protective shell
The system of government was established to protect the citizen from the harms of the state of nature – and the constitution was framed to safeguard the citizen from possible governmental overreach. Constitutionalism serves as a protective shell for the ordinary citizen from a power-hungry state.
A fragile balance exists today between the procedure of law and the process of force. Constitutionalism is a universal heritage that belongs to all humanity. But in today’s India, brute majoritarian power is suffocating the spirit of constitutionalism.
The writer of India’s Constitution, BR Ambedkar, had said that there was nothing to be ashamed of in borrowing the principles of the constitution from the West. “It involves no plagiarism,” said Ambedkar. “Nobody holds any patent rights in the fundamental ideas of a Constitution”.
On Republic Day, what can be made of India’s constitutionalist legacy?
Unconstitutional state of affairs
Of the many violations of constitutionalism in India, “bulldozer justice” is perhaps the most egregious of all. Since 2022, BJP-ruled state governments have resorted to the selective and vindictive demolition of the homes of those branded as guilty – without trial – often on falsified charges.
For instance, an 18-year-old Muslim man in Ujjain in Madhya Pradesh was granted bail on January 18, five months after he was arrested for allegedly “spitting” on a Hindu procession. The complainant and witness in the case refuted their statements before the court. But his father’s home had already been demolished in July 2023, two days after the accusations were made.
The Indian Supreme Court has reiterated that the human right to shelter is a fundamental right emanating from the right to life, guaranteed by Article 21 of the Constitution. In the 1996 case of Chameli Singh and Others vs State of Uttar Pradesh, which pertained to land acquisition, the Supreme Court declared that shelter for a human being is not a mere protection of his life and limb. “It is home where he has opportunities to grow physically, intellectually, and spiritually.”
In a 1604 ruling, English jurist Edward Coke had declared in a ruling known as Semayne’s Case that a person’s house is their castle and fortress as well as defence from injury and violence. But this most vital natural right is being brazenly violated in India.
The homes of the accused, hours after of communal flare-ups, are deemed “illegal” or “unauthorised” constructions by municipal authorities and then demolished with little to no warning or chance to appeal such orders. This kangaroo court procedure is a gross violation of fundamental rights. It has resulted in an unconstitutional state of affairs that would, in ordinary circumstances, have prompted a response from the judiciary or other institutions that serve as the fourth pillar of democracy – such as the media.
But there has only been silence.
Similarly, federalism, a vital aspect of constitutionalism to prevent the concentration of power, has been nullified in India. Other powerful state institutions, such as the Election Commission and the Central Information Commission, have been hollowed out while Parliament has been reduced to an ornamental institution for mechanical law-making.
The press and civil society stand systematically weakened. As the Indian Constitution completes 74 years, those entrusted to operate it are hollowing it out from within.
American founding father Thomas Jefferson has said, “The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants.” Preserving constitutionalism and liberty in India, too, will demand the blood, sweat and tears of the ordinary citizen.
Faisal CK is Deputy Law Secretary to the Government of Kerala. His email address is faisal.chelengara10@gmail.com. Views are personal.