Indian Constitutionalism in the Last Decade

Having been governed by Narendra Modi’s Bharatiya Janata Party (BJP) for the last ten years, India will hold elections in the following weeks. We use this moment as an opportunity to reflect upon the last decade and assess how the Hindu nationalists have impacted Indian constitutionalism. To do so, we have asked legal scholars and practitioners to reflect upon the developments in particular areas of Indian constitutional law over the last decade. This blog post will provide an introduction to the symposium.

It isn’t hard to notice that Indian constitutionalism has been undergoing a phase of churning. Today, the foundational ideas upon which the Indian society was aspired to be reconstituted at the time of independence are under deep strain. While the last decade may not have left many conspicuous signs textually, the soul of India’s constitutional system has suffered several dents. The ruling government, along with several of its ideologically affiliated civil and professional organizations, have launched, quite successfully, a project of redefining India, its constitutional identity, and its vision.

The attack on the Indian democracy and its constitutional system can be best defined as an “all-round attack”. The BJP has deployed the ancient Indian philosopher Kautilya’s concepts of sāma (conciliation/alliance), dāma (gift), bheda (trickery), and daṇḍa (punishment) to infiltrate and capture the entire system. Envisaged to conduct their actions independently, institutions like the Election Commission and security agencies, and offices of governors and the speaker are today outrightly functioning in a partisan manner to yield political benefits to the BJP. They have ensured that no space is ceded to the political opposition. Federal investigative bodies have selectively registered numerous cases against members of the opposition political parties. This, along with enticement by way of monetary benefits or a promise of office, has helped them collapse several state governments where the BJP had sufficient numbers to form its government after a few defections. Court cases are regularly either dropped or pushed to the back burner once the accused shifts their alliance to the BJP. In other cases, the government has arrested several sitting ministers and Chief Ministers and froze accounts of political parties on flimsy grounds to crimple state governments and opposition movements, respectively. A similar tactic is used against corporations to seek (extort?) political funding. Institutional capture has reached such levels that it will be very difficult for a non-BJP government to design and implement any constitutional repair project once it comes to power.

Likewise, the infiltration of the civil space is overall. The BJP has used the artistic, media, and digital space to spread its narratives and capture the minds of the citizenry with its falsehoods and ideology. These channels are used strategically to bolster the image of the Prime Minister and defame and dwarf the opposition (of every form, not only political) in every manner possible. Where sāma, dāma, and bheda don’t function, it uses daṇḍa (punishment). Intellectuals, academicians, institutions, and student bodies that have challenged the BJP have been attacked, either by state action, a digital campaign against them, or via an instrumentalization of the cinema. The financial support for NGOs think tanks and civil society organizations is choked; foreign funding licenses are canceled. The space for opposition and civil society is, therefore, shrinking rapidly.

The BJP tolerates no opposition, dissent, or alternative visions for the country. It labels them straightway as desh virodhi mansikta (unpatriotic mentality) or anti-nationalism as if there was only a singular vision for the success and development of India. This fits with its attempt to develop an alternative history, vision, and ideological north star for India through various means, (including the rewriting of history schoolbooks) with the hope to overpower the one imagined during the freedom moment and the drafting of the Constitution. Once successful, replacing the constitutional text will remain a mere formality; the society would have already moved on from the ideals inscribed in the 1950 document.

In this process, people have been further removed from constitutional processes. They are less involved in the lawmaking processes, as laws are regularly passed with minimal or no debate. Statistics show that fewer bills are referred to parliamentary committees as compared to before 2014, which means that there is less space for detailed discussion, scrutiny, and stakeholder consultations. The consequence is that the dynamic of the government-people relationship is being altered. The current government seemingly establishes a regime of one-way communication with very little scope for holding the government accountable. The office of the Prime Minister has been transformed into a king-like position.

The BJP has also attempted to diminish the power of individual states in the federal structure. The most prominent example here was the abrogation of the special status of the state of Jammu and Kashmir (J&K) in 2019. The former state of J&K was divided into two union territories, which, unlike states, do not have their own governments but are governed by the Union government of India. To avoid objections and protests, numerous politicians, activists, lawyers, and journalists were arrested and held in preventive detention, and the civil liberties of people living in the region were significantly curtailed: curfews and travel restrictions were issued, mosques were closed, and an internet ban was introduced in the region.

Scholars have stated that the BJP government is “killing [the] constitution with a thousand cuts”. Unlike Indira Gandhi’s assaults on democratic norms during the Emergency in the 1970s, the Modi government’s “mode of operation was subtle, indirect, and incremental, but also systemic”. Other commentators speak of an “undeclared emergency” to describe the current systematic attack on constitutional rights and freedoms.

The politics of the Hindu nationalists have hit, in particular, the Muslim population, India’s largest minority, constituting 14.2 percent of the population. Muslims are the targets of legislation that prohibits cow slaughter, places limits on conversion from Hinduism to Islam, curbs interfaith relationships, and provides pathways for Hindus and other non-Muslims who immigrated to India from other states to acquire Indian citizenship. Anti-Muslim legislation also comes in the guise of gender equality, such as in the case of the 2019 act that punishes the pronouncement of triple talaq divorces with imprisonment for up to three years. Against the backdrop of this legal landscape, the societal climate, too, has changed. Anti-Muslim hate speech is on the rise. We regularly read reports about lynchings of Muslims who have been accused of having slaughtered cows.

Amidst all these developments, the performance of the judiciary has remained below par. While during the last decade the high courts and the Supreme Court have issued several important judgments, for instance, recognizing the right to privacy, decriminalizing homosexuality, and holding the electoral bonds scheme as unconstitutional, it has also delayed deciding on several crucial constitutional matters for a very long time. Several Supreme Court and High Courts justices have functioned as part of the executive more than the government itself (see here and here).

In summation, a new constitutional understanding is being permeated within the existing constitutional structures, sometimes blatantly and by stealth on other occasions. The government seemingly seeks to establish a regime of control, to decimate the opposition and to foster the supremacy of the BJP’s ideology. This creates a sense of fear and insecurity among large parts of the population.

The coming months are crucial for India. The Indian citizens will vote to constitute the next parliament, with the voting process starting this month and government formation beginning in early June. The BJP has entered the electoral process with an ambition to better its performance and win a supermajority, while the opposition aims to prevent a total decimation and gain a respectful and meaningful space for itself.

It is at this critical juncture that we introduce this symposium. It aims to take stock of the constitutional developments in India in the last decade and explain their significance from the lens of India’s constitutional identity. Over the following days, a number of scholars will discuss issues ranging from the health of constitutional institutions to the state of fundamental rights, aiming to present a holistic picture of the state of Indian constitutionalism.

Indira Jaising engages with the government’s attacks on civil society. Today, NGOs, organized groups of individuals, and cause lawyers find themselves in positions where their funding is cut, they are labeled anti-nationals, or they must defend themselves against criminal charges. Jaising stresses that this is in stark contrast to the Constitution’s promise to provide equality to the marginalized.

Louise Tillin engages with Indian federalism. Tillin holds that since 2014, when the BJP became the first party in over 25 years to win an outright parliamentary majority, India’s dominant party system has coalesced, and the country has entered a phase of centralization. This has meant that core ideas and values associated with federalism (which, according to the Supreme Court, is part of the Constitution’s basic structure) have been unsettled.

Maansi Verma examines the functioning of the Indian parliament and finds that India is undergoing a “deliberation backsliding.” Compared to earlier governments, the current parliament refers significantly fewer Bills to parliamentary standing committees, thereby allowing for less critical discussion before the Acts are passed. Verma states that the danger here is that the executive dominates law-making processes, including those leading to constitutional changes.

Farrah Ahmed deals with the topic of citizenship. Ahmed critically analyses the Citizenship (Amendment) Act of 2019, which the BJP oversaw and which gave Hindu, Sikh, Buddhist, Jain, Parsi and Christian—but not Muslim—migrants from Afghanistan, Bangladesh and Pakistan a fast-tracked pathway to Indian citizenship, and argues that the Act is unconstitutional.

Abhinav Sekhri reflects upon the status quo of free speech in India. Looking at free speech through the lens of criminal law, Sekhri shows that the thin line between protected and criminalized speech has shifted in the last decade. Today, all three branches of the state are increasingly hesitant to allow for speech that is critical of the state.

Ratna Kapur looks at the topic of gender equality. Kapur states that the Indian higher judiciary has recently produced several landmark decisions on gender equality and sexual rights. Yet, a thorough reading of some of these decisions suggests that the discourse within which rights to gender equality are protected often remains problematically linked to nationalism and anti-minority right-wing politics.

Saptarshi Mandal deals with the rights of gendered and sexual minorities. On the one hand, states Mandal, the last decade is marked by key milestones in this area. LGBT rights in India are not under attack as they are in other countries. A closer look, however, reveals that the Hindu right-wing support for LGBT rights is at best dubbed as tolerance but does not translate into support for substantive legal rights, as became evident during the marriage equality litigation in 2023.

Gauri Pillai reflects upon the developments regarding reproductive rights. Pillai states that several gains have been made at the level of the judiciary: women’s rights to privacy, equality, and non-discrimination have been strengthened, and there is an emerging focus on marginalized groups. Yet, of late, we also see a distinct judicial trend of preserving the state’s interest in potential fetal life.

Gaurav Mukherjee looks at the right to education. The blog post reminds us that we should not only focus on the erosion of civil and political rights in Modi’s India but equally address the effects of the BJP government on social and economic rights. Mukherjee explores the BJP’s effort to spread its nationalist view of India through various forms of educational politics: a “saffronization of the educational curriculum”, the regulation of learners’ public displays of religiosity, and the continuing trend of underinvestment in public goods like education.

S. Irudaya Rajan and Anand Sreekumar discuss migration governance in India and argue that the NDA government retained and, in a few situations, further pushed the discriminatory overtones of the existing governance frameworks. This is particularly on account of the continuation of weak legislative frameworks and implementation modalities, limited availability of data, ignorance of gendered concerns, increasing religious selectivity of refugee governance, and classist approach by way of a greater focus on skilled labor emigration while showing lesser concern for the migration and protection of unskilled labor.

Vrinda Narain reflects upon the Indian Supreme Court’s essential practices doctrine and notes how the doctrine has traversed into the space of the right to practice religion and other interconnected fundamental rights like the freedom of expression and the right to privacy. Narain notes that the doctrine encourages arbitrary regulation of religion by the state, which is an affront to secularism. To keep theology out of court and check the state’s interference with religious freedoms, Narain argues for the adoption of a sincerity-based approach.

Anmol Jain discusses the significance of the emergence of an opposition alliance, the Indian National Developmental Inclusive Alliance (INDIA), to counter the BJP in this election and how such ideas have played out in other parts of the globe in recent years. According to Jain, scholars of democracy and populism must closely study the approach adopted by INDIA, as it could draw some important lessons for the Indian opposition in the future as well as the parties fighting populist leaders in other countries.

Much more could be said, and many more areas could be covered: academic freedom, the legal profession, Kashmir, climate and the environment, youth rights, etc. Yet, by providing snapshots of some of the relevant areas, we hope that this blog symposium provides a fruitful starting point for a broader discussion that is crucial at this point in time.