Constitutional Law

Of Contestations and Contradictions: The Constitution, the Legislature, and Civil Society in Contemporary India

Kanav N Sahgal 

The Indian Constitution promises its citizens the fundamental rights to equality and freedom (among others). However, the process of ensuring this has been far from easy. This essay is a narrative account of some of those contestations and contradictions. I start by discussing the Indian legislature and describe two key functional challenges. These challenges are temporally situated within the growing religiosity of India’s polity, drawing from Madan’s thesis of secularism. I then link these challenges to the functioning of civil society – a space mired with contestations of its own and one that shares uncomfortable power equations with the Indian state. In the end, I offer a proscription of what can be done if we are to operationalize the aforementioned constitutional ideals to preserve the sanctity of Indian democracy.

The Constitution and Legislature in Contemporary India

The Right to Equality (Articles 14-18) and Right to Freedom (Articles 19-22) are expansive and have undergone multiple iterations. For instance, Article 21, which guarantees the Right to Life and Liberty was expanded to include: the right to live with human dignity in Maneka Gandhi v. Union of India:AIR 1978 SC 597, Francis Coralie v. Union Territory of Delhi: AIR 1981 SC 746; the right to livelihood in Olga Tellis v. Bombay Municipal Corporation: AIR 1986 SC 180; the right to education in Mohini Jain v. State of Karnataka: AIR 1992 SC 1858 and Unnikrishnan v. State of Andhra Pradesh: 1993 SCC (1) 645; and so on. Despite these advances, however, the journey to equality and freedom is riddled with roadblocks. I will discuss two of these socio-legal barriers in this section.

Drawing from Madhavan, I find one such institutional roadblock in the functioning of our apex legislative body: the Indian Parliament. Here, I posit two questions: How representative is the parliament? And what checks and balances exist to ensure that we don’t slip into the ‘tyranny of the majority’?- An issue that classical Western political theorists such as Plato, Aristotle, Madison, Tocqueville, and J. S. Mill believed would continue to haunt constitutional democracies, whereby the majority, in any society, would have the ability to tyrannize the minority unless institutional checks and balances were in place. What those ideal checks and balances should be, and what form they should take continue to be a matter of considerable debate even today.Although the judiciary is meant to keep a check on legislative excesses, Rajamani & Sengupta remind us that even the Indian Supreme Court has failed at this exercise many times. The arbitrary arrests of young and vocal feminist activists like Devangana Kalita, Natasha Narwal, and Safoora Zargar under draconian laws such as the Unlawful Activities (Prevention) Act (UAPA) in 2020 and the ongoing incarceration of prisoners of conscience like Umar Khalid are contemporary examples. All this, while prominent Bharatiya Janata Party (BJP) politicians, Kapil Mishra and Anurag Thakur still roam about with impunity, years after having raised slogans like “Goli maro saalon ko, Hindu ke gadaaron ko” (Shoot the traitors of Hinduism)”. But the fault doesn’t lie only with the judiciary. Our lawmakers still haven’t amended the UAPA despite having the authority to do so. Perhaps the Parliament does not represent the will of the minority.

The second issue with the Indian Parliament is that of functional efficiency. How does one expect parliamentarians to deliver on tall promises like poverty alleviation and gender equality when they can’t even hold proper meetings? The lack of recorded voting records, the anti-defection law, and the progressive decrease in sitting days over the past couple of years makes it abundantly clear that our lawmakers are not equipped to pass basic legislation, let alone enact social change. So why are these institutional failures not addressed? And whose responsibility is it to fix them? These are difficult questions with no easy answers.

The twin issues of equality and freedom are further complicated when one considers the place of religion in this country. Dr. Ambedkar (2014) reminded us that a Hindu-Rashtra (Hindu-nation) would indeed be catastrophic for minorities like Dalits. Interestingly, in Part 14 of his text- Annihilation of caste, Dr. Ambedkar described his ‘ideal society’ as one premised on the ideals of liberty, equality, and fraternity (as echoed during the French Revolution), but even he didn’t discuss ways of concretizing these ideals given that most Indian citizens voted (and still vote) en-masse based on parochial interests like caste, creed, and religion. The issue is further problematized with the contemporary existence of political formations like the Bahujan Samaj Party– which is inspired by Dr. Ambedkar’s vision and led by a Bahujan woman- yet fails on multiple accounts (corruption charges, electoral defeats, and the pandering of Brahmin votes). If the current popularity of the BJP is to teach us anything, it is that Brahmanism and Hindutva are here to stay- at least for a while. Pp 36-37 of the BJP Lok Sabha Election Manifesto (2019) unequivocally state the Party’s hardline stance on the Ram Mandir (Ram Temple), Article 370, and the Uniform Civil Code- Two of which are already idealized. Indeed, the Hinduization of our polity under the BJP also lays credence to Madan’s 1987 thesis of how the failed project of post-independence secularism gave rise to modern Hindu revivalism and Muslim and Sikh fundamentalism (p.757); and there appears very little we can do about it. However, my disagreement with Madan comes on three fronts. First, his failure to address how a more religious state would take it upon itself to protect minorities. Second, his inability to specify exactly what ‘place’ secularism is to be relegated to in India-and to what degree. And third, his failure to tackle the issue of religious state formation itself. India’s secular fabric allowed it to pass progressive judgments on women’s rights and queer rights over the past few years, whereas faith-based nations (such as Pakistan, Afghanistan, and Iran) continue to grapple with these very same issues even today.

Civil Society in Contemporary India

Political theorist Neera Chandhoke describes civil society as an “elusive” space that escapes conceptual definitions precisely because of the number of political agents attached to it. Common understanding is that civil society is the space that exists beyond the grasp of the state and the market, but Chandhoke argues it is more amorphous than that- for it provides different political actors the values, spatiality, and the inspiration to “battle for democracy”.

While secularism remains a contentious topic while the judiciary and legislature continue to engage in their power tussles, further complicating this discussion on equality and justice is the role of the “elusive” civil society in India. Khilnani’s and Chandhoke’s essays trace the history of the Indian state and in doing so, also shed light on the evolution of civil society in India. Indeed, it is an elusive space mired with its own contestations and contradictions. Whereas civil society formation preceded state formation in western liberal democracies, the opposite happened in India: the independent nation-state was formed first, because of colonialism, and civil society came to exist later.  For some context: Rousseau’s’, Hobbes’, and Locke’s social contract theories all described the ‘state of nature’ as a prehistoric way of living in which people either lived in conflict (as per Locke and Hobbes) or as ‘noble savages’ in harmony (as per Rousseau). Individuals eventually established covenants with one another to escape the ‘state of nature’ to form a ‘civil society’. Markets were also formed at this time. The last step was the formation of a state which would regulate the market as well as personal relationships between people in civil society. The India story is markedly different.

In Chapter 1 of The Idea of India, Khilnani points out that because democracy was ‘given’ to Indians in a ‘fit of absentmindedness’ (p.14), India entered what Dr. Ambedkar called ‘a life of contradictions’: where we guaranteed our citizens political equality, but not social and economic equality. And although democracy has deepened over the years and has allowed unexpected entrants like Mayawati into the political arena, civil society remains divided on caste, class, linguistic, religious, and ethnic lines. Khilnani believes that these contradictions and divisions caused the democracy project to fail, and in turn, gave rise to the ‘tyranny of the religious majority’ (p. 6). We see this tyranny unfolding today with the meteoritic rise of Hindu majoritarianism and the concomitant decline of the once-powerful Congress Party’s politics. Meanwhile, regional parties and sectarian interests continue to gain greater importance. But whose interests are being reflected in civil society? Chandhoke believes that civil society in the developing world represents the interests of the urban middle-class and I agree because it underscores Khilnani’s point of how India- as we know it today- is but a fragile assembly of diverse and competing interests, among which Brahmanical, Hindu, and upper-caste interests dominate while secular interests ostensibly do not.

Thus, what started as a space to protest the British rule slowly morphed into a confused and contested site after India gained independence. Although this space has seen some social mobilization (be it of women, queer people, people with disabilities, etc.) civil society is under siege today and has failed to accommodate the interests of the subaltern. Draconian acts like the UAPA and the sedition law stifle free speech and inhibit civil society actors from freely holding the state accountable for its actions. This issue is further complicated when one considers the case of non-governmental organizations (NGOs) in India which are misunderstood, misrepresented, and chided by liberals and conservatives alike. While some liberals see NGOs as apolitical and overly bureaucratic agents of imperialism, some conservatives view them with suspicion- as organizations working for ‘anti-national’ causes like the elevation of the Rohingyas, the queer community, and Kashmiri Muslims. What do NGOs do in such a situation? Although there are no clear answers, what is clear is that the ‘life of contradictions’ that Dr. Ambedkar spoke about in 1950, is on full display in the world of NGOs and civil society.

The contemporary relationship between the state and civil society is also troubled. The state’s refusal to see anti-NRC-CAA-NPR protesters and farmers as valid actors demonstrating their fundamental rights to assemble and protest is a testimony of this (CAA stands for Citizenship (Amendment) Act, 2019; NRC stands for the National Register of Citizens; and NPR stands for the National Population Register). When any form of dissent against the government is labeled as dissent against the country, one should be worried. Indeed, civil society space is shrinking and it appears that only those actors who remain apolitical and uncritical of the state will be safe from arbitrary arrest and detention.

Conclusion

Secularism, as guaranteed in the Constitution, remains a contentious topic- and its true meaning (whether it be the strict separation of church and state, the treatment of all regions equally by the state, or something else) continues to baffle both the judiciary and legislature. The issue of civil liberties and free speech in India remains controversial. And while I don’t have any easy answers to resolve these contradictions, what I do think is necessary is a radical depoliticization of religion and an advancement of a politics that is centered on non-religious identification. Civil society actors need to take the lead in defending the constitution, whilst the Courts need to do their job in righteously protecting the civil liberties of those dissenting voices who stand up to communalism and majoritarianism. In her maiden Lok Sabha speech, Trinamool Congress Member of Parliament, Mahua Moitra said that India was witnessing ‘seven early signs of fascism’- comparable to what Germany witnessed under Adolf Hitler’s Nazi Rule. Indeed, we live in troubling times where dissent is labeled as treason and jingoism is peddled as (faux) nationalism. With democracy and dissent under threat, there is a very real risk that the state may just strip its people of all their fundamental freedoms – slowly but steadily, leaving behind nothing but the hollow shell of civil society left to languish and eventually erode.

The author is the Samvidhaan Fellowship Programme Manager at the Vidhi Centre for Legal Policy and writes extensively about LGBTQIA+ rights, the state of Indian politics, human rights, women’s rights, health, and mental health. All views are personal and do not necessarily reflect the views of the author’s institution.

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