Rohin Bhatt is a lawyer at the Supreme Court of India
In the 2024 general election, the I.N.D.I.A bloc successfully built a narrative of the Constitution being under threat from a majoritarian government. The narrative underscores a takeaway: the citizens of the country hold a strong belief in the sanctity of the Constitution, even amid pseudo-intellectual discourses that try to delegitimise the Constitution and constitutional functionaries who criticise the basic structure doctrine. Given these threats, one must wonder, what makes this document endure?
Constitutional scholars Zacchary Elkins, Tom Ginsburg and James Melton, in their book The Endurance of National Constitutions, tell us that historically, the process of drafting a constitution is a bargain, and documents that are more specific are more likely to survive. Other research by Ginsburg shows that the average life of a constitution, globally, is around 17 years, and that older constitutions are better at protecting rights.
Our Constitution, when being conceived, was not just very specific in its framing but was also the largest. It ran into 395 Articles and eight Schedules and was about 145,000 words long; it was nearly 30 times the size of the American Constitution. While it has survived and endured for 75 years, it is hard to ignore the threat to the Constitutional way of life in India.
The three pillars of democracy are failing the Constitution. The State today has far more punitive powers than ever, with the three new criminal codes and the weaponisation of the Unlawful Activities Prevention Act, the Foreign Contribution (Regulation) Act, and the Prevention of Money Laundering Act. The right to life and liberty has been severely undermined, aided by a judiciary as bail has become the exception and jail, the rule. Our Parliament does not function properly and bills are not scrutinised with the deserved care. Things inconvenient to the powers-that-be are regularly expunged from the records.
The judiciary is seeing a rise in the number of theocratic judges who rely on extra-constitutional sources of law such as religion, and judges are becoming more guarded about ruling against the government. More importantly, there seems to be a renegotiation of Constitutional values, aided by the Supreme Court. Nine judges of the Supreme Court have overturned the classical interpretation of property jurisprudence and heralded in a neoliberal era, which might seem strange in a socialist country.
D Y Chandrachud, writing for the Court, holds that, “India’s economic trajectory indicates that the Constitution and the custodians of the Constitution – the electorate – have routinely rejected one economic dogma as being the exclusive repository of truth”. This ignores the fact that the Supreme Court itself is the custodian of the Constitution. Similarly, challenges to love jihad laws have been pending for years with no resolution in sight. Fundamental tenets of a constitutional rights-based jurisprudence have been turned on their heads.
The Constitution has also become a site of struggle between values that the founding fathers enshrined and the values of Modi’s New India. Indeed, if as the Supreme Court says that We, the people of India, and the electorate are the custodians of the Constitution, the duty falls on us to save it. It must be a people’s movement that protects the citizenry and this document from majoritarian excesses, and from redefining and renegotiating values enshrined in the Preamble.
Our Constitution has survived far longer than many of its post-colonial contemporaries. I can hope that if it has survived for 75 years despite a minor blip during the Emergency, it will survive for many more decades to come. If it does not, I reiterate Ambedkar’s words in the Constituent Assembly: “If things go wrong in the new Constitution, the reason will not be that we had a bad Constitution, what we will have to say is that man was vile”.
B R Ambedkar noted that the Constitution of India was not a mere lawyers’ document – “It is a vehicle of life and its spirit is always the spirit of age.” Seventy-five years since the adoption of the Constitution, its living text continues to guide India along the vision of its founders. But these are also times when the constitutional spirit is increasingly in conflict with reactionary narratives that undermine the tenets of the document. The Prism looks at the milestone with a throwback to the Constitution’s framing principles, nods to its endurance, and underlines threats to its foundational ideas.