Indian Constitution is in Danger

Before starting the article the writer would like to make the case that the article is written as an academic piece and not as an ideologue to advocate for or against any side. So the content should be evaluated in light of the facts and information provided.

1. INTRODUCTION

For approximately a decade, the BJP government has been in power so the onus will fall on them for the current situation. It is the only real national party, as few call them, which has both the money and muscle power to bring detrimental changes in the world's largest democracy. The country has seen subversion in the old days too with its nadir in 1975 with the declaration of emergency. But as they say, the "Gratification and Glorification" of the past is done by those who have no present and future. We as Indians, hope to be leaders of the world in the next one or two decades and for that, we need a clear lens where we see our mistakes and make necessary corrections. It can only be achieved with a vibrant democracy with justice, liberty and equality for all.

When we talk about the Constitution being in danger, we talk of real threats and challenges to constitutional rights, undermining democratic principles, failure to uphold democratic values and the weakening of institutions that are meant to safeguard the rights of citizens as mentioned in the constitution of the country. Unfortunately, under the present regime, we have seen instances of all these threats and challenges.

2. SUBVERSION OF DEMOCRATIC INSTITUTIONS.

Indian democracy is broadly run by 4 institutions namely the Legislature, the Executive, the Judiciary and the media. The strength of a democracy depends upon the strength of each pillar and the way pillars complement each other. [1]The BJP System with a very strong leader and an absolute majority in Parliament has successfully been able to concentrate power in the Prime Ministers Office. Its consequences have been subversion of other institutions of democracy which is not desirable in any healthy and functional democratic country.

A. LEGISLATURE

Parliamentary processes in recent years have seen a significant decline. How well the parliament functions has a direct bearing on the democracy in a country.

Article 75(3) of the Constitution requires and makes the Prime Minister and Council of Ministers accountable to the Lok Sabha. Question hour is one such tool. Question Hour is not only an opportunity for the members to raise questions, but it is a parliamentary device primarily meant for exercising legislative control over executive actions and ensuring accountability and transparency in governance.[2] But the Indian Express data[3] clearly states that on average not more than 50 % of the time allotted to question hour has been utilized since 2014.

Standing committees are an extension of parliament. It further gives an opportunity for discussion on the topic by any member. Bills are scrutinized and many beneficial recommendations are given by these committees. Data[4] by Business Today shows a clear reduction in bills being referred to Standing Committees. With 71 bills being referred in the 15th Lok Sabha(2009-14) to the present situation where only 13 bills are being referred to Standing Committees in the 17th Lok Sabha(2019-24). The government even passed important bills in the first session of the 17th Lok Sabha before the formation of department-related standing committees.[5] These actions stop closer scrutinization of bills and identify their direct and indirect consequences.

Another thing seen in the present regime is the rushing of bills and taking arbitrary decisions overnight. Bold overnight decisions have led to harsh consequences. Making decisions overnight is a clear sign of non-democratic tendency. Democracy is all about making decisions collectively. Some of the Bills like Farm Bills 2020, Jammu and Kashmir Reorganisation Bill, Labour Code Bills and Insurance Amendment Bill have been passed with hardly any discussions. Discussion allows the whole country to better know about the bill as ordinary citizens hardly read these bills in person. Demerits of the bill as pointed out by opposition parties also helps citizen see Bills rationally. Critics have gone as far as to term stopping discussions and debate on bills to be a data theft and related it to a larger effort to keep citizens in the dark and stop them from questioning the government.

B. EXECUTIVE

The executive is an organ of government responsible for putting decisions or laws into effect. It is most susceptible to coming under government pressure and follow their line. It is said that the Indian bureaucracy has never shown a strong spine against the legislature. There is a truth in this statement but we need to realize the relation between legislature and executive to understand this statement. Important executive positions are appointed by legislative heads. The President, the executive head of the country, is appointed by the Prime Minister. In this situation, the President is bound to be under the influence of the Prime Minister. Heads of Institutions like the Enforcement Directorate (ED), Central Bureau of Investigation (CBI) and Election Commission(EC) are appointed by either by Prime Minister or the President. These appointments have often come under criticism and it is a known fact that the person having sympathy with the ruling party is generally appointed to these posts. If a person's succeeding post is not favourable to the government then the post is kept vacant.

Enforcement Directorate (ED) and Central Bureau of Investigation (CBI) can be said to be the most misused agency of the government. Searching the premises of opposition leader after their criticism of the ruling government is a general trend. A report[6] by Indian Express states that 95% of the case registered by the Enforcement Directorate (ED) is against the opposition parties. The use of CBI and ED has led even to the BJP forming governments in states as seen in Maharashtra.

The Central Information Commission(CIC) is the designated body to look into customer complaints from people. The Central Information Commission(CIC) was subverted by reducing its power, ranks, salaries and tenures. It was no coincidence that at the same time, CIC was asked under RTI about the educational qualification of Prime Minister Narendra Modi. The timing of these changes must have given a message to other institutions to act wisely.

Institutions like the Reserve Bank of India (RBI) which is responsible for regulating currency, securing monetary stability, maintaining currency reserves, and overseeing India's credit and currency system. These important institutions have also seen two Governors i.e. Raghuram Rajan and Urjit Patel forced to resign after disagreeing with the government. The RBI has also been involved in some startling incidents, such as withholding data that could cast the government in a negative light. It can be termed as no less than a scam. Demonetization full impact assessment was never released as it would bring criticism to the government. It feels like the "NO FACTS, NO QUESTIONING" policy is being followed.

The police force, a state subject, has seen bulldozing houses of alleged criminals even before found guilty. The reason given is unauthorized construction on land but the bulldozing of the house just after some incident indicates that there are other aspects involved and one such aspect is sending a signal to the particular community of consequences for their acts. Even if the person was guilty, there is no provision in the Indian Constitution to bulldoze houses to the person. Supreme Court has reprimanded the UP government to take action in accordance with law and should not be retaliatory in nature.[7] This act, collective punishment involving family, was previously seen in British colonies under British Regulation 119, Nazi Germany and in present North Korea. It also contrasts the famous Lord Binghams principle of Rule of Law.

C. JUDICIARY

Justice A.P. Shah has famously said that when the government at the centre is strong, the judiciary becomes weak, and when the government is weak, the judiciary assumes a dominant role. There is no doubt that the present government with an absolute majority is a strong one and unfortunately, the saying of AP Shah also comes out true.

The recent problem seen in the judiciary is the desire for post-retirement jobs. Way back Arun Jaitley clearly said that - The desire for a post-retirement job influences pre-retirement judgements. It is a threat to the independence of the judiciary. Supreme Court Judges being given posts like Governor, Chairman of Committees and Member of Parliament has gained momentum. Only four Supreme Court judges have been appointed governor in the roughly 75 years since independence, and surprisingly the last two governors were appointed within the last nine years alone with (CJI) P Sathasivam being appointed Governor of Kerela in 2014 and Justice S Abdul Nazeer appointed Governor of Andhra Pradesh in 2023. Not surprisingly, both justices have a record of giving a judgement in favour of the ruling BJP in general and PM Narendra Modi in particular.

The article of the constitution, which Dr Ambedkar considered as the very soul of the Constitution and the very heart of it, is being discouraged by the apex court. "We Are Trying To Discourage Article 32 Petitions" was said by a Supreme Court decision on Nov 16, 2020.[8] It is a shock to the entire legal fraternity to have a statement like this from SC. Discouraging Fundamental Rights to be accessed by citizens by the very institution that is meant to protect them is disheartening.

Supreme Court Judges like Justice Gowda have clearly said that Post 2014, Supreme Court hesitant to go against the executive.[9] After 2014, he said, the Supreme Court has presented a meeker version of itself. The verdict in politically-charged cases like Sahara-Birla, Judge Loyas case, the Bhima-Koregaon cases, Rafale [and] Aadhaar has invited lots of criticism from the public.

First time in Post-Independence India, the four judges, who were the senior most after the Chief Justice came out publicly and said that "things are not in orderunless the institution is preserveddemocracy will not survive in the country. [10] It was a dark day for the judiciary and should have made them rethink the course the institution has taken. The judiciary is democracy's last best hope, and its demise could have disastrous repercussions and quickly spark anarchy throughout the nation.

D. MEDIA

Media is regarded as the fourth pillar of democracy. This institution has been exploited by the ruling dispensation since time immorally. Indra Gandhi had used it during emergency. Tactics like broadcasting popular movies to stop people from coming out of their homes to protest her actions were common in her days. Nazi Germany, the Soviet Union and the Assad regime are all infamous for using media as a way to fulfil their agenda.

The recent statement of PM Modi that whether news gets published is not the only thing in a democracy. is unexpected. The statement comes from the PM of a country where in a report by ISPOS the majority of Indians (65%) deem public TV and radio broadcasts as necessary.[11] If any effort is taken towards the direction PM directed, in a democracy, it will abolish all the check and balance that the country is currently having. There will be no questioning in the lack of information. Questioning is the reason which stops leaders from taking arbitrary and authoritative regimes. The tendency to stop questioning is generally seen in Totalitarian and Dictatorship. A state where we never wish to arrive.

Business tycoons like Ambani and Adani who are close to the Prime Minister have bought many TV news networks and run news in a partial manner. The quality of TV debates has reached its low with debates on religion and Pakistan being a dominating topic. Even the most ardent supporters of the current government admit that the quality of the media has gotten worse. Data[12] from Statista shows that only 66% of Indians have trust in the present media. The role of media has shifted from questioning of government and presenting facts of the citizens to that of Propaganda and Perception Creation. By flipping between two and three news channels on any given day, one can easily witness anti-Muslim debates that have extremely low moral and linguistic standards. Media that once asked questions to the government has now started questioning only the opposition rather than the ruling dispensation. Advertisement in media houses by government departments is another important factor in reducing questioning of the government. With the rise of the economy, the financial budget for advertisement by government departments has also gone up. Now it's easy for the ruling government to lure the private companies to be yes-men of government.

A few media outlets left, who dare to speak against the government are the New enemies of the state. Raids and arrests of these journalists are common. The use of draconian laws like the Unlawful Activities (Prevention) Act serves as a powerful tool for the state to stifle media dissent and intimidate truth-seeking journalists.[13] Even if a journalist gets released on bail by the court under charges of UAPA they are re-arrested under the Public Safety Act as seen in the case of Asif Sultan. Journalists speaking about tribal rights are somehow connected to Maoists and then arrested under UAPA. Journalists criticizing the government are being arrested under the name of national security and allegedly anti-national activities. It is necessary to understand that the government is not equal to the state. States stay the same while governments come and go. So criticism of the government can never be termed as anti-national.

Coverage of incidents that can bring bad light to the BJP System is an exception. They are either done with little attention paid to the main issue or with twisted facts presented as seen in Wrestlers Protest in Delhi against sexual harassment incidents. The nadir of the questioning capability of present media was reached with the recent interview of Rahul Gandhi with Satyapal Malik. A politician taking an interview with another politician should be the cause of concern in a democracy. One can agree and disagree with the content of the interview but, indeed, the interview gives a message to the larger population that the media is not asking the right question and that a politician has to take up their role to fill the gap.

Looking into these incidents it can be easily argued that the present regime is relentlessly undermining the fourth estate by using carrot and stick policy to turn Indias vibrant media into a durbar of yes-men.

3. ATTACK ON THE BASIC STRUCTURE OF CONSTITUTION: SECULARISM

The doctrine of Basic Structure was propounded by the Indian Judiciary in the Keshavananda Bharati Case. It is a judicial creation whereby certain features of the constitution of India are beyond the limits of amending powers of parliament of the constitution.[14] The idea is to preserve the nature of Indian democracy and protect the rights and liberties of people.[15] The judgement listed some basic structures of the constitution such as Supremacy of the Constitution, Secular character of the Constitution, Federal character of the Constitution, etc. The judgement talked about limiting the amending power of ruling dispensation to preserve the nature of the constitution but it is not only through amendment that the essential nature of the constitution can be altered. Even without amendments, significant changes can be made by persistently undermining the framework and establishing a "New Normal" as seen in Secularism Concepts in the country. This New Normal can be so far from the root that they will look completely different from each other. Bhimrao Ramji Ambedkar, the father of the Constitution warned years ago: It is perfectly possible to pervert the Constitution, without changing the form by merely changing the form of administration and to make it inconsistent and opposed to the spirit of the Constitution.

Secularism means the separation of religion from political, economic, social and cultural aspects of life, religion being treated as a purely personal matter. It stands for equal opportunities for followers of all religions, and no discrimination and partiality on grounds of religion.[16] The word secularism was added through the controversial 42nd Amendment but the concept has been deeply rooted in the history of India. Emperor Ashoka, in his 12th Rock Edict, Ashoka appealed not only for the toleration of all religious sects but also to develop a spirit of great respect toward them.[17]

Even before the 42nd Amendment, the secular nature of the constitution could be easily identified through readings of Articles 25-28 which gives the right to freedom of religion to all the citizens of India. Secularism i.e. not discriminating based on religion is also related to Article 15 of the Constitution which provides for the right of equality.

A 2019 report by India-based nongovernmental organization Common Cause found that half of the police surveyed showed anti-Muslim bias, making them less likely to intervene to stop crimes against Muslims. Analysts have also noted widespread impunity for those who attack Muslims.[18] Police force having biases on religious grounds violates both Article 15 and 25. A proper training with religious sensitization is needed to reduce these figures.

In recent times, verbal and physical attack on Muslims has risen in the country. Cow protection groups have taken laws into their hand in the name of protecting cows and by them at least 44 people have been killed, mostly Muslims after the coming of the BJP government in the centre.[19] The situation has become so critical that Gregory H. Stanton, the person who predicted the Rwandan Genocide have predicted anti-muslim genocide in India. The fact that Prime Minister Modi has remained silent on these matters is even more shocking. He has not assumed the duty of denouncing the assault and relieving the Muslim populace of their anxiety.

Hate speech against Muslims is on the rise. Incidents like self-proclaimed protectors of a religion publicly claiming to rape Muslim women have become common. The speech by Union Home Minister Amit Shah calling Muslims a termite was shocking. It reminds us of the Ugandan genocide during which the Tutsi population was called "cockroaches". Earlier for these statements, a minister would have been forced to resign but now hate speeches are seen as a way to climb the political ladder. This is the New Normal.

There is no doubt that peoples ideology has shifted rightwards the world over and India is no exception. This has led people to question the very relevance of Hindu-Muslim unity. Shashi Tharoor has answered this question very rightly with asking a question. "As I have said, if such people are so infuriated by Hindu-Muslim 'ekatvam', why not boycott the world's longest-surviving symbol of Hindu-Muslim unity: India itself?" he asked. India is a country that has been built by the confluence of different cultures, religions and values since Puranic times. It is important here to note that we have to fight not religion, but communalism which is present in religion. We must confront the "Forces of Hatred" on both sides because the actions of one group provoke the response of another, poisoning the surrounding area as a whole.

Rather than dividing us along religious or creedal lines, our fundamental identity should be Indian.

4. CONCLUSION

The fundamental rights, democratic institutions, and democratic ideals found in the Indian Constitution serve as the cornerstone of the country. India has a record of a majority government trying to concentrate power and subvert constitutional provisions according to their will. The current regime, having an absolute majority, is posing serious obstacles that jeopardize the institution's basic viability. A weak judiciary, unaccountable media, political meddling, and violations of fundamental rights all add to the precarious state of the Indian Constitution. It is imperative to distinguish at this moment that this is the boundary, which cannot be crossed by the parliament by any means. The Constitutions Basic Structure is sacrosanct and should be respected by the ruling dispensation. It is also not appropriate to blame the opposition for all wrong, nor should it serve as a defence for the government's current actions. India is a very large country with a diversity of people having different cultures, morals, ethics and values. The contemporary constitution has successfully shown its ability to govern them and keep them as one unit. It can be disastrous to experiment on this land in the hopes that everything will work out as planned. Genuine shortcomings can be amended by the use of Article 368 of the Constitution. We can improve it here and there. But to abandon it or change its foundation, will be to open a Pandoras box.[20]