The Pulse | Politics | Society | South Asia

Is India Living up to Its Constitution?

While the Indian constitution, celebrated every year on January 26, has an enlightened, egalitarian outlook, contemporary India’s reality tells a different story.

Bansari Kamdar
Is India Living up to Its Constitution?
Credit: Flickr/The Leprosy Mission Ireland

On January 26, India celebrated its 72nd Republic Day, commemorating its constitution coming into effect on January 26, 1950. The constitution’s preamble declares India a “sovereign socialist secular democratic republic” (“socialist” and “secular” were added to the original in 1976) and grants all its citizens justice, liberty, equality, and fraternity. However, in many instances these protections continue to be denied to women, poor, Muslims, Dalits, and other marginalized groups.

On one end, the Indian constitution grants all its citizens equality of status and of opportunity. On the other end, farmers in India have been protesting for the past two months around Delhi, battling cold, COVID-19, and police crackdowns, against the government’s new farm laws that they believe will leave them at the mercy of large corporations and agri-businesses. This is the largest protest by farmers in independent India. At least 76 farmers have died from cold or suicides at the protest and a 26-year-old farmer died after the police clashed with farmers in New Delhi on Republic Day.

The three new farm laws that the farmers are protesting passed in September 2020 through a controversial voice vote where the chairman decides what the opinion of the house is based on which side is louder. Reporters state that amidst protests by opposition members over the bills and the voting method, Rajya Sabha TV stopped broadcasting the proceedings and the microphones of all members were muted.

Amitabh Kant, the CEO of the Indian government’s policy think tank NITI Aayog, was recently quoted saying that India has “too much democracy.” If we are making laws affecting agriculture, an industry that employs nearly 50 percent of the Indian workforce, based on who can shout the loudest in a room, maybe the problem is that we do not have enough democracy.

On one end, the Indian constitution grants all its citizens liberty of thought, expression, belief, faith, and worship. On the other end, Uttar Pradesh, Madhya Pradesh, and Uttarakhand, states governed by Prime Minister Narendra Modi’s Bharatiya Janata Party (BJP), have introduced anti-conversion laws, particularly focusing on punishing inter-faith marriage.

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These apartheid-like laws are based on conspiracy theories accusing Muslim men of luring Hindu women into marriage with the aim of forcefully converting them to Islam. There is little evidence for this claim. In Kanpur, Uttar Pradesh, reporters found that over half of the cases had already collapsed and a final closure report was filed by the cops concluding that these were consensual relationships between Hindu women and their Muslim partners.

Nonetheless, a teenage Muslim boy has been imprisoned for over 45 days under this law. His crime — walking with a 16-year-old Hindu girl.

Similarly, due to these anti-conversion laws that aim to “protect women,” a 22-year-old Hindu woman may have lost her child to miscarriage after her she and her husband were heckled by members of Bajrang Dal and her Muslim husband was imprisoned for violating this law. On January 6, 2021, the Indian Supreme Court bench headed by Chief Justice of India S.A. Bobde sent a notice to Uttar Pradesh and Uttarakhand but refused to stay the law.

On one end, the constitution promotes among all “fraternity assuring the dignity of the individual and the unity and integrity of the Nation.” Meanwhile, even in her death on September 29 last year, a 19-year-old Dalit rape victim is denied dignity. News reports have shown Uttar Pradesh police forcibly burning the victim’s body at 2:30 a.m. at night without the consent of her family. The chief minister of Uttar Pradesh filed 19 cases against activists and called it an “international plot” to defame his government. Leaders from the BJP and other right wing outfits led protests in support of the four upper caste men accused of gang-raping and killing the young Dalit girl.

According to the 2019 National Crime Records Bureau report, an average of 88 rape cases were reported daily, over three cases an hour. While reporting has increased since the 2012 Nirbhaya case, conviction rates for rape in India remain abysmally low. Only one in four people accused of rape were convicted and the conviction rate was just 27.8 percent at the end of 2019. Despite fast-track courts, rape cases had a pendency rate (pending cases at the end of the year as a percentage of total cases for trial) of 89.5 percent at the end of 2019.

Women’s dignity is consistently violated in India through laws that not just permit marital rape but make an exception for it. The state creates two classes of women: unmarried women who are protected from sexual harassment and rape by law and married women who are offered no such protection from sexually abusive husbands. India also accounts for a third of the child brides around the world — the largest number globally.

Hansa Mehta, one of the female constitutional architects of India, was pivotal in changing the phrase in the Universal Declaration of Human Rights, from “All men are born free and equal” to “All human beings are born free and equal.” After over seven decades, Indian women continue to face an epidemic of violence and rape in their own houses and streets, denying them the dignity promised by the constitution and the freedom and equality that India’s founding mothers like Mehta fought hard for.

On one end, the Indian constitution grants all its citizens social, economic, and political justice. On the other, Munawar Faruqui, a Muslim comedian, has been imprisoned in jail for nearly a month over a joke he had not even told on stage. The Indore Police Chief Vijay Khatri told Article 14 that “it didn’t really matter” if jokes about Hinduism had not yet been made, inadvertently undermining the very basis for the young comedian’s arrest. A day before the Republic Day parade in New Delhi, within barely 15 minutes of Faruqui’s bail hearing, Justice Rohit Arya of the Madhya Pradesh High Court reserved orders on merits stating that “such people must not be spared,” reported LiveLaw.

In comparison, lead anchor of the pro-government Republic TV Arnab Goswami barely spent a week in jail before being granted bail on November 11, 2020. Goswami was in jail for allegedly abetting the suicide of an interior decorator who reportedly left a note saying Republic TV had not paid him for design work on its television studio.

In the same Taloja jail where Goswami was briefly imprisoned, an 83-year-old priest and tribal rights activist suffering from Parkinson’s disease has been in jail for over 100 days. It took the government a month to provide him with a straw and sipper because he could not hold his hand steady to drink water. Stan Swamy has been in judicial custody since October 2020 for allegedly being a member of the banned Communist Party of India (Maoist), and being involved in a conspiracy to instigate violence in the Bhima Koregaon in 2018.

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On January 24, 2021, the United Nations Human Rights body called for the release of activists who are in prison for the 2018 Bhima Koregaon case, “at the very least on bail” noting that “some of the detainees are elderly and in poor health.” Last October, the human rights body expressed similar concern on the arrest of activists in India.

“More than 1,500 people have reportedly been arrested in relation to the protests [against the Citizenship Amendment Act], with many charged under the Unlawful Activities Prevention Act — a law which has also been widely criticized for its lack of conformity with international human rights standards,” added Michelle Bachelet, the United Nations High Commissioner for Human Rights.

In his first speech after taking over as president at India’s first Republic Day on January 26, 1950, Dr Rajendra Prasad said, “Our Constitution is a democratic instrument seeking to ensure to the individual citizens the freedoms which are so invaluable. India has never prescribed or prosecuted opinion and faith.” May Indians someday once more live in such a nation.