The country's founding document has failed its minoritiesby Shruti Kapila / May 6, 2020 / Leave a comment
A couple of winters ago, I was asked to take part in a public debate in Delhi entitled: “Is India a ‘rule of law society?’” I made the case that India was not, contrary to its self-image, a rule- or law-based society. I was supported by a young scholar from a national law school. Our foes were formidable: establishment intellectuals close to the Narendra Modi government, one a Supreme Court lawyer, another a journalist turned parliamentarian. This David versus Goliath debate was refereed by a television celebrity presenter. At the end of 90 minutes, the argument was decided by a popular vote: my side won the big crowded hall overwhelmingly. The schoolgirl debater in me was thrilled.
But a deeper disappointment soon overwhelmed me. The voting audience were all stakeholders in the Indian legal order: lawyers, policymakers, the odd politician and law students. The venue was the venerable Constitution Club of India. If those responsible for upholding the law did not believe in its efficacy, then what really is the status of Indian law or its constitution?
Since its inception in 1950, the Indian constitution has been celebrated in academic and popular books alike. The political scientist Madhav Khosla’s pithy new book is the latest—and one of the more eloquent—of such celebrations. India’s Founding Moment repeatedly salutes its special status—a status that reinforces India’s international image as a tolerant, working, mass democracy. This special image of India, as the anthropologist Arjun Appadurai recently pointed out, is hard to shake off despite the overwhelming facts to the contrary—especially the nation’s corrupt, compromised judiciary and criminalised legislative sphere. This has always been true but there are special dangers with this sectarian government. Modi himself benefits from this obsolete image even as the vaunted constitution does nothing to thwart his authoritarian, Hindu-nationalist agenda. So the timing of Khosla’s celebratory book is jarring to say the least.
In late 2019, within six months of being installed as prime minister for a second term with a resounding mandate, Modi overturned longstanding legal principles and paved the constitutional path for India—for centuries a multi-faith society—to become a nation defined by Hinduism. He started with the abrogation of the special status of Muslim-majority Kashmir in August 2019. Since its contested incorporation into the…