Senior Advocate Indira Jaising has expressed serious concern over the backdoor attempt to reshape the Constitution of India through legislative and judicial practices, doing away with the need of formal amendments.
Delivering the 29th Justice Sunanda Bhandare Memorial Lecture on Modern Constitutionalism, the Senior Advocate said the reinterpretation of laws in alignment with the majoritarian ideology threatened the democratic and secular fabric in a multi-religious country and, by extension, the unity and integrity of India.
She further spoke about the critical of efforts to bypass constitutional safeguards through procedural maneuvers, pointing to how criminal laws were passed as money bills, preventing scrutiny by the Rajya Sabha.
When the recommendations made by the Collegium were not respected, it threatened the independence of the judiciary.
In a similar way, the authority of the Parliament was undermined when criminal laws were passed as money bills to avoid the Rajya Sabha.
Such informal changes were being resorted to since it was difficult to challenge them in courts, she added.
Noting that those in power were effectively sidelining the Constitution rather than amending it outright, Jaising said such developments formed part of a larger pattern of constitutional erosion.
Mentioning the anti-conversion laws, the Citizenship Amendment Act (CAA) and other legal developments, she said all of these exemplified an informal repudiation of the Constitution.
She said ignoring the Constitution’s foundational principles could endanger India’s democracy.
While the Constitution remained a shield against authoritarianism, its silent erosion through legal reinterpretations and legislative changes posed a greater challenge than formal amendments.
The Senior Advocate further warned that the reinterpretation of laws in alignment with the majoritarian ideology threatened the democratic and secular fabric of the country.
She said faith and belief could not be the basis of law making. It had no place in public life. They were nevertheless protected under Articles 25 and 26 of the Constitution of India.
As per Jaising, the rationale for the secularism that India adopted was the only guarantee for a society that would give the people of the country, security and integrity. Without these, the country would be in grave danger of seeing several wars of hatred from within India and creating the perfect context for an external attack.
When the citizens defended secularism, they did not do it for appeasing the Muslim community, but in the interest of the country. India cannot become a Hindu Rashtra under a secular Constitution, she added.
The Senior Advocate further said that the Constitution was being ignored despite all talk of constitutional transformation. Those in power could not just repudiate the Constitution in their day-to-day practice and then say that they wanted a nation covered without codified laws.
She claimed that a conscious effort was being made to place one norm above the ground norms, which justified decolonisation and cultural nationalism. What kind of culture was being reclaimed in this process, she asked.
Anyone opposing the same were either labelled as urban naxals or terrorists, she added.
Sometimes, the lawyers were told that they bullied judges. The Senior Advocate said she was yet to meet a judge who had been bullied by the lawyers.
While secular democracies ensured human rights protection, the countries where secularism was undermined, struggled to uphold democracy, she added.