ON Friday, before a packed hall in the India International Centre in Delhi’s Max Mueller Marg, Senior Advocate Indira Jaising took the podium to address the gathering on ‘India’s Modern Constitutionalism.’ Jaising was here to deliver the 29th version of the Justice Sunanda Bhandare Memorial Lecture, which, on previous occasions, had been delivered by personalities such as Nobel Laureate Abhijit Banerjee and former President Pranab Mukherjee. The event was also presided by Chief Justice Devendra Kumar Upadhyaya of the Delhi High Court as the chief guest. Former Supreme Court judge Madan B. Lokur, who was recently appointed as United Nations Internal Justice Council’s chairperson, and Justice Vibhu Bakhru, Delhi High Court’s acting chief justice until December 2024 also shared the stage.The first lecture since Senior Advocate and former Odisha governor Murlidhar Bhandare’s passing away last year in June, who oversaw the annual lecture for decades, the event was partly nostalgia, and partly grounded in the present. Underlying the discussions was an acute awareness of the precarious challenges confronting constitutionalism in the country..He noted that authoritarian regimes may have the facade of hosting a grundnorm document, without actually practising the principles that define constitutionalism..Authoritarian regimes may have Constitutions, but no constitutionalismChief Justice Upadhyay highlighted that talking about constitutionalism was contemporarily important because there was a crucial difference between having a Constitution, and practising its principles. Without twisting words, he noted that authoritarian regimes may have the facade of hosting a Constitution, without actually practising the principles that define constitutionalism. He highlighted that Adolf Hitler, the Nazi German chancellor who led the 'Holocaust' against European Jews in the second World War, had also been elected to power legally. But he could not have consolidated the power if not through amending existing laws. Justice Upadhyaya was referring to the fact that in March 1933, the Reichstag had enacted the Enabling Act, which allowed Hitler to enact laws without interference from the President or Reichstag for four years..India: Cementing the building blocks of populism, authoritarianism and majoritarianism.The chief justice praised the Indian Constitution’s provisions on reservations, which ensured that Indians from marginalised communities were included in the Constitution’s vision of “power sharing.” He noted that this was aspired for by Dr. B.R. Ambedkar, who had taken inspiration from affirmative action policies for African-American citizens in the U.S.Chief Justice Upadhyaya highlighted that modern constitutionalism was being shaped through academic discourse as more and more judges now referred to academic scholarship to enrich their understanding of constitutional history.No feminism without constitutionalism, no constitutionalism without feminismJaising noted that constitutionalism played a crucial role in recognising and effectuating the fundamental rights of Indian citizens. It imposed certain inherent limitations on State power and “its dealings with citizens”, ensuring that the State could not trample upon citizens’s rights..To badmouth the criminal laws, call them colonial, defies logic.She stated that historically, under a Brahmicial socio-political system, Indian society was “governed by rigid hierarchies of caste” - with the ‘Brahmins’ at the top, and the ‘Shudras’ as the most oppressed community of people. Under this regressive arrangement, only Brahmins had the “God-given right to ordain and legitimise kingship.” Jaising explained, however, that a powerful counterculture of the exclusionary Brahminical arrangement was posited by the spread of Buddhism in India which pressed for “equality and rejecting the rigid caste hierarchies." This closely echoed the views of Dr. Ambedkar who viewed Buddhism as an egalitarian alternative, a “counter-revolution” as he phrased it, to the casteist societal arrangement under the Manusmriti. Thereafter, Jaising noted, under British colonial rule, “systems of exclusion and control that ran across class, caste, gender, and religious lines” were reinforced. .Calling the Constitution of India present-day Manusmriti is an unconscionable vulgarisation.Constitutionalism, similar to the counter-movement to Brahminism, was in pursuit of egalitarian conditions, and enabled a “sharp break” from centuries of oppression and colonial rule. In that sense, constitutionalism and feminism were bounded together.Jaising noted, however, that patriarchal thinking had seeped into certain sections of the judiciary. She cited an example from June 2023, where a Gujarat High Court judge, while hearing a plea for medical termination of a seven-month foetus by a minor rape survivor, remarked that earlier “14-15 was the maximum age (for getting married). The child used to take birth before the age of 17.” The judge had gone on to state, “You will not read it, but do read Manusmriti once for this.”The Constitution and decolonisation in majoritarian IndiaOn February 11, 2025, an uproar broke out in the Parliament after a sitting Member of Parliament highlighted that twenty two miniature illustrations from Ramayana and Mahabharata present in the Constitution were not being reproduced in copies available to the public. Vice President Jaideep Dhankar asserted that the copy with illustrations, which was kept in the Parliament, was the “only authentic copy” and should be circulated among children. Jaising countered, in her speech, that this was misinformation. She noted that the 'original' Constitution came into effect on 26 January 1950, and only that must be considered authentic..The reinterpretation of laws in India to align with majoritarian principles, she noted, undermined secularism in India..Thereafter, Jaising spoke of recent efforts to decolonise the Indian legal system. In February 2024, three new criminal laws came into effect which replaced the older laws - the Indian Penal Code, the Indian Evidence Act, and the Code of Criminal Procedure. Jaising noted that the erstwhile laws provided “equality in the matter of criminal law” and upheld Article 21 of the Constitution which guaranteed procedure established by law. “To badmouth these laws, call them colonial, defies logic,” she asserted..What the surge in criticism of the three new criminal laws is all about.In July 2024, Home Minister Amit Shah argued that the new criminal bills were “Swadeshi” and gave an “Indian soul” to the justice system. In December 2024, Shah also said that under the new laws, the previous offence of ‘Sedition’ (‘Rajdroh’ in Hindi) was changed to ‘Treason’ (‘Deshdroh’ in Hindi). Jaising argued, however, that decolonisation was not merely about language.She also referred to former Chief Justice D.Y. Chandrachud’s comments from January 2025, where he referred to the saffron flag as the ‘dhwaja’ of justice. “Is it the symbol of justice?,” Jaising asked, “To me, the only symbol of justice is the Constitution.”She also referred to recent comments by Allahabad High Court judge Shekhar Kumar Yadav at a Vishwa Hindu Parishad event, where among other remarks, he used the slur ‘kathmullah’. Jaising, who was among thirteen senior lawyers who wrote to the Chief Justice of India in January 2025 to give sanction for Justice Yadav’s prosecution by the Central Bureau of Investigation, stated that this was hate speech..Before his elevation, SC judge D.Y. Chandrachud had flagged Justice Yadav’s RSS, BJP links.The reinterpretation of laws in India to align with majoritarian principles, she noted, undermined secularism in India. Under a secular Constitution, she further asserted, a ‘Hindu Rashtra’ - a theocratic majoritarian state pushed for by Hindu nationalists - would never be possible.She explained that the Constitution cannot be directly amended in such a manner that the goal of a majoritarian polity is achieved. However, in a more sinister way, smaller changes were being made. “You can just repudiate the Constitution in day to day practice, and then we will be governed without codified laws,” she said. But the silent changes were difficult to counter. But she was resolute as she asserted, "I stand before you to affirm the Constitution of India."
