AT A LITERATURE FESTIVAL last week, the anchor posed a crucial question to former CJI D.Y. Chandrachud – that the Indian Constitution had, lately, become central to political demonstration. For opposition parties and civil society, it had emerged as a symbol of resistance, and as an inviolable basic architecture of Indian governance that had faced abuse by the executive under Prime Minister Narendra Modi. For the ruling regime, it was the symbol of democratic survival despite Indira Gandhi’s national emergency. “The Constitution is not just print on a parchment,” Justice Chandrachud noted, “the Constitution is a dialogue between citizens.”
Legal academic Martin Loughlin explains that constitutions have a “world-making capacity”, actively shaping political reality, not just being influenced from them. However, they are, he argues, ‘agnostic documents’ – sites of contestation – which are only interpreted through a ‘dialectic of ideology and utopia’. In other words, what the Constitution’s status within the larger national scenario becomes is very much hooked to how it is publicly debated and imagined by thinkers of differing ideologies, and their differing aspirations from the document.
The grand moment of the Indian Constitution, and the Supreme Court concluding seventy five years of enactment, and establishment, was marked by voluminous writings and verbal discussions by judges, lawyers, academics, activists, and politicians from across spaces and ideologies. What were some of the most coherent learnings that flowed from these conversations? What patterns could we draw by synthesising the whole lot of these conversations? How should we make sense of the engagement of the Hindu right, a political lobby which has traditionally opposed the Indian Constitution, with the modern republic’s founding document on the eve of its anniversary?
For this series of articles, we, at The Leaflet, synthesised a set of writings and speeches published specifically over 2024 and 2025 – 28 articles (published in newspapers or online portals), over 44 hours of panel discussions and speeches, and 5 books – to understand how the Constitution was discussed in public imagination.
The few restrictions upon the scope of our sample literature was to bind ourselves to only pieces or speeches which were thematically or editorially framed as a 75 year review, were available in public records, and discussed in the English language. We do acknowledge, however, the possibility of some literature having slipped through the discussion.
This series is set across three parts – the first, exclusively analysing public forms of writing (newspaper columns and opinion pieces in online portals), the second, focussed on panel discussions and speeches, and the third, focussed on books and edited volumes, all either published or hosted over 2024 and 2025. To the greatest extent, this work must be viewed as a collective synthesis of existing literature, and not an attempt at reviewing each literature singularly.
A brief overview
Our synthesis of public writing on the 75 year observations revealed three broad thematic engagements with the Constitution – the first set, focusing on how Hindu far-right thought engages with the Constitution, the second set, focusing on analyses of how constitutional machineries have functioned under the ruling BJP government, and how the opposition and ruling parties have framed dialogue around this, and the third set, on how differing crises – administrational, and jurisprudential – within the Indian judiciary have been assessed.
I. How to make sense of the Hindu right’s position on the Constitution?
In one dominant stream of discussions, both proponents and critics of the Hindutva movement have discussed the right-wing movement’s uncomfortable relationship with the Constitution. In his piece in The Wire, former Rajya Sabha MP Jawhar Sircar, for instance, contrasts Prime Minister Modi’s tributes on the Constitution’ 75th anniversary against the RSS and Hindu Mahasabha’s consistent opposition to the Constitution, by referencing primary writing from Organiser, the RSS’s mouthpiece magazine.
In 1949, Organiser noted that the Constitution missed the “unique constitutional development in ancient Bharat”, namely the Manusmriti, a position reiterated by V.D. Savarkar, who notes that “the worst about the new constitution of Bharat is that there is nothing Bharatiya about it…Manusmriti is that scripture which is most worshippable after Vedas for our Hindu nation.”
Sircar’s analysis of the Hindu right’s obsession over the Manusmriti in conversations around the Constitution is interesting as leads into a larger stream of discussion on an ‘indigenous’ or nativist legal system, as opposed to the liberal constitutional order, which the Hindu right has accused of having a ‘colonial’ import.
The debate on ‘coloniality’ and indigenous legal thought
The most prominent contribution on this stream has come from lawyer J. Sai Deepak, who has argued that the Indian legal system is yet to undergo a ‘decolonisation’, and the Constitution remains at the root of the problem. In an Indian Express op-ed, Deepak argued that constitutional morality and secularism are tools that are seeking to reshape or erase native, civilisational identity instead of protecting it. “Colonial condescension”, he writes, “went on to don the cloak of constitutional morality.” In other literature, Deepak has gone on to critique the Constitution’s ‘colonial’ heritage as a reason for its overthrowing.
Within public writing on the 75 years’ commemoration, only Tarunabh Khaitan dedicates an expressive piece to counter each of these arguments. In his piece for the LSE blog, Khaitan categorises Deepak’s writings as an example of how the Hindu right has not only undermined constitutional accountability mechanisms, but posed a “full throated ideological assault”. This is broadly how the counter-arguments are framed:
Khaitan is not the first commentator to point out that the Hindu right’s alternate aspiration of a constitutional order is based on a homogenous, upper-caste and potentially Brahminical conception of an indigenous legal order. Critics have previously pointed out that this imagination sweepingly overlooks legal orders of non-Vedic religious movements, including Buddhism.
Another engagement Khaitan provides to Deepak’s writings is by critiquing the latter’s argument that the framers of the Constitution had a colonial mindset. Khaitan notes that the framers represented diverse shades of Indian thought, and accusing them of having a colonised mindset, actually reeks of the colonised thinking that Indians cannot think for themselves.
Implicitly countering the Hindu right without confronting the premise
Other commentators have attempted to pose these counter-arguments in less direct manners – Abhinav Chandrachud, for instance, in his 75 year review for Express, argues that the ‘borrowing’ of constitutional ideas from foreign jurisdictions was deliberate and defended by B.R. Ambedkar, who noted that no one held “any patent rights in the fundamental ideas of a constitution”, and India has had a long tradition of absorbing ideas from elsewhere. Even as Chandrachud critiques the argument against ‘borrowing’, his writing does not reflect that it is the Hindu right which prominently framed ‘borrowing’ as an argument to substantiate the Constitution’s ‘colonial’ shortfalls.
In a similar vein, V. Sudhish Pai, in an adaptation of his speech for LiveLaw, also argues that even as the Constitution borrows from the Government of India Act, there was “nothing wrong” with adopting and adapting them, and that the constituent assembly was diversely constituted, “composed of persons of the highest calibre drawn from different sections of society, representing various shades of opinion” [emphasis supplied]. Pai, too, makes no explicit reference to the Hindutva movement, even as his arguments implicitly indicate such engagement.
Nuanced differences within Hindu right-wing writing on the Constitution
However, even within the literature produced by Hindu right-wing thinkers, there are nuanced layers. While those such as Deepak have proposed the overthrowing of the Constitution, and a rejection of constitutional morality, others like Ram Madhav, a former national general secretary of the BJP, have actually critiqued the proposal that the Constitution is ‘colonial’, noting that it contained most elements from the Nehru Report (1928), and “served our country efficiently and effectively for 75 years”. Madhav also, interestingly, notes that “constitutional morality” has to be nurtured, for reasons such as that “social and religious minorities see it as a great guarantor of rights and freedoms.”
Other right-wing authors have straddled a middle ground – like Organiser’s editorial by Prafulla Ketkar who seemingly proposes transforming constitutional norms through interpretation. “Any legal document is a matter of interpretation,” he writes, “the Bharatiya Constitution is no exception.” Ketkar goes on to trace the conversation around ‘decolonisation’ to a ‘cultural resurgence movement’, which began with the renovation of the Somnath temple.
One theorisation of the Hindu right’s faltering position of the Constitution is provided by lawyer Faizan Ahmad in an Outlook piece looking at 75 years of the Constitution against 100 years of the RSS. Ahmad notes that the RSS no longer wishes to openly reject or destroy the Constitution, seeking to instead operate from inside it, using constitutional language to push a Hindutva agenda – a ‘trojan horse’ of sorts – an idea that borrows from wide scholarship which has noted that the Modi government has instrumentalised the law to slowly mechanise ‘democratic backsliding’ in India.
II. The Constitution within political dialogue
How has contemporary India’s performance against constitutional goals been analysed?
In their 75 year reviews, a range of authors have, both explicitly and implicitly, discussed the failings of the ruling BJP government in parameters that typically attest to the fulfillment of constitutional goals, such as the condition of income inequality in India.
Writing for National Herald, lawyers Ravindra Garimella and Amal Chandra note that while the Constitution enshrined ‘justice’ as a cornerstone, in India income inequality is severe, and Dalit and Adivasi communities are facing systemic discrimination, even as its press freedom standing has fallen. Similarly, despite the Constitution’s commitment to equality, persistent social and economic disparities continue to plague the subcontinent, and women have not yet gotten adequate representation in legislatures. The Constitution’s vision for secularism contrasts against communal polarisation in today’s India.
In Kashmir Times, author Ram Puniyani again evokes images of income disparity, worsening education and health standards, and minorities being relegated to second class citizenship against that of constitutional promise. In Express, Justice S. Ravindra Bhat, former judge at the Supreme Court, also notes that despite constitutional rights, marginalisation of communities is stark, also highlighting how India’s digital divide “has rendered millions vulnerable, with regards to their rights, entitlements and access to essential services.” On fraternity, he notes that “true dignity and fraternity means the practice of an attitude which we have not yet displayed.”
Here, we have seen a mix of writings that have expressly attributed these social and economic failures to the current government, and those who have framed the issues in more generalist terms, with Justice Bhat’s essay also bringing the burden of constitutional performance upon the citizens.
Commentators on the Hindu right have also, in their own way, analysed the performance of the current government against constitutional standards. Madhav, for instance, notes that while Article 370 was an ‘anomaly’ created during the framing of the Constitution, it was subsequently corrected by that very Constitution in August 2019, when the Modi government revoked Kashmir’s special status.
Contrasting Madhav’s praise for the government, in a piece for Counterview, a platform that promotes ‘alternative views’, V.N. Jha, the founding chairperson of Jawaharlal Nehru University’s Special Centre for Sanskrit Studies, states that some constitutional provisions and amendments have become ‘holy cow’, that no political party “wants to touch”, implying that even the BJP government is unwilling to engage with them.
The examples he lists are the ‘freedom of religion’ (which he notes is causing change in religious demography, and the “cancerous proliferation of Muslims”) and reservations (he argues that caste divisions in the Constitution have sowed seeds of discrimination, thus it was time to amend the Constitution of any caste reservations).
Another issue that many of the commentators have chosen to engage with has been the weakening of investigating agencies, the election commission, the judiciary and the broader health of ‘checks and balances’ under the Modi government. We discuss that in more detail later.
How the ruling and Opposition parties blamed each other on constitutional performance
In December 2024, the Lok Sabha and Rajya Sabha conducted two days of debates each on the Constitution. Reviewing the debates in a piece in Countercurrents, surgeon and activist S. Jatin Kumar noted that the debates were largely characterised by mudslinging – while the BJP methods reminded the Congress of Indira Gandhi’s ‘unconstitutional methods’ during the Emergency, opposition critics presented the ruling regime as ‘communal fascists’.
Some discussions also dealt with how both parties evoked images of or relating to the Constitution for emotive purposes – Jha criticised Rahul Gandhi for waving the Constitution while evoking support for a nationwide caste census, an electoral promise of the Congress campaign. Making his disapproval of the caste census clear, Jha notes that Gandhi’s campaign actually represents a “new frontier of hate politics”. Puniyani, on the other hand, notes that the INDIA alliance has actually spread awareness on the “real meaning of constitutional morality.”
Other commentators have highlighted the BJP’s symbolism strategies on the Constitution. Sircar has noted that Modi’s commemoration of the Constitution does not reflect the “real position” of the RSS. Kumar, on another hand, highlighted Modi and the BJP’s emphasis on imageries of Ambedkar, in discussions on the Constitution. This, Kumar argues, is because the BJP has developed a ‘strategy’ to attract the 17 percent ‘vote bank’ of Dalits by expressing “ownness with Ambedkar.”
Have constitutional checks and balances weakened? How, and to what extent, has this weakening been theorised?
Various writers converge on the view that India’s constitutional checks and balances have weakened, but they theorise this erosion through distinct and complementary lenses, including institutional design, constitutional culture, material access to rights and executive capture of constitutional form.
Karan Thapar locates the problem in both structure and morality. He identifies deep design vulnerabilities, noting that “fourth-branch institutions [are] not insulated from the executive” and that Indian federalism is “too Centre-heavy.” His most revealing example is the Emergency, which “happened not by suspending the Constitution or acting outside of it, but by imposing the Constitution’s own mechanisms.” This showed that constitutional collapse need not take the form of illegality. It can occur through perfectly legal means. Echoing this, Faizan Ahmad notes that contemporary constitutional decay is “incremental, systemic, and camouflaged in the language of the Constitution itself.”
For Thapar, this exposes the absence of constitutional morality, understood as the unwritten ethic that should govern how constitutional powers are exercised. Today, he notes, governors and election commissioners routinely breach this morality, yet “beyond commenting on it, we can’t do anything.” The implication is that formal safeguards are ineffective without a shared constitutional culture to animate them.
Gautam Bhatia deepens this diagnosis by tracing today’s crisis back to the Constitution’s original structural design. He argues that India’s Constitution was centralising by intent, vesting disproportionate power in the Union executive and trusting it to wield that power responsibly rather than constraining it structurally. Parliament was made weak by design. States were rendered fiscally and administratively subordinate. Independent institutions like the Election Commission and the Comptroller-Auditor General were placed under executive appointment control. Wide restriction clauses were built into fundamental rights.
Crucially, Bhatia echoes Thapar in noting that the Emergency was not an aberration outside the Constitution but “imposed and conducted through existing constitutional mechanisms.” Many Emergency-era amendments were never fully reversed. More recently, sweeping centralising moves such as the abrogation of Article 370 were carried out using internal constitutional procedures and validated by the Supreme Court through explicitly centralising logic.
For Bhatia, the danger is therefore not merely executive overreach but a design-enabled concentration of power that has been steadily magnified by judicial interpretation and political practice. The Constitution’s internal accountability structures, including Parliament, federalism, and independent institutions, have been progressively weakened, leaving the executive structurally dominant.
Pavan K Varma adds a complementary ethical and civic dimension to this diagnosis. He argues that “a self-willed executive will always use the letter of the Constitution to erode its spirit,” and that constitutional decay occurs not only through institutional capture but through the everyday collapse of bureaucratic neutrality, parliamentary deliberation, judicial independence, and media freedom.
Taken together, these accounts generate a coherent theory of constitutional weakening in India.
First, as Ahmad and Thapar argue, constitutional erosion today takes the form of institutional capture rather than open breakdown with power consolidated through constitutional mechanisms themselves. For Bhatia, this power structure is inherent in its centralizing constitutional design. Second, this concentration of power is reinforced by the erosion of constitutional morality and the gradual legal normalization of majoritarian ideas, so that constitutional form survives while constitutional spirit is hollowed out. Third, as Varma argues, bureaucratic complicity, weakened institutions and a subdued media erode checks in everyday governance.
How have commentators reflected on the prospective constitutional projects of the Hindu nationalist movement?
Ram Madhav notes that the Constitution has a certain “unfinished agenda.” Writing in The Hindu, he argues that the Constitution has successfully built the spirit of “One Nation – One People” and insists that the Uniform Civil Code “should have been implemented after the formation of the first government in 1952”, invoking Ambedkar’s Constituent Assembly speeches to claim that civil law reform is a secular necessity rather than a communal project.
V.N. Jha builds upon this more assertively by noting that certain constitutional projects need “a substantial revision to meet the aspiration of its people on the sensitive issues of caste discrimination, reservation in government jobs at higher levels, giving priority to the meritorious people in skilled jobs and preventing change in religious demography of India.” For him the Constitution is “average at best, having many lacunae, failing to uplift the lives of the weaker sections of people in more than 75 years of its being.”
How has the basic structure been analysed by varying commentators?
In a piece for Express, senior advocate Arvind Datar celebrates the basic structure doctrine as a saving factor of the Constitution because it has "avoided rigidity, enabled it to adapt to changing needs," therefore ensuring that the Constitution "will celebrate 100 years." As Datar explains, the doctrine goes about its work as a nimble sentinel at the gate guarding core constitutional values against transitory majoritarian impulses that might otherwise scuttle the foundational principles of the constitutional order.
Sai Deepak perceives only the reverse with an anti-democratic straitjacket foisted upon India by unelected judges. Basic structure, for him, illegitimately "tie[s] down a society for all time to come to a specific version of the Constitution," divesting "the agency of the present and the future." This is far more than a narrow technical disagreement over the perennial thorn of amendability. In Sai Deepak's eyes, basic structure is the device by which the colonial values-secular liberalism, individual rights, separation of powers-that he despises become permanently sealed into India's constitutional order under the sanitizing rubric of "constitutional morality." The doctrine denies Indians all possibility of finally “decolonizing” their constitutional order, freezing European liberal ideology in place immune from the reach of democratic majorities that may wish to make the Constitution consistent with indigenous values and civilizational identity.
Thapar focuses less on normative desirability and more on institutional track record. As discussed earlier, he suggests, the inconsistency in the doctrine’s application exposes either "a weakness or flaw" in the doctrine itself or in its judicial guardians. The doctrine sometimes protects constitutional values; sometimes it fails spectacularly when it matters most.
Where Datar trusts the doctrine and its judicial guardians to shield constitutional foundations from democratic excesses, Sai Deepak fears those same judges are ramming alien values down the throats of unwilling populations, using basic structure to perpetuate colonial mental structures and Thapar doubts the Court can reliably fulfill either hope or fear and that the doctrine's protection proves too contingent on judicial courage, which history has consistently shown can evaporate under pressure.
III. The Constitution and the judiciary
How has the institutional crisis within the judiciary been analysed?
Something fundamental has changed along the way Indians speak of the Supreme Court. Lawyer Abhinav Sekhri catches this transition from 2000, when all conversations were about big doctrinal breakthroughs and how the Court did wondrous constitutional things, to the politics of "appointments, delays, access to justice, discipline." This is not only a change in the way the unanimity of conversational subject matter has shifted. It is also an indication that the "institutional crisis has crossed a tipping point." From an institution "at its peak and maybe even overconfident," commanding respect from the public and the institutional heft that flows from that respect, a strong central government and continued political pressure have "reduced the prestige and authority of the Court." It is a crisis, therefore, of lost legitimacy and compromised independence.
Justice Bhat gives the stark numbers for institutional incapacity. For 1.4 billion people, the country has only 25,081 sanctioned judges, a ratio that would be laughable if the consequences weren't so dire. Individual judges manage "crushing" caseloads of "60 to 150 cases each day," making meaningful adjudication borderline impossible.
In Supreme Court Observer, Sudhir Krishnaswamy and Advay Vora bring out some disquieting opacity with respect to case allocation in the Supreme Court through their ‘Master of Roster’ analysis. While Chief Justice Lalit applied a fairly transparent "Seniority Pools" approach to the Constitution Bench roster, allocating cases in a fair manner to all judges by rank seniority, his successor's allocation reveals "no discernible pattern" once analyzed through any rational criteria-seniority, subject expertise, or future institutional role. Some judges sat on 16 of 18 Constitution Benches, while others who had been appointed years prior did not sit on any, raising uncomfortable questions regarding whether ideology and not principle defines which judges hear politically sensitive cases. This opacity makes the Court especially vulnerable to charges that its most important decisions have been "shaped by ideological or political preferences."
Also in SCO, Gauri Kashyap contributes another dimension of institutional failure through gender exclusion. In 75 years, only 11 women have served as Supreme Court judges, representing just 4% of all judges. India's first woman Chief Justice, Justice B.V. Nagarathna, when she finally assumes office in 2027, will serve for just 36 days.
How has the Supreme Court's jurisprudential legacy been analysed?
Public writing on jurisprudential reviews of the Supreme Court on the specific context of the 75th anniversary have been concentrated around SCO’s 75 year series.
First in the list is lawyer Gulnar Mistry's analysis of Public Interest Litigation. Mistry traces Justice Bhagwati's soaring 1981 vision in S.P. Gupta (1981) of "democratizing judicial remedies" to help "the deprived and exploited sections of humanity" realize their socio-economic rights has "devolved into a confused, inconsistent and intimidating jurisprudence." The Court that once invited the voice of the margin through radically relaxed standing requirements in cases like Hussainara Khatoon (1979) "later grew suspicious and punitive towards petitioners." By 2010, Balwant Singh guidelines threatened "exemplary costs" for frivolous PILs, yet these threats are "applied unevenly"-the Court entertains motivated PILs on playing national anthems in cinema halls while dismissing or obstructing genuine public interest cases. This inconsistency creates fundamental "uncertainty about who can approach the Court and what counts as 'public interest.'" Mistry's damning conclusion is that "the Supreme Court at 75 appears unsure of PIL's original transformative project."
In an analysis of environmental jurisprudence of the Supreme Court by one of us, a similar jurisprudential messiness is evident. Despite genuine flashes of creativity – M.C. Mehta's (1986) "absolute liability" doctrine, T.N. Godavarman's (1996) expansive definition of forest, the continuing mandamus device – the Court remains trapped in an anthropocentric thinking that continues to view nature purely through its "resourcefulness to human civilization." The trajectory is one of consistent subordination of conservation to "development". Narmada Bachao Andolan rationalized that "with proper channelization of developmental activities ecology and environment can be enhanced, and recent cases approve Central Vista's INR 20,000 crore redevelopment, Char Dham highways using "defence purposes," and renewable energy projects over the critically endangered Great Indian Bustard (population under 150). When the Court briefly dallied with rights-of-nature ideas, recognizing Dongaria Kondh community rights in Niyamgiri with Justice Radhakrishnan's vision proclaiming animals "legal entities having a distinct persona" in Nagaraja (2014), a 2023 Constitution Bench dismissed Nagaraja as "judicial adventurism," foreclosing possibilities precisely at a time when the climate crisis demands them most.
Academic Vijay K. Tiwari then goes ahead to expose brutal class-based gatekeeping in disability jurisprudence. While cases, both in 2024, like Rajive Raturi evinced judicial imagination and Nipun Malhotra intervened thoughtfully in disability portrayal, the Court catastrophically failed political dissenters. Professor G.N. Saibaba and Father Stan Swamy suffered "the worst form of state repression" with judicial complicity-including an "infamous Saturday hearing" suspending Saibaba's acquittal on a court holiday." According to Tiwari, "the Supreme Court allows admittance to middle-class and non-controversial disabled. However, doors are kept tightly shut for political dissenters." On the death penalty, Shreya Rastogi and Neetika Vishwanath discuss how Justice Bhagwati's 1982 Bachan Singh (1980) dissent has been vindicated by four decades of evidence: 65.3% of death sentences were commuted, while 30% resulted in acquittals, exposing "staggering" error rates and the "internal incoherence and subjectivity" in applying the "rarest of rare" framework.
Excluding these analyses, mainstream anniversary commentary, articles and blogs, largely omitted systematic jurisprudential review. Even though widely written across in various books, missing are comprehensive analyses of the Court’s criminal procedure, labour law, federalism, privacy, bail and equality jurisprudence.
This gap reveals that, at least within short-form public facing writing, assessment of the Court's substantive legacy remains profoundly unfinished, discussed and debated, with political crises overwhelming attention to intellectual development. Without such systematic review, we cannot answer whether the Court has developed coherent constitutional philosophy, how approaches evolved across time and domains, or what lessons 75 years offer for constitutional adjudication going forward.
The absence suggests less about what's known than what remains unasked.
