Senior Advocate Indira Jaising cautions against backdoor changes to the Indian Constitution, threatening secularism and democracy. She criticizes majoritarian laws, judicial bias, and attacks on dissent, warning of constitutional erosion in India.
Thank you for reading this post, don't forget to subscribe!
NEW DELHI: Senior Advocate Indira Jaising has strongly stated that a Hindu Rashtra (Hindu nation) cannot exist under a secular Constitution.
Speaking at the 29th Justice Sunanda Bhandare Memorial Lecture on Modern Constitutionalism, she highlighted a silent attempt to reshape the Indian Constitution without officially amending it.
She expressed concern that laws are being reinterpreted in a way that supports majoritarian ideology, which puts India’s democracy and secularism at risk.
Faith Cannot Be the Basis of Lawmaking
Jaising emphasized that faith and belief should not be the foundation for making laws, even though they are protected under Articles 25 and 26 of the Indian Constitution.
“Faith and belief cannot be the basis of law making. They are nevertheless protected under Articles 25 and 26 of the Constitution of India … It has no place in public life.”
She explained that secularism is necessary for India’s unity and security. Without it, the country could face internal conflicts and external threats.
“In my opinion, the rationale for the secularism that India adopted is that it is the only guarantee for a society that will give us the security and integrity of India. Without that, we are in danger of seeing several wars of hatred from within the country and creating the perfect context for an external attack.”
She rejected the idea that secularism is meant to “appease the Muslim community“, stressing that it is in India’s best interest.
“So when we defend secularism, we don’t do it only for ‘appeasing the Muslim community.’ We do it in the interest of India … You can never have a Hindu Rashtra under a secular Constitution.”
Constitution Being Ignored Through Backdoor Methods
Jaising argued that while there is much talk about transforming the Constitution, in reality, it is being ignored. Instead of official amendments, changes are being made indirectly, making it difficult to challenge them in court.
“Why is that the constitution is not being formally amended, why not? I think the reason is that if you can do from the backdoor what you need to do from the front door why bother.”
She warned that by avoiding direct amendments, day-to-day practices are undermining the Constitution, leading to a situation where laws are not codified but based on unwritten norms.
“You can just repudiate the constitution in your day-to-day practice and then say what we really need is a nation covered without codified laws.”
Quoting the Chief Justice of the Delhi High Court, she stressed that the Constitution is the only safeguard of people’s rights.
“As the Chief Justice of the Delhi High Court pointed out constitution is the only thing that will guarantee our rights and nothing else and that does mean a text, a text which is normative and a text which will guarantee our rights and impose limits on the powers of the State.”
Anti-Conversion Laws, CAA, and Cultural Nationalism
Jaising pointed out that laws like anti-conversion laws and the Citizenship Amendment Act (CAA) are examples of an informal rejection of the Constitution.
She criticized efforts to justify these laws in the name of ‘cultural nationalism’ and ‘decolonization’, questioning what kind of culture was actually being reclaimed.
“We are witnessing an effort to place a norm above the grundnorm, and this norm is justified in the name of decolonization and cultural nationalism.”
Criticism and Labeling of Dissenters
She highlighted how people who criticize these changes are often labeled as “urban naxals” or “terrorists”.
“Anyone opposing the same are labelled as ‘urban naxals’ or ‘terrorists’.”
Despite this, she asserted that there is strong resistance to these changes, dismissing the claim that judges are being bullied by lawyers.
“I would like to point out of course that there is great resistance to what is going on. Of course we are labelled as urban naxals/terrorists. We have also been told that we are bullying judges but I have yet to see a judge who has been bullied. No judge that I know has ever been bullied by a lawyer.”
Gender Inequality and Colonial Laws
Jaising argued that the new criminal laws do not truly decolonize India’s legal system. Instead, they strengthen the government’s power while preserving colonial legacies like sedition laws and marital rape exemptions.
“Homophobia was institutionalized by colonial laws. Marital rape was institutionalized by colonial laws. And yet today, the same people who claim to be decolonizing are the ones arguing that marital rape should not be criminalized.”
She criticized judicial decisions influenced by patriarchal norms, citing a Gujarat High Court ruling where a judge referred to Manusmriti while denying an abortion request of a minor girl.
Recalling Dr. BR Ambedkar’s rejection of Manusmriti in 1927, she pointed out that patriarchy still resists legal reforms.
She further noted that opposition to marital rape laws and same-sex marriage mainly comes from men.
“The same set of people, and mind you, there are all men that are arguing that marital rape should not be decriminalised, and they are also the men who are saying the Constitution is colonial and they are also saying that there should be no same-sex marriage.”
Criminal Laws Target Marginalized Groups
Jaising warned that criminal laws are being misused to target marginalized communities, while those in power remain untouchable.
“They do not criminalize ‘Rajdrohi’, but they criminalize ‘Deshdrohi’. I don’t see the difference between the two. They need to get out of these linguistic gymnastics.”
She pointed out how laws are selectively applied to discriminate against weaker sections, particularly Muslims in Northern India, who face declining education levels, employment opportunities, and increasing housing discrimination.
“The reinterpretation of laws to align with majoritarian ideologies threatens secularism in a multi-religious country and, by extension, the unity and integrity of India.”
Threats to Judicial Independence and Parliamentary Scrutiny
Jaising also raised concerns over efforts to weaken judicial independence and bypass Parliamentary scrutiny. She cited how criminal laws were passed as money bills to avoid debate in the Rajya Sabha and how judicial appointments recommended by the Collegium were ignored.
“Independence of the judiciary appears to be threatened when recommendations made to the Collegium are not respected. And Parliament is undermined when criminal laws are passed as money bills to avoid the Rajya Sabha.”
Constitution Is Being Silently Undermined
Jaising described these developments as part of a larger pattern of constitutional erosion. She argued that instead of openly amending the Constitution, those in power are silently dismantling it through legal changes and reinterpretations.
She ended with a warning that if this continues, India’s democracy will be in danger.
While the Constitution remains a strong defense against authoritarianism, she said the silent changes happening outside public scrutiny are far more dangerous than formal amendments.
Would You Like Assistance In Drafting A Legal Notice Or Complaint?
CLICK HERE
Click Here to Read Our Reports on CJI Sanjeev Khanna
FOLLOW US ON YOUTUBE FOR MORE LEGAL UPDATES
