Ambedkar predicted that the Constitution may be perverted without changing its form simply by changing the form of the administration

The Constitution of India was never debated before as an electoral issue or as a subject of acrimony between the ruling party and the opposition inside and outside the floor of Parliament. Even Prime Minister Narendra Modi mentioned the word Constitution emphatically in his Mann Ki Baat where he said “people had reposed their unwavering faith in the Constitution and the democratic system of the country by their participation in the 2024 general elections”.

The opposition not only made BJP’s alleged attempt to change the Constitution an election issue, they aggressively pursued it after I.N.D.I.A bloc’s success in increasing its strength in the present Lok Sabha. Counterattacking the Congress, which leads the opposition, the BJP said it was changed by former Prime Minister Indira Gandhi by imposing Emergency and bringing the 42nd and 39th amendments to the Constitution. The BJP said the Congress had amended the Constitution 80 times, therefore, it alludes that it’s the Congress and not the BJP which has changed or is attempting to change the Constitution.

Adapting to Changes

One can say that every amendment to the Constitution is a change in the Constitution. However, an amendment is natural in a democracy and every country amends its Constitution as and when necessary to adapt to the changes in economic, political or societal situations. India has the distinction of the world’s largest written Constitution, containing 448 Articles and the most amended Constitution in the world with 106 amendments as of September 2023. The amendments are done by a majority or special majority and ratification by at least half of the State legislature. All the 106 amendments to the Constitution were voted on not only by the ruling party lawmakers, but also from the opposition parties. The BJP accused that the Congress has changed the Constitution by inserting the words “Secular” and “Socialist” in its Preamble. In a Constitution, the preamble presents the intention of its framers, the history behind its formation, and the core values and principles of the nation.

During the Constituent Assembly debates on framing the Constitution in 1946, KT Shah proposed an amendment seeking to declare India as a “Secular, Federal, Socialist nation”. The architect of the Constitution, BR Ambedkar’s objection was that the amendment was “purely superfluous” and “unnecessary”, as socialist and secular principles are already embodied in our Constitution through Fundamental Rights and the Directive Principles of State Policy. Hence, inserting the words “secular” and “socialist” in the Preamble may be unnecessary but the concept of socialism and secularism is already there in the Constitution and insertion of these two words in the preamble has not effected any change in the Constitution. Moreover, hearing a case filed by an NGO challenging the validity of Section 2 of the 42nd Amendment which inserted the word “Socialist” in the Preamble, Justice SH Kapadia stated that no political party had, so far, challenged the amendment and everyone had subscribed to it.

Basic Structure Doctrine

The Basic Structure Doctrine safeguards the essential features of the Constitution and protects them from arbitrary change. The concept of the Basic Structure Doctrine emanated from the landmark judgment in the case of Kesavananda Bharati vs State of Kerala in 1973. The basic structure of the Constitution represents judicial review, free and fair elections, secular character of the Constitution, freedom and dignity of the individual, independence of the Judiciary, etc. It also includes the separation of powers among the legislative, executive and judicial branches. As per the Basic Structure Doctrine, any amendment that tries to change the basic structure of the Constitution is invalid.

The Citizenship (Amendment) Act, 2019, violates the secularity embedded in our Constitution through Fundamental Rights and State Directive Policy and thus violates the Basic Structure Doctrine

The Constitution of any country is the supreme law of the land. In contrast, law signifies a set of rules to govern social and governmental institutions based on the spirit of the Constitution itself. All laws of the land must conform to the spirit of the Constitution. The government of the day can violate the fundamentals of the Constitution by enacting or amending a piece of law. The Citizenship (Amendment) Act, 2019, passed by the BJP government gave faster eligibility for Indian citizenship to persecuted minorities who are Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan, and who entered India on or before 31 December 2014. The Act drops the Muslims. The Act clearly violates the secularity embedded in our Constitution through Fundamental Rights and State Directive Policy and thus violates the Basic Structure Doctrine. Ambedkar participating in the debate on the draft of the Constitution said that the form of administration has a close connection with the form of the Constitution. He said the form of the administration must be appropriate to and in the same sense as the form of the Constitution, and it is perfectly possible to pervert the Constitution without changing its form by merely changing the form of the administration and making it inconsistent and opposed to the spirit of the Constitution.

Criminal Laws

The new avatar of Indian Penal Code (IPC), Code of Criminal Procedure (CrPC) and the Indian Evidence Act — Bharatiya Nagarik Suraksha Sanhita, 2023, (BNSS), Bharatiya Nyaya Sanhita Act, 2023, (BNS) and Bharatiya Sakshya Adhiniyam, 2023, will create uncertainty about criminal laws placing the lives and liberty of citizens in grave danger as the consequence of violation of criminal laws is arrest. These three new criminal laws are criticised for their potential to increase the burden of cost and backlog, creation of new offences which may affect our lives and liberty. Many laws, including Section 124 A of the sedition law, which were scrapped or stayed have been repackaged in a more lethal form and enacted in the new criminal laws violating the Supreme Court mandate in Lalita Kumari vs Government of Uttar Pradesh (2013) which held that a First Information Report (FIR) must be lodged if a cognizable offence is disclosed.

The BNSS-2023 mandates a preliminary inquiry in every cognizable offence which is made punishable for three years or more but less than seven years. Provisions of the UAPA, a stringent Act that negates the rights of the accused, have been incorporated into the new law. The consequence may be prosecution for the same offence under two different laws by two different agencies — the NIA and the local police. Interestingly the three new criminal laws were passed in the last winter session of Parliament by suspending almost all the (146 MPs) opposition.

We have experienced tremendous pressure on all the democratic institutions including the Judiciary, police, CBI, Enforcement Directorate, Election Commission and Income Tax to toe the ruling class line since 2014. Replacement of the Collegium System of judicial appointment with a National Judicial Appointment Commission (NJAC), and dropping the Chief Justice of India from the committee to select election commissioners are some such examples. Fortunately, the Supreme Court scrapped the NJAC and saved the Judiciary. Ambedkar predicted long ago that the Constitution may be perverted without changing its form simply by changing the form of the administration.