Seventy-five years ago, the modern “idea of India” — a phrase first articulated by the mystical Rabindranath Tagore — became a robustly secular and constitutional construct, thanks to the vision and intellect of our founding fathers, notably (in alphabetical order!) B R Ambedkar, Jawaharlal Nehru and Sardar Patel. We celebrate their accomplishment today as Constitution Day, marking the anniversary when the draft of the Constitution was adopted by the Constituent Assembly on November 26, 1949.

The Preamble to the Constitution itself is the most eloquent enumeration of this vision’s foremost aspirations. In its description of the democratic and progressive hallmarks of the Indian Republic, in its conception of justice, liberty, equality, and fraternity, it resoundingly proclaims that the Constitution will both embody and be the bedrock of the “idea of India”.

The role of constitutionalism in shaping the “idea of India” is the dominant strand in the broader story of the evolution and modernisation of Indian society, especially over the last two centuries. Every society has an inter-dependent relation with the legal systems that govern it, which is both complex and, especially in our tumultuous times, endlessly and vociferously contested.

Challenging it today are many dangerous trends — the hollowing out of our democratic institutions, the hijacking of our investigative agencies, the disempowerment of our news media, the pressures on the judiciary and even the legal fraternity, and the blatant communalisation of our politics and public life. All of these represent our constitution makers’ worst fears.

Over the past decade, the Constitution and the values it embodies — especially those of liberty, equality, and fraternity, all woven together by secular pluralism — have been threatened. Its most seminal contribution to the “idea of India”, that of the primacy of liberty and autonomy, and of the individual citizen being the true custodian of her Republic, has been brutalised. Dissent in particular has been villainised as anti-national, with dissidents charged under draconian anti-terrorism laws, which turn the process into the punishment. This ensures that an undertrial languishes endlessly in prison before — as has occurred in 97 per cent of the cases filed under the Unlawful Activities (Prevention) Act (UAPA) — being acquitted for lack of evidence. While we lost both Father Stan Swamy (an infirm, 84-year-old Jesuit priest) and Professor G N Saibaba (a wheelchair user with over 90 per cent disability), whose deaths remain a blot on our collective conscience, to the UAPA, young Umar Khalid has spent more than four years in jail thanks to this draconian law.

Ambedkar saw the principles of liberal constitutionalism — the centrality and secularity of the state, personal liberty and the right to constitutional remedies, non-communal political representation — as cures for the conundrums thrown up by imposing a liberal Constitution upon an illiberal society. Constitutions are, first and foremost, as Ambedkar explicitly stressed, tools to limit and restrain state power. The challenge lies in reconciling the limitations to state power with a popular mandate, thus preventing temporary majorities — because in a democracy, a majority is always temporary, though governments sometimes forget that — from completely undoing what the Constitution has provided. The founders of the Indian republic worried about democracy becoming an elections-only affair, and of a popular mandate degenerating into majoritarianism. In the Constituent Assembly, the Prime Minister and Home Minister of the time, Nehru and Patel, went to great lengths to limit their own power — a thought simply unimaginable today.

As Ambedkar put it — and as many of us in the Opposition have long been saying — the rights of Indians cannot “be taken away by any legislature merely because it happens to have a majority”. After all, our quest for freedom was not merely a struggle for freedom from colonial subjugation. It embraced “constitutional morality”, a commitment to constitutional means, processes and structures, alongside a commitment to free speech, scrutiny of public action and legal limitations on the exercise of power. Only if all citizens embraced this could freedom flourish in India.

Ambedkar warned that it is entirely possible to pervert the Constitution —without changing it — by merely changing the form and functioning of the administration to make it antithetical to the spirit of the Constitution. Ambedkar argued that “Constitutional morality is not a natural sentiment. It has to be cultivated… Democracy in India is only a top dressing on an Indian soil which is essentially undemocratic.” He insisted that the Directive Principles of State Policy were necessary because although the rules of democracy mandate that the people must elect their representatives, who wield power, the Principles reaffirm that “whoever captures power will not be free to do what he likes with it.”

Today, our Constitution’s pluralist, progressive, and peaceful idea of India faces numerous perils, as do the institutions and watchdogs entrusted with safeguarding it and fending against authoritarian impulses and brute majoritarianism. Over the past decade, concerted efforts have been made to reduce our Parliament from a vigorous forum of deliberation and dialogue to a notice-board and rubber stamp for the ruling party’s agenda. The Supreme Court has seemed to slacken as well, losing the progressive zeal that animated the judgments recognising the Right to Privacy and decriminalising homosexuality; it has done little to hold an overweening executive to account and protect personal liberties, let alone advance them. Add to this the weaponisation of investigative agencies (such as the ED, CBI and Income Tax Department) against political opponents and dissidents, and the battering into submission of the Election Commission, and we have a crippling environment of fear that undermines the rule of the Constitution.

But there is no reason to lose hope. Over the past five years, democracy- and liberty-loving citizens of India have risen to reclaim our Republic. Rescuing the Constitution of India from the highbrow preserves of courtrooms, legal chambers, and law schools, they have mobilised it and sent it into battle. In the biting cold of December 2019 and early 2020, lakhs of Indians across the country — from youngsters and students to the old yet indomitable women of Shaheen Bagh — poured into the streets in protest against the appalling Citizenship Amendment Act and National Register of Citizens, which gave legal colour to the two-nation theory. On those freezing nights wrapped in fog, countless Indians of all faiths and castes, speaking numerous languages, held aloft portraits of Ambedkar, Gandhi, and Nehru and chanted the Preamble in unison — as one people. As the electrifying cry of “We, the People of India …” ripped through the darkness, the “idea of India” roared back to life, revitalising our Republic and promising to awaken us into that “Heaven of Freedom” Tagore wrote so inspiringly about.

The Constitution will prevail as long as its spirit survives in the ordinary citizens of India.