Muskaan Agarwal LEGAL METHODS 23013265

I’m very happy with the consistency in the citations. However, there are mistakes as you will

see. please work on them and you should be good.

‘Fundamental Rights were to be framed amidst the carnage of Fundamental Wrongs.’1

This quote forms the perfect premise when we discuss the democratic value of the longest

constitution in the world and when we ask ourselves if a truly egalitarian society is still a

utopia or do we still consider the very inception of our sacred nation to be a facade of

equality and equal representation or do we as a nation still practise inclusive democracy in

theory and an exclusive democracy in practice. 2

IS INDIAN DEMOCRACY TRULY UNDEMOCRATIC?

The success of Indian democracy was questioned from the very start considering the

increasing diversities of caste, creed and religion, amidst the horrors of a national divide with

fundamental human rights not only being suspended but violated at every turn followed by a

period of democratic backsliding with the emergency from 1975-1977 where democratic

institutions were further weakened. So when Ambedkar in the given quote says that the

essential seeds of our democracy were sown by a disproportionate majority into an

undemocratic soil, he is not wrong. The domination of the Indian National Congress(INC)

and British criticism that the Congress was not a truly representative party, but rather a

mouthpiece of ‘actively organised and engineered minorities who, having seized upon power

by force, or fraud or chicanery, go forward and use that power in the name of vast masses

with whom they have long since lost all effective connection’ 3 always to some extent falsified

the idea of a truly democratic India. This also instilled in the minds of the minorities a

suspicion of being underrepresented and the fear of not being heard which connects us to the

1
Granville Austin, The Indian Constitution 71 (1st ed. 1966).
2
Sashikant Pandey, Indian Democracy: Inclusive in Theory Exclusionary in Practice, 74 The Indian Journal of
Political Science 557- 570 (2010). Where is the link and access date?
3
Ramchandra Guha, India After Gandhi 89 (1st ed. 2007) full stop?
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point Ambedkar is making in the first part of the quote, which states how constitutional

morality is still not a natural sentiment because a large part of the population has not been

able to grasp the idea behind it or its existence as a concept.

DEMOCRATIC PERCEPTIONS AND CONSTITUTIONAL MORALITY – A WEB

The constitution of a country may be described as its foundational law, on the basis of which

all other laws and executive acts are to be tested for their validity but constitutional morality

shows the commitment to liberty of the citizen. Thus when we say that it has to be cultivated

there has to be an unbridled trust in the conscience of every citizen in the working of the

system and the legitimacy of their leaders. In the Constitution of India, the term

'Constitutional Morality' is not used in any of the Articles nor the concept is explained

anywhere in it. However, the term Morality finds place in four places, which are under

Article 19 (2),4 Article 19 (4),5 Article 25 (1)6 and Article 26 (Right to Freedom of Religion) 7

of the Constitution. With the background described above there was and still exists a slight

aura of distrust in the vision of many minority communities which acts as a hindrance

whenever the interpretation of any law deviates from its black letter. What is ironic is that

constitutional morality recognises plurality and diversity in society and tries to make

individuals and communities more inclusive in their functioning by constantly providing the

scope for improvement and reforms for example in Navtej Singh Johar v. Union of India, 8 the

SC provided a framework to reaffirm the rights of LGBTQ and all gender non-conforming

people to their dignity, life, liberty, and identity which though was a very progressive step in

the spectrums of individual liberty and dignity but was still seen as an attack towards societal

and religious values of various communities while the whole judgement was based on the

4
India Const. art. 19, cl. 2.
5
India Const. art. 19, cl. 4.
6
India Const. art. 25, cl. 1.
7
India Const. art. 26.
8
Navtej Singh Johar v. Union of India, AIR 2018 SC 4321(India).
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idea that “Denial of self-expression is like death”.9 This is where the cultivation of national

unity and constitutional morality takes centre stage , to abate the wariness of an Indian

citizens and motivate them to concur or differ from the notions of the idealistic ‘democratic’

or ‘undemocratic’ that past experiences have set.

INDIAN SECULARISM - ITS ORIGIN VS ITS CONTEMPORARY MEANING

Absence of any rigid demarcation between the degrees of sacred and secular after the 42 nd

amendment of 1976 which made secularism a basic fundamental feature of our polity but

failed to define it, the Indian judiciary has had a remarkable autonomy to interpret and

adjudge what is secular and what is not. The first praise for a nation like India has always

been its plural multicultural and multireligious roots which is acknowledged throughout the

globe and in the years post independence it was upon the judiciary to uphold this through the

various judgements it pronounced. At the time of the constitutional assembly debates, there

were three distinct views with regard to the structure of secularism – a) No concern theory

which separated religion and state , b)No links theory between the state and the religion to

prevent the demeaning of the latter, c)The equal respect theory which respected all religions

alike and granted religious liberty to all. 10 Unlike the US where secularism endorses the ‘non

establishment’ clause, in India its usage has been conditioned by the social milieu thus

leaning towards the equal respect theory Indian secularism does not envision a wall of

separation between religion and politics but the neutrality of the state towards all religions. 11

However, when we look at the controversy behind the Gyanvapi Mosque or the entry to

Sabrimala temple, we encounter threats to that very equal respect clause that the makers of

9
Id.
10
Shefali Jha, Secularism in the Constituent Assembly Debates 1946-1950, 37 Economic and Political Weekly,
3175–3180 (2002). Where is the link and the access date?
11
Sanghamitra Padhy, Secularism and Justice: A Review of Indian Supreme Court Judgments 39 Economic and
Political Weekly, 5027–5032 (2004). Same comment as above
Muskaan Agarwal LEGAL METHODS 23013265

our constitution wanted to maintain. In the case of Abhiram Singh v. C D Commachem, 12

there was a question before the Court about whether secularism means complete separation of

religion from politics. The Court held that secularism does not say that the State should stay

aloof from religion instead it should give equal treatment to every religion. Religion and caste

are vital aspects of our society, and it is not possible to separate them completely from

politics but with politics and religion becoming more and more intertwined, the key essence

of this word that appears in our preamble gets demolished making us as a country move

towards social chaos and structural collapse. So when we examine the secularity of India in

the years post-2000s we see the conflict between several interpretations set by precedents and

landmark judgements which are then again put to debate with every new case which invokes

the character of the secular India be it the deliberation on uniform personal laws or using

‘bharat’ on India’s G20 placard.

INDIA – BY A RAMCHANDRA GUHA AND BY AN LAW FRESHER

When an Italian nation was created in the second half of the 19th century out of a mosaic of

principalities and statelets, one Italian nationalist wrote: “We have created Italy. Now all we

need to do is to create Italians.” The prime exponent of modern Indian nationalism, Nehru, never

spoke of “creating Indians”, because he believed that India and Indians had existed for millennia

shaping the identity of Indian through each atrocity that the colonial india has witnessed. Guha

in this text describes the conflict-ridden history of an unlikely democracy which is India.

Through examples of prominent leaders he navigates us through the hardships that the

longest constitution in the world had to bear before it could call itself a truly independent

nation. His idea of India stems out from his deep understanding of the experiences he himself

had a chance to witness from the time of the colonial turmoil. As he explains the elections ,

the language barriers and the prevalent caste system , we gain a perspective into his idea of

12
Abhiram Singh v. C D Commachem AIR SCC (India).
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nation which despite all its shortcomings he holds in the highest regard. When he mentions

how Granville Austin gave utmost credit to all Indians ,he acknowledges the power of our

population and the powerful role their mere participation plays in our democracy. Guha’s

idea of this country is not an abstract one but a structural one which is pillared by four strong

ideas that Mahatma Gandhi had propounded – Non-Violence, Hindu-Muslim harmony,

Abolition of untouchability and removal of poverty. In my personal opinion, this is the India

of Gandhi’s dreams and thus an India of Guha’s dreams which we can see come to life . After

75 years of independence our country has achieved a lot in terms of social , societal and

economic spheres. From condemning orthodox and obnoxious practises practised by both the

majority and the minority the country has set an example of tolerance which points towards

the robust and systematic will of Indians to strive towards being a healthier nation. So when

asked for my idea of India , it is a conglomeration of diverse people in unalike settings

demarcated by social obstacles of caste and religion still brought together by their shared

struggle because of which they take pride in calling themselves Indians. The emergence of

globalisation and building ground of artificial intelligence pose significant challenges to this

very feeling because of the very prevalent economic gap which consecutively generates the

technological gap which might in the future hamper the very structured India our dynamic

leaders had laid down for us. Thus taking into account the Guha’s India which is not devoid

of faults but still manages to emerge triumphant out of every anomaly it has to experience,

my imperfect India also resonates with the same making it as perfect as it can get.

A work like this should have a befitting conclusion. Else, the beauty of the work is robbed

off. This is a good attempt. however, I will prod you to work even harder by fixing the

citation issues, structuring. otherwise, you have the matter, flow and everything. to be close to

perfect you have to strengthen the ither mentioned areas.

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