Anand Teltumbde’s new book examines the treatment of the marginalised in the constitutional order

The Indian Constitution, while celebrated for its enumeration of fundamental rights and its commitment to social justice, also contains within it a deep contradiction – a set of provisions that institutionalise impunity for state functionaries. These provisions, often justified as safeguards for executive efficiency or protection of state sovereignty, have over time morphed into legal shields that enable the state to act with near-complete disregard for accountability. When it comes to the marginalised – Dalits, Adivasis, religious minorities, and dissenters – this architecture of impunity reveals itself not as an aberration but as a central feature of India’s constitutional order.

The most direct sources of this impunity lie in Articles 311, 312, and 33 to 35, which limit the scope of rights in relation to state functionaries, security forces, and public employment. For instance, Article 311 protects civil servants from dismissal or punitive action without due process. While ostensibly a procedural safeguard, it has been weaponised to prevent disciplinary action even in cases of grave dereliction – such as custodial deaths, unlawful detention, or the failure to file First Information Reports (FIRs) in atrocity cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Despite Sections 4 and 4A of that act prescribing penalties for such omissions, convictions of public servants remain virtually nonexistent. The immunity has thus become structural, not incidental.

More foundationally, Article 13(3)(a) defines “law” to include “ordinances, orders, bye-laws, rules, regulations, notifications, custom or usage.” This broad definition means that even executive orders with no legislative backing can enjoy constitutional legitimacy unless explicitly struck down. Combined with the state’s power under Article 356 (president’s rule) and Articles 352–360 (emergency provisions), this allows the central or state governments to govern by executive fiat, often outside the purview of judicial review, especially in matters designated as involving the “security of the state.”

Perhaps the most notorious sources of institutionalised impunity are found in Articles 33 and 34, which permit Parliament to restrict or suspend fundamental rights in the context of the armed forces or during martial law. Article 33 empowers Parliament to modify the application of fundamental rights to the armed forces, police, and intelligence agencies, effectively insulating them from legal scrutiny. This forms the constitutional basis for laws like the Armed Forces (Special Powers) Act (AFSPA), which grants blanket immunity to soldiers for actions – including killing – undertaken “in the line of duty.” Judicial review of such actions has been limited by courts on grounds of “national interest,” despite damning reports by bodies like the UN Human Rights Council, which has called AFSPA “a symbol of excessive state power and legal immunity.”

Similarly, Article 34, dealing with martial law, indemnifies both state and nonstate actors for actions taken during such a declaration. Though rarely invoked formally, this article’s logic underpins many laws like the Disturbed Areas Act, where state repression is normalised through legal immunities. In effect, it grants retroactive legal cover to violence, especially in conflict zones populated predominantly by Adivasis and Muslims.

The Code of Criminal Procedure also embeds impunity. Section 197 of the Code of Criminal Procedure (CrPC) (Section 218 in the Bharatiya Nagarik Suraksha Sanhita) prohibits courts from taking cognisance of offences allegedly committed by public servants “while acting or purporting to act in the discharge of official duty” without prior sanction from the government. This provision, which applies even to grave crimes like custodial torture and extrajudicial killings, has resulted in countless cases being dismissed or stalled for want of sanction. As Justice VR Krishna Iyer once lamented, Section 197 has become a “charter for bureaucratic despotism.”

This legal immunity extends to judges as well. Judges of the high courts and the Supreme Court enjoy near-absolute immunity under Articles 121 and 124(4), with removal requiring an elaborate impeachment process. While such insulation is necessary to protect judicial independence, it has created a climate where judicial inaction, caste bias, or failure to act in cases involving state atrocities can proceed unchecked. This is especially true in cases where lower courts summarily dismiss atrocity cases or grant bail in egregious hate crimes, further emboldening perpetrators and alienating victims.

Importantly, the doctrine of sovereign immunity, inherited from colonial jurisprudence, continues to haunt the Indian legal system. While the Supreme Court in Nilabati Behera v. State of Orissa (AIR 1993 SC 1960) attempted to pierce this veil by awarding compensation in a custodial death case, such cases remain exceptions. The more prevalent reality is reflected in Kartar Singh v. State of Punjab (AIR 1994 SC 1800), where the Court upheld the validity of TADA (Terrorist and Disruptive Activities [Prevention] Act), accepting the state’s argument for extreme measures despite overwhelming evidence of misuse against minorities and Dalits.

Constitutional silence also contributes to this problem. Nowhere in the Constitution is there a positive obligation on the state to punish its own officials for rights violations. Rights are framed as negative liberties – freedom from interference – rather than positive entitlements that the state must secure. This has created a perverse asymmetry, where the state is both violator and judge of its own violations. Victims of state violence must rely on writ petitions, public interest litigation, or National Human Rights Commission interventions, none of which offer binding or immediate relief. The state, meanwhile, acts as both executioner and arbiter.

It is in this context that the idea of “rule of law” in India must be interrogated. For large sections of the population – especially Dalits and Adivasis – the law is not a shield but a sword. It is invoked selectively, applied disproportionately, and enforced with impunity. Legal protections for officials who commit atrocities and systemic nonimplementation of accountability provisions have converted the Constitution’s promises into instruments of betrayal.

The call for legal reform, therefore, must move beyond procedural tinkering. It must begin by acknowledging the caste and class nature of impunity in India. Until public servants are held criminally liable for failing to protect citizens – particularly those from historically oppressed groups – the Constitution will continue to be a document of selective justice. A democratic republic cannot endure on the back of impunity. It must instead find its strength in the uncompromising pursuit of accountability, especially from those who wield power in its name.

Excerpted with permission from Dalits and the Indian Constitution, Anand Teltumbde, Speaking Tiger Books.