If justice is the goal for CAA protestors, simply ‘defending the Constitution’ isn’t enough

As protests against the discriminatory Citizenship Amendment Act continue to roil the country, the Constitution has emerged as the protagonist of the fledgling movement. At rallies and marches, tens of thousands of people are holding up the document, reading it aloud together and expressing concern that the government is violating the Constitution with a legislation that adds a religious criterion for citizenship and discriminates against Muslims.

Many observers are taking heart from the protestors’ evocation of the Constitution. “We are witnessing now a rediscovery of the republic – and of our Constitution as its blazing torch,” remarked historian Rohit De, whose 2018 book A People’s Constitution seems to have prefigured the recent protests. The special attention protestors have paid to the Preamble has been particularly revealing of how they are approaching the Constitution: not merely to a legal document but, as Gautam Bhatia, author of The Transformative Constitution, notes, as “a charter of values and principles; a vision of a free, just, and equal society”.

The Constitution is certainly a powerful symbol with which to challenge the current regime’s majoritarian vision of India. However, when the Constitution goes from symbol to strategy and when preserving the Constitution goes from a unifying chant to the raison d’être of protest, there is cause for concern. If the goal of the Citizenship Amendment Act protests is not just to roll back the legislation but to create a society organised around principles of justice, it is time to reconsider the use of the Constitution as an organising rubric for dissent.

A largely lawless land

The first thing to remember is that for all the importance law holds, the vast majority of Indians live completely outside its reach. More than 60% of Indians live in rural areas. At least 200 million Indians are food insecure and 75% of the population consumes less than 2,100 calories a day due to poverty. An estimated 93% of workers labour in the unorganised sector.

To this large swathe of Indians, legal protections mean little, Constitutional rights even less. Theirs is a world where child labour continues; where half of all formal sector workers earn less than the minimum wage, to say nothing of informal sector; where public provisions are stolen and wages under the Mahatma Gandhi National Rural Employment Guarantee scheme denied with impunity; and where untouchability endures, with all its attendant injustices. One can imagine how tenuous the fundamental rights to equality and freedom are in such a situation.

Indeed, the rule of law has been weak in India for decades. Everything from concrete legislations like land reforms to guiding principles like socialism have arguably only ever existed in the letter of the law. Follow-through on laws remains so feeble that even Supreme Court judges have become frustrated, commenting in 2018, “What is the use of passing the orders when no one is bothered to implement it?”

In such a case, we may well wonder how much the letter of the law matters, especially when there are only 13 judges per 10 lakh people, a mere 0.2% of the budget is allocated to the law ministry, and only the literate and powerful can afford the years of lawyers’ fees and court appearances that are needed to fight for legal rights. In this situation, how can the Constitution ever be said to be “the people’s”?

Gap between law and justice

The letter of the law contains both pro-people and pro-elite provisions, but the latter seem to win out time after time. What is decisive, then, is not how progressive the law is but which group has the power to implement it. One is reminded of the prescient warning of Bhimaro Ambedkar, the architect of the Constitution, from 1949:

“On the January 26, 1950, we are going to enter into a life of contradictions. In politics we will have equality and in social and economic life we will have inequality...How long shall we continue to deny equality in our social and economic life? If we continue to deny it for long, we will do so only by putting our political democracy in peril”.

Ambedkar’s warning has gone unheeded. With the top nine Indians owning as much wealth as the bottom 50%, we have vehemently denied social and economic equality. Inequality has imperiled democracy, and chanting the Preamble will not be enough to bring it back. Without equalising the distribution of wealth, protecting the Constitution is not enough, worshipping it even less so, to create a just India for all.

The second thing to remember is that the law, even if there were some miraculous way to actually implement it, is not automatically synonymous with justice. From the start, Indian law has harbored repressive tendencies as evident in the draconian Armed Forces Special Powers Act of 1958, the Terrorist and Disruptive Activities (Prevention) Act 1985, and the Prevention of Terrorism Act of 2002, portions of which have been repealed, thanks only to widespread criticism of human rights violations.

Each of these laws have justified virulently anti-minority and militaristic atrocities. Legal scholar Oishik Sircar points out the hypocrisy well when he writes,

“On national television we were comfortably consuming Gulzar’s mellifluous rendition of why each citizen needs to defend the samvidhan (Constitution) on one hand, and the prime time coverage of the state’s manufactured Constitutional legitimacy for an armed offensive against the ‘Maoists’ on the other.”

Immersed in the idea of emancipation that the Constitution provides, Indians have been all too prone to pledge blind loyalty to the state insofar as its actions are legal, in the process conflating the legal with the just.

No substitute for people’s power

A third limitation of this overreliance on the Constitution as a strategy for organising the protests is a strategic one. While evocations of the Constitution during protests might inspire a sense of national community, they provide no programme for action. How can citizens actually block the Citizenship Amendment Act? What is the concrete path from slogan to political change? Rallies and demonstrations organised around the Constitution lack leverage, a key part of any successful movement.

A general strike leverages the threat of work stoppage to achieve its goals, civil disobedience leverages widespread social disorder and international criticism, and grassroots agitation leverages votes and the legitimacy of elected leaders. But Constitutionalism takes the wind out of all these strategies, flattening stark antagonisms between elite and oppressed while positioning all as equal petitioners before a benevolent state.

Constitutionalism’s very ability to screen out socioeconomic inequality has enabled the mainstream media to incessantly cover anti-Modi dissent without any mention of the working class. If you surveyed the average person on the street, they would probably know something about the citizenship protests but nothing about a January 8 mass strike that, according to some claims, drew one-fifth of India’s population onto the streets. That strike, which targeted concrete socioeconomic injustices and offered clear strategies of gaining leverage, was given hardly any airtime and left no impression on the public, or even on fellow dissenters.

This is a grave omission. Imagine what could have happened if the goals and strategies a mass strike had informed the Citizenship Amendment Act protests – if minorities, students, farmers, laborers, and conscientious citizens could join together for widespread civil disobedience against both the act and unemployment, both majoritarianism and economic injustice?

The opposition to the Bharatiya Janata Party’s citizenship initiatives have become a Samvidhan bachao andolan, detached from the bread-and-butter issues of an impoverished population. Meanwhile, other mass movements across the world have actually taken up strategies of the mass strike, civil disobedience, and electoral pressure to fight austerity, agitate for public goods, and demand an overthrow of the political elite class – to challenge longstanding inequalities in social and economic life.

India needs to join this movement. Instead of just chanting Ambedkar’s words, it’s time to actually put them to work.

Aparna Gopalan is a writer and educator pursuing her PhD at Harvard University. Her research focuses on the reproduction of inequality and poverty in rural India.