You can never have a Hindu Rashtra under a secular Constitution: Indira Jaising

A Hindu Rashtra (Hindu nation) cannot exist under a secular Constitution, Senior Advocate Indira Jaising said on Friday while also flagging the backdoor attempt to reshape the Indian Constitution without formal amendments, particularly through legislative and judicial practices..In her speech, Jaising warned that the reinterpretation of laws in alignment with the majoritarian ideology threatens India’s democratic and secular fabric."Faith and belief cannot be the basis of law making. They are nevertheless protected under Articles 25 and 26 of the Constitution of India ... It has no place in public life. In my opinion, the rationale for the secularism that India adopted is that it is the only guarantee for a society that will give us the security and integrity of India. Without that, we are in danger of seeing several wars of hatred from within the country and creating the perfect context for an external attack. So when we defend secularism, we don't do it for 'appeasing the Muslim community.' We do it in the interest of India ... You can never have a Hindu Rashtra under a secular Constitution," she said. .When we defend secularism, we don't do it for 'appeasing the Muslim community.' We do it in the interest of India.Indira Jaising.She added that the Constitution is being ignored despite all talk of constitutional transformation and such informal changes are being resorted to since it is difficult to challenge them in courts.."Why is that the Constitution is not being formally amended, why not? I think the reason is that if you can do from the backdoor what you need to do from the front door, why bother? You can just repudiate the Constitution in your day to day practice and then say what we really need is a nation covered without codified laws. As the Chief Justice of the Delhi High Court pointed out, Constitution is the only thing that will guarantee our rights and nothing else and that does mean a text - a text which is normative and a text which will guarantee our rights and impose limits on the powers of the State. The Constitution is being ignored despite all talk of constitutional transformation. The silent change is difficult to challenge. Written codes are much easier to challenge in the court," she said..Constitution not being formally amended but being repudiated in day to day practice. Silent change is difficult to challenge in court.Indira Jaising.Jaising was delivering the 29th Justice Sunanda Bhandare Memorial Lecture on Modern Constitutionalism. Delhi High Court Chief Justice DK Upadhyaya was the chief guest while the event was presided by Delhi High Court Justice Vibhu Bhakru.In her speech, Jaising cited the examples of anti-conversion laws, the Citizenship Amendment Act (CAA), and other legal developments, arguing that they exemplify an informal repudiation of the Constitution.Jaising said that these actions are being justified under the garb of "cultural nationalism".“We are witnessing an effort to place a norm above the grundnorm, and this norm is justified in the name of decolonization and cultural nationalism,” she said, questioning what “culture” was being reclaimed in this process.Anyone opposing the same are labelled as "urban naxals" or "terrorists", she said."I would like to point out of course that there is great resistance to what is going on. Of course, we are labelled as urban naxals/ terrorists. We have also been told that we are bullying judges but I am yet to see a judge who has been bullied. No judge that I know has ever been bullied by a lawyer," the senior lawyer opined..She pointed out that while secular democracies ensure human rights protections, countries where secularism is undermined struggle to uphold democracy..There is great resistance to what is going on. Of course, we are labelled as urban naxals/ terrorists.Indira Jaising.She also challenged claims that the new criminal laws decolonize India’s legal system, arguing that they instead entrench the power of the state while retaining problematic colonial legacies. She pointed out that while these laws rebrand sedition and redefine criminal offenses, they preserve gendered inequalities such as marital rape. "Homophobia was institutionalized by colonial laws. Marital rape was institutionalized by colonial laws. And yet today, the same people who claim to be decolonizing are the ones arguing that marital rape should not be criminalized," she said..Jaising also took a dig at judicial decisions reflecting deep-seated patriarchy, referring to a Gujarat High Court ruling where a judge cited the Manusmriti while ruling against the abortion request of a minor girl. Jaising recalled that Dr. BR Ambedkar had symbolically rejected the Manusmriti in 1927, an act commemorated as Stree Mukti Diwas to this day.She underscored the deep-rooted patriarchal resistance to change, noting that the voices against marital rape laws and same-sex marriage were overwhelmingly male."The same set of people, and mind you, there are all men that are arguing that marital rape should not be decriminalised, and they are also the men who are saying the Constitution is colonial and they are also saying that there should be no same-sex marriage," she stated..Having Constitution and practicing it are different; Hitler became dictator legally: Delhi High Court Chief Justice.Jaising further stated that criminal laws are being weaponized to target marginalized groups, while those in power enjoy near-total impunity."They do not criminalize 'Rajdrohi', but they criminalize 'Deshdrohi'. I don’t see the difference between the two. They need to get out of these linguistic gymnastics," she remarked, highlighting how dissent continues to be criminalized despite the rhetoric of legal reform..Jaising also addressed the selective application of laws, arguing that new legislative changes disproportionately affect the marginalized while shielding those in positions of power. She cited reports on the declining social and economic status of Muslims in Northern India, noting that education levels have dropped, employment opportunities have shrunk, and housing discrimination remains rampant."The reinterpretation of laws to align with majoritarian ideologies threatens secularism in a multi-religious country and, by extension, the unity and integrity of India," she said..She was also critical of efforts to bypass constitutional safeguards through procedural maneuvers, pointing to how criminal laws were passed as money bills, preventing scrutiny by the Rajya Sabha, and how recommendations made by the Collegium for judicial appointments were disregarded."Independence of the judiciary appears to be threatened when recommendations made to the Collegium are not respected. And Parliament is undermined when criminal laws are passed as money bills to avoid the Rajya Sabha," she stated..Jaising described these developments as part of a larger pattern of constitutional erosion, arguing that those in power are effectively sidelining the Constitution rather than amending it outright..She concluded with a warning that ignoring the Constitution’s foundational principles could endanger India’s democracy. While the Constitution remains a shield against authoritarianism, she said its silent erosion through legal reinterpretations and legislative changes poses a greater challenge than formal amendments.Read more about speech of Delhi HC Chief Justice here..[Watch Lecture].[Read Live Coverage]