The Paradox Of Law In India's General Election 2024

As the campaigning reached its crescendo, many described these elections as a contest for saving the Samvidhan (Constitution). It got invoked, even by its critics, as the foundational law of the country―the ‘grundnorm’. The consensus held in it for the last 75 years was seen to be at stake this time: in particular, the principles of secularism, equality and non-discrimination, federalism, and even democracy. Its emotional appeal pulsated as anxieties spiralled. The Bharatiya Janata Party's (BJP)’s ambitious target of securing more than 400 out of 543 Lok Sabha seats had anyways created a buzz. But when several BJP candidates connected the number with getting two-thirds majority, its implications hit hard. A two-thirds majority is required for fundamentally amending the Constitution. Prime Minister Narendra Modi himself assured the people against any such plan. Still the BJP’s candidate from Ayodhya declared in a public meeting that they would “make a new Constitution”. Many voters saw a red flag, especially against the backdrop of the controversial construction of the temple at Ayodhya.

The Congress manifesto offered a crucial counterpoise by placing the Constitution’s sanctity at the top. Its opening statement was about the Constitution as their “sole guide and companion”. It carried an entire chapter titled “Defending the Constitution” for “saving democracy, removing fear, restoring freedom”. There was an upfront commitment to social justice and equity. Reservation and other affirmative action were mentioned clearly, to lift socially marginalised groups. Religious minorities were explicitly included in that. Securing the Union of India’s federal structure against hyper-centralisation was identified as another important constitutional task. In every public meeting, Congress leader Rahul Gandhi carried a red-colour pocket-sized copy of the Constitution, evocatively holding it up and echoing its tenets before the masses.

The BJP’s manifesto carried one explicit commitment about the Constitution: to bring in the contentious Uniform Civil Code (UCC) under Article 44 of the Constitution, as a single code of personal laws for the entire country. Perhaps to allay fears about majoritarianism as its driver, the manifesto presented it as primarily towards gender equality and women’s rights, while harmonisation of laws of all religious communities and modernisation were mentioned as additional impulses.

Apart from the Constitution, law in general also received unusual attention in these party manifestoes. For the Congress party manifesto, the ground was prepared by Rahul Gandhi’s nearly 7,000 km-long Nyay Yatra (Justice Walk) shortly before the announcement of the election dates. Direct conversations with communities on the way, across the length and breadth of India, led to the imagination of five pillars of justice (Paanch Nyay): suppressed communities’ participation, youth, farmers, labour and women. This blueprint was further expanded in the manifesto which was titled as Nyay Patra (‘Justice Letter’) as a progression of Nyay Yatra. Law featured as a major ally of justice in the manifesto, both proactively and reactively. It was consistently woven into the programmes as proposed statutes, adding accountability to the promises. Also, a series of action points were listed around the existing laws, including ending the weaponisation of laws and ensuring the ‘bail, not jail’ rule in all criminal laws. Also, it flagged the importance of parliamentary process for legitimate law-making, proposing the review of all laws which were passed without proper parliamentary scrutiny and debate. On the UCC, the Congress manifesto advocated the alternative approach of community-led reform of personal laws.

The BJP’s manifesto was primarily programmatic in nature, with elaborate details of a massive number of programmes. The saffron party manifesto also took law seriously, though with a different orientation―to enhance the efficiency of systems of law towards “a more business-friendly and citizen-centric legal environment” in the country. Clearly, by addressing the problems of systemic inertia, this manifesto too was responding to valid concerns raised by another set of constituencies―the actors in India’s impressive economic growth story. A major promise the BJP manifesto made was for the overhaul of the entire commercial and civil justice systems and procedures. A related promise was made for improved ecosystem for alternative dispute resolution and a faster legal system. It also expressed support for civil liberties by promising to “remove” the Armed Forces (Special Powers) Act (AFSPA) in the Northeast states of India in a phased manner.

This unprecedented level of attention to the Constitution and law by the main stakeholders in this election was a sign of recognition of both―anti-people laws fuel civil society movements that are disruptive, and people continue to relate with law as a vital constructive space and process. The concepts of negative peace, positive peace and creative tension, as explained by Martin Luther King Jr, helps unpack this contradiction:

“Negative peace is an absence of tension. Positive peace is the presence of justice.”

Ironically, the rise in importance of the Constitution and law in this election was triggered by their widespread neglect in last decade. In this period, the country went beyond the stage of impunity for breaking the laws. With its parliamentary majority, the regime could just amend the laws instead―in the name of peace, security, order and efficiency, but in fact frequently for quelling dissent and questioning. More laws veered towards being ‘unjust laws’, the opposite of what laws ought to be. More ‘legal illegalities’ were spawned, while new illegalities were also crafted. The number of ordinances and executive notifications grew, bypassing the parliamentary processes. Preventive detentions, selective arrests and prosecutions mounted.

At the same time, some of the most scintillating people’s movements of our times have been forged around opposition to specific laws. They are reminiscent of Mahatma Gandhi’s iconic civil disobedience movement, which rejected laws but not the Law. Thousands of people courageously rose against the Citizenship (Amendment) Act, 2029, and Farm Acts, calling them ‘kala kanoon’ (black law) and unconstitutional, while remaining peaceful and orderly. Closer to the election, a large people’s movement has been building in Ladakh, demanding special constitutional protection under the Sixth Schedule. Once again, the protesters were respectful of law and order. Even during the general election, civil society groups collaborated to keep a close, but peaceful watch on the polling process. They questioned the Election Commission’s integrity, but also approached it for compliance with the election law’s specific provisions.

People’s ambivalence towards law influenced this election’s contenders’ stances, and in turn, its process in striking ways. “Law is the discipline closest to power,” says Roberto Unger, the Brazilian philosopher-jurist, yet it has “untapped potential” to “inform the self-construction of society under democracy”. Both, the power and the untapped potential of law in a democracy, were dynamically intertwined in this momentous election’s course, generating surprise outcomes which are still unfolding.

(Shruti Pandey is a lawyer and currently a professor at O P Jindal Global University)