Who gets to call a constitutional failure a constitutional failure – when it happens?Not years later, when commissions report and files have closed. Not after the courts speak in hindsight. But now, when people are jailed without trial, deaths occur without accountability, power hardens and demands silence as the cost of order.In India, the answer is getting narrower. Judges may speak – formally, cautiously, within the grammar of restraint. Lawyers may speak – preferably inside courtrooms. Citizens might speak – if they are polite, cautious and prepared to wait. Everyone else is told they are being political, emotional, disruptive. The term “activist” appears as a dismissal. The phrase “neutrality” is offered as a muzzle.This is not neutrality. It is gatekeeping.The Indian Constitution was not forged by calm or consensus. It emerged from strife – over who belonged, how power would be restricted, how inequality would be challenged, how dissent would be protected. The Constituent Assembly did not act as if it were above politics. It fought its way through them. The Constitution took sides. It declared its side with liberty, equality, dignity, fraternity. To pretend otherwise is to misread its origins – and to abuse its authority.But over time we have constructed a hierarchy of constitutional speech. Some voices are authorised. Others are warned to remain in their lane. The asymmetry is telling. Those closest to power are seldom asked to be restrained. Those who challenge it almost always are.Look at how governance failures are narrated.When some children die after consuming contaminated cough syrup, the response is bureaucratic. Factories are sealed. Committees are formed. Compensation is announced. But the deaths are not framed as constitutional violations of the right to life. Regulatory breakdown is seen as an accident, not as blame. The language of the Constitution is conspicuously absent.When people die after drinking polluted water – an unfortunate pattern that repeats itself across states – the script is familiar. Officers are transferred. Reports are commissioned. Media attention fades. Senior officials’ criminal responsibility is practically never fixed. Lives are lost but there’s no precedent. And this is how it is for unsafe roads, collapsing bridges, industrial catastrophes, toxic air, failing hospitals. These are not solitary breaches. They are patterns. But they are hardly ever named as such: constitutional failures of the State’s duty to protect life and dignity. This is not because of legal ambiguity. It is legal design.Indian criminal law requires prior government sanction before prosecuting public servants for acts allegedly committed in the discharge of official duty. This shield was found under Section 197 of the old Code of Criminal Procedure (1973) and continues under Section 218 of the Bharatiya Nagarik Suraksha Sanhita (2023). In theory, it serves to guard honest conduct. In practice it has become a near-absolute barrier to accountability.A senior bureaucrat is seldom sanctioned. Consequently, Indian Administrative Service (IAS) officers are almost never put to court for deaths due to regulatory negligence. Failure is handled by transfers, not prosecutions. Careers remain intact. Often, postings improve. The underlying message is clear: a mistake may embarrass, but it will not ruin careers. Transfers are not accountability. They don’t punish wrongdoing or discourage repetition. They are administrative optics playing the role of justice.The Harda firecracker factory blast in Madhya Pradesh, in February, 2024, that I am still fighting legally, is a case in point. More than several lives lost in an industrial accident that could have been preventable. Questions were put to licensing, inspections and enforcement. What was to come was predictable: suspensions at the bottom, transfers at the top, silence on criminal responsibility for systemic failure. Incidence after incidence of firecrackers factory blasts occur across states, and yet there is a single case which has been categorised as a constitutional failure to protect the lives of unorganised labour working in these factories, that store explosives way beyong their license permits, due to negligence or culpability of Collectors, who act as rightful authorities under the Explosives Act framework.Similarly, in proven medical negligence cases, rarely is the accountability of the concerned government doctor fixed. In a recent case in Singhpur, Madhya Pradesh, surgical instruments were reportedly found during the last rites of a Scheduled Caste woman who had undergone sterilisation. The facts are chilling. Negligence appears evident. Yet meaningful action against senior government doctors or institutional reform remains elusive. Outrage flickers – and then passes.These are not aberrations. They reflect a republic in which accountability is graded.Who you are – your caste, religion, class, gender, and location – often determines whether your grievance is heard, whether your death is investigated seriously, whether the State feels compelled to answer. Equality before law exists on paper. In practice, citizenship operates like a ladder.This unevenness becomes sharper when speech itself is policed.Poets, journalists, students, activists – people who speak plainly about injustice – are increasingly made examples of. Neha Rathore’s songs and words are treated not as dissent but as threat. Umar Khalid remains incarcerated without trial. Students, writers, and organisers are booked under sweeping laws, their speech recast as conspiracy. Detention becomes the message. The political system learns quickly how to discipline speech. And at times, the judicial system appears unable – or unwilling – to disrupt this pattern. Bail becomes punishment. Process becomes penalty. The line between adjudication and acquiescence blurs.This is happening in a context where the ruling party commands disproportionate resources. It can saturate social media, replay clips endlessly, frame narratives at scale. It can make a climate activist like Sonam Wangchuk look suspect. It can turn dissent into danger through repetition alone. When power controls the megaphone, silence is not neutral – it is coerced.Where, then, is hope?Who is asking the big, uncomfortable questions a republic needs to survive? Who is interrogating not just what the law says, but how power actually operates? Who is willing to say that judges are not gods – that institutions are human, fallible, and therefore accountable? Why is discussion of corruption or opacity within the judiciary treated as taboo rather than as democratic necessity?Judicial independence does not mean judicial infallibility. Respect for courts does not require silence about their failures. A republic that cannot examine its institutions honestly will eventually be governed by them uncritically.India is often compared to China, and the comparison is usually dismissed with relief. China may be ahead by decades in infrastructure and state capacity, we are told – but it has a different political system. We are a democracy. That difference matters. It should. But democracy cannot survive on contrast alone. We cannot congratulate ourselves for being democratic while abusing democratic safeguards daily. Political freedom is not a certificate to be framed. It is a practice that requires constant vigilance.When dissent is criminalised, when accountability is deferred indefinitely, when institutions close ranks against scrutiny, democracy becomes procedural rather than substantive.A republic without accountability for air, water, roads, health, and safety is not merely inefficient. It is unjust. Development without institutional discipline produces hierarchy, not progress. The Constitution was never meant to live only in judgments. Judicial review is essential, but it is not exhaustive. Parliamentary debate, opposition scrutiny, investigative journalism, public protest – these are not deviations from constitutionalism. They are among its safeguards.When constitutional speech is monopolised, decay accelerates. Courts become reactive rather than preventative. Damage becomes normal. Silence becomes policy. This does not mean every invocation of constitutional language is principled. It can be misused. But the answer to misuse is not restraint – it is contestation. Democracy does not survive by narrowing the range of legitimate speakers. It survives by widening it.Republic Day is often framed as a celebration of inheritance. It should also be a moment of permission. A reminder that the Constitution belongs not only to courts or governments, but to the people who live under it, question it, suffer its failures, and still insist on its promises. The most dangerous moment for a Constitution is not when it is challenged loudly. It is when it is spoken about softly, cautiously, and only by a few. A republic that cannot bear to hear itself criticised is already forgetting why it was written at all.In the end, the question is not who gets to speak for the Constitution. The question is who is being silenced in its name.Silence has never saved a Republic. Only people have. And therefore, we need not be obedient citizens but, thinking ones. We need constitutional democracy, not constitutional theatre.Avani Bansal is an advocate in the Supreme Court and a national spokesperson for Congress.