The idea of India is of one land embracing many
The country is in the grip of the very majoritarianism that founding leaders had so presciently warned against
I recently delivered a speech on 'Law and the Idea of India' and it was in many ways a fitting theme given the current state of our nation. But the 'idea of India' has become a highly contested concept these days. The idea of India-though the phrase is Tagore's-is, in some form or another, arguably as old as antiquity itself, and numerous are the proofs of the aspiration for cultural unity that appear throughout the history of our civilisation.
I have written in my book An Era of Darkness about how the notion of Bharatvarsha in the Rig Veda, of a land stretching from the Himalayas to the seas, contained the original territorial idea of India; and how the travels of Adi Sankara at the cusp of the 10th century, establishing his mutts in Srinagar, Dwarka, Puri and Sringeri, helped knit together the spiritual idea of India within its 'sacred geography'. Lest some see this as a purely Hindu idea, Maulana Azad, too, has written of how Indian Muslims on the Haj were all seen by the Arabs as 'Hindis', whether they were Pathans or Tamizhs. So the idea of India as one civilisation inhabiting a coherent territorial space and a shared history is timeless.
However, the idea of India as a modern nation based on a certain conception of human rights and citizenship, vigorously backed by due process of law and equality before law, is a relatively recent and strikingly modern idea. Earlier conceptions of India drew their inspiration from mythology and theology. However, the modern idea of India, despite the mystical influence of Tagore and the spiritual and moral influences of Gandhi, is a robustly secular and legal construct based upon the vision and intellect of our founders, notably (in alphabetical order!) Ambedkar, Nehru and Patel. The Preamble of the Constitution itself is the most eloquent enumeration of this vision. In its description of the defining traits of the Indian republic, in its conception of justice, of liberty, of equality and fraternity, it firmly proclaims that the law will be the bedrock of the idea of India.
To my mind, the role of constitutionalism in shaping the idea of India is the dominant strand in the broader story of the evolution and modernisation of Indian society, especially over the last two centuries. Every society has an interdependent relation with the legal systems that govern it, which is both complex and, especially in our turbulent times, continuously and vociferously, contested. It is through this interplay that communities become societies, societies become civilisations and civilisations acquire a sense of national and historical character.
It is no surprise then that while the ancient and the medieval worlds largely celebrated kings and conquerors, since the Age of Enlightenment, many of the great people who changed the course of their nations and the world for good, and sometimes worse, have been lawyers-I just need to mention the name 'Dr BR Ambedkar (MA, PhD, MSc, DSc, Barrister-at-Law, LLD, DLitt)' to illustrate this point! These men, and increasingly women, had the vision and the intellect to anticipate the problems and challenges that all civilisations in the modern era have had to confront. In the process, they found the best check-and-balance mechanism in the book of law, referred to as the Constitution, for combating these plagues to protect the interests of all our people in equal measure.
The story of humanity over the last few hundred years has been the story of the spread of democracy, rapid industrialisation and urbanisation, increasingly accompanied by globalisation of trade and commerce and the increasing impact of science and technology on human society and culture. This diversity of challenges can only be addressed if we agree on the ground rules of how we disagree and negotiate change. Of course some societies have confronted these challenges sooner and better, while others have delayed their hour of reckoning at their own peril. I would suggest that the Indian experience in tackling these challenges so far has been of the middling variety. It would have been far worse if not for the idea of India, most eloquently championed by Jawaharlal Nehru and enshrined in the political and legal system created and protected by our Constitution and its architect, Ambedkar.
It is often said that any truism about India can be immediately contradicted by another truism about India. The country's national motto, emblazoned on its governmental crest, is 'Satyameva Jayate': Truth alone triumphs. The question remains, however: whose truth? It is a question to which there are at least a billion answers-if the last census hasn't undercounted us again.
But that sort of an answer is no answer at all, and so another answer to those questions has to be sought. And this may lie in a simple insight: the singular thing about India is that you can only speak of it in the plural. There are, in the hackneyed phrase, many Indias. You may be familiar with the American motto, 'E Pluribus Unum': Out of many, one; if India were to borrow it in dog Latin, it would read something like 'E Pluribus Pluribum'! Everything exists in countless variants. There is no single standard, no fixed stereotype, no 'one way'. This pluralism is acknowledged in the way India arranges its own affairs: all groups, faiths, tastes and ideologies survive and contend for their place in the sun. At a time when most developing countries opted for authoritarian models of government to promote nation-building and to direct development, India chose to be a multi-party democracy. And despite many stresses and strains, including 22 months of autocratic rule during a 'state of Emergency' in 1975-1976, when even habeas corpus was suspended and even during our current difficult times, a multi-party democracy-freewheeling, rumbustious, corrupt and inefficient, perhaps, but nonetheless flourishing-India has remained.
One result is that India strikes many as maddening, chaotic, inefficient and seemingly unpurposeful as it muddles its way through the second decade of the 21st century. Another, though, is that India is not just a country, it is an adventure, one in which all avenues are open and everything is possible. 'India,' wrote British historian EP Thompson, 'is perhaps the most important country for the future of the world. All the convergent influences of the world run through this society.. There is not a thought that is being thought in the West or East that is not active in some Indian mind.'
That Indian mind has been shaped by remarkably diverse forces: ancient Hindu tradition, myth and scripture; the impact of Islam and Christianity; and two centuries of British colonial rule. The result is unique. Many observers abroad have been astonished by India's survival as a pluralist state. But India could hardly have survived as anything else. Pluralism is a reality that emerges from the very nature of the country; it is a choice made inevitable by India's geography and reaffirmed by its history.
This means that the idea of India is itself very unusual in today's world. Talking about Indian nationhood reminds me of the probably apocryphal story of two law professors arguing about a problem. When one suggests a practical solution to the dilemma, the other counters: 'It may work in practice, but will it work in theory?' Indian nationalism is not based on language (since we have at least 22 or 35 Indian languages, depending on whether you follow the Constitution or ethnolinguists). It is not based on geography (the 'natural' geography of the subcontinent-framed by the mountains and the sea-was hacked by the partition of 1947). It is not based on ethnicity (the 'Indian' accommodates a diversity of racial types in which many Indians have more in common with foreigners than with other Indians: Indian Punjabis and Bengalis, for instance, have more in common with Pakistanis and Bangladeshis, respectively, than they do with Poonawalas or Bangaloreans). And it is not based on religion (we are home to every faith known to mankind, and Hinduism-a faith without a national organisation, no established church or ecclesiastical hierarchy, no Hindu Pope, no Hindu Mecca, no uniform beliefs or modes of worship-exemplifies as much our diversity as it does a common cultural heritage). So Indian nationalism is the nationalism of an idea, the idea of an ever-ever land-emerging from an ancient civilisation, united by a shared history, sustained by pluralist democracy under the rule of law.
This land imposes no narrow conformities on its citizens: you can be many things and one thing. You can be a good Muslim, a good Keralite and a good Indian all at once. Where Freudians note the distinctions that arise out of 'the narcissism of minor differences', in India we celebrate the commonality of major differences. To stand Michael Ignatieff's famous phrase on its head, we are a land of belonging rather than of blood.
So the idea of India is of one land embracing many. It is the idea that a nation may endure differences of caste, creed, colour, culture, cuisine, conviction, costume and custom and still rally around a democratic consensus. That consensus is around the simple principle that in a democracy under the rule of law, you don't really need to agree all the time-except on the ground rules of how you will disagree. The reason India has survived all the stresses and strains that have beset it for nearly 70 years and that led so many to predict its imminent disintegration is that it maintained consensus on how to manage without consensus. Today, some in positions of power in India seem to be questioning those ground rules, and that sadly is why it is all the more essential to reaffirm them now. What knits this entire idea of India together is, of course, the rule of law, enshrined in our Constitution.
Jawaharlal Nehru's opening remarks when he moved the motion at the newly established Constituent Assembly on December 13th, 1946 gives us a view of the immense pressure and responsibility on the lawmakers to ensure that they responded fittingly to the situation and did justice to the task of constitution-making. They had to preserve the 'past' idea of India and march towards the 'future' idea of India. Nehru said, "We are at the end of an era and possibly very soon we shall embark upon a new age; and my mind goes back to the great past of India to the 5,000 years of India's history, from the very dawn of that history which might be considered almost the dawn of human history, till today. All that past crowds around me and exhilarates me and, at the same time, somewhat oppresses me. Am I worthy of that past? When I think also of the future, the greater future I hope, standing on this sword's edge of the present between this mighty past and the mightier future, I tremble a little and feel overwhelmed by this mighty task. We have come here at a strange moment in India's history. I do not know but I do feel that there is some magic in this moment of transition from the old to the new, something of that magic which one sees when the night turns into day and even though the day may be a cloudy one, it is day after all, for when the clouds move away we can see the sun later on.'
We are perhaps once again at a 'strange moment in India's history'. But if we stay in the past, we should also recall Ambedkar's concluding remarks to the Constituent Assembly in his 'The Grammar of Anarchy' speech on November 25th, 1949. He informed us of the maladies of India and the ideal idea of India, to be ensured by the rule of law. In a magisterial expression of India through the prism of politics, law, and social hierarchies, he said, "In politics we will be recognising the principle of one man, one vote and one vote, one value. In our social and economic life, we shall, by reason of our social and economic structure, continue to deny the principle of one man, one value. How long shall we continue to live this life of contradictions?' Ambedkar's eloquent assault on discrimination and untouchability, for the first time cogently expanded the idea of India to incorporate the nation's vast, neglected underclass.
The working instrument of our democracy is the Constitution of India. It is the basic framework of our democracy. Under the scheme of our Constitution, the three main organs of the state are the legislature, the executive and the judiciary. The Constitution defines their powers, delimits their jurisdictions, demarcates their responsibilities and regulates their relationships with one another and with the people. But the most important contribution of the Constitution to the idea of India was that of representation centred on individuals. As Madhav Khosla explains in his brilliant new book of legal history, India's Founding Moment: The Constitution of a Most Surprising Democracy, the political apparatus of establishing a constitutional democracy in postcolonial India-a land that was 'poor and literate; divided by caste, religion, and languages; and burdened by centuries of tradition', involved an attempt to free Indians from prevailing types of knowledge and understanding, to place citizens in a realm of individual agency and deliberation that was appropriate to self-rule and to alter the relationship that they shared with one another.
The founders of the Republic chose-as the Chairman of the Constitution's Drafting Committee, Ambedkar, recognised-to impose a liberal constitution upon a society which was not liberal. They saw the principles of liberal constitutionalism-the centrality of the state, non-communal political representation and so on-as responsive to the challenges posed by the burden of democracy. In keeping with contemporary liberal thought, they committed India to a common language of the rule of law, constructed a centralised state and rejected localism and instituted a model of representation whose units were individuals rather than groups. The key objective, according to Khosla, was to 'allow Indians to arrive at outcomes agreeable to free and equal individuals'. That was not easy.
Constitutions are, of course, (and Ambedkar explicitly made this point) tools to control and restrain state power. The challenge lies in reconciling restrictions on state power with popular rule-to prevent temporary majorities (since in a democracy, a majority is temporary, though some people forget that) from completely undoing what a constitution has provided. Khosla suggests that the founders of the Indian republic held a conception of democracy that went beyond majority rule and rejected, in Ronald Dworkin's notable phrase, 'the majoritarian premise'. They subordinated politics to law. As Ambedkar put it, the rights of Indian citizens could not 'be taken away by any legislature merely because it happens to have a majority'. The struggle for Indian independence was after all not simply a struggle for freedom from alien rule. It was a shift away from an administration of law and order centred on imperial despotism. Thus was born the idea of 'constitutional morality', meaning 'the commitment to constitutional means, to its processes and structures, alongside a commitment to free speech, scrutiny of public action [and] legal limitations on the exercise of power'. This was how freedom was intended to flourish in India.
Of course, Ambedkar realised it is perfectly possible to pervert the Constitution, without changing its form, by merely changing the form of the administration to make it inconsistent and opposed to the spirit of the constitution. Ambedkar argued that constitutional morality 'is not a natural sentiment. It has to be cultivated. We must realise that our people have yet to learn it. Democracy in India is only a top dressing on an Indian soil which is essentially undemocratic'. He insisted that the directive principles-an unusual feature of the Indian Constitution not found elsewhere-were necessary because although the rules of democracy mandated that the people must elect those who will hold power, the principles confirmed that 'whoever captures power will not be free to do what he likes with it'.
At the same time, the Constitution wanted Indians to have a new understanding of authority. They would be liberated through submission to an impersonal force that saw them as equal agents and that liberated spirit would make possible socio-economic transformation. This was important because to leaders like Jawaharlal Nehru-whose vision of democracy entailed equality and a decent standard of living for all-the establishment of a free and democratic India required the substitution of the economic power of a few rich individuals by a form of state control that could end poverty, reduce unemployment and improve material conditions.
It is striking that the Constituent Assembly rejected separate electorates, weighted representation and reservations on the basis of religion. Only days before Indian independence and the Partition of British India, Sardar Vallabhbhai Patel, in his capacity as Chairman of the Advisory Committee on Minorities and Fundamental Rights, wrote to the President of the Assembly, Rajendra Prasad, to explain why separate electorates had been rejected. Differentiated citizenship on the basis of religion, Patel argued, had already been tried in the colonial era and had led to Partition. The answer lay in moving away from a representative framework that recognised identities that were regarded as stable and fixed and toward a model of citizenship centred on the political participation of individuals. Such a model would allow the categories of majority and minority to be constantly defined and redefined within the fluid domain of politics and it would thereby offer the greatest form of security.
This fundamental difference of opinion continues to haunt our politics today. The nationalist movement was divided between two sets of ideas, held by those who saw religious identity as the determinant of their nationhood and those who believed in an inclusive India for everyone, irrespective of faith, where rights were guaranteed to individuals rather than to religious communities. The former became the idea of Pakistan, the latter, the idea of India. Pakistan was created as a state with a dominant religion, a state that discriminates against its minorities and denies them equal rights. But India never accepted the logic that had partitioned the country: our freedom struggle was for all, and the newly independent India would also be for all.
On the other hand, the Hindutva idea of a Hindu Rashtra, espoused today by the BJP/RSS, is the mirror image of Pakistan-a state with a dominant majority religion that seeks to put its minorities in a subordinate place. It is particularly striking in the context of today that the makers of the Constitution explicitly rejected the notion of religion playing any role in citizenship, arguing that each individual voter exercised agency in the democratic project and should not be reduced to the pre-existing loyalties of religious affiliation. 'For India's founders, one could not be a political agent unless one's political identity was self-created.' The Constitution granted representation not to one's pre-determined identity (religion) but to one's individual expression of agency. That was why the individual vote was so important. Democratic politics cannot be reduced to the advocacy of pre-set interests; interests instead had to be expressed through politics. 'The very constitution of one's identity as a citizen,' Khosla explains, 'was itself a form of freedom.'
The adaptability of the Constitution to the ever-changing realities of national life has effectively made it a vehicle of social change.
Equally important, the above process has been substantially facilitated by our Parliament, the institution conceived for that very purpose by the Constitution. The Constitution created itself as a self-generating and self-correcting entity, a living document that allowed for its own amendment to meet the changes of the times, subject to the doctrine of basic structure, again an invention of the judiciary. In a way, it reflected the confidence in the people of this land to make adjustments and rise to meet every new challenge to our society. During the past nearly seven decades of Independence, the Constitution, which came into force on January 26th, 1950, has been amended over a hundred times by Parliament, a creature created inter alia for that very purpose by the Constitution. The small-minded may consider the high number of amendments as one of the weaknesses of our Constitution, but those with a broader vision would understand that it is actually a sign of its inherent strength-a strength that derives from its ability to be flexible without the risk of self-destruction. It has the exemplary in-built ability to adjust to the needs of the times and the fact that this is enabled through a thoroughly democratic and representative process has been the key to its effectiveness in moving our society forward in a democratic and more broadly inclusive manner.
During the journey of the constitution, there have been innumerable instances which have either corroded or preserved or nurtured the idea of India. The founders of our freedom passed the baton of constitution and law to the next generation. Much progress has happened under the purview of one of the founders of the nation, Pandit Jawaharlal Nehru. The first amendment in 1951 abolished zamindari (though, against the right to property) and placed reasonable restrictions on speech, while the seventh amendment in 1956 laid the foundation of states on linguistic lines. The creation of states, Union Territories and their autonomy brought many of the northeastern states and new territories to the Indian union and provided legitimacy to extending the idea of India in these territories.
During Emergency, the 42nd amendment involving various articles brought two key principles of India formally into the Constitution: 'socialist' and 'secular'. The idea of India is inseparable from these ideas, the dark period of their birth notwithstanding, which is why no subsequent Government has undone them. The various amendments to the Constitution (23rd, 45th and 51st amendments, among others) have tried to make the idea of India more inclusive as we tried to bring the vulnerable sections into the mainstream. Activist judges have taken the Constitution beyond strict legislation to promote human rights and welfare in a series of landmark judgments. As one of the largest democracies, we struggled to provide education to all Indian children; the landmark 86th amendment was passed in 2009 'conferring on all children in the age group of 6 to 14 years the right to free and compulsory education'. The Right to Information Act passed in June 2005 is another hallmark of how the law guides and derives value from the idea of India. Accountability and disclosure of information is the demand of the Indian population and today the law enshrined in the Constitution of our land emphatically acknowledges their right to do so-under the right to life under Article 21, the court recognised the right to know that is indispensable in a participatory democracy.
It must be said, however, that the Victorian-era Penal Code, drafted by Macaulay without consulting any Indians in 1837 and enacted by the British in 1861, is full of iniquities that undermine the quality of the rule of law in our country and make the code ripe for amendment if not overhaul. Many of the provisions of the code have ceased to apply in Britain itself, but we carry on this unfortunate colonial legacy in India. These include the pernicious sedition law, Section 124A, which is daily misused by state governments and the lower courts despite decades of Supreme Court rulings that sedition should only apply to incitement to violence; the notorious Section 377 ,discriminating against a section of our society for their sexual orientation, which stayed on the statute books till the Supreme Court finally read it down two years ago; and a host of examples of gender bias against women. The latter have been to a great extent remedied by a series of progressive judgments by the Supreme Court. Whatever the arguments over individual provisions, I fully support our former President Pranab Mukherjee's appeal in 2016 to scrap the colonial-era Penal Code and write a new one reflecting our experience and needs as an independent nation. It is a call I hope every one of us will rise to before long.
In the last decade the Anna Hazare movement raised the question of the role of civil society in determining legislative priorities in our democracy. The Lokpal Bill was essentially introduced by the Government in response to the strength of numbers in the streets. As a Member of Parliament I wonder sometimes what our role is supposed to be, with our lawmaking functions being encroached upon by civil society, on the one hand, and the judiciary, on the other!
There is no doubt that today's lawmakers face new and tougher challenges than ever before. The rapid advancement and penetration of information technology, improving social indicators, the change in demography, the growing economic prowess of our nation, the rise of new global threats and our ever-greater international integration all impose new constraints on the sovereign function of lawmaking, even as they also allow new opportunities.
The civil society protests of recent years add a fresh challenge. In a democracy, there are specific rights accorded to citizens by the state to help them exercise their political freedoms: freedom of speech and political association and related rights allow citizens-in other words, members of civil society-to get together, argue and discuss, debate and criticise, protest and strike (in Kerala-only in Kerala!-to declare hartals inconveniencing the general public) and even go on fasts and hunger strikes in order to support or challenge their governments. This is an essential part of promoting governmental accountability between elections: no one can seriously argue that a citizen's democratic rights begin and end with the right to choose his government through voting alone. Indeed, as Amartya Sen so brilliantly pointed out with reference to India in his The Argumentative Indian, it is through such discussions and engagement that a deliberative democracy is created. There is often a useful distinction between law and legitimacy: the greater the extent to which ordinary people are engaged with, concerned by and empowered to determine their own political destiny, the more they accept the decisions of the state institutions and the more legitimate the law becomes to the people.
So to that extent, civil society does and should have an influence on lawmaking. But that is not the same thing as saying it should have a direct role. In Switzerland, for example, ordinary citizens can actually bypass the elected legislature and write laws by voting for them in referenda that are organised by the state and whose outcomes are recognised by the government as having the full binding force of law. That is not the case, however, in most other democracies, where civil society's impact is confined to the influence it is able to bring to bear on the elected lawmakers, through the shaping of public opinion, effective lobbying, media campaigns and mass movements.
In India, we preserve the national idea through the functioning of democracy. This could be said to suit the democratic temper of our people. Our ancient civilisation had the history of having sabhas and samitis where kingdoms and even empires were ruled on the principle of democratic functioning, extending right from the grassroots level in the form of panchayats and councils which represented the broad as well as specific segments of the populace, to the royal courts where maharajahs took advice from learned and wise elders. This tradition is important to recall, since it confirms that both majority as well as minority opinion were given due importance in the formulation of public policy. This was no mean achievement in a nation and society as diverse and heterogeneous as India, with its innumerable groups and socio-religious identities. The law has the responsibility to preserve this diversity, allow each individual component to feel secure within it and yet guide the nation's progressive evolution.
Laws emerge from a political process that is itself reflective of our society. Parliamentarians are in that sense themselves products of civil society. Our democracy, our thriving free media, our contentious civil society forums, our energetic human rights groups and the repeated spectacle of our remarkable general elections have all made India a rare example of the successful management of diversity in the developing world. It adds to India's 'soft power' and influence in the world when its nongovernmental organisations actively defend human rights, promote environmentalism, fight injustice. It is a vital asset that the Indian press is free, lively, irreverent, disdainful of sacred cows. All of these work together to promote and expand the idea of India.
But at the same time a new and disturbing tendency has arisen in our times, of the free press intruding upon the prospects of justice by conducting 'trial by media' in a number of sensationalised cases. While I am the last person who would wish to place any restrictions on press freedom, of which I have been a staunch advocate all my life, I am troubled by the large number of recent instances in which the press, in addition to playing the role of witness and observer-which it must-has also appointed itself prosecutor, judge, jury and even executioner! I raise the question not because I have any answers to offer but because I believe all of us must be aware of this new tendency and conscious of its dangers for our democratic and constitutional system.
After all, judges are also members of our society and are exposed to our media-despite their undoubted judicial rectitude, it is difficult to imagine that they are completely uninfluenced by the media they consume daily.
And then there is the threat we have seen to law and the idea of India from disturbing developments of recent years: mob rule, vigilantism and lynchings. When these occur, they undermine both the sanctity of the law as the ultimate arbiter of justice and also faith in the law as the cement that binds the idea of India together. It is vital that we reassert the primacy of law by bringing these self-appointed upholders of justice to justice, to teach them the importance of subordinating their self-righteousness to the majesty of the law.
The 'elephant in the room', of course, is the current challenge to the idea of India from a law, the Citizenship (Amendment) Act. Since the constitutionality of the law is before the Supreme Court, I will not enter into the merits of it here, but it is without question the first law to question a fundamental underpinning of the idea of India, that religion is not the determinant of our nationhood and, therefore, of our citizenship. Anxiety about the implications of this law has already created an increase in tensions and an eruption of violence that has claimed 56 lives in the nation's capital and left hundreds injured. It has also injured the idea of India as inclusive state which honors the equality of all and guarantees that the state will not practice religious discrimination.
Let me turn again to a famous speech of Ambedkar, this one on November 4th, 1948 on the subject: "To diehards who have developed a kind of fanaticism against minority protection, I would like to say two things. One is that minorities are an explosive force which, if it erupts, can blow up the whole fabric of the state. The history of Europe bears ample and appalling testimony to this fact. The other is that the minorities in India have agreed to place their existence in the hands of the majority. They have loyally accepted the rule of the majority, which is basically a communal majority and not a political majority. It is for the majority to realise its duty not to discriminate against minorities."
Today, India is in the grip of the very majoritarianism that Ambedkar had so presciently warned against. The Prime Minister's great hero, Sardar Patel, had urged in the Constituent Assembly on May 25th, 1949: "It is for us who happen to be in a majority to think about what the minorities feel, and how we in their position would feel if we are treated in the manner they are treated." Given the Government's oft-expressed admiration for the likes of Ambedkar and Patel, one can only hope that they will abandon their current approach, which reduces individuals to their religious affiliations and denies them their agency as free citizens of our democratic republic.
Of course, it is for the highest court in the land to rule on whether this legislation honours the letter of the Constitution, but many of us feel strongly that it violates the spirit-the spirit that animates it, the spirit of the very idea of India.
Shashi Tharoor is a member of Indian parliament
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