Is the Indian Constitution a guarantor of nationalism?
Indian universities, over the past several weeks, have become the dedicated laboratory space for testing the limits of a chhappan-inch variety of jingoism. That the university should be targeted isn’t particularly surprising – since it was increasingly evident from electoral patterns that the voice of a formidable political opposition (both numerically and principally) was no longer to be found in the houses of the Parliament. The university has been among the last few surviving spaces which continues to evolve a dissensual conscience, however enfeebled by administrative diktats and assaults on academic autonomy. The routine installation of puppets of the establishment, such as Gajendra Chauhan in Film and Television Institute of India, Pune and Sudershan Rao at the Indian Council of Historical Research, seemed to have only strengthened resistance and solidarity between and beyond the otherwise-ghettoised citadels of knowledge-professionals.
The organised witch-hunt of individuals and clampdown on spaces of dissent in the past two years came to a head at Hyderabad Central University with the institutional murder of Dalit scholar Rohith Vemula on 17 January 2016. A frenzied attempt to hush up the role of the government in the case gave birth to a sensational media-trial surrounding anti-national slogans in Jawaharlal Nehru University. The ‘traumatic wound’ of the slogan was opened up and then sought to be immunized with home-made concoctions of medicinal value – namely, that of ‘nationalism’. State-mandated first-aid doles included the measured flutter of the national flag on university campuses and the suggested display of army tanks within the university in close proximity to academic blocks. To exorcise the ‘seditious’ germ from the body of the university, the ruling party has alternated between the tactical and the antic – alongside threats of withdrawing grants and fellowships for research, we have now seen a numerical calibration of anti-national morality in the alleged numbers of condoms and meat bones found within the campus.
I shall not enter into the content of the ‘wounding’ slogan, since there is no need for a consensus on what constitutes offence. I shall also not decry the alleged content of the offending speech (reconstructed severally from hearsay reports and circumstantial records), nor speculate about the source of the said utterance attributed to imagined Kashmiri separatists or real ABVP conspirators. The legal history of court judgments on sedition has also been adequately talked about, as has the tenuous evidence against arrested students. That the case will not stand up to judicial scrutiny is known to most of us; and we also know that the government is well aware of it. Why then are they continuing to hound students such as Kanhaiya Kumar, Umar Khalid, Anirban Bhattacharya and Ashutosh Kumar? There may be a clue in the Patiala House Court violence that unfolded on 15 February 2016, in which a group of lawyers beat up journalists, students and teachers at the time Kanhaiya Kumar was to be presented before the magistrate. Such spectacles of Sangh-backed lumpenism send out a message to a larger public; it is a signifier of an order of impunity that one must not dare to challenge. The spaces of mobilisation and dissent that the newly-initiated student walks into – while behaviourally governed by the parents’ injunction to ‘study’ and ‘not do politics’ – are now in danger of being erased under the weight of direct state surveillance and the immanent possibility of police action.
Such spectacles of Sangh-backed lumpenism sends out a message to a larger public; it is a signifier of an order of impunity that one must not dare to challenge
My first question concerns the polemical force of the ‘anti-national’ and its relationship with the Constitution of India. Notwithstanding debates about the correctness of the slogan uttered in JNU or the ‘martyrdom’ of Afzal Guru, a question arises: is the Indian Constitution, as establishing the rule of law, the guarantor of nationalism? More pointedly, is the ‘anti-national’ a constitutional category? And if it is not, must we lend the term scholarly credence by launching into a defensive mode about the content of the purportedly ‘criminal’ slogan? Is dissent guaranteed by the Constitution only when the substantive content of utterance is sanctioned by the ideology of a ‘government established by law’? Can an assertion of the constitutional right to self-determination – solely as response to historical injustices and military atrocities perpetrated by successive governments – be legitimate grounds for a ‘reasonable restriction’ on free speech?
Dissent as terroristic?
Not long ago, a student asked me about the “exact meaning of tolerance”. The question of course was pitched in the context of debates about a culture of wanton un-democracy that revels in labelling all dissent and disagreement towards the current government with terms ranging from ‘illegal’, ‘seditious’, ‘anti-national’, ‘unpatriotic’, ‘hurtful’, ‘offensive’, ‘obscene’, ‘pseudo-secular’ to even a form of ‘intellectual terrorism’. If the attempt to denounce killings, mob-lynching, ink-smearing and murder-threats becomes constitutive of the popular rationale of ‘terrorism’, then we have evidently normalised the most intimate evidence of terror as the internal condition of civil life. In a period of over two years, beginning with the Lok Sabha election campaigns in late 2013, if India has moved from threatening to deport the late U R Ananthamurthy to killing Sahitya Akademi-award-winning scholars like MM Kalburgi to placing a quasi-‘fatwa’ on popular actor Aamir Khan to attacking a professor invited for delivering an academic lecture in Banaras Hindu University, then the everyday trajectory of political articulation in the country has regressed past all traces of constitutional ethics.
And this is more than having lost sight of the ‘exact meaning of tolerance’! The current government’s penchant for ceremony in declaring 26 November as ‘Constitution Day’ – the day the Draft Constitution was put to vote and passed by the Constituent Assembly, after 141 sittings of the Drafting Committee and as many as 2473 amendments – must provoke more than a mere juggle of terms in Parliament. Sixty-six years into India’s historical claim over the ‘gift’ of the Constitution (a gift which, as the Preamble says, we gave ourselves), it is imperative that we introspect over the current state of affairs. Especially so, when governors of states have made a habit of passing unabashedly partisan remarks; Ministers are busy justifying Dadri and Sunpedh; ruling-party leaders script fear in the name of ‘ghar-waapsi’ and ‘love-jihad’ and academic institutions are increasingly bred as potential sites of propaganda.
At a time when the rhetorical menace of the ‘anti-national’ has been made into a sovereign excuse for punitive action by the State, it is important to return to the ‘basic structure’ of the Indian Constitution. The Supreme Court of India in the 1970 case of Kesavananda Bharati vs State of Kerala categorically underlined certain “essential or basic features” of the Constitution (such as the republican-democratic form of government, its secular character and guarantee to citizens of their fundamental rights) as immune to abrogation and amendment by the Parliament. To read and understand the constitutional pledge in the light of current happenings is hence a task that we can no longer afford to leave to the self-appointed guardians of ‘national integrity’ nor to their political opponents, many among whom are standing with us for petty electoral gains. This task is in fact the minimal condition of the performance of democratic citizenship in the intimate and the everyday.
A will to stateness
Acutely aware of the hegemonic claims of pre-colonial tradition and the subsequent liberal reformist inheritances of a modern nation-state, B R Ambedkar clearly did not intend the Constitution to become a template for imaginative exercises in nationalism. Instead, pained as he was by upper-caste Hindu appropriations of ‘national culture’ in the interests of social dominance, the moment of ‘constituting’ the Republic was expressive of, to quote legal scholar Upendra Baxi, a “will to stateness”, rather than a total will to ‘nationhood’. The framing of normative principles for governance as well as the transformative goals of justice laid down in the form of the Constitution was in effect an abandonment of the sentimental claim of the ‘nation’ in favour of a substantive structural incarnation of the ‘state’. In this, the constitutionally configured ‘India’ as a ‘Union of States’ (spelt out in the very first Article) is to be understood not in the language of an emotionally coagulated ‘belonging’ but by a set of concrete principles, rights and structures that enable the material dispensation of social justice. The state-as-structure overrides the nation-as-sentiment in the text of the Constitution as well as the history of its drafting. ‘India’, thus understood, is not the name of a consensual folklore of togetherness, but in fact a space rightfully fraught with contested identity-claims and deserving adjudication on the basis of a normative order of state practices.
Given the state-formative function of the Constituent Assembly, it is no wonder that the RSS ideologue in M S Golwalkar denounced the Constitution as anti-national in spirit and thus guilty of undermining the logic of territorial sovereignty. He contended in his Bunch of Thoughts (1966):
Had the RSS had its way, the “basic structure” of the Indian Constitution – upheld by the Supreme Court as unalterable and non-amendable, despite the electoral malleability of the “will of the people” — would have by now given in to Golwalkar’s vision of Hindu Rashtra. The consistent rallying around Modi’s majoritarian slogans like “Ek Bharat, Sreshth Bharat” unequivocally demonstrates the distrust of constitutional federalism along the Sangh legacy. Such a forced phantasmal welding of “so many ‘ethnic groups’ or ‘nationalities’” into a sovereign consensus of ‘national’ interest always had its own dangers, and ones that Ambedkar was critically attentive to. That a repressive subordination of divergent cultural-linguistic constituencies and their contentious political histories/fortunes into a unitary vision of ‘nationhood’ entailed a delicate fragility of the democratic ‘will’ was, hence, recognised by the redistributive ethic of a federal state-structure. Consequently, not only does the current nationalist adventure of ‘Ek Bharat’ – replete with the violent triumphalism of lynch-mobs, neighbourhood vigilantes and moral police – translate into an unconstitutional mode of political affect-generation, but it also lies in direct contravention of the arbitrational practices of state-formation enshrined within the Constitution.
Debating freedom as (im)possibility
It is not for nothing that the Drafting Committee of the Constituent Assembly dropped the ‘charge’ of sedition as legally admissible ground for applying restrictions on the right to freedom of speech and expression. The Apex Court judgment on Romesh Thappar vs State of Madras on 26 May 1950 noted this point with caution:
It was in the context of the extraordinary amplitude granted to Article 19(1) by this judicial interpretation of the Constitution that the First Amendment Act of 1951 introduced a host of other “reasonable restrictions” including “public order”. However, the jurisprudential reasoning in the 1989 case of S Rangarajan vs P Jagjivan Ram, regarding each of the exceptions to free speech – ranging from the 16th Amendment introduction of “sovereignty and integrity of India” to “security of the state” and “public order” – makes it apparent that “freedom of expression cannot be suppressed on account of threat of demonstration and processions or threats of violence… It is the duty of the State to protect the freedom of expression since it is a liberty guaranteed against the State. The State cannot plead its inability to handle the hostile audience problem.”
Therefore, to publicly debate the constitutional and procedural violations of law in the case of Afzal Guru or Yakub Memon needs no ‘subterfuge’, nor does it in any way constitute anti-nationalism. Discrepancies in these cases and their corresponding judgments have been historically documented as part of public discourse and commented upon by legal scholars, former judges of high courts and Supreme Court, constitutional experts and rights-activists. To organise a cultural (or, for that matter, overtly political) event around the miscarriage of justice perceived in these cases is no ground for an abridgement of the right to free speech and discussion, being mistakenly construed as “contempt of court”. On the contrary, the 1988 Supreme Court judgment in P N Duda vs V P Shiv Shankar and Ors notes:
Dissent, directed both against ‘governments established by law’ as well as judicial pronouncements, is guaranteed by the idea of constitutional ethics, and any attempt to criminalise it is more detrimental to the interests of a democratic ‘nation’ than the disruptive act in question.
The constitutional ethic of difference, being internal to the citizen’s subjectivity, is the greatest guarantor of dissent as immanently possible within every assertion of identity
The ‘surplus’ of democracy
It might be useful at this conjuncture to return to the words of the Preambular vow in the Constitution. The liberal humanist declaration of individual rights is at the very beginning undercut by the claim to “give to ourselves this Constitution” – in Hindi, an act of atmaarpan or self-giving. What happens when both the giver and the receiver are rhetorically the same, and yet await what is given to become equal – the definitive condition of citizenship? What happens when we are also the other who receives? The answer lies in an undeniable experience of self-difference at the core of the inaugural pledge. In this imagination of the citizen-self as simultaneously other, we are given an imaginative training of democracy – a necessary experience of difference as an internal condition, and thus exceeding the objective externality of religion, caste, language, dress, food-habits, etc. The constitutional ethic of difference, being internal to the citizen’s subjectivity, is the greatest guarantor of dissent as immanently possible within every assertion of identity. What is ‘given’, in the process of this acknowledgment of a radical alterity at the heart of democratic being, is a body of ‘rights’ which principally requires no ‘qualifications’ as a condition of entitlement.
Emmanuel Joseph Sieyes on the eve of the French Revolution in his 1789 pamphlet “What is the Third Estate?” wrote about the symbolic transformation of the ‘commoner’ from ‘nothing’ to ‘something’. The unconditional possibility of democracy is therefore a resolute refusal of ‘value’ as the necessary ground for law. Yet, this deficit between meaning and measure is what Rohith Vemula’s suicide letter refers to as the fundamental contradiction of electoral-parliamentary democracy – “The value of a man was reduced to his immediate identity and nearest possibility. To a vote. To a number. To a thing.” Every subject’s ‘equal’ conversion into a single vote is nonetheless haunted by the ‘unequal’ value of his “immediate identity” as Dalit, adivasi or oppressed. The “exact meaning” of democracy is an attempt to grapple with the inexact, the inadequate and the unequal as claimants to reasonable engagement, rather than as ‘exceptions’ to be repressed by the rule of law.
Constitutional democracy thus preserves the space for an apparently ‘unreasonable’ outside to every presumption of dominant majoritarian ‘reason’. The electoral game of numbers can never adequately ‘represent’ the play of reason beyond a tenuous consensus. The right to dissent is immanent within the very writing of the Constitution, as the internal foundational condition of democracy. By demonising dissent and deeming it worthy of criminal intimidation, by openly flaying the right to difference (in ideas and opinions and tastes and lifestyle choices), what we are witnessing today is not only brazenly unconstitutional but, more alarmingly, a direct assault on the very philosophy of our Constitution.
Secularism as neutrality?
Writers, public intellectuals, scientists and teachers have come together, since the Dadri lynching and the killing of progressive scholars, in condemning the “rising levels of intolerance” and a consequent communalisation of everyday social spaces and relations. But, most crucially, what they demand in their place is not a simplistic substitution-effect of ‘tolerance’. And it is here that one needs to get into the “exact meaning of tolerance” as not being entirely adequate to the character of our Constitution. I watched the opening debates of the winter session of Parliament on 26 and 27 November, reacting with dismay at the circus of banal platitudes that the Indian Constitution seemed to inspire among most of our political leaders. “Secularism is the most misused word in the country. This must stop. Because of the rampant misuse of the word, there have been instances of tension in society” – Home Minister Rajnath Singh self-congratulatingly rued, little realising that the ‘misuse’ applied more to his own ilk than to those protesting the ‘instances of tension’.
The original draft of the Constitution did not include the words ‘socialist’ and ‘secular’, not because Ambedkar was forced to elide them for fear of a backlash. Instead, he maintained in the Constituent Assembly debate on 15 November 1948, in response to K T Shah’s proposal for Amendment of the First Article, that both Directive Principles of State Policy and fundamental civil rights leave no doubt about the ‘socialist-secular’ commitment of the organs of state rule. Furthermore, Ambedkar was wary of an unqualified import of the European idea of the secular, and knew that the material conditions of Indian life warranted a nuancing of its conceptual baggage. This, as I will explain later, he intended to elucidate through the structural core of the Constitution, rather than by naming it as is in the Preamble and invoking confusion.
Incidentally, Ambedkar’s ‘Draft Articles on the Rights of States and Minorities’ submitted on 24 March 1947 for consideration by the Fundamental Rights Sub-Committee headed by J B Kripalani, explicitly stated that “[t]he State shall not recognize any religion as State religion”. This proposal for a policy of absolute non-interventionism, though retained in the Draft Report of 3 April, was finally removed after the state’s potential for positive intervention in the public life of religion was reconsidered. In light of the elaborately recorded correspondence between members of the Sub-Committee, culminating in its final report on 16 April 1947, the spirited raucous that ensued in the 2015 winter Parliament session on whether ‘secularism’ translates into dharma-nirpekshta (religious neutrality) or panth-nirpekshta (sectarian neutrality) is a redundant debate – because it “exactly” translates into neither.
The theory of bureaucratic neutrality through a straitjacketed separation of the state and religion – following the originary model of Western secularism – does not apply in toto in the case of Indian constitutional democracy. Ambedkar was acutely aware of the extent of Hindu Brahminical religious interference in the forms of organisation of public life, and intuited that a constitutional mandate for separation of the two would not work unless the dominant expressions of religion were controlled and regulated. He was conscious of the social and civil discriminations perpetrated by the Hindu religious majority, and therefore insisted on a policy of state-intervention in curbing infringements on minority rights. Contrary to a blanket-policy of ‘neutrality’, Articles 25(2), 28(3) and 30 of the Indian Constitution clearly conceive of the state as an agent of progressive religious reform – by restricting exclusionary rights of access and practices of membership within the dominant community as well as by safeguarding the interests of minorities.
In his explanatory notes on constitutional remedies against the possible invasion of Fundamental Rights (included in the ‘Draft Articles’ of 1947), Ambedkar defended the active role of the state in curbing the oppressive tendencies of both dominant organised religion as well as private financial enterprise to meet the ‘secular’ and ‘socialist’ aims of structural democracy. Such use of the powers of the state to prevent historical injustices and reduce systemic inequities within social-economic arrangements was, contrary to being extra-constitutional, regarded by him as a necessary corrective to millennia of civil discrimination. The liberty of the dominant, he contended, has to be qualified if the rights of the dominated are to be effectively protected. The state thus has to act in pre-emptive cognisance of majoritarian biases within processes of socialisation, not merely as an arbitrator in isolated cases of conflict. Ambedkar clarified his position in ‘Appendix 1’ of the said document thus:
An apparent espousal of ‘neutrality’ by our current-day political patriarchs in the Parliament (while spicing it with examples of the Great Democrat in Lord Rama) not only belies Ambedkar’s double-pronged approach to Indian ‘secularism’ but also runs counter to the letter of our Constitution. The charitable claim of tolerance, as rooted in ‘our’ ancient indigenous religious traditions, promotes a version of syncretic pluralism (bahuvaad) that is far from being democratic. In proclaiming the twin principles of nirpekshta (neutrality) and sahishnuta (tolerance) as inherent in a benevolent spiritual humanism of ancient lore, the Hindu Right performs a gross erasure of the basis of constitutional morality. One needs to ask here: why must leaders of the state derive ‘our’ examples of secularism from the same traditions of religious wisdom that Ambedkar wants the state to control and regulate the excesses of? Who does this formulation of a unity in the ‘our’-and-‘us’ represent, when the Constitution repeatedly alerts us to a long history of structural exclusions from ‘our’ potential claim to universality?
Is tolerance a constitutional remedy?
A politics of tolerance is a morally compromised statement on the charitability of those in power, and therefore has no constitutional sanction. It is a grossly majoritarian stance, which while maintaining the principle of the state’s neutrality – represented nonetheless in an electoral majority of dominant interests – can very well accommodate a moral disapproval of minority beliefs and practices. To be tolerant of other religions or communities of belief does not require an attitude of treating them as equal. It merely insists on an avoidance of visible material conflict, while potentially holding on to a belief in the essential superiority of one’s own faith over others’. It grants the right to difference as an ‘allowance’ necessary for the exhibition of diversity. In this, it nevertheless asserts a totalitarian order of ‘unity’ as being in the best interests of all minority communities. One must realise that the spiritual-humanist conundrum of ‘diversity’ is a sociologically vacuous category. Diversity is a grossly apolitical and anti-historicist term. It conveniently serves as an apprentice of ‘tolerance’, shorn as it is of every reminder of historical difference. It only serves to elide the social relations of power between the different constituent communities that make up a ‘diverse’ public. Interestingly, the model of Constitutional ethics that we are arguing for is a call to recognise difference as ‘equal’ while resisting implosion in glorious fantasies of ‘diversity’. It is not surprising that the text of the Constitution does not for once name the word ‘diversity’ in apportioning the multiple claims of a national community. It is only now, in the age of Silicon Valleys and Wembleys, that vividhta (diversity) has become the undoubted political currency of India’s tryst with democracy.
The constitutional remedy to the current climate of raging intolerance is not a return to a pluralism of sorts, but an acknowledgment of the historical relationship between difference and social injustice
Tolerance – mythified as diversity – translates into a condescending gesture of acceptance, without dignity and despite disapproval. And therefore, the constitutional remedy to the current climate of raging intolerance is not a return to a pluralism of sorts, but an acknowledgment of the historical relationship between difference and social injustice. The “exact meaning of tolerance” further reduces the debate on secularism to only the competing claims of religious faiths and a non-committal bureaucratic gesture of neutrality – while consciously erasing the figure of the ‘non-believer’ from legislative discourses. The Constitution however significantly grants the right to atheism or non-belief (“freedom of conscience”, as spelt out in Article 25 – initially phrased as “liberty of conscience” by Ambedkar) as a fundamental civil right and recognises its democratic claim upon the state. In the First Section of the Third Schedule of the Constitution, the Oath of Office for Ministers clearly provides for two options. Similar to the Oaths of the President, Vice-President and Governors of states, every functionary of the State may either “swear in the name of God” or just “solemnly affirm” his pledge to constitutional principles. The fact that state-leaders are free to not use the sanction of God for the act of swearing-in bolsters the fundamentally ‘secular’ character of the Constitution, by formally recognising non-believing citizens as claimants to both state power and protection.
Gift as ‘responsibility’
This brings us back to the essence of Indian secularism, in that our Constitution is not a “gift” of God – but a gift we have given ourselves and therefore must preserve, against both the threats of intolerance and questions around the exact meaning(s) of tolerance. Even as I write this, the Hindutva sentinel runs about baying for the blood of people such as Girish Karnad, Kanhaiya Kumar and Umar Khalid, while the protectors of our rights are silently urging them on by debating the democratic wisdom of Rama and the sacrilegious worship of Mahishasura in Parliament. The Indian Penal Code, with its Victorian penchant for moral-lexical ambiguity in Sections like 295A and 124 (and several others!), continues to be used to curb the very voices that rage against the dying of the light.
The exact meaning of tolerance is to shun both its ‘exactness’ and ‘meaningfulness’ in favour of the incessant “spirit of inquiry”, enshrined in our Constitution.
~Debaditya Bhattacharya teaches literature in Calcutta University. He works on continental philosophy and occasionally publishes on contemporary politics. He has co-edited an anthology of essays from SAGE, titled Sentiment, Politics, Censorship: The State of Hurt (2015).
~ Writer’s note: A word of acknowledgment is due to Vivek Kumar, the student I referred to above, for his searching question and as a tribute to the future of questioning all forms of ‘exactness’.