CJI Ramana Is Off The Mark: We Need A Second Republic Built Around A Dharmic Constitution

The other day, Chief Justice of India N V Ramana told a gathering of Indo-Americans in San Francisco that the Indian judiciary is independent and is “answerable to the Constitution and the Constitution alone.”

One need not quibble with this tautological statement, but one should go further and point out that since the judiciary is the official (and only) interpreter of the Constitution, and Article 142 even allows it to make the law in some cases, it follows (with some flexible reasoning around the edges) that the judiciary is answerable to the judiciary alone. Especially since the Constitution has not been invested with an Alexa-like answering system on questions the judiciary wants to ask of it.

In practical terms, since the Supreme Court collegium effectively appoints judges according to its own norms (the executive can delay, but not ultimately block appointments), this provides proof enough for the proposition that the judiciary is practically unaccountable even to the Constitution. For, the Constitution did not ever say that a collegium of judges will decide all appointments to the higher judiciary.

One can, of course, make the additional point that the Constitution provides for impeachment by Parliament. But given ample evidence of judicial misconduct and poor-quality judgements, and the very low rate of actual impeachments over the last 75 years, one can conclude that even this form of accountability is a dead letter. Just four impeachment motions were moved against Supreme Court and high court judges in seven decades, and only two were successful.

However, there is a more important point to be made: what really are the judges defending in the Constitution, a document that was liberally borrowed from the British era Government of India Act, 1935, and some bits from European constitutions (Irish, etc), and practically nothing from Indian cultural and civilisational experience? So, if they are defending the “Constitution and the Constitution alone”, they are effectively defending colonialism.

This should lead all thinking people to ask what kind of Constitution would have worked best in India, since the evidence is overwhelming that the current Constitution is close to breakdown. Today, even judges prejudge guilt before considering the facts. As recently as last week, a two-judge bench headed by Justice Surya Kant, while rejecting Nupur Sharma’s petition to club all her cases into one, observed that she was “single-handedly” responsible for all the violence and subsequent damage to the country’s credibility after her statement about the Prophet. The bench’s observations were oral, and not thankfully part of any verdict, but were they warranted when mobs are running around cities shouting “Sar tan se juda”.

India needs an unapologetically Dharmic constitution, which balances rights with responsibilities, and individual freedoms with community interests. European-style secularism is irrelevant to India, where communities are strong and the state is weak. All communities need to help formulate and adopt such a Dharmic constitution which will not cut into any religious community’s own rights.

This will raise obvious questions in the Lutyens Bungalow Zone, where the wine-swigging elite rule the narratives war. “Saffronisation”, they will scream. “Hindutva is seeking to tear up Ambedkar’s Constitution,” they will shout, hoping that this statement will automatically alienate Dalits from the effort to rewrite the Constitution on Dharmic lines.

But quite apart from the fact that the present Constitution has been amended more than a hundred times in less than 75 years, making it nothing like the draft left behind by Team Ambedkar, it is worth noting what Babasaheb Ambedkar himself thought about having two nations residing in one without the minor one being forced to accept the larger one’s definition of nationhood.

In his tract on Pakistan, or the Partition of India, written in 1940, Ambedkar criticised Savarkar’s formula for an undivided India. Apart from advocating an exchange of populations, he excoriated Savarkar for being “illogical” in presuming that two culturally different nations can exist in one state without any syncretic unity. He wrote, and I quote it at some length:

“Mr Savarkar's scheme has at least the merit of telling the Muslims, thus far and no further. The Muslims know where they are with regard to the Hindu Maha Sabha. On the other hand, with the Congress the Musalmans find themselves nowhere because the Congress has been treating the Muslims and the minority question as a game in diplomacy, if not in duplicity.

“At the same time, it must be said that Mr Savarkar's attitude is illogical, if not queer….It would not have been a matter of much concern if inconsistency was the only fault of Mr Savarkar. But Mr Savarkar, in advocating his scheme, is really creating a most dangerous situation for the safety and security of India. History records two ways as being open to a major nation to deal with a minor nation when they are citizens of the same country and are subject to the same constitution. One way is to destroy the nationality of the minor nation and to assimilate and absorb it into the major nation, so as to make one nation out of two. This is done by denying to the minor nation any right to language, religion or culture and by seeking to enforce upon it the language, religion and culture of the major nation. The other way is to divide the country and to allow the minor nation a separate, autonomous and sovereign existence, independent of the major nation. Both these ways were tried in Austria and Turkey, the second after the failure of the first.

“Mr Savarkar adopts neither of these two ways. He does not propose to suppress the Muslim nation. On the contrary he is nursing and feeding it by allowing it to retain its religion, language and culture, elements which go to sustain the soul of a nation. At the same time, he does not consent to divide the country so as to allow the two nations to become separate, autonomous states, each sovereign in its own territory. He wants the Hindus and the Muslims to live as two separate nations in one country, each maintaining its own religion, language and culture. One can understand and even appreciate the wisdom of the theory of suppression of the minor nation by the major nation because the ultimate aim is to bring into being one nation. But one cannot follow what advantage a theory has which says that there must ever be two nations but that there shall be no divorce between them.” (Bold text is mine)

While Ambedkar probably underestimated the problems involved in moving millions of people across borders, leaving properties and relationships behind, he was right in one thing: that a nation cannot be built by having two nations living as separate cultural entities in the same geography.

Ambedkar, who accepted the Euro-centric idea of nationhood, did not call for a Dharmic constitution, but his own criticism of Savarkar’s “illogical” plan of housing two nations in one without any attempt to culturally unite them into one, indicates that he too believed in some form of forced syncretism. One can speculate that if he had lived longer in post-1947 India, he might well have seen the need for a modern constitution that is culturally rooted in India.

We need a Dharmic constitution not because Muslims and Christians cannot be allowed to follow their own faiths, but because cultural unity demands respect for some core Dharmic ideas, especially the aspect of respecting the religions that were birthed in India, and circumscribing the rights of imperialist and expansionist faiths from damaging India’s cultural unity. It is not about who you choose to worship, for this right was never denied in pluralist India. It is about abandoning exclusivity and conflict as the only way to grow faith.

What the judiciary has been defending is the Abrahamic and European ideal of secularism, when it should be defending an Indic plurality and sensibility that transcends religion. Secularism has damaged no religion more than Hinduism, and the judiciary should learn to recognise the damage it has done to Hindu rights in the process of upholding the Constitution as it stands now.

Politically, the case for a Second Republic, based on an indigenously-evolved Dharmic constitution, is the way to go. Sorry, CJI Ramana, you are defending something that has done us harm. Dharma, artha, nyaya and satya cannot be build around a synthetic constitution not rooted in this soil.