Hindu Rashtra: Constitution Isn’t The Problem; The Language It Is Conceived In Is

Hindu Rashtra: Constitution Isn’t The Problem; The Language It Is Conceived In IsThe Constitution of India.
Snapshot
  • One problem with the Indian Constitution is that it was entirely conceived and written in a foreign language, English, which means its interpretation will also be alien to our culture even if our courts are Indian.

    Ideals must resonate in the language the people understand instinctively.

The case for a Hindu Rashtra – even if one is not satisfied with the minimalist approach suggested earlier – rests on whether or not it satisfies three criteria.

One, whether one accepts the idea of a civilisational-state rooted in its own ancient sense of self and values; two, whether this definition will bring positive benefits for all stakeholders, including those who do not subscribe to the idea; and three, whether the current constitutional document is good enough to support the idea without compromising its core values.

The world has broadly three kinds of states in existence: there are Westphalian nation-states, where race, religion and culture often combine to define a people resident in a specific, defensible geography. This is an idea that developed in the specific context of Europe’s history and geography, and later spread to wherever eurocentric cultures dominated.

The Westphalian idea of the nation-state originated in the seventeenth century, when scores of small and large states, principalities and kingdoms spent 30 years fighting in a brutal, free-for-all war with no decisive result.

History Today describes it thus:

The war, or series of connected wars, began in 1618, when the Austrian Habsburgs tried to impose Roman Catholicism on their Protestant subjects in Bohemia. It pitted Protestant against Catholic, the Holy Roman Empire against France, the German princes and princelings against the emperor and each other, and France against the Habsburgs of Spain. The Swedes, the Danes, the Poles, the Russians, the Dutch and the Swiss were all dragged in or dived in. Commercial interests and rivalries played a part, as did religion and power politics.

The war ended only when lots of the warring states got tired of the endless conflict and saw the futility of continuing it. But it took four years (1644-48) of fractious negotiations to get the final treaty – involving discussions and wrangling by over 194 states and their 179 plenipotentiaries – signed in Westphalia, a small town in north-western Germany. The treaty defined the rights and roles of the nation-state, where each state was sovereign in its own territory.

Outside Europe, there are nation-states based largely on ideas of race and ethnic monocultures (China, Japan, Korea, etc). These can also be called civilisational states, especially if their identities go back hundreds, if not thousands, of years.

Then there are nations defined largely by religious identity (Saudi Arabia, Pakistan, and much of the Muslim world, where geography does not matter).

Israel can be considered a state based on a mix of religious and civilisational identity. And then there are modern “secular” states which claim identities purely on the basis of a synthetic constitution (the US, much of modern Europe).

India, according to a Left-Liberal consensus, and most colonial historians, is a “secular” state, whose nationhood is defined purely by a synthetic constitution. It is a hotch-potch of various races, religious practices, and linguistic diversities, with no prior sense of a common civilisational identity. Some Leftists also see India as a state-nation, a collection of states illogically grouped together into one “nation”.

As we noted in an earlier tract on Hindu Rashtra, where Radhakumud Mookerji wrote more than a century ago about how the Hindu national identity manifested itself in a common sense of a shared sacred geography and pilgrimage centres, J Sai Deepak, an articulate lawyer who practises in the Delhi High Court and the Supreme Court, has recently written a series of articles on the idea of the civilisational-state.

According to Sai Deepak, the western scholar’s rejection of any idea of a nation outside the principle established by the Treaty of Westphalia has been largely accepted by post-colonial Indian scholars (usually from the Left), who see India as a state-nation, a collection of diverse nationalities welded together by their pre-1947 colonial masters.

In a series of articles published by The Sunday Guardian, Sai Deepak writes:

One of the most visible yet inadequately understood consequences of Western epistemological imperialism, a.k.a coloniality, is the idea of a “nation-state”. What is unsurprising yet unfortunate is its near-universal acceptance as the litmus test for proving the legitimacy of the statehood aspirations of a nation, meaning people. In other words, if a people do not qualify as a ‘nation’ as defined by the West, they cannot aspire for the only form of political organisation currently acceptable to the West, namely the nation-state. While no single, static and academic definition can do justice to any transient historical phenomenon, the approximate definition of a nation that has been applied in the context of a nation-state is a group of people who are bound by conscious cultural homogeneity and who share aspirations of statehood.

Sai Deepak argues that the framers of the Indian Constitution must have rejected this hypothesis when they accepted that India is the same as Bharat, the ancient name given to the people of this geography. Even though different parts of India had been ruled by different rulers of different religious and other persuasions, he underscores a simple reality:

Importantly, no turn of history, no matter how devastating, has had the effect of erasing this uninterrupted civilisational identity notwithstanding the changing sovereigns or their faiths. After all, an exception proves the norm instead of denying its existence. This continuity in Indic consciousness and the proof of the Indic civilisation’s “living” status lies in the fact that Clause 8 of the Objectives Resolution of the Constituent Assembly, which was adopted on January 22, 1947, recognised that India (i.e. Bharat) is an ‘ancient land’. When coupled with Article 1 of the Constitution, which acknowledges that India is Bharat, it leads to the undeniable conclusion that constitutionally speaking, Bharat is an Indic civilisation-state.

Subramaniam Swamy, a Bharatiya Janata Party Rajya Sabha MP, points out in his book The Ideology of India’s Modern Right, that the original copy of the Constitution document had 22 illustrations to record India’s 5,000-year cultural history – from epic heroes like Rama and Krishna to Hanuman, Buddha and Mahavira, and further to Akbar, Shivaji, Guru Gobind Singh and Rani Laxmibai.

The only illustration that sticks out like a sore thumb is that of Tipu Sultan, whose bigotry is only now being recognised by many modern Hindus, but not “secular” intellectuals. But he probably got into the original document by virtue of his resistance to British supremacy – an aspect of him which we need not ignore.

You can call it Bharat, or Hindu Rashtra, but we are talking of the same civilisational-state that even our Constitution’s creators subtly underscored. India that is Bharat can, or should, be called a Hindu Rashtra.

Here, Hindu does not mean the Hindu religion, but the Indic civilisation. A Hindu Rashtra that does not – in fact, cannot – discriminate against those who do not subscribe to this view. The need for defining a Hindu Rashtra today comes from some aspects of the Constitution that need amplification and reinterpretation.

Consider the Preamble, which reads thus:

“WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN, SOCIALIST, SECULAR, DEMOCRATIC REPUBLIC and to secure to all its citizens:

JUSTICE, social, economic and political;

LIBERTY of thought, expression, belief, faith and worship;

EQUALITY of status and of opportunity;

And to promote among them all FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;

IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION”.

There is absolutely nothing wrong with this formulation of the Preamble, even if one were to exclude the extraneous words such as “socialist” and “secular” which were inserted in the mid-1970s when Indira Gandhi imposed her internal emergency and sent many opposition leaders to jail. The insertions were her political response to the need to legitimise her internal emergency. Otherwise, who can oppose the ideas of social justice, equality, brotherhood, etc?

And yet, if one accepts the idea of Bharat, how is it that words and expressions unique to our civilisational identities find no space, when French Revolution terms like liberty, equality and fraternity do? Why are words like dharma, ahimsa, artha, nyaya, satya, moksha, antyodaya, varna and jati missing?

The last two terms are important precisely because we have to correct the injustices in-built into the varna-jati system, but reducing both ideas to just one called caste – a Portuguese term – and a single meaning of hierarchical oppression surely is problematic.

Aspects of kinship and social capital are completely missing when we confuse varna and jati, and combine both to mean just caste-based discrimination and oppression.

In the process, caste is now the route to retaining the super-structure of oppression – for state-sponsored benefits depend on it – and not a way to transcend those narrow identities in a civilisation-state called Bharat.

Can you end social oppression and inequities without even defining clearly this most important of Indic institutions that has survived well past its sell-by date?

It can be argued that words like dharma, etc, have multiple meanings, but that charge can be levelled against words like equality or justice too. The word equality can be interpreted in many ways, for one man’s idea of it can be different from another’s.

What kind of equality can we assure in an unequal world? Equality of opportunity or outcomes? We can choose the former, as the Preamble makes clear, but can human definitions truly clarify equality of opportunity in all its nuances?

We can define equality of opportunity relatively easily in a hobby like golf, where the better the player you are, the lower your handicap (meaning, you need to get your ball in the hole faster than amateurs, or those with lower skills), but in life can we really build a system to inflict handicaps on the better off that truly equalise opportunities for all?

And what role should merit play in this obsession with equality? And what if, even with handicaps, outcomes are still skewed in favour of the better endowed? Greater equality, howsoever defined, may be a worthwhile goal in theory, but equality is always going to be an impossible ideal to achieve.

And what of justice? What do we mean by it? Isn’t is often the case that justice can be acknowledged when it is seen to be done or delivered in a specific case, but cannot necessarily be defined too precisely for every context?

India’s best-known psychologist Sudhir Kakar raises some of these questions in an article he wrote for The Times of India in July 2019, pointing out that traditional Indian values of inclusiveness and sympathy are missing from today’s political discourse:

One feels that the traditional Indian civilisational emphasis on sympathy, love in its most elevated form, as indispensable to social cohesion and solidarity, is being eclipsed by other values, such as justice, the righting of wrongs. We are all familiar with the famous slogan of the French revolution, now a universal aspiration: Liberty, Equality, Fraternity. It is interesting to note that fraternity, brotherhood, occupies the last place in this short list and, indeed, has become completely muted if not sidelined in contemporary discourse.”

Babasaheb Ambedkar notes that even religious ideologies that specifically call for justice and brotherhood – Islam, for instance – fall far short of it in reality. Ambedkar wrote in his pre-independence tract on Pakistan:

Hinduism is said to divide people and in contrast Islam is said to bind people together. This is only a half-truth. For Islam divides as inexorably as it binds. Islam is a close(d) corporation and the distinction that it makes between Muslims and non-Muslims is a very real, very positive and very alienating distinction. The brotherhood of Islam is not the universal brotherhood of man. It is brotherhood of Muslims for Muslims only. There is a fraternity, but its benefit is confined to those within that corporation. For those who are outside the corporation, there is nothing but contempt and enmity.

But even within this closed corporation of Islamic brotherhood, Ambedkar pointed out that caste distinctions and social evils remained strong. Ambedkar was clear that “Muslim society is even more full of social evils than Hindu society is.”

The net effect is that justice is more about the aggregation of power in the hands of those claiming to deliver justice than really about ensuring a true brotherhood or sisterhood of equals.

Sudhir Kakar points out that social justice is linked to power equations. “Social movements in (the) service of justice for the weak and the oppressed are rapidly picking up pace in our country, shaking traditional hierarchies and power structures. This is a welcome development. Some of these movements, however, seem to operate on the basis of only one ethic, justice, which is related to the issue of power, of correcting skewed and unfair power relations, a highlighting of equality in the three aspirations of the French revolutionary slogan…

“In an almost sacralised ethic of justice, what matters is the outcome, not the path and there are eloquent voices that have defended violence in service of justice. In such cases, should the ethic of sympathy, compassion in this context, not temper the quest for justice?”

The short point is that no matter what ideal of civilisation you choose to extol – whether the French Revolution ones or the ones valued in India of dharma and nyaya – actual implementation will always fall short.

However, this gap is likely to be less serious if the ideals are those that are already in-built into a society. To be more precise, the ideals must resonate in the language the people understand instinctively.

One problem with the Indian Constitution is that it was entirely conceived and written in a foreign language, English, which means its interpretation will also be alien to our culture even if our courts are Indian.

When your law is written in a language different from your own myriad ways of expression, it becomes difficult to embed as a value in your people. Thus, freedom of religion and secularism, ideas typical to the Western context where state and church agreed to a separation of powers against the backdrop of their own historical experiences, make little sense in a country that saw no need for this artificial separation.

The only English word that truly comes close to describing an Indic reality on inclusiveness is pluralism, not secularism. A civilisation that preaches Ekam Sat, Viprah Bahuda Vadanti (there is one truth, the wise speak of it in many ways), is plural by nature. It does not require a constitution to mandate this.

And what sense does separation of church and state make in a country with a large Muslim population, whose very history involves merging religious, social and political identities? The Prophet of Islam was religious leader, political head and military commander all rolled into one.

As for Hindus, they are comfortable with multiple identities, and the formal separation of state and religion makes sense only in a limited way, where the state does not discriminate against one religion or the other. That, unfortunately, is not the case with the state and Hinduism, as we shall see later.

It is equally interesting that in the initial phase of independence, essentially Indic – vedic, upanishadic, puranic – terms like Satyameva Jayate (the national motto), Dharmo Rakshati Rakshitah (ideal of the Research & Analysis Wing), Yato Dharmastato Jayah (Supreme Court), Bahujanhitaya, Bahujansukhaya (All India Radio), Satyam Shivam Sundaram (Doordarshan), Seva Asmakam Dharmah (Indian Army), Yogakshemam Vahamyaham (LIC) were not seen as a Hindu imposition on the general population.

Verses from the Upanishads, Panchatantra, and the Mahabharata adorn Parliament’s halls, as Subramanian Swamy points out in his book. Today, in a complete perversion of this civilisational heritage, even yoga and the mere re-run of the hugely popular Ramayana and Mahabharata serials on Doordarshan is seen as an antithesis of secularism, an imposition by Hindutva ideologues.

The reduction of Indic terms to English often results in a form of discrimination against those who claim this civilisation and religious heritage. Thus, the use of the word “denomination” in Article 26 – which is translated as “sampradaya” in the Hindi version of the Constitution – ensures that often only Hindu sub-identities do not get the promised protections, including the right to run temples and maintain age-old religious rites and practices.

The five-judge bench judgement in the Sabarimala case – which delegitimised the practice of excluding women in the reproductive age from entering the shrine in a 4-1 September 2018 verdict – is one example of a perversion facilitated by the language in which the Constitution was written in.

While a nine-judge constitutional bench may still overturn this verdict, the interpretation of the word denomination will remain problematic. When Indian jurisprudence is determined by terms that hold meaning only in a eurocentric or Christian context, we surely have lost something in translation.

Article 26 guarantees “Freedom to manage religious affairs, subject to public order, morality and health.

“Every religious denomination or any section thereof shall have the right; (a) to establish and maintain institutions for religious and charitable purposes; (b) to manage its own affairs in matters of religion; (c) to own and acquire movable and immovable property; and (d) to administer such property in accordance with law.”

The Hindi version of Article 26 runs thus:

लोक व्यवस्था, सदाचार और स्वास्नय के अधीन रहते हुए, प्रत्येक धार्मिक संप्रदाय या उसके किसी अनुभाग को --
(क) धार्मिक और पूर्त प्रयोजनों के लिए संस्थाओं की स्थापना और पोषण का,
(ख) अपने धर्म विषयक कार्यों का प्रबंध करने का,
(ग) जंगम और स्थावर संपत्ति के अर्जन और स्वामित्व का, और
(घ) ऐसी संपत्ति का विधि के अनुसार प्रशासन करने का, अधिकार होगा।

The obvious meaning of the term, pratyek dharmic sampradaya, ya uske anubhag” should make every religious group or sub-group eligible to protections under Article 26, and yet the majority judgement effectively held that Swami Ayyappa’s devotees were Hindu, and not a distinct sect or denomination within it, and hence not entitled to the protections guaranteed under Article 26.

Chief Justice Dipak Misra (now retired) and justices A M Khanwilkar (retired), D Y Chandrachud and Rohinton Nariman, who delivered the majority judgement, denied denominational status to Sabarimala’s devotees. Only the minority dissenting judgment of Justice Indu Malhotra accepted the devotees’ claims of being a separate denomination.

In the eurocentric context, the word denomination goes well beyond the meaning assigned to it in the dictionary, which is “a religious group that has slightly different beliefs from other groups that share the same religion.” (Cambridge English Dictionary).

Believers in specific denominations often do not visit or offer prayers in churches managed by other denominations, and burials of the dead from one denomination may not be allowed in another.

This rigidity does not exist among Hindus, who use common crematoria for the dead, even though they may ordinarily follow their own sampradaya’s conventions and rituals in various ceremonies, from birth to death. A Shaivite may worship at Vaishnavite temples and vice-versa, or visit mutts of specific sampradayas with the same reverence he holds for his own favourite temples or religious organisations or gurus.

Articles 25 to 30, originally meant to protect the religious, cultural and educational rights of the minorities, have been interpreted by the Indian state to mean that the same rights can be denied to Hindu institutions on various pretexts, the most obvious one being “mismanagement” of temples by traditional Hindu managers and priests. But “secularists” will scream blue murder if any mosque or church were to be taken over for the same reasons.

The word “secular”, originally formulated in the European context to separate the powers of the temporal rulers from the spiritual ones, ie, separation of state and church, is meaningless in the Indian context, where plurality and the right to follow your own religious inclinations is embedded in the civilisational ethos. But the Constitution’s provision to prevent discrimination on the basis of caste has been repeatedly used to ensure that only Hindu institutions will be interfered with.

To top it all, a straightforward violation of the norms of equal treatment and non-discrimination has resulted in the state positively discriminating in favour of the minorities.

Thus, we have minority ministries and minority commissions at central and state levels, which essentially offer favours to the minorities. The Right to Education Act specifically excludes – with a 93rd constitutional amendment – some minority-run institutions from the obligation to educate the socially backward classes that majority-run institutions have to willy-nilly accept.

The case for tweaking the Constitution to enable the state to end this discrimination against the majority community, and to preserve and protect its ancient heritage, including by making laws to prevent aggressive religious conversion activities, thus stands strong.

Besides, the Indian civilisational-state owes a responsibility to those who share this heritage, and may be persecuted elsewhere.

The Citizenship Amendment Act 2019, which seeks to fast-track citizenship to Hindus and other minorities persecuted by three Muslim-majority states in the neighbourhood, is one step in this direction, but it is already running into a legal wrangle, where its opponents allege that it goes against the Constitution’s basic norm of non-discrimination on the basis of religion.

To sum up, one can conclude three things: one, the English-based Indian Constitution needs a few tweaks to make it compatible with what is the natural rhythm of Indic society. It is one thing to think in English and translate it in Sanskrit or Hindi equivalents, quite another to use the Indic word and then find equivalents in English. For example, religion can be translated as dharma, but dharma is non-translatable into English without context. If the word had been used in the original English constitution, it would have carried more value with its nuances than now, when it is a word used to find an equivalent word to religion in Sanskrit. Dharma means many things, including the upholding of a broader cosmic order, a proper balance between two options, etc. Its meaning changes with context. We have reduced the import of the word and its meanings by merely using it to translate an English word.

We are a naturally plural society, and secularism has no meaning for us. We might have had a different experience if our Constitution was first written in an Indian language, say, Hindi, and then translated into English, but that is now not likely.

So, tweaks are needed to make the Constitution’s provisions compatible with our civilisational ethos.

Two, amending the Constitution will not impact the rights of anyone who does not consider himself or herself Hindu because the protections of articles 25-30 and non-discrimination will remain even in a “Hindu Rashtra” constitution; and three, these changes are vital to prevent the Constitution from becoming a tool for Hinduphobic law-making by giving its words eurocentric and colonial meanings that are irrelevant to Bharat, that is India.

In future parts, we will look more closely at some of the provisions of the Constitution that need change.

The two earlier parts of this series on Hindu Rashtra can be found here and here.

Jagannathan is Editorial Director, Swarajya. He tweets at @TheJaggi.
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