It is one thing to dig for traces of constitutionalism from fifth century B.C. or even prior, but it is an altogether different thing to hold that the present constitutional and legal system is un-Indian, and requires ‘Indianisation’ in terms of the particular traces of constitutionalism in ancient India with the purpose of developing a uniform value-system in the place of a composite constitutional culture, which we have adopted through our founding mothers and fathers, and which we have been developing through a transformative constitutionalism.
This is the second of a two-part response to Prof Jose Verghese’s two-partseries critiquing Dr. Raju’s original article from earlier this year. Click here to view the first part.
THE Indianisation push with the Hindutva supremacist agenda started to get reflected in the decisions of the judiciary, and even the Supreme Court. Altering the trend of stray minority opinions, it got clearly declared in the Hindutva verdict (Dr. Ramesh Yeshwant Prabhoo versus Shri Prabhakar Kashinath Kunte & Ors. (1995)). Justice J.S.Verma wrote the judgment on behalf of a three-judge bench.
Supreme Court’s judgments under scrutiny
This trend was further reflected in the eloquent silence on ‘secularism’ in Justice Verma’s opinion on behalf of himself and Justice Yogeshwar Dayal in the famous secularism verdict in the S.R. Bommai case of 1994 by a Supreme Court Constitution bench of nine judges.
In the Ayodhya acquisition of mosque case of 1994, it became more evident when Justice Verma, on behalf of the majority view of the Supreme Court (of three of the five judges on the Constitution bench) upheld the acquisition of the land of the mosque in Ayodhya which was illegally and criminally demolished by Hindu supremacist movements. The minority of two judges, belonging to Muslim and Parsi religious minorities respectively, had no other resort other than disagreeing with the majority opinion of Justice Verma.
Then came the Hindutva judgment still waiting to be overruled, which declared Hindutva as synonymous to Indianisation, that is, the “development of uniform culture by obliterating the differences between all the cultures coexisting in the country”.
While considering the question whether seeking votes in the name of ‘Hindutva’ would come under the teeth of the Representation of the People Act, 1951, making the election void, the court found that “no precise meaning can be ascribed to the terms ‘Hindu’, ‘Hindutva’ and ‘Hinduism’; and no meaning in the abstract can confine it to the narrow limits of religion alone, excluding the content of Indian culture and heritage. It is also indicated that the term ‘Hindutva’ is related more to the way of life of the people in the sub-continent. It is difficult to appreciate how … the term ‘Hindutva’ or ‘Hinduism’ per se, in the abstract, can … be construed to fall within the prohibition in sub-sections (3) and/or (3-A) of Section 123 of the R.P. Act.” Later, it refers to a quotation from the book,‘Indian Muslims — The Need For A Positive Outlook’ (1994) by Islamic scholar, author and peace activist Maulana Wahiduddin Khan, and thereafter comes to the conclusion that “the word ‘Hindutva’ is used and understood as a synonym of ‘Indianisation’, i.e., development of uniform culture by obliterating the differences between all the cultures coexisting in the country.”
The above view of the Supreme Court has been relied on or noticed by several high courts in their subsequent decisions.
A division bench of the Kerala High Court relied on the above said view of the Supreme Court while dealing with a challenge to the legality of the contribution made by the Hindu temple Guruvayur Devaswom to the Chief Minister’s Distress Relief Fund in the context of torrential rain causing spate and landslide in 2018. The court, through the opinion of Justice C.T. Ravikumar, as he then was, referred to the concept of Indianisation as synonymous with Hindutva and said: “Hindu religion is said to have born out of the principles of Sanathana Dharma. Hinduism is all about bestowing attention to everything with great reverence and perceiving what best can be done…”
Again, while overruling the above decision, the full bench of the Kerala High Court in Bijesh Kumar M. & Ors. versus State of Kerala (2020) has referred to the said ruling of the Supreme Court to the effect that “the word ‘Hindutva’ is used and understood as a synonym of ‘Indianisation’ i.e., development of uniform culture by obliterating the differences between all the culturesco-existing in the country”.
The Supreme Court’s reliance on Maulana Khan was clearly wrong and misplaced. The court, in its Hindutva judgment, quotes the following part from Indian Muslims — The Need For A Positive Outlook by Maulana Khan:
“The strategy worked out to solve the minorities problem was, although differently worded, that of Hindutva or Indianisation. This strategy, briefly stated, aims at developing a uniform culture by obliterating the differences between all of the cultures coexisting in the country. This was felt to be the way to communal harmony and national unity. It was thought that this would put an end once and for all to the minorities’ problem.”
After quoting the above part, the court comes to the view that “the word ‘Hindutva’ is used and understood as a synonym of ‘Indianisation’, i.e., development of uniform culture by obliterating the differences between all the cultures coexisting in the country.” Though the court has quoted Maulana with approval, he had neither intended nor expressed any such meaning. He was attacking the strategy of Hindutva or Indianisation as wrong.
Though the Supreme Court quoted Maulana Khan with approval, he had neither intended nor expressed any such meaning. He was attacking the strategy of Hindutva or Indianisation as wrong.
The said quote is in the first chapter of his book, titled ‘The New India’, and the discussion is under the subheading “Minority and Majority”. After stating that both Hindus and Muslims are equally responsible for the problem facing the country today, he specifically criticizes the pseudo-intellectuals from amongst the Hindus for the problem and anti-Muslim psychology. According to him, as a result of this psychology, Hindu energies are largely directed towards negative pursuits, and not towards the positive construction of the country. In his view, as a result of this anti-Muslim psychology and in a bid to save themselves from an imagined defeat at the hands of the Muslims, the Hindus “are moving head-on towards total defeat”.
Thereafter, Maulana continues in his book, specifically stating why the Indianisation strategy is impracticable and bound to fail, however beautiful it may appear to be. He refers to the life and works of Emperor Akbar, the theosophist Dr. Bhagwan Das and Mahatma Gandhi to prove his point. Supporting the policy of multiculturalism instead of Indianisation, he draws a lesson from the Americanisation experiment of the United States of America in the following words:
“After the Second World War, with people of so many diverse cultures inhabiting the US, a movement was launched there, generally known as Americanisation, which was aimed at fostering a single culture throughout the country. It is Significant for us at this juncture that this movement was a total failure, and that the principle of multiculturalism has now been adopted there. In terms of consequences, the choice for us in this matter is not between uniculture and multiculture, but between multiculture and destruction. If we insist on uniculture, the results will be disastrous. Wisdom lies in adopting the ways of tolerance and in being content with religious pluralism.”
Commenting on the people and organisations advocating Indianisation and cultural nationalism instead of the ideal of composite culture, Maulana has further said, continuing the above discussion:
“Those who advocate changing the ‘composite’ culture of the country show their ignorance of the fact that culture is almost always of an inherently composite nature. … This being so, I regard cultural nationalism, or uni-culturalism as being against the laws of nature. Not even a super power can fly in the face of nature.”
He was categorical on his views in this regard. He wrote, “Besides, where uni-culture smacks of narrow-mindedness, multiculture stands for broadmindedness. I cannot believe that my countrymen would be so foolish as to prefer to be narrow-minded…”
Thus it is very clear that contrary to what has been held by the Supreme Court after quoting him, Maulana was dead against the ideal of Indianisation as developing a uniform culture, value-system or legal system.
The Hindutva verdict of 1995 gave the Indianisation lobby, led by the Rashtriya Swayamsewak Sangh (‘RSS’), an unexpected boost, and it continued the false propaganda to Indianise India’s constitutional and legal system, alleging that they are not sufficiently ‘Hindutva’-ised to be Indian.
When the RSS-engineered Bharatiya Janta Party (‘BJP’) formed the National Democratic Alliance (‘NDA’) to fight Lok Sabha elections, hoping to form its national government in 2000, the NDA Election Manifesto, titled ‘The National Agenda for Governance’, incorporated a pledge that a Commission would be appointed to review the Constitution.
The cultural supremacists have been again and again attempting to resurrect the ploy and agenda to obliterate the legal pluralism and the composite constitutional value-system of India in the name of Indianisation of the Indian legal and constitutional system.
After the elections, when the NDA under BJP formed the government, this pledge was affirmed in the President’s address to Parliament. A lot of criticism and opposition came from across the political spectrum which suspected a hidden agenda of the RSS and the BJP in reviewing the Constitution. As a result, when the Commission was appointed in February 2000, it was for not reviewing the Constitution but for reviewing the working of the Constitution. It submitted its report on March 31, 2002 to the Union Government.
The Dissenting note by then Chairman of the Law Commission of India, Justice B.P. Jeevan Reddy, a member of the commission, and the additional note by journalist C.R. Irani, another commission member, disclosed the stealthy attempts during the working of the Commission and the drafting of the report by the votaries of supremacist elements within the commission to manipulate it to suit their agenda. The attempt, however, failed because the majority of the members of the Commission did not fall in line.
The cultural supremacists have been again and again attempting to resurrect the ploy and agenda to obliterate the legal pluralism and the composite constitutional value-system of India in the name of Indianisation of the Indian legal and constitutional system. The recent endeavours may be seen in this context also.
In this context as discussed above, it would be impossible to equate Indianizing with constitutionalizing, or Indianisation as Constitutionalism, as attempted by Prof. Jose.
Prof. Jose labours at ‘Tracing Constitutionalism from the fifth century B.C. ‘. It is one thing to dig for traces of constitutionalism from fifth century B.C. or even prior, but it is an altogether different thing to hold that the present constitutional and legal system is un-Indian, and requires ‘Indianisation’ in terms of the particular traces of constitutionalism in ancient India with the purpose of developing a uniform value-system in the place of a composite constitutional culture, which we have adopted through our founding mothers and fathers, and which we have been developing through a transformative constitutionalism.
It is a quite wrong to allege that our present Constitution has not considered the traditions and traces of constitutionalism in the ancient Indian heritage. The republican, democratic and constitutional history of India were discussed, and relevant elements were incorporated during our constitution-making.
In fact, many authors have traced back the origins of constitutionalism even beyond the fifth century B.C. An early example is the lawyer and historian of ancient constitutionalism in India, K.P. Jayaswal, whom Prof. Jose has eagerly quoted. Jayaswal has even given the extended title “A Constitutional History of India in Hindu Times” to his magnum opus, ‘Hindu Polity’ (1924). Be assured that his use of the word ‘Hindu’ has no trace of the uses being made by the Indianisation-as-Hindutva cabal. Jayaswal had very insightfully dedicated the said work in the following words, “To the memory of the republican Vrishnis, Kathas, Vaisalas, and Sakyas who announced philosophies of freedom from Devas, Death, Cruelty and Caste”. Are these philosophies the basis for Indianisation?
These philosophies are against those value systems which form the basis of the legal systems of the mythological figure Manu, the Hindu Vedic sage Yajnavalkya, the ancient polymath Kautalya, ancient seer and author Parashara, and so on which are sought to be the basis of the call for Indianisation. This leaves no doubt whatsoever about his complete rejection of Indianisation as a synonym of Hindutva in the sense of developing a uniform cultural or legal system based on the Hindu legal text, the Manusmriti. His views about the Manusmriti in his book about Manusmriti and Yajnavalkya were published subsequent to the above constitutional history, in 1930.
It is quite wrong to allege that our present Constitution has not considered the traditions and traces of constitutionalism in the ancient Indian heritage. The republican, democratic and constitutional history of India were discussed, and relevant elements were incorporated during our constitution-making. This is evident from the debates in the Constituent Assembly themselves. Jayaswal’s work, Hindu Polity, was discussed and even relied on a few times, as had happened during the drafting of the Preamble, and choosing between the words ‘State’ and ‘Republic’.
It is true that there were differences of opinion on the sufficiency of incorporation from Indian heritage, as is evident from the speech of Kengal Hanumanthaiah, in the Constituent Assembly on November 17, 1949, in which he lamented that our Constitution is not sufficiently Indian. He had said, “We wanted the music of Veena or Sitar, but here we have the music of an English band.”
Justice Ramana wants us to understand Indianisation as democratisation of the legal system, and making it people-friendly or accessible to the people. Prof Jose wants us to understand Indianisation as constitutionalism. It appears they are, either by clever design or by innocent default, falling into the Ashwatthama fallacy of Hindu supremacists like the RSS and the BJP.
Prof. Jose’s favourite, Kautalya also may not want us to Indianise our constitutional and legal system after either his ‘Arthasastra’ or Manusmriti and ‘Yajnavalkya smriti’, among others, leaving the composite constitutional culture, which includes the Barhapatyan and Ushanasyan schools of Arthasastra, whose pioneers are the only ones saluted by him at the beginning of his Arthasastra, in the words, “Om. namah shukrabruhaspatibhyam” (Salutation to Sukra and Brhaspati). Such salutation was generally reserved for one’s god or goddess. This was despite the fact that he has dissented substantially from them in certain central issues.
It is not in the lessons of ancient author Apastamba, Kautalya or Yajnavalkya that we do not allow into the legal system the legal pluralism of modern India like Persian, Mughal, British, Portughese, and French influences, not to speak of the Adivasi ones like Shantal (of the tribe of our current President), Munda (of Raja Jaipal Singh Munda, the leading Adivasi voice in the Constituent Assembly), and even small and little tribes of Andaman and Nicobar ,provided they are not contradictory to our composite constitutional morality.
Prof. Jose also falls into the same fallacy as happened with former Chief Justice of India N.V. Ramana when he wanted to give the Indianisation of the legal system a meaning alien to what the listeners or readers could even imagine. Justice Ramana wants us to understand Indianisation as democratisation of the legal system, and making it people-friendly or accessible to the people. Prof Jose wants us to understand Indianisation as constitutionalism. It appears they are, either by clever design or by innocent default, falling into the Ashwatthama fallacy of Hindu supremacists like the RSS and the BJP. You cannot make a word to mean what you want it to mean, contrary to the claim of Humpty Dumpty to Alice in Chapter 6 of ‘Through the Looking Glass and What Alice Found There’ (1897) by English author, poet and mathematician Lewis Carroll.
Prof Jose himself proves that the truth cannot be kept wrapped out under the fog created by the Indianisation bogey when it naturally jumped out of his academic pen and he had to acknowledge, “It is the ideas that emerged from the freedom struggle that will have to be considered as that could advance the constitutionalism in India.” The Constitution of India has done exactly the same, and it further declares a fundamental duty “to cherish and follow the noble ideals which inspired our national struggle for freedom.” [Article 51A(b)]. This is quite opposite to the meaning and content of Indianisation as contemplated by the calls for Indianisation of the legal system, as we have seen above.
A number of developments which happened during the British colonial period as part of the evolution of our constitutional and legal system, were organic and in tune with the growth of constitutionalism and genuine Indian genius. Hence, only a composite legal system contemplated and enforced by the Constitution is worth the epithet ‘Indian’, and an ‘Indianised’ legal system as intended by the Indianisation lobby of the RSS and friends would prove to be totally un-Indian.
The following statement of Prof. Jose is factually wrong: “Dr. Raju has rightly observed that ‘in order to ‘Indianize’ justice delivery systems, we must follow the Gandhian way.’” To my knowledge, I have not made any such statement and it is not my view at all. The Indian legal system, including the justice delivery system, needs to be further democratized and constitutionalized, but it is to be done in the manner the Constitution has pledged to do and not in any particular way alone, though in our composite constitutionalism, the Gandhian way is also one of the pluralistic sources and inspirations. The reference to the speech of freedom fighter and social leader R.V. Dhulekar stressing on the values of truth and non-violence was meant to show the mood of the Constituent Assembly being cautious to save itself from the fallacies against truth like that of Ashwatthama trick.
Prof Jose expresses his unhappiness with an alleged colonial psyche being defended by me. He says, “Dr. Raju in his article has endeavoured to defend and justify adoption of colonial psyche in our Constitution, at least partially” The term ‘colonial psyche’ was in inverted commas; this, with the context of its use, was to show its rhetorical use and to make a point to the effect that everything introduced in the constitutional and legal system during the colonial period by the colonial government need not be undesirable, and is bound to be rejected. A number of developments which happened during the British colonial period as part of the evolution of our constitutional and legal system, were organic and in tune with the growth of constitutionalism and genuine Indian genius. Hence, only a composite legal system contemplated and enforced by the Constitution is worth the epithet ‘Indian’, and an ‘Indianised’ legal system as intended by the Indianisation lobby of the RSS and friends would prove to be totally un-Indian.
Various commissions and authors that considered the issue of Indianisation of the legal system, including the administration of justice, have been of the view that the process of Indianisation had been going on even prior to independence and it culminated with the coming into force of the Constitution of India, and what still remained was further constitutionalizing, including the democratising, of the legal system.
The 14th Report of the Law Commission of India (1958), claiming itself “the first comprehensive inquiry into our legal system”, reiterated the view that Indianisation of the legal system had been going on even prior to the Constitution, and what remains further is “the need for adjusting the machinery of law and justice to the changed ideologies embodied in our Constitution and our rapidly changing conditions.” Hence, Indianisation has already happened and what is further needed is constitutionalizing.
In the said Report, under the heading ‘Indigenous System’, it considered whether our legal and judicial system has become sufficiently indigenous and Indian. After a survey of the structure and features of the judicial system as it existed in India in the past, it says: “Even this brief picture is sufficient to show how unsound is the oft-repeated assertion that the present system of administration of justice is alien to our genius. It is true that in a literal sense the present system may be regarded as alien. It is undoubtedly a version of the English system modified in some ways to suit our conditions. The English system which had developed through the centuries pruned of its historical anomalies and technicalities and made adaptable to the conditions in India. But it is easy to see that in its essentials even the ancient Hindu system comprised those features which every reasonably-minded person would acknowledge as the essential features of any system of judicial administration, whether British or other. We can even hazard the view that had the ancient system been allowed to develop normally, it would have assumed a form not very much different from the one that we follow today.”
The call ought to be for further constitutionalizing and democratizing as pledged by us in our Constitution, and not for Indianising in the sense advocated by the RSS and the ‘Hindutva’ lobby.
Thereafter, the report considered whether we can think of a reversion to the earlier pattern of judicial administration. Discussing the relevant factors, it came to the conclusion, “No one can assert that in the conditions that govern us today the replacement of professional courts by courts of the kind that existed in the remote past can be thought of.”
Of course, the report had found that there were drawbacks in the legal system, and objections against some aspects of the judicial administration were well founded. But the report was very clear when it emphatically stated that “the way to reform does not lie in abandoning the present system and in replacing with another.” It concluded, “The true remedy lies in removing the defects that exist in the present system and making it subserve in a greater degree our requirements for the present and future.” This is applicable to the whole legal system.
The report also considered the allegation made by some to the effect that our present system of judicial administration is not in accord with the genius of our country, and came to the conclusion that such allegation had no substance. The report was categorical in its finding as follows: “The genius of our country has found expression in our Constitution which enshrines the Fudamental Rights of the people and the Directive Principles of State Policy as the necessary foundation for a new social order.”
This was the vision shared by our great advocate and jurist N.A. Palkhivala, who had asserted that our Indian values are the basis of the present constitutional and legal system. According to him, India has developed these constitutional values through her crowded history of 5,000 years and they are essential not only for the rebirth of the Indian nation but also for the re-education of the human race.
Almost in the same vain, Justice H.R. Khanna has traced our heritage in the Constitution and written, “If the Indian Constitution is our heritage bequeathed to us by our Founding Fathers, no less are we, the people of India, the trustees of the values which pulsate within its provisions.”
Hence, the call ought to be for further constitutionalizing and democratising as pledged by us in our Constitution, and not for Indianising in the sense advocated by the RSS and the ‘Hindutva’ lobby.