Call for Indianisation is a fallacy, if not a fraud on the Constitution

India has already opted to constitutionalize all her various legal systems instead of Indianizing them. The Indian Constitution through Article 13 showed us the way by declaring the then existing legal system as void in so far it was inconsistent with the fundamental rights. We have never understood the mandate of the Constitution either as one for Indianization or a destruction of legal pluralism and personal laws as long as they are not inconsistent with the composite constitutional value-system, argues M.P. RAJU.

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A call to Indianize and decolonize the legal and constitutional system of India may appear to be innocuous and even attractive. A closer look at such calls may show otherwise. Such a call is not new. However, the recent call is a little different in that it has succeeded in bringing a few of the sitting Supreme Court Judges to its bandwagon. Some may even appear as its cheer-leaders from the floor of the Savarakarite and Golwalkarite stable.

In the month of December 2021, Justice S. Abdul Nazeer of the Supreme Court was brought to the stage of Akhil Bharatiya Adhivakta Parishad [ABAP] to preach the necessity to Indianize the legal system in tune with the ancient Indian systems of "Manu, Kautilya, Katyayana, Brihaspati, Narada, Parashara, Yajnavalkya, and other legal giants of ancient India". ABAP is the lawyers' wing of the Rashtriya Swayamsevak Sangh [RSS] which spearheads the campaign for recasting India's legal and constitutional system into a Savarkarite-Golwalkarite value-system on the stealthy pretext of 'Indianization'.

In the current issue of Frontline, Prof Shamsul Islam has quoted the RSS publication 'Parm Vaibhav ke Path Per '(1997), to the effect that the ABAP was created in 1992 with the aim of moulding the Indian judicial system according to "Bhartiya culture… to suggest amendments in the Indian Constitution … [and] amend Article 30" ('Objection Your Honour, Frontline, January 15-28, 2022, p.41). Thus the content, extent and purpose of 'Indianization' in the name of decolonization of India's legal system need not remain a mystery.

Prior to the ABAP's and Justice Nazeer's clarion call, the Chief Justice of India N.V. Ramana, and another sitting judge of the Supreme Court, P.S. Narasimha, had made such calls. Behind these calls, the premise is that the main and perhaps the only reason for the ills plaguing the Indian legal and constitutional system is its lack of Indianization.

Also read: 'Indianisation' of the justice delivery system

Is there a case for Indianization?

Our legal system is part of the Constitutional scheme which we adopted about 72 years back, and is still working with all its weaknesses and strengths. It is based on a composite value system which has various ideologies as its parts. However, some ideologies are deemed not part of this composite value-system since they are completely inconsistent with it, but are at the same time competing with it and trying to supplant it. The Savarkarite-Golwalkarite one may be an example in point.

This clash of ideologies or value-systems, and one group's attempt to pretend as the only successor or pedigree of the real and genuine Indian heritage and tradition had been active even during the freedom struggle. In the name of Indianization, this group wanted to perpetuate the hegemony of the anti-women and anti-people value-systems prevalent from the time of ancient times, sometimes weak and sometimes strong.

These voices echoed even in the Constituent Assembly. Countering them, Dr B.R. Ambedkar had to warn the Constituent Assembly that constitutional morality is to be cultivated, and that adopting the beneficial colonial structures and legislations may be necessary to cultivate this morality among the Indian masses. While introducing the draft Constitution on November 4, 1948 in the Constituent Assembly and stressing the necessity to inculcate constitutional morality in the people of India, Dr Ambedkar had famously said, "Democracy in India is only a top-dressing on an Indian soil, which is essentially undemocratic." He had to specifically counter the attack, similar to the recent attacks on the 'colonial psyche', on the draft Constitution in its relying on a good part of the Government of India Act, 1935.

This view of Babasaheb was contested in the Assembly itself by some like Shri Alladi Krishnaswami Ayyar and Shri Vishwambhar Dayal Tripathi. However, on May 17, 1949 Jawaharlal Nehru spoke of our Indian traditions in a more realistic manner warning against the false pride of considering India as a world-teacher in the matter of democracy and legal systems. He said:

"We are all, I am afraid, in the habit of considering ourselves or our friends as angel and others the reverse of angels. We are all apt to think that we stand for the forces of progress and democracy and others do not. I must confess that in spite of my own pride in India and her people, I have grown more humble about talking in terms of our being in the vanguard of progress or democracy."

In his final speech on November 25, 1949, Dr Ambedkar himself had acknowledged about the Indian roots of democratic government and reiterated that those traditions had been lost and there is yet a danger of again losing it. He was categorical throughout that the ancient legal systems had strayed away from the sound heritage which survived only in the Buddhist traditions, the various movements of the so-called low-castes and tribal communities. The Indianisation which survived through the legal systems of Manu, Kautilya, Yajnavalkya and others had made Indian village republics responsible for the ruination of India by decimating the dignity of the individual, and making communities, varnas and castes as absolutist power centres and sources of ruination of India. This is what Dr Ambedkar had to say about these 'Indianized' and 'decolonised' or pre-colonial village republics of India:

"I hold that these village republics have been the ruination of India. I am therefore surprised that those who condemn Provincialism and Communalism should come forward as champions of the village. What is the village but a sink of localism, a den of ignorance, narrow-mindedness and communalism? I am glad that the Draft Constitution has discarded the village and adopted the individual as its unit."

Thus it would be clear that there was at least a partial contribution of the 'colonial psyche' which permitted the adoption of the individual as the basic unit of India's Constitution and legal system. Such de-Indianization had helped us to re-establish the dignity of the individual as pre-eminent even to the promotion of fraternity, and to the unity and integrity of the nation. Hence, at least to that extent, we need to defend such 'colonial psyche' against Indianization and decolonisation.

In the Constituent Assembly, Jaipal Singh Munda, while speaking on the Objectives Resolution had highlighted the democratic traditions of the tribal people: "The history of the Indus Valley civilization, a child of which I am, shows quite clearly that it is the new comers—most of you here are intruders as far as I am concerned—it is the new comers who have driven away my people from the Indus Valley to the jungle fastnesses. This Resolution is not going to teach Adivasis democracy. You cannot teach democracy to the tribal people; you have to learn democratic ways from them. They are the most democratic people on earth …". He further said, "Sir, I say you cannot teach my people democracy. May I repeat that it is the advent of Indo-Aryan hordes that has been destroying the vestiges of democracy …".

Dakshayani Velayudan also spoke about our democratic traditions: "In our ancient polity, there were conflicts between absolutism and republicanism. The slender flame of republicanism was snuffed out by the power political States. The Lichavi Republic was the finest expression of the democratic genius of our ancients. There, every citizen was called a Raja. In the Indian Republic of tomorrow, the power will come from the people …" She further said, "I visualise that the underdogs will be the rulers of the Indian Republic." On behalf of the Harijans she said, "What we want is the removal, immediate removal, of our social disabilities. Only an Independent Socialist Indian Republic can give freedom and equality of status to the Harijans. Our freedom can be obtained only from Indians and not from the British Government."

In the last and final speech in the Assembly on November 26, 1949, Dr Rajendra Prasad, the Chairman, had stressed on the unique un-Indian character of our constitutional and legal system which we had adopted:

 "Well, the first and the most obvious fact which will attract any observer is the fact that we are going to have a Republic. India knew republics in the past olden days, but that was 2,000 years ago or more and those republics were small republics. We never had anything like the Republic which we are going to have now, although there were empires in those days as well as during the Mughal period which covered very large parts of the country. The President of the Republic will be an elected President. We never have had an elected Head of the State which covered such a large area of India. And it is for the first time that it becomes open to the humblest and the lowliest citizens of the country to deserve and become the President or the head of this big State which counts among the biggest States of the world today. This is not a small matter."

Do we want to decolonise and Indianize this republican character of our legal and constitutional system? What kind of Indianisation is missing, if at all, from our Constitutional and legal system? As already highlighted by Dr Ambedkar, Munda, Velayudhan and Dr Prasad, we had rejected in the Constituent Assembly itself the Dharmashastric heritage of anti-women and anti-people value-systems. This rejection is writ large in each article of the Constitution and the provisions of law, both substantive and procedural. The remaining vicissitudes have been gradually done away through the ongoing amendments and codifications, including those in the personal laws and customary laws.

We have adopted a number of suitable elements from the colonial legal systems and ideologies. It is true that we have so far refused to do away with some of the undesirable practices appearing to be elements of colonial psyche, like addressing judges as "My Lord", or "your Lordship", or the uniforms of colonial times. By substituting "Panditji", "Maharaj", or "Aryaputra Shri" for "Melord" or "your Ladyship", we may not achieve much. Those titles are there perhaps not because of our addiction to the colonial psyche but more because of our casteist and Savarna-mentality, and feudal and aristocratic habits, which need to be de-Indianized.

Also read: In order to 'Indianise' justice delivery systems, we must follow the Gandhian way

The bogey of Indianization

The bogey of Indianization cleverly crafted by the Hindu Maha Sabha and Rashtriya Swayamsevak Sangh raises its hydra-heads again and again despite its repeated rejection by the Indian polity. It is a call to frame a substantially different and new constitution, and legal system on a purportedly Indian tradition, culture or religion. This bogey is flogged to life by some now and then.

The RSS has been unhappy with the present Constitution and had wanted it to be replaced by the Manusmriti (literally, 'Codes of Manu'). Its publication Organiser in an editorial ('The Constitution') on November 30, 1949 specifically expressed this and wrote: "The worst thing about the new constitution of Bharat is that there is nothing Bhartiya about it."

M.S. Golwalkar, who was the second sarsanghchalak (that is, chief) of the RSS from 1940 till 1973, had expressed similar sentiments in his book 'Bunch of Thoughts' (1966) stating that our constitution has "absolutely nothing, which can be called our own" and that it contained some lame principles from the United Nations Charter, and some features from the American and British Constitutions which have been "just brought together in a mere hotchpotch." He expressed false pride: "We had a free and flourishing national life of our own in our motherland. We had a unique social order and highly evolved political institutions."

Before and after the demolition of the Babri Masjid on December 6, 1992, there have been instances of the RSS releasing booklets denouncing the Constitution as "anti-Hindu" and putting forward a prototype of the kind of Constitution visualised by it. On January 14, 1993, RSS leader Rajendra Singh, in an article published in Indian Express, called for a new Constitution more suited to the ethos and genius of this country since India's was "not a composite culture".

In June 2016, Ram Bahadur Rai, senior Hindi journalist who is the chairman of Indira Gandhi National Centre for the Arts and a former Akhil Bharatiya Vidyarthi Parishad [ABP] general secretary (ABVP is the student organization affiliate of the RSS), asserted in an interview with Outlook that the present Constitution is "a new testament of our gulaami (slavery)". He also desired that the 16th Lok Sabha should be converted into a Constituent Assembly to draw up a new Constitution.

Recently, there have been attempts and threats to remove the socialist and secular features from the Constitution, and to subvert the legal pluralism other than that of the predominant community on the false pretext of Uniform Civil Code. Now, in the name of Indianizing and decolonizing, the Supreme Court judges are sent out as Ambassadors of Manu, Kautilya, Katyayana and others.

Also read: How far smugglers of hate have taken their battle against the Indian Constitution

Value-systems as inarticulate major premises

A legal system is a department of values. So is the case with ideology, ethics and morality, including political morality. Any particular orientation or identity of a legal system or constitutional system depends on the values and ideology on which it is built and being developed.

The judicial system would necessarily reflect the constitutional philosophy of the judges manning it, and their decisions would be influenced by it, as rightly observed by the British judge Lord Tom Denning. Inculcating the ideology of 'Indianization', which is inconsistent with the composite morality (value-system) of the Indian Constitution, into the conscious and subconscious minds of the judges of the Supreme Court and High Courts will have its far reaching results.

Justice Nazeer has referred to American judge Oliver Wendell Holmes about his assertion that the prevalent moral and political theories and even the avowed or unconscious prejudices "which judges share with their fellowmen have a great deal more to do than the syllogism in determining the rules by which men are governed." He also rightly referred to the view of American legal scholar Roscoe Pound that "current moral ideas and ethical customs are drawn upon continually by courts although seldom consciously".

Thus the looming tragedy facing the Indian Judiciary need not be lost on anybody, if the value system (morality) of 'Indianization' propagated by the Savarkarite-Golwalkarite ideology takes the place of the inarticulate major premise in the subconscious or conscious minds of even some of the judges, uprooting the composite constitutional morality (value system) of India. In such a scenario, in India the 'overlapping consensus' of our constitutional democracy would disappear into thin air, and its place may get occupied by the ideology of Indianization.

This overlapping consensus is what our Supreme Court has been calling the constitutional morality. This composite value-system flows directly from the composite culture of India (see Articles 51A(f) and 351 of the Constitution). It is the same political culture which German philosopher and sociologist Jurgen Habermas called the political culture in multicultural societies like India: "In multicultural societies basic rights and the principles of the constitutional state form the points of crystallization for a political culture which unites all citizens. This in turn is the basis for the coexistence of different groups and subcultures, each with its own origin and identity. The uncoupling of these two levels of integration is needed to prevent the majority culture from exercising a power of definition over the whole political culture. Indeed, the majority culture must subordinate itself to the political culture, and enter into a non-coercive exchange with the minority cultures."

In India, this political culture or composite morality is expressed through the system of constitutional values which form the basis of the basic features and structure of the Constitution. It contains the universal human values which we all Indians subscribe to, which throb throughout the Constitution, and which are declared so succinctly in the Preamble.

However, as the moral philosopher, Rajendra Prasad has argued, all value-systems can be classified into four groups with regard to their relationship with the universal values. They are (a) universal, (b) anti-universal (universal-contradictory), (c) universal-compliant (universal-friendly) and (d) universal-neutral. If all Indians can agree on a few constitutional values as universal, it follows that those values are universally applicable across the board, and no Indian would take exception to those values under any circumstances. Conversely, it would also follow that if some values are found to be antithetically opposite to these universal values, they are undesirable in all instances and they have to be avoided at any cost. These two kinds of values are easily identifiable as constitutionally obligatory and unexceptionally unacceptable. In between these extremes there would be the other two kinds of values: universal-compliant (universal-friendly) and universal-neutral. Thus applying the above test, we can classify the value-systems or ideologies as obligatory, forbidden, permissible, and recommended.

Thus, if the Indianization ideology falls into the forbidden category, having been contradictory to our composite constitutional value system, it is to be opposed tooth and nail; of course such opposition itself ought to be done following the values of composite constitutional morality. We cannot even imagine or wish for the genocide of the votaries of this Indianization bogey.

The judges, then, have a higher moral duty to be the torch-bearers of this opposition instead of being thrown into the tsunami of Indianization and decolonization. Otherwise, we would be doomed without the sentinel qui vive of our most precious human rights and the genuinely Indian composite constitutional morality. History has shown that this Indianization ideology is dialectically contradictory to the dignity of the individual, the fundamental right to privacy, secularism, socialism, federalism, minority rights, tribal and Dalit rights – all of which have been considered as part of the basic features and structure of our Constitution.

Also read: Abolish the power to transfer High Court Judges to safeguard judicial independence

Ashwatthama fallacy

The call for Indianization of India's legal system is evidently a fallacy and does not consist in a call to constitutionalize despite the false pretext. One of the first casualties in this call for Indianization is the truth itself, especially the interpretive truth which is the mainstay of all departments of value: ethics, morality, political culture, and law. Such a call necessarily presupposes the vicious application of the Ashwatthama fallacy. During the Mahabharata war when Ashwatthama was killed as a ploy, some knew very well that it was only an elephant which was killed. But key listeners, including most importantly Dronacharya, were made to believe that it was the man Ashwatthama, Dronacharya's son, who was murdered in the battle. The makers of Indian Constitution were aware of this fallacy and had warned us against it.

Even at the beginning of the Constituent Assembly, before passing the Objectives Resolution, while speaking on it during the discussion on January 21, 1947, R. V. Dhulekar had referred to the value of truth together with non-violence as the spirit behind the Constitution. He emphasized the centrality of truth in our Constitution, alluding to the result of untruth and Ashwatthama fallacy in Mahabharata:

"Human history is itself a book. Endlessly it writes and writes the hard facts alone. It makes no discrimination between the strong and the weak. Yudhishtira, the embodiment of truth, only once in his life told a half truth "Naro va Kunjaro va"; and for this minor untruth, the cruel pen of Vyasa, the celebrated author of the famous epic, the Mahabharat, lined him with the liars and made him undergo the sufferings of hell."

India has already opted to constitutionalize all her various legal systems instead of Indianizing them. The constitution, through Article 13, showed us the way by declaring the then existing legal system as void in so far it was inconsistent with the fundamental rights. The Directive Principles in Part IV provided us with the specific roadmap for evolving the needed legal system. Hindu code bills and the subsequent codifications and amendments are evidence to this.

Our legal pluralism is a necessary ingredient of our composite constitutional value-system. We Indians, in our right senses, have never understood the mandate of the Constitution either as one for Indianization or a destruction of legal pluralism and personal laws as long as they are not inconsistent with the composite constitutional value-system. Instead of a call to further constitutionalize, any call to Indianize or decolonize is a fallacy, if not a fraud on the Constitution. Any playing of this fallacy, whether in the form of Ashwatthama fallacy or in the form of the dirty trick of 'Dhritarashtra-embrace', may play havoc and destroy the millennia-old march of Indian constitutionalism.

(Dr M.P. Raju is an advocate, practising in the Supreme Court of India. He is also the author of India's Constitution: Roots, Values and Wrongs. The views expressed are personal.)