DURING THE SITTING of the ceremonial bench for the former Chief Justice of India (‘CJI’) B.R. Gavai, the Solicitor General of India, Tushar Mehta, said, addressing CJI Gavai, “After your taking over and with Justice Surya Kant, a fresh breeze of Indianness in our Jurisprudence has started flowing in.”
In response to that, CJI Gavai stated that in the Presidential Reference case on the Powers of the Governor and President, the Constitution Bench had chosen to employ a ‘Swadeshi’ interpretation and did not rely on a single foreign judgment. The same week on which the former Chief Justice spoke of a ‘Swadeshi’ Jurisprudence, Prime Minister Narendra Modi, delivering the Sixth Ramnath Goenka Lecture, spoke of a national pledge “to free ourselves from the colonial mindset” in the next ten years.
This could be merely a coincidence. But history teaches us that even coincidences have historical contexts. In this case, the necessary context lies in the many manifestations of decolonization. A silent battle is being waged for the meaning and soul of decolonization in India.
Decolonization and the Spectre of Obscurantism
Meera Nanda, in her book ‘Postcolonial Theory and the Making of Hindu Nationalism’, makes a profound point: she calls the Postcolonial Left and the Hindu Right “two strange bedfellows” According to her, the attack by the Postcolonial Left on Western rationality and modernity has provided the conceptual vocabulary to the Hindu Right in its project of “decolonizing the Hindu mind.” We believe that postcolonial scholars have made immense contributions to unpacking epistemic injustice and persistent colonial biases in our institutions, knowledge systems, and regimes of truth. However, the failure of postcolonial scholarship lies in not giving sufficient pushback against the misappropriation of the language of decoloniality by the Hindu Right.
In this misappropriation of decoloniality, the Hindu Right essentially claims that only Hindus have a claim over Indian nationhood, and minorities of India, especially Muslims and Christians, are the intruders and the ‘others.’ This misreading of decolonization is enabled by the political establishment. The valorization of ‘Swadeshi’ jurisprudence or interpretation requires our gaze of incredulity in the era when decolonization is misappropriated.
Sociologists Andreas Wimmer and Nina Glick Schiller point out that “methodological nationalism” is a naturalization of the nation-state by the social sciences in which countries are treated like natural units. Nation states are equated with societies and national interests are conflated with the purpose of the social sciences.
Building on the idea of methodological nationalism, Sabah Siddiqui argues that this methodology replaces the imperial universal with the national one without challenging the notion of the singularity of knowledge. Such provincialized singularity of knowledge attempts to decenter the Western canon of knowledge with the Indian equivalent, and results not in decolonization but recolonization. Siddiqui’s warning must be taken seriously, as in India, the replacement of Western knowledge, which is proposed by the Hindu Right, is Brahminical Knowledge. The government’s promotion of the ‘Indian Knowledge System’ is a form of Brahminical Knowledge being promoted in the name of decolonization.
These Brahminical attempts to misappropriate the language of decolonization are aimed not only to reestablish the supremacy of Brahminical ways of life but to demolish India’s liberal Constitution as well. Hindu right-wing ideologues, and those associated with the Rashtriya Swayamsevak Sangh, have never shied away from their death wish for the Constitution.
Hindu right-wing ideologue K.N. Govindacharya, in an interview in 2016, suggested: “We will rewrite the Constitution to reflect Bhartiyata.” In that interview, he suggested making a difference between Semitic and other religions, noting that the Semitic religions “definitely threaten[ed] the overarching national identity” He also suggested that the Constitution was a continuation of Western philosophies and was ‘individual-centric’. This interview is an eye-opener.
Govindacharya was attacking a liberal constitution for giving primacy to the atomized, unencumbered liberal individual, which is a postcolonial critique of liberal constitutionalism as well. In fact, Karl Marx too critiqued the liberal rights’ framework on similar lines. However, the crucial difference in RSS’s vision and the good faith critiques of liberal rights lies in the fact that RSS sees the minority population and their culture as ‘other’ and ‘threatening’ to national unity. Its misappropriation of the language of decolonization is to establish obscurantist ways of life in which the question of equity and justice for Dalit, disabled, queer women remains masked and buried.
Many Erasures and Discontents of Indian Philosophical Traditions
While Indian philosophical traditions talk about reality, meaning and knowledge, there is a soteriological aspect to it which is difficult to separate from the religious thought.
The earliest literary corpus from South Asia, the Rig Veda of Vedas, has been understood to be composed by the priestly class, around the performance of sacrifices. This priestly class evolved into the caste group known as the Brahmin, the evidence of whose superiority exists in the famous Purusha-Sukta Hymn in the tenth Mandala or chapter. Multiple hymns in the Vedas, along with pondering the reality of life, pray to the Vedic Gods to expel the ‘godless’ people i.e., adeva, in the first hymn of Third Mandala, along with dark skinned people in Ninth Mandala; and flat nosed people with slighting speech in fifth Mandala. This is not merely a prayer for protection, but rather a systematic erasure of any ‘other’ in the society.
Both schools of philosophy within Hinduism — astika, which accepts the supremacy of Vedas and further divides into six schools of thought, and nastika, which rejects the authority of Vedas and is often associated with Buddhist, Jain, and Charvaka thought — possess a negative attitude towards the others. In a passage of Āpastamba Dharmasūtra, for example, the list of food which is unfit for consumption includes: ‘Food that an impure Sudra brings, on the other hand, is not fit to be eaten’ and ‘food that has been brought at night by a slave woman…’.
While Manusmriti’s response to women and Dalits is well known, the Yajnavalkya Smriti, the most commented legal text after Manu’s, does not hold back in expressing disdain for women. “A licentious woman,” Indologist Patrick Olivelle translates, “should be compelled to dwell deprived of any rights, wearing dirty clothes, living on just morsels of food, scorned and sleeping on the ground.” This appears in a section on proper conduct.
Beyond judging the morality of women, these texts also punish women who only give birth to daughters. Women cannot be witnesses, neither could ‘a person of heretical sect’, ‘a person fallen from caste’, or ‘a person of ill repute’ as stated in the section on Legal Procedure. The punishments mentioned in the texts are also worth noting, with it being mentioned that “seven grains of poison for a Shudra’ forms the ordeal, and this includes recitation, followed by consumption of ‘saarnga’ poison from Himalyas. In case the man, i.e., the Sudra survives ingesting poison, he is considered ‘innocent’.
Caraka-Saṃhitā, one of the three important Ayurvedic texts from early centuries CE, that also lends to medical discourse, does not shy from terming a woman as tender, delicate, weak, and easily disturbed. In fact, the text even warns against placing a woman in power, and it has been understood that at this point, women were kept away from medical science, even their own bodies.
While the legal texts prohibit, the popular tales showcase how such actions occurred and were understood in ancient societies. Uma Chakavarti’s work on Jatakas highlights multiple stories, where adultery is more often than not a woman’s transgression, and where even among animals, mixing of classes is not allowed. She writes:
“The distinction between the texts of Brahmanic culture and the more popular Jataka stories is only the difference between prohibition, and the representation of transgression; in the former transgression is only implied, or viewed as a possibility: in the Jatakas it is actually enacted by women.”
The Nastika school may question the sanctity of the Vedas, but it recognized the social hierarchy in its form, and carried the belief of the ‘essential’ nature of women.
When it comes to the queer question, while myths have allowed for gender to be fluid, it is only permissible in the case of divine sanction, be it the case of Mohini, a roop of Vishnu; or Shikhandi, who in many versions had to exchange sex with a Yaksha to be a man. Same sex-desire, on the other hand, is much more difficult to trace — whether sanctioned or punished. Even Kamasutra, the text long associated with sexual liberation, talks of non-normative acts. Legal texts like the Manusmriti condemn even that. Trying to locate the queer question in the ancient knowledge system is difficult, which only serves to vilify its existence in the present.
What does ‘Swadeshi’ interpretation mean for the subaltern?
These erasures and suppression of subaltern identities in our philosophical traditions cannot be wished away. A liberal text like the Constitution, if construed through the prism of these philosophical texts and their ways of interpretation, will end up further marginalizing these communities.
We brought these concerns to highlight that an emasculated reading of decolonisation and insistence on a ‘Swadeshi’ interpretation without addressing the question of social inequities in our society will roll back our progress on constitutional governance and liberties.
Gautam Bhatia asks, in a review of CJI Gavai’s legacy:
“But what exactly, one might ask, is “swadeshi” about a judgment written in English, relying primarily on the English common law of precedent, considering the powers of the English-invented institution of the “Governor,” and propounding a doctrine of executive deference that was originally propounded by the German jurist, Carl Schmitt?”
This becomes more ominous when linked to a recent interview by CJI Gavai, in which he stated that in the Presidential Reference Case, the Bench followed the pattern of the Ayodhya judgment, where there was ‘no dissent’.
In a dystopian world, where the Supreme Court is using ‘Swadeshi’ interpretation to bring back ideas of Nazi jurist Carl Schmitt, where judges follow the pattern of the Ayodhya judgement, the most brutal example of judicial seal to majoritarian wish, and celebrate having “no dissent”, our liberties and freedoms are at great danger. For India’s disenfranchised classes, the deployment of a narrow nationalist methodology in judicial reasoning will only lead to the augmenting of unfreedoms and further violent ‘othering’.