We require Indianisation to enrich Indian Constitutionalism

One of the apprehensions contained in Dr. M.P. Raju's piece is that the call for Indianisation would take away the basic feature of democracy from our Constitution. This goes to ignore that the Indian sub-continent was the cradle of democracy from times immemorial. On the other hand, the acts of mismanagement of the East India Company have been distorted as acts of constitutional relevance by historians.

This is the first of a two-part response to Dr. Raju's piece from earlier this year.

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THE article by Dr. M.P. Raju, published on The Leaflet on January 15, entitled, Call for Indianisation is a fallacy, if not a fraud on the Constitution, is indeed a well written piece, but it is difficult to agree with the whole of it.

Dr. Raju suspects that there is a hidden agenda behind that call; it is a false pretext to constitutionalise India's legal system by 'Indianisation'. He apprehends that it is, in fact, to reverse the efforts of 'de-Indianisation' that helped us to adopt a partial contribution of the colonial psyche and establish the 'individual' as the basic unit of India's Constitution, through which the promotion of fraternity, unity and integrity of the nation as its unique character was made possible; and that too by replacing the corrupt 'village republics'.

He also apprehends that the present call for Indianisation is to bring back the 'Dharmasastric heritage' that had been rejected in the Constituent Assembly. Besides, there is nothing in our past that has any traits of democracy, which can be adopted by Indianisation. And finally, he thinks that the process of Indianisation, as it is being promoted in the circumstances he refers to in his article, is not going to advance constitutionalism in any manner; rather, it will definitely be a retrogressive step.

My disagreements to these propositions are on the following aspects:

One, that the process of Indianisation has been highly misunderstood; there are no good studies on the subject forthcoming, even to adopt our Indian traditions in a realistic manner, as Jawaharlal Nehru said on May 17, 1949. Two, while he advocates that the correct way to 'Indianize' is to follow the Gandhian way, he forgets that Gandhiji had advocated to have an Indianized Constitution based mainly on the twin principles of 'non-violence' and 'decentralisation', imbibing them from the ancient heritage. Three, he wrongly defends and justifies the adoption of the colonial psyche, at least partially. Four, the apprehension that the present call for Indianisation is to bring back the 'Dharmasastric heritage' that has been rejected by the Constituent Assembly, seems to be misplaced. Five, the author wrongly apprehends that the call for Indianisation is for replacing the 'individual' as the basic unit of India's Constitution with 'corrupt villages', and that will erode into all the past efforts to promote fraternity, unity and integrity of the nation as its unique character; in ancient India, 'family' (kula) was accepted as a unit for almost all purposes, and not the individual. Six, the writer wrongly apprehends that the present call for Indianisation would take away the basic features of democracy from our Constitution. Seven, he thinks that Indianisation is not going to advance constitutionalism in any manner; rather, it will be a retrogressive step.

Also read: 'Indianisation' of the justice delivery system

Indianisation correctly understood

What is to be understood as Indianisation in the true sense? Which of the rich heritage of India is to be considered rightly for Indianisation to enrich and advance constitutionalism in the present day? What could be the parameters that could be applied to adopt our Indian traditions in a realistic manner? In what manner can one save the false Indianisation bogies, with hidden agendas or vested interests, from destroying the value systems that nurtured constitutionalism so far? These are difficult questions to answer, but it is imperative that we find answers to these questions so that Indian constitutionalism proceeds with enriching itself to its height as it was in the past.

It is the lack of good research studies on Indianisation, one must say, that begets bogies that may become more destructive than beneficial. Unfortunately, most of the studies on the subject are at the instance of foreign scholars, and most Indian researchers thrive on quoting them, instead of studying the originals on their own. One dare say that most of the writings of these western scholars do suffer from the vice of 'Orientalism' (Of course there are exceptions; to mention a few: historian and lawyer K.P. Jayaswal's 'Hindu Polity: A Constitutional History of India in Hindu Times' (1924), academic U.N. Ghoshal's 'A History of Hindu Political Theories' (1923), scholar, writer and educationist Benimadhab Barua's 'A History of Pre-Buddhistic Indian Philosophy' (1921), and historian Beni Prasad's 'Theory of Government in Ancient India (Post-Vedic)' (1926)). Our sages have copiously contributed to original thinking that is still relevant for adopting today, so that Indian constitutionalism can progress in the right direction.

Rules that the nature (prakriti) has given to humanity, sometimes called the natural law, are the knowledge and the experience that were handed down to the posterity; that would go back to many centuries of customs, usages and conventions prevalent in the Indian society. The knowledge and wisdom thus acquired was traditionally characterized as Vedic, which includes Itihasa-Veda ("Samargyajurvedastrayi" // "Atharvavedetihasavedau cha veda: (Kautilya: 1.3.1-2); "Puranamitivrittamakhyayikodaharanam dharmasastramarthasastram chetihasa:" (Kautilya: 1.5.14)), which is said to consist of Purana (age-old incidents), Itivritta (contemporary history), Akhyayika (traditional history), and Udaharana (illustrated stories); Dharmasastra, and Arthasastra.

'Orientalism'

Unfortunately, we Indians were made to believe that these were only a kind of mythology and not any kind of scientific knowledge, because none of these can be substantiated by scientific evidence. The wealth of wisdom of ancient India seems to have been overshadowed by the hegemony of the West in the form of the tradition of 'Orientalism'. The West's obsession against the East through 'Orientalism' seems to be one of the causes that impeded studies on the growth of constitutionalism in India. French philosopher and historian Michel Foucault  asserted in 1975 that "knowledge is power and that tends to be coercive in order to gain control." That seems to be the correct assessment of 'Orientalism' in its true sense, from which we have been suffering ever since a host of ancient Indian literature began to come to light.

According to Palestinian-American academic Edward W. Said, western scholarship created a body of theory and practice, in order to use it as a tool to dominate, restructure, particularize, and divide oriental things into components that can be more easily managed and manipulated. This is done with an intention of exerting hegemony based on the assumed superiority of European ideas over the 'backward' ideas and practices of the Orient. This western style of scholarship represents a long history of western domination and exploitation of oriental cultures that helps to explain the current plight of these denigrated cultures. The guilty European scholars did not objectively describe what they witnessed in the Orient, but rather recreated the Orient, which assumed the guise of an unchanging entity, according to Said.

American scholar in South Asian and post-colonial studies, Ronald Inden was a little more moderate, yet reflecting a definite postmodern viewpoint, went on to describe how it served as a device to dominate another country. British philosopher J. J. Clarke, on the other hand, adopted a more balanced approach and argued that it was an honest attempt of the West to integrate the eastern thought into its own intellectual concerns. On the one hand, he acknowledges that the Westerners were patronizing, chauvinistic and racist, and on the other "Eastern ideas have been used in West as an agency for self-criticism and self-renewal, whether in the political, moral or religious spheres."

Whether one call the analyses of Said, Inden and Clarke political or historical, the theory of Foucault that knowledge is power did contribute to create confusion, and that immensely affected the study of ancient Indian literature adversely. Western scholars also introduced the theory of 'Aryan invasion of India' in order to maintain the same hegemony, which is now being modified as the theory of Aryan migration into India. Both these theories now stand rejected on the basis of scientific evidence derived from archaeology and genetics-based analysis of various African and Asian populations: it has now been established that there were both in-migration as well as out-migration as far as the Indian population is concerned.

Ancient Indian republics

One of the apprehensions contained in Dr. Raju's piece is that the present call for Indianisation would take away the basic feature of democracy from our Constitution. This goes to ignore that the Indian subcontinent was the cradle of democracy from times immemorial; this was prevalent by the nomenclature of Gana Sanghas.

According to the well-known historian, Romila Thapar, the 'Aryans' were essentially pastoralists, with practice of some agriculture. Often, the Aryans would venture into the 'Dasa' settlements in search of fodder for cattle and horses. These raids were reciprocated by the Dasa and Panis through incursions into Aryan settlements to lift cattle. The dominant Aryans depicted Dasas often as those with a flat nose, or, with reference to language, as those with no mouth. Clashes and raids were so frequent that they were not confined to the Aryans; rather, they extended also to the Dasa clans. Thapar has written that the references to inter-tribal conflicts in the Rig-veda with Sudas, the chief of Bhratha clan, were attacks by a confederacy of ten clans on the banks of river Ravi, but the former was victorious. (It is interesting to note that the Rig Vedic reference to dasa, dasyu and asura are also found in Avesta as daha, dahyu and ahura.)

According to her, what probably gave rise to Gana Sanghas were factors like permanent settlement in a particular area, giving rise to geographical identity to a clan, or a confederacy of clans, subsequently given concrete shape by claiming possession of the territory they occupy, and then naming it after the ruling clan. In order to maintain possession of the area covered, gana sanghas formed themselves into a political organization.

Thapar has further explained that the term 'gana sangha' or 'gana rajya' refers to those who are partners in the business of governance, and are of equal status. While 'sangha' means 'assembly' (of the ruling class), 'rajya' refers to 'governance' and 'gana' refers to members of a confederacy clan or a family belonging to a clan. The governance of the territory is through an assembly of equal members. Therefore, gana sanghas are known as 'republics' or 'oligarchies', and markedly different from kingdoms.

The members of this confederacy are not elected. They consisted mostly of a single clan, or a confederacy of clans, and often that of 'kshatriya' clans; some of them were of 'sudra' clans as well. But all those who were rejected from the varna system or vedic orthodoxy, were not taken as members.

They maintained only two classes: the ruling class and the dasa working class. All matters were discussed and debated by the Assembly (the Sangha); if a unanimous decision could not be reached, it was decided by vote.

Gana Sanghas in Aitareya Brahmana

It was K.P. Jayaswal who, in his book Hindu Polity, brought to light from Aitareya Brahmana, the prevalence of gana sanghas (then known as gana rajya), during the post-Vedic periods. Aitareya Brahmana is the first of the trilogy, namely, Aitareya Brahmana, Aitareya Upanishad and Aitareya Aranyaka whose authorship goes to Mahidasa Aitareya, who is considered to be the 'Father of Philosophy' of the world; and Aitareya Brahmanas was considered to be part of the Rig-vedic Samhita.

Gana means 'numbers'; ganarajya would mean the rule of 'numbers' or 'the rule by many', and sangha was another term for numbers. Therefore, the gana rajya later on used to be known also as gana sanghas. According to Jayaswal, there were several forms of these gana sanghas.

The first one he mentions with reference to Aitareya Brahmana are the Bhojas; they are a sub-division of the Yadavas, which was part of the twin republics called the Andhaka-Vrishnis, found in the Kutch region (earlier the Kathiavad Agency) of Western India. According to Aitareya Brahmana the 'Satvats' is the ancient name for the Yadavas, and they seem to have further spread southwards.

The second ones are the Nichyas and the Apachyas of the Western India. Nichyas were those occupying the land bordering near the mouth of the Indus, and the Apachyas, the region just above that. The form of government, with a developed set of rules for its governance, was called Svarat, meaning the 'Self-ruler'; and they are always the 'leader of equals', elected from among the members of the gan sangha.

The third ones are Uttara-Madras and Uttara-Kurus. Madras in general were a marked gana sangha, while Uttara-Madras were a special group; they were noted for prosperity and a life of enjoyment. The seat of this group is said to be 'Sakala', which is the modern Sialkot. Aitareya Brahmana describes them as existing in the North, that is, "by the side of the Himalayas."

The fourth group was known as Rashtrika-Sapatya, meaning a 'rule by a board of leaders'; members of these boards were elected. They were located in the West, mostly in Gujarat, next to Saurashtra, but also spread across Eastern India. They are ordinarily referred to as belonging to the group of Bhojas and Pettanikas. The Bhojas or Rashtrikas were mostly found in Western India, but later on seems to have spread to the eastern part of India also. Aitareya Brahmana names them 'Bhoja pitaram' which means that this group followed a hereditary ruling system called the pettanika form of government.

Mahabharata gives a fair idea about the functioning of the gana sangha, which had developed a clear foreign policy, a full-fledged treasury, a standing army highly skilled in warfare, well-settled laws for governance, and discipline being maintained. In short, it depicted a well-organized non-kingly form of government, among the gana sanghas.

Panini on gana sanghas

The ancient scholar and linguist Panini mentions that there were many Gana Sanghas in existence by 600 B.C. all over North India (referring to the sixteen janapadas).

The first group of sanghas Panini mentions is known as the group of Ayudhajivin Sanghas. The nomenclature Ayudhajivin meant that the members, as a rule, observed the practice of using arms, or military, and not "those who live the profession of arms". That is to say, the members of this sangha are to be skilled in military arts. They lived in large territories, comprising several cities, and they were extraordinarily rich, prosperous and had well-organised civil administrative structure. They were free communities with military skill, having a single text of written rules. The members were all devoted to these rules. They had an elected leader, whom the members often addressed as 'the raja'.

These sanghas were almost entirely situated in the Vahika country, that is, mostly the Punjab (the undivided Punjab of the British period), and extended to the Vahika land, that is, the Sind valley and Punjab. These sanghas were: the Virka; the Damini; the Trigartta Shashtha or the League of Six Trigarttas: the Kaundoparatha, the Dandaki, the Kaushtaki, the Jalamani, the Brahmagupta, and the Janaki (or the Jalaki); the Yaudheyas and others; Parsva and others. Apart from these martial sanghas, Panini mentions a few other communities having the characteristics of sanghas: the Madra, the Vriji, the Andhaka-Vrishni, and the Bharga.

According to Panini, the Sanghas had their own individual anka and lakshana. Anka was a mark which was a symbol adopted by changing governments from time to time. An elected ruler or body of rulers adopted their own special anka and the same was given up when these set of rulers went out of office. Thus, anka signified an individual mark, often used with initial letters representing the leader or the legend attached to the sangha. While it is a figure found in the punch-marked coins that is called the lakshana, often it is the figure of an animal, or river, town, or the like. Panini described it as the heraldic crest of the sangha that were employed on their seals, coins and standards, as the official mark of the sangha.

Gana sanghas in Buddhist literature

Buddhist traditions confirm the existence of gana sanghas prevalent in sixth century B.C., mostly in the northern parts of India. Panini demonstrated at one time, in spelling out the best features of a sangha, because of which they were considered invincible. The following were the seven principal features, which he also thought to be the several conditions of the welfare of a community:

1.  The members shall hold full and frequent assemblies. Frequent meeting together is unavoidable;
2.  They shall 'meet together in concord', 'rise in concord' and 'carry out the Sangha business in concord';
3. So long as they enact anything that is not already established, and abrogate nothing that has been already enacted, they act in accordance with the ancient institutions of the Vajjians;
4. So long as they honour, esteem, revere and support the Vajji elders, and hold it a point of duty to hearken to their words;
5.  So long as no women and girls belonging to them are detained among them by force or abduction;
6. So long as they honour, esteem, revere and support the Vajjian Chaityas (the sacred monuments, that is, follow the sacred laws established;
7. So long as rightful protection, defence and support shall be fully provided to the Arhants among them, that is, follow the established practice; and
8. So long as the Vajjians were expected not to decline but to prosper.

Buddhist literature describes many of the gana sanghas, including the one from which Buddha himself arose and lived, namely, the Sakyas. Eight of these prominent ones are:

1.  The Sakyas, with their capital at Kapilavastu;
2.   The Kolias of Ramagrama;
3. The Lichchavis, with their capital at Vaishali;
4. The Videhas , with their capital at Mitthila, in the district of Dharbhanga;
   (The last two were conjointly called the Vrijjis or the Vajjis);
5.  The Mallas, who covered a large area to the south of the Shakyas and east of Vrijis, divided into two units, with their capitals at Kusinagar (Kusinara) and at Pava;
6. The Moriyas of Pippalivana;
7. The Bulis of Allakappa, which was a minor community and neighboured the Mallas of Kusinagara; and
8. The Bhaggas (Bhargas), who were the neighbours of the kingdom of Vatsas of Kausambi.

Out of these, the Sakyas and the Lichchavis were the most prominent ones.

The Sakyas

Buddha was born in a gana sangha, the Sakyas. He was the son of the Elder of the gana, and it was the king of Kosala who destroyed the independence of Sakyas as a Gana, during his lifetime. In fact, the Sakyas carried out their administrative and other functions in public assembly wherein both the young and the old alike were present, in the Common Hall (Santhagara) at Kapilavastu.

It was in this hall, while in session, that all issues, especially those relating to their relationship with neighbouring sanghas or kingdoms, were discussed. It was also in this hall that Ananda, the first counsel of Buddha, announced the death of Buddha, as everyone was present there to consider that very matter.

The Lichchavis

The Lichchavi rulers (gana-rulers) were the most prominent ones insofar as the organisational set up was concerned and the rules they followed for the governance of the sangha. Their leadership consisted of four high offices: The Raja, the Upa-Raja (the titles Raja and Up-Raja here do not refer to the kingly sovereignty as ascribed to the real kings in the monarchical kingdoms. It is to be seen that Buddha's father; an ordinary simple citizen (Suddhodana Sakiyan) was also called a raja), the Senapati and the Bhandakarika (the Treasurer). The government was in the city of Vaisali which had a system of triple fortifications.

Even though these were the four high administrative authorities, the rule (rajjam) was actually vested in the inhabitants (vasantanam), 7,707 in number, probably the foundation families belonging to the ruling class, and all of whom were entitled to rule (rajunam). There was election from among them to the four titles above mentioned. The total population was much larger, divided into outer and inner citizens (Vaisalians): 1,68,000 in number. They all assembled in the Assembly Hall not only to discuss political and military matters, but also agricultural and commercial ones.

The literature further refers to the Lichchavi gana in session appointing a Mahattaka or a distinguished envoy for an assignment to deliver a message 'on behalf of the Lichchavis of Vaishali', to the neighbouring sangha. That shows that it is the gana that transacted business on behalf of the whole people.

Out of the sixteen Maha janapadah, the Pali Pitakas mentions that two of them, namely the Virjjis and Mallas, were Ganasanghas. Summarising various authorities from Buddhist and Sanskrit literature, Greek writers, as well as the ancient polymath Kautilya, among others, Jayswal has chronicled about 76 such gana sanghas existing in the region in those days.

Colonial psyche

Dr. Raju in his article has endeavoured to defend and justify the adoption of colonial psyche in our Constitution, at least partially, and that will militate against Indianisation, as it is now advocated. What is this colonial psyche incorporated into our Constitution; and in what manner that has advanced constitutionalism in India?

The existence of a State with freedom for its citizens, certainly, is perceived as one of the essential preconditions for the development of constitutionalism for that country. Consensus, that is essential for the existence of a State, was missing in India under the colonial rule to be called a State, since the members of that particular community did not have the common interest born in freedom, to protect and promote by creating and using the compulsory political mechanism.

The thoughts that are lingering in my mind of the present writer are: how can a company incorporated in the United Kingdom assume constitutional powers in India, as represented in most of the literature on the topic, and deprive millions of Indians their livelihood and basic human rights? Why do the historians distort the acts of 'mismanagement' of a company as acts of constitutional relevance?

The company bahadur

As admitted by English writers themselves, the company bahadur, as called in those days, had no constitutional powers that could be validly exercised in India; nor did the British Crown indirectly exercise such powers over India. Bitten by the bitter American experience, it was a planned and deliberated decision of the Crown that India should remain only as a foreign nation for exploitation through trade and other commercial purposes, lest it lose India as it lost America forever. The company was accordingly directed to initiate the so-called 'westernization' process on a war footing, to create a climate conducive to commercial exploitation. But inebriated with the kind of wealth and might the company was enjoying in India, it ventured to simulate constitutional powers over India with impunity.

The East India Company, fondly called the 'company bahadur' in India, was incorporated on December 31, 1600 in the U.K. Even in England, at the beginning of the seventeenth century, the idea of a man going where he wished and engage in trade as he thought best, was not considered to be a noble act. Of course, such an enterprise would be almost impossible for a single individual to undertake, yet if he still ventured into it, it would only be regarded as a little better than an act of a pirate, as per British historian and academic administrator W.A.J. Archbold.

Charters issued to the company

'Charters' and 'letters patent of grants' are nothing but additional stipulations, terms and conditions to be read along with the original letter of incorporation of that company. Thus, the charters issued to the East India Company as well only contemplate that a company of merchants having factories or business premises at various places in India needed special stipulations, terms and conditions to meet the requirements of different circumstances in which the company was operating. It was wrong to assume that these charters, just because they originated from imperialist rule, were intended to seriously encroach upon the sovereign powers in India.

The company, in fact, had always to get permission for undertaking a particular voyage; those permissions implicitly placed the servants of the company in much the same position as the sailors on board of a man-of-war, Archbold has written. But that exercise of power was strictly limited to the voyage and its servants; perhaps the company had the power to extend the same to its factories and business premises, provided it affected only the servants of the company. None of these could be made applicable to the native Indians.

The charter of February 4, 1622, is called, 'A Charter or Letters Patent of Privilege for the Governor and Company to chastise and correct all English persons residing in the East Indies and committing any misdemeanour, either with martial law or otherwise'. Twenty-one of these charters, issued between 1604 and 1660, were called, 'License to transport money'; and four of these charters, issued between 1677 and 1693, were called, 'Warrant to receive money' or 'A Warrant for payment'. One of the most interesting charters issued on September 19, 1757 was called, 'A Charter or Letters Patents of Grant, to the United Company, of plunder and booty'. Another one in similar lines was issued on January 14, 1758 called, 'A Charter or Letters Patents of Grant, to the United Company, of plunder and booty'.  (emphasis supplied)

Thus, from the time the company was incorporated, for about one and half centuries, that is, till the grant of diwani, the company was a trading company. Immediately after the receipt of the grant, and after Robert Clive, the first British Governor of the Bengal Presidency, left, the servants and the officers of the company grew more and more greedy, and started indulging in profiteering of the first grade, resorting to all kinds of activities by hook or crook. This was the 'westernization' process introduced in India on a war footing, to create a climate conducive to commercial exploitation.

As, for instance in Surat, the company obtained some trading rights from the local authorities, confirmed by the then Mughal Emperor; but those rights were limited to trade, hire a house, and have self-government of their own people and not beyond. By 1702, the company had scores of factories and other commercial establishments all over India, and they were mentioned in the charter of 1702. Archbold, quoting from the Imperial Gazetteer, rightly wrote that as the Englishmen had settled in India under the license of a native ruler, the natural consequence for them was to be subject to the Indian law, which was, according to him, "very complete and well-organized religious, social, and legal systems".

Also read: The First Supreme Court(s) Of India

Introduction of 'justice and equity' into India: The mayor's court

Let us now have a look at some of the subsequent charters obtained by the company. On an application by the board of directors and by the general body of the company jointly to the then British monarch King George I, the charter of 1726 was issued, which, in the first instance, permitted the company to maintain forces on sea and on land for the protection of its commercial ventures in India. Secondly, the company was authorized to establish a private dispute settlement forum, known as Mayor's Court, to settle all internal disputes within the company.

These permissions were largely misused by the company, so much so, that a new charter had to be issued in 1753 clarifying that the dispute settlement forum established by the company cannot entertain any case from the natives, nor sue them without their consent. In 1783, the then Attorney-General at Madras gave an opinion to the company that it had no right at all to establish courts with jurisdiction over the natives of India at all. Yet those who justify the partial introduction of colonial psyche seem to call it the first step to introduce 'justice and equity' into India.

The comments of the then Attorney-General do reflect the sad situation of the so- called mayor's courts, in Surat, Bombay, Madras and in Calcutta. In 1685 when an English prisoner was sent home, a dispatch from England came to Surat, castigating the company courts and its presiding officers that they had no respect for law, nor for any evidence; the only testimony upon which the convictions were based upon, were viva voce!

In Bombay in 1697, some of the travellers recommended that pirates must be tried in India, because "the natives in India consider that these marauders to be in league with the company, and think sending them to England for trial a mere pretense". In 1671 the directors had questioned the company why it was not appointing judges well versed in civil laws; they further stated that it was wrong to think that such a person might not obey the orders passed in the interest of the company.

The account from Madras, from Scottish sea captain, privateer and merchant Alexander Hamilton, is more vivid:

"…..The city of laws and ordinances

For its own preservation,

And a court kept in form,

The Mayor and Alderman in their gowns,

With maces on the table,

A clerk to keep a register of transactions and cases,

And attorneys and solicitors to plead in form

To the Mayor and Alderman;

But after all it is but a farce,

For by experience, I found,

That a few Pagodas rightly placed,

Could turn the scales of justice,

To which side the Governor pleased,

Without respect to equity or reputation."

"…And the Governors dispensing power of Nulling all that the courts transacts,

Puzzles the most celebrated lawyers there

To find rules in the statute laws."

"…That power of executing pirates

Is so strangely stretched that

If any private trader is injured

By the tricks of a governor

And can find no redress,

If the injured person is so bold

As to talk of Lex Talionis,

He is infallibly declared a pirate."

(emphasis supplied)

(Readers may read Part II of the article here)