As India, that is Bharat, celebrated the completion of 75 years of its Independence on August 15, 2022, as the ‘Azadi ka Amrit Mahotsav’, it also confidently and pompously marched into the ‘Azadi ka Amrit Kaal’. The Indian state has projected the next 25 years as a period for ushering in vigorous positive transformations, which shall catapult the nation to the status of a Vishwaguru by the time India celebrates a century of its Independence in 2047. Delivering his Independence Day address to the entire nation from the ramparts of the Red Fort last year, Prime Minister Narendra Modi laid down five vows or ‘Panch Pran’ to be taken and followed by all Indian citizens in this Amrit Kaal.
The ‘Panch Pran’ was as follows – “Goal of developed India, to remove any trace of the colonial mindset, take pride in our roots, unity and sense of duty among our citizens”. The particular emphasis of Narendra Modi on an urgent need to free ourselves of any and every shred of a colonial mindset is bound to have very far-reaching implications for the current Indian polity. Discussions over removing the last vestiges of our colonial past can simply not afford to ignore the obligation of revisiting our fundamental text of governance, the Indian Constitution, from the Indic point of view. (The Constutuent Assembly Debates provide lot of insights on the same).
Situating the Urge for Decolonising the Indian Constitution
The Indian Constitution is regarded as the bedrock of the Indian state architecture. It is the foundation of India as a modern nation-state, and it is supposed to encapsulate the aspirations of all citizens. With the passage of time, our constitution has been exalted to a revered position and has also been turned into a battlefield of ideas and ideologies. The battle of constitutional narratives has spilt over the limits of the crude text and has long waded into its “correct” and legitimate interpretation as well. In this backdrop, the question of examining the colonial content, enshrined within and ascribed to the constitution’s text, becomes a national imperative. We must ask ourselves some tough questions, such as, despite sovereignty being ultimately vested in the Indian people, do the masses at large actually identify themselves with the constitutional ethos? Do the voices of ordinary Indians find a place in interpreting the Indian Constitution? Do those regarded as the ‘subalterns’ comprehend the nitty-gritty of the Constitution? Raising these questions shall help us understand the populace’s disconnect with a constitution written and operative in the former’s name. If the governing text does not resonate with the ethos and political worldview of the governed, it would require an enquiry into the reasons behind the same.
A major factor behind the disconnect between the citizens and their constitution could be due to the continuity of colonial ideas mainly reflected in its interpretation and the hegemonic discourse around it. This shall then help us trace and identify the colonial nature and texture of our supreme governing text and give us an idea of the amount of labour that needs to be put in to decolonise it. As the demands for a decolonial constitution gain prominence, we will have to come up with authentic indigenous alternatives to the understand & interpret the constitutional ideas.
This article only intends to provide a push towards rethinking our approach to the Indian Constitution and emphasises the need for contemplating the points of intervention for interpreting ‘our’ constitution seriously.
Re-imagining the Indian Constitution
Discussions about decolonising the Indian constitutional framework tend to hover at the intellectual level in the abstract unless followed by focusing on introducing alternatives to the colonial content of the document. This obviously does not in any way question the importance of the discussions about decolonisation, as that is the first step in the series of ushering in suitable indigenous alternatives. In this article, the aim is simply to inaugurate the beginning of possible experiments with our constitutional text by identifying well-contextualised indigenous ideas as substitutes for content classified as ‘colonial’ within the constitution. As for the classification and identification of the ‘colonial’ content of the constitution, no specific metric/standard can be followed. For the purposes of this article, the ‘labelling’ of constitutional ideas and provisions as ‘colonial’ shall be done simply on the basis of contemporary popular discourses.
Challenging the Constitutional Myth of Secularism
With the phenomenal rise of the Hindutva wave alongside the Ram Janmbhoomi movement, which has been described as a “truly subaltern mass movement”, the masses at large started questioning the secular myth that supposedly provided the cohesive cultural foundation of the Indian state and nation till then. There is, of course, an entire spectrum of various hues providing different nuanced interpretations of Hindutva, some identifying it as “Hindu modernity”, but there is surely a larger consensus over the fact that the Hindutva project has emerged as a powerful counter-narrative to the hegemonic secularist discourse which has been long played out in India with an explicit endorsement from the Indian Constitution. This hegemonic discourse of secularism was termed ‘Nehruvian secularism’, and its obituary was also written after the beginning of the construction of Bhagwan Ram’s grand temple at Ayodhya.
Whether the narrative of secularism has been rejected as a cultural foundation by the Indian masses and whether it has been dislocated from its position of hegemony may be a matter of intense debate and scrutiny. However, it is undoubtedly clear that secularism still guides the constitutional discourse of Indian democracy. It is well entrenched as a solid pillar of the constitutional ethos and is projected as an indispensable part of Indian constitutional morality. Its centrality to weaving popular discourse of the Indian Constitution may be gauged by its forceful enshrinement into the Preamble through a constitutional amendment passed during the heydays of Emergency. Given that the entire idea of secularism is a Western import that was ideated and formulated in Europe, it is curiously puzzling to see that it has been provided with a fertile ground for nourishment in India through the constitution.
With the disillusionment of people from the myth of secularism, it becomes imperative for us also to challenge the constitutional legacy and legitimacy of this hegemonic discourse. A serious probe into the paeans for secularism strewn across our constitutional jurisprudence may begin by first examining the constitutional definition and explanation of the term. The Indian Constitution, being a legal text of governance, has to provide a framework that satisfactorily lays out its meaning of secularism and clearly indicates what the term encompasses. Lack of coherence will have to be abhorred in the process of constitutional interpretation. A term without an academic or legal consensus on its meaning-cum-scope cannot be considered a central tenet of our constitutional text.
In order to put the idea of secularism to rigorous scrutiny, one may turn a critical eye to Article 25 of the Constitution, which provides for the fundamental right to religious freedom. A serious flaw in its wording, which may also be seen as the source of several constitutional struggles around the issue of exercising religious freedom, is the almost fictitious divide that it creates between the secular and religious spheres. It strikes at the exercise of one’s religious freedom itself by attempting to cull out the sphere of supposedly secular activities from the larger practice of religious activities. This creation of two separate spheres, in order to govern religious activities and bring them within the ambit of the constitution, needs to be immediately revisited for its soundness and clarity in its understanding and consistency in application. Otherwise, it shall only lead to further friction between the society and the state by impinging on the religious freedom of individuals and communities.
Modern constitutional states, conventionally, have emerged as nation-states anchored in certain conceptions of secularism. They have been modelled as secular states governed by the text of the constitution, the conception of secularism being enshrined in the constitutional text itself. Secular states governing religious societies on a constitutional basis require establishing a relationship between the ideals of secularism and religious freedom. The Constitution defines the relationship in accordance with the state’s understanding of secularism. In a sense, the kind of secularism the state adheres to defines the nature of religious freedom guaranteed to the citizens.
While secularism may have been a cherished ideal during the advent of modernity, its lived experience has raised serious questions about its compatibility with deeply religious societies and its efficacy in achieving its purposes. This questioning has arisen due to its strained relationship with religious freedom. A secular state meant to make space for the free exercise of religion curiously not only pushes religion into the private sphere but also attempts to govern the religious sphere as per secular dictates of law.
This section has sought to discuss the inability of secularism as a potential guarantee of religious freedom (even when that is its purported ideal) and the shrinking space for the legitimate exercise of religious freedom under modern constitutional states. Particularly in the Indian context, secularism seems to be coming off as a failed constitutional project despite its constitutional entrenchment. Although it is a bit too early to proclaim the eventual demise of secularism in India, one can surely argue the need for a serious reconsideration and reconceptualisation of India’s secular ideal.
The ‘Distinctiveness’ of Indian Secularism
Secularism is often discussed as a modern, universal concept applicable to all polities. Notwithstanding the particular historical and cultural context of its emergence, i.e., its historical origins in Christian theology and the European Renaissance, it is seen as flexible enough to be transplanted over other cultural landscapes. A significant argument made in this regard is its distinctiveness and adaption to the socio-cultural circumstances. It has been argued that Indian secularism departs from the Western model of secularism in that it follows the normative framework of a principled distance, something unique to the Indian secular model. (Rajeev Bhargava, “The distinctiveness of Indian secularism” in Aakash Singh and Silika Mohapatra (eds), Indian Political Thought: A Reader, Routledge 2010, page 110)
Rajeev Bhargava describes the departure of the Indian model from the stereotypical Western one as such, “First, unlike the strict separation view that renders the state powerless in religious matters, they enjoin the state to interfere in religion. Second, more importantly, by giving powers to the state in the affairs of one religion, they necessitate a departure from strict neutrality or promote Hinduism. Either way, it appears to strike a powerful blow to the idea of non-preferential treatment.” Bhargava’s analysis focuses on an ideal version of Indian secularism and also highlights some of its important aspects, such as greater indulgence in the affairs of a specific religion. It has been comprehensively argued that the exertion of power to scrutinise matters related to Hinduism has substantially restricted the operative sphere of Hinduism and the religious freedom of Hindus as a consequence. The principled distance approach, as postulated by Bhargava, suggests a very contextual form of interference in religious affairs, which he refers to as “contextual secularism”. The issue with such a conceptualisation of secularism is that it fails to provide a coherent and consistent framework for interference in religious matters. The need for a contextual approach should be appreciated, but one may also realise that such a model might result in arbitrary curbs on religious freedom if it does not operate on consistently laid down postulates.
Moreover, it is not just the consistency of application of secular ideals that matters. The political discourse generated around it is of equal significance. In India, the judicial adjudication on matters of religious freedom of Hindus and customary and ritualistic practices of Hinduism has drawn much criticism in political rhetoric. The development of a perception amongst the masses about the judiciary pontificating and putting restrictions on Hindu practices, notwithstanding its veracity, has surely impacted the general perception of the secular credentials of the judiciary and the Indian state. One may also note that the rise of Hindutva, the Bharatiya Janata Party, and the current government’s power is based on an essential pillar of articulating a powerful critique of secularism and hoping to subvert the pre-established secular ideal. The secular narrative has not been able to respond properly to this discourse and has also failed to address the politico-juridical narrative of decreasing freedom of religion of the Hindu masses due to legal regulations of their religion.
The secular project need not be dismissed in its entirety. Nevertheless, there needs to be a recognition of its loopholes and its failure to articulate in a political language comprehensible to the common masses. The Hindutva bandwagon, which has been thoroughly clear in its criticism of secularism, has been able to mobilise the masses and utilise constitutional means to implement its project. The argument here is not that secularism has been an absolute failure vis-à-vis the Hindu majority, rather the contextual approach has come across as a vacuous concept and has not been able to make itself sensible to the people as well as it has not been consistent in its application.
Moreover, secularism, as an ideal apparently standing up for freedom of religion, has resulted in affecting the political articulation of communities. For instance, the legal regulation of Muslim personal laws while giving them an image of autonomy has caused Muslim politics to revolve around and be restricted to its personal laws. It has been argued that Muslim personal laws have colonial origins and cannot be said to be in direct consonance with the Sharia, so they need to be “regulated in accordance with the Constitution,” just as done in the Triple Talaq judgment. This shall open fresh avenues for Muslim political articulation beyond the trappings of issues related just to its personal laws.
Similarly, with regard to the Sabarimala judgment, it has been argued that the academic appreciation of the judgment ignores the fact that such legal controversies reduce women’s political articulation to mere issues of gender and social justice and also send a message of attacks on religious freedom among the religious and orthodox circles. Such portrayal “occludes the hidden potential of sex as a question of political sovereignty”. The Indian model of secularism (the lived experience of it) clearly indicates major loopholes in the constitutional governance of the relation between secularism and freedom of religion.
Whether through constitutional adjudication or through legislative governance (such as the state control and administration of temples), the modern state tends to curb religious activities and is not able to maintain a principled distance, which it ideally espouses to do. Ironically, the state’s promise of contextual secularism does not go down well with the people due to the former’s failures and inconsistencies, thus also creating a vacuum in the language of sovereignty, which is supposed to rest in the ideals of the Indian constitution (secularism being one of the most crucial features). In the ultimate analysis, it seems that the Indian version of secularism is not so distinctive after all and has largely not been able to demarcate what its distinctiveness constitutes clearly.
The Impossibility of Religious Freedom
Even if one shifts from the multiple models and explanations of Indian secularism and takes a look at other models, one may find that secularism has not actually played out well. United States’ model shows that the modern state and its manifestations, such as the judiciary, ultimately get mired in claims of hypocritical stance due to their indulgence in theology. A strict separation of the state and religion is also not able to avoid the ultimate interference of the state in religious affairs. What is more, state secularism actually intrudes into the public’s private spheres and religious spaces and beliefs. As it has been argued:
“Rationalizing religion in the ways proposed by courts and legislatures in this country fails to capture the nature of people’s religious lives at the beginning of twenty-first century, maybe of any century. Such rationalization also asks the government to be the arbiter of religious orthodoxy.”
(Winnifred Fallers Sullivan, “The Impossibility of Religious Freedom”, Princeton University Press 2005, page 10)
The modern, constitutional attempts to govern religious activities and relegate religion to the private sphere or at least have the state maintain a distance, have resulted in uncomfortable consequences. Freedom of religion constantly seems to be under threat despite the duty of secular states to uphold it. Curbs on the religious sphere resulting from state implementation of secular theology and state intervention have led to a sceptical attitude among the common masses towards the very idea of secularism. It is perhaps time to revisit the conceptualisation of secularism and either re-invent it in a way that not only makes space for enhanced religious freedom but also helps provide a powerful language of sovereignty or perhaps shift away from the secular constitutional model entirely.
We, The People?
Another talking point of significant import, when we ponder over decolonising our constitutional identity, is how Indian citizens identify themselves within the text of the Indian Constitution. The Preamble is seen as a fascinating prelude to the Constitution. It is meant to reflect the nature of the polity, objectives of the constitution, and aspirations of the citizens. Moreover, it is also an expression of the emergence of a modern state with its citizenry. The Preamble to the Indian Constitution begins with the words: “We, The People of India…” These wordings of the Preamble do not constitute a mere summoning of the commons but are a statement of India’s sovereignty. They signify the nature and evolutionary history of India’s sovereignty. The wordings of sovereign assertion matter a lot, particularly because they indicate how the sovereign was conceived and are a subtle message of the binding factor that has brought the people together under the umbrella of the sovereign. This also means that they may indicate the status of nationhood within a modern state. An explicit or implicit assertion of nationhood through such statements places the importance of being a nation on a high pedestal. It is what defines us in the longer arcs of historical trajectory.
Then, it may be important to better understand and explore the meaning of the particular wordings with which the Preamble to the Indian Constitution begins. Does ‘we, the people’ indicate that the modern Indian state has been established simply on the basis of a covenant, or an implied contract, amongst the commons to latch on to each other and put the Indian state in motion? Or are there more binding factors which have brought all the people of India together? Such questions can only be answered through an exploration of our history and heritage. These questions are not new and have been discussed and debated upon by the framers of our constitution during the Constituent Assembly Debates. When there were suggestions put forth in the Assembly debates to adopt the terminology ‘We, the nation’, the framers decided otherwise. With the emergence of a sustained, strong nationalist wave among the Indian masses, it may be time to rethink our constitutional identity as a nation.
This article is a semi-academic/polemical attempt to initiate a robust discussion around constitutional autochthony and revisiting the constitutional document with Indian prism. The article attempts to serve as a suggestion for talking points that may be significant when we discuss the decolonisation of the Indian Constitution. As Bharat looks at 2047, it might be crucial to turn its gaze inward and shed off its long-held colonial baggage to smoothen the resurgence of indigenous ideas and institutions.