“Majoritarian views and popular morality cannot dictate constitutional rights.”
That declaration, the key point of four historic Supreme Court judgements on Thursday that erased a 157-year-old, colonial-era law against homosexuality, has far wider ramifications for India, as it struggles to confront a growing challenge to its Constitution. This is a nation that increasingly and freely uses majoritarian views and popular morality to define political debate (hate speech against minorities, pandering to Hindu voters), to undermine law enforcement (or the lack of it), to change laws (cow protection, blasphemy), to change education (writing down the Mughals and Islam, writing up Hindu kings and Hinduism), to change food habits (dissing anything that minorities eat) and poison social conversations (casual bigotry, creating enemies from thin air).
The Supreme Court’s reminder that India is governed, or should be, by constitutional morality comes at a time both bizarre and ominous: a time when a Chhattisgarh journalism university announces a two-day seminar on the monkey god Hanuman and his attributes (as they relate to his life- and time-management skills, his ancient and modern forms) and various state governments create cow-protection departments; a time when thousands in Gujarat wave the bhagwa, the Hindu flag, and shower petals on a terrorist released on bail, and others in Jammu and Mumbai march to demand the release of men accused of rape and terrorism, for no other reason than that they are Hindu.
These are obvious signs of growing Hindu radicalisation in India, but the quiet, gathering tide of substantially more radical Hinduism, which I would argue goes beyond militant Hindutva, is evident in the unravelling of multiple murder plots that claimed the lives of writers and liberals in Maharashtra and Karnataka. This unravelling has come to us courtesy a conventional and secular law-enforcement process in both states, from police officers who – unlike their counterparts elsewhere – have stayed true to their constitutional duties, stayed above sectarian divides and dodged majoritarian demands to go easy on the suspects because they are Hindu.
Since editor Gauri Lankesh was murdered a year ago in Bengaluru in a case with no obvious leads except a red motorcycle and a grainy photo of the shooter, police detectives scoured hundreds of images, searched hundreds of locations, interviewed hundreds of people, used advanced “gait analysis” to confirm the murderer’s identity and sifted through 15 million phone calls.
The investigation led to radicalised young Hindu men in small towns, and an elaborate network of dormant and active “modules” – hit men kept ignorant of each other – and remote training camps. These are elements common to, and possibly borrowed from, radical Islam. Indeed, as this network of alleged Hindu terrorists was being uncovered, a court judgement convicting two Muslim terrorists of a 2007 bombing revealed strikingly similar modus operandi. To be sure, Islamic terrorism precedes Hindu terrorism and over the years has been more violent and effective, but this obscures two things: one, that more Muslims have died in communal riots; and two, radical Hinduism is now racing to catch up with its Islamic version.
Majoritarianism and popular morality
The foundation for the edifice of radical Hinduism is being laid by majoritarianism, with popular morality the cement holding disparate bricks together. Popular morality is a wide spectrum. It ranges from the acceptance of militant, public religiosity (such as the newly muscular columns of kanwariyas, who are allowed to get away with violence and vandalism) to the conversion of what were once private beliefs and concerns (such as the ban on meat during Hindu and Jain holidays) to state policy. After travelling this distance, it is a hop away to witness police officers leading Hindu processions, screaming “Jai Shri Ram”. The mainstreaming of popular morality has coincided with partisan, majoritarian behaviour by representatives of the Indian state, whether politicians, administrators or judges.
“It is the responsibility of all the three organs of the state to curb any propensity or proclivity of popular sentiment or majoritarianism,” wrote Chief Justice of India Dipak Misra in Thursday’s judgement decriminalising homosexuality, although it was Misra who had given in to that same majoritarianism in making the national anthem compulsory in movie theatres, a decision he later reversed. “Any attempt to push and shove a uniform, consistent and standardised philosophy throughout the society [sic] would violate the principle of constitutional morality,” Misra wrote. “Devotion and fidelity to constitutional morality must not be equated with the popular sentiment prevalent at a particular point in time.”
A timely reminder
This is the portrait of a diverse country run by laws that celebrate diversity, laws enforced in their true spirit, not vindictively, not mulishly, not in service of vindictive governments but to deliver justice in its truest, widest sense. Justice delivered this way can energise all that is just and good, even convert hate to hope. That is what happened when Section 377 was struck down. When the judgement came, a law that was vigorously defended by the partisan and the bigoted and pointedly ignored by the government suddenly became a rallying point for unity. Even those who had railed against homosexuality, god’s alleged will and stood by an unjust law, suddenly emerged to claim credit for its demise.
And that is why it is important to consider the import of the Supreme Court’s message. It is a timely reminder that what is increasingly considered normal is, in fact, wildly abnormal. It is a reminder that laws and their operation must be rooted in judicial process, not the power of the mob – even if that does not always happen as it should. It is a reminder that India has not slipped beyond redemption, to the depths that radical Hinduism seeks to drag it to. It is a reminder that a diverse, fractious republic is held together not by ancient and divine proclamation but by a document adopted no more than 69 years ago. It is a reminder that modern India has only one way forward: to follow the Constitution.