In a strange inversion of what has hitherto seemed to be the norm, it seems that today high functionaries of the government cannot keep from being critical of the Constitution, while those who would perhaps have very little to do with it are carrying out a spirited battle to safeguard its promises.
The Vice-Chancellor of Visva-Bharati University, Bidyut Chakraborty, while responding to those who in his eyes are displaying a newfound fondness for the Preamble to the Constitution, reportedly said, “Today, those who are opposing CAA are reading the Preamble. But this Constitution was drafted by ‘minority’ votes…Now that has become the Vedas for us. Preamble has become the Vedas. But if we do not like (the Preamble), we who are voters and form Parliament, will change it…”
One has to admit that if considered rationally, the above comments do carry some weight (even if quite bizarrely, the student who recorded and disseminated the video was punished for it). Constitutions are quite definitely not religious books and they can and must be changed with the times. However, what might surprise Professor Chakraborty is that a student of Jawaharlal Nehru University, Sharjeel Imam, also expressed a similar, perhaps more strongly worded disapproval of the Constitution for which he has been charged with sedition and even the draconian UAPA.
While for Professor Chakraborty the Constitution is too secular and could be changed if voters desired, Sharjeel Imam has allegedly claimed that it is “neither secular nor democratic”, not even on paper. How can there be two diametrically opposed claims about the same text? Is our Constitution secular or not? The question of secularism is of course a tricky one and perhaps it cannot be easily addressed in the form of a public lecture. But a seminal paper by an academic from Oxford Brookes University, Dr Pritam Singh, written in 2005, has suddenly resurfaced (as it sometimes happens) and, become “viral” in its own way (as it almost never happens), and it offers a unique perspective on the problem.
The bias in the Constitution?
Dr Singh’s paper, which is titled “Hindu Bias in India’s ‘Secular’ Constitution: Probing Flaws in the Instruments of Governance”, was published in the prominent journal Third World Quarterly. He argues that there is a level of “institutionalised communalism” even in a document as “admirable and progressive” as the Indian Constitution.
According to Singh, a Professor at Oxford Brookes University, England, we must keep from becoming complacent about the “secular foundations of the Indian republic”. For Singh, even the thought of Mahatma Gandhi contains within itself a certain “Hindu bias” and it is not difficult for Hindutva ideologues to appropriate him as a Ram bhakt, were it not for the inconvenient fact that he was assassinated by Nathuram Godse.
Singh goes on to argue that the inclusion of “Bharat” as one of the names for the country in Article 1 of the Constitution is reflective of the sections in the Constituent Assembly who wanted to evoke a pre-Muslim and pre-British glorious past. Singh himself admits that this is perhaps nothing more than “harmless, cosmetic Hindutva”. What is more alarming to him however is the fact that India is not designated as a Federation but as a “Union of States” in the same Article.
The designation of India as a Union rather than a Federation has grave implications according to him. The Cabinet Mission Plan of 1946 had envisaged India as a loose federation with strong states and a weak centre. The Congress scuttled that plan in favour of a strong central authority. In fact, as Singh notes, most members from the northern states were in favour of centralisation, while members from the southern states mostly opposed such a plan.
Minority representatives were also opposed to this move towards centralisation. A representative of the Sikh community in the Constituent Assembly, Hukam Singh, stated that “there is enough provision in our Constitution…to facilitate the development of administration into a fascist state”.
For Singh, it is Article 25, whose section (2)(b) is concerned with reform of Hindu temples, which quite clearly demonstrates the bias written into the Constitution. He quite pointedly asks, “Why should a secular state be concerned with social welfare and reform of only Hindu temples?” In itself this question is one that rankles the right wing commentariat as well, who are often calling for the Indian state to stop interfering in the management of temple boards.
However, Singh has a unique point here: “It seems that the overriding concern behind these social reform measures was to prevent the exodus of the dalits (literal meaning ‘oppressed’ and referring to the lowest caste strata in the Hindu caste system) from the Hindu fold”. While his perspective might seem to be unduly pessimistic regarding the framers of the Constitution, it is not a very radical position.
The well-known commentator, Pratap Bhanu Mehta has also voiced a similar complaint: “The Indian state has used state power to consolidate Hindu identity in more ways than one can list…the state runs thousands of temples across the country, appropriated in the name of social reform or financial propriety”.
The rest of Singh’s paper is about Article 48 which directs the state to prohibit the slaughter of cows and calves, and Articles 343 and 351, which make Hindi the official language of the Union and direct the state to spread the Hindi language drawing “primarily on Sanskrit and secondarily on other languages” for its vocabulary. The current government’s bias towards Hindi and the emphasis on cow protection is then wholly constitutional, even if one wishes it were otherwise.
The Emergency conundrum
Where does this leave us with the debate between too much secularism and too little secularism? Perhaps what is required is a step back from a discussion of our Constitution to the idea of a Constitution as such. While this might sound abstruse, it need not be. Inherent to every Constitution as a set of rules is the power of the emergency, or what we might call the panic button, to be pressed in a scenario that finds no mention in the written laws.
While there are always specific laws that apply in specific situations, there is always at least one law that applies to an unspecified situation. This is the law that prescribes emergency powers to the central or state authorities (in our case that would be Articles 352, 356 and 360 which prescribe National Emergency, President’s Rule in a state, and Financial Emergency respectively).
No constitution can function without the decision on the emergency. However, since an emergency can literally take any form and cannot be too narrowly specified, this rests with the executive branch of government, which is sovereign when it comes to making the final decision. Thus in the decision on the emergency we find the strange and contradictory coincidence of the greatest weakness of the constitutional machinery with its greatest strength.
Almost one hundred years ago, two incredible German intellectuals, one the Nazi jurist Carl Schmitt, and the other a Jewish theorist, Walter Benjamin, had made the same points concerning constitutionality. While for Schmitt the decision on the emergency was of ultimate importance, Benjamin argued that this perpetuated a cycle of law-making and law-preserving violence that is ultimately embodied in the ubiquity and omnipotence of the police force.
By remaining a prisoner to the debate over secularism we overlook the real problem inherent to the very idea of a constitution. We have to remember that Sharjeel Imam has not only been charged with sedition but also under the anti-terror law UAPA. While it is proba;le that the sedition case will not hold (as Markandey Katju, former Supreme Court justice has observed here), the UAPA case might see stricter consequences since it authorises arrests without warrants. The police have 180 days to file a chargesheet, and the accused cannot apply for bail. It is quite obviously a law drafted precisely for emergency situations.
The question, therefore, that Dr Singh and all of those who are today seeking to re-read or reclaim the Constitution must ask must is the following: Can we imagine a functional legal order without the state of emergency? And if not, does this not require a radically new thought of what law must be? This, I believe, is the real philosophical and political conundrum occasioned by every constitution, not just India’s.