In India’s diverse racial, religious, cultural and linguistic landscape, identity is a potent attribute. Each of us has, perhaps, several identities. In a highly stratified caste-based societal structure, identities do matter. Group identities seek recognition and through collaborative action, become a force to reckon with. The political class seeks the support of such groups to come to or retain power.
Identities, by their very nature, are personal. But for the state, all such identities are subsumed in the one identity that matters most, which it confers on those who it regards as its citizens.
Our constitutional framework empowers our citizens with certain rights and seeks to safeguard their multifarious identities. That is why we believe in and aim to protect an India that is inclusive; an India that gives to all its citizens the right to protect and preserve their identities. A person who is not a citizen of India may not enjoy such freedoms and protections.
These identities are enunciated in our Constitution. The Scheduled Castes and Scheduled Tribes as also the socially and educationally backward classes of citizens are conferred protections in matters of education (Article 15) and employment (Article 16). For their advancement and upliftment, they are beneficiaries of specifically targeted schemes of the state. Their empowerment, through protection of their interests and upward mobility, is fundamental to the governance of our country to undo historical inequalities within a highly hierarchical Indian social structure. Within the minority communities too, such groups can be identified.
The Constitution also seeks to protect religious minorities. The freedom to profess and propagate their faith is fully guaranteed under our Constitution. Their cultural rights should also not be, in any way, diminished through state action.
The rationale behind such constitutional protection emanates from the principle of equality, which is part of the basic structure of our Constitution. The state shall not, as constitutionally mandated, discriminate against any citizen based on caste, creed, religion, sex, place of birth or any of them, and that no citizen shall be subject to any disability, liability, restriction or condition in respect of their access to the amenities that are available to other citizens.
The underlying leitmotif that runs through all such constitutional provisions is that identities based on social and educational backwardness, caste, creed and religion must be protected and not demonised, preserved and not targeted, both in terms of state policy and executive action. In today’s India, the state, through its instrumentalities, has chosen to humiliate, diminish and target them. Religious minorities today have become a punching bag for political dividends. It is especially disturbing to see how matters of faith are part of majoritarian political agendas. Members of religious minorities wedded to a particular faith are now sought to be mocked at and vilified. This started with Advaniji’s Rath Yatra and has slowly but surely entered the psyche of our citizens seeking to demolish the symbols of faith that are constitutionally protected. Historical wrongs, whether true or manufactured, are seen to provide the rationale for such attacks. As a result, the majoritarian culture seeks to subsume within itself the faith of others demanding a level of obedience not envisaged in our Constitution.
The latest events in Benares relating to the Gyanvapi Mosque are a precursor to what lies ahead. Our Republic symbolises the common weal of all its citizens. Immersed within every citizen are each person’s individual identities. What is happening on the ground is that a class of citizens is being denied their constitutional rights and protections and they are being targeted through political mobilisation and executive actions. This inevitably diminishes their status as citizens. Their consequent alienation makes them feel that they have fewer rights than other citizens; that their identities are not protected, whereas the identities of those belonging to the majoritarian culture are anchored in a safe constitutional harbour.
Right-wing lumpen elements question the allegiance of some of our citizens and force them to say “Bharat Mata ki Jai”. This, on occasions, is followed by open acts of violence, instilling fear in the minds of others similarly situated. Images of the public lynching of Dalits, the waylaying and, on occasions, eliminating those involved in cattle trade are etched in our memory. Controversies around hijab and halal have both communalised and polarised our polity. Misusing laws like the UAPA and prosecuting students of a certain identity by proclaiming them to be terrorists seek to associate terrorism with a particular community. Attempts in a certain state to persuade people not to buy goods from a particular class of citizens are not just constitutionally impermissible but are meant to subjugate and diminish their faith and identity. Bulldozer politics by razing allegedly unauthorised constructions is an act of punishment under the cloak of the law.
Public speeches referring to the identity of people based on what they wear, what language they speak, how and where they pray, bury their dead have all become matters of public discourse. They have percolated into the conscience of our citizens, which allows for igniting majoritarian mindsets to set aflame the politics of hate. Those not targeted thus seek to hide their identities, lest they become the next victims of majoritarian mindsets. Amenities provided by the state for their protection are made the subject matter of ridicule. They are victimised for alleged historical wrongs committed by their ancestors. The state silently looks on. These constitutional protections are perceived by majoritarian mindsets to be inconsistent with majoritarian culture. Such protections are, therefore, not to be eulogised in any form and at any forum. On occasions, targeting identities is perceived to be part of state policy.
Courts must realise that any speech made to attack these identities violates the constitutional mandate, which requires their protection. It is the job of the court to ensure that these protections are judicially recognised to preserve the ethos of our inclusive Republic. The protections guaranteed by the Constitution are sacred obligations that need to be cherished. Controversies around them must be nipped in the bud.
What is even more worrying is that the state machinery, especially the police, which is obliged to maintain law and order, sometimes encourages such targeted attacks either as silent spectators or on occasions, even hand in glove with their political masters who encourage agendas to divide the polity. The outcome is a culture of ‘us’ versus ‘them’. There is no ‘us’, there is no ‘them’. There is only one identity that matters—being a citizen of India.
Kapil Sibal
Senior lawyer and member of Rajya Sabha
(Tweets @KapilSibal)