There are significant judicial moments during which the whole nation is educated by the constitutional courts. It could be by way of orders or judgments, or even oral remarks made by the judges. As a public institution, the court’s function is to review the executive action or inaction and the legislative texts. Yet, in the process, the court can also critically engage with the polity of the nation.
There was such a significant moment in the Supreme Court recently. A bench consisting of Justices K M Joseph and B V Nagarathna came down heavily on the petitioner who sought the renaming of historical places and cities which are at present allegedly named after “invaders”.
The bench spoke a lot about Hinduism and its magnanimity. Justice Joseph described Hinduism “as the greatest religion in terms of metaphysics”. Justice Nagarathna said that “Hinduism is a way of life, and it does not allow bigotry.” The court admonished the petitioner for trying to “dig the past” and to “place its burden on the present generation”.
These observations by the court conveyed a great message to the nation and those who run the nation. The bench recalled the seminal judgment in S R Bommai (1994) which said that secularism is a basic feature of the Constitution. In Bommai, the court noted the peculiar history of our nation and said:
“India can rightly be described as the world’s most heterogeneous society. It is a country with a rich heritage. Several races have converged in this sub-continent.
They brought with them their own cultures, languages, religions and customs. These diversities threw up their own problems but the early leadership showed wisdom and sagacity in tackling them by preaching the philosophy of accommodation and tolerance.”
There were other pronouncements specifically on Hinduism and Hindutva. In Ismail Faruqui (1994) the court explained the danger of religious fundamentalism. Justice J S Verma in Ramesh Yeshwant Prabhoo v. Prabhakar Kashinath Kunte (1995) explained that the misuse of expressions like Hindutva or Hinduism for promoting communalism “cannot alter the true meaning of these terms”.
The word ‘fraternity’ in the Preamble has tremendous potential. In a way it implies secularism. Dr Ambedkar defined it as “a sense of common brotherhood of all Indians” while emphasising its importance “in a country like ours with so many disruptive forces of regionalism, communalism and linguism” [Quoted in Raghunathrao Ganpatrao v. Union of India (1993)]. Secularism, in a way, is synonymous with fraternity of the people. It is a celebration of diversity. It is the togetherness of multitudes.
But the court has its limitations as a public educator. Firstly, the masses at large are not proximate to the institution of judiciary. The vocabulary of the lawmen varies from the vocabulary of laymen, posing important questions of access. Secondly, there is a possibility of twisting what the court said, to take political advantage. Justice Verma, who wrote the judgment on Hindutva, was reportedly unhappy about the way in which it was politically misinterpreted and misused.
Therefore, the ultimate burden to strengthen the ideas of secularism and fraternity is on the political parties and civil society. How far do the political parties care to carry out this basic task? Do they take the Constitution seriously? Do they educate themselves and the public on the virtues of religious harmony?
Aditya Mukherjee’s recent book, Political Economy of Colonial and Post-Colonial India (Primus Books, 2022) is an erudite work that tries to find an answer to these questions. Among other things, he says that “the most important factor in the survival and reassertion of the communal forces was the fact that the secular forces failed to undertake any sustained ideological work to combat communal ideology, nor were they able to use State power to firmly contain the communal forces.” This seems to be an empirically tested Indian reality.
Any ideology that tries to divide humans based on race, caste or religion is bound to be inhuman and undemocratic. Therefore, a true religion always places itself above all the religions. This is especially true with Hinduism. Swami Vivekananda said in his historic Chicago speech: “I am proud to belong to a religion which has taught the world both tolerance and universal acceptance. We believe not only in universal toleration, but we accept all religions as true.” He went on to add: “I am proud to belong to a nation which has sheltered the persecuted and the refugees of all religions and all nations of the earth.”
Let us now see if we apply this perception in the case of Rohingya refugees who were mercilessly deported from India. Let us ask if Vivekananda’s Hinduism was reflected in the Citizenship Amendment Act which clearly discriminated against the refugees on the ground of religion. In the day-to-day life of the nation, we are confronted with an ideology of hostility and segregation.
We may now remember a scholar of the past: Jagat Narain Lal. An eminent member of the Constituent Assembly, he was a patriot with great human qualities. He was a member of the Congress and of the Hindu Mahasabha. His idea of “civic nationalism” is explained in a recent book authored by Rajshree Chandra (Competing Nationalisms, Penguin, 2021). She explains that Jagat Narain tried to “combine the goal of unity with the principles of liberty and equality, without being religion-neutral”. Jagat Narain’s views are significant while analysing today’s politics of hatred based on sheer misuse of both religion and nationalism.
The point is to recognise the finer content of the Constitution which essentially reflects the true fraternity which again is the hallmark of Vivekananda’s Hinduism. The Constitution, like genuine Hinduism, speaks about certain universal values.
The tragedy, however, is that the politics of the day is divorced from the Constitution. There are striking contradictions between the two. It is doubtful if S R Bommai reflects the law which the present dispensation is fond of preaching or practising. Laws, and even judgments, depend very much on politics, at the implementation level. Not only the executive actions and political propaganda, but even some of the recent legislations on marriage and conversion are essentially divisive and often misused than used. Constitutional praxis is something which needs to be developed in India, where democracy is only a topsoil, as Dr Ambedkar famously lamented.
Kaleeswaram Raj
Lawyer, Supreme Court of India