An erosion of basic norms

As India drifts away from secularism, undermining the principles of equality enshrined in the Constitution seems to be the goal in and of itself

A basic norm is used to identify the rule that forms the underlying basis for a legal system. Constitutions and other documents of law derive their legitimacy from this norm, which is a point of origin. What is that basic norm in India’s constitution?

The preamble shoots for a sovereign, socialist, secular and democratic nation. It also speaks of social, political and economic justice; of liberty of speech and religion; of equality and, more interestingly, fraternity, a word that means friendship and mutual support.

If we look around us, what aspects can we identify as being our basic norm? We can safely discard socialism, because that is the direction we have moved in with the rest of the world. Similarly, sovereignty and democracy are both givens and not disputed by any part of the polity. The critical word in the preamble is secular, and it is this that we can point to as being our basic norm. Only if we are secular can we then deliver fraternity, freedom of religion, and social and political justice.

It is not possible to even consider these within an implicitly majoritarian and exclusionary state. And yet, that is where we have arrived. The Bharatiya Janata Party’s (BJP’s) constitution says that it will “bear true faith and allegiance to the Constitution of India” and “to the principles of socialism, secularism and democracy.”

Interestingly, the word secularism was added to the party’s constitution on its formation (transition from the Bharatiya Jana Sangh) in 1980. This was almost a decade before Rajiv Gandhi introduced a law in the heat of the Ayodhya issue that required all parties to bear allegiance to the constitution’s secular norm.

And yet, to repeat the point, this is where we have arrived under secularism. We have laws today that discriminate and target Muslims on their food, their marriage and divorce, their right to love, their right to wear, right to pray and so on. About political justice, not much more can be said other than that there is no Muslim chief minister in India and in 15 states no Muslim minister at all.
 

Given the expected dominance of the BJP in the near future, and the electoral approval of what it has done and will no doubt continue to do, we must ask if a shift in the norm is possible. If secularism is not a basic norm (or part of the basic structure, as a famous judgement says) of our constitution, can it be replaced with something and if so, what? The obvious answer is that a Hindu Rashtra must have a Hindutva norm. The problem lies in defining it.

Illustration: Ajay Mohanty

Nepal was a Hindu Rashtra till 2008. In what way was it a Hindu Rashtra? It satisfied the religious texts to the extent that executive power flowed from the Kshastriya (Chhetri) king in whose court he was advised by Brahmins (the moolpurohit). This was the only Hindu aspect to the Nepali state. None of the rest of what the ancient texts prescribed, meaning the division of trades and occupation by birth and the exclusion of some communities from education and from dignity, could be adopted. Of course, these cannot be adopted in our time, if for no other reason than the fact that these communities, including the peasantry, are the dominant part of the population and unlikely to accept exclusion from power and from the economy.

So what possible route is available to the Hindu Rashtra and what is its end state? This is an under-studied problem for some strange reason. It is not easy to find even academic texts on what the BJP seeks to achieve, if it is itself swearing by secularism in its constitution and yet continues down the legislative and policy path it has gone since 2014.

There are two things that become clear based on our experience since 2014, the policy and laws that the BJP has pushed and the electorate’s response to the party. The first is that we will have more of the same, meaning more exclusion and harassment of minorities, and especially Muslims, through the State, and because of the infectious nature of these things, through society.

Secondly, that there is no real end state other than exclusion. It is possible that this is what will be achieved, if it has already not been achieved. Deendayal Upadhayay spoke in a 1965 speech in Pune of the “political defeat” of Muslims. We are already there. Now what?

The answer appears to be: Nothing. A continuation of the present into the future. The defiance of our constitutional norm, but with nothing to replace secularism and no end state to move towards. We seem to be comfortable in this state, as can be seen from the reactions of the institutions of our judiciary, bureaucracy, diplomacy and civil society including the business community.

How long a polity the size of India can carry on like this, sapping its social and economic energies, constantly baring its teeth at its own, is not known. It is hard to think of another modern democracy focussing such energy on its minority population. But, of course, we will find out soon, because this is not sustainable and because there appears to be no way for India to internally correct itself. We will continue down this path from inertia. One is reminded of a conversation a Pakistani writer (I think it was Ahmad Faraz) has with a youngster who asks the poet: “Yoon hi chalta raha to kya ho ga?’ (If this continues, what will ultimately happen?)

He replies: “Dar to is baat ka hai ke kuch bhi nahin hoga. Yoon hi chalta rahega” (the fear is that nothing will happen, that this will continue).

The writer is chair of Amnesty International India