7 September 2020
Yesterday a person passed away who was to through serendipity attach his name to one of the defining moments of Indian Constitutionalism, which bore his name- Keshavananda Bharati, a monk from Keralahttps://www.deccanchronicle.com/nation/current-affairs/060920/kesavananda-bharati-petitioner-in-landmark-sc-judgement-passes-away.html, whose limited grouse about land reforms in Kerala was taken up by Nani Palkhiwala and turned into a legal effort to define what was Constitutionalism. In what is today the stark reminder to how once Indian judiciary worked, despite not having the kind of overwhelming autonomy it has now, a 13 Judges Bench of the Supreme Court, gave a 7-6 verdict in favour of what was to be known as Basic Structures Doctrine. For all those Indians who think that India is a later day, ruse of ‘Secular State’ to repress the majority Hindus while offering a concessionaire system for all religious minorities, including the myth so false that the word ‘Secular’ was added by Indira Gandhi through an amendment, this judgement which predated the Constitutional Amendment called the 42nd clearly established India as Constituted Secular Polity. The 42nd Amendment of Indira’s Emergency era legislation was actually an effort to curb the powers of the judiciary, and to confer on Indian Government an agency of ‘socialist welfare’ which enhanced its authority and to embrace all arenas of the polity from spheres of social, economic to judicial, which is by itself a subject of much legal discussion and deliberation. It was naturally subjected to judicial review and in Minerva Mills case CJI YV Chandrachud restored the Basic Structure primacy by removing amendments to Article 31 C which inserted for part 4 (Directive Principles) a primacy over part 3 ( Fundamental Rights) as ultra vires in the Indian Constitutional Scheme!https://theprint.in/pageturner/excerpt/how-minerva-mills-case-challenged-indira-gandhi-damage-to-constitution/348426/
What we are now witnessing in India and in fact, (now in USA too,) is a breakdown in a simple logic of human understanding in how a state is expected to function. The state is meant to safeguard the rights, is meant to cater to the dangers that a society could be exposed to by organising resources and is meant to uphold liberal values that foster equal opportunity and treatment under the supervision of law by the state. This is in lay man terms the tenet of the Indian SC judgements of both Bharati and Minerva Mills cases. So if today when Kenosha sees President Trump taking a partisan view by not condemning the gunman who killed two protestors and injured a third, he is violating this tenet, for humans cannot have a system where the state will look away when one class is transgressing liberty of another, to even this extreme of taking life! Remember in India, our lynch mobs have been arrested and then declared to be exonerated due to lack of evidence, till 2019, and now we are witnessing an absolute lack of even proceeding against them, as seen from failure to register FIRs against those involved in instigating and participating in riots, campus raids, and protests, of individuals who happen to be Hindus and members associated with the BJP or its youth wing.
If we do not understand how by nature Government is a coalition of vested interests, and how it tends to invest more in a dominant group or adhere to a dominant narrative, which may sound agreeable in the immediate terms, but which would derail ultimately the social compact in the medium term, the danger remains that it would offer the perfect excuse for anarchists in the longterm. If you think modern governmental systems as stable and likely to last forever, then you are being naive or even suffering from lack of perspective. Our current governmental systems have emerged after the Industrial Age, which arguably has seen the largest distribution of wealth across humans after modern city states came into being around 2000 years before our common era. While the wealthy capitalists ended up garnering a lion’s share of wealth and resources, inequity of resources was not going to shift the equilibrium of social structure as long as society was seen as adherent to the rule of law. Most social stresses and that includes protests of any nature, are largely due to the breaches in this administration of justice as perceived by individual stake holders in our societies.
So in a way, any Constitutional scheme must offer clearly equality, justice and liberty, whether it is a Communist State with Soviet or Chinese characteristics, or Constitutional monarchies or republics. If you see the transformation to society that came with the industrial age, you can understand it from this simple shift where hereditary peerage has given way to elected or merited status, even where talent or proclivity for any professional field could still be passed on from one generation to another. The reason for this is the amount of knowledge that now humans have, from their initial appearance based understanding of ‘superiority’ concept which was largely a driving factor for Nazi theory of Aryan Supremacy to today’s understanding of the Human genome which shows clearly that there is hardly any ‘biological evidence’ for such a stratification of the species Homo sapiens that we belong to. What this knowledge based understanding has offered is what organised religion failed to do, transfer the inherent want for an equitable and free society from an ideal to an approximation of actual interactions and opportunities for the average human that did not stifle this want. Admittedly it is a work in progress, which is why religious dogma continues to hold sway over humans, for despite all the trappings of modern society that offer so much opportunity to the human, there are too many intangibles, too many inputs and chain related factors that operate to translate effort to outcome in human endeavour that we euphemistically characterise as ‘luck’ or ‘destiny’!
It would seem that actual human trajectory was one upward movement toward egalitarianism, and from whatever one reads in ‘mainstream anthropology’ suggests so, with one significant difference that in our origins as initial bands of brothers and sisters may be, we were as smaller herds egalitarian before we evolved materially and devolved socially into a hierarchical structure! In the reading of Indic liturgy which is arguably the human’s first and oldest continually maintained record of renderings as the Vedas, Upanishads and Srutis and Smritis are claimed, with the possible exception of yet to be retrieved and compiled Sangam literature from the periods of the first or second Sangams of Tamil lore, we have enough proof of this in an anecdotal story telling form, that society was about brothers, families, before it became about kings and states. Like how Democracy or popular opinion was very much a Vedic organisation ( Janas) as it was seen in ancient city states like Athens or Rome, it appears that our modern formulations about liberty equality and justice may not be ‘modern’ after all! So in what can be accepted as a decisive momentum of human organisation, the humanity as a whole has been able to offer these ‘Fundamental Principles of Humanism’ an empowerment that was not always possible in the past, which explains the current human disposition to conserve and preserve languages, cultural forms, stories and art, music and dance across the globe, and how today humanity is able to allow tribal populations or forest dwellers their right to way of life, regardless of how distanced they are from what we cherish as modern way of life! Somewhere along the way, humans moved from exterminating other hominids to cherishing our diversity, and this is very recent considering The Holocaust as not an aberration but part of a preexisting pattern of human social behaviour.
We can take a philosophical view of human social evolution or a anthropological view, from spiritual plane to material plane, which ever way we see it, at the core is a human mental make up that is anchored in the concept of individual uniqueness, an identity that demands a notion of being treated as equal with freedom of choice and an opportunity to be dealt with in a just manner, though very often this notional yearning manifests as nostrums peddled by social forces that harness these very desires in humans to operate in a manner actually prejudicial to those very strivings!
So for all those who are now waging war world over about Justice, Equality and Liberty, must understand that ‘Secular Polity’ is a foundational edifice of government that embraces these values. It means that irrespective of one’s belief systems, the human will be dealt with by the state so manifested as an equal. The human will be free to profess that faith, as long as it does not impinge on the freedom of another to pursue their own! If all those ideologues who are suffering from a persecution syndrome about Hinduism as ‘Hindu Khatre mein hai’ can understand it, it would do a world of good for them. At a time when even those countries who have adopted a particular religion as state religion find that in practise they cannot be seen to administer laws preferentially in a whole set of social transactions which are deemed secular, it makes little sense to reprise this experience all over again in India. What India’s Founding Fathers as they who wrote our Constitution and the early decades of our higher Judicial functionaries did in Keshava Bharati and Minerva Mills verdicts was to appropriate this common sense of Basic Social Matrix that humans need equality, justice and liberty and weave our modern governmental architecture around it.
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