Gaps in the statute: review of Mathew John’s India’s Communal Constitution

Mathew John’s book moves beyond a framing of the Constitution as an inherently progressive document

April 19, 2024 09:00 am | Updated April 22, 2024 10:50 am IST

Members of the Constituent Assembly signing the Constitution of India at their final session in January 1950

Members of the Constituent Assembly signing the Constitution of India at their final session in January 1950 | Photo Credit: The Hindu

Mathew John’s India’s Communal Constitution is a thoughtful exploration of the gap between the Indian Constitution’s “liberal promise of equal liberties” to all citizens, and actual constitutional design and practice, which has often “cast the identity of the Indian people along religious lines.” John frames his argument as a descriptive and diagnostic one, aiming to excavate how the “communal orientation of the Indian Constitution … [exerts a] drag … on its liberal goals.”

As is now well-established in scholarly literature, British rule in India was marked by a vision of the Indian people as divided into – and defined by – their communal identities. This came through specifically in the colonial doctrine of non-interference, or – as John puts it – “tolerance” of communally-identified personal laws. However, this, in turn, had the effect of often creating the very communities that it was meant to identify, and establishing rigid borders and hierarchies that did not exist previously. John argues that in the post-constitutional era, the Supreme Court’s “essential religious practices” test has continued to serve the same purpose: that is, “identifying religion through its essential truths is … a conceptual frame that holds together ideas about India, its people, and the problem of establishing government for its diverse peoples.” While the essential religious practices test has been questioned – most notably in both the majority and the dissenting opinions in the Sabarimala judgment – it continues to hold the field, and to shape definitions of community through specific doctrine.

Mathew John

Mathew John

If the essential religious practices test is one side of the coin, “personal law” is the other. John explores how the colonial period was responsible for the construction of “Anglo-Hindu law,” which had a dubious basis (at best) in the realities of social custom. However, it was precisely this construction – and, accompanying it, Muslim law – that endured even in the post-constitutional period, primarily through the judgment of the Bombay High Court in Narasu Appa Mali, which held that “personal laws” were immune from judicial scrutiny. As John notes, therefore, “paradoxically, Narasu permits this communally organised conceptualisation of the Indian people to coexist, albeit uneasily, with the idea of the Indian people understood as a community of equal citizens.” The Supreme Court’s failure to overturn Narasu Appa Mali – despite having the opportunity to do so in the Triple Talaq case – reflects how “the Communal Constitution frames the Indian people in axiomatically organised scriptural or doctrinal terms across different aspects or domains of the Constitution … in addition, the Communal Constitution also interlocks different parts of the Constitution to collectively reiterate the Communal Constitution.”

Minority rights

A fascinating third chapter of the book explores the construction of minority rights in both the colonial and post-colonial periods. The unity of the nation-state was essentially posited by the Indian nationalists as a counter-point to British justifications for refusing to grant India independence, on the basis that minorities required British protection. While the Indian Constitution did eventually enshrine a set of minority rights under Articles 29 and 30 (while refusing to encode structural safeguards, such as separate electorates), the social construction of the majority and minority remained on explicitly communal lines. Thus, when certain communities – such as the Ramakrishna Mission or the Swaminarayana sect – claimed a status apart from Hinduism, and demanded minority rights protection, the Supreme Court rejected these claims. As John notes, “the court in both decisions draped an overarching axiomatic and doctrinal frame on Hindu belief and practice and held that the Swaminarayans and the Ramakrishna Mission were part of this conception of the Hindu.” Crucially, “this opinion stood at odds with the self-presentation of these groups as distinct communities in a manner entirely consistent with India’s millennial traditions of pluralism and diversity.” Here, one can see a direct conceptual overlap with the essential religious practices test, which bears out John’s claim that the communal constitution consists of a web of interlocking design and practice features.

Senior Advocate Salman Khurshid at the Supreme Court for the hearings on Triple Talaq case

Senior Advocate Salman Khurshid at the Supreme Court for the hearings on Triple Talaq case | Photo Credit: The Hindu

The caste lens

The final substantive chapter examines caste through the lens of the communal constitution; and, in particular, the challenges to the Scheduled Castes Order, and the Court’s refusal to extend caste-based affirmative action to converts out of Hinduism. John refers to this as the “sacralisation” of caste, or an approach that understands caste discrimination – once again – in terms of pre-defined and pre-fixed religious communities.

Through these carefully chosen examples, India’s Communal Constitution encourages us to think more deeply about the communal underpinnings of Indian constitutional design and practice. In doing so, John’s book joins a recent set of works that have sought to move beyond a framing of the Constitution as an inherently progressive document, whose workings have been stymied through the many failures of the political class and of the judiciary; rather, it encourages us to focus on the design of the Constitution itself, especially by locating court judgments within a longer colonial and post-colonial tradition. While John frames his enquiry as a diagnostic one, this might do a disservice to his project: the enquiry is undoubtedly critical in nature, and compels all of us to take a deeper, and more critical look at the Constitution itself.

India’s Communal Constitution: Law, Religion, and the Making of a People
Mathew John
Cambridge University Press

The reviewer is a Delhi-based lawyer and the author of, among others, The Transformative Constitution: A Radical Biography in Nine Acts.

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