The recent speech by Congress leader Rahul Gandhi in Jaipur , drawing a distinction between Hinduism and Hindutva, echoes arguments that have become familiar in recent years, as Bharatiya Janata Party (BJP) rule has given broad currency to the idea of India as a Hindu nation and in turn provoked a backlash from secularists. But in fact the issue raises a debate that goes back to the very foundation of the Republic, and to the heart of the questions our Constitution sought to answer.
A new understanding
The most important contribution of the Constitution to Indian civic nationalism was that of representation centred on individuals. As the legal scholar, Madhav Khosla, explains in his impressive book of legal history, India’s Founding Moment , the political apparatus of establishing a constitutional democracy in postcolonial India — a land that was poor and illiterate, divided by caste, creed, geography and language, and burdened by centuries of tradition — involved asking Indians to have a new understanding of authority. They would be liberated from British imperial despotism through submission to a new idea of Indianness that saw them as equal agents.
The founders of the republic chose — as the chairman of the Constitution’s Drafting Committee, Dr. B.R. Ambedkar, recognised — to impose a liberal Constitution upon a society which was not liberal, hidebound as it was by traditional customs and entrenched prejudices relating to caste, religion, and social hierarchies. They saw the principles of liberal constitutionalism — the centrality of the state, non-communal political representation, and so on — as essential to Indian democracy. In keeping with contemporary liberal thought, they committed India to a common language of the rule of law, constructed a centralised state, but instituted a model of representation whose units were individuals rather than groups. This was an attempt to free Indians from their prevailing understanding of their place in society and to place citizens in a realm of individual agency and deliberation that was appropriate to self-rule.
That was never going to be easy. Constitutions are, as Ambedkar pointed out, tools to control and restrain state power. The challenge lies in reconciling restrictions on state power with popular rule — to prevent temporary majorities (since in a democracy, a majority is temporary, though some people forget that) from completely undoing what the Constitution has provided. The founders of the Indian republic held a conception of democracy that went beyond majority rule. They subordinated politics to law. As Ambedkar put it, the rights of Indian citizens could not ‘be taken away by any legislature merely because it happens to have a majority’.
Basis of representation
It is particularly striking, in today’s context, that the Constitution makers explicitly rejected the notion of religion playing any role in citizenship, arguing that each individual voter exercised agency in the democratic project and should not be reduced to the pre-existing loyalties of religious affiliation. This was far removed from the assumptions that have animated the BJP’s Citizenship (Amendment) Act and their threat to introduce a National Register of Citizens. The Constitution granted representation not to one’s predetermined religious identity but to one’s individual expression of political agency. That was why the individual vote was so important. Democratic politics could not be reduced to the advocacy of pre-set interests.
At the same time, the Constitution acknowledged group rights, such as the right of religious denominations to establish and maintain institutions for religious and charitable purposes (Article 26(a)), or the right of a ‘section of the citizens’ to conserve a distinct language, script or culture (Article 29(1)). There were also provisions to protect the interests of Scheduled Tribes (Article 19(5)) and a specific provision in Article 25 stating that a ‘heavy responsibility’ would be cast on the majority to see that minorities feel secure. But though the Constitution recognised groups as bearing constitutional rights, Justice Dhananjaya Y. Chandrachud of the Supreme Court of India has argued (in his Justice P.D. Desai Memorial Lecture last year) that this ‘was nested in the understanding that membership of groups had a unique role of crafting and determining individual identity... In elevating groups as distinct rights holders as well as empowering state intervention to address historical injustice and inequality perpetrated by group membership, the framers located liberalism within the pluralist reality of India and conceptualized every individual as located at an intersection between liberal individualism and plural belonging. .. At the time of its birth, the nation was conceptualized as incorporating its vast diversity and not eliminating it.’ [emphasis added].
Privileging the individual
This ability to recognise groups and yet adjudicate the rights of their individual members, and the adaptability of the Constitution to the ever-changing realities of national life, have effectively made it a vehicle of social change. But the leitmotiv, from the start, remained privileging the individual citizen above the group.
It is striking, for instance, that the Constituent Assembly rejected separate electorates, weighted representation, and reservations on the basis of religion. Sardar Vallabhbhai Patel, in his capacity as Chairman of the Advisory Committee on Minorities and Fundamental Rights, wrote to the President of the Assembly, Rajendra Prasad, to explain that differentiated citizenship on the basis of religion had already been tried in the colonial era and had led to Partition. The answer lay in moving away from a representative framework that recognised identities that were regarded as stable and fixed, and towards a model of citizenship centred on the political participation of individuals. Such a model would allow the categories of majority and minority to be constantly defined and redefined within the fluid domain of politics and it would thereby offer the greatest form of security to all citizens.
Key debate
The key intellectual division among the Constitution-makers, therefore, was not between those who wanted a united territorial India and those who did not; that issue was settled by Partition, which occurred soon after the Assembly began its work. The key debate in the Constituent Assembly was between those who wanted to assert a conception of individual citizenship in India that went beyond immutable identities (like religion or caste) and those who insisted on Indian nationhood being defined as a confederation of such inescapable identities. Many nationalists who argued passionately outside the Constituent Assembly for a united India nonetheless thought that India was indeed a collection of distinct communities, who could flourish together in amicable coexistence. But the Constituent Assembly, led by Nehru and Ambedkar, went in the opposite direction, consciously opting for individual citizenship as the root of nationhood, transcending the limitations that India’s communities imposed on their members.
Ambedkar made this clear: ‘I do not believe there is any place in this country for any particular culture, whether it is a Hindu culture, or a Muhammadan culture or a Kanarese culture or a Gujarati culture. There are things we cannot deny, but they are not to be cultivated as advantages, they are to be treated as disadvantages, as something which divides our loyalty and takes away from us our common goal,’ he argued. ‘That common goal is the building up of the feeling that we are all Indians. I do not like what some people say, that we are Indians first and Hindus afterwards or Muslims afterwards. I am not satisfied with that… I do not want that our loyalty as Indians should be in the slightest way affected by any competitive loyalty, whether that loyalty arises out of our religion, out of our culture or out of our language. I want all people to be Indians first, Indians last and nothing else but Indians....’
Divided between two ideas
This fundamental difference of opinion — whether people are Hindus or Muslims first, or Indians first — continues to haunt our politics today. The nationalist movement was divided between two ideas; that held by those who saw religious identity as the determinant of their nationhood, and those who believed in an inclusive India for everyone, irrespective of faith, where rights were guaranteed to individuals rather than to religious communities. The former became the Idea of Pakistan, the latter the Idea of India. Pakistan was created as a state with a dominant religion, a state that discriminates against its minorities and denies them equal rights. But India never accepted the logic that had partitioned the country: our freedom struggle was for all, and the newly independent India would also be for all. Reducing India to a Hindu Rashtra would be a repudiation of that essential conception of India, the India that our founding fathers fought to free.
Shashi Tharoor is a third-term Member of Parliament (Congress) representing Thiruvananthapuram and an award-winning author of 23 books, including most recently, Pride, Prejudice and Punditry
