I read this news item with great interest and great sense of worry!
https://indianexpress.com/article/india/justice-dy-chandrachud-constitution-majoritarianism-7409742/
Chief Justice in waiting of the Supreme Court of India, Sri Chandrachud, delivered a speech to a group of enlightened students of Shikshan Prasarak Mandali (SPM), a Maharashtra-based organization that works in the field of education, on the 101st birth anniversary of his father Justice Y V Chandrachud, who was the longest-serving Chief Justice of India. Why is the group “enlightened“? Because it calls itself the “Vanguards of the Indian Constitution”.
In his stirring speech, the Justice is reported to have said this: “… in times of peace or crisis, irrespective of the electoral legitimacy of the government, the Constitution is the North Star against which the conformity of every state action or inaction would have to be judged“. He further went on to tell the students that India’s Constitution “represents the dreams of our ancestors“! Woww! The Justice through some miraculous and magical powers of the spirit can travel back in time to read the dreams of our ancestors!
What is this North Star to which the Justice compares the Indian Constitution? The North Star is said to be the anchor of the northern sky. It is a landmark, or sky marker, that helps those who follow it determine direction as it glows brightly to guide and lead toward a purposeful destination. It also has a purely symbolic meaning, for the North Star depicts a beacon of inspiration and hope to many who see themselves as mariners out at sea.
The homily delivered by Justice Chandrachud to the students calling themselves the “vanguards of the Indian Constitution” is nothing new. It is merely a reaffirmation of a cliché and mantra that has been repeated a zillion times since India’s Independence by leaders, tall and small, coming from across the entire spectrum of politics, judiciary and civil society in the country…
Almost any one who is ambitious and out to make a mark in public life, who happens to be a relative nobody but then who feels he has something terribly important to say to anybody, and if listened to by enough numbers of people, might hope thereby to become somebody, would first make sure to sound off on the Indian Constitution… He or she would say just about anything at all that sounded sufficiently pious, platitudinous, prim and politically correct.
Narendra Modi before becoming Prime Minister of India in 2016, of course, was neither “relative nobody” nor just “somebody“… After all today he is Narendra Modi, the tallest leader in the country! And even he made sure he was making all the right noises and chanting loudly too the most apt lines of the holy gospels and psalms from India’s Constitution that were first composed by its great ancestral framers since the days of Jawaharlal Nehru and Ambedkar… the same gospels that Justice Chandrachud evangelises. Addressing the Lok Sabha in April 2016 when it was commemorating the Constitution to mark the 125th birth anniversary year of the chairman of its drafting committee Dr. B.R. Ambedkar, PM Modi made this remark: the “religion of the government is “India first” and the Constitution is its “holy book.”
The mantra in praise of the Indian Constitution that both Justice Chandrachud and PM Narendra Modi chant are really the same, but then each chants it very differently and, as in all Vedic chanting, it is the intonation which makes all the difference to both its purport and its efficaciousness . What is that difference?
The Justice said this: “Majoritarian tendencies, whenever and however they arise, must be questioned against the background of our constitutive promise,” while the Prime Minister back in 2016 said this: “In a democracy, true strength does not come from an assertion of numbers but from consensus, and only when attempts to do that fail, then as a last resort, a majority is asserted” .
We cannot fail to notice the difference between how the two pronouncements are intoned– one judicial and the other parliamentarian. It is stark and vast. For the Chief Justice, the Constitution is a solemn “constitutive promise” which in fact, is fine legalese to denote that it must be used as a weapon of not just defense but also destruction — if destruction becomes necessary — against “majoritarian tendencies whenever and however they arise“. The Constitution is seen thus to be a weapon of ultimate or “last resort”
For the Prime Minister, on the other hand, the Constitution is a tool and not a weapon. It is only a tool of persuasion, not coercion — and a great and versatile one, no doubt, which the old, wise men and toolmakers, in 1950, had forged in their hallowed workshop called the Constituent Assembly of India, and had handed it down to us. It was, primarily and essentially, intended as an instrument to produce democratic consensus in a country as vast and diverse as India.
The purpose of the Constitution of India, if understood as Modi does, in the most platonic sense, is therefore only to strengthen India’s Unity in Diversity and not to be used as judicial weapon to ideologically diversify or dissipate it which only ends up dividing its vast peoples.
Implicit in Modi’s stance is the ideological conviction that the Constitution is the “holy book” of India by which all must abide at all times but then that must be subject to the important caveat that a consensus through due democratic processes or dynamics is reached. If, alas, such consensus-building for any reason were unachievable, then in a democratic polity, the only real and workable “last resort” for the people is “assertion of the majority“. In the workshop of Democracy, the Constitution is tool; Consensus is the final handiwork. Should the tool fail, it is with the hands of the Majority itself that the handiwork must be manufactured.
The pronounced difference between the way we now see the Justice and the Prime Minister chant the same mantra in glorying the Indian Constitution leads us to ask ourselves: who is the so-called “Majority” invoked by both in their respective utterances?
Now, for a common man like me on the street, the only majority in the country I really know is that of the vast population called “economically backward”, also otherwise called “the Poor“. (In 2014, the Rangarajan Committee Report said that the population in India below the “poverty line” was 454 million (38.2% of the population) in 2009-2010 and was 363 million (29.5% of the population) in 2011–2012. And although I have no ready access to updated post-Covid 2021 figures, I suspect they are probably no great improvement on the earlier dated one). So, one may well ask if the single largest “majority” group that Modi and Chandrachud have in mind while speaking about “majoritarian tendencies” is actually the Poor of India making up c. 30% of the country’s total population? If the answer is a categorical Yes, the debate on the matter, most decidedly, should end right there, at least at the level of dialectical reasoning.
In a democracy like India, the “majoritarian Poor” possess a weapon that can and does help force, forge and engender “consensus” in the body politic… more powerfully and emphatically, in fact, than perhaps either Parliament or Judiciary… or for that matter, the Constitution too. The Poor of India vote in and vote out politicians at will don’t they? And in accordance with the larger popular “consensus” which they separately, jointly and severally, arrive at through the institution called the ballot-box, they manage to exercise sovereignty that often prevails over both Parliamentarian and Judge, don’t they?
One of the most fascinating features of India’s Democracy is that the Poor of the Land, the single largest majority in the country, have a rather uncanny way of electorally ensuring every five years, that it is their Will, their own “majoritarian tendencies” and their very own “consensus” of ordinary citizen-individuals that ultimately prevails over every other instrument or institution of both the State and Constitution.
Now, when you go back to re-reading what Justice Chandrachud has said (quoted right at the beginning above), you will easily understand why, in decorating himself as a “vanguard of the Constitution“, he actually ends up revealing his resentment towards the Majority Poor of India wielding the power and sovereignty it does through the electoral vote. The Justice aggressively proclaims that it is the Constitution that is superior to the Will of the People and that too “irrespective of the electoral legitimacy of the government, the Constitution is the North Star “! In India thus, we are told there is an unelected Church, the Judiciary, which must hold itself superior to the State, “irrespective of its electoral legitimacy”.
Justice Chandrachud is clearly saying — in his own behalf, on behalf of his departed father, the venerable Justice Y.V.Chandrachud, and perhaps on behalf of many quarters within the fraternity of the Indian Judiciary too — that “We the People” who, when we first “gave to ourselves” the Constitution of the Republic of India, without demur or ado, have also signed away and handed over our sovereignty to the high-priests of Constitutionalism — a cabal of jurists presiding, nay, lording over the majestic benches of the Supreme Court of India.
Now, of course, there is another view of the matter, a more obvious one, in fact, which takes the position that what Justice Chandrachud means by “Majority” is not the economic group but the religious one viz. the Hindus of India.
If that is indeed the case, then that complicates the issue for reasons that have been been so very forcefully explained in a recent article in the SWARAJYA by the noted journalist, Sri R. Jagannathan.
https://swarajyamag.com/ideas/a-future-cjis-empty-rhetoric-woke-liberalism-and-why-we-should-worry.
Below is an extract of the relevant passages from his Op-Ed:
QUOTE: “The term majoritarian is not relevant to the Indian context, where Hindus are not organized under one church or agreed on one set of fundamental laws. There is nothing majoritarian about Hinduism, which is a ground-up set of ideas that grew autonomously on this soil. You can be Hindu without having to subscribe to any set of ‘fundamentals’ or believing in one prophet or one son of God. You can even junk the idea of god. Hinduism has elements that we can call religion, but it is not a religion as defined by Abrahamic standards. So, one wonders where Justice Chandrachud got his idea that the Supreme Court needs to stand against majoritarianism in the Indian context.
“More objectionable, is the suggestion that the court must tilt in one direction, in favor of ‘socio-economic minorities‘. This is no different from Manmohan Singh saying that the first right on state resources must be the minorities.
“In theory, one need not object to helping those who are in minority and unable to defend their interests, but underlying this is the assumption that if you are not a ‘socio-economic minority’, your claims to justice are secondary to the primary focus of the highest court”. UNQUOTE
On balance after considering both views above, one can say that this ongoing debate on why and how the Indian Constitution must be held to be sacrosanct in our country, is nothing but mere intellectual farce except that it turns out it is a dangerous, divisive and rabble-rousing farce. Both professions of Politics and Law merrily thrive on it. It is nothing but a conspiracy of the educated, professional elites of India against the common man. It is farcical because both parties, Parliament and Judiciary, find it very profitable to swear, in one breath, by both the Constitution, which has become the most sacred “holy book” for all politics of Secularism, and by the “North Star” of Constitutionalism which has indeed been raised to the status of religious gospel! In this debate, even the Secular-Liberalists of India cannot help using religious metaphors to claim that it is all about the “very soul of India”… and since souls have eternal life, this cynical debate of modern India too lives on eternally… with no meaningful resolution or end to it in sight … but only constant conflict between Parliamentarian and Judge. As for as the common man like you and I are concerned, we are in the sorry position best described in the poet’s lines:
“Myself when young did eagerly frequent Doctor and Saint, and heard great argument about it and about: but evermore, came out by the same door as in I went.” (Omar Khayyam)
At the level of ab initio philosophical premises, this whole debate, between Doctor and Saint, about the Constitution of India — about it being the “soul of India” or the “very Idea of India“! — which has both badly divided and fractured Indian polity as well as reduced it at times to political pantomime, is a deeply flawed and thoroughly misconceived one. Why? Because the entire edifice of India’s Constitution is built upon a rather narrow, shallow and utterly alien notion of Equality that had at first been thrust down the throats of the Indian peoples by British colonial ideologues, “Orientalists”, historians and propagandists and then, later, by post-colonial Western/American and home-bred ne0-colonial Left-liberal-secularist disrupters.
Equality for these motley ideologues is nothing but a Procrustean ideal, whereas in the native soil and culture of India, the land where the tenets of Sanatana Dharma were inhered in the DNA and very bones of its peoples for countless centuries, Equality as a social and political ideal, meant far more than what its temporal and physical sense connotes for us all today… viz. the many battles for “equality” we see raging continually around us between minorities and majorities, between castes, between regions, between linguistic or ethnic groups, between rich and not so rich…
I am reminded now of a remarkable passage in a memorable lecture given on Manu-smriti and ancient Indian polity in 1949 at Lucknow University by Prof. Sri K.V. Rangaswami Aiyyangar, historian and scholar extraordinaire (b. 1880-d.?). In that published lecture he expatiated so very eloquently upon the fundamental flaw — the original sin, one may call it — that had by then crept into the philosophical discourse on Equality in post-colonial politics of modern India. It is worthwhile reproducing and recollecting here at length:
“In a universe in which uniformity and law dominate there can be no assertion of natural equality. The concept of equality is a deduction not from facts but from aspiration or supposed needs. Enforcement of equality will be putting every one in a Procrustean bed. Inequality, not equality, is what is found in nature. No two persons are exactly equal to each other, physically, mentally and spiritually. The sexes have different functions, often different psychological traits, and differences of physical strength and constitution. Even in the field of politics, the application of the principle of counting heads or votes, has been condemned by political thinkers, like Burke and J.S. Mill. Men and women do not start with the same initial equipment in strength or intelligence. Men are not placed, all in the same condition, to make a universal rule applicable to them all. Conditions change, and require re-adjustments to suit them… No two persons are constituted in the exactly the same way. Their requirements are not always identical. Their psychological make-up is often different; their physiological needs vary. We have to allow for for inequalities springing from age, education, health and disease. Glib references to “equality before law” fail to take note of inequalities for which the judge who enforces the law has to allow. A minor, an idiot, and a person sunk in senility are not to be treated as equal to healthy persons in maturity. In administering penal law, note has to be taken of varying degrees of consciousness. In spite of the slogan of equality of every one before the law, differentiation has to be made on one ground or another. Even as an ideal in the administration of justice, equality can work wrong.
“In the scheme of society envisaged in Manusmriti, equality, in a civil sense, is treated as a myth. There is no equality in status and emoluments. Human needs, no less than human powers, emphasize inequality. The recognition of the fact is essential to advancement of the individual (self) and the group (community).
“Equality exists only in one sense: cosmic equality. The self is basically the same in all; its ultimate need of liberation is the same for all. The route it has to follow, through endless time, is the same, and the basic features of Dharma enjoined for every one are the same. To the Highest Reality and His inexorable law, all selfs are equal. Redemption is the ultimate destiny of every one, and it springs in every case from the same instrument, the discharge of duty (“sva-dharma”). It is only before the Infinite that the fundamental equality of every self emerges. There is no exception, and there will be no omission. If even one soul is unredeemed eventually, there will be a failure of cosmic justice. In the long march to self-realization, the marks of inequality drop off, one by 0ne, till the released “aatman” attains the perfection which is the mark of the Divine”.
Manu’s world view is a despised and villainized one today in India. In fact, Manu’s ancient Laws have for long been decried in India from Ambedkar to now Justice Chandrachud’s moment in history as the very antithesis of the Indian Constitution. After Manu’s own time, for centuries thereafter, in fact, his laws represented the “tyranny of the Brahminical elites” over the common people and against which the later religions of Buddhism and Jainism actually revolted. Manu’s laws have been described by modern Indian historians as a system of injustice that rejected all notions of human equality as we know it today and as outrageous assault by the community on the individual.
Today when I read what R. Jagannathan writes in his Op-Ed piece criticizing Justice Chandrachud’s views on the gospels of the Indian Constitution as being “woke liberalism“, I cannot help smiling wryly to myself realising that, indeed, what goes around in life and human history does ultimately come around! The shoe is now on the other foot! If Manu’s Laws had put the interests of the community over that of the individual, the Indian Constitution today does the same in exact reverse order — it is letting the individual destroy society with a weapon of coercion (not persuasion) called the Indian Constitution! Let me quote Jagannathan of Swarajya:
QUOTE: “The problem with such woke liberalism is that it is writing its own death sentence. Liberalism was good as long as its purpose was to protect the individual against the vagaries of older institutions like the family, tribe, religion, race, etc.
But now that this objective has largely been achieved, liberalism is likely to lose traction as it has turned the individual into an enemy of the society at large.
The balance between individual rights and collective community interests, where rights are balanced with responsibilities to the larger society we are part of, is making the state larger and larger than ever at the cost of community.
In the name of protecting individual human rights, liberalism has dug its own grave by destroying the community on which the individual depends for making social life meaningful. Man is a social animal, and his individuality has to have some respect for the larger interests of society. And vice versa. UNQUOTE
Many centuries ago in India’s history, Buddhist India had risen in protest against the “Brahminical” Manu-smriti being shoved down the throats of the common man, as if it were some sort of wrought-in-iron divine commandment. Today in Ambedkarite India, where the likes of Justice Chandrachud are the newly self-appointed Brahminical “vanguards of the Indian Constitution“, it is society itself that is crying out again in desperation: “For, God’s sake! Please don’t shove the Constitution of India down my throat even if it is your great new Manu Smriti!“
Sudarshan Madabushi