Constitution, State, Law and Nation: A critique of the Models
This was contributed by IndiaFacts reader and supporter, Skanda Veera.
A Constitution is meant to define a state that protects the nation. It should both understand and reflect the characteristic features of the nation and define the state in a way the interests of nation are best served. In case of India, to the contrary, our Constitution tries to define how the nation should be. Instead of defining a state that protects the nation, it imposes notions that revolt against the basic nature of this nation. As a result our constitution and state have done unimaginable damage to the nation and her institutional structures in the past six decades—arguably more damage than external invaders did for a comparable duration. In short we have simply defined a proxy-colonial state which is monotheistic in its outlook and does not align with the nation.
Concept of nation-state
The concept of a nation-state is usually taken for granted while making most evaluations of Bharata and western nations. But its assumption is not as natural however prevalent the notion is today. The fact is not merely that India has not been a nation-state before European colonization. The fact is that nation-state is a concept that evolved in Europe, for European conditions of monotheist societies that associated one language, one territory, and one people with one nation (see “Anglophonic Hegemony and Indian Languages” by Prof Bharat Gupt). Bharata had an evolved concept of orthogonal institutions of nation and state (rAshtra and rAjya explained here) which give far greater autonomy to the nation than a nation-state does (elaborated here and here).
[pullquote]Democracy consciously prevents the establishment of tyranny but this innate design does not ensure the best of political leadership to emerge. [/pullquote]
Our society runs on the basis of a complex set of institutions . Hence it has the vitality to self-regulate, self-correct and evolve with times. Most of the course corrections in our institutions came from within the society in the form of seers, teachers, scholars and samskarta-s (civilizers/refiners, not reformers). Thus this nation is used to a far higher degree of freedom (with responsibility) than a nation-state gives its nation in the west.
The society in India is innately strong and this is the reason the individual enjoys a far greater degree of liberty compared to the West where the state has a much tighter control over families and individuals. Whether it is allowing kids sit on a parent’s lap in a car or choosing the emphasis of “formal” education that makes people literate, the enormous decision-making power is vested with the regarding individual lives than the real stakeholders in an individual’s life: family, community etc (discussed more here). The Indian society feels scuttled and its liberties snatched by the present Indian state as it legislates in matters that the Indian society is perfectly capable of taking care of and make more balanced and calibrated corrections than state can.
The State/law is the last resort and cannot act as a nation and/or character builder. The society with its self-regulation and centuries of cultural-spiritual traditions alone can do it (more detail here). The case for restoring this nation’s control back in the hands of its social groups and similar structures is a significant part of our freedom struggle whether or not it was well-articulated before independence. Post-independence the state defined by our new constitution has only very partially and unsuccessfully fulfilled this craving.
Polity and Society
Democracy consciously prevents the establishment of tyranny but this innate design does not ensure the best of political leadership to emerge. However, throughout history, the Hindu state was designed to produce the best of leadership. What underlies this principle is the philosophy “yathA rAjA tathA prajA” (as the King so the subjects). The rot begins at the top and as long as the state is kept noble, the society will remain dhArmik. Therefore, the highest importance was given to getting the right person to rule, and when there was a violation (as in case of Duryodhana etc), there were enough checks and balances to minimize the damage and look for a better succession. And so when royal lineages started throwing up evil characters like Kamsa, Duryodhana, etc, it was time to eliminate such lineages and have righteous kings take their place. In the Mahabharata, a part of this was accomplished through rAjasUya, a part through the Kurukshetra war and so on. Indeed, Krishna himself ensured the destruction of his own Yadava clan when he saw that they had fallen into irremediable evil. This kind of caution, care, and even ruthlessness in safeguarding the state was the primary reason why civilian life could see the kind of productive leisure it did for centuries to follow.
The beauty of the varNa concept, among many others, is that it views the state-society macro in terms of three primal consciousness qualities and aligns their positives and negatives in a way that highest civilizational ideals are achieved. Human nature and behavior is based on three consciousness qualities. Social psychology has not produced a more profound understanding of man and nature than this Sankhya concept. The concept typically classifies human nature or tendencies into these categories: sAtvik, sAtvic-rAjasic, rAjasic-tAmasic, tAmasic.
A society remains healthy when these tendencies and qualities are in proportionate representation. Each must be at least a tenth and at most a third of the population. The proportions are based on what can be called an “antaHkaraNa mapping” with satva-rajas-tamas. Traditions recommend keeping the percentages in relative balance. One argument for the numbers can be seen in this paper by Prof V Krishnamurthy here. That these proportions naturally exist in society, and that the more these are used properly the more society will remain civilized is the crux of the varNa concept. When human pursuits and actions are aligned with nature, fullfilment is usually the highest or the most optimal. When actions and vocations have a mismatch or when one of these dominates the others, there is an imbalance, skew of power, partial and skewed development.
The varNa system prescribes cruelty and ruthlessness to a kshatriya only in the battlefield. It thus prevents it from disrupting civilian life, ravaging towns and misusing power against the physically weak. Similarly, the brAhmaNa is directed to pursue learning and pAnDitya and in guiding the kshatriya instead of hoodwinking the masses. Today what we see is the reverse: there is a severely limited kshatra element (politicians, army and police constitute 2-5 per cent of the population) used properly and majority of the kshatra temperament is visible in social disruptions, rowdyism, crime etc. Equally limited is the brahma element put to proper use (~1-2 per cent dedicated to pursuit of knowledge for its own sake, providing policy guidance etc) and majority is directed at hoodwinking the masses. Thus immense human potential is both misdirected and underutilized, which is a failure of the current civilizational model compared to a varNa based society which, by its mastery of consciousness qualities, positions people in a way that the relative output is of the highest order and is in line with civilizational ideals.
Seen from a perspective of the basic ideals of a civilization to protect women, children, old and learned men (in short, the “soft” aspects of civilization) from brute force, this is the healthiest a human society can achieve. These are indeed the ideals along which lines every Rishi asks questions to kings during their visits: be it Viswamitra to Dasaratha or Narada to Yudhisthira or Vyasa to DhRtarAshTra. It is satisfactory answers to these questions that make them judge the praAranjakatva (effectiveness, righteousness) of any ruler. Protection of non-combatants, fair taxation (1/8th of the produce in the worst of circumstances and 1/12th in peacetime), creating an environment where knowledge, scholarship, the arts and leisurely pursuits flourish are indeed indicative of an evolved and healthy civilization. Cases like that found in the Kicaka and Draupadi episode were indeed treated as unforgivable offenses, which is indicative of the level at which royal systems operated. That this happens in spite of one section engaging in the most sanguine warfare, is indeed an ideal that the dharmic civilization of India alone could achieve. Right up to the Mauryas, Chandratreyas, Rajputs, Paramaras, Pandyas and Marathas to list a few, these concepts were not merely book-ideals but what guided their policies in practice.
History records say Hindus in India were aghast to see “hitherto unknown” experiences of invading (Islamic) army burning down villages, destroying farms and hurting civilians, a phenomenon completely alien and inconceivable to them.
This is in stark contrast against the rape-arson-murder following the Trojan war or crusades-crescentades that stretched for centuries. European faith-based knighthood or jihadi groups are known to, by their subservience not to civilizational but to their respective religious “ideals.” Ravaging fields, destroying villages, and violent disruptions in civilian life by employing uncivilized means like terror and devastation (for details, see K S Lal’s book here).
[pullquote]The reason this is called sanAtana dharma or eternal law is that this knowledge is unchanging. [/pullquote]
Because of the way the Hindu state and society were conceived and designed, revolution as a concept was almost unnecessary in India. Even civil disobedience was a last resort which was seldom necessary to be employed. Revolution at its heart is civilian trauma. There’s a reason the Hindu system of social organization keeps violence restricted to the domain of kshatriyas and shields civilian society from it. Which is how society continued to provide leisure and allowed civilizational development, be it arts and sciences or spiritual knowledge. Bringing struggle to the level of the common man is the failure of system as per Hindu thought. That Gandhi resorted to this kind of struggle was a result of the depletion of kshAtra and the conscious demilitarizing of India done by the British. Ultimately what offered us sustainable independence was the creation of a two-million strong, war-trained army that we had as a result of World War 2 courtesy Savarkar’s and Subash Bose’s efforts.
What we saw in place of an informed understanding and critique of this concept in the last century is a rather simplistic understanding and strawman critiques. For example people wax eloquent about “karma-based instead of janma-based” varNa, without knowing that the varNa’s base is guNa-karma and it has multiple aspects including birth, temperament, upbringing, opportunity. Itihasa-Purana and real life narratives explain the play of these and the share of each of these, the consequences and fulfillment or lack of it seen by persons who fully align, partially align and misalign their guNa-karma.
Bharata enjoys a civilizational continuity, something very few nations can take pride in. We have an accumulated learning through the ages, and while the society evolves through several cycles and spirals, the learning continues to deepen the society’s resilience and making its philosophical and spiritual learnings reflect more in the common man’s life. The social institutions too, benefited from this learning and offer a much stronger and stable basis for individuals and families towards their own fulfillment.
In terms of knowledge we enjoy a continuous development. The entire Vedic knowledge is recompiled in the Ramayana phase, the entire Vedic-Puranic knowledge recompiled in the Mahabharata age, the entire Vedic-Puranic-Tantric knowledge is reorganized in the dArSanik era including developments that occurred in the interim. Correspondingly, methods of worship grew from the personal to collective, from the abstract to socially viable and so on. Similarly we have seen several social cycles, several ups and downs and social evolution adapting to those. We have seen the transformation of the society from a uniform and homogeneous single book – single law system to an increasingly complex twofold society, then a threefold society, and then to a fourfold society. What strings all these cycles, what remains unchanged through these increasing complexities and evolutions is the permanent knowledge of nature, mankind, and consciousness underlying nature. The reason this is called sanAtana dharma or eternal law is that this knowledge is unchanging.
For this reason Sanatana dharma has nothing to do with half-baked jargon like new and old systems, reforms and so on. Human nature, nature, human craving for fulfilment etc are permanent principles. A society based on such dharma amorphously evolves, for it has no solidified form that needs a reform. Deeper in its structure is the unchanging principle, pivoted on which any changes are absorbed or initiated. Thus while there is a continuous change affected by time, space and condition, there is a deterministic and predictable direction to these changes. Practices come and go with time, arrangements come and go with time, whereas the macro design remains the same. In the long past we have not merely seen linear developments but several cycles of ups and downs, restoration to “old” systems, syntheses of “new” traditions, destruction, creation: all emphasizing the cyclic nature of time and demonstrating the prevailing nature of the permanent principles that assert themselves through these cycles.
What we see in west in its contrast, is not correction by retaining the existing social order but wiping out of civilized life and disrupting it. Monotheism almost wiped out the cultural bases laid down by polytheists, the feudal age wiped out its precursors, the post-industrial society wiped out the traces of feudal life and so on. This is because the present is always a replacement of the past culture and understanding of man, his needs, his dignity and so on. The ideal of society itself keeps changing. They neither enjoy continuity nor have seen full social cycles: they have abrupt corrections and replacements, involving revolutions and civilian trauma.
The authors of our constitution seem to have failed to understand these principles let alone ensure such civilizational continuity and base itself on such unchanging laws of nature, mankind and native thought. This is the single biggest failure of Indian constitution and its offense against this great nation. As a result, the concept of the nation-state enforced by the British happens to be owned up, attempting an entirely new and disconnected view of the nation than the nation has of itself.
What we witness in these six decades is a play of disintegration, separatism, conflict, and violence. All the motives that acted as integration motives throughout history are now acting as disintegration motives, thanks to a flawed view of all this taken by the founders of the nation-state (who are not only not the founders of Bharata but are proving to be its confounders).
[pullquote]This is a nation where linguistic boundaries did not exist and several languages were spoken over large areas.[/pullquote]
A nation that did not see caste conflict for millennia is now a vast field of caste conflicts. A nation that saw several languages develop in the same region is now seeing linguistic and regional jingoism. A nation that saw brief native religious conflicts and easily overcame those through the strength of its institutions is now seeing religious conflict, violence, rioting. The reason for this is a false integration motif foisted on Bharata replacing several natural unification motives that the seers envisioned.
Democracy’s consensus building is a problem in a diverse society, which is discussed here. However, this problem is only deepened through minorityism and consolidation of the minority identity in opposition to a diverse, scattered “majority” whose consensus building is done in entirely different ways. We are a nation of hundreds of “minority” groups, consensus must emerge through a stratified representation of those and not through reduction of those into two large identities.
Secularism is a notion that emerges from the church-state divide of Europe and finds no rationale or place in India. This is because, as discussed here, religion-polity divide does not require to be created: they both were separate sets of non-conflicting institutions in India.
The very notion of religion assumed by the Constitution is monotheistic and proselytizing (explained here), in stark contrast to Bharata’s diverse, decentralized polytheistic traditions and the common epistemic and argumentation systems underlying them. As a result it disadvantages the tolerant traditions of Bharata against the exclusivist religions. A nation that has innumerable traditions is artificially divided into majority-minority instead of recognizing the diversity and circumscribing the activity of predatory religions and make them fall into a more tolerant and pluralist structure. This is a nation where there are social and religious groups, both native and immigrant, which number in thousands to millions, and are not insecure about their identities. It is ridiculous that someone should think groups numbering in tens of millions should play the card of insecurity and ask for “minority protection”. Every major commenter pays lip service to Bharata’s diversity, yet very few care to notice the ridiculousness and illegitimacy of the notion of majority-minority in a diverse society as a basis for policy making.
Moreover due to its flawed view of religion, the state sought to protect aggressors from the defending traditions instead of fulfilling basic duty towards the nation: of protecting the pluralistic native traditions from the intolerant religions. As a result the population share of these traditions fell from 85 per cent to less than 80 per cent in less than seven decades, rising the footprint of exclusivist traditions to more than a fifth of the population. This is damage unprecedented in the history of this land seen over such a short period of time. This is directly the cause of rising religious conflict and intolerance in this land. Yesterday’s East Bengal’s situation can well be expected soon in West Bengal, and stories of the North East, Kashmir and Kerala’s are well known. The state continues to keep the nation on a landmine, which is bound to explode in time not too far in future. Worse, to keep the problem suppressed, the state is trying to scuttle the defense of native traditions thereby increasing the harm to them as well as bringing down its own moral credibility.
Indian languages are not shrinking because of job avenues that result in learning English unlike what many think but primarily because of the nation-state notion which aligns the state with one language. This is a nation where linguistic boundaries did not exist and several languages were spoken over large areas. Language, culture and literature had blossomed across Bharata.
[pullquote]A majority of these inconsistencies have to do with making the state secular while assuming but not acknowledging the nation a Hindu nation.[/pullquote]
Carnatic music of Kannada origin is enriched with thousands of Telugu kIrtana-s, which are mastered by Tamilians. Most of the major literary figures had mastered several languages. Today, literature in most Indian languages is not suffering because there is great literary contribution happening in the “global” language. It is because the artificial linguistic states make policies destructive to the development of culture and languages with their region-language politic. Decline of language and other aspects of culture such as arts has to do much with decline in a sense of beauty and overemphasis on utilitarian thought in policy making (some detail here), which in turn has to do with the way the Hindu worldview balances these and how it reflects in policy making.
While our liberals teach us that language learning should be helpful to obtain jobs, and that hence we should embrace foreign languages, this was exactly the argument used to force English literacy on India by the British – our liberals and mainstream commentariat don’t even introspect how colonized their thinking is.
Similarly the state did not seek to understand or align its policies to what the nature of this society fundamentally is. Instead it revelled in alien jargon like socialism and capitalism thus creating a need for the society to work in spite of the state. The Constitution defines the state to be socialist, when the cultural economy of India that kept us the richest nation for centuries before we were colonized is founded in traditional society’s capital management but not in some socialist or capitalist principles. Unfortunately, soon after independence, the basic question as to what kept us mirabilia Indae, which attracted raids and conquests from penuriosa latina for want of the latter’s wealth, was not posed. To the contrary, the leaders enamored by the West’s might and its successes built on colonial loot, fashioned our economic policies and economic philosophy after the West. If only this question was posed, and an honest attempt made to understand this society’s strengths and workings, would there be a policy choice made to align with it.
As S Gurumurthy notes and Prof Vaidyanathan documents in his India Uninc, we are having to come up in spite of bad economic policy, by the strength of our social structures, family and group institutions. Upon an objective evaluation, the skill-group system turns out to be far more superior. However, it is simply compared to the evolving institutions of the west, which initially involved slavery, then serfs, then employment culture and is still not successful in providing human fulfilment although they are increasingly giving more rights to manpower. Skill groups offer both security and independence at a higher degree than the capitalist employment culture. Human fulfilment is achieved better, whose evidence is the civilizational success of Bharata. It is free of the basic problems posed by both capitalism and socialism, both of which are rooted in addressing parts of the problem.
Respect for Law
Of course, the law must be respected and adhered to. The extent to which this actually happens depends, to some extent on the governance and enforcement and to a good extent on the law itself. The law itself has to qualify the criteria of fairness and consistency. Respect for law cannot be mandated through a mere demand through Constitution by calling it a citizen’s duty. A fair and consistent law book gets respect.
The authors of the Constitution had compiled it with what they thought was best. However, the road to hell is paved with good intentions. Many learned men, though they abide by the law, have low opinion about law and lawmakers for the simple reason that it does not, by Hindu moral standards, come out to be a fair and consistent document. Very few attempts however, have been made to make it better. On the contrary, many attempts after the first draft, unfortunately, ended up worsening the document, thus making it only more unfair.
What is the qualification required for a constitution writer/smRtikArA for a nation like ours? It requires an in-depth understanding of the nature of our nation and society, its ways and positives and not merely its problems, and identifying principles that are in line with those. The changing principles must be derived to suit the conditions based on the unchanging laws of nature and mankind. The Constitution was written by people who were quite the opposite: those who had a mere working knowledge of Hinduism and tried to fashion our nation after the colonizers’ laws whose intent was subjugation and exploitation.
Use of law is not the only thing that should be in the mind of the one who is framing it, its misuse must be foreseen and sufficiently checked. This part is hardly to be seen in our laws. For instance, minority rights have been given to protect them, but “minority” aggression is virtually unchecked. Similarly, affirmative action is mandated to bring underprivileged groups on par, but it is neither made sure that those getting these benefits are the real underprivileged ones nor is there any correction offered to placate meritorious ones deprived of their chances by the law. Of course, there is no mechanism laid down to bring it back the policy to a law that does not discriminate. What shows in all this is lack of foresight, lack of understanding of the nature of the nation and human nature. One who sees downsides of a policy while framing it is the wise one and qualifies to make it. One who lacks it cannot give a law that serves the nation the best.
This does not go to say we can disrespect law: indeed a society that does not respect its laws and constitution is no civilized society. This is to show where the problem lies and for one who is interested in solving it, this is where it should begin. Tradition says “yathA rAjA thathA prajA”. It is indispensable for the state to be fair and consistent in the public’s view for people to respect the laws and policies laid down by it. In our case, the Constitution, policy making and governance has been below average compared to Hindu standards of morality and governance and hence the system does not receive the kind of respect that the celebrated rulers of this land like Rama or Yudhisthira received. Very little introspection and correction if any, is seen in this regard.
The Constitution is based on a scheme of morality. Our Constitution was derived from western constitutions, and many of the acts continued from the British times. They are mostly based on Victorian Christian morality. Recent judgments have observed the need to change these laws to a more recent, post-modern moral assumptions such as decriminalizing LGBT and so on. Many laws are called outdated because the ideals underlying these laws are changing with times.
The very basic structure of the Constitution as they call it, a notion introduced to prevent distorting the document out of shape by legislators as happened during Indira Gandhi’s tenure, is not based on such scheme of what is permanent and what is temporary but on some ideals that were falsely deemed to be the permanent features of this nation.
The Constitution does not base itself on the Indian conception of morality and ethics, which is more subtle and evolved: it has several layers, the deeper ones are based on permanent human nature and the upper/outer layers are based on various stages of the time cycle (yuga dharma), changing times (deSa, kAla etc). The basic structure and deeper layers of constitution must be based on the unchanging laws, and temporal layers should be based on the changing times. This stratification is absent in the Indian constitution because it does not base itself on an evolved scheme of morality such as Dharma.
India’s constitution as it stands today, has several internal consistencies, and some are pointed out here. It calls for a secular state yet reserves the control of Hindu religious institutions and makes interventions only experts of Hinduism are eligible to make (such as appointment of priests and organizational decisions). It discriminates educational institutions and allows “minorities” to teach religious education while making “majority” or “mainstream” education secular which prevents teaching native values and culture. A majority of these inconsistencies have to do with making the state secular while assuming but not acknowledging the nation a Hindu nation.
In short, what we have is a state against the nation. Honest governments can at best minimize the damage in their term, and rogue leaderships maximize the damage, but the basic problem remains in the Constitution. There is an urgent need for our leadership to look at the Constitution not with fancy idealism but take an objective, critical view of how much it succeeded in serving its purpose, where it hurt the nation and what needs revision and correction.