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The state, religion and civil society

India’s inclination to resist unification
by Apoorva Tadepalli

Francis Fukuyama in his lecture at the American Enterprise Institute on “The Origins of Political Order” said that one of the most important political institutions is rule of law, to govern not only the members of a society, but also its rulers, and keep their powers in check. In this way, it is an institution always in conflict and negotiation with the state, which is about concentration and use of power. Fukuyama says that one of the major factors that enables rule of law and resists totalitarianism is religion. In the history of many societies, like “Ancient Israel, the Christian West, the Muslim world, and Hindu India”, religion was a very powerful governor of societies and had a strong relationship with the law.

In contrast, China did not experience the rise of religion to the same extent and therefore had – and still has – a state that was not fully bound by rule of law. As a result, the state-society balance in China is heavily in favour of the state – it has a strong state and a weak civil society. The same understanding can be extrapolated to the Indian context. India has a state-society balance in favour of society because of the myriad of religious, caste, and community identities that have managed to co-exist in the same geographical and political space. Since many of the communities that exist in India are much older than the Constitution, they establish an alternate framework of judging citizens which the State is constantly negotiating with. In this sense, Indian society is strong and does not give itself to being subject to totalitarian control.

This is exemplified by the space given to personal laws in an Indian’s right to freedom of religion. The state attempts to place the same laws on every citizen, homogenising the population. This has been relatively successful in China: the nation is treated and governed as having a common interest, explaining why strong state centralisation has survived, and also why huge national-level infrastructure projects are carried out with efficiency. However, given the nature of Indian society, community specific interests have to be represented, and the presence of personal laws increases the strength of society in relation to the state. In this way, the presence of religion and other sub-communities in India, questions the autonomous power of the state, something that Chinese society is unable to do.

Fukuyama gives the example of how the Chinese political system, though peppered with periods of rivaling rulers, has always defaulted back to that of a centralised state. This is because, as he says, it is in the Chinese nature to prefer to share power in order to ensure control. This is the exact opposite of India, whose history has been dominated by multiple rulers punctuated with a unified state only a few times before the British. This is still indicative of Indian politics today, considering the myriad of political parties.

Fukuyama proposed that because of the presence of religion in several regions around the world, ruling powers were faced with other authorities that had to be negotiated with and that they were accountable to, enabling rule of law. In the contemporary Indian context, these other authorities can also be understood as local communities and their representatives who do not identify primarily as Indians, and therefore render the need for the state to justify its actions in the name of national interest.

Apoorva Tadepalli is a Communications Associate at the Takshashila Institution.

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India’s independent judiciary

A summary of the debate in the Constituent Assembly about the need for a separation of the judiciary.

In December 1948, the Constituent Assembly gathered to discuss the advantages and disadvantages of having a separate executive, legislature and judiciary. The advantages of a Parliamentary democracy were advocated the most strongly, thereby resulting in an interdependent executive and legislature (wherein the executive, or Prime Minister, is decided by the majority in the legislature). However, it was agreed upon to make the complete independence of the judiciary a Directive Principle of State Policy.

There were several reservations towards this amendment also, though –the primary one being the dangers of giving too much power to the judiciary. As T. T. Krishnamachari said, “In trying to give the judiciary an enormous amount of power, a judiciary which may not be controlled by any legislature in any manner except perhaps by the means of ultimate removal, we may perhaps be creating a Frankenstein which would nullify the intentions of the framers of this Constitution.” He also felt that it was too early to appoint such a responsibility on a judiciary whose members had not yet even been fully decided and had not yet shown themselves to be the best people for the job. This, in addition to the high costs of paying salaries of separate lawyers, judges, and executive officers, was why Krishnamachari and B. Das suggested that India make the decision for independent bodies in a year, when it had experience as a nation-state.

However, it was more fervently agreed upon that despite its shortcomings, an independent judiciary was essential for a democratic and accountable government. It was what the Congress had been demanding of the British on principle for years and had never got. An example was related by Dr. Bakshi Tek Chand, of an incident of the Ministry trying to get a Magistrate to stay the proceedings of a criminal court case against an official. This incident brings out how politicians interfered and would continue to interfere with the judiciary if this motion was not passed. In this instance, the High Court expressed its disgust with this attempt by the executive to influence the way they functioned, and today’s judiciary often shares the same sentiment, as we have seen by Chief Justice R. M. Lodha’s reaction to the government refusing to clear Gopal Subramaniam as a Supreme Court judge.

This incident, however, shows clearly that the anxieties of the Assembly Members were not unfounded. The appointment of Supreme Court judges is not the responsibility of the Prime Minister or anyone representing a particular party. However, Gopal Subramaniam’s critical remarks of the Modi government in its early weeks led to his segregation from a list of four Supreme Court Judge candidates, without the knowledge of the rest of the Chief Justices, resulting in his withdrawal from the candidacy. This type of interference of the executive with the judiciary’s functioning is exactly what the Constituent Assembly Members wanted to avoid.

As in most of their debates, the Constituent Assembly showed sharp awareness of both the daunting nature of their task in shaping laws, as well as the nature of the people they were trying to both represent and reform at the same time.The kind of segregation being practiced by the current Centre in appointing judges for the Supreme Court is clearly something the Assembly had the foresight to be wary of. This was the objective of making an independent judiciary a Directive Principle. And, as Shri Loknath Mishra went the extra mile in pointing out, good administration of justice is not just about an independent judiciary – it is about just laws, and laws which are intelligible to the masses, both of which he said India lacked. These conflicts are inherent in this group of people that were too far ahead of their time, and they mirror the conflict embedded in the Constitution, the conflict between representation and reformation.

Apoorva Tadepalli is an intern at the Takshashila Institution.

This article is part of a series of posts on the constituent assembly debates, meant to highlight the various points of views and negotiations that went into the creation of the Indian Constitution. Each post analyses the debates on a particular issue.

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Constituent assembly debate on reservation

By Apoorva Tadepalli

The concept of reservation, which was discussed in great detail during the Constituent Assembly debates, is much older than the drafting of the Constitution. The Members of the Assembly, along with many of the minority groups that they represented, were wary of the implications of reserving seats in the Legislative Assembly, claiming that it would serve to exacerbate differences that people felt with one another and increase separatist tendencies. They also identified that promoting reservations, ironically, came with a certain degree of exclusion.

There was exclusion of religion. The motion originally did not apply to many Christian, Sikh or other non-Hindu groups. Lower or backward castes of different religions had to institutionalise themselves into the group “Scheduled Castes” just to be able to express that they had been oppressed and needed representation. There was exclusion of lower caste communities that were less populated than others and had less probability of representation. And finally, there was exclusion of poor people of upper castes.

With this, most Members of the Assembly expressed worry that reservation was not the ideal way of achieving true representation. Even Muslim and Sikh Members knew that it would create a series of sub-castes that would further worsen the relations between and within the existing communities, making it difficult to achieve adequate representation. Further, many believed that trusting the elected representatives, even if they were part of majority communities, was a part of democracy.

The Members of the Assembly also believed that a fundamental part of democracy was the changing nature of the public. This comes through in Vallabhai Patel’s certainty that social justice would be seen in democracy’s natural course, without the need for political intervention, which is apparent when he says, “What brought about the abolition of slavery? Was it safeguards granted to them by anyone? No, it was the awakened conscience of the various countries.” As with other social evils worldwide, he believed that caste discrimination would eventually become unacceptable in Indian society.

The Members talked about uplifting the backward classes. But the fact that identifying these people was a point of contention shows the ambiguity of the term. Mahavir Tyagi said, “The term Scheduled Castes is a fiction…there are some castes who are depressed, some castes who are poor, some who are untouchables…How is Dr Ambedkar a member of the Scheduled Castes? Is he illiterate? Is he an untouchable? Is he lacking in anything?…I do not believe in the minorities on community basis, but minorities must exist on economic basis.”

This identified the final goal of reservations, which was and is to provide equal opportunities and representation to everyone, irrespective of social status. As Brajeshwar Prasad said, the Scheduled Castes’ “downtrodden nature is not political, it is cultural and economic and educational.” Clearly this is an economic problem in our country, as shown by Tyagi’s further assertion: that it was not the scheduled castes that needed special provisions “but “cobblers, washermen, and similar classes,” along with farmers, who did not enjoy this very urban provision. Many identified it as an economic problem in our country, including Dr P S Deshmukh, who said, “there are millions of people in our country whose obstacles are in no way different from those of the Scheduled Castes; and I wish to leave room for such people.”

Reservations were finally agreed upon even by those who were uncomfortable with it, because it was initially only supposed to be in place for ten years, and because the reasons expressed for the need for them could not be disputed – it could not be denied that lower castes and minorities had faced appalling atrocities from other communities in their history, and needed justice. However, no distinction was made between social and economic backwardness in the drafting of the articles. It may have just been easier to distinguish the latter from the former because of the significant overlap. It is also important to note that the Poona Pact had already taken place by this point and that reservations in the Assembly had been acknowledged as preferable to separate electorates, which would have been even more dangerous for the notion of equality.

Interestingly, it was also brought up during the debates that the sense of justice with which Indians were judging caste discrimination, was a product of British rule, and that the myriad of communities and their relations had been reduced to the British-introduced majority-minority binary. This binary made the extent of discrimination all the more apparent.

The fact that reserving seats in the Legislature has not eradicated the social evil that is the caste system supports the contention that social evils and economic inequality cannot be solved with political changes. What the Members of the Assembly fundamentally wanted was to provide some form of equality. There are more appropriate ways to achieve the same goals as political representation without the use of political representation. This is particularly desirable in the current context, wherein placements in government enterprises are less valuable than they were fifty years ago. Identifying people on the basis of income level or standard of living, and providing them with education, land, employment or subsidies, as many contemporary programs do, offers more empowerment to individuals than does political representation. Providing backward castes with “functional capabilities”, as Amartya Sen defines them, brings about a more sustainable approach to real progress and equality.

Apoorva Tadepalli is an intern at the Takshashila Institution. 

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