Constituent Assembly had rejected need to ‘Indianize’, ‘decolonize’ legal and constitutional system of India

A call to Indianize and decolonize the legal and constitutional system of India may appear to be innocuous and even attractive. A closer look at such calls may, however, show otherwise. Such a call is not new. However, the recent call is a little different in that it has succeeded in bringing some Supreme Court judges to its bandwagon.

Last month, an SC judge was brought to the stage of Akhil Bharatiya Adhivakta Parishad (ABAP) to preach the necessity to Indianize the legal system in tune with the ancient Indian systems of “Manu, Kautilya, Katyayana, Brihaspati, Narada, Parashara, Yajnavalkya, and other legal giants of ancient India”. ABAP is the lawyers’ wing of the Rashtriya Swayamsevak Sangh (RSS) which spearheads the campaign for recasting India’s legal and constitutional system into a Savarkarite-Golwalkarite value-system on the stealthy pretext of ‘Indianization’.

In the current issue of Frontline, Prof Shamsul Islam has quoted the RSS publication ‘Parm Vaibhavke Path Per’ (1997) to the effect that the

ABAP was created in 1992 with the aim of moulding the Indian judicial system according to “Bhartiya culture… to suggest amendments in the Indian Constitution … [and] amend Article 30” (‘Objection Your Honour, Frontline, January 15-28, 2022, p.41). Thus, the content, extent and purpose of ‘Indianization’ in the name of decolonization of India’s legal system need not remain a mystery.

Behind these calls, the premise is that the main and perhaps the only reason for the ills plaguing the Indian legal and constitutional system is its lack of Indianization.

Our legal system is part of the Constitutional scheme which we adopted about 72 years back, and is still working with all its weaknesses and strengths. It is based on a composite value system which has various ideologies as its parts. However, some ideologies are deemed not part of this composite value-system since they are completely inconsistent with it but are at the same time competing with it and trying to supplant it.

The Savarkarite-Golwalkarite one may be an example in point. This clash of ideologies or value-systems, and one group’s attempt to pretend as the only successor or pedigree of the real and genuine Indian heritage and tradition, had been active even during the freedom struggle.

In the name of Indianization, this group wanted to perpetuate the hegemony of the anti-women and anti-people value-systems prevalent from ancient times, sometimes weak and at other times strong.

These voices echoed even in the Constituent Assembly. Countering them, Dr B.R. Ambedkar had to warn the Constituent Assembly that constitutional morality is to be cultivated, and that adopting the beneficial colonial structures and legislations may be necessary to cultivate this morality among the Indian masses.

While introducing the draft Constitution on November 4, 1948 in the Constituent Assembly and stressing the necessity to inculcate constitutional morality in the people of India, Dr Ambedkar had famously said, “Democracy in India is only a top-dressing on an Indian soil, which is essentially undemocratic.”

He had to specifically counter the attack, similar to the recent attacks on the ‘colonial psyche’, on the draft Constitution in its relying on a good part of the Government of India Act, 1935.

This view of Babasaheb was contested in the Assembly itself by some like Alladi Krishnaswami Ayyar and Vishwambhar Dayal Tripathi. However, on May 17, 1949 Jawaharlal Nehru spoke of our Indian traditions in a more realistic manner, warning against the false pride of considering India as a world-teacher in the matter of democracy and legal systems.

He said: “We are all, I am afraid, in the habit of considering ourselves or our friends as angel and others the reverse of angels. We are all apt to think that we stand for the forces of progress and democracy and others do not. I must confess that in spite of my own pride in India and her people, I have grown more humble about talking in terms of our being in the vanguard of progress or democracy.”

In his final speech on November 25, 1949, Dr Ambedkar himself had acknowledged about the Indian roots of democratic government and reiterated that those traditions had been lost and there is yet a danger of again losing it. He was categorical throughout that the ancient legal systems had strayed away from the sound heritage which survived only in the Buddhist traditions, the various movements of the so-called low-castes and tribal communities.

The Indianisation which survived through the legal systems of Manu, Kautilya, Yajnavalkya and others had made Indian village republics responsible for the ruination of India by decimating the dignity of the individual, and making communities, varnas and castes as absolutist power centres and sources of ruination of India.

This is what Dr Ambedkar had to say about these ‘Indianized’ and ‘decolonised’ or pre-colonial village republics of India: “I hold that these village republics have been the ruination of India. I am therefore surprised that those who condemn Provincialism and Communalism should come forward as champions of the village. What is the village but a sink of localism, a den of ignorance, narrow-mindedness and communalism? I am glad that the Draft Constitution has discarded the village and adopted the individual as its unit.”

Thus, it would be clear that there was at least a partial contribution of the ‘colonial psyche’ which permitted the adoption of the individual as the basic unit of India’s Constitution and legal system. Such de-Indianization had helped us to re-establish the dignity of the individual as pre-eminent even to the promotion of fraternity, and to the unity and integrity of the nation. Hence, at least to that extent, we need to defend such ‘colonial psyche’ against Indianization and decolonisation.

Do we want to decolonise and Indianize this republican character of our legal and constitutional system? What kind of Indianisation is missing, if at all, from our Constitutional and legal system?

As already highlighted by Dr Ambedkar, Munda, Velayudhan and Dr Prasad, we had rejected in the Constituent Assembly itself the Dharmashastric heritage of anti-women and anti-people value-systems. This rejection is writ large in each article of the Constitution and the provisions of law, both substantive and procedural.

The remaining vicissitudes have been gradually done away through the ongoing amendments and codifications, including those in the personal laws and customary laws. Our legal pluralism is a necessary ingredient of our composite constitutional value-system.

We Indians, in our right senses, have never understood the mandate of the Constitution either as one for Indianization or a destruction of legal pluralism and personal laws as long as they are not inconsistent with the composite constitutional value-system. Instead of a call to further constitutionalize, any call to Indianize or decolonize is a fallacy, if not a betrayal of the Constitution.

(IPA Service)

Views are personal

Courtesy: The Leaflet