The Supreme Court seems to have tread a course which marks a definitive, if not an entirely radical, departure from India’s original constitutional project of social transformation through state intervention.
The two recent Supreme Court judgments striking down the practice of instant triple talaq and declaring a fundamental right to privacy bear the potential of being regarded as important flag-posts in postcolonial India’s hesitant journey towards liberty, equality and fraternity. A majority of the justices on both benches sought to prioritise guarantees and entitlements conferred upon individuals in the constitution over concerns of a disproportionately intrusive governmentality and an unrestrained sphere of religious group autonomy. While doing so, however, they seem to have tread a course which marks a definitive, if not an entirely radical, departure from India’s original constitutional project of social transformation through state intervention, limited only by a reluctant concession to minoritarian exceptionalism.
There is naturally a growing sense of hope and expectation around this purportedly refreshing reconfiguration of our constitutional landscape. But its vindication would depend upon whether at all these pronouncements translate into actual remedies on a consistent basis, especially for a wide cross-section of vulnerable subalterns, both inside and outside the formal system of adjudication. Rather than speculating about a contingent future, we wish to raise a couple of more primary questions with respect to the present, assuming that something momentous might indeed be on the cards. How should we talk about this break in conceptual terms, and what must we remain wary of as it begins to capture India’s constitutional imagination?
It has justifiably been presupposed that framers of the 1950 constitution preferred community allegiance over individual freedom, in case of an irresolvable conflict between the two. However, we believe that this opposition was not as deep-seated as it is made out to be, since the two concepts were understood very differently then from the way in which they are approached today. For most national thinkers in the anti-colonial tradition, individual and community were too closely imbricated in one another, and their segregation into isolated unrelated entities was inconceivable. This made the broad church of Indian liberalism, beginning with Raja Rammohan Roy and extending up to Jawaharlal Nehru and beyond, substantially communitarian in nature for most parts. In a similar manner, the modern conception of community, be it of religion or of the nation as a whole, which instilled life into the anti-colonial movement, was hardly ever hostile to the individual as such. The best exemplification of their coming together in the early independence period can be found in the enactment of a progressive, although highly flawed, Hindu family law code. This is of course not to suggest that the anti-colonial imagination was fashioned in a homogenous political space of mutual consensus, but merely to emphasise that the more consequential tension was between communitarian liberalism of nationalist thought and counter-liberalism of dissenting voices such as B.R. Ambedkar and Mahatma Gandhi.
Once we de-centre the individual versus community debate in constitutional discourse, it may seem that the sole feature left for investigation in respect of fundamental rights is an interventionist state vested with extensive lawmaking and police powers, constrained only by a lack of political legitimacy to interfere in minority affairs. But what such a narrative would then miss out on is the concept of inner life, which was singularly foundational of anti-colonial thought and has remained most generative of political power ever since. It is possible to overlook this critical dimension due to an unreflective tendency to approach Indian constitutionalism through Euro-American constitutional categories, as a result of which inner life gets conflated with the private domain and the life of the state with that of the public. Whilst inner life in India did indeed encompass relations of intimacy within homely precincts, the notion of home was itself heavily shaped by predominantly upper-caste male members and their fascination with an outer world of colonial civil society, to which they had very little access. On the other hand, India’s political culture could not be sufficiently sanitised into a modular bourgeois public, typified by a robust commitment to rule of law and human rights, since its umbilical cord remained attached to homely intimacies. This is best exemplified by the fraternal violence of partition, involving Hindus, Muslims and Sikhs, and its recurrent possibilities.
Normatively-driven intellectuals have always aspired for a neater alternative to the chaotic complexities of conceptual categories associated with India’s political history. No wonder then, that they are much excited by the two judgements which represent for them an unequivocal separation of public and private, and a guarded primacy of secularism over religion, thereby paving the way for India’s entry into the global constitutional club of mature liberal democracies. In this euphoric moment, we must not forget that even the original constitutional model premised on an inner life of civilisational nationalism was not averse to borrowing the best of ideas from other supposedly advanced jurisdictions. What has certainly changed however, is that socialist principles of organising society have come to be replaced by liberal and neoliberal ones. But just as Directive Principles of State Policy did not succeed in converting India into some socialist utopia, we must not expect the mere arrival of a strong privacy jurisprudence to transform it into its liberal counterpart overnight. This is so because such concepts derive meaning only while at work, in their grappling with messy details of different constitutional settings.
As far as the triple talaq case is concerned, rather than signifying a triumph of purely secular reason, there is here a further instantiation of a uniquely Indian solution for the problem of gender-unjust personal laws across religious communities. Although the initial constitutional aspiration was indeed for a uniform civil code with a temporary exception implicitly carved out for unwilling religious minorities, this exception has gradually come to be normalised, particularly with respect to Muslims, largely owing to their complete marginalisation in representative governmental institutions. Under such circumstances, barring some egregious instances to the contrary, courts have wisely managed to replace the insistence on uniformity in laws with uniformity in rights. Such a change in tack has shielded Muslim personal laws from Hindu right-wing demands for their abolition, while at the same time increasingly infusing them with constitutional values.
Also read: The Triple Talaq Ruling Is a Step Forward, but There Is a Long Way to Go for Gender Justice Laws
It is not only that a strict separation between public and private, religion and secularism has failed to materialise in India. More so the case today is that these sets of categories have come to be inextricably entangled with each other globally, as can be discerned from worldwide phenomena such as an increasing privatisation of a secretive, non-transparent state, a ubiquitous mass culture of publicity and an unapologetic theologisation of secularism, supplemented by a simultaneous secularisation of religion. For those thinkers who regard constitutionalism as essentially a moral enterprise, these intertwinements would no doubt be extremely disconcerting. But equally more troubling is their uncritical expectation from constitutional concepts formed in the heyday of the classical modern European state to work seamlessly in all local and global contexts.
Our intention here has not been to speak in favour of or against any of the normative categories discussed hereinabove. What we wish to convey is that legal and constitutional analyses must not remain confined to a formal text and its exegesis, but engage instead with larger social and political realities which condition them. At this level of interpretation, the only crucial disjuncture from India’s original constitutional model has been a gradual shift away from unalienated sociabilities to a growingly deracinated sense of being in the world. This deracination manifests not only in anomic possessive individualism, but also in the treatment of religion as intellectual property of the community alone. In such a scenario, the bigger worry is that whatever was virtuous in our older concepts may no longer be available to us. If viciousness is increasingly becoming the order of the day, be it in public or private, secular or religious spheres, the only ethical option that we may be left with is to transcend this deracination in creative and imaginative ways, regardless of our preference for whichever concept.
Moiz Tundawala is a PhD candidate at the Department of law, London School of Economics and Political Science, working on the nature of constituent power in postcolonial India. Salmoli Choudhuri is a PhD candidate at the Faculty of History, University of Cambridge, working on Rabindranath Tagore’s legal and political thought in global intellectual history.