The Asiatic Society of Mumbai organized its 27th Smt. Bansari Seth Memorial Lecture on the topic "One Nation under the Constitution" on 18th August, 2020 in memory of Late Shrimati Bansari Seth, former Honorary Secretary of the Asiatic Society of Mumbai. The lecture was delivered by Justice Gautam Patel, a sitting judge of the Bombay High Court and was presided by Senior Advocate Mr. Navroj Seervai of the Bombay High Court.
Justice Patel in his breathtakingly brilliant speech covered a breadth of issues relevant around the world today such as the issue of false patriotism, a warped notion of nationalism, the use of othering to create identity distinction, populism, the religion versus secularism debate and emphasized on the value of dissent, rule of law, and constitutionality in relation to the Indian democracy.
Below is an excerpt of some of the important issues addressed in the lecture.
Highlights from the Lecture
Justice Patel addressed the concept of nationalism at a great length in his lecture to argue that the concept of nationalism has suffered great distortions over time. Explaining the idea of nationalism, he stated that:
"At its simplest sense nationalism is identification by the individual with the large community that comprises the nation. It manifests itself sometimes as a support for the nation state's interests and in its more virulent form to the detriment division or exclusion of all other nations. At a social level, it sometimes takes the hues of jingoism, the sense that one's nation is always the superior one. The core of nationalism is both self-determination and self-governance. Historically, notions of nationalism were crucial in ending colonial rule and the term is thus used in opposition to both colonialism and imperialism.
A contemporary view is that nationalism as we understand today is far more complex and deal with social, political and economic structures essential to the existence of modern society governed by one overarching quality- rule of law and in particular rule of constitutional law. Two key concepts define modern nationalism- unity or unification and identity.
Nationalism of one stripe was responsible for the rise of Nazi Germany and nationalism of another for the Zionist movement that led to the creation of the State of Israel".
He then contrasted the change in the connotations attached to the term "Nationalism" in India over the years. He quotes Siddharth Luthra and Nivedita Mukhija to emphasize the earlier connotation of the term.
"In India, nationalism was once synonymous with the freedom struggle. For colonized people, for whom unity was needed to weave together different peoples and regions with diverse cultures to obtain freedom from British rules, nationalism was a liberating force- promise of equality and freedom from colonial subjugation. This view of nationalism was rooted in the ideas of progress and development not only politically but also socially, economically and culturally. On one hand, it was accompanied with a revival of religion, culture, language, art and more and on the other hand, there was development of modern spirit and ideas".
He then quotes Sadanand Menon to explain the current connotations attached to the term which is referred by Mr. Menon as cultural nationalism.
"What is visible today is a new hatred for the idea of democracy as we know it and with the rights that are guaranteed in the Constitution. This is quite in keeping with the genre of cultural nationalism which thrives by creating a climate of intolerance and intimidation to keep civil society in a state of constant agitation by subjecting it to constant attack. Cultural nationalism is a rogue version of nationalism which is already present in the concept of the nation state. A systemic ejectment of the political rights and debate and the substitution of these by usually four ideas of shared cultural rights. Cultural Nationalism is irrational and occupies the space of imaginary hurt, insults, wounds, defeat inflicted by imaginary enemies who always belong to religions and regions not you believe are your own. History is to these cultural revenges a source of immense worry".
Growth disparity and cultural nationalism
According to Justice Patel, India's trajectory as a society has been a remarkable march away from becoming more civilized, more just. Disparities of income, opportunities, environmental rights and legal rights have not narrowed. The poor are poorer and the rich very much richer and nowhere is this more visible than in our cities. Quoting P. Sainath, he states that
To equate private wealth growth with development and progress is just flat out wrong. Unemployment particularly urban unemployment is particularly hugely disruptive force. Young men and women unable to find suitable jobs and ending up taking whatever work they can even as delivery workers. The impact of this is to tear at the fabric of the civil society. It creates ruthlessness, a sense of being marooned, a sense of not belonging. The concepts of nations and nationhood are now abstractions. They lack the immediate need and continuity.
He attributed the rise of small and aggressive ground-level organizational units to this failure in growth and inclusivity of all in the development of the nation. He states
"The reason it (ground-level organization) works so very well is because it provides the rootless with a sense of belonging and of identity. Once you are part of the Shakha or any other such group of any other political party, you gain an identity and that identity then dictates what you do and how you go about doing it. It is then perfectly legitimate to question or even defy the rule of law and constitutional norms. Those are now completely alien to your identity and they provide no unity, from this follows a natural expansion to notions in larger groups of racial purity, an embalmed monolithic history and most easily accessible of all, a religious singularity. This then makes it entirely legitimate and possible to advance the cause of rewriting swords of history and of advancing unsubstantiated claims to superiority and of saying for instance that we were there first before the rest of the world. This translates into familiar norms, at the retail and individual level shrill jingoism and an utterly false use of patriotism and at the level of the Government of today, a stifling of criticism by among other things using the law on sedition".
The use of "othering" to create identity distinction
"There follows the inevitable invocation of being antinational if one does not agree and then riding to a crescendo with the accusation of the lack of patriotism".
Justice Patel states that the use of othering in the formation of nationalist sentiments needs attention. He quotes Professor John Evans of Portland State University to explain othering as
"A process in which groups and their individuals are defined by the social majority as different, incompatible, unworthy or otherwise unwanted or ostracized. This act results in the dichotomist formation of an ostracized group, an us group under the them group or in some places an ingroup and an outgroup. This exclusion is mostly based on some outsider identifier such as ethnicity, nationality, gender, accent etc. The extremity of this exclusion can range from ignoring students of other nationalities to committing genocides. It is a process more serious than individual xenophobia. Othering is a process that begins in institutions of power and filters down to people. It is a corporate xenophobia inflicted upon the people through political rhetoric, national historiography and perpetuated through socialization. The process of othering serves two purposes-It serves to create an identity of the nation and it provides a scapegoat to the nation for its present and past. The coincidence or conflation of this strident jingoism or false patriotism or the ascendance of evil is equally evident".
Historically, nationalism as an ideology used "othering" as a way to identify the nation but in doing so has however necessitated the presence of an "other" to maintain such an identity distinction. He quotes James Walderin's "Becoming People: How Ordinary People Commit Genocides and Mass Killing", to state that othering is one of the factors that leads people to commit acts of quite extraordinary evil. He refers to the current news culture of India as another instance of othering.
Populism in Constitutional Democracy
"Populism is democracy's dysfunctional cousin, one lacking the moral appeal and long term stability of a healthy democracy. Ginsberg and Haq point out that populist expand this idea of othering by contending that they and they alone represent the people, all other electoral or policy options are illegitimate or futile or both. This concept of the people they show is non-institutionalized. There is an assertion of a singularity- moral, religious, political, not voiced in a more formal way say in a written constitution".
He distinguishes populism from democratic process as
"An ordinary democratic process depends on two or three distinct things- questioning, dissenting or differing and an institutionalized system of checks on excess. Populism rejects all three as being entirely illegitimate and sees all three as antinational. This is a direct path to the accusation of being a traitor as Ginsberg and Haq quoted "In its paradoxical appeal to and simultaneous attack on democratic practice, populism exploits and amplifies basic dilemmas of liberal constitutional democracy. Democracy is difficult, slow and messy. Populism for this reason sees it as weak and effete and therefore seeks to erode among other things constitutional institutions especially those meant to curb government and fundamental rights. Populism uproots the rule of law."
He says that in many cases, elections turn on voter's emotional affiliation with a particular politician rather than any judgment about the politician's expected efficacy. Such elections are hardly the democratic idea. For elections to serve the proper function there is a need of flow of reasonably accurate information about the interaction between Government policies and external conditions. At some point, information failures can become so immense and asymmetrically tilted in favor of one coalition or candidate that they render the exercise of democratic choice futile.
At the level of the Government, othering takes sinister forms, typically the arrest and continued incarceration of persons accused of being antinational whether on the existing law of sedition or one or the other of the so called terrorism statute.
He denounced the law of sedition and referred to the works of AG Noorani, 1992 Kedarnath case, Romesh Thapar v State of Madras and the Allahabad High Court's ruling in Ramnandan v State in that context.
Rise of religious majoriarianism in India and the historical evidence of a Hindu Nation
If you take a map of India and fling three darts at it you are unlikely to find commonality of culture, religion, or language between the three landing points. Even within any region, there is wide diversity of faith, belief, practice, cultures. A unification of these people by seeking common grounds is impossible and that is why we see the ascendance of othering and unseating of nationalism as a constitutional idea and an attempt to in-throw some other commonality.
He states that the brute force majoritaranism of religion is most effective commonality. It succeeds precisely because it's easy to create a definable other and within that other there is no need for nuance.
There is a growing swell of support for the utterly false notion for instance that there once existed in ancient Indian history a unified Hindu nation with a homogenous religious commonality.
The fundamental problem with this approach is that it eliminates nuance and complexity in history and compresses it into steady predictable and easily comprehensible stream of neat chronological events. But history is not straightforward. It is not easy. Like democracy, it is untidy, disordered and difficult to decipher with all its many strands, conflicting versions and rival narratives. History is the test of credibility of these rival narratives…This view of history is clearly uncomfortable to the religious right. Religious majoritarian demands a flattening of contradictions and the establishment of an identifiable singularity. Complexity invokes doubt, dissent, argument, opposition and plurality that unseats religious majoritarianism and defeats the intention of religion based nationalism. Answer to this is gross oversimplification of laying claim to a historical religious unity and identity and discarding all discourse that legitimately points to contrary. This flattening is as illegitimate a study in the process of history as it would be in the practice of law.
He concluded the session by giving the message that
"Our identity is not defined by the majoritarian view or the assertion of one homogenized religion or cultural history. It is defined by the precise opposite that we have no such singularity. The only identity we have is to be Indian in this republic complete with conflicts of forever unresolved contradictions never answered and the only unity to which we can hue without risking any othering is our constitution".