The Constitution and Hindu nationalists: Radicals, not Conservatives

India’s political landscape has changed radically in the past few years. The legal landscape appears to be on the cusp of radical change, too -- evident, most recently, from Bibek Debroy’s suggestion of a new constitution for India.

The breakneck speed at which the ruling elite of the day seeks to effect change -- legal, political, and social -- highlights the disruptive impulse underlying its politics and the ideology that drives its groundwork: Hindu nationalism. The Indian Right seeks, essentially, not to conserve but to resurrect: resurrect a new order, removed, as far as possible, from the past. The Hindu nationalist movement has historically disputed the Constitution. Debroy’s suggestion is, in comparison, subtler. It ostensibly seeks to discredit the institutions we have inherited from the Raj. This forces one to take stock of the philosophy that informs this suggestion.

The Hindu nationalist project is not a conservative project. Debroy’s suggestion, coupled with the support it generated among the supporters of the present regime, attests to this thesis. As such, conservatism is a label that must not apply to Hindu nationalism, for it is mostly an insurrectionary idea. There might be such a thing as Indian conservatism, but the Hindu-nationalist Right, far from representing it, resists it.

Conservatism believes that individuals, communities, and societies evolve over time. It is suspicious, in fact dismissive, of utopias. Central to the enlightenment project of the 18th century was the celebration of reason over authority and tradition. Its thinkers -- mostly liberals -- believed that ethical and political principles should be grounded in reason, rather than authority and tradition.

Conservatives criticised this position. They argued that liberals make a utopian exaggeration of theoretical reason. Conservatives believed in what they regarded as experience, rather than reason. Existing institutions, they argued, embody the practical wisdom of past generations passed down in culture. This wisdom is not always articulable theoretically. In fact, it may sometimes take the form of what is pejoratively called ‘prejudice’. But prejudice is not to be discarded without enquiry. There is subtle and latent wisdom even in prejudice that comes from the trials and errors of generations preceding us.

This may sound revolting to our modern sensibilities, but conservative philosophers always make a fine and sound distinction between prejudice and its crude, bigoted forms. Prejudice is not necessarily rejection of reason or irrationality, instead it is pre-judgement. As Russell Kirk said, it is the answer supplied by intuition when one does not have the required knowledge to arrive at a decision based on pure reason. Thus, conservatism opposes attempts to unshackle institutions that have evolved over a long period of time.

Debroy thinks that we need a new constitution because the present one is a colonial legacy. He is not the first to slap the Constitution with that charge. It is not, however, clear what he and others in his pantheon mean by colonial legacy -- in part, because they don’t attempt to explain it.

The Constitution does borrow from the Government of India Act of 1935, just as it departs from it no less substantially. Why should any good conservative mind that? It suggests that the framers of the Constitution understood the importance of the process of social learning and did not overthrow existing institutions. The emphasis was on gradualism and learning from experience. Embracing the better aspects of British rule was indeed a modest conservative position.

Why jettison, and not preserve, the good that we inherited from the British? The classical rule of law and due process doctrines are British inheritances and have, by all accounts, served us well.

The second sense in which the expression ‘colonial legacy’ may be used is to signify that the Constitution reveals colonial continuity rather than a forward-looking and progressive rupture. This charge has been debunked by scholars starting with the grand biographer of the Indian Constitution, Granville Austin -- whom Prime Minister Narendra Modi approvingly quoted in parliament in 2015 as saying, “The Indian Constitution is a social document.”

More recently, scholars such as Madhav Khosla have also underlined the aspirational and normative character of the Constitution. Debroy’s account snubs the constitutional moment by de-emphasising the historical ruptures that the founding moment embodies.

Even assuming the charge of colonial legacy to be true, one fails to understand why the Constitution should be replaced. Non-lawyers may not appreciate it fully, but the law is a very creative enterprise. It understands that if rules are too strict and cannot be deviated from, the available options before the rule-subject (as well as the rule-giver) would be either conformity or rebellion. It, therefore, presents amendment as the conservative middle path. Instead of indiscriminate and wholesale change, the legislature can tweak the law to facilitate the desired outcome.

If not the legislature, the courts can do so by interpretation, a more conservative tool than amendment. Interpretation folds back into the practice, altering its shape. The new shape encourages further reinterpretation. But each step in the progression is interpretative of what the last achieved. Thus, the change is slow, gradual, and evolutionary. The judge-made common law which we follow in this country to a large extent is, to borrow Jerry Rao’s words, a brilliant conservative tract by itself. And as much as Debroy and others oppose the ‘basic structure doctrine’, it was a result of a long litigious battle starting with Shankari Prasad in 1951 and culminating in Keshavananda Bharti two decades later. 

Furthermore, the doctrine has been most sparingly applied by our courts. The basic structure doctrine has not once been used to strike down a government policy of significance. The attack on the Constitution and its basic structure is, therefore, entirely misplaced. Debroy must explain what prevents the present government from undertaking mass de-nationalisation of State enterprises -- a front on which the government he advises has performed poorly? By no stretch of imagination can he blame the Constitution for that. Truth is,  no significant economic reform requires replacing the Constitution; at most, amendments may be needed.

The gradual process of British political reform that started in 1688 was more effective than the French Revolution because the former’s gradual nature made it more durable. What justifies the need for constitutions to possess lasting endurance? An enduring constitution helps prevent hasty revisions based on temporary, fleeting circumstances. Needless to say, they can accommodate changes through amendments to reflect evolving values. There is no indication that amendments per se are ineffective; more often than not, it’s the reluctance of the political executive to imbue them with dynamism. The unfulfilled promise of the 73rd and 74th Amendments presents a good example. 

Not only liberals, but conservatives too have a duty to not let the government lead the country down a destructive Jacobin path.

(The writer is a student at NLSIU, Bengaluru)