~ By Kanu Agarwal

Abstract

The following article discusses the important parameters of State control over Hindu religious and charitable institutions. The first part examines the Constitutional provisions with regard to the Freedom of Religion in India and provides a brief outline of the constitutional jurisprudence surrounding the issue and the major principles emanating from it. The second part analyses the degree and extent of State control of Hindu institutions in the backdrop of development of the doctrine of essentiality. The third part particularly deals with the reformative approach of the State and the Courts. The final part summaries the Constitutional position and makes recommendations for the future.

I. Constitutional Provisions

Article 25 of the Constitution of India (“Constitution”)[2] makes the freedom of conscience and the right to profess, practice and propagate religion subject to public order, morality and health and also to the other provisions of Part III of the Constitution. Article 26 of the Constitution[3], confers on every religious denomination, the right to manage their own affairs in matters of religion, and administer properties as per the law. The Constitution, being a verbose document, weaves a complex fabric between religious freedoms and the State’s  power to regulate them. The playground for the exercise of these freedoms is created between the degree of State regulation and the extent of the fundamental right to religious freedom.

The Constituent Assembly, intentionally and precisely, elevated the freedom of conscience and the freedom of religion to a fundamental right. The expression of these freedoms is not limited to just an inward belief in a set of theological or cultural values, but it extends to the outward expression and the acts done in pursuance of profession, practice and propagation of the beliefs. The Constitution consciously omits to create a wall separating the State and religion, in consonance with the positive brand of secularism established through the constitutional setup.

In terms of the simple legal interpretation of the Articles 25 and 26, it is to be noted that Article 25 is a freedom allocated to each and every citizen of India as well as any person residing within the country. To the contrary, the freedoms for acquisition, establishment, management and administration of religious bodies are enjoyed by the various ‘denominations’ or groups or communities within religious folds. Therefore, the very nature of the right guaranteed within these Articles differs and a harmonious construction of the two would be necessary.

Further, the denominational right enshrined under Article 26 puts Hindu temples at two different footings constitutionally, one, being institutions of public character and the other being specialized denominational institutions. This differentiation is further accentuated through the language of Article 25(2)(b) wherein ‘Hindu religious institutions of a public character’ were characterized under a special proviso. Constitutionally, the obvious language and the nature of ‘public’ Hindu temples, makes them subject to a much greater degree of State control and intervention. The Supreme Court’s approach with regard to denominational right has been inconsistent, wherein the State’s attempts at intervening in the functioning of denominational Temples has been held to be constitutional.

Lastly, while freedom of religion is subject to the other provisions of Part III of the Constitution (as per Article 25), the framers consciously omitted the said proviso from Article 26. The nature of freedoms prescribed within the two Articles is different, as Article 25 extends freedom to a person in the capacity of an individual, whereas Article 26 extends freedom to a community/ denomination. For instance, even if the Jain practice of Santhara[4] is held to be essential to the practice of the religion, it might be subject to the fundamental right of life and personal liberty guaranteed under Article 21, whereas the appointment of religious heads as per religious doctrines of a denomination will not be subject to the principles of non-discrimination enshrined under Articles 14, 15 and 16. Unfortunately, the Indian Courts have consistently treated Articles 25 and 26 at par with the provisions of Part III of the Constitution, overlooking the significance of the unequivocal constitutional omission.[5]

II. Degree of State Control

1. Essentiality Doctrine

The degree of freedom over religious institutions is couched within the construct of Article 26(b), which provides freedom to every denomination ‘to manage its own affairs in the matters of religion’. The phrase ‘in the matters of religion’ has been interpreted by the Courts in a restrictive and linear fashion, resulting in the restriction of the freedom to manage the affairs of a religious institution. To determine the extent of the religious freedoms, the Supreme Court has expounded the theory of the essentiality, i.e. limiting the religious freedoms to matters essential to the practice of the religion/ denomination.

The birth of this test has been somewhat wrongly attributed to a speech by Dr. Ambedkar in the Constituent Assembly:

“The religious conceptions in this country are so vast that they cover every aspect of life, from birth to death. There is nothing which is not religion and if personal law is to be saved, I am sure about it that in social matters we will come to a standstill. I do not think it is possible to accept a position of that sort. There is nothing extraordinary in saying that we ought to strive hereafter to limit the definition of religion in such a manner that we shall not extend beyond beliefs and such rituals as may be connected with ceremonials which are essentially religious.”[6]

It is to be noted that the above-mentioned excerpt clearly refers to the need to save the secular nature of personal laws and civil rights in the country and does not shed light on the denominational right of religious institutions or the personal affirmative right to free profession of religious practices. Be that as it may, as per the current position of the law, the final arbiter of the division of any activity into religious or secular function would be the Court, wherein it would examine the theological and the cultural basis of such activity within the denomination to ascertain if such function would be essential to the practices of the denomination.

It is to be noted that in some judgments prior to the Shirur Mutt case, the nature of definition of ‘religious practice’ was settled by the tenets of the religion and would not necessarily require a judicial enquiry of the tenets itself. In other jurisdictions, the courts only enquire whether a particular practice is ‘sincerely held’ by its adherent, a question that requires them to go into the adherent’s past behaviour and conduct, but not into the substantive nature of the practice itself. It is to be noted that while the freedom religion can be subject to regulations in most countries, the Indian approach to religious freedoms differs from most modern democracies. In the exercise of the power to regulate, the Indian Courts sit in judgment over the professed views of the adherents of the religion and to determine whether the practice is warranted by the religion or not, essentially carrying out a function which is ostensibly not their core function.[7] The genesis of the American separation of the Church and the State is derived from the Federalist Papers, wherein Madison said that the Constitution of the United States of America had erected a wall demarcating the “City of God” and the “City of Man”. This approach estops the American Courts from taking any approach like the essentiality doctrine to matters concerning the free practice of religion and administration of religious institutions.

The applicability of the essentiality principle to the varied denominations not having a public character is aimed at preserving the distinctive and diverse nature of communities within the Hindu fold. A law which takes away the right of administration from the hands of a religious denomination altogether and vests it in any other authority would amount to a violation of the right guaranteed under Clause (b) of Article 26[8] and the ‘Basic Structure’ doctrine[9]. Therefore, the legislature cannot take away the right of a denomination to manage their own affairs in matters of religion, whereas the right to acquire, own and administer property, which are not matters of religion could be regulated by valid laws. The logical outcome of this position is that all functions, which are seen to be outside the purview of ‘essential’ religious affairs, are deemed to be secular functions amenable to state control. In contrast, in the United States of America[10] and Australia[11], the freedom of religion was declared in absolute terms, and the courts had to evolve exceptions to that freedom, as opposed to the Indian Constitution, which specifically enshrines limits in the exercise of freedoms under Articles 25 and 26.[12]

The Supreme Court, in the Shirur Mutt case, created special conditions for ‘denominations’ with cogent doctrines of establishment, in line with diversity and the complexity of Hindu institutions. Further, as per Article 26(d), it is the fundamental right of a religious denomination or its adherents to administer their properties in accordance with law; and law, therefore, must leave the right of administration to the religious denomination itself, subject to such restrictions and regulations as it might choose to impose. The Indian Courts ascertain the freedoms exercised by every denomination by a thorough analysis and interpretation of the theology of that particular denomination. This unique and somewhat strange function of the Indian Courts is the central differentiating factor with respect to other jurisdictions. Previously, the Court has also extended the independence of the essential functions to the acts done in pursuance of the said essential functions.[13] For instance, if the tenets of any religious sect of the Hindus prescribe that offerings of food should be given to the idol at particular hours of the day or that the periodical ceremonies should be performed in a certain way, at certain periods of the year or that there should be daily recital of sacred texts or oblations to the sacred fire, that would constitute religious practice.[14]

2. Reforms and Essentiality

A recurring theme, which enables the State to make law, is the need for social welfare and reform, provided under Article 25(2)(b). The test of essentiality being of judicial origin, also applies to regulate the constitutionality of reform legislations within the religious and cultural sphere. In the Sardar Syedna case[15], the Court had held that Article 25(2), which allowed the State to pass reform legislation, “is intended to save the validity only of those laws which do not invade the basic and essential practices of religion which are guaranteed by the operative portion of Art. 25(1).” This approach not only rendered an Act enacted for social reform under Article 25(2)(b) unconstitutional but also inhibited reform of the community from within by giving legal sanction to excommunication. Such an approach handicaps the freedom of religion and conscience of a person, at an individual level. To make things worse, the Supreme Court held that mere curtailing of the legal rights of an individual, by excommunication, would not make the Act banning such practice a ‘law for social reform’ under Article 25(2)(b). Justice Sinha, in an admirable dissenting judgment in Sardar Syedna case, held that practices that directly impacted a person’s enjoyment of his civil rights that were guaranteed by law, as the power of excommunication, could not be given constitutional protection. It is to be noted that a writ petition was filed in 1986 for the review of the above case wherein the Supreme Court acknowledged Justice Sinha’s dissent and noted that a review may be permissible. The matter was further complicated as the review petition required an order for review by a bench comprising of 7 (seven) judges. The Supreme Court first settled the issue with regards to the review petition and has subsequently struggled to finally reconsider the matter expeditiously[16]. Recently, the Maharashtra legislature has enacted a law prohibiting social boycotts (which are defined in numerous ways, ranging from expulsion from the community, to obstructing regular business and social relations, to obstructing the performance of marriage) within communities. The draft bill specifically prohibits excommunication, which brings the Dawoodi Bohra judgment in contention.

Recently, an issue came up before the Supreme Court in the Sabrimala case with regard to the essential religious beliefs, pertaining to the denominational deity in a Temple. It is alleged that the deity is in his celibate phase and the entry of women within the compound during the said period of celibacy would materially impact the essential feature of such denominational temple. The Kerala High Court has previously upheld the said bar of entry of women between the ages of 10 and 50 stating that they did not constitute a “class” or a “section” of Hindus. The protection provided on the ground that women between the ages of 10 and 50 do not constitute a class or section for the purposes of Article 25(2)(b), seems to rather creative, but constitutionally untenable. The Temple texts provide that women between the ages of 10 and 50 have been grouped together by the temple authorities themselves, on the stated ground that they are likely to disturb the “celibacy” of the deity. The freedom of a denominational temple like Sabrimala with regard to the management and administration of its property should be at a higher footing, and provide much more legitimacy to the rather special nature of the rules surrounding the Temple. This elevation of religious freedoms over and above the constitutional parameters would come in direct conflict with the observations in the Adi Saiva case. Therefore, the question that the Courts need to answer must be, whether the said entry of women contravenes the essential feature of celibacy of the deity to such an extent that it would render it completely irrelevant. Further, the Courts need to understand the complex nature of the Temples in Kerala including the other denominational deities like the Attukal Temple and the Chakkulathukavu Temple, both of which provide special status of women and differentiate. The Courts further need to elaborate on the expanse of the Hindu fold and the many counter balancing and overlapping forces acting within the religious construct of the society or denominations. Differentiation on such grounds, considering the complexity of the Temples in the region, may not necessarily lead to systematic discrimination as mentioned in the language of Article 25(2)(b).

The anti-discriminatory ethos of Indian Constitution in the backdrop of the Ambedkar principles of ‘social justice’ prohibited both the State and communities from treating individuals in discriminatory ways, insofar as that discrimination blocks their access to crucial public goods, whether material or symbolic. The provisions of the Constitution specifically provided protection to laws enacted for social reform, to provide the access of religious and civil rights to all classes of citizens, considering that religion plays a central role in public life in India. It has been insightfully noted[17] that the Supreme Court has constituted “an internal level of reform” by holding that certain regressive practices do not constitute “essential” parts of a religion. This important societal and constitutional function denies certain practices constitutional protection, and also provides the Court with the power to re-characterize religion itself and create new social facts through its holdings. The legislature and the Courts, have felt this need for reform in the Hindu fold, even of the ‘essential tenets’ or ‘sincerely held’ beliefs in numerous cases. It may also be argued that there have been certain positive impacts of these measures but the concurrent curtailment of institutional/ denominational Hindu religious freedoms could have been avoided.

III.       Conclusion

The legislations with regard to reforms must be adjudged at the same constitutional footing and the State must, in true Ambedkarian spirit, endure to eradicate the numerous ‘religiously’ or ‘culturally’ sanctioned evils, which limit the exercise of civil rights of the adherents, across all communities, denominations and religions. The imbalance within seemingly secular sectors of State control has been starkly increasing and the ignorance of the State to reform the practices of other faiths is depriving the communities a valuable opportunity for reform and rejuvenation. While the contours of such reforms may represent a stiff challenge to the legislative competence of the State, the lack of political will has been the main impediment in this regard. Therefore, if a sect/ religion or denomination is to be constitutionally tested by the beliefs of that sect/ religion or denomination and not through consistent constitutional principles, the impression of a perceived bias amongst a set of followers is inevitable.

In India, due to the ever-expanding role of the State in the pre 1991 era, the State exerted an immense willingness to meddle in the affairs of Hindu institutions. The slow tinkering and expanding of the term ‘regulate’ to effectively allow control and administration is reminiscent of the expansive State approach within Indian polity in other spheres. The judicial review of essentially religious practices and the interpretation of religious doctrines have made the Courts, the custodian of religion and religious beliefs. This has also resulted in curtailing the extent of religious freedoms between different religions to different extents, which negatives the very nature of the freedoms guaranteed by Articles 25 and 26.

*The author is an advocate at the Supreme Court of India, New Delhi. The views expressed are his own. 

(This article appeared in India Foundation Journal, May-June 2016 issue.)

[1] This paper is presented at the National Seminar on Hindu Jurisprudence jointly organized by Centre for Constitutional and Legal Studies (CCLS), India Foundation and Indian Council of Philosophical Research on May 16-18, 2016 at India International Centre, New Delhi.

[2] Article 25: Freedom of conscience and free profession, practice and propagation of religion

“(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion

(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law

(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;

(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.

Explanation I: The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion

Explanation II: In sub clause (b) of clause reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.”

[3] Article 26: Freedom to manage religious affairs

“Subject to public order, morality and health, every religious denomination or any section thereof shall have the right

(a) to establish and maintain institutions for religious and charitable purposes;

(b) to manage its own affairs in matters of religion;

(c) to own and acquire movable and immovable property; and

(d) to administer such property in accordance with law.”

[4] The judgment of the Rajasthan High Court in Nikhil Soni v. Union of India & Ors., DBCWP 7414/06, has been stayed and notice has been issued by the Supreme Court in Akhil Bharat Varshiya Digamber Jain Parishad v. Union Of India And Ors., SLP (Civil) CC 15807/2015.

[5] The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, 1954 SCR 1005 (“Shirur Mutt”); E.R.J. Swami v. State of Tamil Nadu, AIR 1972 SC 1586; Seshammal and Ors. Etc. Etc. v. State of Tamil Nadu, (1972) 2 SCC 11 (“Seshammal”); Adi Saiva Sivachariyargal Nala Sangam and Ors. v. The Government of Tamil Nadu and Ors., (2016) 2 SCC 725 (“Adi Saiva”).

[6]Speech by Dr. B.R. Ambedkar on 2^nd December 1948. Accessed from : http://164.100.47.132/LssNew/constituent/vol7p18.html

[7] Jesse Cantwell v. State of Connecticut, 84 L Ed 1213 : 310 US 296 (1939); and United States v. Ballard, 88 L Ed 1148 : 322 US 78 (1943).

[8] Shirur Mutt supra.

[9] See His Holiness Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala and Anr., (1973) 4 SCC 225

[10] See the First Amendment to the Constitution of the United State of America.

[11] See Section 166 of the Australian Constitution.

[12] Nambudripad v. State of Madras, (1955) Mad. 356

[13] Shirur Mutt supra

[14] Ibid

[15] Sardar Syedna Taher Saifuddin Saheb v. Bombay, (1962) Supp. 2 S.C.R. 496

[16] Writ Petition (Civil) 740 / 1986

[17] See Gary Jeffrey Jacobsohn, The Wheel of Law: India’s Secularism in Comparative Constitutional Context, Princeton University Press (2005).

~ By Justice L. Narasimha Reddy  

By and large, not only people in general, but also many in the legal circles, perceive Hindu Law to be the one contained in the Four Enactments brought into existence by the Parliament a few years after independence i.e., the Hindu Marriage Act 1955, Hindu Succession Act, 1956, Hindu Minority and Guardianship Act, 1956, and the Hindu Adoption and Maintenance Act, 1956. That is considered to be the personal law of the people, who practice Hinduism. This, however, is not a correct perception.   If one closely analyses the subject, it emerges that the law pertaining to marriage, succession, adoption and maintenance is a small fraction of the Hindu Law that remained in force, till the invaders have brought into existence their own system of laws.  Hindu Law, as it existed then, covered many substantive facets of law, as well as a detailed and perfect procedure of adjudication.  Added to that, the entire edifice of Hindu Law rested upon the foundation of Dharma, in contradistinction to need and expediency, that constitute the basis for the English Law.  Dharma is a very wider concept and law is a small branch of it.  There is no equivalent term for Dharma in English.  In a way, it can be said that Dharma is a distilled form of ancient Indian literary wealth, that includes, the Vedas, the Smritis, the Puranas and the commentaries by the sages and the learned people.  It is such a typical and complex phenomenon that it is not amenable to any precise definition.  Whenever a concept or phenomenon is incapable of being defined, at least one can present it by way of description.  In case of Dharma, however, even description would be either inadequate or incomplete.  In his treatise, Hindu Law and usage, John D. Mayne said, “According to Hindu conception, Law, in the modern sense, was only a branch of Dharma, a word of widest import and not easily rendered into English.”  F.D. Mulla, in “Hindu Law”, observed, “Law, as understood by the Hindu, is a branch of Dharma”

Dharma not only exhorts the people to acquire qualities, such as truthfulness, non-violence, respect to the persons around, and the creation at large, compassion towards the needy, but also to desist from being greedy, dishonesty, unfaithful, etc.  In the Encyclopaedia of Hinduism, it is mentioned: “Down the ages, the word (Dharma) has been used to mean religion, law, duty, religion’s right or duty, code of conduct etc. The well-known Dharmashastras are those authored by the Sages like Gouthama, Bhoudhayana, Apastamba, and Vashista.

All of us are aware that Hinduism is one of the oldest civilisations in the world.  Over the millennia, the Sages and Rishies have presented to the mankind, the knowledge of highest order, even according to the modern standards; in almost all the fields; be it, Chemistry, Alchemy, Medicine, Astrology, Philosophy, Economics, Astronomy, Political Science, Spirituality, Environmental Science, Sculpture, Architecture, etc.  The Sanskrit language in which all these scriptures were written was almost kept out of use, during the alien rule, spread over about 1000 years.  It is only in certain cases that the private agencies preserved the literature and continued learning.  In certain other cases, countries like Germany were benefited by undertaking study of some of the scriptures and the Sanskrit language.  The greatness of the ancient India’s contribution to various fields of study can be illustrated by taking one or two examples.

For the subject of Anatomy, in the undergraduate courses of medicine, almost all over the world, the text book is the one, authored by “Grey”.  The Chapter pertaining to “Plastic Surgery” in that book commences with a sentence, which reads ‘the First Plastic Surgery was conducted by Sushrutha’.  Albert Einstein, the famous Scientist acknowledged that but for the invention of ‘Zero’ in ancient India,
the progress in the modern science would not have been possible.  After conducting a detailed research, one Mr. Emmanuel found that the quadratic equation, whose invention was attributed to Sir Isaac Newton, has, in fact, originated in Kerala.  There are hundreds of such examples.  It is not without reason that the renowned companies such as, Google are celebrating the centenary of Sreenivasa Ramanujam, the Great Mathematician, who has just provided the taste of ancient Mathematics to the western world.

The achievement of ancient India, in the field of law is almost on the same lines.  During the Vedic period, the life of citizens used to be guided by the practices ordained in them.  With the passage of time, the necessity to prepare a code of conduct based on the high values, including those enunciated in Vedas was felt.  Such codified forms came to be known as Smritis.  The first Smriti was handed out to the humanity, by Manu.  Now-a-days, we find certain organisations and individuals exhibiting their utmost contempt towards Sage Manu and his works, in the name of progressive thinking and modern culture.  It is relevant to mention here that during the Mohammedan’s Rule, excepting the fields of Criminal Law and Personal Law, of those who do not practice in Hinduism, Hindu Law continued to be applied in the legal systems.  Similarly, during the British Rule also, principles of Hindu Law were never disregarded.  On the other hand, they were viewed with utmost respect and British Judges, particularly, those in the High Courts in India and Privy Council in England made every effort, to understand and analyse them.  Almost 50% of the judgments of the Privy Council, during the British Rule dealt with the principles of Hindu Law.  Today, we don’t find any parallel to them.  For instance, in Sri Bulusu Gurulingaswami vs. Sri Bulusu Ramalakshmamma, XXVI Indian Appeal (1898 and 1899), the Privy Council dealt with the question as to whether the only son of a couple can be given in adoption.  Lord Hob House took note of all the Smritis and commentaries on the subject and he commenced his discussion by observing, “the most Revered of all the Rishies or Sages is Manu….”

The discussion undertaken by the Privy Council on a question, which may appear in the so-called modern times to be trivial, is indeed astonishing.  Copious reference was made to the Manu Smriti, Dattaka Meemamsa, commentaries by Sages and modern jurists and views of judges in various cases.

“No distress existing, the giver commits a sin on account of the prohibition”.  If then the giver commits a sin, the taker who enables him to do it cannot be free from sin; and if the commission of a sin makes the transaction void in law, there can be no gift and consequently no adoption.  And yet nobody contends for the legal force of this prohibition.  It does not appear that in cases of adoption any inquiry is ever made about the distress of the natural father.”

As regards the law that was being enforced during British Rule, the Bench observed: “…The British rulers of India have in few things been more careful, than in avoiding interference with the religious tenets of the Indian peoples.”

The reason underlying the respect shown to such principles was; in the words of the same learned Judge, “…They (the tenets) provide for the peace and stability of families by imposing limits on attempts to disturb the possession of property and the personal legal status of individuals.” In contrast, in the name of so-called modernism and progressive thinking, we do not hesitate to brand any ancient principle of law or tenet has to retrograde or to condemn it.

The efforts made by the Judges to know the law which is mostly in Sanskrit, can be gauged from the following passage of the same judgment: “Their Lordships have, however, one advantage over their predecessors in these inquiries.  The greater attention paid of late years to the study of Sanskrit has brought with it more translations of the sacred Hindu books, and closer examinations of texts previously translated.  And in the Allahabad case especially, the appellants’ side was argued in the High Court by Mr. Banerjee, who is stated by the Court to be familiar with Sanskrit, and it is the subject of a very elaborate judgment by Knox J., who is a student of Sanskrit, and, as he tells us, has paid special attention to the books of Manu and Vasishtha.”  Many so-called legal luminaries of the modern time would have pitied Justice Knox, for his wasting time in learning Sanskrit and reading books by Manu and Vasishtha.

As mentioned earlier, after Manu, several sages bestowed their attention to the codification of the law.  The prominent among such Smritis are those of Yagyavalkya and Katyayana.  Yagyavalkya himself referred to as many as 20 Sages from whose work, he took assistance.  In addition to the Smritis, treatises like Dattaka Meemamsa, Vyavahara Chandrika, Antakshara Dayabhaga, Vivadha Chintamani, to mention a few, have come into existence.  Broadly, four schools, viz., Mithila School, The Bombay School, the Madras School and the Bengal School represented the Hindu Law, with slight difference as to approach on certain aspects in the respective areas.

The greatness and perfection in approach in these Smritis and other ancient texts on law is in no way comparable to the laws that existed during the subsequent periods.  For instance, in any and every legal system, adjudication is the principal activity and the outcome of the adjudication is the judgment.  To my knowledge there does not exist any precise definition of judgment, either in procedural or in substantive laws, particularly the laws that are in force in India.  In his Dharmakosa,  Sage Vyasa defined the judgment in the following verse:

Purvothare kriyapadam

Pramanam tat pareekshanam

Nigadam smrithi vakyancha

Yada sabhyam Vinischite

Jayapatrabhilekhayet

It means that a judgment should contain the gist of

1. a) purva, (purva paksha e. plaint),
2. b) uttare (uttarapaksha i.e. the statement),
3. c) kriyapadam (issues),
4. d) pramanam (evidence),
5. e) tatparikshanam (its analysis),
6. f) nigadam (argument of an advocate),
7. g) smriti vakya (relevant provisions of law),
8. h) sabhaya vinischitam (opinion of the judges),
9. i) Jayapatraha (Royal seal)

           One cannot even substitute a syllable, to such a perfect definition of an important stage in the adjudication.

Though, people talk of honesty and integrity of judges, day in and day out, we do not find any specific code of conduct in the general law.  In Shukraneethi, a sloka depicts how an adjudication gets adversely effected or ceases to be impartial.  He says,

Pakshapathadhiropasya karananicha panchavye

raga lobha bhaya dvesha vadhinocha rahashrutani.

It means that there are five reasons, on account of which a Judge ceases to be impartial.  They are raga (affection), lobha (Greed), bhaya (fear), dvesha (hatred), vadinocha rahashrutani, (discussing with the party to the proceedings secretly).  Every meticulous aspect regarding the manner in which the proceedings must be conducted in the Court, were covered.

The enunciation of a principle or theorem i.e. sutra is common to all fields of study.  A sutra almost resembles a definition.  Even in modern field of study, we lack the definition of a theorem or principle.  In one of the ancient works, the characteristics of the sutra are enunciated in a sloka which reads:

Alpaksharam Asangdhigdam

Saravath Viswathomukam

Asthobhana anavadhyancha sutram sutro vidhuhu.

According to this, a sutra is the one which is,

1. a) Alpaksharam (precise), b) Asangdhigdam (unequivocal),
   c) Saravath Viswathomukam (it carries the same meaning everywhere), d) Asthobha (it should not be the result of theft i.e. plagiarism), e) Anavadhyancha (its text or context should not be a prohibited one).

In the field of interpretation Sage Jaimini made substantial contribution through his work on Mimamsa.  For example, he said that if a provision just gives a command, it is ‘Vidhi’ and is binding whereas, if the text proceeds to furnish the reason, or basis for the command, it is ‘Arthavada’ and does not command the same binding force as does the ‘Vidhi’.

What is mentioned above are only miniscule of the treasure of great knowledge.  An eminent Indian jurist like Nani Palkhiwala paid encomiums to rich cultural heritage of ancient India.

For one reason or the other, we deprived not only to ourselves, but also to the rest of the world, the benefit of great ancient works in the field of law, on account of our indifference or ignorance.  There is a general saying that the easiest way to get recognition as an ‘intellectual’ in India, is to denigrate anything which is associated with the ancient Indian culture.  Field of law has no exception.  If an advocate refers to ancient texts in his argument, not only the Judge but also those sitting in the Court would either laugh at him or at least pity him for not being progressive.  On the other hand, an advocate can easily impress the Court by taking the names of Lord Caterpillar or Lord Butterfly in support of his proposition and out of fear of being branded as ignorant, one would not even ask as to whether there existed Judges with those names.

John D. Mayne, the author of the most popular treatise on Hindu Law had appeared in vast number of cases pertaining to Hindu Law in the Privy Council and other superior courts.  In the introduction to the first edition of his treatise written in 1878, he observed,

“I cannot conclude without expressing my painful consciousness of disadvantage under which I have laboured from my ignorance of Sanskrit.  This has made me completely dependant on translated works.  A real satisfactory treatise on Hindu Law would require its author to be equally learned as a lawyer and an Orientalist….  Hitherto, unfortunately those who have possessed the necessary qualifications have wanted either the inclination or the time.  The lawyers have not been Orientalists, and the Orientalists have not been lawyers.”

 One would have expected the situation to improve after independence.  Unfortunately it has deteriorated, so much so, that the law makers, do not have inclination even to look into translations,
let alone, the original works.  We have turned blind eye to our great treasure and the result is that our laws, particularly Hindu Law as it existed now is the result of the knee-jerk reaction of someone without even showing any inclination to know the background of the concept, which is readily tinkered with.  Just as our educational system, which was the most ideal in ancient times has been hijacked and almost defaced by certain vested interests, Hindu Law was also given the roughest if not wildest treatment and was reduced almost to some precepts of convenience.  If Hindu Law in its complete form was a perfect Vehicle with Sophisticated mechanism, what is handed out by the Parliament, after independence, is just four wheels, detached from the Vehicle.  Which the wheels have nothing to propel or drive them, the Engine, chassis and body remained idle for want of wheels.

If one intends to resurrect the glory of ancient Indian Law, the task is commendable, but very difficult and challenging.  Fortunately, for us, there is valuable material available, be it, in Library at Tanjore (Tamil Nadu), or P.B. Kane Library at Pune.  Scholars of high order are also available.  One has only to put them together and get the work done.  However, the challenge in this regard is worth being accepted.
I hope and trust that the outcome of the national seminar on Hindu Law would lead to tangible steps.

[1] It is the text of the key-note address delivered on 16^th May, 2016 at the National Seminar on Hindu Jurisprudence jointly organized by Centre for Constitutional and Legal Studies (CCLS), India Foundation and Indian Council of Philosophical Research.

Justice L. Narasimha Reddy is a former Chief Justice of Patna High Court. The views expressed are his own. 

(This article appeared in India Foundation Journal, May-June 2016 issue.)

~ By Satyendra Tripathi

When the world is on the edge due to the challenge of climate change, it becomes vital for nations to come together to understand its consequences and mitigate it with utmost priority. It is due to this that lifestyles, sustainability, and other factors that contribute to mitigating climate change have attracted a lot of attention in recent times.

Today climate change is acknowledged as one of the greatest challenges facing the global sustainability. The global mean temperatures have already risen by about 1⁰C. Coinciding with the global temperature rise, Indian landmass has witnessed rapid warming in the last three decades like increase in heat waves, increase in precipitation rates. Further, climate data records have suggested an increase in the intensity and frequency of extreme events over India in the last five decades. Several researchers have noted an increasing trend in observed frequency of heavy precipitation events in different parts of India, and a decreasing trend in light rainfall events. A study by Fischer and Knutti concludes that the observed average global warming so far is responsible for three fourth (75%) of the daily heat extremes and 18% of the precipitation extremes. Thus, it is clear that the observed global warming of even 1°C is already impacting the physical environment and production systems in India and in other parts of the World. It is widely agreed by both the science and policy communities that the rise in global temperatures should not be allowed to exceed the dangerous threshold of 2°C, to avoid damage to sustained food production and ecosystem services. Fischer and Knutti further suggest that for a 2°C of warming the fraction of rainfall extremes attributable to human influence increases to a devastating 40% from the present 18%.

In December, 2015, 196 Parties to the United Nations Framework Convention on Climate Change (UNFCCC) adopted the Paris Agreement at the 21^st Conference of Parties (COP21) in Paris, France. The Paris Agreement adopted the ambitious goal of limiting warming to below 2°C and also, for the first time, agreed to pursue efforts to hold warming at 1.5°C. In line with the Paris Agreement till date 189 countries accounting for about 99% of the global GHG emissions have submitted their climate pledges to UNFCCC. India took a lead in the global effort to limit warming to safe levels by submitting a very ambitious climate pledge to UNFCCC.  India pledged:

• To reduce the emissions intensity of its GDP by 33 to 35 percent by 2030 from 2005 level
• To achieve about 40 percent cumulative electric power installed capacity from non-fossil fuel based energy resources by 2030 with the help of transfer of technology and low cost international finance including from Green Climate Fund (GCF).
• To create an additional carbon sink of 2.5 to 3 billion tonnes of CO₂ equivalent through additional forest and tree cover by 2030

India’s climate pledge is in line with India’s long history and traditions of harmonious co-existence between human beings and nature. It is evidence that Indians have traditionally regarded fauna and flora of the globe as ‘part of their family’ and sustainability is part of Indian heritage and manifests itself in lifestyle and traditional practices. Indians represent a culture that calls our planet Mother Earth. Indian traditional knowledge, in fact, relates nature to the Gods, ensuring sustainable conservation practices. The concept of Dharma is pivotal to ancient modes of thinking and of living right from the dawn of human civilization. The very purpose of Dharma is to ensure sustainability of living beings and all those that contribute fundamentally to the cause of sustainability. Its philosophical bonding with nature and society are the guiding principle for harmonious societal awareness and exploration of shared values to strengthen co-existence.

Recent research of world’s top climate change scientists at the Indian Institute of Science, Bangalore and Grantham Institute at Imperial College London clearly demonstrate that culture, tradition and lifestyle choices are strongly linked with climate change mitigation (and adaptation). According to Dr Woods of Imperial College London, “Our analysis clearly highlights that we can meet our 2°C target while maintaining good lifestyles and a prosperous economy – but the FT Climate Calculator tells us that to be successful the world needs to act now and transform the technologies, knowledge base and fuels we use and make smarter use of our land,”. Culture and traditional practices help the in climate change mitigation in the following ways, as simulated by the Global Calculator: –

1. Life-style choices of:

• Travel (passenger distance, freight distance, mode, occupancy, car ownership),
• Homes (building size, temperature and hot water use, lighting and appliances, products lifespan and reuse, recycling), and
• Diets (calories consumed, quantity of meat, type of meat)

      2. Land-use choices and efficiency:

• afforestation, reforestation, deforestation and forest degradation, sacred groves, and other forestry related choices
• land-use efficiency

3. Demographics

• total population, population growth rates
• urban vs. rural population

Global mean temperature has already risen to 0.5-1^oC compared to pre-industrial time. This warming already has adversely impact on climate, natural ecosystem, food production and hydrology. Many extreme events in recent past in Europe, Asia, North America and Africa, including the recent floods patterns in Chennai, Bombay, can potentially be linked to climate change. Also, recent heat wave impacts in northern parts of India cannot be ignored.  Therefore, there is a need for serious adaptation even to the ongoing impacts of climate change.

As things stand at present, various adaptation and mitigation measures are not on appropriate paths. Steady warming levels will have severe implications for food production, water resources and climate extremes. Thus, India where more than 700 million people mostly depending on climate sensitive sectors such as agriculture, fishery, forests, livestock etc., will be adversely impacted by climate impact. India will soon need a strategy to build resilience in ecosystems and in food production systems.

At the same time, traditional Indian beliefs and lifestyle can be potential elements could be adopted as one of practices of mitigating climate change. In addition, India should be prepared with enabling policies and institutions to benefit from the Global climate financial mechanism to promote transformation to sustainable energy and climate resilient development.

Satyendra Tripathi is a Research Fellow with India Foundation. The views expressed are his own. 

~ By Shakti Sinha

Most political commentators, on the eve of and immediately after Narendra Modi’s assumption of office as Prime Minister were convinced that India-US ties would suffer. The key assumption was that the US’ denial of visa to Mr Modi in 2005, and refusal to engage with him almost till the last, would weigh heavily on him. This view was not limited to Indians only but quite widespread globally. For example, on the eve of Modi’s imminent victory, the hard-line Chinese Communist party outlet Global Times prophesised that the West, which had got used to a weak central government in India, was ‘afraid that a strongman like Vladimir Putin will make India really strong and build the country into a challenger to the West economically and politically.’ Two years down the road as Modi travels to the US for what would be the last State Visit of the Obama presidency, critics attack Modi as abandoning India’s non-alignment and ‘strategic autonomy’ and of becoming a junior partner in efforts to confront China. If the earlier fears, and hopes, of Indo-US relations nose-diving were completely misplaced, the criticism of India becoming anybody’s junior partner are equally off the mark.

A close study of how relations between India and the USA, what Denis Kux in the context of the Cold War termed ‘estranged democracies’ have lately evolved would explain why commentators and critics are so often caught flat-footed. A mature country’s policies are not driven by emotions or personal idiosyncrasies – it would be extremely absurd that a staunch believer in India’s destiny as Modi is would let the treatment, however unfair, given to him personally dictate how he as the Prime Minister of a potential super-power would interact with the US. What a country perceives its interests to be guides its policies and behaviour. Modi’s entire campaign was about accelerating India’s national development and harnessing the potential of the Indian people so that the country would take its rightful place on the global high table. The second point to note is that interests do change with time, and external developments also impact on policy formulation. It is this placing of a country’s interests in a changing external environment that determines how a country responds to a given situation.

Since the 1980s, India was attempting to re-set its relations with the US, with varying success. At different times, Prime Ministers including Rajiv Gandhi, Narasimha Rao, Vajpayee and Manmohan Singh and US Presidents Reagan, Clinton and Obama brought new thinking and forward movement; however the momentum could not be sustained and had hit a plateau since 2009, with the Devyani Khobargade episode representing a nadir.  There was general disappointment that the potential that a partnership between the two countries promised would remain a ‘promise’ only. It is not easy for countries to move away from historically-held positions, with bureaucracies particularly wary of straying from the fixed path. It must also be remembered that the generation of the 1960’s-70’s came of age in an India that was desperately poor, dependent of food aid and deeply suspicious of the world which they he

~ By N K Singh

Broadly speaking, Intellectual Property Rights (IPR) refers to “the general term for the assignment of property rights through patents, copyrights and trademarks. These property rights allow the holder to exercise a monopoly on the use of the item for a specified period” (OECD). There are varied interpretations but the key components need to harmonize the incentive for innovation, exploiting frontiers of knowledge with the need to harness these applications for the wider benefit of users, particularly in enhancing human welfare. The broad features of this harmonizing process are embedded in the WTO agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS).

India and the USA are two of the largest democracies in the world.  As a result, the shared values of democracy have contributed to strong bilateral relations between the two countries. The bilateral Global Strategic Partnership between the countries got a boost through the India-US Delhi Declaration of Friendship released in January 2015. The declaration states that each step taken to strengthen bilateral ties shall shape international security along with regional and global peace. Further, India’s Act East Policy and USA’s Pivot to Asia Policy together provide immense opportunities for both countries as well as Asia-Pacific countries to strengthen regional ties. Therefore, there exists immense scope and ground for further mutual co-operation and stronger bilateral ties between India and the USA.

The Indo-US relationship has undergone tectonic shifts, both in deepening and diversifying its engagements. This is reflected in the significantly higher levels of trade flows (bilateral trade between India and USA stands at around $100 billion), direct foreign investment, collaboration in the field of intellectual attainments between educational institutions, Research & Development, improvements in competitiveness of manufacturing and enhancing agricultural outcomes. The US leadership in the cutting-edge of knowledge and innovation has unique attributes. In recent years, the strategic partnership between India and the US has broadened from defence, collaboration, purchases and partnerships in multiple ways. It is the endeavour of the Modi government to deepen this relationship and ameliorate persistent and subsisting constraints. One area which the US perceives as a continued dampener, if not an irritation, are issues connected with protection of IPR.

In the area of Intellectual Property Rights (IPR), both India and the United States are compliant with the WTO TRIPS Agreement. India amended its Indian Patents Act 1970, in order to better align its laws in line with the TRIPS Agreement. The most important amendment related to the introduction of product patents for 20 years, including the pharmaceutical products. On the other hand, the United States also amended its Patent Act in several respects for compliance with its obligations under TRIPS. The most important among them related to determining the first to invent in priority disputes.

Despite the compliance of their individual patent laws with the TRIPS rules, differences arise on account of their differing views on the approach to IPR protection. In 2014, India remained on the Priority Watch List of the “Special 301” annual report released by the office of the US Trade Representative (USTR). Inadequate IPR protection and enforcement in several areas, including pharmaceuticals, IT and publishing, were alleged as the reasons for this. In a development that disappointed India, even in its 2015 Special 301 Report, the US once again put India on the ‘Priority Watch List’. According to the USTR, India and China are major sources of counterfeit pharmaceuticals shipped to the US. Its 2014 report alleged that up to 20% of the drugs sold in the Indian market are counterfeit, putting patient health and safety at high risk. As India is one of the largest sources of generic drugs globally (exporting pharma products worth $15 billion annually to over 200 countries), such allegations could adversely affect the country’s image globally.  The report highlighted issues with India’s patent regime, trade secrets protection, digital and physical copyright piracy as well as IPR protection. To address these issues, the USTR also announced plans to undertake “out-of-cycle” review of India in 2014.^[1] However, the report also acknowledged significant improvements in India’s IPR legal framework and enforcement system. Further, despite having been put on the priority list India was not designated a priority watch country. Being declared a priority watch country could have propelled penal action against India. On the other hand, the 2015 report has noted India’s recent conscious efforts to create new channels of engagement. It expects these efforts to bring about “substantive and measurable improvements” in the country’s IPR regime in order to benefit multiple benefits for creative and innovative industries.

Following the first amendment of its patent law in 2005, India reintroduced product patents for pharmaceuticals, food and chemicals. Patent disputes between India and the United States are most pronounced in the Pharmaceuticals sector.  From 2012 onwards, India has either denied or revoked patents for certain foreign drugs which failed to meet its “enhanced efficiency” requirement for patentability. As per India, this requirement is crucial for protecting against the companies that seek to extend the life of their patents by making minor modifications of their patented products to (called “evergreening”). In addition to this, compulsory licenses for pharmaceuticals, patented products and other products have been either issued or promoted (under its National Manufacturing Policy) by Indian government. The United States, on the other hand, believes that the requirement of “enhanced efficiency” is likely to have the effect of limiting the “patentability of potentially beneficial innovations…”. This could include drugs with “fewer side effects, decreased toxicity, improved delivery systems, or temperature or storage stability.”  Section 3(d) of India’s Patent Law (which denies patents for incremental innovations to avoid ‘ever-greening of patents) is thus a contentious bilateral IPR issue.

In 2012, India’s patent office allowed Hyderabad-based Natco Pharma to make generic version of German pharmaceutical company Bayer’s cancer drug Nexavar. Bayer lost its appeal in the Supreme Court in December in 2013. Also, in the same year, the Supreme Court denied a patent to Swiss MNC Novartis for its cancer drug Glivec. It is worth noting here that in an editorial, the Boston Globe found the Supreme Court correct in being skeptical of the “evergreening” of the patent. It went so far as to suggest that the US needs to tighten its rules concerning patenting changes to drugs. Another US drug giant, Pfizer, is also involved in patent-related disputes in India.

Apart from pharmaceuticals, other areas of dispute relate to copyright violations in publishing and cinema and software piracy. A report by Business Software Alliance (BSA) estimates that India’s piracy level stood at 60%, as the country recorded installation of $2.9 billion worth of unlicensed software in 2013. The revenues of companies get adversely affected as a result of such volumes of piracy. These issues have been discussed several times between the two countries. The Pharmaceutical Research and Manufacturers of America (PhRMA) has repeatedly claimed that India’s IPR laws do not comply with TRIPS Agreement. However, India repeatedly and rightly asserted that it is TRIPS compliant.

India has highlighted the fact that several MNCs operational in the country have been found to be guilty of ‘patent squatting’. Consequently, they refrain from marketing patented drugs and deny access of patents to life saving drugs. This is detrimental to the interests of consumers and adverse impact on their health and social well being. Moreover, data on patents granted in several fields (including pharmaceuticals) between January 2005 and October 2014 reveals that 82% of patents were granted to foreign companies. This belies the argument that Indian patent regime discriminates against foreign companies.

Another issue raised by the US concerns a trend in India towards localization barriers to trade and indigenous innovation policies. India’s National Manufacturing Policy 2011 called for increased local content requirements in government procurement in certain sectors. These sectors included information and communications technology and clean energy. Based on this policy is India’s Preferential Market Access mandate, which imposes local content requirements for government procurement related to electronic products. Another localization measure includes the Indian National Security Council proposal (2014) to store electronic communications between users in India locally on Indian servers. These measures have been a source of immense friction between the US and India.

In 2013, the United States challenged India’s local content requirements and government subsidies for solar panel production by requesting formal consultations in the WTO. It contented that these measures greatly restricted US market access in India. India has also repeatedly raised the issue of copyright piracy and misappropriation of traditional knowledge with the US.

A global index that maps the IP environment in 30 countries worldwide, namely the GIPC Index, India ranked 29 amongst all 30 countries in 2015. However, there has been an improvement in the overall score relative to the previous editions. According to Global IP Center (GIPC), the Indian IP system has the following strengths:

• Basic IP framework introduced in mid-2000s, including 20-year patent protection
• Ex-officio powers introduced in 2007 for the deputy and assistant commissioners of customs

In addition, GIPC cites the key areas of weakness of India’s IP system as:

• Regulatory data protection not available
• Patent term extension not available
• Use of compulsory and non-compulsory licensing for commercial and non-emergency situations
• Limited Digital Rights Management (DRM) legislation
• High levels of software piracy, music piracy, and counterfeit goods
• Poor application and enforcement of civil remedies and criminal penalties
• No civil statutory damages available for copyright infringement
• Not a contracting party to any of the major international treaties referenced in the GIPC Index.

It is worth noting here that this index has been largely developed by the US Chamber of Commerce, with significant inherent biases which overlook the strengths of the Indian system and the systemic efforts being made to further improve the IP regime as well as perceptions connected with our laws.

There is no doubt, that there are issues on which further work needs to be undertaken but there is no doubt that our IPR regime is fully compliant and consistent with the international standards and obligations under the WTO framework. According to a senior Indian official, “…our laws are drafted in a way so as to protect both our consumer and industry’s interest. The new IPR policy that we are coming out with will take care of any anomalies or vagueness in our existing regime and make it tight and also fast-track clearances of patent applications.”

The IPR issues between India and the United States have been identified as most crucial for their bilateral trade relations. Accordingly, several discussions and dialogues have been organized on this, over the years. Under the Trade Policy Forum (TPF), India and the US have set up a high-level working group on Intellectual Property. This body has emerged as the principal trade dialogue body between the two countries. The five areas covered under the forum primarily comprise of the following:  Agriculture, Investment, Innovation and Creativity, Services and Tariff and Non-Tariff Barriers.

Underscoring its commitment to making its National IPR policy more internationally aligned, the Indian government is working on a draft National IPR Policy (2014). The policy seeks to “harness the full benefits of creation and innovation in the larger interest of society and citizens…The policy will aim to foster predictability, clarity and transparency in the entire IP regime in order to provide a secure and stable climate for stimulating inventions and creations, and augmenting research, trade, technology transfer and investment.”

In addition to this policy measure, the Indian government has already constituted an IPR think tank under the auspices of the Department of Industrial Policy & Promotion (DIPP). This body oversees the formulation of a National IPR Policy through stakeholder consultation. Also, a joint committee has been set up between India and the US to discuss and resolve key IPR issues.

India recognizes the need for a policy aligned with global standards, as has been re-iterated by Prime Minister Narendra Modi, “India should align its IPR laws with global standards”. At the same time, the integrated policy also needs to protect special strengths of the country. Efforts in this direction have already been initiated in the past. These include:

• Trademark law brought at par with international practices- For this the Trade and Merchandise Marks Act 1958 was replaced by the Trade Marks Act 1999.
• Protection to Geographical Indications provided- This was done through enactment of the Geographical Indications of Goods (Registration and Protection) Act 1999.
• Copyright law modified- The law was amended in 2012 to make Indian copyright law compliant with the WIPO Copyright Treaty (WCT) and WIPO Performances and Phonograms Treaty.
• Patent law more aligned with TRIPS

The country and the present Government’s will to bring greater harmony in the US-India bilateral relations is strong. This has been indicated on various fronts by the several joint dialogues and co-operation forums organized towards this objective, especially in the last year and a half. The IPR issue, being one of the key strains on the evolving bilateral ties, has been assigned high priority by India. India’s focus on IPR and related issues is reflected in the following statement made by President Pranab Mukherjee on May 11, 2013: “Innovation is increasingly recognized as the currency of the future…India’s innovation bottom line is not very encouraging as the number of patent applications filed annually in leading countries like US and China is roughly 12 times more than that of India…We should step up our expenditure on research to pursue innovation in a big way. The private sector should also increase their share of spending to levels prevalent in countries such as Japan, US and South Korea.”

There is no doubt that given the renewed emphasis on economic growth, Make in India, Start-up India and multiple other policy changes, we need to:

• Improve our domain knowledge, particularly negotiating skills and deepening the training and understanding of India’s personnel on IPR related issues. Unfortunately, pedagogic skills and university curriculum need to be broadened to include IPR related issues as part of the teaching program. The number of domain experts and lawyers on IPR related issues is limited. However, inarguably this issue will be significant as India aligns itself even more with the changing norms of globalisation. These problems will become even more complex, as in addition to multilateral institutions there will be pressure from Preferential Trading partners. Therefore, we must equip and prepare ourselves for these evolving trends.

• The total number of filing of patent applications by individuals, institutions and companies remain rather small. The DIPP pointed out that “Even though there are improvements in the number of total filings by Indians, still it is fact that filing of patent applications by individuals by Indians are just around 20 per cent which is in sharp contrast with many developed countries, despite our country having a vast pool of scientists and technologists and being worldwide recognised as a hub for research….We lack in creation of sufficient IP based knowledge assets…. The low patent portfolio of the country is seen as a stumbling block for achieving competitive edge in the domestic as well as global markets.” Creating awareness, deepening domain knowledge and improving the filing of patents is an area where we need to redouble our efforts. Patent filing and acceptance need much higher priority than ever before.

The dialogue on IPR between India and the US is an ongoing one. Both sides need to appreciate each other’s point of view. There are no quick fixes. India cannot accept discriminatory and unfair imputations, nor act in disregard of its overriding national interests. Ameliorating the IPR irritants is an aspirational goal but must be consistent with India’s over-riding national interests and priorities. Deepening the engagement between India and the US will help dispel misunderstanding and secure acceptance of what we genuinely believe is both responsible and reasonable.

The author is a former Member of Parliament, Rajya Sabha.

(This article appeared in India Foundation Journal, January-April 2016 issue.)

~ By Ram Madhav

We are living in a world which is increasingly turning democratic. Since the end of the Cold War, an unprecedented number of countries have chosen democracy as their preferred form of government.

It is a matter of pride that in our immediate neighbourhood two new democracies have taken birth in the last one decade. Royal Kingdom of Bhutan has turned into Democratic Republic of Bhutan in 2008 with the active support of the Prince himself who has taken upon himself the new role of constitutional monarch.

Last year the much awaited eventuality has finally happened in Myanmar.

After five decades of military rule, the opposition, Nobel Peace Laureate Aung San Suu Kyi’s National League for Democracy (NLD), won a landslide victory in elections that most observers declared free and relatively fair. More than 80 percent of registered voters cast their vote which is more than 32 million people. Myanmar’s democracy has taken birth. This achievement is significant because it was preceded by a peaceful struggle of five decades.

Yet it is also a fact – rather a saddening one – that some 2.6 bn people – more than one-third of the world’s population – still live under authoritarian and non-democratic regimes. It is even more saddening because a good number of those authoritarian regimes exist in our region. They pose the first major challenge to democracy.

Democracy is a result of people’s constant endeavour for liberty and fight against tyranny in whatever form. “Liberty led to democracy and not the other way around”, says Fareed Zakaria in his book ‘The Future of Freedom’.

When India secured independence after a long struggle for liberty it opted for democracy as the form of government. Mahatma Gandhi, leader of India’s freedom struggle, justified the decision saying:“Democracy was something that would give the weak the same chance as the strong”.

Democracy no doubt has many positives. A study of Albright Foundation concludes that:

• Democratic states are less likely to breed terrorists or to be state sponsors of terrorism
• Democratic states are less likely to go to war with one another or to create or tolerate humanitarian crises that produce refugee flows and demands for international action
• Democratic states are also more likely to be active participants in the global economy

But as someone commented ‘democracy is the second best available form of governance’. It is not completely flawless. Then what is the best one? Yet to be invented.

Democracy is at one level the rule by the majority; at another level it is rule of law. Singapore has been ruled by the People’s Action Party since independence, and under the leadership of Lee Kuan Yew between 1959 and 1990. Singapore model is described as a “consencracy“.

Mankind’s urge for more liberty and more freedom continues. It poses major challenges to democracies all over the world. Democracy brings in absolute political equality through One Man – One Vote system. But will it suffice? What about social and economic inequalities. One of the founding figures of India’s Constitution Dr. B.R. Ambedkar warned in 1950: “On the 26th of January 1950, we are going to enter into a life of contradictions. In politics we will have equality and in social and economic life we will have inequality. In politics we will be recognizing the principle of one man one vote and one vote one value. In our social and economic life, we shall, by reason of our social and economic structure, continue to deny the principle of one man one value. How long shall we continue to live this life of contradictions? How long shall we continue to deny equality in our social and economic life? If we continue to deny it for long, we will do so only by putting our political democracy in peril. We must remove this contradiction at the earliest possible moment or else those who suffer from inequality will blow up the structure of political democracy which is Assembly has to laboriously built up.”

Historically this urge for more liberty has led to evolution of democracy into a better form of governance. But the urge continues. The second challenge thus is to manage that urge for more liberty – social, economic – in a manner that would lead to better democracy. If we fail in that it will result in anarchy.

In this context the biggest threat comes from the Left-Liberal discourse. The danger of this group hijacking the liberty discourse and leading it in the direction of destruction of democratic institutions and values is not imaginary; it is real. We in India witness it on a daily basis.

Left-Liberal discourse is essentially anarchist. Yet they camouflage their agenda in a language that is deceptive. In leading the communists to power Mao incorporated the word ‘democracy’ into party-speak to gain popular support. But what Mao actually meant in 1949 became clear when he declared that China would be ruled by a ‘people’s democratic dictatorship’. Mao’s was one of the bloodiest dictators in the world.

Liberalism and freedom are the slogans that are being used today to destroy existing democratic and state institutions. The poor and the socially disadvantaged sections are becoming the tools in this destructive agenda. Democracies become mobocracies in the process.

The Conservatives sometimes tend to swing their pendulum too much in the direction of free markets and capitalism. Fighting poverty, inequality and discrimination should also be the priority of the Conservatives. That is the second major challenge for democracies.

Columnist and author Fareed Zakaria coined the phrase – ‘Liberal Constitutionalism’ to find a meeting ground between liberty and freedom on one side and democracy and constitutionalism on the other. It is important in the interest of protecting our democratic values and institutions to be more open and accommodative to the urgings of greater liberty and freedom.

Democracies face an inherent challenge of authoritarianism by virtue of being politics based on numerical superiority. The urge to get greater numbers in order to have greater control over the government is natural. But we should strive for a government system that is less pervasive and non-intrusive. Eminent Indian political thinker and philosopher Kautilya had warned in his treatise Arthashastra against laws and punishments which are excessive as these make the king lose popular support.

In India Prime Minister Modi follows the dictum ‘Minimum Government – Maximum Governance’. In the last 24 months the Indian government has repealed more than 1100 laws that have become archaic and obsolete.

Of late, demographics is posing a new challenge to democracies. This problem is not new in our region. India has a major illegal migrant population from neighboring Bangladesh. But the present situation in Europe is making the larger world understand the challenges posed by such migrations. They effect demographics of the region leading to affecting socio-economic indicators adversely. Migrants and their refusal to integrate with the local cultural and democratic institutions and ethos pose a major challenge to democracies.

Terrorism – religious or otherwise – too is a challenge that many countries in the region face today. It is no longer any local problem. No country can claim immunity from it; nor can any community. India has been a victim of terror for last several decades. Romanticising terror using cliches like ‘One man’s terrorist is another man’s freedom fighter’ is the danger the open democratic societies face. This line of argument positions violence and terror as an alternative to democracy and constitutionalism. We need to ruthlessly curb this menace unitedly.

Democracies face certain internal challenges too, like Dynastic Politics, Communal Politics, Caste and class based Politics etc.

Maintaining democracy, even for countries with long-standing democratic traditions, requires education, sustained vigilance, and active support of the masses. An Israeli philosopher had described democracy as an arrangement in which ‘Institutions don’t humiliate individuals and individuals don’t humiliate each other’.

Together we must move in that direction for our democracies to flourish.

[The article is the gist of author’s address at the International Democratic Union executive in Colombo on 25^th February, 2016. It appeared in India Foundation Journal, January-April 2016 issue.]

~ By Ram Madhav Varanasi

Prime Minister Modi spoke about corruption-free India in this year’s Independence Day address. He compared it with termites in our homes that require action at multiple levels. We have to give many injections at many places, he said. He was probably suggesting that besides government, people too have to play a role in uprooting corruption in our country.

His address last year from the ramparts of the Red Fort became famous for the call given for a Clean India – Swachh Bharat. It elicited tremendous response from all sections of the society with politicians, filmstars and corporate hunchos too hitting the streets with brooms in hand, joined by common people in large numbers.

As the Prime Minister pointed out, children of the country picked up the message of Clean India in a big way thus making it a movement of the present as well as the future. From Clean India – Swachh Bharat – to Cleanse India of Corruption, the Modi government’s journey of transforming India into a developed nation is continuing. We need to wait and see whether this endeavour to end corruption in the country too will receive a similar enthusiastic support from the people as did the Clean India campaign.

The Prime Minister himself acknowledges that it would be a difficult challenge. He narrated how pressure was mounted on him for relaxing the auction norms for FM Radio services. His lament was that in the last six decades, corruption has almost become a way of life in our country.

That people are frustrated by this was evident from the rousing response to his suggestion of doing away with the interview business for government jobs at lower levels. As he rightly pointed out, this interview business has literally become a den of corruption. Fighting corruption can’t be the responsibility of the government alone. While governments are expected to eradicate corruption from the top, the society is expected to impart values at the bottom. While we should have a system in place to punish the corrupt, we need also to have systems that create incorruptible people. That is when a comprehensive and decisive victory over corruption is possible.

The Prime Minister’s other focus was on uplifting the poor and downtrodden of our country. His government has taken a number of initiatives like Jan Dhan Yojana, pension and insurance schemes and gas subsidy etc aimed at improving the living conditions of the poor.

The Prime Minister has a unique way of doing these things. It is inclusive. Reference to Team India of 1.2 billion people is not mere lip service. It is his way of achieving things. He is probably the first Prime Minister who has involved people in a big way in achieving the goals of the government. Democracies are described as ‘By the people, for the people and of the people’. PM Modi puts this dictum into practice very ably.

The new initiative of Start Up India and Stand Up India too will follow the same pattern. It is aimed at encouraging enterprenuership of the young. India is endowed with a large pool of talented youngmen and women. There is a need for encouraging them to take up enterprenureal activity. The Prime Minister has announced that more than one lakh branches of various banks would act as catalysts to promote enterpreneurship among the youth, especially SCs, STs and women. He exhorted bank officials to extend similar support to this initiative as they did for Jan Dhan Yojana.

The Prime Minister is surely following a well-defined course. He invoked Gandhiji’s name in a different context. But Gandhiji had actually set out an agenda for independent India on the last day of his life by way of a draft resolution.

In his last public document, drafted on 29 January 1948 and handed over to Congress officials on 30 January hours before his unfortunate and untimely death, Gandhiji had said: “India has still to attain social, moral and economic independence in terms of its seven hundred thousand villages as distinguished from its cities and towns”.

Thus, while we became “politically free” on Independence Day in 1947, securing economic, social and moral independence was still to be achieved, according to him. That in his view was the real meaning of independence. In his famous poem, “Where the mind is without fear”, Rabindranath Tagore too calls essentially for social and moral reform of the country. Tagore described freedom as a heaven where there is no fear; where knowledge and reason drive the people; where narrow domestic walls don’t divide them and where creative thinking and action, not dead habit lead the people.

We are going to celebrate the 150th birth anniversary of Gandhiji in 2019 followed by the 75th anniversary of our independence in 2022.

The goal set by Gandhiji for social, moral and economic upliftment of our nation should be the driving force for all of us in the next few years. From the Red Fort’s ramparts, the Prime Minister has appealed to the countrymen to share this eloquent vision of our forefathers and turn it into a reality.

Ram Madhav Varanasi is the General Secretary of Bhartiya Janata Party and the Director of India Foundation. The views expressed are his own.

(Disclaimer : This article first appeared in the New Indian Express)

~ By Khandavalli Satya Deva Prasad

The refined aspect of Bharatiya society is Sanskriti. Its language is Sanskrit. Sanskrit and Sanskriti are almost synonymous. Such is the importance of Sanskrit language. The four hundred sixty pages book The Battle for Sanskrit by Sri Rajiv Malhotra, analyzes in detail the threat posed to Sanksrit and Sanskriti by the latest round of western intervention called American Orientalism represented by scholars like Sheldon Pollock. The earlier form of western intervention was European Orientalism of 19th century. The book gives the details of various canards created by the Pollock school in the garb of lofty sounding theories and concepts.

Malhotra draws the battle lines between the outsiders represented by the American Orientalists and their Indian chelas and the insiders represented by the traditional Sanskrit scholars. The prize of the battle is control over the discourse that decides the fate of Sanskrit. He urges the traditional scholars of Sanskrit , who, till now, kept themselves aloof from the world currents that affect the future perception about Sanskrit even in India, its birth place.

The book’s content is presented in a highly organized and purposive manner.

The first chapter begins with an account of the attempts to hijack Sanskrit and Sanskriti. The writer makes an impassioned appeal to the insiders to form a home team to rescue Sanskrit from the hijackers and reclaim its true legacy.

Then, some details about the hijacker camp are given. The writer says that there are important differences between the methods employed, output turned out and the effects achieved by the old and new Orientalist schools. The American Orientalists are a small but influential, left-leaning group of scholars deploying every trick in their bag to de-link the sacred aspects of Sanskrit literature and secularize it to suit their agenda. This grand project to secularize Sanskrit includes an attack on the transcendental or paramarthika element of Sanskrit lore, attacking ritual which is in the form of yajna, sidelining the vital oral tradition, rejecting the shastras which are knowledge systems, branding Sanskrit grammar as ‘toxic’, and condemning the Ramayana as socially oppressive. The Pollock school is in no mood to consider the significance of UNESCO’s declaration of Vedic chanting as world culture heritage and the crucial importance of oral version of Veda to Indian culture. The Pollock repeatedly appeals for the revival of Sanskrit while at the same time argues for the suppression of its vital features!

Through his ‘Deep Orientalism’, Pollock seeks to prove that Sanskrit had been an inspiration to oppression in India and elsewhere. He goes to extreme lengths to blame Sanskrit for the atrocities committed by Europeans in India, for Nazism, holocaust by the Germans and what not! He cites the Ramayana as the kavya that propagates Vedic social oppression. By purveying this falsehood, he indirectly admits the truth that ancient texts like Ramayana propagate Vedic teachings. It is also proposed that Ramayana was popularized since 11th century just to demonize the Muslims! Such are the scholarly knots into which the Pollockian scholarship ties itself. Biggest of such knots is the theory that the Valmiki Ramayana was written after the advent of Buddhism. In short, Ramayana is interpreted by the American Orientalists as atrocity literature and offered to the outsiders as an excuse to intervene in Indian politics.

Then there is the theory of aestheticization of power. Through this theory Pollock supplies the much needed intellectual ballast to the Indian Left to divide and weaken the society and boost its political power in the process-‘the Indian Left is clearly working with him closely to boost their own political power. His work on Sanskrit supports them ideologically’ (p.90).

Malhotra helps the traditional scholars to gain purchase on the issues involved by formulating the issues in traditional categories. It is useful for traditional scholars to study the threat posed by Pollock’s ilk to Bharatiya Sanskriti in general and Sanskrit in particular by placing him in Charvaka category. And Pollock meets most of the Charvaka requirements like his denial of Paramarthika (sacred) spirit of Sanskrit texts, his espousal of strictly materialistic view of the world, and, above all, his condemnation of Vedas and Yajnas and Pujas as magical buffoonery. After all, the ancient charvakas declared- ‘agnihotram trayo vedah tridandam bhasma gunthanam; buddhi pourusha hinanam jeeviketi brhaspatih’- (yajna, Vedas, staff of the renunciate, and smearing of ashes are the signs of brainless nincompoops donned for livelihood, so says Brahpathi). True to his charvaka proclivities, Pollock pastes the same old charges on Sanskrit and the Veda. The ancient darshanikas accepted Charvaka thought as an alluring but a system of thought harmful to the civilized society.

Chapter seven of the Battle for Sanskrit gives a summary of Pollock’s noxious formulations about Sanskrit and Sanskriti. Then Pollock attempts to pronounce Sanskrit as dead and non-existent. While doing so, studious silence is maintained on how the West plagiarized the Shastras and tried to kill Sanskrit as if to destroy the evidence of its culpability. The neo-orientalist repeats the old canard propagated by the erstwhile colonialist-missionary-indologist combine that there is no such thing as Indian Civilization and Indian nation ad nauseam.

The tenth chapter is devoted to dissect the Pollock phenomena. The writer tells us how Pollock gathered his clout with the academia, media, Indian entrepreneurs and the Indian public. In the next and the last chapter, a way forward is suggested to those who undertake the task to reverse the damage so far explained in detail.
There are five appendices that throw light on some of the topics dealt in the text.

As usual, like Rajiv Malhotra’s other books, this one also features its schematic diagrams that focus on the vital points, copious chapter notes and long, useful bibliography.

The book published by Harper Collins Publishers in the present year belongs to the genre that reverses the gaze on the forces that attack the Bharatiya Sanskriti and society. Included in this genre are the works by such stalwarts as Sri Aurobindo, Lala Lajpatrai, Sita Ram Goel, Arun Shourie, David Frawley, Koenraad Elst among others. The book is a must read for all those who love and cherish the continued existence of Bharatiya culture and Sanskrit, the language that embodies its soul.

(This book review is carried in India Foundation Journal, January-April 2016 issue)

~ By Swadesh Singh

Ambedkar stood with the most downtrodden and deprived sections of the Indian society; the sections which had no voice in public life. The social mobilization of these sections by Ambedkar helped in the national freedom movement. As the Chairman of the Drafting Committee, Ambedkar advocated a strong nation-state.

Introduction

Over thousands of years, human civilization organized itself first in the form of family, then as religion and today we are organized as nation-state. It makes you wonder which institution would the future generations be living in? I posed this question to a well-known social scientist during a discussion on globalization. He weighed several ideas but concluded that in the present context nation-state is still the most enduring institution and likely to be the organisational unit for the coming generations too.

Today we live within this institution of nation-state. Foremost of our thoughts and actions, it serves as a centre of gravity, obvious at some time and obscure at others. It is one of the most organised, well designed institutions which has an organic relationship with mankind and where universal ideas like freedom, equality and democracy have a good chance to flourish. Western thinkers like Gellner, Anderson and Hobsbawm dealt with the idea of nation, nationalism and nationhood which developed in the region over the last 400 years after the Treaty of Westfalia in 1648.

The Bhartiya concept of Rashtra could be considered a parallel to the western term ‘Nation’ but both are also different on several counts. The primary difference between the two stems from the fact that Rashtra is more of an ethic-spiritual concept while Nation is a cultural concept.(1)

Many Indian leaders like Sri Arvindo, Gandhi, Nehru, Tilak, Tagore and Deen Dayal Upadhyay delved into the idea of Indian nation and nationalism. Their

ideas are either spiritual, meta-physical or statist. In this article we will try to trace Dr. Bhim Rao Ambedkar’s ideas and reflections on Nationalism. He is the most celebrated Indian leader, thinker and social philosopher of the 21^st century who contributed in the 20^th century. Large-scale celebrations marking his 125^th birth anniversary were concluded recently. Observers felt that these celebrations were more wide-spread than those in his centenary year. One of the leading mainstream magazines termed him as the greatest leader of Modern India. Over the years, ideas of Ambedkar have become stronger and more relevant to the contemporary discourse.

Ambedkar and his Narrative of Freedom

At any given point of time, several parallel narratives can coexist. However, only one grand narrative at a time can push the discourse forward. Before the Indian Independence, the grand narrative was the freedom of India while several other narratives did exist. One such narrative was prescribed by the Congress party. It emphasized on freedom from the British colonisers. It can be said that this was the dominating narrative of the time. There were also other, though weaker or marginalized in comparison. One such narrative was that of the Rashtriya Swayamsewak Sangh (RSS) which saw India as a glorious nation since time immemorial land targeted reconstruction of the Indian nation by strengthening its socio-cultural institutions. It wanted to arouse the national consciousness of every common Indian. The core belief in this case was that once the society becomes strong no one could enslave it.

Another narrative of the time was given by Dr. Bhim Rao Ambedkar. He talked about freedom of India from social inequality and untouchability. This could be understood as a subaltern narrative about the upliftment of downtrodden, deprived and marginalised sections of the society; the section that did not have any participation in public life of colonial India. Dr. Ambedkar became the voice of these 60 million deprived section known as Scheduled Castes (the term Dalit evolved later). Without emancipation of these deprived people, Indian freedom struggle was not deemed to be complete. The Indian national struggle in the first half of the century was not merely a struggle to wrest political power from foreign rule but also a struggle to lay the foundation of a modern India by purging the society of outmoded social institutions, beliefs and attitudes. Ambedkar’s struggle constituted a part of the internal struggle, one of the divergent and sometimes conflicting currents all of which helped to secure ‘freedom’ from external and internal oppression and enslavement.

Without Ambedkar’s opposition to mainstream nationalism, the process of internal consolidation of the nation would not have been carried out sufficiently enough to strengthen and broaden the social base of Indian nationalism.(2)

Ambedkar’s idea of Nationalism

Ambedkar elaborated on the idea of Nationality and Nationalism in his book Pakistan or the Partition of India. He describes nationality as a, “consciousness of kind, awareness of the existence of that tie of kinship” and nationalism as “the desire for a separate national existence for those who are bound by this tie of kinship.” It is true that there cannot be nationalism without the feeling of nationality. But, it is important to bear in mind that the converse is not always true. The feeling of nationality may be present and yet the feeling of nationalism may be quite absent. That is to say, nationality does not in all cases produce nationalism. For nationality to flame into nationalism two conditions must exist. First, there must arise the will to live as a nation. Nationalism is the dynamic expression of that desire. Secondly, there must be a territory which nationalism could occupy and make it a state, as well as a cultural home of the nation. Without such a territory, nationalism, to use Lord Acton’s phrase, would be a soul as it were wandering in search of a body in which to begin life over again and dies out finding none.(3)

Expanding Social Base of Nationalism

Ambedkar had immense faith in the bright future and evolution of this country. Even when he spoke of attaining freedom for India, his ultimate goal was to unite the people. He said, “So far as the ultimate goal is concerned, none of us have any apprehension or doubt. Our difficulty was not about the ultimate thing but how to unite the heterogeneous mass that we are today to take a decision in common and march in a cooperative way on that road, which is bound to lead us to unity.”(4)

Ambedkar clearly spoke in a felicitation program of his 55^th birth anniversary, “I have loyalty to our people inhabiting this country. I have also loyalty to this country. I have no doubt that you have the same. All of us want this country to be free. So far as I am concerned my conduct has been guided by the

consideration that we shall place no great difficulties in the way of this country achieving its freedom.”(5)

Ambedkar was not against the idea of nationalism but against the Congress’s version which entailed freedom of India from British colonialism but not from Brahminical imperialism under which millions of Scheduled Castes had been yoked for hundreds of years. It was Ambedkar’s political challenge which compelled the Congress to appreciate the national significance of the problem of castes and to adopt measures which significantly contributed towards broadening and strengthening the social base of Indian nationalism.

Ambedkar’s Challenge to ‘Congress Nationalism’

Indian nationalism in its initial stages, by the very nature of its historical development, was an upper class (upper castes) phenomenon, reflecting the interests and aspirations of its members. Naturally when nationalists spoke in terms of national interest they certainly meant their own (class) interests. The evocation of ‘nation’ was a necessary ritual to ensure the much needed popular support for an essentially partisan cause. This sectarian approach to nationalism could be seen in the writings of none other than Pt. Nehru who later singled out as an example of a ‘left liberal’ view. He writes in his seminal work Discovery of India that mixture of religion and philosophy, history and tradition, custom and social structure, which in its wide fold included almost every aspect of the life of India, and which might be called Brahminism or (to use a later word) Hinduism, became the symbol of nationalism. It was indeed a national religion.

The sectarian character of Indian nationalism persisted even after the nascent upper castes’ movement developed into a truly mass-supported anti-imperialist national liberation movement enlisting the support of millions of people cutting across the traditional social divisions. And, it is this failure to change its basically pro-upper class/castes orientation despite a basic shift in its underlying social base that Indian national movement in due course helped the rise of new sectarian socio-political currents, running parallel to the mainstream national movement. Ambedkar’s emergence on the Indian

political scene in 1920s, commencing the advent of Dalit (the scheduled castes) politics, was simply the manifestation of the same process.(6)

Ambedkar’s Dalit politics posed no really significant threat to the overall domination of the traditional ruling class, yet it certainly exposed the hollowness of the Congress’s nationalist claim to represent the whole nation. Finally, the unwillingness of the nationalist leadership to attack the long unresolved social contradictions at the base of the Hindu social order propelled people like Ambedkar to contest the claim of the Indian National Congress to represent the scheduled castes.(7)

It was in the backdrop of this escapist attitude of the Congress brand of nationalism that an alternative subaltern nationalism was born through Ambedkar. Ambedkar took up this question from social below and elevated it to a political high by linking this social question of caste with the political question of democracy and nationalism. Such an effort to prioritize society over polity and then linking them together was unprecedented in India before Ambedkar. Gandhi can be said to have made such an effort but his approach was obscure and primitive. According to Ambedkar,

“Without social union, political unity is difficult to be achieved. If achieved, it would be as precarious as a summer sapling, liable to be uprooted by the gust of a hostile wind. With mere political unity, India may be a State. But to be a State is not to be a nation and a State, which is not a nation, has small prospects of survival in the struggle for existence.”(8)

Ambedkar’s Faith in ‘Bharat’

Ambedkar had faith in ancient Indian institutions and texts except caste. He was convinced with the spiritual aspect of Indian texts and codes but not with its ritualistic aspects which had developed in last 1200 years. He talked about Annihilation of Caste not Dharma. He understood the importance of Dharma in India and when the time of conversion came as he had declared earlier, he chose Buddhism and not any other Abrahamic religion. He also had the option of declaring him as an Atheist but his rootedness in Indian ethos compelled him to choose Buddhism.

Dr Ambedkar pointed out that historic roots of democracy in India go back to pre-Buddhist India. A study of the Buddhist Bhikshu Sanghas discloses that the Sanghas were nothing but Parliaments and knew all the rules of Parliamentary procedure known to modern times. Although these rules of Parliamentary procedure were applied by the Buddha to the meetings of the Sanghas, he must have borrowed them from the rules of the political assemblies functioning in the country in his time.

Dr Ambedkar emphasized that Hindus need not ‘borrow from foreign sources’ concepts to build a society on the principles of equality, fraternity and liberty. They “could draw for such principles on the Upanishads.” Even in Riddles in Hinduism, he points out that Hinduism has the potential to become the spiritual basis of social democracy.

Strengthening Nationalism through Constitution

Ambedkar opposed insertion of Article 370 which gives special status to the state of Jammu & Kashmir but Nehru still went ahead with it to appease Sheikh Abdullah. Ambedkar wrote to Sheikh Abdullah on Article 370, “You wish India should protect your borders, she should build roads in your area, she should supply you food grains, and Kashmir should get equal status as India. But Government of India should have only limited powers and Indian people should have no rights in Kashmir. To give consent to this proposal would be a treacherous thing against the Interest of India and I, as the Law Minister of India, will never do it.”(9)

Justice K. Ramaswamy while probing into the legal aspects of nationalism likes to call Ambedkar a true democrat, a nationalist to the core and a patriot of highest order on various grounds.(10) He was the author and principal actor to make the ‘Directive Principles’ as part of the constitutional scheme. When it was criticized that the directive principles could not be enforced in a court of law, Ambedkar answered that though they were not enforceable, the succeeding majority political party in Parliament or Legislative Assembly would be bound by them as an inbuilt part of their economic program in the governance, despite their policy in its manifesto and are bound by the Constitution. Ambedkar, in his Constitutional schema of nationalism, undertook the task of strengthening the Executive in particular and the notion of ‘Integrated Bharat’ in general.

Rising above the regional, linguistic and communal barriers in a true republican spirit, Ambedkar invented a democratic nationalism consisting of Uniform Civil Code for India. His views of Uniform Civil Code were radically different from his contemporaries including Nehru who in principles accepted Hindu Code Bill and Uniform Civil Code but in practice, failed to get the Bill passed in one go, in spite of being in Government with majority. Ambedkar on the other hand made it a point to add the word ‘fraternity’ in the Preamble to the Constitution in order to inculcate the sense of common brotherhood of all Indians, of Indians being one people; it is the principle which gives unity and solidarity to social life.

He was also critical of Muslim Personal Law and tried his best to abolish it in favour of Uniform Civil Code. Ambedkar did not agree to the fact that Muslims had any immutable and uniform laws in India up to 1935. Ambedkar emphasized that in a secular state religion should not be allowed to govern all human activities and that Personal Laws should be divorced from religion.(11)

Dr. Ambedkar in his very first speech in the Constituent Assembly on 17 December 1946 had emphasized the need to create a strong Centre in order to ensure that India’s freedom was not jeopardized as had happened in the past on account of a weak central administration. His view was hailed by the Assembly and came later to be reflected in the Emergency Provisions of the Constitution. Undoubtedly the states are sovereign in normal times but by virtue of these provisions, the Centre becomes all-powerful and assumes control over all affairs of the nation whenever a situation arises which poses a danger to the security of the state.

Conclusion

There is no doubt that Ambedkar was vehemently opposed to the unjust social stratification in India, but to say that he was against the nation is wholly wrong. He was definitely against the Congress version of Nationalism. Ambedkar says, “I know my position has not been understood properly in the country. I say that whenever there has been a conflict between my personal interests of the country as a whole, I have always placed the claims of the country above my

personal claims. I have never pursued the path of private gain… so far as the demands of the country are concerned, I have never lagged behind’.(12)

Last year, In a seminar organised in New Delhi, Dr. Krishna Gopal (Jt. General Secretary, RSS) claimed, “Besides being a champion of the untouchables, Ambedkar was, first and foremost, a nationalist, a virulent anti-Communist and had immense faith in Hinduism; he was against Brahminical structures but some of his closest friends were from upper castes, while Brahmins provided him vital help at key moments in his life; he dismissed the historical theory of the Aryan invasion of the Indian subcontinent. He apparently also promised “shuddhikaran” or purification for those Dalits who had converted to Islam in Hyderabad state in 1947-48.”(13)

It is evident from the above discussion that Ambedkar was neither an anti-national nor just a leader of the Scheduled Castes. He was a national leader who understood the problems of the most exploited communities and tried to bring them into the main stream. He expanded the social base of Indian nationalism which helped first to attain freedom and later to put the country on path of progress. Today, when all thought converges around inclusive politics, Ambedkar has become more relevant than ever.

Nationalism is a dynamic process of social assimilation and therefore nationalism is to receive its perfect harmony in the realization of social brotherhood of men irrespective of caste, colour and creed.  Nationalism is not antithetical to humanism or individualism. One can enjoy complete individual freedom within a nationalist framework. Everyone needs a space to think, to grow and liberate. In the present point in time, Nation is the best institution we have to fulfil this purpose. We do need a grand narrative which includes the last woman in the queue. Dr. Ambedkar did give us a grand-narrative of “equality in socio-economic life along with political equality”.

1Madhav, Ram; Raashtram: Spiritual Ethical Concept of Nationhoodhttp://www.rammadhav.in/articles/raashtram-spiritual-ethical-concept-of-nationhood/

2Gaikwad, SM; Ambedkar and Indian Nationalismin Economic and Political Weekly, Vol. 33, No. 10 (Mar. 7-13, 1998), pp. 515

3Ambedkar, BR;A Nation Calling for a Home in  Pakistan or Partition of India

4Bharathi, KS; The Political Thought of Ambedkar in Encyclopaedia of Eminent Thinkers p.29

5Jadhav, Narendra; I have loyalty to our people and also to this countryin Ambedkar Speaks Vol. 1, (Konark Publishers, New Delhi 2013) p. 48

6Gaikwad, SM; Ambedkar and Indian Nationalismin Economic and Political Weekly, Vol. 33, No. 10 (Mar. 7-13, 1998), pp. 516

7I bid, 517

8 Ambedkar, BR; Pakistan and Communal Peace in Pakistan or the Partition of India

9Jamanadas, K;Kashmir Problem From Ambedkarite Perspectivehttp://www.ambedkar.org/jamanadas/KashmirProblem1.htm

10Subhash, Dr;Dr. B. R. Ambedkar’s Idea of Nationalism and His

Role in Making India a United Nationhttp://euacademic.org/UploadArticle/2393.pdf

11Tiwari, Y.K.; Ambedkar’s Vision of Uniform Civil Code, in Ambedkar and Nation-building, editors ShyamLal and K.S. Saxena

12KeerDhananjay; Dr Ambedkar’s Life and Mission, P 329

13 Mohan, Archis; RSS Claims Ambedkar was Nationalist Hindu,  Business Standard (31 December, 2014) http://www.business-standard.com/article/politics/rss-claims-ambedkar-was-nationalist-hindu-114123100053_1.html

~Prof. Makarand R. Paranjape

In 1909, Mahatma Gandhi wrote Hind Swaraj or Indian Home Rule. Not only was this his first major book, it was also the only book of his that Gandhi himself translated into English. Written originally in Gujarati between 13 and 22 November on board the S. S. Kildonan Castle journeying from England to South Africa, it appeared in two instalments in the 11 and 19 December issues of Indian Opinion, a journal Gandhi used to bring out. In January 1910, it was published as an independent booklet by Gandhi’s own International Printing Press from Phoenix Farm, Natal, with an English version appearing two months later in March.

Hind Swaraj was an imaginary dialogue between a Reader and the Editor, the latter presumably standing for Gandhi himself. This dialogue covers a range of topics including the Congress Party and its officials, the state of India, the reasons for India’s colonization, the meaning of svaraj (self-rule), the best means to attain it, Gandhi’s vision of an ideal society, the definition and practice of satyagraha (‘truth-force’), the qualities required to be a satyagrahi, Hindu-Muslim unity, railways, lawyers and doctors, and English education in India. The book became notorious for its attack on machinery and modern, Western civilization. Yet, more than that, it contained the earliest, most comprehensive, exposition of Gandhi’s philosophy. Extremely influential politically, Hind Swaraj was soon banned in India. However, it was reissued many times during Gandhi’s life and remained close to his heart; though his own thinking changed with time, he never disowned its key tenets. It still remains one of the most important documents of India’s freedom struggle and the discourse of decolonization the world over, besides being the handbook of nonviolent revolution.

I begin with this bringing to mind of Gandhi’s book only because the Gandhian project is central to what India means to me today. I wrote about this earlier in my book Altered Destinations (2009), the orthographic depiction of the title highlighting how nation is foregrounding in “destination.” A nation, I suggested, is also a destination, a goal, an objective, an ultimate aim. Many forget what the destination of India is. They think it is economic or social advancement, freedom, democracy, justice and so on. These words, while resonant of the directive principles set forth in the Preamble of the Constitution of India, still do not express the underlying purpose for which this nation was imagined into being.

For several years, I, too, was somewhat unclear if not confused about the meaning of India. In many seminars and conferences, so much time is spent trying to understand what we mean by ‘nation’. Is India a nation? Or is it a civilization? Or is it both? A civilization-state? If India is a nation, are Pakistan and Bangladesh nations, too? If Bangladesh is a nation are the Bengalis a nation? Are the Tamils a nation? Are Hindus a nation? So are we a nation of nations? What is the difference between the Indian nation and the Indian state? Is the former an abstraction, an idea, while the latter the actual institutional apparatus? How does Indian nationalism differ from Western nationalisms? Is communalism different from nationalism or is it in itself a type of nationalism? Is Indian nationalism actually a camouflage for Hindu nationalism? Is Hindutva a form of ethnic nationalism or is it a religious ideology? How is cultural nationalism different from Hindutva? Is pan-Islamism also a type of nationalism or is it a politics of identity? Are sub-nationalisms anti-national or are they also legitimate expressions of nationalism? Of the competing Indian nationalisms, which are more authentic and how can we distinguish one from the other? Does the nation-state that is India have a stable or successful future? Will it survive in its present shape and form? Or would the splitting of India into many smaller states be desirable? Is nationalism a flawed and outdated ideology? Are all nationalisms parochial, even murderous, or are some nationalisms better than others?

These, and a bewildering array of similar, questions assail us when we focus on the issue of the Indian nation. That is why I have found it much better to focus on an indigenous word such as svaraj instead of the nation. This came to me in a flash in a seminar at the Centre for the Study of Developing Societies several years ago. While several learned speakers spoke on the idea of the nation and its pitfalls, almost none bothered to think of something much more vital and immediate—svaraj. Surely, all talk of the nation is futile if it does not, in some way, lead to svaraj. Our svaraj, the country’s svaraj, the svaraj of millions, and ultimately, the svaraj of non-Indians as much as Indians—surely, all these are interconnected. While words like ‘the nation’ may confuse us, svaraj is immediate and crystal clear. It concerns our autonomy, empowerment, dignity and selfhood; not just our rights, but our responsibilities and commitments to one another and to our highest selves. How is the nation doing? This question may be confusing, but if we ask, ‘Do we have svaraj?’ the answer will be much clearer. Do all Indians have svaraj? Is our society organized to maximize the svaraj of all or does it favour the few, the rich, and the powerful? What should we do to reinstall svaraj as a principle of governance if not as a national ideal?

The idea of svaraj is very powerful and meaningful in India. Originating in the Vedas and the Upanishads, svaraj found a new, largely political expression in the late nineteenth century. Deployed for political purposes by stalwarts like Dadabhai Naoroji, Lokmanya Tilak, Sri Aurobindo, and Mahatma Gandhi, it soon became synonymous with India’s demand for independence. Etymologically, the word is a modern variation of the Sanskrit sva–rajya, a compound made up of sva + raj; sva means self and raj means to shine. Hence, the word means both the shining of the self and the self that shines. While the word raj gives us many terms associated with power including Raja, Rex and Regina, svaraj is much more than just that. We might actually say that svaraj is another word for enlightenment in addition to signifying self-rule.

It is in India that political independence was expressed in terms of enlightenment and self-illumination; it is here that temporal power was considered only the material basis for higher consciousness rather than an end in itself. For us, no political independence was conceivable without a concomitant spiritual and moral liberation. Svarajya, then, is the principle of perfection, of perfect governmentality, because illumination comes from internal order, not from oppression or rule over others. Originally, svarajya referred to the internal government of a person, the government of the limbs, of the senses, of the organs and of all the different physical and psychological constituents of the individual. When all these could be well-governed, a person could rule himself, be svarat. Hence svarajya is the state of self-mastery; the master of senses is svarat. The opposite of svarat, anyarat, means someone ruled by anya, by others. The Upanishad clearly says that those who are anyarat perish; they go to the worlds of the doomed.

Combining spiritual liberation with political independence, svaraj also suggests a host of possibilities for inner illumination and self-realization. Svaraj is thus opposed both to imperialism and to totalitarian forms of government that crush the liberty of individuals and collectives. That is why the word svaraj might be preferable to decolonization, because svaraj is not tied up with the colonizer as decolonization is. In fact, one’s own svaraj can only help and contribute to the svaraj of others. The personal and the political are neither contradictory nor discontinuous; they merge, one leading to the other, the other leading back to the one. Svaraj is always both singular and collective; we cannot be free unless all our brothers and sisters are free and they cannot be free unless we are free. Svaraj allows us to resist oppression without hatred and violent opposition. It was on these grounds that Gandhi developed the praxis of satyagraha, or insistence on truth and truth-force, to fight for the rights of the disarmed and impoverished people of India.

Originally, svarat described a person who had good government of his own body and mind, or good self-mastery. Gandhi and the others applied it to the body politic. Simply speaking, they meant that just as we do not want to be ruled by others, we must eschew ruling over others. Svaraj thus implies self-restraint, self-regulation. If we are all self-governing, the state as we know it will have very little to do. For Gandhi, an ideal society consisted of highly evolved, self-regulating individuals, who respected themselves and others. Such a society did not need policemen, law enforcers, or a huge bureaucratic apparatus because each citizen would look out for the welfare of others.

Of course, there is the question of who rules over whom, just as it is usually not clear which part of oneself is in charge of the others.  But such a question arises because of a confusion in understanding raj not as shining but as powerful.  The power, originally, was secondary, the visible manifestation of the self-illumined person.  So, svaraj is more about expression than control; when the inner being expresses itself fully—and that can happen only when the senses and other organs of action are in harmony and internal order—then its power becomes visible and evident.  For Gandhi, too, svaraj was less about ruling others or being ruled by them than about being oneself as fully and fruitfully as possible.  That is why he devoted a good deal of his text to understanding the native genius of Indian civilization. If only we could be true to that, we would both be free and responsible, that is neither ruled by others nor interested in ruling others.  In that sense, Hind Swaraj is a blueprint not only of a different destination, but of a desination, a nation that is true to its own soil and spirit rather than a borrowed or imported nation, in sum a vernacular rather than metropolitan nation.

The idea of svaraj had large-scale ramifications in many areas of Indian thought and culture. In 1928, Krishna Chandra Bhattacharya, one of India’s leading philosophers, delivered a lecture called ‘svaraj in Ideas’. He raised the pertinent question of whether we had achieved autonomy in thought and ideas along with the quest for political independence. Bhattacharya was of the view that Indian intellectuals would have to work a lot harder if such an emancipation of consciousness had to be accomplished. Several years later, his essay was reprinted in a special number of the Indian Philosophical Quarterly (October–December 1984) also entitled ‘Swaraj in Ideas’. Many outstanding philosophers and thinkers debated this topic and their responses were also published in the same journal on the content and means of decolonizing the Indian mind.

Perhaps, much of my own work is about svaraj. Evidently, its significance has exercised me for over two decades. I first tried to come to terms with it in Decolonization and Development: Hind Svaraj Revisioned (New Delhi and London: Sage, 1993). That book is also fashioned as a dialogue, not between an Editor and Reader as in Gandhi’s original, but between a student and a teacher. It tries to take stock of where we were as a nation in the 1980s. I continue to use the spelling svaraj instead of swaraj not only because it is a closer transliteration, but also to suggest that we must each struggle to find our own meaning of the word, rather than simply assuming that it means what our predecessors have thought. More recently, in Altered Destinations, I continued my explorations of the meaning of svaraj. I realise that svarajis an unfinished quest; to that extent, we still seek it and will continue to do so.

In retrospect, however, the 1980s seem to have been more innocent times. The country was smaller, more circumscribed, even simpler. Today, our basic condition is much more complex, as are our problems. We have to deal not only with the scourge of terrorism, but also with the powerful forces of globalization. In the domestic sphere, the Nehruvian ideology of socialist secularism failed, but in its place no alternative as yet occupies the centre stage. On the other hand, various forces of “anti-nationalism” seem to have a field run. Young people are restive, even if some of their discontent appears “manufactured.” Several organisations and ideologies are hell-bent on dividing us on the lines of caste and religion. Much of the dissension is between Hindus themselves, giving the impression that we are in the midst of a protracted uncivil war, with competing and escalating intolerances ranged against each other in the public sphere.

Can the idea of svaraj help reorient our body politic from division to unity? Clearly, we need to extend the discussion on svaraj to today’s context, even if we don’t actually use the word overmuch. That is because it is not the word but the underlying orientation that is important. I think one way forward is to depoliticize public discourse away from party politics and the struggle for power, whether at the centre or the states. Instead, we could concentrate, broadly speaking, on the field of culture to see how ideas of autonomy, selfhood and cultural independence have been expressed, depicted and studied in India. This would bring into our ambit contentious issues such as Western appropriations or representations of our past, especially its rich cultural and literary heritage. We would have to grapple not only with the issue of Sanskrit, but also sanskriti, which is much broader and encompassing. We would have to contend with the real dangers both of desacralisation of the former and the secularization of the latter.

Understood thus, svaraj may be seen as a struggle for academic freedom and autonomy, an attempt to free ourselves from both Western and Indian forms of colonization. In this struggle, our main adversaries are not so much groups in the West, but the native elites, who continue to be selfish, slavish and seemingly incapable of independent thought. Their main concern is to belong with the dominant, to be considered on par with or a part of the dominant. But that is an unrealizable, if pious, pipe dream. Our elites continue to be seen as subservient and second-rate by the West and as disloyal by many Indians. Naturally, debates over nativism, cultural self-assertion or critiques thereof may also be viewed as a part of the continuing redefinitions of svaraj. The fight for svaraj, for certain, does not end with political independence, but must go on until every single citizen feels free of oppression and injustice. That is why svaraj is also tied up with ideas of identity and selfhood. That is why svaraj is closely implicated in questions of language, identity, and culture.  Especially in beleaguered or endangered languages, svaraj in literary texts means the preservation or assertion of cultural identities. All told, cultural svaraj can be a fertile field of inquiry and discussion.

I started this short reflection with Gandhi and I shall end with him. Indeed, I keep coming back to Gandhi, even though he is one Indian, one self-proclaimed “sanatani” Hindu, whom we love to hate or hate to love. To me, he still remains the touchstone to measure what has happened to India. Gandhi not only provides a moral centre to our efforts, but actually makes our daily life more meaningful. I am not suggesting that we follow him blindly, unquestioningly. Indeed, I believe it is of fundamental importance to dwell on his limits and limitations. Speaking for myself, even when I seem to depart from him, I am struggling to go closer to him—at least this is how I see my own journey. As far as India is concerned, a dharmic, plural, value-oriented idea of the nation is what we may derive from him.

Ultimately, when we speak of svaraj, we must also contend with the coherence[1] and continuing relevance of nationalism, at least in the Indian context. By nationalism I do not mean the view that one’s own country or culture is superior to that of others, nor an excessive patriotism amounting to chauvinism. Instead, I tend to use the word in a somewhat old-fashioned way as suggestive not just of a national spirit, but the sense of belonging, which gives us the feeling of being part of a collectivity that is bigger than our linguistic, regional, or religious identities. If we consider this sense of belonging as nationalism, then nationalism, despite its discontents, has neither broken down nor become obsolete. But if nationalism is both relevant and valuable, this does not mean that it is unitary or entirely harmonious. Indian nationalism, on the contrary, exhibits multiple tendencies and aspirations, each trying to re-fashion the nation according to its own programme. If Indian nationalism is still coherent, it still holds together and makes sense, then the methodology that we need is somewhat more plural and open-minded than any straightforward argument to such effect.

One of the underlying preoccupations of our search for svaraj will, therefore, be how to resolve the tension between civic nationalism and dharmic nationalism. Clearly, the latter ought not to be theological or exclusive, favouring one religion or community over others. Yet, it should be in tune with Indian civilizational values. The latter are what we need to re-examine. We must accept that Western values are not necessarily universal or neutral, nor are “Hindu”/Indic values, such as dharma or karma, necessarily parochial or narrow-minded. Instead, the perennial values of India, which we may call sanatana, also embody a universality. They are not special to any one community or people, even if they have been articulated most persuasively over millennia in this subcontinent. To subscribe to these values and to seek to orient our nation according to them is not automatically to endorse some sort of illiberal or ‘communal’ ideology. I have tried to show in my work that these are competing, not necessarily oppositional, universalisms. The crisis of secularism has given us, once again, the challenge to articulate such values afresh. The result is not necessarily an automatic or uncritical endorsement of ‘Hindutva’, but the exploration of new kind of nationalism that is culturally and civilizationally grounded in India, at the same time as being modern, liberal, and plural. A coherent statement of such a national ethos is still awaited.

(This article appeared in India Foundation Journal, January-April 2016 issue.)

[1] An earlier version was published as the Preface to my book, Altered Destinations: Self, Society, and Nation in India (London: Anthem, 2009).

2 As opposed to what Bhikhu Parekh (1999, 295–326) termed “The Incoherence of Nationalism” in the concluding chapter of Ronald Beiner’s Theorizing Nationalism.

Works Cited

Parekh, Bhikhu. 1999.“The Incoherence of Nationalism.” Ronald Beiner, ed. Theorizing Nationalism. Albany: SUNY Press.

Paranjape, Makarand. Altered Destinations: Self, Society, and Nation in India. London: Anthem, 2009; New Delhi: Anthem Paperbacks, 2010.

—–. 1993. Decolonization and Development: Hind Swaraj Revisioned. New Delhi: Sage