India that is Bharat: Coloniality, Civilisation, Constitution

by J. Sai Deepak

A Million Mutinies Now.

Sai Deepak describes them as the impression on Bharatiya civilisation of the tension between coloniality and constitution, exhibited specifically by the impact on religion, nature, language, caste and tribe.

There are and were others traversing this stony path but he is unique in the import of his practical focus on the law to bring about concrete change, which ideological campaigns alone cannot achieve.

The apparent dichotomy counterposed between tradition and the rationality of modernity by those involved on opposing sides exposed the parameters of the key intellectual conundrum analysed by Sai Deepak, namely coloniality and the distorted consciousness, by and large, of the Bharatiya society.

The argument advanced in the book is the exact obverse of the accusation of ‘false religion’ levelled by Christian evangelists against Hindus.

A key intellectual and political conviction of the argument in the Latin American decoloniality literature, revisited in Sai Deepak’s tract, is the overpowering nature of colonial consciousness and the distinctive self-serving mindset of the coloniser as well. It first locates the origins of the colonial experience at the dawn of the religiously and racially inspired Age of Discovery rather than the subsequent era of the Enlightenment that preoccupies postcolonial analysts, firmly establishing its underlying Christian ideological rationalisation.

In effect, the decolonial framework seeks to reinscribe the primacy of indigeneity, indigenous consciousness and its subjectivity in formerly colonised societies and civilisations.

One of the fundamental questions examined in the book is the rootedness of the entire colonial venture in Christian conceptions derived from Biblical verities.

chameleon adaptability of the Christian ideological yearning towards spiritual and psychological enslavement of the ‘Other’, manifested in the p...

In a thoroughly fleshed out exegesis, Sai Deepak reiterates the findings of leading scholars of Bharat on how deeply coloniality has imbued Indic consciousness, which exhibits itself in self-abnegation, even self-loathing.

Sai Deepak also highlights the role of coloniality in Bharat’s failure to truly excavate the nature of the Islamic impact on Indic culture, which is itself a product of secular political expediency that enjoins deceit and self-delusion in the alleged interest of buying that elusive social peace.

One critical dimension of colonial experiences was the policy of tolerating the scriptural and doctrinal essence of Hinduism and delegitimising popular practices, adjudged by colonial bureaucrats to be superstitious.

At the same time, the British debate on governing Bharat continued to reiterate the desirability of mass conversions of idolators, publicly and resoundingly articulated by the Archbishop of Canterbury and supported by the then British prime minister.

Government of India Act of 1919 provided the framework for independent Bharat’s Constitution of 1950, while the Government of India Act of 1935 provided its architecture, which he promises to explore further in the sequels to this book.

the notion of ‘civilised nations’ to characterise the expanding international order asserted a secular Christian motif to define it at the Paris Peace Conference of 1919 and the Treaty of Versailles.

Systematic isolation, ostracisation and acculturation of one Indic strand at a time seemed to be at play. It became clearer with each passing day that this hostility had the previously tacit but increasingly overt support of extra-civilisational, specifically colonial and non-Indic systems that stood to benefit from this motivated internecine tussle.

history seemed to teach us that the survival of the Indic civilisation as a civilisation depended on the flourishing of its sub-identities, with each of the sub-identities realising that they were part of a federal symbiotic whole and that it was in their own existential interest to remain part of the whole.

Therefore, it required, at the very least, an equally sustained long-term investment by the society at the most fundamental levels, namely the group and the individual, in order to undo the damage sustained by this living civilisation.

But before breaking it to them, I wanted to be sure of the path myself, and so, I spent the seventh semester evaluating a career in civil services and alternatively, the law.

What made the three-year law programme unique, apart from its marked tilt towards intellectual property law, was the fact that it was open exclusively to the scientific and technological pool of the country. I realised that my future lay in the field of law, which, I believed, would equip me with the skills I needed to act on my convictions.

In fact, he was kind enough to write a letter recommending me to a Senior Advocate in the Supreme Court who had then just been appointed as one of the top law officers of the country.

Though I loved constitutional law, my personal commitments required me to take up commercial litigation. So I started off as a civil commercial litigator in a National Capital Region–based law firm that specialised in intellectual property litigation and allied areas, and practised primarily before the High Court of Delhi.

The High Court’s judgment in this case, while dismissing Tata’s prayer for interim injunction on the game, laid down the law on the interplay between trademark law, the law of defamation, and the right to parody and fair comment as part of the fundamental freedoms of speech and expression under the Constitution.

The IAMAI’s writ petition was decided in its favour as part of a batch of writ petitions in the landmark judgment of Shreya Singhal v. Union of India, which is otherwise popular for striking down of the draconian erstwhile Section 66A of the IT Act.4 In the judgment, the Supreme Court recognised the chilling effect of overbroad restrictions on free speech. This judgment too remains a landmark one for its contribution to free speech jurisprudence, especially in the context of online platforms.5

While these cases certainly presented me with fantastic opportunities to apply my understanding of constitutional law to IPR and technology-related contexts and vice versa, my brush with constitutional law from a civilisational perspective first and truly began after I set up independent practice, exclusively as an arguing counsel in June 2016. Fortunately, since I had earned my stripes as a litigator by then, my peers in the legal fraternity supported my decision, which kept me in good stead as an arguing counsel in civil commercial matters as well as in writ petitions before the Delhi High Court and the Supreme Court.

The more I read the HRCE Petition and the material assiduously put together by the team in support of the petition, the more it convinced me that there was a clear causal link between State control of Hindu temples and the visible degradation of the temple ecosystem. Also, I came to the jarring realisation that a legal framework as invasive as the HRCE Acts was reserved for Hindu religious institutions alone.

Since I felt strongly about the issue, and there were several myths in the public domain as to who controlled temples and how, I delivered a few lectures on the subject within the broader canvas of civilisation and the Constitution.

Coincidentally, it was around this period that I was approached by the trustees of People for Dharma, an NGO led by women, to represent them as intervenors before the Supreme Court in a writ petition moved by the Indian Young Lawyers’ Association in relation to the Sabarimala Sree Ayyappa Temple.

I took up the case on behalf of People for Dharma on a pro bono basis, since it presented me with an opportunity to showcase before the highest court of the land the sheer diversity of religious practices, the unique character of religious institutions within the Dharmic fold and the position enjoyed by the deities enshrined within.

By early 2017, in light of my involvement in the HRCE Petition and the Sabarimala Temple case, the manifest incongruity of having to establish the legitimacy, authenticity and civilisational centrality of Indic/Dharmic religious institutions before an ostensibly Indian court gave me the push I needed to understand the journey of the Indic civilisation better. Despite a demanding professional schedule,

I started reading the works of Pandurang Vaman Kane, Jadunath Sarkar, Radhakumud Mookerji, R.C. Majumdar, K.A. Nilakanta Sastri, K.S. Ramaswami Sastri, S.L. Bhyrappa, R. Nagaswamy, Ram Swarup, Sitaram Goel, Dharampal, Kapil Kapoor, Koenraad Elst, Michel Danino, Shrikant G. Talageri, Meenakshi Jain and Sandeep Balakrishna, apart from the publications of the Ramakrishna Mission Institute of Culture and Bharatiya Vidya Bhavan.

This was, of course, in addition to the writings of Swami Vivekananda, Sri Aurobindo and ...

I revisited the history starting from the Home Rule Scheme in 1889 until the adoption of the Constitution in an effort to better understand whether this document captured the essence of and reflected Bharat’s civilisational spirit.

B. Shiva Rao’s six-volume publication The Framing of India’s Constitution: A Study, V.P. Menon’s The Story of The Integration of the Indian States and Justice Rama Jois’s Legal and Constitutional History of India: Ancient, Judicial and Constitutional System served as some of my principal references in this regard.

Alongside this, in the first half of 2019, in relation to the Shri Padmanabhaswamy Temple in Kerala, I had the privilege of representing the Chief Tantri of the Temple, the Chief Priest of the Chilkur Balaji Temple in Hyderabad and People for Dharma before the Supreme Court in an appeal from the 2011 judgment of the Kerala High Court. In its judgment, the High Court had held that the Travancore Royal Family had no authority over the administration of the Padmanabhaswamy Temple after the abolition of royal titles and privileges by the Constitution (Twenty-Sixth Amendment) Act of 1971.

Fortunately, the Supreme Court reversed the verdict of the High Court on 13 July 2020, and upheld the rights of the Travancore Royal Family as well as the authority of the Chief Tantri on religious matters in relation to the temple.

1. the nature of Hindu princely States prior to their integration with the Indian Union; 2. the relationship between the heads of Hindu princely States and their titular deities; 3. the circumstances, terms and conditions of integration of Hindu princely States with the Union; 4. the history surrounding the Twenty-Sixth Amendment to the Constitution; and 5. of course, the recurring issue of State control of temples.

Little did I know then that the experience of working on such matters of constitutional and civilisational significance would prepare me better to make sense of what was to transpire between August and December 2019. During this momentous period, Bharat witnessed the following:

1. Amendments were undertaken to Articles 367 and 370 of the Constitution on 5 and 6 August 2019, and the erstwhile State of Jammu and Kashmir was reorganised into two Union Territories with effect from 31 October 2019. 2. A Constitution Bench of the Supreme Court led by the then Chief Justice of India, Shri Ranjan Gogoi, pronounced a unanimous verdict on 9 November 2019 affirming the ownership of the Deity Shri Ram Lalla over His birthplace in Ayodhya, thereby validating a 500-year-old Indic civilisational and religious movement to reclaim Shri Ram Janmabhoomi. 3. The Citizenship Amendment Act, 2019 (‘the CAA’) was promulgated on 12 December 2019, which provided an accele...

That said, the most troubling aspect of these debates, which kept rearing its head over and over again, was that the very legitimacy and the underlying identity of the Indian State and the Indic society were called into question.

European coloniser set foot on its soil and stitched it together as one ‘nation’. Arguments that were allegedly rooted in the Constitution were being marshalled to support these positions, which effectively turned the Constitution into a battleground of sorts.

The extent of the divide was such that I was told on social media that the use of ‘Bharat’ for India was bigoted and against the Constitution’s promise of secularism.

That is when I decided to examine the fundamental question of the relationship between India and Bharat through the prisms of civilisation and the Constitution, and what it meant, if anything, to the State and to the society at large.

To romanticise and venerate the Constitution, I argued, was to conflate the means with the end to the detriment of the civilisation. In a nutshell, I took the position that the Constitution must be alive to history to serve its intended purpose.

there was a common acceptance of the colonialised version of Bharat’s history, especially in matters of human rights, religion, education, environment, development, caste and gender.

Barring a handful of scholars, such as Ram Swarup, Sitaram Goel, Dharampal, Koenraad Elst, Dr. S.N. Balagangadhara and Dr. Jakob De Roover, very few seemed interested in challenging the Western-normative framework which informed these so-called universal standards.

For some reason, they would not question the application of the Western-normative framework that refused to accommodate Indic thought.

the latter school of thought pursued its Reformist agenda while paying lip-service to Bharat and its civilisational character to placate the larger Indic society with tokenism.

The net result was the same—Bharat would continue to operate within the coloniser’s framework, while its civilisational character would be put to symbolic and ornamental use without any real and lasting impact on policymaking.

To me, this did not bode well even for Bharat’s economic aspirations since the premise of an Indic Renaissance, that is, a re-inscription of indigenous consciousness onto contemporary Bharat, was that it was not necessary for Bharat to play by the West’s rules in order to achieve economic prosperity. On the contrary, I believed that a civilisational reclamation had the potential to spur confidence and originality of thought, thereby paving the way for economic progress in a way that was consistent with Indic ethos, which valued a balanced approach to nature and development.