Mohan Bhagwat’s argument for law based on ‘ethos of society’ is unconstitutional

Most of us tend not to think about the Constitution too much unless we have to. We like the fact that it is there like a benign, protective presence, and we are quick to call on it whenever we feel that we have been wronged.

One could say we take it for granted, and that is a pity, because it is, without a doubt, the single most important document in India.

The gargantuan task of creating the Constitution took two years, 11 months and 18 days, and almost Rs 1 crore at that time. Some of the greatest minds of that generation worked on it and almost every single provision, and sometimes even a word, was extensively discussed, debated and deliberated on. And one would expect nothing less from an exercise in creating a document that defines the very essence of the nation.

But on September 10, 2017, speaking at the concluding ceremony of the silver jubilee celebrations of the Akhil Bharatiya Adhivakta Parishad (ABAP), RSS chief Mohan Bhagwat seemed unimpressed with the outcome.

“Our Constitution was written based on the understanding of the ‘Bharatiya’ ethos of our founding fathers,” he said, “but many of the laws that we are still using are based on the foreign sources and that laws were made as per their thinking… seven decades have passed since our independence… this is something we must address.”

This is not entirely untrue. I have written in the past about our baffling attachment to archaic colonial era laws that have no place in modern times, including those on homosexuality and marital rape. But, something tells me these are not the things Bhagwat was talking about.

Look at his words carefully. His apparent problem with our laws comes not from the fact that they might be outdated, but from the fact they are based on foreign sources.

You will notice that most RSS ideologues use language that is curiously vague but often transparently coded and dog-whistley. So when he says that we need to develop a legal system based on the “ethos of the society”, we are never entirely sure what that ethos is, or indeed, which society he is talking about.

Because, one cannot casually mention a phrase like “Bharatiya ethos” in a country that is so mind-bogglingly, often frustratingly, complicated without doing any of the hard work of enumerating what that entails. Bhagwat leaves it to other people to figure it out. “A discussion and debate should be held on this,” he says. “After a comprehensive national debate we will have to arrive at a consensus and such system should be made available to people.”

The thing is, this has already been done.

As I mentioned at the very beginning, extensive discussions and debates were had on every issue related to the governing of the country for almost three years while the Constitution was being drafted. These are a matter of public record and are freely available online for everyone to read and understand the thinking and context behind every single Article of the Constitution.

But this conversation was far from over on January 26, 1950, when the nation adopted its Constitution. The drafters, in giving Parliament the power to amend the Constitution via Article 368, safeguarding the fundamental rights of citizens, and giving courts the power of judicial review under Articles 32, 136, 226 and 227, ensured that debate and discussion forever remained open.

During Indira Gandhi’s first and second terms as Prime Minister, she and her cabinet had tried to make major changes to the Constitution by pushing through a number of amendments that would undermine the federal structure of India, significantly reduce the powers of the judiciary, and centralise all power in the hands of the Prime Minister’s Office.

It was at this time that the Supreme Court in the landmark case of Kesavananda Bharati versus State of Kerala, stated that Parliament could make any amendment it deems fit as long as it does not affect the “basic structure” of the Constitution.

While it did not list down precisely what the “basic structure” of the Constitution consists of, the Supreme Court did specify some principles that are absolutely vital to the nation of India.

And a part of the "basic structure" is the democratic and republican nature of India. Our very Preamble describes us as a democratic Republic. Many think the words “democracy” and “Republic” are interchangeable, but there is a very subtle difference.

A pure democracy is the rule of the majority. The community with the largest number of votes makes all the decisions and wields all power. In such a system, the majority could change every law to suit its own purpose to the detriment of the minorities, what is often referred to as the tyranny of the majority.

But a Republic is governed by the rule of law. No one is above the law: it applies to everyone and protects each individual’s interests equally, irrespective of their caste, religion, race or gender.

Mohan Bhagwat seems to want the “democracy” without the “Republic”. His clever reference to a “Bharatiya ethos” is a thinly veiled reference to the rule of a Hindu majority in accordance with Hindu traditions. This is made only too clear by his references to Hindu scriptures and mythology when talking about governance.

But when nations are governed by ancient scriptures, the results usually aren’t very good. He says: “Our justice system is under the ambit of the legal framework but what is legal may not be morally right. […] For example, during the Emergency, police had the right to shoot anyone and one could not ask a question. Legally, the police were right but morally… ?”

This legal-moral dichotomy is something every law student learns about. But one need only look back into our own past to know that, more often than not, the opposite is true. Practices like Sati, child marriage, and untouchability had overwhelming moral sanction (and sometimes still do) in Hindu society when laws prohibiting them were enacted.

It is also ironic that Bhagwat should mention the Emergency given that Indira Gandhi’s sole purpose was to mold the Constitution to suit her.

India is much more than its Hindu majority. It does not belong to any one community. Equality, secularism and the rule of law are among its basic building blocks. Despite its plurality and diversity, if you had to reduce India to a single society, then the ethos of that society would be embodied in the "basic structure" of the Constitution.

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