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Bharat/India, Diversity/Plurality and the Constitution

This is a modified version of a speech delivered by Dr. Japhet at an event ‘Bharat/India, Diversity/Plurality and the Constitution’ organised by the Forum for Writers and Artists in Bangalore on 26th January 2018.

- Dr. S. Japhet & Abhayraj Naik*

It is my great pleasure and privilege to be making this introductory address on this important topic “Bharat/India, Diversity/Plurality and the Constitution” on the occasion of the 69th Republic Day of India. It gives me no lesser pleasure to be amidst such an august gathering of learned judges, writers, artists, intellectuals, friends from the media, and fellow learners today.

As someone who is attempting to realise a new vision for Bangalore Central University in a modern context, one that is indeed attentive to the cultural legacy and history of this great institution in Bangalore as well as that of India, this is indeed a wonderful opportunity for me to share some of my thoughts on diversity and pluralism in India with you all. This is indeed a complex and difficult topic, and it certainly requires careful consideration and constructive deliberation among each and every one of us today.

I would like to briefly present four simple points before you today, which I hope will be helpful for us today and going forward as we re-examine urgent questions of diversity and plurality in the context of Indian constitutionalism and in the context of the contemporary political and cultural situation in India today.

I. Diversity as a Historical Paradox for Bharat/India

If one looks at the long historical record of this land, from antiquity to the present, the idea of diversity - of values, of religions, of cultures, of people - has always posed a unique paradox for the civilisation called Bharat or what we call India today. Diversity, and the related policy and philosophical notion of pluralism, have always been both a good thing to be valued and a difficult (or one might even say, bad) thing to be managed or controlled.

India’s cultural heritage, its breathtaking multitude of different and varying geographical features, religions, cultures, languages, foods, and so on have always been a part of the tale of India’s wealth, her charm, and her promise. At the same time, this same diversity has been responsible for conflict, division, instability, confusion, discrimination, and as some also argue, submission to colonial rule.

Indeed, the Constitution of India, which came in to force on this day 69 years back thereby bringing into effect the independent republic of India, represents perhaps our most courageous, honest, and ethical collective response to this paradox of diversity that has eternally haunted politics and society in India.

II. Diversity and Pluralism in the Indian Constitution

The Constitution of India, of course, addresses the issues of diversity and pluralism in India in a number of explicit and specific ways, and on the basis of intellectual debates and discussions amongst men and women of the highest intellectual calibre.

A careful consideration of diversity and pluralism, in one manifestation or the other, is reflected in:

• the Preamble to the Constitution (particularly the terms ‘secular’, ‘democratic’, ‘liberty of thought, expression, belief, faith and worship’ and ‘fraternity’);

• detailed provisions on federalism (for example, Article 245 to Article 263 of the Constitution of India) and multilingualism (Article 343 to Article 351);

• individual fundamental rights to equality and equal opportunity (including prohibitions on discrimination based on religion, race, caste, sex, place of birth) [Article 14, 15 and 16], the fundamental right to freedom of speech [Article 19(1)(a)], the freedom of religion and to manage religious affairs and institutions [Article 25, 26, 27, 28 and 30], the fundamental right to conserve distinct languages, scripts or culture including through educational institutions [Article 29 and Article 30], etc.;

• directive principles of state policy including the principle that the “State shall, in particular, strive to minimise the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations” [Article 38(2)];

• the fundamental duties of every citizen of India which include: “to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women” AND “to value and preserve the rich heritage of our composite culture” [Article 51-A(e) and (f)].

At the outset, it is important to recognise that diversity and pluralism are recognised through at least three (there may be more) distinct forms in the Indian Constitution:

• firstly, elements and values that pertain to the State identity: this includes, for example, democracy, secularism, republicanism, federalism, and multilingualism;

• second, fundamental rights and fundamental duties that pertain most directly to the individual;

• third, political and cultural rights that pertain most directly to identity-based groups (based on religion, caste, language, and so on).

III. The Role of the Judiciary

Despite the wisdom of the constitutional text on diversity and pluralism, a number of extremely difficult challenges and new realisations have arisen, both in India and across the world, in the years since India achieved independence. These situations and tendencies have required an answer that is not to be found easily in the text of the Constitution, and this is where one must recognise the remarkable role of the Indian judiciary (particularly the Supreme Court and several distinguished High Courts) in courageously responding to a number of specific areas that involved questions of diversity and pluralism.

To give some examples, issues of - secularism, caste discrimination, gender equality and freedom of sexuality, freedom of speech and expression including questions of obscenity and hate speech, environment and biological diversity, and of course, federalism - have received careful attention from learned judges who have provides us with a number of principles and precedents that help resolve difficult questions of diversity and pluralism in particular contexts.

We owe much to the judiciary in India when it comes to our overall clarity on related ideas of fairness, of tolerance, of non-discrimination, of reasonableness, of multiculturalism, of mutual respect, etc. that play out in scenarios of diversity such as those found in India. Of course, the judiciary’s historical record on diversity is not fully free of blemish and criticism, and many further challenges still remain to be surmounted.

IV. Current Challenges and the Way Forward

Despite notable advances, questions of diversity and pluralism continue to pose a number of challenges in India and across the world today. Three of the most pressing challenges include:

• the rise of fundamentalist and rightwing forces intent on disrupting the culture of liberty, tolerance and mutual respect that have been the mainstay of our constitutional approach to diversity and pluralism;

• the economic and social challenges and the new questions raised by the global refugee and ecological crises - these are, in part, of course themselves produced by a poor or faulty political and legal approach towards diversity and pluralism;

• cultures and technologies that disrupt or challenge mainstream ‘Indian’ notions of culture and sensibility, which are being experienced and registered far more frequently today in modern times. For example, ‘hate’ speech on online social media, public articulations of alternate sexualities, claims for genuine and not merely formalistic gender equality, and so on.

As John Stuart Mill’s On Liberty (1859) reminds us, in modern society, toleration is required to cope with many forms of irreconcilable cultural, social and political plurality - tolerance is therefore crucial to freedom. Toleration, of course, is also a loaded and controversial concept, and we need to have more discussion and clarity on the relation between diversity, toleration and pluralism in the Indian context.

As both tolerance and pluralism face attack in India and across the world, we need to do much work together to face the challenges of diversity and re-examine the grounds and forms of a politics of diversity as an emancipatory form of politics in India. We are blessed to have a strong and wise Constitution, and an independent and learned judiciary, to support us in this endeavour, and I look forward to our shared progress on this in 2018 and going forward.

*Dr. S. Japhet is Vice Chancellor of Bangalore Central University and the founding Director of the Centre for the Study of Social Exclusion and Inclusive Policy (CSSEIP) at the National Law School of India University, Bangalore. Abhayraj Naik is a researcher and consultant based in Bangalore.

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