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A
This is Philosophy Bytes with me, David
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Edmonds and me, Nigel Warburton.
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Philosophy Bites is available at www.philosophybytes.com. the Indian Prime Minister, Narendra Modi talks about decolonising India. This includes its constitution, which came into effect in 1950, three years after India gained independence from Britain. But what does this project, the decolonising of the constitution, actually amount to? Are criticisms of the constitution well founded or are there other factors at play? Born in India, Tarun Khaytan is now professor of Law at the London School of Economics.
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Taran Khetan, welcome to Philosophy Bites.
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Thank you for having me.
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The topic we're going to talk about today is decolonising constitutions. What exactly were we talking about and where are we talking about?
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So, Nigel, this is a. An argument that's raising its head in many countries which used to be colonies of European powers. I'm mainly interested in India, but it's also been argued in South Africa. And the main argument is this, that the Indian and the South African constitutions are colonial and therefore they ought to be replaced.
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B
So there are two elements to that. The first is that they're colonial. What evidence is there in those two cases that they are colonial?
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So the Indian constitution was made, drafted by Indians, entirely by Indians. The South African constitution was drafted entirely by South Africans. So the claim is an indirect one that the framers of these constitutions, although they were respectively Indians and South Africans, had what people arguing for this position called a colonized imagination. And that is the reason why the product of their efforts was a colonial constitution. Then it follows that because it's colonial, it needs to be replaced.
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So that sounds like an argument about a kind of false consciousness.
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It is indeed an argument about false consciousness. And the reason it's come up now is, in part there is a global disenchantment with liberal democracies. Both India and South Africa have broadly liberal, broadly democratic constitutions. But also because the argument which is used by the far right in India and the far left in South Africa, using an intellectually respectable frame of decoloniality, is much better than using an ethno nationalist frame for the far right or a class warfare frame for the far left, and therefore it seems to be a respectable, acceptable way of making some of the older types of claims that are less popular today. So I don't want to imply that everybody who's using this argument in the Indian context, which is all I'll talk about now, because that's my real expertise, is insincere. I'm sure, there are some people who sincerely believe it and they're not necessarily just gaming it. But in India, the argument of decoloniality is being used by Hindu nationalists who claim that British colonization was only the second iteration of Hindu colonizing India, that Islamic colonization of India lasted a millennium before the Brits came, and that decolonization requires removing both Islamic and European influences. And for a country of over a billion people with 15% Muslim population, I leave it to your imagination what de Islamization looks like.
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B
We're going to be talking quite a lot about the Indian Constitution. Could you just give us a brief introduction to that and where it came from, who drew it up when that occurred?
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Sure. The Indian Constitution was drafted after the Second World War through an indirectly elected Constituent Assembly. So a very small percentage of Indians actually exercised their franchise. But in fact the assembly represented almost all swathes of Indian political opinion as it existed then, with the exclusion of the communists who boycotted the Assembly. But otherwise all shades of opinion were represented in the Assembly. And the leaders of the assembly, especially Nehru, Patel and Ambedkar, went out of their way to ensure decision making based on consensus rather than majority rule. This was basically because a the Muslim League had just walked out of the assembly and had gone on to create the new state of Pakistan. So they had already paid a huge price for intransigence and when compromises failed, they could see what will happen. So they were very keen that although the Congress Party had the numbers, they would make a constitution that worked for everyone and ultimately all but one members of the assembly do sign up to the Constitution. And the second thing that the Constitution is defined by is the environment of extreme violence that occurred after the partition for months. Lots of bloodshed, lots of cross border movement of millions of people. So both of these leave a defining legacy on the Indian Constitution. It's not an ideologically pure, neat constitution constitution. It's a political compromise with a moral skeleton designed to take the messiness that is India to its future and most importantly to keep it together.
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Could you give a specific example of the kind of value that is being challenged by the. I guess you'd call them anti colonialists.
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So in the Indian context, the target, the foil for the decolonialists. I would not call them anti colonialists. In fact, I think there is some anti colonial work still left to be done in India. But anyway, these people usually target civil liberties, separation of powers in the Indian context, state secularism, the rule of law, sometimes democracy itself, various facets of liberalism. All of these are ostensibly Non indigenous European ideas borrowed by colonized minds and and need to be given up.
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So this could be part of a wider skepticism about appeals to universal values.
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The entire project of decoloniality assumes there's an antipathy to any kind of universality and there's a lot of emphasis put on authenticity and indigeneity. So the whole intellectual discursive, analytical frame becomes one of power and identity. So where do ideas come from, where do they go? And what is the power relation between the ideator and the receiver? What is completely erased from the picture is any talk of morality or values. Because in this worldview, morality itself is a construct of colonialism and therefore itself afflicted by power. I care a lot about power, but I care about power power, because power can be immoral when it oppresses and power can be moral when it emancipates. But in this worldview, what matters is power alone. And morality is just window dressing for legitimizing power.
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So it's the aim to rewrite a constitution from a kind of indigenous powerful position so that it gets all its value from being self created, more or less whatever values it constitutes.
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Well, so the most well known articulation of the idea in the Indian context by jsay Deepak is very much a claim of indigenization, but it's a very particular cherry picked location in time and space. Right. It's not indigenous constitutionalism in terms of the value framework of Indians today, because that itself is a product of colonization. So you have to turn the clock back, you have to go back 1200 years before the first supposed colonization of India by the Muslims. And even then they cherry pick a very particular value framework of upper caste Hindus, completely ignoring the plurality of the Indian tradition then and before. So it is indigenous, fixed in a cherry picked time and place of their picking.
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It's interesting in the Indian context there are so many different religions, so many different strands of religion as it were, and different ways of living within a huge landmass. It's almost impossible to believe that there would be a single one size fits all way of life, a kind of perfect solution that would make everybody happy except liberalism.
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Well, there are few things less Indian than a monolithic one dimensional value framework of the Hindu right. It ignores the embrace of Buddhism by the Mauryan ruler Ashoka Jai Sarah. Deepak talks about Buddhism and Jainism in a couple of sentences and dismisses them in his book as within the what he called the index civilizational frame. He does not even discuss the Bhakti movement where Dalits and women question some of the prevailing ideas within Hindu religious fold in a significant way. And of of course, somebody like Akbar, the Mughal ruler, Muslim, obviously in their imagination, who started a new religion, a syncretic religion, din Elahi. And was practicing religious tolerance and religious embrace in 16th century when religious strife was rife in Europe. Right. He would be a non starter for them because his sign is seen as a part of the Islamic colonial empire. So absolutely, the irony is that this claim to indigeneity rejects what has foundationally been long standing value system of embracing plurality.
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Let's go back to that question of false consciousness. So when people claim that the creators of the Indian constitution were somehow enthralled to a colonial mentality, what can you say about that? I mean, is there any way of arguing against it? Because almost everything that you possibly could say will be treated as further evidence of being caught in that whole web of unconscious reflection of the values that were imposed on you.
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That's absolutely right, Nigel. So the idea comes from Marxist thought and also embraced by feminists. The trouble with the false consciousness idea is first, as you say, it's unfalsifiable. You can't disprove it. It is like saying if you disagree with me, you have false consciousness. The second is that it denies agency to the listener. Right. The framers of the Indian constitution spent years and decades in colonial prisons. They spent lifetimes fighting colonial rule. And there is a strange and again ironic parallel in the claim that these people did not have the agency to think for themselves. A parallel with early colonizers like Macaulay who also denied agency to Indians to think for themselves. You know, the colonial empire had a civilizational mission because these people were like children, they weren't ready to rule themselves. And we see that argument coming full circle in the hands of these decoloniality critics. And the third thing it does is it's also extremely patronizing because it places some people as a true seers, the decoloniality advocates. They alone stand outside of ideology and can see reality, truth and the matrix as it were. Everyone else is embedded within the system and therefore unable to see it. So yes, I think this is deeply problematic as an argument to say that the entire Indian constraint assembly, which represented vast swathes of Indian opinion, including by the way, far right Hindu nationalist opinion, had a colonized imagination.
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I love what you just said about the assumption of those who accuse other people of false consciousness as that they are somehow immune from this, because that's a recurrent feature of that style of argument, I've heard Zizek using arguments about people caught up in ideology. And I think, well, why are you so free of it? Surely it's pervasive if it's there, Everybody is completely shaped by the social structure, the economic structure, and somehow embodying their values in this deterministic Marxist world.
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So I don't want to deny the claim that our values are shaped by existing power structures. That to me is self evident. I want to say two things in response to this. First, the evidence is very clear that the colonial state itself was not a liberal democratic state. Right? So whatever colonial values the Indian framers might have adopted, they weren't values of the colonizing governments. And secondly, yes, some of the starting points for their constitution making were based on European ideas. But they did so much of tweaking, rejecting, building upon, mixing up with, compromising on those starting points that they were thoroughly indigenized through an Indian agency responding of course to products of their time. So here's a challenge. How do we think about the role that power has in how we think without arriving at a non nuanced, unsophisticated position that you just have false consciousness. And I think we can do this by first recognizing that power matters and power is real in shaping discourse, but so are norms and values, and that sometimes power can be immoral. But we have to have an independent analysis of what the power relationship in this equation is and what the moral relationship in this equation is. And they don't necessarily track each other. So that's the first distinction or first gloss I will put on the decoloniality arguments. The second thing I want to say is that listeners agency is important to acknowledge. I'm a huge fan of Stuart Hall's work on encoding and decoding. Right. And it's a much more sophisticated framework where the decoder could be person who just straightforwardly borrows whatever the speaker encodes in the message. Right. And by the way, the person who receives the hegemonic message as it is intended to be received may still be acting rationally. Until recently in this country, racism is bad was a hegemonic message very much in the middle of the Overton window of what was being possibly sayable in this country. Just because power accepts the truth does not make it false. I think racism continues to be bad, but the idea is not hegemonic anymore. Right? So that's the first kind of decoder, the second kind of decoder which is the most common, and this is what I think was the reality of the Indian framers is the negotiated position. People who do receive messages that are embedded in structures of power, who take, some who leave, some who do creative things with it, and using this type of approach, respects the agency of people who are receiving messages without thinking of them as automatons, these brainwashed machines who just do what they are told. And of course, third, there's an oppositional positioning as well, where you receive a message entirely to criticize it and to oppose it. But even that requires your understanding the message. So I'm very interested in this, the negotiated position of the listener, because a. I think most people respond to messages embedded in power. Of course, there is a social media exception to that. We have moved from communication to engagement. That's probably a discussion for another day. But if communication is happening, if the message is being sent and received in a communicative sense, then I think the reality of constitution making and how ideas travel across borders is mediated by power. But there is agency on both sides, and we need to appreciate that.
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You were just talking about negotiated positions. Negotiation usually involves a kind of dialogue with people. Is that what you mean? Or are you talking about more of a kind of critical angle on received opinions?
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It can be both. In the Indian context, it was a critical engagement. But even this idea of received is complicated because a lot of these ideas of civil liberties, of secularism, were as much homegrown and learned by the freedom struggle in opposition to the colonial state as much as their own, borrowing from Europe, as it were. And secondly, there is no British representative in the Indian Constituent Assembly. There are no British red lines. There are no preconditions for leaving. In fact, the British Empire leaves India in a very short, almost unplanned, in a manner that was criminal because it led to a vacuum and anarchy. But anyway, that's besides the point. So some of these ideas were in the air because of the circumstances of Indian colonization. Some were in the air because Indian leadership was educated abroad and did bring in some of these ideas. And some of them were in the air because there is a much longer Indian engagement with notions especially especially of pluralism, equality and religious tolerance. So it was a combination of all of these ideas. So, yes, they were negotiated, but negotiated internally. This wasn't a colony negotiating the terms of its independence with the colonial power. But this was a negotiation between Indians who did not share a single vision of what India should look like.
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I find it fascinating that John Stuart mill, the great 19th century liberal, was extremely patronizing to peoples in their knowledge, as he Put it, people who are like children, who should be treated paternalistically. And I'm assuming he had India in mind when he wrote that. So that for civilized societies, individual liberty is incredibly important, but for these other societies, you need to be treated like children. And that seems to be the opposite of what the constitution makers thought. So in a way, they weren't accepting that kind of paternalistic view of what they were. So they weren't embracing at least some of the values of 19th century British imperialism.
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Oh, they were definitely rejecting a lot of the colonial ideas. India became a democracy with full adult franchise. There was no example of a large country with a largely poor population experimenting with democracy. Some measure of affluence was understood to be a precondition for democracy. Some measure of homogeneity was understood to be a precondition for democracy. Churchill famously said, India is no more a nation than the equator is a nation. So this was a huge leap of faith. Responsible government judicially enforced fundamental rights, a state role in dismantling centuries of the caste order, or at least its worst excesses, gender equality. None of these are colonial ideas. These are Indian ideas inspired in part by the Enlightenment, but not entirely.
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So we have this present day intellectual movement arguing against the existing constitution in India and elsewhere. Is there anything to be said for their arguments or are you completely skeptical about them?
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So, as I said, I think what is important to take away from a lot of these positions is that power matters and discursive power matters. That power exercises itself not just in the political sense, not just in the social or the economic sense, which are more tangible forms of power, but that power is also cultural. Power is also epistemic. What we know, what we believe, what we say, how we see things, these are mediated by power. But we have to, to be sophisticated and nuanced about thinking how power operates in this epistemic sphere, in the cultural sphere. You know, you gave the example of Mill having racist views. You know, so did Marx and so did Gandhi, especially in his early life. Right. So being able to separate flawed human beings and judging ideas based solely on their merit and doing things with ideas in this negotiated, mediated manner and is, I think, a worthwhile exercise. Whereas rejecting ideas because they were supposedly born in a foreign land and embracing ideas cherry picked from some imagined golden past, that I think does a huge disservice to both the Indian people and the possibility of a moral future as well.
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Tarun Khetun, thank you very much.
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Thank you for having me. Nigel.
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You've been listening to Philosophy Bites this episode was made in association with the Institute of Philosophy and supported by the Ideas Workshop, part of Open Society Foundations. For more philosophy bites, go to philosophybytes.
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Com.