One nation under the constitution 27th smt bansari sheth memorial lecture justice gs patel - 18th august 2020

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ONE NATION UNDER THE CONSTITUTION*
Gautam Patel†
Good evening. It is a special privilege to be here. This address
would, and should, have been delivered in March 2020, but events
have overtaken us. This medium is by no means an adequate
substitute. I cannot see or greet you. But perhaps it has one great
advantage: like Lewis Carrol’s legendary snark, “you can softly
and suddenly vanish away.” I will be none the wiser. Neither will
the Asiatic Society. Your membership is safe.
I
February 2020. A cool and quiet late afternoon, the court’s
work done for the day. I was told the High Court’s Chief Librarian,
Dr Uma Narayan, wanted to meet me. She is accomplished,
learned—several Master’s, a PhD and dragging her feet on a
second—always cheerful; but she also has quite a temper as I have
over time discovered to my consternation. It is generally not a good
idea to say no to her. So I took the safer option and welcomed her.
Did I want a portrait of one of our judges in my courtroom?
she asked. It was in the museum, and there was no place for it
there, nor in any of the other court halls. The courtroom in which
it used to hang was being renovated, and the portrait had been
taken down and restored. Yes, of course, I said; it can be in my
court until we return it to its original location.
“Whose portrait is it?” I asked.
“Mr Justice Nanabhai Haridas,” she said.
*
Text of the 27th Smt Bansari Sheth Memorial Lecture delivered online on
18th August 2020 for the Asiatic Society of Mumbai.
†
Judge, High Court, Bombay. I must thank Ms Maithili Parikh and Mr Rohil
Bandekar, advocates, for their assistance in research.

PATEL | ONE NATION UNDER THE CONSTITUTION
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With unshakeable confidence in her own undeniability, she
had already had the portrait carted up three floors. Moments later
it was solemnly installed on a credenza opposite my desk.
It is a wonderful portrait: the judge in red ermine with a black
stole and cape, judges’ bands of fine white lace, a red turban,
looking off to his right. He has a silvery moustache, his eyes are
bright and sharp. This is the original portrait. There is a sepia-
tinted toned gelatin silver print of 1903 auctioned by Bonhams, and
a carbon print of 1889 at the National Portrait Gallery in London.
Born in Surat in September 1832, Nanabhai Haridas began his
career as a translator in government service in 1852, studied law at
Elphinstone Institute, continued to translate Indian laws of the
time into Gujarati for the government, and began his law practice
in 1857. Between 1873 and 1884, Haridas acted as a temporary
judge of the Bombay High Court as many as nine times. There was
only one other Indian acting judge before him. In the intervals
between his stints on the bench, he continued his law practice and
taught law, swinging from Bar to Bench and back again for an all-
time record of 11 years. Finally, in 1884, he was confirmed as the
first Indian permanent judge of the Bombay High Court, a position
he held until his death in 1889. He was widely held to be an
authority on Hindu law.
It must have been an odd time for him. His name is the twenty-
third in the list of judges of the Bombay High Court. Barring the
other additional Indian judge, Wassodewji, all the others were
English judges. One can only wonder how this Surat-born Gujarati
man did not feel utterly isolated.
Perhaps those were purer times.
The reason for my delight in this happenstance was that, just
a short while earlier, I had accepted the Asiatic Society’s invitation
to deliver the Bansari Sheth memorial lecture.
For, as it turns out, Nanabhai Haridas was Bansari Sheth’s
maternal grandfather.
But other links and connections stretch back in time. Bansari
Sheth was a student at Government Law College, my own alma
mater. Later, she was a partner of M/s Tyabji Dayabhai, a very old
and renowned firm of solicitors, well known to many lawyers and
judges and to me and my family personally.
Bansari Sheth joined the Society in 1949 and was an office
bearer for 14 years. In July 1976, while she was the Honorary
Secretary of the Society there was a first-ever three-day five-
session meeting of a special Joint Committee set up by the Central
and State Governments. Among those present were, in yet another

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coincidence, Mr DM Sukthankar, well-known in this city and,
again, to us personally, and then Secretary of the Department of
Education.
The record of those proceedings, available on Google books,
is an intriguing and engaging reflection of the times: even then,
there existed many of the problems and issues we see today:
despite a strong structure to the fabulous Society building, years
of neglect and decay, inadequate shelving, dumped volumes,
damaged material of the priceless collection, lack of financing, and
so on had taken their toll. On the second day, the committee
described as a‘most unholy wedlock’ the combining of the Asiatic
Society with the State Central Library.1
The more it changes, the more it stays the same.
And so the strands of time unravel, and bring us together here
this evening.
II
One of the most active—perhaps the most active—filing
sections of the High Court, and possibly any constitutional court,
is the writ section. The petitions filed in our High Courts invoke
the high prerogative remedies under Articles 226 or 227 of the
Constitution of India. Typically, these petitions open with the
proclamation that the individual petitioner is two things: a citizen
of India, and an Indian national. The first is immediately
understandable, for many of our fundamental rights are citizen-
specific.
But what of the second? What is this business of being an
Indian national? It does not speak to, or only to, being born in India
or holding an Indian passport. Those are incidents of citizenship.
I do not propose to discuss the arguably more mundane
concept of‘nationality’. Instead, I look to the word‘nation’, not for
itself, but for its implications on another term that is of very great
contemporary relevance: nationalism. In this lecture, I will present
the argument that our concept of ‘nationalism’ has suffered great
distortions, most especially in recent times. This may even be
deliberate for, as we shall see, the conscious narrowing of the
term’s dimensions has severe political, social and Constitutional
repercussions. I will argue that nationalism is, above all, two
things: first, a matter of identity at both the individual and societal
level; and, second, that it is an essential Constitutional construct;
perhaps the most essential Constitutional construct besides which

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other terms—patriotism, pluralism, ethnicity, race and religion
and perhaps even the pseudo-secularism bandied about today—
are largely irrelevant. This last needs a word of explanation:
secularism in its truest form, is emphatically not about a ‘peaceful
co-existence’. That is certainly irrelevant. Secularism in its proper
form should and must mean, religion—any and every religion,
each in its place, and that means indoors, at a deeply personal level.
The ascendance of these alternatives, especially religion, and
warped ideas of secularism and pluralism—inevitably results in an
undermining of a key Constitutional component, and thus
threatens the structure of the Republic.
‘Nation’ is a descendant of the word nacion in Old French,
meaning birth, or naissance, and this in turn is derived from the
Latin natio, literally ‘birth’. Over time, it has melded into both
geography and politics. Black’s Law Dictionary speaks of it as a
political entity of a large group of people with a common origin,
language and tradition.2
We will bear that in mind: common.
The dictionary goes on. When this definition coincides with a
political state, we have the expression ‘nation-state’; and,
consequently, “a community of people inhabiting a defined
territory and organized under an independent government; a
sovereign political state”. It can, therefore, also mean just a
country: the Indian nation, or the United Nations.
At its simplest level, therefore, ‘nationalism’ is an
identification by the individual with the large community that
comprises the nation. It manifests itself, sometimes, as support for
the nation-state’s interests, and in its more virulent form to the
detriment, derision or exclusion of other nations. At a social level,
it sometimes takes on hues of jingoism—the sense that one’s
nation is always superior to every other.
The core of nationalism is both self-determination and self-
governance. Historically, nationalism was pivotal in ending
colonial rule and the term is therefore positioned in opposition to
both colonialism and imperialism. In Europe, it took another form:
the overthrow of monarchies, often despotic, almost certainly
dynastic, by democratic republics. Focussed as we are on our
Independence struggle, we have perhaps failed to understand this
transformation of societies to our West. Indian Nationalism by Jim
Masselos of the University of Sydney is an engaging history of
nationalism in India from roughly 1857 onwards.3
Kinship, shared traditions and shared territories are all early
forms of nationalism, although the term only gained currency in

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the 18th century. At least one school of thought emphasizes
semiotics as a historical antecedent of nationalism: shared symbols
(especially religious symbols), mythologies and traditions (again,
especially religious ones) in the growth of nationalism.
A more contemporary view is that nationalism as we
understand it today is far more complex and deals with social,
economic and political structures essential to existence of modern
society governed by one overarching commonality: the rule of law;
and, in particular, the rule of Constitutional law.
Two key concepts define modern nationalism: unity or
unification, and identity. These are not easily segregated. Outward
manifestations of modern nationalism are familiar: national flags,
anthems, symbols, logos, myths, and indigenous animals. These
are what I call tokens or icons of nationalism and they serve that
precise purpose of the definition itself: as keys or clues to unity and
identity.
Viewed like this, we begin to see the oddest things in history:
nationalism of one stripe was responsible for the rise of Nazi
Germany, and nationalism of another for the Zionist movement
that led to the creation of the state of Israel. I use that illustration
only for its obvious starkness.
This lets us focus on these two ideas of unity and identity as
crucial components of ‘nationalism’. We will set these in a certain
framework, namely the Constitution.
Now‘constitutionalism’ is a separate lecture in itself. It has its
own complex roots, including the work of Locke, Hobbes,
Rousseau and others, and people everywhere continue to struggle
with its meaning. For today, let us accept this, almost certainly
over-simplified and perhaps even simplistic: that
Constitutionalism is, first, the historical progression of a people—
again, concepts of unity and identity—for self-determination, that
is to say, for defining the legal standards by which they will be
governed. It defines their rights, duties and privileges. This is
largely descriptive, being historical.
Second, and equally important, it is a prescriptive ongoing
process of evolving mechanisms to limit the powers and reach of
government—a check on government arbitrariness in
administration.
The debate on constitutionalism is, of course, much more
nuanced than this. But for my purposes this evening, this will do:
descriptive constitutionalism as self-determination and a
collective decision to be bound by a defined code; and prescriptive

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constitutionalism to act as an important check on government
excess.
With that as a keystone value, let me return to the changing
perceptions of nationalism set against its two crucial components:
unity and identity.
III
73 years ago, at Independence—and it is perhaps fitting that
this is said just a few days past August 15th—it seems unlikely that
there was any divergence between nationalism and identity. The
two merged in being Indian, as Romila Thapar says at the start of
her essay in the volume On Nationalism.4
Siddharth Luthra and Nivedita Mukhija say this in a 2018
paper on nationalism and constitutional responses:5
“In India, nationalism was once synonymous with the
freedom struggle. For a colonized people, for whom unity was
needed to weave together different peoples and regions with
diverse cultures to obtain freedom from British rule,
nationalism was a liberating force, a promise of equality and
freedom from colonial subjugation. This spirit of nationalism
was rooted in ideas of progress and development, not only
politically, but also socially, economically, and culturally. On
the one hand, it was accompanied with a revival of religion,
culture, languages, art, and more, and on the other hand, there
was development of a scientific spirit and modern ideas.”
Thapar also makes the point that the nation is not the state,
nor any particular government.
In the third essay in the On Nationalism volume, Sadanand
Menon says this:6
“What is visible today is a new hatred for the idea of
democracy as we know it and for the rights as guaranteed in
the Constitution. This is quite in keeping with the agenda of
cultural nationalism, which strives—through generating a
climate of intolerance and intimidation—to keep civil society
in a state of constant agitation by subjecting it to constant
attack.
“Cultural nationalism, by any definition, is a rogue
version of nationalism which is already present in the
concepts of the nation state.”
He explains this to mean a systematic ejectment of political
rights and debate, and the substitution of these with—usually
faux—ideas of shared cultural rights. This, Menon says, is not just

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“irrational, but occupies a space of imaginary hurt, insult,
wounds and defeat inflicted by imaginary enemies, who
always belong to religions and regions not (you believe, are)
your own.”
History is, to these cultural revanchists, a source of immense
worry. Why?
The answer to this lies in what, as Menon points out, Salman
Rushdie described as a ‘mongrelization’: precisely the lack of any
cultural, religious, or linguistic unity in a country like ours.
This is bound to be deeply unsettling. For if you cannot claim
affinity or membership of a well-defined cultural, religious,
linguistic group, then who exactly are you? And whose country is
it anyway? Whose nation?
Luthra and Mukhija again:7
“There are groups that advocate a relook at history, culture,
and education. They believe that India should be defined not
in western liberal terms, but in what are termed as ancient
civilizational values. The contention is that India must be
synonymous with the majority traditions and a thousand years
of invasions and invaders cannot be the basis to define this
ancient land and its people. Historically, nationalism as an
ideology has used “othering” as a way to identify the nation,
but doing so has however necessitated the presence of an
‘other’ to maintain such an identity distinction.”
At least part of the dissatisfaction has to do with the way we
have administered justice in this country over the past 70 odd
years; or, more accurately, failed to administer it. I do not mean
only the verdicts and decisions of the law courts. There are enough
examples of those that were patently, and blatantly, unjust; and
there seems, at least of late, little dimming of that tide. We hold a
collective responsibility for each of those, for, very often, what a
judge says in a decision is determined by intangible and ephemeral
forces, including political leanings, social attitudes, exposure to
the world’s working. Judges are, after all, human, and subject to all
the inherent frailties and failures of that condition.
But that is not the limit of the injustice. In almost every aspect,
India’s trajectory as a society has been a remarkable march away
from becoming more civilized, more even, more just. Disparities
in income, opportunity, lifestyle, environmental rights and legal
rights have not narrowed. The poor are poorer, the rich very much
richer, and nowhere is this more apparent than within our cities
and in the contrast, as the journalist P Sainath has spent a lifetime
pointing out, between our cities and our villages. To equate private

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wealth growth with development and progress is just flat-out
wrong.
Unemployment, particularly urban unemployment, is a
hugely disruptive force. We have common experience of this:
young men and women with degrees unable to find suitable jobs
and winding up taking whatever work they can, even as delivery
persons and that awful word we use in this country, peons. The
impact of this is to tear at the fabric of civil society. It creates a
rootlessness, a sense of being marooned, a sense of not belonging.
The concepts of ‘nation’ and ‘nationhood’ are now abstractions.
They lack the necessary immediacy and continuity.
Witness, therefore, the rise of smaller and more aggressive
units such as, in Mumbai, the Shiva Sena Shakha—I do not mean
the political party itself, but, for want of a better word, one of its
ground-level organizational units. The reason this works so very
well is precisely because it provides to the rootless a sense of
belonging, of identity. Once you are a part of the shakha (or some
other similar group), you gain an identity, and that identity then
dictates what you do and how you go about doing it. It is then
perfectly legitimate to question or even openly defy the rule of law
and constitutional norms. Those are entirely alien to your identity.
They provide no unity.
From this, there follows a natural expansion to notions in
larger groups of racial purity, an embalmed monolithic history,
and, most easily accessible of all, a religious singularity. This then
makes it entirely legitimate and possible to advance the cause of
rewriting swathes of history and promoting unsubstantiated claims
to superiority, and of saying, for instance, that‘we were there first,
before the rest of the world’.
This translates into familiar forms: at the retail or individual
level, shrill jingoism and an utterly false use of ‘patriotism’, and at
the level of the government of the day, a stifling of criticism by,
among other things, using the law on sedition. Whatever the form,
the intent is to create, and silence, the ‘other’—the same
expression we just saw in Luthra and Mukhija’s work.
This use of ‘othering’ in the formation of nationalist
sentiments needs attention. ‘Othering’, John Evans wrote, is:8
“the process in which groups or their individuals are defined
by the social majority as different, incompatible, unworthy, or
otherwise unwanted or ostracized. This act results in the
dichotomist formation of an us-group and a them-group, or in
some places an in-group and out-group. This exclusion is
usually based on some external identifier; such as, ethnicity,
nationality, gender, accent, etc. The extremity of this

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exclusion can range from ignoring students of other
nationalities to committing genocide. It is a process more
serious than individual xenophobia. Othering is a process that
begins in institutions of power and filters down to the people;
indeed, it is a corporate xenophobia imposed upon the people
of the nation through political rhetoric, the media, national
historiography, and perpetuated through socialization. The
process of othering serves two purposes: (a) it serves to
construct the self-identity of the nation and (b) it provides a
scapegoat to the nation for its present and past troubles.”
IV
The conflation of this strident jingoism (or false patriotism)
and the ascendance of evil is equally evident. A brilliant exposition
is in James Waller’s 2002 work, Becoming Evil: How Ordinary
People Commit Genocide and Mass Killing.9
He sets out four factors
that lead people to commit acts of extraordinary evil. The third of
these is the immediate social milieu and how this translates to a
culture of cruelty: what brings individuals together in a group, how
these groups (as functional units) dictate to the individual
members, thus providing the individual with a sense of identity
and the group as a whole with a unity of purpose. The fourth
ingredient is precisely that of which Evans speaks: the othering; us
versus them; the levelling of blame for imaginary wrongs past and
present; the resultant dehumanization.
We know, therefore, when on television we are being hectored
that ‘the nation wants to know’, that this is nothing but a process
of othering. Who or what exactly is this ‘nation’? Is it the one
under the constitution? Or is it something the TV channel
drummed up for this evening? Usually, from this point, it is all
downhill: there follows the inevitable invocation of being ‘anti-
national’ if one does not agree, and then, rising to a crescendo, an
accusation of a lack of patriotism.
Of course this is populism, and as Tom Ginsburg and Aziz
Haq say in How to Save a Constitutional Democracy, populism is
democracy’s dysfunctional cousin, one lacking the moral appeal
and long-term stability of a healthy democracy.10
Ginsburg and
Haq point out that populists expand precisely this othering, by
contending that they and they alone represent ‘the people’; all
other electoral or policy options are illegitimate or futile or both.
This concept of ‘the people’, they show, is non-institutionalized.
There is an assertion of a singularity—religious, moral, political—
not voiced in a more formal way; say, in a written Constitution.

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An ordinary democratic process depends on two or three
distinct things: questioning, differing or dissenting, and an
institutionalized system of checks on excess. Populism rejects all
three as being entirely illegitimate; and sees all three as ‘anti-
national’. This is a direct path to accusations of being a‘traitor’. As
Ginsburg and Haq put it:
“In its paradoxical appeal to and simultaneous attack upon
democratic practice, populism exploits and amplifies basic
dilemmas of liberal constitutional democracy.”
Democracy is difficult, slow and messy. Populism sees this as
weak and effete, and therefore seeks to erode, among other things,
constitutional institutions, especially those meant to curb
government, and fundamental rights. Populism uproots the rule of
law.
Consider these words from Ginsburg and Haq, and see how
apt they are to us today:
“... Elections become corrupted and dysfunctional when they
cease to have a meaningful relationship to the actual
behaviour of officials in office. In many cases, elections turn
on voters’ emotional affiliation with a particular politician
rather than any judgment about the politician’s expected
efficacy. Such elections are hardly the democratic ideal. For
elections to serve their proper function, there is a need for a
continuous flow of reasonably accurate information about the
interaction between government policies and external
conditions. ... at some point, information failures can become
so extensive and asymmetrically tilted in favour of one
coalition or candidate that they render the exercise of
democratic choice futile.”
If this sounds familiar, it should.
At the level of the government, othering takes much more
sinister forms. Typically, the arrest and continued incarceration of
persons accused of being ‘anti-national’, whether under the
existing law on sedition or one or the other of the so-called
terrorism statutes.
In the second essay in the On Nationalism volume, AG
Noorani has an exceptionally fine essay in which he dissects the
law on sedition in this country.11
There is also a superb filleting of
the 1962 Kedar Nath Singh case. He writes:
“Bar a perfunctory reference to Justice Sastri’s observation
[in Romesh Thapar v State of Madras12
], there was no
discussion of the process by which the framers of the
Constitution chose deliberately to omit sedition; no reference
to the Press Commission’s recommendation and, worst of all,
no reference to the full bench ruling of the Allahabad High

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Court [in Ram Nandan v State13
] or to Nehru’s speech in
1951 denouncing sedition—amid copious quotes from old,
obsolete English rulings.”
“An undergraduate whose essay on sedition contained
blemishes such as these,” Noorani says, “would earn a deserved
reprimand.” Instead, Kedar Nath passed muster. “Its baleful
impact,” Noorani writes, “survived to poison the wells of free
speech.”
Now this is crucial, and brings us back to our starting premise
that an important facet of constitutional nationalism is the inter-
agency check on abuse of power; specifically, the power of judicial
review vested in courts, a power necessary for stable, open and
good governance, one not based on regional, linguistic or religious
identity but something more fundamental. As Romila Thapar said
in a 2016 interview published in Caravan magazine:14
“Surely, nationalism requires a serious commitment to a
nation, defined as every citizen having access to human rights,
and recognised not just by territory but also by reliable and just
governance. Nationalism is not expressed merely by raising a
flag or shouting a slogan, but by safe-guarding rights and
ensuring good governance.”
If you take a map of India and fling three darts at it, you are
unlikely to find commonality of culture, religion or language
between the three landing points. Even within any region, there is
wide diversity of faith, belief, practice, culture, art, language, food
and all the rest of it. A unification of these people by seeking
common ground is impossible, and this is precisely why we see the
ascendance of othering, an unseating of nationalism as a
constitutional ideal and an attempt to enthrone some other
commonality.
Of these, the brute-force majoritarianism of religion is perhaps
the most effective. It succeeds precisely because it is easy to create
a definable ‘other’; and, within that other, there is no need for
nuance. There is a growing swell of support for the utterly false
notion that there once existed in ancient Indian history a unified
“Hindu” nation, with a homogenous religious commonality.
Chapter 6 of Steven Grosby’s Nationalism: A Very Short
Introduction (one of the superb books in that series from OUP) has
this title: Whose God is Mightier? In any discussion on nationalism,
that is a wonderfully freighted phrasing. He opens with this:15
The relation between the nation and religion is historically
and conceptually complicated. Religion has been both integral
to, and at odds with, the formation and continuation of
nations.

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This homogenization is critical to the rise of majoritarian
nationalism. It proceeds on a rising social scale, from the formation
of smaller groups that continually expand and, in their final
expression, are said to be‘representative of the nation’. This ersatz
‘nation’—conceived in exclusion, and weaned on relentless
othering—provides both unity and identity. It dictates everything,
from dress to rituals, and it lifts the performance of constant
othering to the level of a sacred duty. Any disagreement is,
axiomatically, profane. Again, this is predicated on the perception
of a sanitized, common and shared history; for only such a uniform
and unwrinkled history can bring unity and provide identity. It tells
us who we always were, and always will be. This process, in turn,
demands the rewriting of history and the creation of new
mythologies unrooted in fact or evidence. Tied to this edifice is the
notion of ‘purity’. Those that belong are somehow pure. The
‘other’ is impure; and therefore, to be marginalized.
Othering succeeds in one or more of at least three ways: exile
(as for example, Buddhism); smothering (‘assimilation’ is too kind
a word) that robs the other of all identity (as in Bhakti); or a more
visible and open hostile confrontation—outright extermination. I
need not explain the last.
The more fundamental problem with this approach is that it
eliminates nuance and complexity in history, and compresses it
into a steady, predictable and easily comprehensible stream of neat
chronological events. History is not straightforward. It is not easy.
Like democracy—one of history’s products—it is untidy,
disordered, and difficult to decipher with all its many strands,
conflicting versions and, most of all, rival narratives. History is the
test of credibility of these rival narratives.
This view of history and what its study demands parallels to a
great extent the practice of law. In both disciplines, we take the
facts as we find them. In both, there are competing and conflicting
narratives to be untangled. In both, the goal is to reach a
probabilistic approximation—what is most likely to have
happened. Neither is a quest for a single absolute truth; both
acknowledge that there is simply no such thing.
Both deal with this thing we call ‘evidence’, and this evidence
is in various forms—texts, images, oral accounts. Much, perhaps
all, of it has to do with human memory. After all, writing is the
physical rendering of memory. This, from our Evidence Act of
1872 is telling: the statutory definitions of proved, disproved and not
proved. I will take just one.

13
“Proved”.—A fact is said to be proved when, after
considering the matters before it, the Court either believes it
to exist, or considers its existence so probable that a prudent
man ought, under the circumstances of the particular case, to
act upon the supposition that it exists.
Note these words: ‘believes’, ‘probable’, ‘prudent’,
‘circumstances’, ‘supposition’. Therefore: not an absolute or
unified truth, but one that was probable, or likely, with the distinct
possibility of there being an equally valid other.
Consequently, the process of the study of history parallels
judicial enquiry and vice-versa. This is dialectics: viewing multiple
perspectives to arrive at the most reasonable reconciliation of
apparently contradictory information and data. Or: interpreting
opposites, negating the negation, thesis and anti-thesis and the
tension between the two. The label—Marxist, Hegelian, Socratic,
Plato—matters little or not at all. What is of relevance is the
ultimate goal—a probabilistic, likely result.
This view of history, and religion is very much embedded in
history, is clearly uncomfortable to the religious right. Religious
majoritarianism demands a flattening of contradictions and the
establishment of an identifiable singularity. Complexity invokes
doubt, dissent, argument, opposition and plurality. That unseats
religious majoritarianism and defeats the intent of religion-based
nationalism.
The answer to this, of course, is the gross over-simplification
of laying claim to a historical religious unity and identity; and
discarding, by this process of‘othering’we have seen, all discourse
that legitimately points to the contrary.
I found a recent debate on ancient Indian history, or at least
some version of it, interesting not just for what the rival pieces
said, but because of these very parallels in the processes of history
and law. In an op-ed of 14th August 2020, Shonaleeka Kaul of the
Centre for Historical Studies advocated the theory—I am
simplifying—that there is evidence to show that there once existed
in ancient India a nation or nation-state bound by some form of
Hinduism and called “Bharatvarsha”.16
In her reading of the
material, this more or less coincided with the extent of colonial-era
India. The piece received a stinging public rebuttal from Malavika
Kasturi and Mekhola Gomes.17
Their argument was that there was
simply no relevant evidence to support Kaul’s thesis; and that she
had approached the material entirely wrongly, relying on irrelevant
matter and ignoring the relevant.
I note this for two reasons. First, the obvious parallels to the
practice of law. If any court of first instance ignores evidence, or

14
relevant evidence, and takes into account irrelevant material, the
in-built system of checks kicks in; an appeal court intervenes.
Historians have no appeal courts, and therefore it falls to others in
the discipline to provide the alternative, contrasting narrative. The
other interesting differentiation is this. A law’s processes has finite
way-points and stops. A trial, a judgment, an appeal. There is a
finality to the material being adduced. History has no finality. It is
a constantly unrolling carpet, and new material is constantly
coming in. History is a process of constant revision, but this is to
be carefully separated from the rewriting of history for the purpose
of eliminating alternatives.
I found myself wondering why Kaul thought it necessary to
propound this idea of a unified Bharatvarsha with defined
boundaries, common roots and religion and identity? What
difference could it possibly make to us even if this once was? The
answer is the straight arrow that shoots from this flattened,
homogenised past into the requirements of marginalization and
othering of the present. This kind of past is presented as
justification for latter-day marginalization. What else can explain
the eccentric theories of PN Oak that almost anything anywhere
had a Hindu origin?18
He spared nothing: not the Taj Mahal, not
the Kaaba, not the Vatican, not Notre Dame, not Westminster
Abbey, not Christianity itself. He even had an institute for the very
purpose: the Institute for Rewriting Indian History. It is no
surprise to see a resurgence of his theories today, and a growing
number of adherents.
Self-evidently, this flattening is as illegitimate a process in the
study of history as it is in the practice of law.
The peaceful co-existence or tolerance flavour of secularism,
often trotted out in response, provides no alternative to
majoritarian demands for religious identity and unity. True
secularism, that is to say the entire separation of church and state,
and religion in its place only at an individual level, demands the
precise opposite of a religious unification of a concept of
nationalism: the acceptance as a nation of an amorphous religious
condition without cleanly defined nationalist leaders, with no
scope for marginalization. But religion is deeply personal and
emotional. A state of being where religion has no larger outward
manifestation is to be constantly in a state of doubt and
uncertainty. Grouping together under a religious banner therefore
provides a sense of belonging, an easily accessible validation of the
rightness of one’s views and the wrongness of every other. This is
wildly successful when coupled with othering and

15
marginalization; and this is the ascent of religious, entirely non-
secular nationalism, one that provides the two key values with
which we began: unity and identity. This is the potent attraction of
religious unification, and it is going to be an extremely difficult task
to unseat it in favour of something altogether more ambiguous.
A few days ago, Sagarika Ghose wrote this:19
“The ‘secular’/ ‘non-secular’ binary keeps us forever
trapped in religious identities – which is what politicians want
– when the urgent need is for citizens to demand that religion
becomes immaterial to governance. Instead of reflexively
thinking of ourselves only as “Hindus” or “Muslims” or
“Christians”, or other religions, we can define ourselves as
21st century liberal democrats who demand a modern
government insulated from all religion, with no special
benefits to any one group. Utopian, yes, but worth aspiring
for.”
A few days earlier, Pratap Bhanu Mehta had an insightful
column in the Indian Express:20
“the idea that taking religion seriously as a political matter will
solve the communal problem is a historically dubious
proposition. Modern religious politics is born in the crucible
of democracy and nationalism, not theology. ... We do not
need another version of what it means to be a good Hindu.
Who can be presumptuous enough to define or benchmark
that? What we need is a genuine commitment to freedom,
with all its risks, self- doubts and fashioning and refashioning
of identities. ... the deeper question ... is the growing tolerance
for prejudice and the unleashing of a ferocious darkness. Let
us name the beast for what it is and not hide behind the pieties
of secularism or religion. Recovering the project will not mean
a return to religion, but a confidence in the promise of a new
freedom struggle to salvage individual dignity and rights, not
continually play out resentments against the Other.”
Who, then, is an Indian national, that petitioner before our
writ courts? Deoliwallahs, a recent book by Dilip D’Souza and Joy
Ma, tells a horrifying story of the incarceration of persons thought
to be of Chinese origin—that is to say, purely on racial grounds—
in what was to all intents and purposes a concentration camp in a
small town in Rajasthan.21
To hear Joy Ma speak of it is shattering,
an experience not made easier by her extraordinarily gentle,
cultured voice. Growing up in that compound, surrounded by
fences topped with barbed wire, censored communications, and
more. Of course, this has shades of similar cases from elsewhere:
Korematsu and Kobayashi from America are obvious examples, but
these are, today, perhaps more relevant than ever before. What was
this but a form of racial othering?

16
And this, mind you, was an othering not by a group but by the
government. Othering is, thus, a powerful weapon in the hands of
a government to marginalize opposing groups.
So what does it mean to be an Indian in this republic? In light
of recent events, are the owners and operators of the very many
Chinese food restaurants in this country Indian or are they not?
Born and raised here, they speak our language—or one of our
languages, and I will consider the language of this city’s street a
distinct one. I have no doubt that every one of these persons can
curse in a meld of Hindi, Marathi and Gujarati as fluently as
anyone else on the streets—but probably not in Mandarin or
Cantonese. Would we today segregate them as being anti-national
and deny them the identity they have had from birth—as Indians?
And do this only because of some entirely false notion of race? Are
they to be ‘othered’? Would this pass muster today in law? Would
it be “Constitutional”?
Protection of civil rights against state excess, state neutrality,
the persistent dominion of the rule of constitutional law: these, I
would argue, are the permanent and perennial elements of
constitutional nationalism. They cannot be redacted, and there can
be no other constituent of Indian nationalism.
To keep these truths, there is one thing we need above all:
dissent. Without dissent, democracy dies. The process of
democracy is evolutionary, and it evolves by a constant business of
looking askance, questioning, doubting and suggesting change.
There is a long tradition of dissent in recorded Indian history, and
we have this from ancient Roman and Greek times. If you want to
put a religious twist on it, there’s Biblical precedent too, and it
takes a form familiar to all lawyers today: hear the other side. On its
own, this eviscerates any notion of the legitimacy of religious
majoritarianism.
Ramin Jahanbegloo in The Decline of Civilization has this to
say:22
“It is the courage of dissent as a process of self-realization and
autonomous thinking that is lacking today. This is what
decivilization is: a society lacking the capacity and culture for
producing dissenting individuals. ... the lack of courage to
criticize our meaningless existence has become the defining
trait of our society. This is accompanied by a rejection and
ignorance of the past as the final blow to the idea of
civilisation.”
V

17
Finally, and this is why the auspices of this particular lecture
carries a particular pathos, central to the process of dissent and
progress, and therefore to a thoughtful democratic republic, is that
one truly universal, unifying, symbol of the ascent of human
civilization: the library.
Great cities in history were known for their libraries: the
ancient cities of Ebla (probably the oldest known, around 2500
BCE) and Ugarit in Syria, Nineveh in Iraq, Alexandria, Rome,
Constantinople and Takshashila and Nalanda in India all had vast
libraries. The Asiatic Library is a place of refuge and reflection in
a tempestuous city. Its collection has some gems: I believe one of
only two known copies of Dante’s Inferno, a 1623 First Folio of
Shakespeare and Firdausi’s Shahnama among others.
The Library by Night, a marvellous book by Alberto Manguel,
is a roller-coaster through the libraries in time and history, from
Alexandria to the Internet, the library as shadow, the imagined
library, the library of memory, and libraries of the unwritten. It is,
in parallel, a story of human civilization tied hand and foot to the
library.23
Parenthetically: If the Internet is today the library of
libraries, and libraries are indeed matched to human civilisation,
then what, precisely, do we make of attempt to deny access to the
internet to an entire region?
Libraries are primarily places of storage. From their earliest
beginnings, humans have been collectors. The physical act of
possessing, keeping and preserving an object seems to represent
something essential to the human condition. Libraries are also tied
to mankind’s innate sense of history and the importance of the
past.
Libraries everywhere are bound to memory, language and
communication; but perhaps most of all to a need for information
and retrieval. Human beings are perhaps the only creatures who
store information outside themselves. In a stunning passage in An
Alchemy of the Mind, Diane Ackerman writes:24
“But the skull can only swell so much and still pass through
the birth canal. Even after the brain folded in, under and
around itself, it still needed to add important skills. The only
solution was to drop some abilities to make room for more
important ones. No doubt fascinating gifts were passed up or
lost. Based on what other animals evolved, we might have
tried sophisticated navigational systems that relied on
magnetism or echolocation (like bats or whales). Or a complex
sense of smell that made a simple stroll the equivalent of
reading a gossip column (like dogs). ... The best survival trick
was language, one worth sacrificing large amounts of trunk

18
space for, areas that might once have housed feats of empathy
that would put extrasensory perception to shame. ...
“What the brain really needed was space without
volume. So it took a radical leap and did something
unparalleled in the history of life on Earth. It began storing
information and memories outside itself, on stone, papyrus,
paper, computer chips and film. This astonishing feat is so
familiar a part of our lives that we don’t think much about it.
But it was an amazing and rather strange solution to what was
essential a packing problem: just store your essentials
elsewhere and avoid cluttering up the cave.”
Thus: the library.
But libraries are more than mere collections. They are also
homes for opposing or contrary thoughts, ideas and views that are
dangerous to populists and despots everywhere, to any form of
majoritarianism. They—and universities, which have libraries—
are crucibles of dissent, repositories of views of every kind. Every
republic needs space for dissent, disagreement and discussion, a
place for a fair and unbiased study of the past, a place where
anyone may read and access anything by anyone else. This is the
thinking republic, the only kind worth having. What every such
republic needs is libraries.
Our identity as a people is not, therefore, defined by a
majoritarian view or the assertion of one homogenized religion or
culture or history. It is defined by the precise opposite, that we
have no such singularity. The only identity we have is to be Indian
in this Republic, complete with conflicts forever unresolved,
contradictions never answered. And the only unity to which we
can hew without risking any othering is our Constitution.
In 1787, as he walked out of Independence Hall after the
Constitutional Convention in Philadelphia, someone shouted
out—or so the story goes—“Doctor, what have we got? A republic
or a monarchy?”, Benjamin Franklin is supposed to have
answered, “A republic—if you can keep it.”25
Can we?
Or will we stand mute witness to the dismantling of our
Republic?
Thank you for listening.
* * *

19
1
KUMAR, Virendra (ed.): Committees and Commissions in India, Vol 14:
1976; Concept Publishing Company, New Delhi, 1993.
2
GARNER, Bryan, ed.,: Black’s Law Dictionary, West Group, 7th ed., 1999.
3
MASSELOS, Jim: Indian Nationalism: A History; Sterling, 5th ed.,
2010
4
THAPAR, Dr Romila, AG Noorani & Sadanand Menon: On
Nationalism, Aleph Book Company, 2016.
5
LUTHRA, Sidharth, & Nivedita Mukhija: Nationalism Debate,
Concerns, and Constitutional Responses; 30 NLSI Rev 1 (2018).
6
Thapar, et. al., op. cit.
7
Luthra & Mukhija, id.
8
EVANS, John: The Use of Othering in the Formation of a Nationalist
Society; Portland State University; accessed 14th August 2020 at
https://www.academia.edu/1338990/The_Use_of_Othering_in_the
_Formation_of_a_Nationalist_Society.
9
WALLER, James: Becoming Evil: How Ordinary People Commit Genocide
and Mass Killing; Oxford University Press, 2002.
10
GINSBURG, Tom, and Aziz Z. Haq: How to Save a Constitutional
Democracy, University of Chicago Press, 2018.
11
Thapar, et. al., op. cit.
12
Romesh Thapar v State of Madras, 1950 SCR 594 : AIR 1950 SC 124.
13
Ram Nandan v State, AIR 1959 All 101 (FB).
14
CARAVAN MAGAZINE, Interview with Romila Thapar: What Has Been
Happening in Recent Times Could Well Develop into Fascism: An Interview
with Romila Thapar, 1st May 2016.
15
GROSBY, Steven: Nationalism: A Very Short Introduction; Oxford
University Press, 2005.
16
KAUL, Shonaleeka: The Idea of India,A Historical Corrective; The
New Indian Express, 14th August 2020; accessed online 17th August
2020 at
https://www.newindianexpress.com/opinions/2020/aug/14/the-idea-
of-india-a-historical-corrective-2183141.html
17
KASTURI, Malavika and Mekhola Gomes: To Say That an Indian
Nation-State Existed in the Ancient Past Is Historical Manipulation;
TheWire, 17th August 2020; accessed 18th August 2020 at
NOTES

20
https://thewire.in/history/india-nation-state-ancient-past-history-
manipulation
18
CHAVAN, Akshay: Blurring Lines Between Fiction & Fact; 3rd June
2018, accessed 14th August 2020 at
https://www.livehistoryindia.com/snapshort-
histories/2018/06/03/blurring-lines-between-fiction-fact
19
GHOSE, Sagarika: ‘Secular’ is a phony word: Citizens must work for a
modern society based on individual rights and freedom; Times of India,
13th August 2020, accessed online on 14th August 2020 at:
https://timesofindia.indiatimes.com/blogs/bloody-mary/secular-is-a-
phony-word-citizens-must-work-for-a-modern-society-based-on-
individual-rights-and-freedom/.
20
MEHTA, Pratap Bhanu: A wrong diagnosis: In post-mortem of
secularism, we are hand wringing over religion, missing the real crisis;
Indian Express, 11th August 2020, accessed online on 12th August
2020 at
https://indianexpress.com/article/opinion/columns/secularism-
pratap-bhanu-mehta-yogendra-yadav-ayodhya-ram-temple-babri-
masjid-6549335/.
21
D’SOUZA, Dilip & Joy Ma: The Deoliwallahs: The True Story of the
1962 Chinese-Indian Internment, MacMillan India, 2020.
22
JAHANBEGLOO, Ramin: The Decline of Civilization; Aleph Book
Company, 2017.
23
MANGUEL, Alberto: The Library at Night; Yale University Press,
2006.
24
ACKERMAN, Diane: An Alchemy of the Mind: The Marvel and Mystery
of the Brain; Scribner, 2005.
25
BROCKELL, Gillian: Did Ben Franklin really say ‘A republic if you can keep
it?’, The Washington Post, 19 December 2019, accessed on 17th August
2020 at https://www.washingtonpost.com/history/2019/12/18/republic-if-
you-can-keep-it-did-ben-franklin-really-say-impeachment-days-favorite-
quote/

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