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THE IDEA AND INTERNALISATION OF COLONIAL CONSCIOUSNESS IN THE INDIAN CONSTITUTIONAL LAW REGIME
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THE IDEA AND INTERNALISATION OF COLONIAL
CONSCIOUSNESS IN THE INDIAN CONSTITUTIONAL LAW REGIME
AUTHORED
BY - KARTIKA RAJ KARNA
Abstract
The
paper essentially deals with the application of post-colonial studies to the
interpretation of Indian Constitutional law and theoretical analysis thereof.
The phenomenon of colonial consciousness robs the civilians of their own
experiences of the world. This phenomenon is pervasive even today, and is
reflected recurrently in the legal discourse, such as- use of ERP test by the
judiciary, anti-conversion laws, the western idea of liberal secularism and
state neutrality as enshrined under Art. 25 of the constitution, the distorted
idea of agency and its relation to religious freedom and liberty, and
over-simplification of cross-cultural issues etc. The paper, tries to explore
the idea and internalisation of colonial consciousness in the Indian constitutional
thought particularly in respect of Article 21 and 25. It further tries to find
out the reason behind the distortion in the meaning of secularism and liberty
that arises in the Indian context while seeking the presence of psychological
orientalism in the minds of the colonised. The methodology adopted for the
purpose of conducting research is purely doctrinal. Considering the findings of
the paper it could be authoritatively stated that the phenomenon of colonial
consciousness is pervasive today and overall reflects itself in the
decision-making approach of the Indian Judiciary. Orientalism has become a part
of the psychology of Indians that refrains them from experiencing their own
reality which in turn leads them to erroneous interpretations of socio-legal
issues arising in the Indian context. The paper finds out that the eurocentric
and the petitio principii fallacy are the main causes that give rise to these
socio-legal problems and the distortions and suggests that a deviance from
resorting to solutions that oversimplify socio-legal issues is required to be
adopted, in order to avoid creating a pandora’s box
thereby.
Keywords:
colonial consciousness, liberty, secularism, psychology, constitutional law
I.
Introduction
“A major contribution in our understanding of
the entire Indian past is that this understanding derives largely from the
interpretations of Indian history made in the last two hundred years”[1]
Colonialism
creates a new perception of the world of the colonized. It robs the civilians
of their own experiences of the world and the former substitute their own
experiences with that of the colonizers. The colonized apply the assumptions of
the colonizers to understand and provide answers to their world problems. The
phenomenon of colonial consciousness pervades Indian thought, even today. There
are various contemporary debate surrounding the issues of anti-conversion laws
and use of essential practices test as a tool in the socio-religious diaspora
by the Indian Judiciary; the distortion in the idea of agency (with special
reference to women's agency) and perceived superiority of the notion of liberal
state neutrality, as a result of proliferation of the idea of superiority of
the West which in turn has deep fallouts on the principles enshrined under
Article 21 and 25 of the Constitution.
The Indian
Judiciary seeks to exterminate these distortions, problems, and fallouts by
following a very normative approach. This approach, however, does more damage
than remedy in as much as it resorts to solving the afore-mentioned issues by
over-simplifying and casually ignoring the complex cross-cultural issues
embedded at the heart of it. This problem, hence, relates to the
thought-process which has semblance to the Western philosophy, behind such
fault-marred interpretations and hence warrants the application of colonial
consciousness. This post-colonial studies’ concept would aid in the
understanding and recognition of the eurocentric and the petitio principii
fallacy at work herein, and provide solutions that are bespoke to India instead
of being just an imperialist replica that leaves us forlorn in the long run.
The
following paper attempts to identify and explain the idea and internalisation
of colonial consciousness in Indian Constitutional thought in order to provide
reasons for the development of the afore-mentioned problems in the first place
and to suggest possible remedies for the same.
II.
Research
Problem
The
phenomenon of colonial consciousness robs the civilians of their own
experiences of the world. The colonizers impose their own assumptions into the
minds of the colonized. These assumptions arise from the permeation of the
notion of cultural superiority and application of Western Normative ethics by
the colonizer. This phenomenon is pervasive even today, and is reflected
recurrently in the legal discourse, such as- use of essential practices test by
the judiciary, proselytization v. non-interference w.r.t. anti-conversion laws,
criticisms surrounding the western idea of liberal secularism and state
neutrality as enshrined under Art. 25 of the constitution, the distorted idea
of agency and its relation to religious freedom and liberty, and
over-simplification of cross-cultural issues etc. These problems have a
significant fallout on Indian constitutional and legal thought. This problem
can be analyzed by the application of the theory of orientalism to highlight
the issues at the core of this problem such as-identity, quest for cultural
homogeneity, power dynamics and the inter-connection between the culture and
history of the west and the orient. The colonized have to psychologically go
through the dilemma of choosing either individualist pagan traditions (the
Indian way of thinking) or the allure of classical modernisation when posed
with problems concerning the socio-legal aspects of liberty and secularism. The
internalisation of imperialism in the experiences of the people is a major
factor for problematic interpretation of aspects under constitutional law and
the remedy therein, sought for.
III.
Research
Objectives:
1. To
explore the idea and internalisation of colonial consciousness in the Indian
constitutional and legal thought.
2. To
assess the presence of psychological orientalism in interpretation of Indian
Constitutional Law
3. To
determine whether there exists an Indian Way of Thinking.
4. To
explain the distortion in the meaning of secularism and liberty that arises in
the Indian context.
IV. Research Questions:
1. Whether
the idea of colonial consciousness subsists in the trends in contemporary
Indian constitutional thought?
2. Whether
orientalism psychologically impacts the interpretation of questions relating to
Indian Constitutional Law?
3. Whether
there exists an Indian Way of Thinking?
4. Whether
the meanings of Secularism and Liberty face a distortion in the Indian Context?
V.
Methodology:
The
methodology adopted for the purpose of conducting this research is purely
doctrinal. Primary and secondary resources have been used for the purpose of
conducting the research, such as- statute, case laws, books, journal articles,
newspaper articles and essays. It is a purely interpretative, analytical and
exploratory study.
This
section essentially attempts to study and point out the areas of convergence of
post-colonial studies such as, but is not limited to - colonial consciousness,
cultural heterogeneity, Orientalism and cross-cultural relations and that of
Indian Constitutional Law thought specifically in relation to the notion of
liberty and secularism and rights and procedures enshrined under Article 21 and
25 of the Constitution.
VI.
What is
Colonial Consciousess?
The
phenomenon of colonial consciousness robs the civilians of their own
experiences of the world. The colonizers impose their own assumptions into the
minds of the colonized. These assumptions arise from the permeation of the
notion of cultural superiority and application of Western Normative ethics by
the colonizer. The use of these ethics is popularized and permeated by
propagating the idea of absence of ethics in Indian society. The colonized try
to replicate the way the Colonizers would respond when posed with substantial
socio-legal issues and use their terminologies to answer questions that are
bespoke to a different demography altogether. It represents and is built on the
notion of the cultural and civilizational superiority of the West. It is the
creation of a certain perspective or consciousness of perceiving the world and
its problems. Since, the colonized are robbed of their experiences they use the
experiences of the colonizers, which they are forced to perceive as
intellectually superior and employ the methods that resemble those that are
likely to be used by them when dealing with such issues. Since, at the heart
and core of the notion of colonialism lies the idea of, ‘unless the
colonized were weak how could they have been colonized?’, they promote
the idea of superiority of the West.
The
Colonizers employ various techniques to aid in their narrative of establishing
the accurateness of their act of colonisation to depict that whatever they did
was nothing immoral but actually was aimed at the emancipation of a morally
corrupt social structure[2],
or by demonstrating through various descriptions how India is a sans ethic
society, or by showing how there existed no presence of the term ethics in
Ancient Indian History[3].
Some of the techniques were the use of pedagogy or the practice of corruption
or caste-system prevalent in the entire Indian population to depict and forward
the notion that Indian society was inherently immoral and so were its social
structures and organisation.
They
also permeated this consciousness to create a particular image of the
ethnographic descriptions by the use of a theological framework in their
descriptions such as the use of the word ‘heathendom’ or the philosophy that
the heathens have been swayed over by the Devil and his Minions and the notion
that they are worshipping false Gods.[4]
This description transformed and became the rule by implication for the West[5].
The colonizers’ experiences were premised on and relied heavily on the concept
of Truth. One facet of colonial consciousness can also be traced to the idea of
the White Man’s Burden or the civilizational Mission entrusted upon the Western
civilization to civilise the barbaric Occident.
Since
the phenomenon of colonial consciousness constitutes the exercise of the
fallacy of petitio principii which translates to ‘assuming the truth of
the things that one wants to prove’, it is double faceted in order to
facilitate such exercise. It is based on both a cognitive premise and a
conclusion which is wholly based on their own narratives and
descriptions.
There
exists a definitive link between the study of colonial relics and the
interpretation of Indian constitutional legal thought.
The
idea and internalisation of the phenomenon of colonial consciousness can be
traced by the analysis of the myriad cross-cultural issues present in landmark
judicial pronouncements. We often fail to recognise these issues and resort to
adopting measures that over-simplify the problem at hand thereby rendering the
deep-rooted problems unattended which in turn aids in the formation of more and
more problems. One of them which closely encompasses nearly all of the problems
raised in this paper is the Sabrimala case.
VII. The Sabrimala issue and use of Essential Practices
test
The
Sabrimala Temple Authorities[6]
prohibited the entry of women aged between 10 to 55 years in the
sanctum-sanctorum of the Temple. This bar was challenged on grounds of
violation of women’s right to equality and life and personal liberty enshrined
under Articles 14 and 21 respectively. The arguments of the Defendants in this
case was that Lord Ayappa was a celibate and hence women of a certain age group
were not allowed and that the grounds had nothing to do with the concept of
purity. The Supreme Court in this case ruled in the favour of the petitioners
and upheld the right to entry of women in the temple and also held such a bar
to be constitutive of untouchability as it was built on the concept of purity.
The Supreme Court during the hearing framed one of the issues, as whether the
exclusion of women constituted an essential religious practice within the
meaning of Article 25 of the Constitution. The test of essentiality[7]
as employed by the Court means that only those practices enscribed under those
texts that are at the heart and core of the religion without which the religion
itself becomes vitiated, would not be regulated by the State and would receive
protection under Article 25.
“what constitutes the essential part of a religion is primarily
to be ascertained with reference to the doctrines
of that religion itself” [8].
The valid use of the essential practices
test would hence ensue when there exists unity on the authority and superiority
of a Single Text (that is supreme among all and from where all the others have
sprung up) and where there does not exist contrary views or diversity of any
kind. This position finds aid in the way Semitic Faiths exist: they have a
single holy book, a prophet and the idea of One True God or the idea of
Doctrinal truth. Hence, it can be said that technically, the application of the
ERP test becomes problematic when the above prerequisites are not fulfilled. It
leads us to an invalid interpretation where there exists no hierarchy in the
superiority of one text over another, like in Hinduism. The Bhagavad Gita is
not The Holy Book of All the Hindus. Many Scholars do not even believe Hinduism
to be a religion[9].
In
the Gram Sabha Case[10]
the Court relied on the wording of the Dharma Sastras to show how worshipping a
live cobra was not an essential practice of the Hindu religion while the
defendants tried to show reliance upon the Shrinath Lilamrut that prescribed
such type of worship. The Apex Court did not take into account the gigantic
religious diversity among Hindus itself. But the Court is not to be blamed
entirely herein, as it was just applying the ERP TEST and in order to apply
such test one has to assume that no diversity exists, that there is a supremacy
of one single text (Dharma Sastra) and the one employed herein is certainly
above the one that prescribes such behaviour (Shrinath Lilamrut).
The
use of the ERP is problematic in India, but would not be that much of a problem
in the Western Semitic faiths because in the latter the Court is just an
interpreter of something which is already established by a doctrinal truth and
by hierarchy of the religion[11].
However, it would cause structural and deep-rooted problems in India because, there
is an absence of all of the prerequisites stated above. The Role of filing that
gap would have to be taken up by the Judiciary which would transform its
position to a clergy rather than a judicial court. And hence, the Court then in
that situation seeks to protect and give precedence to rationality, neutrality
and scientific liberty[12]
(which theoretically have no place in the domain of religion). Hence any
practice that springs up from religion if judged discriminatory is now no more
a religious practice because it has been adjudged to be discriminatory[13].
Article 25 of the Constitution hence protects the autonomy of every religion
however, the ERP test essentially impinges on that.
The
liberal, normative, modern, privatized and secular idea of the genealogy of
religion was propagated by the Christians became a prominent and pervasive idea
of modern society[14].
Colonisation and neo-colonisation helped in the culmination of that. In
accepting such an idea, one must necessarily let go of the distinctive dynamics
that spring from our uniqueness. In the 1800s, the Queen of England issued a
proclamation[15]
that upheld the idea of tolerance and liberty in the religious domain in India
for the Hindus. However, this led to the Indians being forced to giving proof
of the authenticity and credibility of their practices and traditions in the
way that the Britishers understood, i.e., showing their mention in the true
religious texts and sacred doctrines of the Hindus.’
An
excerpt from the Britisher observation w.r.t. Questions about allowance of the
Hindus to practice something was as follows: -
“the
true interpretation of the religious law . . . will no doubt diminish, if not
extinguish the desire for self-immolation. The safest way of coming to a right
understanding on a point so interesting to humanity, is a rigid investigation
of the rules of conduct laid down in the books which are considered sacred by
the Hindoos”[16].0
The
Hindus tried to vigorously defend that their traditions and practices are
protected by their sacred books in the same way the Colonizers’ practices are
because only after proving it to the colonisers the way he understood would the
latter approve of the same to be valid. Hence, pagan traditions that had no
concept of doctrines and truth, hierarchy and superiority, now were forced to
aggressively defend their traditions and portray their superiority which many
authors believe is the cause of the rise of the Hindutva Movement. This vigor
often takes the shape of fanaticism which in turn leads us to the inevitability
of religious conflict.
The
aspect of colonial consciousness hence arises in this context in form
application of a test that is custom made for specific types of religions and
when the same is applied to other religions that are religions cum pagan
traditions it leads us to the discovery of a eurocentric and a petitio
principii fallacy.
VIII. Non-interference v. Proselytization: A theoretical analysis
of Anti-Conversion Laws
Anti-conversion
laws have been passed by various state legislatures and have succeeded the test
of constitutionality as well[17].
The
Indian way of thinking has favoured the Role of the State in the protection of
and management of religion as a public good[18].
This explains why the Indian Judiciary has had a likelihood of approving
anti-conversion laws and prohibiting proselytization.[19]
The
Semitic Faiths however, believe in the idea of One True God and the observance
of God's plans as the doctrinal truth and hence consider it their duty to
propagate and to transform others to accept the message of the One True God. The
pagan view however stems from the idea of respecting every religion as a
tradition and believes that there are many truths and many ways to achieve the
same and hence it will be immoral for him to allow people to come and interfere
in other people’s religions. Hence, he practices the policy of
non-interference. However, for the other semitic faiths it is moral for them to
interfere and proselytize in order to help others to follow the One True God’s
plan for humanity and to save the others from worshipping false Gods or
committing the sin of idolatry.
Proselytization
grows from the assumption that some religions or beliefs could be false or that
some religions could be better than others. But for the pagan every religion is
true and there are various forms of achieving the truth, therefore, he condemns
proselytization. This difference in views can also be the likely cause for
animosity between religious groups. This animosity is reflected via the
criticisms to the anti-conversion laws passed in India. The Indian Judiciary
has upheld the anti-conversion laws made and hence has chosen ‘a’ side that is
the mirror image of the pagan view. In the case of Stainislaus[20]
the S.C. upheld the constitutionality of anti-conversion laws.
In
this aspect one arrives at the necessary conclusion that the Indian State
cannot be neutral in the Western liberal normative sense, as it has in fact
promoted one community’s conception of good over another’s.
Neutrality
means, “Neutrality of justification requires that the state should not
include the idea that one conception of the good is superior to another as part
of its justification for pursuing a policy. Neutrality of effect, in contrast,
requires that the state should not do
anything
which promotes one conception of the good more than another, or if it does so,
that it must seek to cancel or compensate for these differential effects.”[21]
It
further brings us to the conclusion that even the semitism would fail to be
neutral towards the issue of conversion and would naturally support their own
theological good as the assumption even when condemning conversion, they
support the idea that religion is all about Truth and hence bolster the idea of
Freedom of Religion with liberty as its functional aspect and the freedom to
convert as its by-product. Hence the Western normative Liberalism has employed
the notion of truth to be paramount in religion and hence they themselves are
not neutral as they think along the lines of semitic truths whenever dealing
with questions relating to conversions.
Hence,
the only way the Indian state would be able to replicate the stance of the West
i.e., neutrality is to pretend to declare that they are agnostic but at the
same time frame legislations regarding religious freedom. The West did not face
the problem of such diversity of religion as all Semitic faiths have a similar
religious framework and semblance hence, the idea that what works for the West
would work for the East is not feasible in this context as India poses a unique
and a distinctive problem altogether.
This
is the problem that the current paper focuses on. It can be further understood
by looking at the Constituent Assembly Debates w.r.t. Article 25 of the
Constitution in which the Constitution makers although did not give the right
to convert within Article 25, however, allowed for the freedom to convert to be
inclusive of the word ‘propagate’ used in Article 25 of the Constitution to
pacify the Christians and their apprehensions[22].
However, the Indian Judiciary has adopted one of the views by upholding the
validity of anti-conversion laws and by that has upheld Secularism enshrined
under Article 25 of the Constitution. However, it forgets that it has merely
been successful in creating a pretence of state liberal neutrality /
agnosticism when it has actually made a choice between two goods. How can the
state be said to be neutral then?
IX.
The Idea of Agency
Under Article 21 and its Interposition with Postcolonial Thought
This
section essentially deals with the distortion in the idea of agency by using
two Indian events as examples to showcase how this distortion is created by the
application of Western normative ethics at the expense or by the preclusion of
the unique problems posed by India. It aims at exploring the presence or
essence of colonial consciousness in such interpretations of the two
discourses.
i.
The case of Nude Worship and issue
of Agency
As
we have previously observed how the phenomenon of colonial consciousness works
on the trivialization of the experiences of the colonized and how there exists
a substitution of their own experiences with that of the Colonizers. This leads
to alienation of the people from their own beliefs who now only operate on the
beliefs of the colonizer. This trivialization is often deep-rooted in as much
as it leads to the distortion and denial of one’s own experiences of the world.
The experience of another culture gets engraved into the theory and formulates
itself into another culture altogether. This ignorance of cross-cultural issues
often leads us to these distortions or denials even today.
Colonial
consciousness can be further broken down into two aspects when it comes to the
approach of colonialism via discourse. They are- Forms of Knowledge and Modes
of Description. The former relates to the creation of the rhetoric that helped
in the permeation of the predominance and superiority of the West and the
latter relates to the use of history and identity to establish laws and
regulations that establish homogeneity in the world of the colonised. However,
this dominance was not achieved because the permeation or penetration of the
colonial thoughts happened unevenly and hence dominance was achieved and not
hegemony. Practices like Sati became the torch-bearer for the argument for the
classical modernisation of Indian society and it aided in the portrayal of a
degraded picture of Indian society. Modernity hence, had two types in
India- colonial and post-colonial which often creates problems in the current
world.
The
ritual of Bettale Seve or nude worship as performed in certain parts of North
Karnataka was banned in the 1980s owing to the public outcry that it forced
women to do the worship in nudity and hence was violative of Articles 21 of the
Constitution. Article 21 of the Constitution guarantees to everyone right to
life and personal liberty and one’s agency over one’s life lies at the heart of
this article. This practice was based on two myths regarding the worship of
Goddess Renukambha. The question regarding agency arises here because there
existed a colonial framework under which the Sati subject was given no agency
because the framework itself was built on the assumption that religious
practices could never be observed by the application of consciousness but is
always a result of passive obedience. Hence, the rumour that was promoted was
that women that did the seve were either forced to do so or were intoxicated so
that they do not know the nature and consequences of their acts. Hence, we
can infer the mere assumption of the fact that coercion had taken place often
negates the possibility that the ritual can be performed voluntarily.
In
order to go beyond the popular discourse of traditions v. modernity one. We
have to look into the possibility that this modernity could just be quest for
establishment of homogeneity in disguise and in doing the contrary one
overlooks the very principle enshrined at the heart and core of the ritual
i.e., the celebration of female sexuality.[23]
Furthermore,
one needs to realise that the notion of tradition is native to India as it is
based on instincts and feelings. However, the notion of modernity which is
constitutive of scientific behaviour and application of reasoning and logic is
non-native to India and is Western[24].
Moreover,
the ritual is not even based on the concept of shame or sex it has an
altogether different underlying principle at the core, that is to emancipate
the thought of the dalit women so that she becomes critical and sensitised to
the ideas of shame and rationality and modesty and so that she does not biome a
puppet of the patriarch. In this sense the ritual upholds the idea of
feminism. Furthermore, the whole ritual also can be interpreted to represent
the events of death and rebirth from the way it is performed.
What
prevents us from looking into these interpretations is the assumption that
since the practice is discriminatory it fails to be a religious practice at
all. What lies at the heart of this is therefore, the quest for homogeneity,
the quest that bolsters the White Man’s burden, the quest that makes other
people realise that they do not possess any agency in their lives all of which
stems out of a false presumption i.e., religious practices can never be an
outcome of a conscious choice made by the individual. This assumption can only
arise where the person making the assumption does not belong to or knows the
culture of the subject making all of it a cross-cultural issue. Banning the
practice involved over-simplification of the whole problem. Ascribing the aspect
of agency on the basis of an invalid assumption furthers that
oversimplification.
This
in turn leads to the distortion in the idea of agency as we try to replicate
the assumptions of the colonizers[25],
thereby reflecting the presence of colonial consciousness.
The
Supreme Court of India has tried to use the test of essentiality as seen
previously in order to clean all the superstitions in the religions to suit its
own ideas of reform that match the 21st Century Classical Modernisation
standards[26].
In doing so the custodian of fundamental rights does more damage than remedy in
as much it takes away the religious autonomy of an individual that is protected
under by the purview of Article 25 of the Constitution.[27]
It
has also been observed by renowned jurists all over the world that, "What
is religion to one is superstition to another."[28]
Under
Article 29 of the Constitution the citizens should be allowed to have a say in
what constitutes essentiality and what constitutes superstition[29].If
the Indian State is not allowing that, how can the state be said to be neutral
and democratic considering the fact that rights enshrined under Article 25 are
individual based rights.
X.
Psychological Orientalism
and Experiential Reality: A post-colonial perspective
Orientalism
in the most basic words is the explanation of the history, life, traditions,
and practices of the East as seen through the lens of the West[30].
Colonial Consciousness as we have already observed is a phenomenon which causes
alteration in the psyche and culture of the colonised. As Edward Said has
rightly said, “psychologically, Orientalism is a form of paranoia,
knowledge of another kind”[31].
Imperialism as defined by Edward Said is, “the practice, the theory,
and the attitudes, of a dominating metropolitan centre ruling a distant
territory; ‘colonialism’, which is almost always a consequence of imperialism,
is the implanting of settlements on a distant territory and often involves
untold miseries for others”[32].
Edward said in his work on Orientalism has stated how the Orientalist discourse
attempts to divide the world into fragments of ‘they’ and ‘us.’ This perception
of the Orient by the Occident was further popularised by the Colonisers in
order to create a certain image of the East. This view aided them in defending
the stance of the ‘White Man’s Burden.” The redefinition of various Indian
concepts and the rewriting of Indian history by the Colonisers further aided
them in defending their acts of transgression as their defence was that the
Indian society was in need of civilisation.
Such
dominance if not heterogeneity by the colonialists created a sense of
consciousness that permeated thought, belief and understanding of the
colonised. It penetrated into the domain of social, cultural, political,
economic and psychological experiences of the people and replaced them with
those of the colonisers.
Franz
Fanon also believed that colonialism was inherently immoral as it made people
alien to their own world in as much it internally coerced one to find the
answer to the question of “In reality, who am I?”[33]
In
other words, colonialism is considered degrading and dehumanising for the
simple reason that it “seeks to dehumanize them (inhabitants). Everything
will be done to wipe out their traditions, to substitute our language for
theirs and to destroy their culture”[34].
This dehumanizing hence relates to the self in which one starts perceiving
oneself as culturally, morally, intellectually and ethically less superior than
the colonisers. This is the view that the colonists propagate and which
permeates into the minds of the colonised. This is how colonial consciousness
permanently establishes itself into the psychology of the colonised. This is
what prohibits him from making use of his experiences or in other words his own
experiential reality.
XI.
The Indian
Experience: Differences in the way people think
There
are various characteristics that are unique to Indians, the presence of which
indicate that there exists a particular way in which Indians think and that way
is clearly distinctive from the West or its descriptions thereof. The Indian
thought believes that truth is not a universal categorical imperative as
opposed to Kant’s views. Furthermore, truth in Semitic Faiths is associated
with Godliness. Indian thought also lacks the presence of universality whereas,
the Kantian view stands on the buttress of universalism of Truth[35].
Moreover, Indians tend to contradict themselves or to say different things at
different times. This does not signify that they are liars but just portrays
differences in the way of thought. They further place a lot of reliance on the
art of contextualization.
In
order to analyse how the Colonial Consciousness affects the thoughts and
experiences of the colonised it is imperative to know how the Indians and the
West have inherently different ways of thinking. This difference in way of
thinking leads us to the conclusion that the Orient and the Occident are in
fact very different. Hence, the permeation of cultural superiority is
established by the evolution of cross-cultural morality. In Richard Schweders
views[36],
who conducted a survey and based on certain questions arrived at the conclusion
that because the answers of the Indians are very different from that of the
Colonisers, the latter are in fact moral imbeciles[37]
He further goes on to provide reasons why Indians think in such a way and
defends it. This reasoned defence however, leads us to the conclusion that he
too believes that Indians are inherently immoral[38].
Van
Den Bossche, a philosopher analyzed a Jain text called the Vajjalaggam[39]
to decipher the nature of Indian ethics and stated that the whole text and not
mention of any term that even remotely resembled the term ethics. Hence, the
colonists took the easy interpretation of this finding to show and promote the
view that Indians therefore are immoral since Indian ethics are non-existent.
Dr. Claudius Buchanan stated that, “Neither truth, nor honesty,
honour, gratitude, nor charity, is to be found in the breast of a Hindoo”[40].
Similarly, Hastings stated that, “the standard of morality among the
natives of India differed widely from that established in England. He knew that
he had to deal with men destitute of what in Europe is called honour, with men
who would give any promise without hesitation, and break any promise without
shame, with men who would unscrupulously employ corruption, perjury,
forgery, to compass their ends. His letters show that the great difference
between Asiatic and European morality was constantly in his thought.[41]
XII. Conclusion and Way Forward
There
exists a definitive link between the study of colonial relics and the
interpretation of Indian constitutional legal thought. The idea and
internalisation of the phenomenon of colonial consciousness can be traced by
the analysis of the myriad cross-cultural issues present in landmark judicial
pronouncements. We often fail to recognise these issues and resort to adopting
measures that over-simplify the problem at hand thereby rendering the
deep-rooted problems unattended which in turn aids in the formation of more and
more problems.
The aspect
of colonial consciousness hence arises in this context in form of the application
of the ERP test that is custom made for specific types of religions and when
the same is applied to other religions that are religions cum pagan traditions
it leads us to the discovery of a eurocentric and a petitio principii fallacy.
This fallacy needs to be cured because the Corut establishes binding principles
of Constitutional Law on the basis of the fallacy.
The Indian Judiciary has upheld the
anti-conversion laws made(cite) and hence has chosen ‘a’ side that is the
mirror image of the pagan view. In the case of Stainislaus[42] the
S.C. upheld the constitutionality of anti-conversion laws. In this
aspect one arrives at the necessary conclusion that the Indian State cannot be
neutral in the Western liberal normative sense, as it has in fact promoted one
community’s conception of good over another’s. This is a major challenge
for the Indian Judiciary considering India is a secular democracy along with
the problem portrayed w.r.t. use of the word ‘Propagate’ under
Article 25.
With
respect to the distorted meaning of agency and related aspects, colonial
consciousness prevents us from looking into those interpretations that would
help us tackle the issue in an effective manner. What lies at the heart of the interpretations
made is therefore, the quest for homogeneity, the quest that bolsters the White
Man’s burden, the quest that makes other people realise that they do not
possess any agency in their lives all of which stems out of a false presumption
i.e. religious practices can never be an outcome of a conscious choice made by
the individual. Ascribing the aspect of agency on the basis of an invalid assumption
furthers that oversimplification. This in turn leads to the distortion in
the idea of agency as we try to replicate the assumptions of the colonizers,
thereby reflecting the presence of colonial consciousness.
The
Supreme Court of India has tried to use the test of essentiality as seen
previously in order to exterminate all the superstitious beliefs in the
religions to suit its own ideas of reform that match the 21st Century Classical
Modernisation standards. In doing so the custodian of fundamental rights does
more damage than remedy in as much it takes away the religious autonomy of an
individual that is protected under by the purview of Article 25 of the
Constitution. This in turn distorts the meaning of Article 25 in the Indian
context.
The dehumanizing
nature of colonialism hence relates to the self in which one starts perceiving
oneself as culturally, morally, intellectually and ethically less superior than
the colonisers. This is the view that the colonists propagate and which
permeates into the minds of the colonised. This is how colonial consciousness
permanently establishes itself into the psychology of the colonised that
compels the colonised to forego their own experiences of the world.
Hence, the
way forward is to try and eliminate the eurocentric and the petition principii
fallacy that led the Indian Judiciary to arrive at such problematic
interpretations that do more damage than good. Furthermore, the use of the ERP
test by the Judiciary most of the times unknowingly becomes a quest for reform
which must be discouraged and certain caveats must be established in form of
policy reform that cater to India’s unique problems.
[1] Lata Mani, Contentious Traditions:
The Debate on Sati in Colonial India (Berkeley: University of California Press,
1998).
[2] S.N. Balagangadhara, The Heathen
in His Blindness: Asia, the West and the Dynamic of Religion (Leiden: E.J.
Brill, 1994; Reprint, Delhi: Manohar Publishers, 2005).
[3] Richard A. Shweder, Manamohan
Mahapatra and Joan G. Miller, Culture and Moral Development (Chicago: The
University of Chicago Press, 1987)
[4] D. Spurr, The Rhetoric of Empire:
Colonial Discourse in Journalism, Travel Writing, and Imperial Administration
(Durham: Duke University Press, 1993).
[6] Indian Young Lawyers Association
vs The State of Kerala, (2017) 10 SCC 689 (India).
[7] Comm'r, Hindu Religious
Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, 1954
SCR 1005, 1021 (India)
[8] Acevedo Deepa Das, Gods’ Homes,
Men’s Courts, Women’s Rights, (International Journal of Constitutional Law, 2018).
[9] Shashi Tharoor and Sadhguru.
[10] Gram Sabha of Village Battis
Shirala v. Union of India, (2014) SCC Online Bom 1395 (India).
[11] Quran> Hadith> Sunnat>
Ijma> Qiyas
[12] Mehta, Pratap Bhanu. India: The
Politics of Religious Reform and Conflict. In Religion, the Enlightenment, and
the New Global Order, pp. 174–93, (New York: Columbia University Press, 2010).
[13] Acevedo, Deepa Das. Gods’ Homes,
Men’s Courts, Women’s Rights, (International Journal of Constitutional Law,
2018)
[14] Asad, Talal, Genealogies of
Religion: Discipline and Reasons of Power in Christianity and Islam. (Baltimore:
Johns Hopkins University Press, 1993)
[15] Governor General in Council to a
letter requesting clarity on the official colonial policy towards the practice
of self-immolation by widows, cited in Majumdar (1988, p. 102).
[16] From an ‘appreciative notice of
Raja Rammohun Roy’s first Tract on Suttee’ in the Calcutta Gazette of December
24, 1818.
[18] Acevedo, Deepa Das, Divine
Sovereignty, Indian Property Law, and the Dispute over the Padmanabhaswamy
Temple, pp. 841–65 (Modern Asian Studies 50, 2018); Acevedo, Deepa Das, Gods’
Homes, Men’s Courts, Women’s Rights. (International Journal of Constitutional
Law, 2018); Acevedo, Deepa Das, Pause for Thought, Supreme Court’s Verdict on
Sabarimala, pp. 12-15 (Economic & Political Weekly, 2018).
[19] Bhargava, Rajeev, Introduction: In
Secularism and Its Critics, pp. 1–30 (New Delhi: Oxford University Press, 1998);
Jacobsohn, Gary Jeffrey, The Wheel of Law: India’s Secularism in Comparative
Constitutional Context. Princeton, (Princeton University Press, 2009); 30, Sen
Ronojoy, Legalizing Religion: The Indian Supreme Court and Secularism, (Policy
Studies. Washington, DC: The East-West Center, 2007).
[21] Mason 1990, p. 434.
[22] 7 CONSTITUENT ASSEMBLY DEBATES
(Dec. 6, 1948), http://parliamentofmdia.nic.in/1s/debates/vol7p20a.htm
[23]. Lata Mani, Contentious
Traditions: The Debate on Sati in Colonial India (Berkeley: University of
California Press, 1998).
[25] Id at 92.
[26] Faizan Mustafa & Jagteshwar
Singh Sohi, Freedom of Religion in India: Current Issues and Supreme Court
Acting as Clergy, 2017 BYU L. REV. 915 (2017).
[27] Id at 933.
[28] Adelaide Co of Jehoviah Witnesses
v Commonwealth (1943) 67 CLR 116, 123 (Austl.).
[29] INDIA CONST. art. 29, § 1; Comm'r,
Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri
Shirur Mutt, 1954 SCR 1005, 1021 (India) at p 1025.
[30] Said, Edward W., Orientalism, (New
York: Random House Inc, 1979).
[32] Supra note 1 at p.8
[33] Fanon, Frantz, The Wretched of the
Earth. Trans. Constance Farrington, (London, 2001)
[35] Muller, Friedrich Max, India: What
Can it Teach Us? (London: Longmans Green, 1883);
6, Copleston and Friedrich Charles, A History of
Philosophy, (London: Burns, Oats and Washbourne, 1946);
Mackie, John Leslie, Ethics: Inventing right and
wrong, (Harmondsworth: Penguin Books, 1997).
[36] A Canadian Professor and a
cultural psychologist.
[37] Richard A. Shweder, Manamohan
Mahapatra and Joan G. Miller, ‘Culture and Moral Development.’; in
Jerome Kagan and Sharon Lamb, Eds., The Emergence of Morality in Young Children
(Chicago: The University of Chicago Press, 1987).
[38] Id at 43-44.
[39] Frank Van Den Bossche and Freddy
Mortier, The Vajjalaggam: A Study in Virtue Theory, (Asian Philosophy 7,
no. 2,1997).
[41] The Life of Robert Lord Clive;
collected from the Family Papers, communicated by the Earl of Powis. By
Major-General Sir John Malcolm, K.C.B., (London: 1836) in Thomas B. Macaulay,
Critical and Historical Essays, vol. 1.
Article Information
THE IDEA AND INTERNALISATION OF COLONIAL CONSCIOUSNESS IN THE INDIAN CONSTITUTIONAL LAW REGIME
Authors: KARTIKA RAJ KARNA
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/04/16
- Issue 7
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