Opinion J Sai Deepak writes | On petition for a Renaming Commission: The right to rename

What explains this incongruity in the same dispensation’s approach to similar aspects of history? While it could be a case of bureaucratic continuity or gaffe, one may reasonably assume that perhaps “secularism” is partly responsible. After all, regardless of which political vehicle holds the reins of power, every arm of the Indian state, elected and unelected, feels the need to burnish its “secular credentials”, often at the expense of historical truths and to the detriment of civilisational consciousness.

It is a reality of Indian public life that secularism, or at least its muddled and hazy Indian variant, has become the unfortunate and loaded go-to touchstone on the anvils of which the legitimacy of every cause and concern is assessed; to the extent, that even truth, justice and survival are not accorded the same primacy as secularism. The entrenchment of secularism in our political, societal, and constitutional discourse is evident from the fact that the relevance and impact of secularism on this civilisation’s right to dignity and survival has rarely been challenged or examined by any political vehicle of significance or even constitutional organs. On the contrary, everyone and every cause is expected to bend the knee at the altar of secularism because we are repeatedly told that commitment to secularism is part of the immutable terms of our social contract “urf” (aka) the basic structure of the Constitution.

Take, for instance, a recent development: A day after Gujarat Tourism’s tweet, on February 27, a bench of the Supreme Court dismissed a petition filed under Article 32 of the Constitution by a public interest litigant. The Petition sought, among other things, the creation of a “Renaming Commission” to enable reversion of places named by or after invaders to their original names, and to update official records and websites to reflect such reversion. The Petition, which asserted the right to dignity, religion, culture and the right to know under Articles 21, 25, 29 and 19 and raised seven questions of constitutional import, was dismissed by a 14-page judgment. After reiterating the integrality of secularism to the basic structure of the Constitution with reference to landmark judgments, including the Kesavananda Bharati (1973), which is synonymous with the Basic Structure Doctrine, the Bench dismissed the petition based on the following reasoning.

One, that the present and future of a country cannot remain a prisoner of the past, and that governance of Bharat must conform to Rule of law and secularism (Paragraph 9). Two, that the country must move forward, with the Directive Principles of State Policy and Fundamental Rights acting as two wheels of the chariot of the State (Paragraph 10). Three, that the history of any nation cannot haunt future generations, that the principle of fraternity is of greatest importance and that Bharat is a “secular nation” committed to securing fundamental rights of all sections of the society (Paragraph 11). And, therefore, the Supreme Court as the guardian of fundamental rights should not grant the reliefs sought in the petition (Paragraph 12).

In one’s humble opinion, unfortunately, none of the reasons proffered by the Court address the central issue raised in the petition. How exactly does the Constitution’s commitment to secularism come in the way of acknowledgment of history and restorative justice? If this is based on the assumption that secularism translates to absence of a state religion, such an assumption is historically untrue.

Secularism, which has its origins in Christian Europe, merely requires clear lines to be drawn between the domain of the Church/religion and the domain of the state. This is to ensure that ecclesiastical institutions do not interfere with the exercise of sovereign power by the state, and the state too does not take over ecclesiastical property or interfere with the exercise of ecclesiastical power in the realm of religion.

In fact, the history of evolution of Westphalian nation-states in Europe is the history of evolution of secular Christian states whose understanding of secularism is markedly different from the fuzzy and confused Indian variant.
Given this history, secularism does not require the state, much less the society, to relinquish its religious identity. It follows that just as there are secular and multicultural Christian nation-states in Europe, it is equally possible for Bharat to be a secular and plural Hindu civilisational state. Of course, one could go a step further and ask as to why Bharat should be bound by the values of Europe, and whether secularism has any basis in our own civilisational ethos. That would require original, confident and unfettered decolonial thinking, which the Indian state or even society is not yet ready for in the realm of domestic political thought, despite a marked change in the state’s foreign policy.

Even assuming that we equate secularism with the absence of a state religion, it does not have the effect of denying the religio-cultural roots of the society and its history. Simply put, the state apparatus can distance itself from all faiths, but society is not and cannot be expected to sever itself from its roots. This inability to appreciate that secularism is, at best, a requirement of the state apparatus, and not the society, is the root cause of foisting secularism onto the society, which results in denial of its rights to reclaim its consciousness and identity. To do so with a society that has suffered both invasion and colonisation is a travesty of justice.

In any case, acknowledgment of historical truths does not require the state to embrace a particular religious identity. So, again, where exactly is the conflict between the state’s commitment to secularism and the recognition of this land’s civilisational identity? Also, applying the apex court’s logic, by retaining the names imposed by invaders, aren’t we, as a society, still prisoners of the past? Isn’t renaming a step towards psychological decolonisation? Critically, if preservation of “fraternal bonds” between communities is contingent on the use of secularism as a selective filter to pixelate the civilisational identity of this land, what does it say about the strength of such “bonds” and the price they extract?

Clearly, Bharat’s political and constitutional institutions need to revisit the history of secularism instead of using it as a catch-all filter to prevent access to truth and restorative justice.

The writer is a commercial and constitutional litigator who practises as an arguing counsel before the Supreme Court of India, Delhi High Court and the NCLAT. He is the author of India that is Bharat: Coloniality, Civilisation, Constitution and India, Bharat and Pakistan: The Constitutional Journey of a Sandwiched Civilisation