India's cultural rightists lately have been doubling down on the narrative of India being a civilizational state. For instance, Santishree Dhulipudi Pandit, the Jawaharlal Nehru University vice-chancellor, has said that India is a "civilization state" and should not be reduced to a civic nation bound by the Constitution. Few will quibble with the virtues of India's ancient civilization. Mahatma Gandhi, for example, writing in Hind Swaraj contrasted the Indian civilization which elevated "the moral being" with the vacuous modern civilization fuelled by the West's imperial and colonial instincts to bolster bodily comfort.
However, as political scientist Amitav Acharya reminds us, Indian civilization is very eclectic, not homogenous. On the one hand, our freedom fighters, from Mahatma Gandhi to Bhagat Singh, and from Subhash Chandra Bose to Jawaharlal Nehru, notwithstanding their differences, articulated India's civilization in inclusive and pluralistic terms. On the other hand, Indian cultural rightists enunciate India's civilization as a tale of pure Hindu culture. The story goes that this pristine Hindu culture was contaminated by the cultural 'other' i.e. the barbaric Muslim invaders, followed by Christian missionaries, and now the time has come to restore Hindu civilizational glory. This exclusionary civilizational narrative is oblivious of India's rich syncretic culture nursed by the teachings of Guru Nanak, nourished by the poetry of Amir Khusro, Mirza Ghalib and Kabir Das, and cultivated by the devotional songs of Mirabai. The cultural rightists ignore the fact that Hindus, Muslims, Sikhs, and Christians toiled against British imperialism shoulder-to-shoulder. It also whitewashes uncomfortable truths such as the oppression of women and marginalized communities in ancient India.
Describing India in these exclusionary and ethnic civilizational terms amplifies society's fault lines, exacerbates existing prejudices, and widens social fissures. It comes tantalizingly close to Samuel Huntington's deeply contentious thesis of the clash of civilizations by giving credence to the argument that the enduring and invariable core of all civilizations is religious. Accordingly, if Christianity defines the West, then India is defined by Hinduism. Thus, nothing should come in the way of the pursuit of India's 'Hindu' civilizational ethos including the checks and balances imposed by values enshrined in the Indian Constitution.
Such a parochial description of India that weaponizes culture leads to the othering of religious minorities. It not only causes an upheaval in India's constitutional landscape through practices and laws that institutionalize the process of othering but also has the potential to undermine India's international law obligations. Let us understand how through some specific examples.
First, there is an all-round eagerness in India to deport Muslim Rohingya refugees, who are perceived as a national security threat, to Myanmar. The Supreme Court in the Mohammad Salimullah vs Union Of India ruled in favour of such deportation. However, such deportation is a violation of the customary international law principle of non-refoulment, which prohibits a country from returning refugees to countries where they face a clear threat of persecution. The International Court of Justice has recognized the persecution of Rohingya Muslims in Myanmar in The Gambia v. Myanmar case.
Second, we see a growing trend of using State bulldozers to demolish the houses of Muslims as a kind of collective punishment for alleged rioting or other such acts without following the due process of law. This kind of state action violates the international human rights law regarding the right to housing recognized by Article 11.1 of the International Covenant on Economic, Social and Cultural Rights. Besides, international law also prohibits arbitrary interference in an individual's right to property. For instance, Article 12 of the UDHR states that "no one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation". Article 12 also stipulates that "everyone has the right to the protection of the law against such interference or attacks".
This same right is also provided under Article 17 of the International Covenant on Civil and Political Rights (ICCPR) which further provides that everyone has the right to own property alone as well as in association with others, and that no one shall be arbitrarily deprived of his property.
Third, the Citizenship Amendment Act which aims to give Indian nationality to non-Muslim illegal migrants (mainly targeted at giving benefits to Hindu migrants) from Afghanistan, Bangladesh, and Pakistan, who came to India due to religious persecution, potentially violates the non-discrimination principle in human rights covenants like the ICCPR.
Fourth, multiple states have enacted laws to prohibit 'forceful' religious conversions including by marriage, also popularly known as 'love jihad' laws. According to these laws, any person who wishes to change her religion by marriage must give a 60-day notice to the State. The State will then conduct an inquiry into this conversion to see if it has been willingly done. This undue and arbitrary interference by the State, which could have the effect of dissuading marriage between interfaith couples, violates Article 16 of the Universal Declaration of Human Rights which recognizes the right to marry "without any limitation due to race, nationality or religion".
While it is true that historically the growth of international law was fuelled by European civilizing missions that took the form of imperialism and colonialism, what cannot be denied is that today's international law recognizes certain universal values, especially in human rights. The narrative of a civilizational state rooted in ethnicity and religion, and aimed at achieving mythical civilizational greatness, poses a threat to these human rights. Portraying India as a Hindu civilizational state should be resisted because it not only vitiates the core constitutional ideals, but also undermines India's commitment to a liberal international legal order.
Rather our inclusive freedom struggle followed by a liberal Constitution - the Magna Carta of our Republic - marks the institutionalization of our inclusive and secular civilizational values. Our allegiance should thus be only to the Constitution and not to some abstract civilizational standard.
(Prabhash Ranjan is a Professor of law and Vice Dean, Jindal Global Law School, O P Jindal Global University.)
Disclaimer: These are the personal opinions of the author.