MATCHBOX

This chapter and the next open up to the ways in which stepping out of the secular enables new visions of constitutionalism, citizenship, and anti-capitalist modes of existence, many of which we see articulated in the twenty-first century. What implications these have for other imaginable worlds is of course the key question to reflect upon. The task is not so much to reinvent or reject secularism, as to “step out” from the field stabilised and made visible by the concept—to accept that secularism is not a value in itself but only a strategy of governance.

            I have earlier distinguished between Secularism (with a capital “s”) as a strategy of rule, and secularism (with a small “s”) as the lived experience of coexistence among multiple communities.[i] However, this distinction, made in a last desperate attempt to as it were salvage something out of “secularism,” is not really sustainable. What appeared as the peaceful and mutual coexistence of heterogeneous communities turns out to have been largely marked by the violence of the powerful, by the hegemonising assimilationist moves of the dominant, and by the silencing of heterogeneous voices. Of course, there was also mutual coexistence, made possible by fuzzy boundaries between identities and mutual toleration, not necessarily out of respect or love but by maintaining strict limits to interaction.[ii] However, through the arguments in this book, which take into account knowledges from the broader global South as well as Dalit Bahujan scholarship, it seems to me the process of stepping out of secularism requires us to now identify the actual values that we consider meaningful, and seriously consider practices across the globe that try to bring any of these into being.

            The three values that would best capture ideas discussed in this book are these:

            First, democracy—as locally inflected and permanently heterogeneous. It should be clear that democracy here does not refer to the particular electoral procedure by which a government is put in place in a nation-state, this being only a recent phenomenon in human history. Democracy refers to something more fundamental, to the ways in which people seek autonomy to shape their lives and worlds, whether as individuals or as communities. Such struggles are “postnational”—in the sense that they represent ideas that are counter hegemonic, regardless of whether that hegemony refers to capitalism, sexuality, community-based majoritarianism, casteism, racism or any other. But, equally importantly, the “postnational” can be manifested in one of two dimensions— first, “over” the nation, across national borders; and second, “under” the nation, resisting inclusion into the larger national identity, insisting on space/time trajectories that are independent of and that do not mesh with progressivist dominant narratives of nation and history.3[iii]

            Second, social justice—with class, caste, race, gender, and multiple other dimensions.

            And third, ecological justice—considering the human as merely one part of a vaster nature.

            These three values stand in an uneasy relationship with secularism/ secularisation. Secularism per se does not guarantee democracy because it is perfectly compatible with majoritarianism. Secularism has certainly been historically very dismissive of non-economic claims to justice, especially of caste and race. And, finally, secularism has at best been blind to, and at worst has rejected, the idea of ecological justice because secularism is rooted in a modernist and progressivist frame and is unable to recognise as paramount those claims that counter the values proposed by modernity.

            The present chapter considers the kind of strategies to bring about these values that are most located within existing systems; the next moves towards strategies and understandings that are most outlying, focusing on anti-capitalist frames. To follow this trajectory, I will consider two themes here: constitutionalism as a radically transformative framework, and an expansion of the idea of citizenship. 

Insurgent Constitutionalism—

Chile and India

Can a Constitution be insurgent? Insurgency implies rising up against established authority, not necessarily with arms. To be insurgent is to resist an established order. How then can a Constitution, as a set of principles which establishes an order, be insurgent, as many Left oriented movements seem to produce it? By using the term “insurgent” alongside “Constitution” I am reformulating an argument I have made earlier regarding a dilemma that arises at the interface of radical political practice and the logic of constitutionalism.[iv]  By “constitutionalism” I refer to a specific method adopted by modern democracies for safeguarding the autonomy of the individual self. It is now generally recognised, however, that this objective is achieved by a process of enforcing universal norms that marginalise, render obsolete, and delegitimise contesting worldviews and value systems. This particular method of organising democracies has a specific history and arose in a particular geopolitical location—that is, in Europe in the seventeenth century. By historicising this method we remind ourselves, to use Upendra Baxi’s words, that “much of the business of ‘modern’ constitutionalism was transacted during the early halcyon days of colonialism/imperialism. That historical timespace marks a combined and uneven development of the world in the processes of early modernity . . . [C]onstitutionalism

inherits the propensity for violent social exclusion from the ‘modern’.”[v] The drive of constitutionality, then, is towards the erasure of any kind of normative ethic which differs from its own unitary central ethic.

            The dilemma that faces radical politics is what I called the “paradox of constitutionalism”—that is, the tension in which the need to assert various and differing moral visions comes up against the universalising drive of constitutionality and the language of universal rights.

            A Constitution is usually seen as a legal document that embodies a new dispensation or structure of power and which becomes a crucial reference point in the resolution of disputes between groups. Marxists, for instance, speak of bourgeois or socialist Constitutions—and there certainly is an element of truth in the characterisation of many modern Constitutions as bourgeois insofar as they protect property rights and civil rights, not economic democracy. However, that does not exhaust what Constitutions do. The hope inspired by the idea of a Constitution as the basis of a democratic state is as vibrant in the twenty first century as it was in the mid-twentieth, when the first wave of decolonisation took place across the global South.

            A comparison of Chile’s draft Constitution of 2022 and India’s enacted in 1950 yields some productive insights. As I will argue here, unlike the Constitutions of the West—which in a sense marked a closure of and an end to political ferment—the postcolonial moment inaugurated in the mid-twentieth century is very different. This difference lies in the fact that, rather than closing down possibilities and freezing power structures, the more modern Constitutions tend to be documents about open futures based on both democracy and social justice. They are also more likely to maintain the tension between competing interests rather than dissolve them in one direction or the other. This may not be true of all postcolonial Constitutions—a subject in need of a whole other book—but the two instances I consider below do embody such a perspective.

Chile

In Chile there were mass protests against the government in 2019–20. Caused by growing inequality, in these protests feminists, environmentalists, indigenous groups, and anti-neoliberal activists wanting progressive socio-economic change came together. Chileans soon elected a left-wing president, Gabriel Boric, by an overwhelming majority. A widespread and inclusive public debate followed regarding the best way forward, and in October 2020 voters approved the creation of a constituent assembly to draft a new Constitution, replacing the Constitution of the dictator Pinochet. The constituent assembly that came into being was based on reserved seats for Indigenous candidates and gender parity. The largest bloc of the 155 members of the constituent assembly were independents, largely left-wing in their politics. The person elected to oversee the process was an Indigenous left-wing academic, Eliza Loncon. The document that emerged envisaged a range of political and social reforms guaranteeing social rights—including housing, social security, health, work, and access to food. Environmental reforms were part of the Constitution, so that fighting climate change and protecting biodiversity, native species, and natural spaces became a state duty. Political reforms included an element of direct democracy, gender parity, indigenous rights, and a restructuring of the bicameral parliamentary system to give the Chamber of Deputies (the lower house) more power at the expense of the Senate.[vi] A visionary document that represented the spirit of the mass social movement that brought Boric to power, it was put to a plebiscite in September 2022, at which it was decisively defeated by 62 percent of the popular vote. Boric was forced into a cabinet reshuffle, removing key left-wing ministers and bringing in some figures from Chile’s traditional, conservative political class. How did this defeat come about, and what should we learn from it?

            Conservative think tanks and media celebrated the defeat of this “populist” Constitution as “a flawed vision of Utopia,”[vii] and as indicative of “democratic maturity.”[viii] Evidently the possibility of a Constitution such as the one that was expected to emerge was considered a dangerous threat to a presumably “democratically mature” neoliberal order, and a massive campaign of disinformation was carried out leading up to the plebiscite. An early 2022 survey found that 58 percent of Chileans had been exposed to some form of misinformation. Ciper, an investigative media outlet, found that most of those who voted against the new Constitution did so because of false information:

Ciper surveyed 120 people across 12 districts of Santiago and found that the main reasons for rejecting the new constitution were people’s fear of having their property expropriated, scare campaigns about unrestricted abortions and the spectre of indigenous people having more rights than the rest of the nation. None of these are accurate reflections of the proposed reforms.[ix]

            The Chilean-American writer Ariel Dorfman, however, holds that rejection of the Constitution cannot be ascribed entirely to the massively well-funded disinformation campaign. He believes it must be equally attributed to the uneasiness within a large majority about “the emphasis on the autonomy of Indigenous peoples, and the insistence on ‘plurinationalism’ in a land that prides itself on its unity.” Dorfman suggests that plurinationalism—the attempt to bring Indigenous nations and their languages, customs, and culture out of invisibility— threatens an identity innumerable Chileans felt to be their deepest— that is, their European heritage.[x]

            What we learn from this is that the “European” heritage cannot accommodate the rejection of secular-nationalism by Indigenous peoples—both through their non-secular beliefs and practices, as well as through the challenge to the idea of one nation founded on the dominant values of that society.

            Nevertheless, Dorfman does not see the plebiscite as the end of the road, but as “one more faltering step in the search for justice”: after all, 80 percent of the electorate voted to end the existing Constitution instituted under the authoritarian Pinochet regime. This indicates “the desire for significant reforms—for a different, participatory, vision of our future, for a nation that protects nature and cares for its most vulnerable people, that expects women to be protagonists and diversity to be tolerated.”[xi] We cannot therefore see Chile’s rejection of the new Constitution as a simple victory for conservatism. Any truly democratic road reflects heterogeneity and differences, and the fact that the people of Chile participated assertively in this process, sending the draft back to be reconsidered, indicates confidence among them that their voices matter. The very process of drafting a radical Constitution is linked to the battle for transforming common sense. Any new Constitution that emerges will represent a great deal of compromise, to be sure, but I suggest that such a Constitution can be insurgent too, provided that, rather than erasing internal tension between polar opposite political positions, that tension is maintained.

            The Indian experience with a 72-year-old Constitution is an important illustration of this claim.

India

In April 2019, on the eve of the general elections that would bring the Hindu supremacist BJP into power for a second term, the performance artist Maya Rao staged an event at a Women’s March. Ceremoniously, she stripped herself of her sari, and then slowly dressed herself afresh with cloth on which were inscribed the values of the Preamble to the Constitution—Equality, Liberty, Justice, Fraternity. Her performance invoked the scene from the Mahabharata of the stripping of Draupadi in the royal court, and of her being saved from shame by the god Krishna, who miraculously lengthens her strip of cloth infinitely. Rao draws on the wellspring of Hindu culture to subvert it, and to indicate that today the protection of the powerless will emanate from the Constitution.

            As noted, by the end of the first term of the BJP, the Hindutva project of establishing a Hindu Rashtra was well in place. Minorities and Dalits, as well as dissident voices even from within the Hindu community, were ruthlessly subjugated. Legal and mob-implemented diktats on whom to love and what to eat, targeted lynchings, and assassinations had already, via approval indicated by state silence, become the norm. A parallel project of the present dispensation has been the acceleration of predatory capitalism, with the state acting as an agent for crony capitalists. Through all of this there has been a growing sense that asserting the values of the Constitution is a powerful tool of resistance.

The term “constitutional morality” has taken on a new life. B. R. Ambedkar used this phrase in his speech “The Draft Constitution,” delivered on 4 November 1948. Analysing the phrase as he used it, Pratap Bhanu Mehta identified three strands to Ambedkar’s understanding of constitutional morality—freedom and self-restraint; recognition of plurality; suspicion of any claims to singularly and to uniquely

represent the will of the people.[xii] These are, one could argue, the essential conditions of a democracy—mutual respect for one another’s rights; acceptance and protection of a plurality that is not closed (that is, more and newer pluralities can emerge); and third, that no single movement or party or government can claim to fully represent the will of (all) people.

            In 2009, when Justice Shah’s court decriminalised sex between consenting adults of the same sex, the judgment invoked constitutional morality again. This reading added another dimension to it, contrasting it to popular morality. Popular morality is shifting, subjective, and changes with time, the judgment said. But constitutional morality in this view, represents the fundamental values of the constitution.[xiii] These values have come to be understood, in the mass movements of twenty-first-century India, as the values embodied in the Preamble— justice, equality, liberty, and fraternity (which we can understand more generally as mutual solidarity).

            Jignesh Mevani, a charismatic young Dalit leader and now a member of the Gujarat state legislature, said before the 2019 elections that he would place before the prime minister the Constitution and the Manusmriti—the ancient text venerated by the RSS which sets out the hierarchical caste system—and ask him to choose between them.[xiv] Mevani was referring to the police complaints against himself and other activists, and their potential arrest for attending a massive assembly of Dalits. This dramatic counterposition of the Constitution to the caste order has a long history going back to B. R. Ambedkar and highlights the insurgent possibilities in the Constitution.

            Similarly, the passing of the Constitutional Amendment Act (CAA) in December 2019, by which (as noted in Chapter 2) only Muslims in neighbouring countries were excluded from seeking refugee status in India, and which the BJP home minister indicated was the first step towards disenfranchising India’s Muslim citizens,[xv] evoked massive countrywide protests, led by Muslims, but including people from virtually all other communities. These protests, beginning at the end of 2019, and continuing with vigour until Covid restrictions began to be implemented with severity in March 2020, were remarkable for performances around the Preamble to the Constitution guaranteeing equal rights to all citizens. The 24-hour sit-ins occupied public spaces for months in numerous parts of the country, the sites growing into festivals celebrating the Constitution through music, dance, speeches, wall art, and periodic recitations of the Preamble. Public readings of the Preamble were organised at multiple sites, with hundreds showing up just to read out the Preamble in local languages and English. Overwhelmingly, it was women who led these protests.[xvi] The best-known of the protest sites was Shaheen Bagh, a Muslim neighbourhood in Delhi which has consequently acquired iconic and legendary status.[xvii]

            Chandrashekhar Azad, founder of the Bhim Army (invoking B. R. Ambedkar’s first name), a mass social movement advocating dignity for Dalits, has been arrested more than once. At his meetings, attended by thousands of Dalit youth, he routinely holds up a Hindi copy of the Constitution.[xviii] His face on an iconic poster widely publicised by the Bhim Army sports a proud moustache and stylish dark glasses, a direct performative challenge to the vicious caste system in which Dalit men have been physically attacked for daring to grow moustaches— and for that matter riding a horse to their own weddings as the upper castes do, or dressing well.

            These are just a few instances of the manner in which the Constitution has been owned, reiterated, and performed as the source of political legitimacy by different kinds of movements challenging contemporary injustice. What we have seen is that the Constitution no longer lives the singular life that liberal constitutionalism laid out for it, but has become for very many a call to radical transformation as well. The document has broken out of the confines of the liberal imagination that attempts to keep it in the safe custody of constitutional experts.

            There are two reasons for this. First, the Indian Constitution is not merely a liberal document in any sense. The debates in the Constitutent Assembly show that it emerged out of a variety of political opinions from Left to Right. Also, emerging as it did from a mass antiimperialist struggle, it tried to balance individual and community, formal equality and special provisions for historically disadvantaged groups, the drive towards industrialisation and the rights of the peasantry. This mid-twentieth-century moment is very different from that which produced the Constitutions of the West, which in a sense marked a closure of and an end to political ferment. The Indian Constitution contrasts with those by being widely seen as the beginning of a journey towards what its Preamble promises.[xix]

            The second reason why the Constitution is emerging as the banner of revolt for some struggles is the nature of Indian democracy, which has rarely remained confined to participation in elections. Of course, many movements have never accepted the Indian Constitution as a basis of legitimacy, but my focus here is only on movements that express their anger at their government by reasserting a vision of the Constitution. The explosion of mass movements across the country over the past decades, and especially against the BJP since 2014, is an indication that continuous democratic participation in decision-making has come to be taken for granted by most Indians. There is thus a growing divide between the people and the ruling elites, including all political parties, with the Constitution seen as standing by the people even as ruling elites deploy the state machinery and the law to subvert it.

            Faisal Devji terms the Indian Constitution a “document of conquest,”[xx] similar to the Euro-American Constitutions of the seventeenth– eighteenth centuries. While his analysis rightly tracks the heterogeneous competing visions that come together around the Indian Constitution, Devji then translates them through the lens of “American” and “French” constitutional experience, hence losing the specificity of time and place that should be central to all theorising. I am also puzzled by his characterisation of French constitutionalism as involving the acceptance of positive discrimination—in my view it embodies the quintessential Enlightenment perspective demanding elimination of all difference. As I have been arguing, it seems that at this moment in history a certain static understanding of secularism— as referring to the interrelationship of settled religion-based communities—has acted as a “misdirection,” drawing our attention away from the dynamism of a dense undergrowth of other relations, identities, and power structures that remain out of sight, ungrasped, untheorised.

            What we see in the contemporary moment is a revitalisation and reclamation of an over seven-decade-old Constitution which does not express a singular will or a singular ruling order. As suggested earlier, it would be a mistake to think of the Constitution as limited by elite discussions within a homogeneous body based on restricted franchise— although scholarship along these lines is to be taken seriously too.[xxi] My argument is that we must equally seriously reconsider this view when the Constitution is being reimagined in such radically transformative ways by mass movements.

            Recent scholarship shows, moreover, that in the making of the Constitution hundreds of individuals and civic organisations were involved. They wrote to the Constituent Assembly with requests for “representation of their group, religion, caste, tribe, or profession in the assembly’s advisory committee, or with demands to be recognised as minorities in the constitution.” Their engagement with the drafting of the Constitution continued throughout the three years of its process.[xxii] Within months of its enactment, many groups, including those socially marginalised, claimed in court proceedings the Constitution for legitimation of their rights to their practices and livelihoods.[xxiii] Gautam Bhatia terms it a “transformative constitution” which, first, transformed the subjects of a colonial regime into the citizens of a republic, and second, sought to transform society itself. This second goal is linked to the recognition that citizens needed protection not only from a despotic state but from traditional and feudal authorities.[xxiv]

            There are several important and productive tensions in the Constitution, of which I will mention just two: one arises from its push to end zamindari by bringing about a modern, individualist, capitalist regime of property, as opposed to the Fifth Schedule which protects collective ownership of tribal lands. As we shall see, the Fifth Schedule has been reanimated in the twenty-first century by the Pathalgadi movement of tribals, who invoke it to resist state takeover of their lands for handover to corporates. For their invocation of the Constitution, the Pathalgadi leaders are arrested on charges of sedition.

            Another such tension is within the Fundamental Rights clauses of the Constitution which establish both individual and community rights. This dilemma has often played out in courts as the rights of individuals versus the rights of communities to “their culture”—which can discriminate against, for instance, certain castes and women. The rights of communities are nevertheless protected in order to ensure safeguards against majoritarianism—the tension is not resolved but can be productive.

            In other words, the Indian Constitution is not a document that has managed to establish any kind of single or unitary order. If it was meant to legitimise the Brahminical, patriarchal, class society that India is, it certainly failed, for it ended up reflecting the heterogeneity of impulses of the anti-imperialist moment. It ended up, therefore, being a porous document with one foot in the future. While I do not suggest that the Constitution exhausts all possibilities for radical politics, it certainly seems to offer some kinds of movements the resources to think in radically transformative terms.

Here I consider one movement of many that have invoked the Indian Constitution against state power in India in the twenty-first century— Pathalgadi. Many others have also invoked the Constitution in the last two decades—for example the successful appeal to the Supreme Court against the criminalising of queer sexualities, and earlier the campaign for the Right to Information Act.[xxv] But from the point of view of the argument about stepping out of secularism, the best illustration is Pathalgadi.

(Excerpted with permission from Dr Nivedita Menon, Permanent Black, Duke University Press).  

[i] Menon 2007b.

[ii] In the context of Kerala, for example, James Chiriyankandath has argued that “the pragmatic politics of community rivalry and accommodation” form “an essential part of the political milieu of contemporary Kerala”: Chiriyankandath 1993. Ashis Nandy too, drawing on scholarship such as this, has suggested that the “communal harmony” founded in Kochi is based not on feelings of brotherly love but mutual dislike and minimum interaction: Nandy 2014.

[iii] I have developed this particular idea of the postnational, making its difference from Habermasian frameworks, along with a group of scholars from India, Pakistan, and Sri Lanka. See De Alwis, et al. 2009.

[iv] Menon 2004.

[v] Baxi 2004: 1184-5.

[vi] Miranda 2022.

[vii] Stott 2022.

[viii] Stuenkel 2022.

[ix] Bell 2022.

[x] Dorfman 2022.

[xi] Ibid.

[xii] Mehta 2010.

[xiii] Naz Foundation v Union of India, 2-7-2009 WP(C), no. 7455/2001 at para 79.

[xiv] Mevani 2018.

[xv] Link to a video of the speech of 2019 connecting CAA and the NRC: https://www.youtube.com/watch?v=Z_6E5hPbHg.

[xvi] This Wikipedia entry is the best collation of the protests around the CAA. https://en.wikipedia.org/wiki/Citizenship_Amendment_Act_protests.

[xvii] Mustafa, ed. 2020; Us Salam and Ausaf 2020; Khalid 2021.

[xviii] Hindustan Times 2020.

[xix] Menon 2008.

[xx] Devji 2021.

[xxi] For an argument of this kind that surveys other scholarship along similar lines, see Singh 2015.

[xxii] Shani 2022.

[xxiii] De 2018.

[xxiv] Bhatia 2019.

[xxv] I have discussed the legal campaign against Section 377 in “Performing the Constitution” (Menon 2023) and the insurgent constitutionalism of the RTI Act in Menon 2022.