Mohan Bhagwat's call for legal reform is welcome, but can anyone define what 'Bharatiya ethos' means?

At the silver jubilee celebrations of the Akhil Bharatiya Adhivakta (advocates) Parishad, RSS chief Mohan Bhagwat called for a comprehensive reform of the Indian legal system, in order to bring it in sync with 'Bharatiya ethos'.

Bhagwat had reportedly said, "Our Constitution was written based on the understanding of 'Bharatiya ethos' of our founding fathers, but many of the laws that we are using are still based on foreign sources, laws that were made as per their thinking. Seven decades have passed since Independence, and this is something we must address."

Addressing a society of lawyers that describes itself on its website as "working towards the object of resurrecting Bharatiya values", Bhagwat said, "Our legal system should also be based on such ethos. Discussion and debate should be held on this. After a comprehensive national debate we will have to arrive at a consensus and such a system should be made available to people. It should be such that it not only benefits our country but also sets an example for other countries."

File image of RSS chief Mohan Bhagwat. PTI

File image of RSS chief Mohan Bhagwat. PTI

One wonders what exactly is meant by 'Bharatiya ethos'. Prominent members of the RSS have been known to use the term, or a variant of it. Bhagwat himself famously remarked a few years ago that crimes against women occur in "urban India" but not in "Bharat". Furthermore, the RSS recently held a three-day conclave titled 'The Idea of Bharat'.

Accordingly, Bhagat's call for a revamp of the legal system and jurisprudence in order to bring it in tune with the moral value system of our society cannot be examined without referring to the RSS' opinion that India is first and foremost a Hindu nation. In fact, Bhagwat himself had once declared that all people living in India are Hindus, regardless of their actual religion.

But contrary to the RSS' and Bhagwat's understanding, any attempt to homogenise India on the basis of one single belief system is fundamentally opposed to the principles of our Constitution. A casual reference to the 'Bharitya ethos' of our founding fathers in drafting of the Constitution does not also quite square with history. In fact, far from incorporating any single system of belief, the Constitution of India is founded primarily on a recognition of the value of freedom and dignity of individuals, and explicitly protects the plurality of thought and belief.

One need look no further than the Preamble, which has been held by the Supreme Court to be part of the Constitution's basic structure, which recognises the right of all Indians to "liberty of thought, expression, belief, faith and worship". Though individual provisions may be amended, it is the law of this country that the "basic structure" is inviolable, and not subject to the moral views of a particular ruling dispensation.

It is upon this solid bedrock that the flowers of the freedoms that many of us take for granted today have sprung. It is possible to say, on a reading of history, that the only belief that the Constitution protects, is that every Indian citizen can believe what they want.

It is a well-known fact that the Constitution of India was drafted over a period of nearly three years, from the end of 1946 to August of 1949, and it drew significantly from the Government of India Act, 1935 (which was drafted under the rule of the British), and from the constitutions of various countries across the world, particularly successful democracies such as the United States of America, France, Ireland, Japan and Canada, which the framers relied upon to craft Part III of the Constitution of India, which contains our Fundamental Rights and which forms the very core of the Republic.

The Preamble, which was based on the Objectives Resolution moved by Jawaharlal Nehru during the Constituent Assembly Debates, was a modified version of several prior resolutions moved by the Congress during the freedom struggle. It encapsulated ideas collected by Nehru and other freedom fighters from their travels abroad and from the struggles of other oppressed nations.

In fact, Justice Hidayatullah had stated in one of his judgments that "if one compares the Universal Declaration with Part III and IV of our Constitution, one finds remarkable similarities in the two. It is significant that our committee on fundamental rights was deliberating when the Third Committee of the United Nations was deliberating on the Universal Declaration of Human Rights. Both are manifestos of man's inviolable and fundamental freedoms".

Inasmuch as Bhagwat is calling for a legal reform to keep our laws in tune with the Constitution, this should be welcomed by all, since this is precisely the mandate of our constitutional system. Under the Constitution of India, laws are tested on the anvil of constitutional provisions, and if they meet the requirements of such provisions and do not run foul of an individual's "inviolable and fundamental freedoms", they are valid and enforceable; if they do not, they are open to being struck down by the constitutional courts as void.

Indeed, there are several existing laws with Colonial roots that deserve immediate repeal, for example, Section 377 of the Indian Penal Code, which criminalises homosexuality and Section 124A which criminalises sedition, which are plainly at odds with the Fundamental Right to Life and the Fundamental Right to Freedom of Speech and Expression envisaged under Article 21 of the Constitution. However, one could be forgiven for thinking that Bhagwat's call for a nation-wide debate to bring the legal system in tune with morality of the Indian society was not to this end.

In the recent past, public calls for legal reforms have centred around the need for a ban on cow slaughter, though in the past some RSS leaders have been reported as having advocated for decriminalisation of homosexuality while continuing to oppose it as a social practice, which perhaps shows that the RSS is also willing to explore the notion that inherently subjective moral judgments should be divorced from laws.

For any nation or community to progress, a constant evaluation of the changing needs of society is essential to ensure that the legal system within which we function is one that is relatable for all. Sometimes, the legal system may be far ahead of the current norms, and at other times, far behind. The Constitution of India is not different and is often referred to as a "living document" for precisely this reason. The Constituent Assembly, which consisted of over 300 persons from different parts of India, had the foresight to ensure that even the Constitution, the very basis of the rights and duties of all Indians, could be amended in a manner to suit changing times and needs.

The chairman of the drafting committee, BR Ambedkar, had himself recognised this fact. However, the right to be free from the moral judgments of others, the right to openly profess a religion of one's choice, to wear the garb of one's fancy, to eat the food that you want, and to espouse the ideas that you believe in, are inviolable, beyond debate and greater than the victor of any particular general election.

Bhagwat's call for a change in the legal system stems from the RSS' belief that laws with a colonial legacy are not in tune with the morality of Indian society. It is clear that a large section of modern-day India does not necessarily agree with the RSS' views on morality, especially those pertaining to the roles of women and men in marriages, live-in relationships and homosexuality. Therefore, while Bhagwat has rightly exercised his right to freely express his view on the looming issues of morality and the legal system, it should be remembered that the RSS itself is a self-appointed body for preservation of Hindu value systems and beliefs and all Indians that form a part of India have an equal right to disagree to a legal system based on these.

Published Date: Sep 14, 2017 05:30 pm | Updated Date: Sep 15, 2017 07:35 am

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