At the outset, while the smattering of words and phrases like “constitutionalism”, “constitutional morality”, “test of constitutional jurisprudence”, “culture of the constitution” etc., has virtually become ubiquitous in the socio-political discourse in India, it is required that certain obscure details of an otherwise infamous incident wherein Veerendra Heggade, a philanthropist and the hereditary administrator/Dharmadhikari of the Dharmasthala Temple of Lord Manjunatha settled a dispute in a matter of 15 minutes after it lingered in the Supreme Court for 30 years, be presentably conveyed.
Veerendra Heggade, while considering the proceedings of the Manipal Family Dispute, asked both the petitioners and the defendants who had previously filed a slew of affidavits in the Supreme Court, supposedly verified to the best of their knowledge and conscience, to swear on their stand before Lord Manjunath. The dispute was resolved in a matter of minutes.
If there is a civil dispute between people who have faith in Dharmasthala, they take the matter to the ‘court’ of Sri Manjunatha. Closing their eyes and raising their hands, they make him the final arbitrator on the matter. Once the dispute has been referred to the deity, the verdict given by ‘Sri Manjunatha’s voice’ — through Heggade — is accepted as final and binding. Even the civil courts accept the verdict.
Alongside this, a study conducted by Mahatma Gandhi Open University of Kerala on 150 Panchayat adjudications that involved dispute settlements with the modus operandi as crude, ignorant, unscientific and logic-less as was in the Manipal Family Dispute case, concluded that almost all the verdicts profoundly resonated with the Constitutional ethos.
Today, owing to the unfortunate fact that any perspective or an ideological viewpoint in India stands the test of reasoning only when it has a Western philosophical backing, it is important to analyse the theories of two great experts who worked on the relationship between the state and the society, the fulcrum of the balance that is required for the successful operation of any constitution.
One was HS Maine, a British jurist and historian, who worked as a clerk for the East India Company, studied the Indian society and articulated that India was a backward society which worked on relationships and status and the British were a modern society that worked on the base of contracts. He went on to add that it is the contract based modern societies that are going into the future while the relationships and status based societies shall be wiped out. In fact, the entire western anthropological modernity that works in law, constitutionalism, socio-political and economic spheres is based on Maine’s theory that a contract based social order is superior to a relation based social order.
It is especially important here to note that India’s living civilisation is carefully balanced on a relation based social order that has been maintaining and stabilising it. Because for around 90 crore people living in around 6.5 lakh villages in India there are just 10,000 police stations. India cannot be supervised on the basis of a contract (read law). It is practically not possible to effectively deliver justice in India (3.3 crores of pending cases).
This is where one is required to look into an example set by a tiny village just 25 miles from Madurai called Palamedu in Tamil Nadu. This village is inhabited significantly by two communities: The Nadars and the Scheduled Castes. The Nadars set up a dairy cooperative around sixty years ago and have grown into one of the strongest communities in the dairy business, supplying milk and dairy products to around 500 villages nearby. The president of the cooperative drives a two-wheeler behind the milk van without boarding onto it, to organise and supervise the entire distribution every day for more than half a century now. The integrity and honesty they display in their business ethics and the quality of service delivery they resort to is astounding. There is no police station and since independence, there has not even been a single case registered from any member of that village.
The cooperative also supplies milk to the only two schools in the village two times a day throughout the year for free of cost. The community sits together and decides which cinema is to be shown in the community cinema hall. The residents of the village do not migrate outside for the sake of employment and the youngsters are encouraged to implement innovations and make add-ons to the milk products. When the Scheduled Caste community wanted to start their own cooperative model, the Nadars gladly helped them. There is no codified law or a contract as such for these people to abide by. One can be really sure that not even one percent of the entire population of that village knows what’s written in the Indian Constitution. Nobody in here cares to separately try and understand secularism, democracy, minority rights, right against oppression etc., which our urban elite drawing room intelligentsia spend half of their lives debating on. The whole system runs only on the age-old customs and traditions encapsulated in three different Sanskrit dictums: “Papa Bheethi”, “Sangha Neethi”, “Daiva Preethi”. (Fear of committing sins, societal ethics, love and devotion for God)
In short, it is a model example of how a village can be developed without having anything to do with the Constitution of India!
But here, our eminent constitutional experts might question the right of the society to supervise or police an individual, a notion which also stands against Maine’s modernity and was later carried forward by many other thinkers like Max Weber, Karl Popper etc.
Another great thinker, Bronislaw Malinowski blatantly rejected Maine’s theory and propounded the use of culture, traditions, relationships in a society as a disciplining mechanism to prevent deviance. Preventing deviance is very important in creating and establishing value systems. Laws cannot create values, courts cannot create values, they are beneficiaries of values
It is because the entire socio-political discourse in India is centred around the false notion that our founding fathers were infallible, it is pertinent to look into what B.R. Ambedkar said in one of the Constituent Assembly debates.
He said, “However good a Constitution may be if those who are implementing it are not good, it will prove to be bad. However, bad a Constitution may be, if those implementing it are good, it will prove to be good.”
This simply highlights that the Constitution has got nothing to create “good” or “bad” people. It is the product of culture, society and value systems. It has no mechanism to generate values, it is a beneficiary of the values that the society creates.
But in India, education, public discourse, intellectual talks and debates are all centred around the Constitution. Constitution has been amended for almost one hundred times now. It is a living, breathing, floating, organic document that fetches “life” from the value systems of the society it operates in.
We must understand that for the constitution to operate, the law to operate, the judiciary to operate, the state to operate, character and value systems have to be generated by social capital about which there is no thought either in the judiciary, law-making, political system or the media.
In fact, the judiciary which is usually touted as the harbinger of the Constitutional Justice has always seemed to be hell-bent in doing what it must never do: seeking to instil a sense of rationality and diluting our much-revered value systems by tinkering with our culture. In a nutshell, it is foolishly trying to inculcate the notion of “Constitutional Morality” by destroying its very source.
Consider for instance the Khap Panchayats, which are falsely portrayed as the most regressive and barbaric institutions without any evidential audit. The Khap is a disciplined forum delivering open and transparent justice, which unlike what the media portrays has never pronounced harsh punishments. It just bars two people belonging to the same “gotra” from marrying each other, the practice of which is believed tantamount to a marriage between the siblings. The Supreme Court says the Khap has no right to prevent a couple from marrying each other and calls it justice and a march to forward-looking individualistic society.
Isn’t it interfering too much with the society?
And what if a similar sort of interference is required in some other community?
Consider the infamous Varanasi Burial Ground Case, which dealt with one section of Muslim community burying dead bodies in the graveyard belonging to the other section. The Supreme Court hearing a writ petition against the Varanasi Municipality held that the dead bodies that were buried by the other community be removed. When the Attorney General sheepishly mentioned that implementing this decision would lead to a bloodbath, the Supreme Court stayed its own judgement in the year 1986 and after 32 years in 2018, it still remains stayed.
Similarly, in the issue of Personal Privacy, it must realise that no institution can sustain a licentious liberty and especially not in India which is governed by relationships based on social order.
All in all, owing to the continuous application of tests of suitability of Western Philosophies to our society and their eventual inevitable and repeated failures in mapping out a perfect method of applying laws and contracts to our relationships and beliefs, our eminent constitutional experts are stuck in a cycle of frustration and dejection instead of focusing on enculturing our value systems and passing them on to generations to come.