Prof Kishori Sharan Lal ,PhD in medival Indian history ,has wrote many books on mughal history,delhi sultanate,muslim slavery,mughal harem etc.His work “Indian Muslims: who are they” is must read to understand what are factors that shot the population of Muslim with decline of Hindus during pre British times and which ultimately found political way to create partition of India and also secure “minority right” in Indian constitution that due to increasing demographic became major vote banks in states like wb /kerala-The factor is give by him in above said work is as follows:
1.Conversion by sword-He is of view that this is “first and foremost “ cause of increasing demographic is nothing but conversion-conversion not by love for great ideas,but by terror of islam-conversion happen after troops march in ,capture territory and ruined it and people has only option to convert or to die.
here he appear to rebutt idea of sufism as spreader of islam on three grounds:
(a)firstly, there is no mention of sufi conversion in Persian and other chronicles ,including the hagiography of that time but there is ample and proudly mention of jihad followed killing of kafir or conversion many time.Also, sufi came with army of islam not before that so major factor is victory of army and what follows thereafter ,not what sufi teach.
(b)secondly ,there is no mention of Sufism as spreader of Islam in other countries where islam spread before india-persia,syria etc
(c)thirdly ,he rebutt the thoery that via sufism the caste oppression of lower class hindu mesmerize them to adopt “democratic social order” of islam to escape from caste tyranny.He argued that hindu lower catse did convert but not due to sufism or islam as they willnot became ‘ashraf’ class but remain only on lower rung of islam -He analyse some lower caste of United province via census of 1931 that have some percentage in hindu as well as in muslim and always constitute minority in islam-they were julah,faqir,dhunia,teli,Nai/hajjam,Darzi ,Qassab,Dhobi,Manihar.
Conversion due to Politico-Economic perils : Above lower caste of UP were shown to convert not by persuasion but by politico-economic compulsion-where their hindu native king dies in fighting and royal family were killed, islam and islamic rule come ,their status is of djimmi and the perils of that fall them in form of tax which are so high that to cope up with challenges ,some people instead of “convert or die”chose to convert for livelihood and continue their current profession of barber /tailor/washerman etc.Here he also mention of people that constitute “faqir” caste is just to eat food as in delhi sultanate and mughal history there is tradition of distributing food to them.Some profession like tailor,barber,weaver also provide them opportunity to find place in Royal palace as delhi sulatnate and mughals spend lavishly on personal luxury and always in need of such people.But some people like Panwari,bania ,halwaai remian hindu as their Client are largely hindu and cant be benefited by Muslims consumers
He also mention the conversion due to economic reason is largely “urban “phenomenon not a rural-as rule of delhi sultante or mughal largely is in area around capital near delhi , in far delhi province are some qasbah (town) -rest area there is loosely governed territory where hindu are more united and goverened by their legal system.
It should be noted that any area,whether in kashmir or west bengal or malabar ,economic compulsion did arouse on hindus and they have to face such sitution -you might noticed “kashmir pandit exodus” followed after incidents that are sufficient to call it as “genocide” -so this is politico-economic compulsion commoner will face when politcal -legal system is anti to it .that is what “djimmi” is .
Conversion in port town: author also take note of conversion in non muslim territory of port town where exposure to foreign merchants were more and Port town biggest example is Zamorin of calicut that require every fisherman family of malabar to became Muslim to increase merchandise with west asia.other example the author give is khoja bhora conversion to islam in gujrat port town.The repurcussion of such conversion were horrible and hindus have to pay horrible cost for this.In my opinion ,what zamorin did is largely un-visionary and led to ”the Kerala Story “ and “ moplah riots” -if zamorin didnt do that ,perhaps history might be different.
2. Immigration of muslims-one sided immigration from west asia and central asia that constutite “ashraf “ class or elite class eg -Irani/Turai that act as pressure group in mughals courts
3. Polygamy/Marital jurisprudence -islam allow polygamy,temporary marriage,sex slaves ,easy divorce and remarriage, no concept of celibacy or remain unmarried and big mughal harem allow them to increase population like ant and locusts .sometime harem was so big that arouse issue of identification of mother even.
Along with this as we talk of sex salve that is associated with triumph in jihad ,let do case study -if islamic invade invade hindu territory and get victory,that has large demographic reduction as royal family will be killed and unmarried woman is “mal-e ganimat”as per islam and due to preserve human dignity they will commit saka-jauhar ,particularly in rajputs as they were neighbours of arabs and first to be invaded,then muslim invader did genocide of common population -which has significant demographic reduction-while Hindu king capture mughal territory ,ordinary fallout is not demographic reduction as none of action will be done by hindu king.the only few evidence is what we get from Bappa Rawal who married muslim woman in their troops -a perhaps great learning of demographic by him-another some examples is of cholas with war with sinhalese,chalukyas ,-but these instances are rare and unlike islam ,doesnt derive their santion in hindu dharmashastra and a reactionary attitude after learning enemy perception-
Isnt it true today that majority hindu area cant view miority with the lense that muslim majority view hindu in minority-the reason why muslim enhance in demographic in Hindu majority india and why muslim majority Pakistan/Bangladesh reduce Hindu minority-reason in doctrinal difference-there is no Kafir/jihad/djimmi /mushrik/munafiq like counter part in hinduism-that why there is “kerala story” or “kashmir exodus/genocide”
4. Higher fecundity/fertility-High fertility prevalence in Muslim,perhaps due to early age marriage- .Here author quoted DW hazard ,atlas of islamic history which state that every 7th person in world is muslim ,along with Dudley Kirk ,who after done global study of fertility, stated birth rate is highest among muslims and arabs and reason is islamic view of family.
Today what we are facing is mostly demographic challenges ,no doubt even if today fertility of age is not utilized at full vigour by Muslim,still in comparative sense visavis Hindus the fertility is Higher of muslims and recent drop in TFR from 4.4 to 2.3 in 1992 to 2019 may still be challenge ,as hindu TFR is declining now 2.1, and area of muslim majority ,death is still not only due to natural reasons.Also,still single or two child is not most common among muslims-while it became common among hindu urban middleclass atleast and now also it reaching rural areas.Unmarried is also increasing in Hindu youth due to some “burdenless”life but islam view it as offence like.Claim of PFI to make to make islamic rule to 2047 cant be taken loosely.
5.Lesser loss in war and natural calamity-Author observe that natural calamity response by muslim ruler are only done if calamity is in muslim majority area where sultan and other noblemen live not far flung region of hindus-and also as i did above case study ,war demographic fallout in muslim victory is of hindus reduction-it is also noteworthy that after subjugation of Hindus or marital relation with Hindus royal families by some mughals,there is enhancement of army by muslim rulers by including the hindus which were used against the hindu king so it is also Hindu v hindu contest may time such as Battle of Haldighati -Mansingh v Rana Pratap –Author noted statement of Mughal noble asaf khan to Badauni during Battle of Haldighat “shoot at whoever you like ,whichever side may be killed ,it will be gain to islam”-no doubt we suffer from lack of collectivism here or perhaps overemphasizing material gain over dharma.that is still problem for hindu society as people are disconnected through dharma teaching as no educational institute is for them -but madrasas are there for Muslims to teach them islam
We should think over this issues-History Help us to predict future -make “sure no kerala story happen in future”
“Most important component of any nation is national will and that comes from identity of people..wars are fought not to kill enemy but to trample will of enemy..India nationhood is yet to be sparked”- Ajit Doval, current National Security Advisor of India ( 31st of May, 2016 ,in address delivered at Y4D Foundation, Pune ).
To begin with the meaning of National Security, Barry Buzan has defined it as securing the nation.1 According to Buzan, a nation is composed of people living in an area sharing a common culture heritage 2. Realist thinkers viewed it as an instrument, whereby a nation undertakes protection of its identity which at least includes -physical, political and cultural identity. 3 The central argument of realists is that it is national interest which acts as motivating forces behind all state’s action, especially when it comes to pursuing foreign policy goals and is primary justification for any action of state , including any kind of hostile policy which may disturb balance of power such as psychological warfare , arms race etc.4
As Carl Von Clausewitz opined “War is a true chameleon that slightly adapts its characteristics to the given case”5. In today’s world when wars are no longer confined to battlefields but extend to cyberspace, outer space and even psychology of individuals, one can argue that threat to national security cannot be originated only from conventional war. Kautilya in his Arthashastra classified war into 4 categories as follows6:
Prakshyayuddha, i.e. Conventional war fixing time and place
Kutayuddha , i.e. Concealed war refer primarily to psychological or information war
Mantrayuddha, i.e. war through diplomacy
Gudayuddha, i.e. clandestine war using covert methods such as assassinations etc.
As General Bipin Rawat, former Chief of Army Staff and current Chief of Defence Staff mentioned that ‘Hybrid warfare’ is fourth generation warfare which consists of conventional and unconventional war7 , there are two types of war, namely, conventional and unconventional. Conventional war fought by states (not with the use of proxies) with conventional weapons and is abiding by laws of wars. Unconventional war means adopting unconventional means by nation-states to achieve their military objectives. Such means can include psychological or information warfare, legal warfare, Proxy warfare, cyber warfare, electronic warfare etc. The Three Warfare Strategy adopted by Chinese Central Military Commission in 2003 shows how unconventional war is gaining importance in National Security Policies. The three warfares are as follows8:
Psychological Warfare: The use of propaganda, deception, threat, and coercion to affect enemy ability to understand and make decisions.
Media Warfare: The dissemination of information to influence public opinion and gain support from domestic and international audiences for Chinese military action.
Legal warfare: The use of international and domestic laws to gain international support and manage possible political repercussions of China’s military actions.
By adopting this, the People’s Republic of China merely practices what is found mentioned in Art of War by Sun Tzu, the Chinese philosopher. Sun Tzu states “All warfare is based on deception”9. He further stated that supreme form of excellence does not lie in conquering an enemy in all battles, but lies in breaking enemy resistance without fighting.10
Thus, threat to any national security can be broadly categorized into three categories- (a) Physical threat , that is , threat to territorial integrity of any nation which prima facie include threat to frontiers of state, for instance, in case of foreign aggression (b) Political threat, or threat to politico-economic system of nation such as threat to cherished democratic and constitutional values of nation, for example, from insurgent groups who are committed to overthrow constitutional setup of any nation in order to establish totalitarianism communist regime, (c) Cultural threat, which is threat to historical values, that constitutes integral part of national heritage, either by propagation of distorted interpretation of such values or by propaganda of distorted version of history.
Hence, above arguments had made it crystal clear that Cultural identity is not outside the purview of war, either through conventional means or unconventional ones.
Cultural Identity of Nation: Opportunity and Threats
Now the intriguing question is why the identity of a nation is important?
Cultural identity is the core of nationality of any nation, especially for a nation like India whose historical values date back to Indus valley civilization. Swami Vivekananda emphasised that similar to individuality of men, there is individuality of nation, which makes it distinct from other nation11. According to him, each nation has heterogeneous characteristics, has its own destiny to realize itself, a different message to deliver to world and a mission to accomplish12. Vivekananda further argued that until the core where nationality lies in not stricken, neither nation can die nor “any power under sun” can kill it even if “all torture and miseries of world” passes over it, it will come out from flames13. He opined that the bedrock on which nationality lies varies from nation to nation, for some nations it is politics, imperial power, while for others it can be social culture and intellectual culture. 14 He explained it with illustrations of Rome and Greece and said that since Rome’s mission was expansion of its imperial power, it fell into pieces only when it was touched. Similarly, the mission of Greece was intellect based and it collapsed when the roots of its mission became contaminated.15
F.K Von Savigny, a German jurist, regarded as the father of Historical School, drew a live nexus of law and nationality. He coined the theory of Volkgeist or national spirit through which he opined that law is a product of Volksgeist and contended that law dies when nation loses its nationality and when nation loses its nationality, law is no longer supported by masses and becomes redundant. 16 From the above argument, one can conclude how important survival of nationality is not only for protection of national interest but also for domestic purposes like to maintain law abidingness of common people towards particular law. On similar lines, Ajit Doval, the Indian National Security Advisor opinionated that “Most important component of any nation is national will and that comes from the identity of people, when people identify themselves with nationhood…wars are fought not to kill enemy but to trample the will of the enemy”.17He illustrated that the Union of Soviet Socialist Republic (USSR), in spite of its military might, lacked national will which led to its disintegration. He cautioned that when society’s response is of mute spectators towards anti national slogans demanding fragmentation of India reflects that national will in India has not reached to the extent to which it ought to be. 18
Culture is one of the vital elements of national power and of national security policy of any nation-state.19 Kautilya in his Arthashastra discussed three types of national power- Utsaha Shakti, Prabhushakti, Mantrashakti. 20Utasahashakti is the personal power of a leader – his leadership ability, popularity among masses, mental, physical and spiritual energies amongst other factors and even includes morale of public and armed forces. Prabhu Shakti is a hard power of state which can encompass within it the domains such as military and economic strength of state. Mantrashakti is an intellectual power which includes diplomacy, strong international alliance, bureaucracy committed to national interest, demographic support, cultural strength which includes cultural diplomacy etc.21
Similar to the notion of Mantrashakti, Joseph S. Nye defines soft power as the ability of a state to shape its preference of others not by coercion but by persuasion. 22He laid down three sources of soft power- culture, its political values, and its foreign policy while defining culture as a set of values and practices significant for society. It also includes art, literature, and education which have an appeal to the elites.23However he made certain distinctions between values which can act as soft power and which cannot act as soft power. The values which are of universal nature (e.g. Sarva dharma sambhav) are more likely to promote soft power and act as assets for nations in the international community rather than narrow values. 24
Thus, culture is instrumental in promoting soft power of a nation state and that is why nowadays many strategic analysts such as Milton C. Cummings, Jr, Professor at John Hopkins University, John Lenczowski,President of Institute of World Politics advanced a new term for cultural elements of soft power such as “cultural diplomacy”, whereby the state uses its culture to advance its national interest.25 It includes an act of enlightenment of foreign minds with cultural values of the nation either to protect its own security, economic, strategic or other interests or to thwart the national interest of enemy state or potential enemy state.26 Moreover, in a globalized world, suffering from clashes of culture, promoting its culture to world at large has become strategic imperative for any sovereign state otherwise its culture may be undermined by other external powers, by colonizing the minds of people with their own narratives which is antithesis to the cultural identity of that nation.27 As Ajit Doval opined, while referring to superpowers, “in coming times those who control the minds and heart of people are most powerful. If you can make me think, you can overpower me. ”28Therefore, it is certain that if the cultural identity of a nation is under threat, then not only it is unable to export its culture but it will certainly fall victim to neo-imperialism.
After World War II, many colonies became independent but liberation of such colonies did not annihilate colonialism. It merely attained a new form, which is referred to as “neo-colonialism” or “neo imperialism”, whereby any state does not subdue any nation with use of military force but by the usage of other instruments such as pressing for globalization which thwarts economic sovereignty and hampers domestic interests of any state or by creating narratives of multiculturalism which defends colonial values and destroys cultural identity of that nation.29 As far as cultural facet is concerned, some theorist such as Herbert I. Schiller, an sociologist, Edward Said, Professor at Columbia University,called it “cultural imperialism” or “cultural hegemony of developed or industrialized nations”, 30 which they perceived as imposition of culture by one state on another, especially by superpowers on third world nations.
Cultural imperialism is not a post-colonial phenomenon. It existed even during colonial regimes but not as primary means to maintain subjugation over territories which was based on military force but as subsidiary means whose role in colonisation was more visionary than use of military force itself.31 Colonial lords acknowledged the fact that military force can only suppress the uprising against them for the time being. But cultural imperialism ends any future possibility of uprising as long as narratives remain rooted in the mind of people.This ,to large extent, reduces the possibility of effective counter-narrative which can dilute the essence of colonial narrative and revive our historical values.
It is noteworthy that planning and execution is so well constructed that revival of native cultural values is rare as it passes from generations to generations. It works in two ways – Firstly, by ways of Deculturalization wherein Colonial masters present distorted pictures of culture and history to nationals of that country in order to make them feel guilty about their culture. It was executed primarily through constituting academic establishments to carry out their propaganda. Their underlying motive behind is striking core of nationality as very rightly pointed out by Swami Vivekananda that condemnation of the past only leads to destruction of the nation, and not to growth. As Ajit Doval rightly pointed out, wars are fought not only to defeat the enemy but to trample the will of the enemy,32 It is doing the same thing since a warrior without iron will, however brave, cannot fight.
Secondly, once they succeed in sprouting the sense of guilt in nationals, they offer their culture identity or their historical values as alternative to them and since nationals are indoctrinated with colonial narratives, their analytical faculties become paralyzed and they are no longer in a state to scrutinize the legitimacy of that narrative and thus involuntarily accept it. Many religious conversions during colonial regimes executed by Christian missionaries are an example of this process.33 One of prominent example was colonial invention of ‘Dravidian Race’ which projected people residing in South India as ‘Non Aryan’ with distinct cultural identity (including racial and linguistic identity) followed by call for disowning alien Aryan cultural (in essence Indian culture) and rediscover their identity through Biblical glasses. The purpose of this invention is to bring India into a state of cultural identity crisis.34This was a form of psychological warfare run by British colonial administrators like Alexander D. Campbell and Brian Houghton Hodgson fuelled by Anglican missionaries like Bishop Robert Caldwell.35By virtue of this, Dravidian separatist movement, demanding ‘Dravidistan’ (separate state for Dravidians) stirred up in 1944.36
Now, even though this cultural imperialism no more overtly promotes colonial values, covertly they still do that in the name of promoting global values but with the same process as mentioned above. Such global values can be Multiculturalism, Feminism, Secularism, Human rights including equality, right to dissent, democracy, right to self determination amongst others.37Prima facie any person can fall into the trap of these values since they sound more universal, civilized and belong to utopian society. But that is only an illusion and it is merely a garb to promote western ideas to the world and is similar to instruments of soft power and psychological warfare of the west. The contention of promoting western values while portraying them as international values gains substance when they show reluctance to give any kind of legitimacy to spiritual or cultural values of non–Christian nations and which goes to the extent that they do not even accept them as civilized nations, in spite of their civilization dates backs to Before Christ. One of the best examples can be their no recognition of the concept of sarva dharma sambhav or vasudev kutumbakam while they on other hand claim to be prominent advocates of secularism, multiculturalism and globalization, even though core of the two are the same . They always project Indian ancient culture as a culture filled with evils of patriarchy, promoting casteism, oppression of women , unscientific, containing high intolerance in religious matters . 38
It is noteworthy that states conduct cultural imperialism as psychological operation 39. In the era of information technology where everything is available on the internet, nations harness misinformation, disinformation and propaganda to subdue the enemy. 40 To quote Vikram Sood, Former R&AW Chief, “Information is increasingly the key”, “the one get the narrative right is usually the winner.”41 “Facts became fiction and fiction became facts.”42 As argued above, counter-narratives are not too feasible many times since people are already indoctrinated and no more in a free state of mind to grasp new narrative and reject the former on merits.
History has witnessed such use of psychological operations as part of political warfare at numerous times 43. During World War II, propaganda served as one of most vital instrument of statecraft of Nazi Germany.44 Similarly, during the Cold war, it was at the peak from both sides- US as well as USSR. The CIA, a US intelligence Agency, had spent its vast resources on cultural propaganda whose core theme was to keep communism away from the world in order to advance the strategic interest of the US abroad.45For realization of this purpose, CIA even established Congress of Cultural Freedom in 1950 which extended its influence to 35 countries till 1966, when covert patronage of CIA came into light.46It published several magazines and books, organized exhibitions and international conferences and patronized well known artists, novelists, poets and musicians.47One important publication was Encounter magazine published in the UK during the 1950s.48 One fact that the target audience failed to observe was that the magazine never criticized the US foreign Policy. In spite of the revelation that the CIA funded it, the magazine continued to be published till 1991. After that it was felt that its existence is no longer required as cold war has ended, USSR was disintegrated and the US was the only superpower 49
India, on the other hand, was no longer immune from being subjected to cultural propaganda during the cold war. The reason is crystal clear –affinity of JawaharLal Nehru towards the USSR despite his advocacy of Non Alignment. It was evident because of Nehru’s silence on Soviet invasion of Hungary in 1956 and at same time his stiff opposition to the US stand on the Suez Canal crisis, created suspicion against India in mind of the US.50To counter Soviet influence, Congress of Cultural Freedom was established in the 1950s which was headed by Jayaprakash Narayan, who condemned Nehru’s silence on Soviet invasion of Hungary. 51One of the two prominent publications of the Congress of Cultural Freedom were Quest and Imprint.52Philip Knigtley, journalist and media commentator on Intelligence operations, revealed in his book The Second Older Profession : Spies and Spying in twentieth century, that he met Harry Rositzake , Former CIA chief of Soviet bloc division, who disclosed to him that Imprint was product of CIA operations in India to counter the narrative created by easily accessible soviet magazines. 53
Cultural Identity of India: Multidimensional facets
Before embarking upon the contemporary cultural identity crisis in India, we should know what constitutes the cultural identity of India?
Beginning with what actually meant by Indian culture or Bhartiya Samskriti as it is traditionally called. Sanskrit, the word from which the word samskriti is derived, is naturally included in it since it was considered as the mother of all languages spoken in India today and dated back to ancient Indian civilizations.54 It further includes all means of portraying Indian culture – dance, arts, literature etc. Furthermore, it also includes all disciplines of vedic sciences – mathematics, philosophy (Six darshanas– Sankhya, Yoga, Nyaya, Vaisheshika, Mimansa, Vedanta), medicine, politico-legal thought or socio-legal thought and even astrology. 55Most important of all, what lies in its essence is the culture of Dharma, which embarks on different aspects of Dharma in different facets of human life. Under the umbrella of Dharma, there lies a pluralistic spiritual path of Hinduism. 56 It suggests ways of spiritual growth. For preservation of cultural identity of India, upholding culture of Dharma is the paramount obligation .
India has always been known and defined for its spirituality not for territorial expansion or for its political ideology such as communism or religious conservativeness. This is unlike the case with Churches in European countries that claimed to inherit powers directly from God and thus proclaimed themselves as the authority that largely shapes conduct of society . Swami Vivekananda very rightly said “In other countries a man may be political first and then he may have a little religion, but in India the first and foremost duty of our lives is to be spiritual first and then if there is time, let other things come.”57He emphasized that national integrity of India lies in spirituality and it is in national interest to keep the spirituality united.58 Hence, the essence of India lies in its spirituality and that is the culture that needs to be preserved.
There are certain fundamental principles which constitute the core of Dharma culture. Dharma basically refers to the universal principles and eternal laws of nature.59One of such principles is Sarva dharma sambhav, which literally means all dharma are in harmony with each other. 60One of vital dharmic principles is the law of karma which taught us that each of our acts has certain consequences, positive or negative, for us as well as for the wider world. It shows us the path to regulate our conduct in just manner. Other principles are Ahimsa (Non violence), Satya (Truthfulness), Brahmacharya (control over sexuality), Aparigraha (non-hoarding) etc. 61 It broadly signifies that spiritual path which one person undertakes is a matter of personal preference and neither there can be imposition of any particular spiritual path nor there can be restriction on any one choice or exercise of his choice. Whether anyone practices, professes Hinduism or Buddhism or Islam or any other religion or sect of religion –it makes no difference62. Any kind of distortion of the meaning of this fundamental tenet constitutes intrusion on the cultural identity of India. Distortion also includes giving it a political or communal colour such as projecting it as a mere tenet of a specific community professing a particular religion and antithesis of religion professed by another community. We should remember that religious practices arising at a certain point of time to serve the need of hour cannot be said to be a dharmic principle. Swami Vivekananda very rightly pointed out there is essential and non essential in everything.63 The essential are eternal in nature and non essential has value only for a certain point of time after which they have to be replaced by something essential otherwise it constitutes serious danger and it is a substance or principle which is of eternal nature, not any rituals or customs or usage.64On the contrary, it should not be allowed to be used as a weapon of religious conversion. Religious conversion is a traditional instrument of cultural imperialism. This principle can very easily be used to convert people following Hinduism to another religion by contending that since your religion itself asserts that all religions are equal , there should be no sin in converting to another religion.65
Ahimsa from a very long time has been treated as part and parcel of Indian Culture. But the burning question is what is meant by Ahimsa? In order to find the accurate answer, we need to trace its historic roots. “Ahimsa parmo dharma,dharma himsa tathaiva cha ”(Non violence is supreme duty, so is righteous violence)66, narrates Lord Krishna in Bhagavad Gita . In support of this remark, Lord Krishna further stated “If you refuse to fight righteous war, abandoning your social duty and reputation, you will certainly incur sin.”67He did not stop here, but stated that “For warriors, there is no better engagement than fighting for upholding righteousness.”68 Verses of Bhagavad Gita cannot be segregated from the context in which they were narrated to Arjuna. We should keep in mind that it was narrated amidst the battlefield to boost warrior spirit in Arjuna to fight for upholding Dharma. 69Above mentioned ahimsa permits righteous violence but not otherwise. We can make a distinction between just and unjust violence as we did make a distinction in just and unjust war. On the contrary, Ahimsa in the Gandhian sense disregarded that distinction and considered non violence in all circumstances an unjust conduct, leaving the entire community defenceless against the enemy.70 Needless to mention that Gandhian concept of non violence is even rejected by many Indian contemporary of his times like Aurgobindo Ghosh.71 India is a pluralistic society and different notions of ahimsa are integral part of its culture.
Cultural Identity Crisis: Contemporary Challenges and its Historical roots
Now we need to analyse what are forces that constitute threats to Indian cultural identity and what are their strategic imperatives behind bringing Cultural identity crisis in India and how far they got success in it.
1. Western Threat
There is no doubt that these attacks on cultural identity commences from colonial conquests. since very soon Colonial masters, especially the British, realized that military power can keep a nation subjugated only for a time being but cultural hegemony can do it for eternity72 . In the decades following the conquest of Bengal, there emerged a large sect of Britishers within the East India Company who believed that Indian people had a distinct way of life which was valid for them and western values gave no significant appeal to them .73The British firmly believed that neither India would accept colonial rule nor they will accept any western values unless there is an adulteration of Hinduism with western values, which would, in the long run, provide Britishers a justification for their rule.
Firstly, what Britishers did was to portray Hinduism, to serve their interests, as the religion of Hindus- distinct from Muslims and thereby creating a wall between two sects of India. Charles Grant, an influential man in East India Company, depicted Hinduism as the brainchild of Brahmins who according to him feigned divine authority in order to establish their own order which enabled them to rule over native Indians. 74This was nothing but a critique of Catholicism applied by him in India to justify colonial rule. 75The colonial masters targeted religion through their distorted interpretations. One of the most notable attacks was depicting the lingam as male sexual organ.76Other ways to targeting religion was branding of Devdasi system as religious prostitution or sexual slavery and naming Hindu practices as mere superstition.
Sanskrit was one of their major targets to devastate the Indian culture. Robert Latham, who wrote extensively on comparative philology, argued in his book Elements of Comparative Philology, that Sanskrit originated far away from India, somewhere in eastern or southeast Baltic region and none of the languages spoken in India are truly descended from Sanskrit and, Sanskrit words in contemporary Indian languages are merely ‘loanwords’.77 He claiming himself not as language expert but intelligent juryman assessing evidence on common sense, stated that neither there were evidence of Sanskrit before Muslim conquest nor there were evidence which prove them Brahmins (as he referred to Indians) firstly spoken Sanskrit. 78Similarly, John Crawfurd, a British Army officer, traced its origin in Germany and its wider acceptability in Europe.79What is noteworthy is that both the claims were based on physical or anatomical structure of India and not on any intellectual basis . Thomas R. Trautmann called these assertions as doctrine of ‘racial essentialism’ whose roots lie in arbitrary and prejudiced comparison of Hinduism with Protestant Christianity and Indian Civilization with that of European one.80
The British were suffering from Indophobia 81. It was reflected in their attitude especially with regard to education of Indians. It is evident by a report of 1804 Committee on determination of question of constitution of East India College whose principal objective was to prevent British assimilation into Indian culture as the latter was considered not only distinct but dangerous to their culture and any kind of assimilation with it may pollute the entire white race.82When Britishers proposed this policy, they were cognizant of the fact that many of East India company servants had Indian wives or concubines which brought them closer to the Indian Culture, especially in terms of language. Indian culture appealed to them and made them prosperous as it enabled them to enjoy all the luxuries which was not available in their fatherland since many of them came from the middle class.83This raised serious concerns in British mind and created a big challenge for their continuance of imperial rule.
Till today, large sections of society perceive Hinduism in a colonial sense. Even though, Supreme Court of India has reiterated on several occasions that Hinduism is a way of living, there are various and even successful attempts of branding Hinduism as a western construct which they portray as “Neo Hinduism”. According to the advocates of neo-Hinduism, Vedanta lacks the idea of national unity till Swami Vivekananda calls for national unity imitating western notion of Nationhood. 84They did not stop here but further alleged that Vivekananda was suffering from inferiority and his visits to West were attempts to borrow the western concepts to form his tenets of Hinduism.85Paul Hacker, in his essay “The concept of Dharma in Neo Hinduism” claimed that Western ideas of positivism, scepticism, agnosticism have been appropriated by Indians as Dharma to contest Christian religious superiority. 86 He also accused Aurobindo Ghosh of “stealing” western notion and redefined dharma as Svadharma (Dharma of individual) in accordance of western sense of personality. As according to Hacker, Dharma which was based on respect for caste and stages of life became obsolete for nationalistic movement. 87 Needless to mention that the concept of caste is itself an import from the West ( portugese) and is not a Vedic concept 88. Vedas embark on Varna system based on Guna theory of Samkhya system according to which Varna is determined by a person’s own karma89.
His writings were largely fuelled by Agehananda Bharati, an European convert Hindu, who projected neo Hinduism as an antithesis to old Indian traditions and called it a mere attempt to copy the West by certain Indian Scholars 90. While criticizing the popularity of Bhagavad Gita among Indian scholars like Vivekanda or Aurobindo Ghosh, Bharati took pride in asserting that it was Britons who gave Gita a statue of ‘Hindu Bible’ and it was never a prominent canon amongst Hindus. He further went on to claim that Gandhi’s political philosophy was largely shaped in Britain when he educated himself with Gita in London with an English translated version written by Annie Basant. 91Similar remarks were made regarding Bal Gangadhar Tilak that he was inspired by European glorification of Gita such as Warren Hastings.92 However, Bharati entirely neglected annals of thousand years which had the mention of many prominent Hindu thinkers and their written commentaries on Gita such as Shankara, Madhava, Ramanuja and Dhyaneshwar.93
Similarly, Richard King puts forward similar contention that unification of India is a gift of Imperialism to Indians. He also proposed the definition of Hinduism as the religion of Brahmins over tribes (dalits). 94He proposed a model of balkanization of India whereby India is to be disintegrated into different dalit communities and he took pride in rescuing India from colonialism and conferring its past glory.95 He also claimed that Christianity was the first religion.It was later imposed by Britishers in India and ancient Indian scriptures notably Vedas, Bhagavad Gita and Upanishads were planted by modern western educators in order to build a nation with western values .96 Rajiv Malhotra,Founder of Infinity Foundation, an US based non-governmental organization on Indology, called it a state of “Whiteness syndrome”.97
These writings contain tremendous potential to indoctrinate any Indian who is ignorant of his culture. Historians like Romila Thapar carry forward the same narrative that India is just “mere cluster of sect and cults”, not nation. Meera Nanda also accused Swami Vivekananda of imitating western ideas under garb of Hinduism.98 These distorted narratives are carried on continuously in India and even become legal cases at times. In 2011, a lawsuit was filed against Wendy Doniger’s book The Hindus: An alternative history, one of the bestsellers, by Shiksha Bachao Andolan Samiti under s. 295 A of IPC which penalizes derogatory remarks against sentiments of any community. Later the book was withdrawn by the publisher Viking Penguins. 99According to Monika Arora,Advocate at Supreme Court of India, this book contains derogatory remarks such as Shiva Lingam is an erect male sexual organ , contrary to Sanskrit meaning of Lingam which is mere symbol or form. Similarly, derogatory attempts were made against Swami Vivekananda by depicting Hindus as beef eaters and depicting Queen Lakshmi Bai as loyal to British.100 Later, it got published under another publisher.
Aryan Invasion Theory
One of such misinformation is Aryan Invasion Theory, which questions the validity of existence of India. One of the major exponents of Aryan Invasion theory was Max Muller who argued that there exists in the mountainous region of North India a dark skinned race akin to Negroes who were vanquished due to migration of Aryans to north India. 101He also supported his arguments citing Rig Vedas and drew a semblance between Dasyus and dark skinned aborigines. According to Muller, Dasyus were referred in Vedas as enemies of Aryans or even Demons ,enemies of Devas , who were deities of Aryans.102However, Thomas Trautmann argued that our Vedas were written in poetic manner and strict interpretation was the worst interpretation of texts. We should not forget that Krishna and Kali, both dark skinned, were prominent figures in Hindu Puranas. Krishna is one of leading incarnations of lord Vishnu and Kali is one of important deities which proved dark skin is familiar to Aryans itself and they cannot be termed as enemy of Aryans. Hence, racial theory of Indian civilization was a Western construct whose roots lie in racist prejudices of white skinned people who consider themselves superior to black skinned people. This attitude dominated Europe and America in the 19th century when the US was witnessing civil war due to white black tussle and anti slavery movements. Trautmann further argued that even if we accept that Dasyus were depicted as enemies of Aryans but race and colour were not paramount attributes underlying the enmity but they were also depicting as powerful not as underprivileged contrary to what Muller argued. Moreover, Max Muller’s racial biases were also reflected in his interpretation of the Varna system which he interprets as based on colour or complexion.103
Aryan Invasion Theory has not yet lost his potency. It is significant to note that categorization of Tamils as Dravidians and Sinhalese as Aryans act as motivating force behind Ethnic civil war in Srilanka.104 Recently, On 24 February, 2016, in the Parliament, pamphlet by produced by Union Minister Smirti Irani, issued on Mahishasura Martyrdom Day in October 2014, allegedly containing offensive remarks against Goddess Durga depicting her as sex worker and glorifying Mahishasura depicting his slaying as murder by deceptions by Aryans105.
Call for ‘Dravidistan’
Western forces are patronizing demand for Dravidistan. Institute of Asian Studies conducted a seminar in 2000 whereby they declared that Dravidians should liberate themselves from Aryan oppression in order to realize their distinct identity.106Ramyana was targeted on the ground of inferior depiction of Dravidians as Subhumans – Monkey. 107History taught us How LTTE official radio broadcasted drama titled ‘Soil of Rama’ portraying Lord Rama as notorious Aryan invader and glorified King Ravana as Dravidian Emperor.108 At UN World conference against ‘Racism, Racial Discrimination, Xenophobia and Intolerance’, held at Durban , speakers vehemently argued about Hinduism conspiracy to trample Dravidian identity and giving sympathetic corner to this cause by drawing nexus between Christianity and Dravidian identity .109Similarly, the New York conference on “History of Early Christianity in India from the advent of St Thomas to Vasco da Gama” conducted in 2005, in which senator Hillary Clinton gave the inaugural address, carried the same narrative.110
Narrative of ‘Dalitistan’
Similarly, by harnessing Aryan Invasion theory as weapon against India, there are rampant attempt of intellectual alienation of dalits in India by linking them with Blacks in USA and Africa which urged them to seek liberation from shackles of Aryan oppression111. Their primary target is history . African history theme diary 2002 claimed that Indian Yoga and spiritual practices were originated in Egypt and later migrated to India and Indus valley civilization was built by Africans and River Ganges is named after Ethopian King who conquered India.112 It influences Indian minds even to an extreme level. EVR Ramaswamy called for stereotyped violent ‘direct action’ against Brahmins in order to establish their identity and annihilate the superiority of Aryans.113 Dalitism as a movement has strategic motives of coercing India on international platforms. Head of Asia team for Christian Aid urged in Conference in London in 2000 that no aid should be given to India without prior consultation of pro-west dalit groups.114US based NGOs are also involved in propagating this narrative. One of leading example is Dalit Freedom Network (DFN), American right wing organization targeting Indian cultural identity in the name of giving voice to dalit cause. Moreover, its founder Dr Joseph D’souza in 2006 called for the international community to intervene in domestic conflicts in India.115Many senators and bureaucrats are actively connected with DFN. William Armstrong, Former US senator, is member of the Advisory board of DFN.
China has a very long tendency of deploying its cultural identity as a potential weapon of soft power. Their Ancient literatures such as Art of war or Hundred school of Thought preferred non conventional warfare over conventional ones. Wang Huning, one of the notable Chinese scholars, viewed culture as the main source of the state’s soft power.116Similarly, Xiang Shu Yong and Zhao Chang considered it as a major factor in enhancing the nation’s strength.117 Mao Zedong put greater emphasis on utilizing Chinese literature and art for achieving its national interests.118 Similarly, Hu Jintao, Former Chinese President, perceived culture as a rejuvenating force for China.119Currently, President Xi Jinping is of firm belief that the ‘New Chinese dream’ will not only be achieved by economic development or sovereignty but also by cultural strength as well. 120This is also evident by the Fifth year plan which depicts culture as the third pillar of diplomacy after economics and politics. This was visible in the 17th plenary session of the Central Committee of Communist party of China in which the committee decided to embark on development of socialist culture as soft power till 2020. 121Various Chinese scholars proposed that Chinese culture can be instrumental in substituting Western constructed world order by Chinese constructed world order. 122There should be no astonishment if China uses any of three strategies for attainment of national interest.
Whenever we are accessing China’s foreign policy towards India, whether benign or aggressive we cannot ignore its vested interest behind it. As pointed above, China wants to alter International world order and in this race it views India as one of major impediments. This is the motivating force which solely shapes the Dragon’s attitude towards India, from patronizing non state actors to creating internal disturbance to financial aiding to states like Pakistan for all weather hostile engagement towards India, so that resources of India which ought to be utilized in development of nation or realization of vision of Superpower, get diverted towards maintaining law and order problems .
Patronising Northeast Insurgency
Northeast insurgency, especially the demand of Greater Nagaland, has been fuelled by China from the very inception itself. China provided huge patronage to the Naga insurgents in 1967. From 1967 to 1975, there were several visits to China by Naga, Mizo, or Meitei insurgents who were trained by China, to fight against India. 123However, during the 1980s Chinese pushed back its support to North East terror outfits but it is still believed that Paresh Baruah, ULFA Commander in Chief , has been given asylum in China, somewhere near Sino Myanmar Border.124There are reports that after crackdown of Sheikh Hasina government on anti Indian Terror outfits , Baruah met certain Chinese officials in 2013 which is further corroborated by intelligence inputs which indicated that he had been operating from newly created base at Laiza, Myanmar where PLA backed Kachin Independence Army has stronghold.125Some reports also confirmed that North East Revolutionary Front, an umbrella organization of North East insurgency based in Myanmar, is reportedly constituted by Chinese intelligence agencies.126 Similarly, in 2011, arrest of Wang Qing, a Chinese Spy, at Head quarter of NSCN-IM conclusively proved and leaves no iota of doubt that Chinese invisible hand is behind the spark and continuance of Northeast insurgency.127
Now the question is how it is eroding our cultural identity, why should not it be treated like any other law and order problem. The answer lies in the rationale of demand of Naga insurgents. The Manifesto of National Socalist Council of Nagaland (Isak-Muivah) or NSCN-IM declares “We stand for unquestionable sovereign right of Naga people over every inch of Nagaland whatever it may be and admit no other existence whatsoever”128As Swamiji said there is individuality of nation, this secessionist declaration strikes at the very roots of this individuality of India. As Ajit Doval pointed out that national will is sine qua non for the existence of a nation, it thwarts national will. Naga insurgents have confused their ethnic identity with national identity.It is noteworthy that the difference persists amongst the different Naga tribes and between Nagas collectively and rest of mainland India in terms of dialect ,language, tribal rituals but that doesn’t entitle themselves to invoke demand of separate nations. India is a pluralist nation with pluralist values, religion, languages, scripts etc. Every community in India has some distinct features and Nagaland is no exception but that should not be allowed to become constraint in national identity. As noted above, the claim of separate Naga identity is a mere construct of China. In the Ancient period, there was historical evidence which showed that the NorthEast was not isolated from India. Chitragandha, Arjuna’s wife, was believed to be princess of Manipur. Similarly, in Puranas and Mahabharata there was mention of Prayagjyotishpur (Now Guwahati). During the Mauryan era, North Eastern kingdoms were tributaries of the Mauryan Empire. River Brahmaputra was named after Brahma, the creator of universe in Indian scriptures and legends of North east has nexus with Lord Parshurama, an incarnation of Lord Vishnu.
Buddha Cultural Diplomacy
India from very long time identifies itself with Buddhism which provided India a stature of “embracer and enlightener rather than being a conqueror” 129, which has enhanced global credibility of India by posturing it as an ally to others, and not as a threat.130 In 2017, Chinese online news portal sohu.com, published an article claiming that Buddha was born in China since Lumbini of Ancient Buddha’s empire falls within a special district, negating the well accepted fact that Buddhism originated in India.131 Previously in 2009, Zhang Rubai, a Chinese mineralogist, also claimed that Buddha figures were carved on jades and ivory wares which were believed to be of Shu Kingdom dated back to 1000 BC, which were unearthed at Sanxingdui ruins. However Sanxingdui Museum slammed such claims as fabricated.132In spite of that, Professor Per Kværne, in his lecture at JNU in January, 2019 reiterated this as a historical fact.133
Fuelling Maoist war against India
China is a very old supporter of Maoism and Naxalism in India. When the Naxalbari movement broke out in India in 1967, Chinese communist Party remarked “a pearl of string thunder had fallen on India”. 134Soon after this, Chinese official radio broadcasted a message calling for “relentless armed struggle “against Indian Union.135Similarly, Charu Mazumdar, a pioneer of Naxalbari Movement, stated that “China chairman is our chairman and China path is our path”.136This is reflected in the CPI (M) document ,Strategy and tactics of Indian Revolution, in which Mao Zedong’s ideology was largely embodied as ideological warfare against India whom they call imperialistic and feudal state and advocate for establishment of an anti-imperialist, anti feudal state by so called “New democratic revolution”. The document states that “First and foremost task of New Democratic revolution is to wage ideological struggle and create public opinion in favour of agrarian revolutionary war and protracted people war.”137For realization of the above objective, the document proposed creation of a People’s Army shouldered with the task of spreading propaganda which raises support of masses for their war, which will aid the United front tasked with carrying on armed struggle against India.138 It, while arbitrarily presuming that India is bunch of nationalities, proclaimed their support for all insurgencies in India, especially to North East and Kashmir, in the name of supporting their right to self determination and liberation from occupation imperial and feudal India, which is suppressing their national identity, including cultural identity.139Even prior to this, CPI(M) party called for establishment of People’s Union of Democratic Federal Republic of India with new democratic culture which will ultimately lead to socialism and then to communism on similar lines along with using some western invented notions of projecting Indian society as class biased and Brahmanical140.
What is noteworthy is that they are condemning India for suppressing national identity of various sects of people of India but are never vocal about Chinese occupation of Tibet or Hongkong or suppression of unarmed protest at Tiananmen square in 1989 by using armed forces. One asset which Maoist possess are self styled Intellectuals, either social activists or academicians or Journalists, which serve as their People’s Army. They are largely tasked with creation of false narratives targeting the national identity of countries.
Nepal is also serving as a proxy of China as evident by showing a change in its attitude 141. At the former stage, China shunned Nepal Maoism calling it false Maoism but at latter stage patronized it completely. 142Prachanda, Former Maoist Prime Minister of Nepal, made his first visit to Chinaand one of the main issues discussed was reconsidering Nepal’s cultural affinity with India143. In an interview to the International Humanist and Ethical Union in August 2008, Prachanda,while advocating of continuation of cultural revolution in Nepal, branded Ramayan and Mahabharat as polluting the minds of the young generation144. His call for cultural revolution very soon turned into action.For first time in Nepalese history, Maoist red flags were waiving in Pashupatinath temple followed by dragging and thrashing of Hindu priests. 145 This attitude has not changed yet.
China- Nepal axis is not restricted to backing Maoist of Nepal but it has other dimensions also. Recently we witnessed china deepening ties with Nepal through harnessing it soft power by projecting it as Benign power, which serve it strategic economic interest evident by allotment to CAMC , Chinese company , construction of railway line from Kathmandu to china , construction of international airport by china etc, which will prove instrumental in attainment of Xi pinjing New Chinese Dream but which no doubt flourish Chinese cultural values which may be prove detrimental to historical roots of Indo Nepal relations , expressed with compassionate words like “Roti beti ka rishta”.146
3. Pakistani Threat
One of the major external forces which has an insane appetite for cultural subjugation of India is no doubt Pakistan and this appetite is not a product of time, but inherent in two Nation theory which led to the foundation of Pakistan itself. M.A Jinnah, in his speech, vehemently argued “The difference between Hindus and Muslim is not of religion but also of law and culture that they may be said to represent two entirely distinct and separate civilizations.” 147The military establishment of Pakistan has inherited these notions and they have been successfully cultivating them into their upcoming generations from seven decades and this ideological antithesis with India is a major motivating force behind all hostilities against India. Moreover, we should not forget that Pakistani military establishment runs deep state of Pakistan filled with creed of Ghazwa e Hind (Islam’s victory in Final Battle against India).148History reminds us how J.N Mondal, Pakistan’s Law Minister,took refuge in India after Liaquat Ali khan came with a proposal of declaring Pakistan as Islamic state.149Soon after such declaration, Jinnah who claimed to be a democratic leader showed his fascist colours, suffering from obsession of establishing Wahhabi Islamic state. Sikhs of Punjab have been denied access to holy places followed by their ethnic genocide.150Bengali Language was declared language shunned by Islam. Ahmadiya Muslim sect were declared un Islamic and hunted down.151
Narrative of Kashmir
Pakistan has always shown Kashmir as Indian Occupied Jammu and Kashmir and its state backed terrorists are portrayed as freedom fighters for liberation of Kashmir. In order to provide more legitimacy to its claim, Pakistan branded Pakistan occupied Kashmir as Azad Kashmir.What is unfortunate that this claim found support within India. Arundhati Roy, in 2010, claimed that it is a historical fact that Kashmir was not an integral part of India and India is a mere colonizing power.152It set aside the historical fact that it was a kingdom of Kusha, son of Lord Rama, and a place where Buddhism and Shaivism flourished in the 1st millennium and enjoyed prominence from the Mauryan and Gupta era to Sikh empire in the 19th Century.153. It is noteworthy that Pakistan has succeeded in penetrating the minds of kashmiri youth154 .Kashmir has witnessed secessionist militancy as well as religious fundamentalism155, calling for “Free Kashmir from hindu India”.156 or from “ clutches of infidels”.157 At numerous times, this proxy war against India reached unprecedented levels. One of such examples is “Operation Topac”, which was the brainchild of General Zia-ul-Haq, aimed at subversion of natives of Kashmirs 158. It was a huge success for pakistan. State administration has been destabilized and Kashmir appear to be ruled by Terrorists 159. As a result, Three Lakhs hindus, notably kashmiri pandits, were subjected to rape, arson and ultimately,forced to leave the valley160.India has witnessed unprecedented mass exodus since Independence161. They declared freedom from “enslavement of India” and establishment of “Nizam e mustafa”162Such narratives have continued till today. Recently, we have witnessed how the death of Burhan Wani,an Hizbul commander,was glorified in Kashmir valley as martyrdom for Islamic state163. What is noteworthy is “strategic communication”164 on part of India to counter such narrative is yet to fully implemented.165 Lt Gen Ata Hasnain stated “ The battle of perception has been lost many years ago”.166We need to ponder over this issue of creating effective strategic communication mechanisms in order to counter such national security threats.There is need to establish a national institution tasked with countering radical religious narratives167 .It should utilize every platform -Internet, social media, educational institutions, etc 168.While devising strategic rhetoric, Three factors should be scrutinized169 .Firstly, “ethos”170 or the “credibility of channels of communication”171 Secondly, “logos”172 or effectiveness of rhetoric itself173 . Thirdly, “pathos”174 which refer to “deep emotional and subliminal resonance and cultural connection in language”175 of rhetoric. Sufism , which is an integral part of Kashmir , could be used to counter radicals narratives there 176 .
From Inventing ‘Khalistan’ propaganda to keeping it alive
Pakistan’s Information warfare is not confined to propaganda of Kashmir but it has many other shades also. The Khalistan cause was merely the brainchild of Pakistan that emerged in the 1960s 177. President Zia Ul Huq, in order to heal wounds of 1971 humiliating defeat and to discredit India’s global humanitarian stature gained as result of birth of autonomous Bangladesh, fuelled a secessionist movement demanding separate Sikh state, which again revitalized two nation theory and portrayed nationality of Sikhs distinct from the rest of Indians.178It threw annals of history to the winds which shows Ten Sikh Gurus never invoke separate nationality but there were merely crusaders against cultural tyranny by foreign rulers or against social evils that persist with society. For realization of above objectives, ISI created a new Punjab cell within ISI HQ which embarked on a three stage plan. First, to enrooting the alienation of identity of Sikhs from identity of mainland India; second- emphasising the need to subvert state machinery and mobilize mass agitation against Indian government; third – to create reign of terror amongst Sikhs by way of communal tension between Hindu and Sikhs, which would create legitimate platform for demand for a Sikh state.179 Pakistan has not ceased its patronage till yet as is evident by posters walled at Kartarpur corridor calling for “ Sikh Referendum 2020” and presence of Gopal Singh Chawala, General Secretary of Sikh For Justice, Khalistani militant organization.180
Moreover, cyberspace is one of the best ways to target the cultural identity of a nation. There are various Facebook accounts which show fabricated maps of India showing Khalistan as a separate state whose boundary extends from Punjab to Rajasthan and also includes some districts of Uttarakhand and entire Himachal Pradesh.181 The platform is flooded with seditious materials, glorifying Bhinderwala killing as martyrdom to calling for liberation from “cruel Hindu India” on ground of its diverse culture, values and religion, projecting Pakistan as their precedent of liberation from India182 and urging for waging war against India.183Even some of the users put all their endeavours to show that India is not one nation such as showing fragmented India in map –Kashmir in Pakistan, Punjab, Haryana, Rajasthan in Khalistan, South India as Dravidistan, West Bengal, Assam as Bangladesh, and the rest of North eastern states as Greater Nagaland.184
Similarly, Pakistan has a long history of supporting Northeast insurgency. Pakistan has opened an office of high commission in Shillong soon after Independence where insurgents act as catalysts between Pakistani officials in East Pakistan and Naga. 185Similarly, ULFA established its contact with ISI via Pakistan High Commission at Dhaka during 1990s, through which they are able to obtain logistic support and training in guerrilla warfare and explosives like IEDs from ISI. 186At that time, BNP led-Bangladesh government was pro Pakistani and largely instrumental in aiding ISI in realization of its objectives, notably allowing ISI to flourish terror outfits in Bangladesh such as Jamaat e Islami.187
The Way ahead
1.Needed Counter Narrative
In order to prevent cultural identity and preservation of national will, we need to create a counter narrative which projects true picture of our historical values and has capacity to raise wisdom, by developing analytical faculties in masses , which enables them to distinguish between information and propaganda and have pride in their past.
For that purpose, we need to raise army of Intellectual kshtriyas to counter Intellectual terrorism directed to penetrate the national identity of India. These Intellectual Kshatriyas are required to be tasked with bringing Intellectual Revolution in India whose reach should be in every nook and corner of this country, especially young minds who are primary target of cultural terrorism, so that there will be no scope of indoctrination. As Swamiji said core of India is in its spiritual values, this will also enable India to revive its nationality. This is Dharmayuddha against adharmic forces and their proxies operating within India.
Additionally, we need to strengthen our strategic communication structure.One of the best ways to strengthen it is to bring cohesion by developing a civil-military interface.188We have seen civil -military integrated ‘STRATCOM MODEL’189 on surgical strike in 2016190, and again during Balakot air strike in 2019,which put the narrative of preemptive non military strikes in effective manner191 . Same model can be harnessed for creating a suitable environment for a cultural narrative by countering anti- national narratives, particularly in Kashmir valley and North East Region.Effective communications of humanitarian Projects ,such as ‘Operation Sadbhavana’192, will add more feathers to it .
2. Cultivate Interest groups in enemy nations who are targeting our identity
The counter narrative should not be restricted to geographical boundaries of India but it must be fought beyond territorial limits. As a soft power measure, we should nourish some interest groups in those nations who are determined to thwart our national identity so that they are left with two options – either to change their conduct or face wrath of identity crisis in their home land and if expenditure outweighs the profit they gain, certainly they are compelled to change their behaviour. For example- we can give nationalistic colour to Baloch cause which Pakistan treats as domestic matter or similarly to Tibet cause.
3. No big brother attitude with friendly neighbours
There are certain nations where our big brother attitude has brought distance in relationships and that gives a golden opportunity to our enemies to fill the left vacuum. Example- Nepal route was used by china to support Maoist insurgency and as P. Stobdan observed that India’s attitude is exploitative and it gives more scope to China to use it as a proxy to serve its interests.193 Similar is the case with Bhutan, which invoked a 2007 treaty to support Indian presence in Doklam but there also lies the potential of being used as a China instrument.
Hence, it can be said that India is facing multidimensional threat to its cultural identity from various external forces like China, Pakistan, the US etc. and if it fails to recognize that threat and no immediate measures is taken by India to counter such threats, it will one day become incurable disease and lead, to dilution of national identity .Furthermore, it will weaken India’s soft power which bring to halt it’s diplomatic maneuvers to project it as ‘ benign power’.
1. Barry Buzan, People,State and Fear :The National Security Problem in International Relations,(Sussex:Wheatsheaf Books Ltd,1983) p.45.
163. Gurmeet Kanwal and Neha Kohli ,Defence Reforms: An National Imperative, (New Delhi: Pentagon Press, 2018),p.227.
164. It refers to identification of core political objectives and accordingly devising a strong policy narrative and alignment of all diplomatic and communications channels to target specific audience using the most effective media available.Ibid,p.225.
167. Shruti Pandalai, Combating Terrorism: Evolving Asian Perceptions,( New Delhi: Pentagon Press LLP,2019),p.240.
176. n.171, p.247.
177. Hein Kiessling, Faith ,Unity and Discipline: The ISI of Pakistan ,(London: Hurst & Co. Ltd, 2016),p.154
192. It is a humanitarian initiative taken by Indian government to generate goodwill between Indian Army and natives of Kashmir,whereby the Army is tasked with running schools, orphanages , construction of roads, providing medical facilities, and improving standard of living of locals there.n.163,p.228.
Note: The above post is unedited version of essay that published by Center for Land warfare studies (Autonomous organization that work under supervison of Indian Army) in book titled “ National Security Challenges :Young Scholar’s Perspective” after essay competition for “Manekshaw paper of 2020” in which I won 2nd prize in 10k word category
In 1600, East India Company was constituted under Charter issued by Queen Elizabeth with name “ The Governor and Company of Merchants of London trading into East Indies ”. All its members form it General Court which were to elect annually Courts of Directors . The charter authorized the company ,in its General Court , to make laws and constitution for good governance of itself and its servant and for better advancement and continuance of trade and for effective obedience of law, Company has given some power of Administration of Criminal Justice . It can punish any company servant by way of imprisonment and fines. However , the laws and punishment shall not repugnant to laws, statutes or customs of England.
So, legislative power of Company was very restricted as it can impose very mild punishment to maintain discipline within the company but in cases like mutiny and murder ,where creating deterrence is main objective of imposing punishment, these punishment are ineffectual.It was felt that power of Company is inadequate in practice of maintaining discipline specially amongst the servant ,as it lack element of deterrence, while on long voyage.
ADHOC KING COMMISSION :
To meet the situation, Company invoked the Crown prerogative and seek to secure the King Commision to commander-in-chief or captain of ship in each voyage separately ,from Queen Elizabeth. Queen on 24 January ,1601 issued first King Commission to Captain Lancaster ,empowering him to inflict punishment in Capital offences such as mutiny and murder, and to put into execution “ The Law Martial ”. Under another Commission in 1616, trial was held on board the ship charles lying at Surat Port before Commander in Chief of Fleet. Gregory Lellington has killed an englishman near Surat. He was convicted and sentenced to death on basis of his own confession.
PERMANENT KING COMMISSION:
To obviate the practice of issuing King Commission for each voyage, King James I on 14 December,1615 conferred on company general power to issue commission to captain of voyage provided that in case of capital offence, wilful murder and mutiny , verdict must founded by 12 jury ( company servant ). It was felt that similar power should be given to Company to maintain discipline on land . James I , on 4 February,1623 ,granted power of issuing commissions to any of presidents or chief officers of Surat settlement authorizing him to punish offences committed on land by British Servants and to inflict suitable punishment on them even death provided that in case of mutiny, murder or other felony trial must be conducted with help of Jury .
An Account of Criminal trial held in 1636 under this commission is available. The master of ship Mary reported to Governor of Surat factory about offence alleged to have been committed by older seaman with youth. A table and bar was set up, a jury was empanelled and witnesses are examined. The man was convicted and hanged .This shows that trial was of summary nature and there was no care about quality of justice administered through them.
Source : Jain, M.P ,Outlines of Indian Legal & Constitutional History ,Lexis Nexis
Article 20 of Constitution of India,1949 envisaged some rights to accused . Article 20(2) provide :
“20. Protection in respect of conviction for offences
(1) No person shall be convicted of any offence except for violation of the law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence
(2) No person shall be prosecuted and punished for the same offence more than once.
(3) No person accused of any offence shall be compelled to be a witness against himself”
The principle underlying the second clause is Double jeopardy.There are two maxim which act as basis of this doctrine.One is autrefois convict , other is autrefois acquit. The former is enshrined in 20(2),the constitution is silent on latter, however that is enshrined in Criminal procedure Code,1973 (s.300).
In Maqbool Hussain vs The State Of Bombay,1953 ,SC, before 5-judge Bench issue raised whether Proceedings before Sea Custom Authorities under Sea Custom Act, 1878 amount to prosecution under article 20(2) of the constitution.The facts of the case was The appellant, a citizen of Bharat, arrived at the Santa Cruz airport from Jeddah on the 6th November, 1949. On landing he did not declare that he had brought in gold with him but on search it was found that he had brought 107.2 tolas of gold in contravention of the notification of the Government of India dated the 25th August,1948. The Customs Authorities thereupon took action under section 167, clause (8), of the Sea Customs Act VIII of 1878, and confiscated the gold by an order dated the 19th December, 1949. The owner of the gold was however given the option to pay in lieu of such confiscation a fine of Rs. 12,000, which option was to be exercised within four months of the date of the order. A copy of the order was sent on the 30th January, 1950, to the appellant. Nobody came forward to redeem the gold. On the 22nd March, 1950, a complaint was filed in the Court of the Chief Presidency Magistrate, Bombay, against the appellant charging him with having committed an offence under section 8 of the Foreign Exchange Regulation Act VII of 1947, read with the notification dated the 25th August, 1948. The appellant thereupon on the 12th June, 1950, filed a petition in the High Court of Bombay under article 228 of the Constitution contending that his prosecution in the Court of the Chief Presidency Magistrate was in violation of the fundamental right guaranteed to him under article 20(2) of the Constitution and praying that as the case involved a substantial question of law as to the interpretation of the Constitution, the determination of which was necessary for the disposal of the case, the case may be withdrawn from the file of the Chief Presidency Magistrate to the High Court and the High Court may either dispose of the case themselves or determine the question of law and return it to the Chief Presidency Magistrate’s Court for disposal. A rule was issued by the High Court on the 26th June, 1950, which came on for hearing on the 9th August, 1950, before Bavdekar and Vyas JJ. The rule was made absolute and the High Court directed that the proceedings pending against the appellant in the Court of the Chief Presidency Magistrate be withdrawn and brought before the High Court under article 228 of the Constitution. The case was thereupon withdrawn and brought before the High Court and was heard by the High Court on the 17th October, 1950. The learned Judges of the High Court, Chagla C.J. and Gajendragadkar J. were of the opinion that the appellant could claim the benefit of article 20(2) only if he was the owner of the gold which was confiscated and that before they decided as to whether there had been a prosecution and a punishment within the meaning of article 20(2) it was necessary that the Chief Presidency Magistrate should determine the question of fact as to whether the appellant was the owner of the gold which had been confiscated and in respect of which an option was given to him as stated above. They therefore sent the matter back to the Chief Presidency Magistrate directing him to find a; to whether the appellant was or was not the owner of the gold stating that they would deal with the application after the finding was returned. The Chief Presidency Magistrate recorded evidence and on the 20th January, 1950, recorded the finding that the appellant was the owner of the gold in question and returned the finding to the High Court. Chagla C.J. and Gajendra gadkar J. heard the petition further on the 12th February, 1951. They reversed the finding of the Chief Presidency Magistrate, dismissed the application of the appellant and directed that the case should go back to the Chief Presidency Magistrate for disposal according to law. The appellant obtained on the 1st November, 1951, special leave to appeal against the judgment and order passed by the High Court.
The roots of principle are to be found in the well established rule of the common law of England “that where a person has been convicted of an offence by a court of competent jurisdiction the conviction is a bar to all further criminal proceedings for the same offence.” (Per Charles J. in Beg. v. Miles (1). To the same effect is the ancient maxim “Nemo bis debet punire pro uno delicto“, that is to say that no one ought to be twice punished for one offence or as it is sometimes written “pro eadem causa”, that is, for the same cause.This is the principle on which the party pursued has available to him the plea of autrefois convict” or ” autrefois acquit“. ” The plea of ‘autrefois convict’ or ‘autrefois acquit’ avers that the defendant has been previously convicted or acquitted on a charge for the same offence as that in respect of which he is arraigned.
The test is whether the former offence and the offence now charged have the same ingredients in the sense that the facts constituting the one are sufficient to justify a conviction of the other,not that the facts relied on by the Crown are the same in the two trials. A plea of ‘autrefois acquit’is not proved unless it is shown that the verdict of acquittal of the previous charge necessarily involves an acquittal of the latter.” (Vide Halsbury’s Laws of England, Hailsham Edition, Vol. 9, pages 152 and 153, paragraph 212).
This principle found recognition in section 26 of the General Clauses Act, 1897,-
“where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments but shall not be liable to be punished twice for the same offence,”
Court refer to the tests of a judicial tribunal were laid down by this Court in Bharat Bank Ltd., Delhi v. Employees of the Bharat Bank Ltd., Delhi(1) in the following passage quoted with approval by Mahajan and Mukherjea JJ. from Cooper v. Wilson'(2) at page 340:–
“A true judicial decision presupposes an existing dispute between two or more parties and then involves four requisites :-(1) The presentation (not necessarily orally) of their case by the parties to the dispute; (2) If the dispute between them is a question of fact, the ascertaiment of the fact by means of evidence adduced by the parties to the dispute and often with the assistance of argument by or on behalf of the parties on the evidence; (3) If the dispute between them is a question of law, the submission of legal argument by the parties; and (4) A decision which disposes of the whole matter by a finding upon the facts in dispute and application of the law of the land to the facts so found, including where required a ruling upon any disputed question of law.“
Customs Collector, who is the officer of Customs for the time being in separate charge of a custom house, the Chief Customs Officer who is the Chief Executive Officer of the Sea Customs for a port and the Chief Customs Authority which is the Central Board of Revenue. Sections 18 and 19 enact prohibitions. and restrictions on importation and exportation of goods and section 19(a) provides for detention and confiscation of goods whose importation is prohibited.Powers are also given to the officers of Customs to arrest persons reasonably suspected of having committed an offence under the Act but the person arrested is to be forthwith taken before the nearest Magistrate or Customs Collector. The Magistrate is entitled either to commit such person to jail or order him to be kept in custody of the police for such time as is necessary to enable the Magistrate to communicate with the proper officers of Customs. No such power is given to the Customs Collector.
Certain offences of a serious nature are to be tried only by Magistrates who are the only authorities who can inflict punishments by way of imprisonment. Even though the customs officers are invested with the power of adjudging confiscation, increased rates of duty or penalty the highest penalty which can be inflicted is Rs. 1,000. Confiscation is no about one of the penalties which the Customs Authorities can impose but that is more in the nature of proceedings in rem than proceedings in personam, the object being to confiscate the offending goods which have been dealt with contrary to the provisions of the law and in respect of the confiscation also an option is given to the owner of the goods to pay in lieu of confiscation such fine as the officer thinks fit. All this is for the enforcement of the levy of and safeguarding the recovery of the customs duties. There is no procedure prescribed to be followed by the Customs Officer in the matter of such adjudication and the proceedings before the Customs Officers are not assimilated in any manner whatever to proceedings in courts of law according to the provisions of the Civil or the Criminal procedure Code. The Customs Officers are not required to act judicially on legal evidence tendered on oath and they are not authorised to administer oath to any witness.
Sea Customs Authorities are not a judicial tribunal and the adjudging of confiscation, increased rate of duty or penalty under the provisions of the Sea Customs Act do not constitute a judgment or order of a court or judicial tribunal necessary for the purpose of supporting a plea of double jeopardy. It therefore follows that when the Customs Authorities confiscated the gold in question neither the proceedings taken before the Sea Customs Authorities constituted a prosecution of the appellant nor did the order of confiscation constitute a punishment inflicted by a court or judicial tribunal on the appellant. The appellant could not be said by reason of these proceedings before the Sea Customs Authorities to have been “Prosecuted and punished” for the same offence with which he was charged before the Chief Presidency Magistrate, Bombay, in the complaint which was filed against him under section 23 of the Foreign Exchange Regulation Act.
This was followed in Leo Roy vs Supt., District Jail,1958,SC.
Sea custom authorities are not judicial tribunal and proceeding before it cannot be said prosecution and penalty as punishment.
In 1600, East India Company was constituted under Charter issued by Queen Elizabeth with name “ The Governor and Company of Merchants of London trading into East Indies ”. All its members form it General Court which were to elect annually Courts of Directors . The charter authorized the company ,in its General Court , to make laws and constitution for good governance of itself and its servant and for better advancement and continuance of trade and for effective obedience of law, Company has given some power of Administration of Criminal Justice . It can punish any company servant by way of imprisonment and fines. However , the laws and punishment shall not repugnant to laws, statutes or customs of England.
So, legislative power of Company was very restricted as it can impose very mild punishment to maintain discipline within the company but in cases like mutiny and murder ,where creating deterrence is main objective of imposing punishment, these punishment are ineffectual. In 1661 , Charles II granted a new charter to company authorizing the Governor and Council of each factory to judge all person,whether belonging to company or living under them , in all causes (civil or criminal ) according to laws of England and to execute judgement accordingly. In palace having no Governor, the chief Factor and council were to send offenders for punishment ,either to place having the Governor and Council or to England. So,as compared to previous charter, it give wide power to company as this charter extend jurisdiction of native Indians who reside within settlement area of Surat Factory and even it can sentence Indian to death and at that time, there is no doctrine of rarest of rare case before condemning any person to death.
The available records depict very sadist account of administration of criminal justice in Surat .
Anderson on one occasion said :
“ On one occasion, a party of dancing girls refused to appear before Governor of Surat , as they have been ill paid on former occasion. The Governor administered them to justice. They were dragged into his presence and beheaded there”
This shows that there was no regards for principle of natural justice and there was no hearing regarding quantum of sentence and sentence and verdict is dependent wholly on arbitrary whim and caprice of Governor . No prudent man will sentence a person to death if dancing girl refused to serve him. Firstly, Dancing girl is independent , not his servant , even at that time also .hence, it cannot be said insubordination because she is not his servant. It constitute no Crime at all. It is complete disregard of Common law also.
According to Fryer , a goldsmith was found guilty of coining copper coin and was punished for crime as follows:
“ First, they shaved his head and beard..then putting fool’s cap on his head ,they sat him on his ass with face to his tail ..and one of drums was beat before him…Being back to prison ,they cut off his hand and let him lie during the Governor’s Pleasure”
This Statement remind me picture of the most sadist tyrant in annals of history Ivan the terrible, Idi Amin, Timur lane.Timur commonly had heads of the deceased piled up into high towers. Another of his favorite was to create pyramids of piled heads. Idi Amin even goes to extent to practice cannibalism on his enemy.
This sadism not only end here but even continued till India gained Independence .One of further inhumane instance we found in Mayor Court established in Madras under Company Charter of 1687. Mayor court has jurisdiction to decide Civil as well as criminal cases, there was dispute whether it can award death sentence. In 1712, Governor and Council resolved the dispute by deciding that it can impose death penalty only in Indians. One instance where it impose death sentence is when three Indian charged with Murder and felony were brought to trial. They pleaded not guilty. No pleaders appears from either of side. Judges himself acting as prosecutor examine and cross examined the witnesses . No jury was used for trial. They were given death sentence. They were taken to place where they committed crime ,their beards and whiskers were cutoff as mark of ignominy and then they were dragged to place of execution where there right hand were cut off yet alive , and then taken in miserable condition to gallows and hanged by neck till death. The whole trial was over in one day.
Another barbaric instance we find is Bombay presidency, A Portuguese soldier were convicted of robbery and attempt to murder was sentenced to recieve 39 lashes on three court days , being tied to gallows , with halter round the neck and paper on his neck denoting his offence and court afterwards ordered to brand him on cheek to create terror among others and then condemned to hard labour during pleasure. In this case , court even santioned his torture to extort his confession. These instance show the court administer only Revenge not Justice. No prudent man will sentence a convict with different nature of punishment. Neither it will reform convict nor it will create deterrence among society. It can only satisfy his personal prejudices and even create hatredness in society towards Criminal Justice System.
Now, anyone can imagine that britishers has no sense of justice. They uses word ‘ justice’ as instrument of oppression and nothing else.
Source :Outlines of Indian Legal & Constitutional History by M.P Jain
Rama Kamathi was one of notable trials in annals of Indian Legal History. In beginning of 18 th Century,Kanhoji Angre , Maratha Naval Admiral , was dominating western coast of India, which is exclusive trade route of sea from England to Bombay and presence of high spirited Maratha Navy under strong leadership prove bone of contention in Company trade .He pay allegiance to then-Chhatrapati Shahuji Maharaj. Many of Company ships and wealth was confiscated by him. East India Company left no unturned to get triumph over him but their every efforts goes into vain. In 1715, Boone was sent to Bombay presidency to change status quo as Governor.He used all his crocky tactics to capture the Angre but still Angre remain nightmare for Company. Ultimately, frustrated by his failures , left with no hope ,he declare Angre as pirate , officially known as Conajee http://Angria.It is still unfortunate that few textbook on Legal History depict him as pirate, ignorant of tribute paid to him, such as western naval command named after him and all weather port at Ratnagiri, Maharashtra is also named after him.
Rama Kamati was wealthy and influential person in Bombay. Not only this, He is also philanthropist. He pay allegiance to Shahuji Maharaj.When Boone , frustrated from failure, came to know that he is paying patronage to Angre. In order to create terror in mind of people who paying patronage towards Marathas,so that no one in future dare to do this, he put Rama on trial.He was charged for conspiring with Angre and was sentenced for life imprisonment and all of his property was confiscated and sold in Public auction . A commodious warehouse in fort was knocked down. He served 8 year in Gaol before he died.But if look at following facts :
1.Hearsay evidence: The only piece of testimony in this case is testimony of witness who is told by dancing girl that he conspired with Angre. It is well settled law that evidence ,if oral, must be by person who himself either seen or heard transaction. Second hand information in every legal system ,including Common Law , is excluded since there was high probability of distortion.
2.Involuntary Statement: Rama’s servant was tortured to extort false statement implicating this master.
3. Constitution of Tribunal :For trial of Ram Kamthi, Tribunal was constituted presided by Governor Boone himself. Governor himself was prosecutor as well as judge. Nemo judex in causa sau mandate that no one judge his own cause which imply a judge shall not try a case in which he has any kind of interest, whatever is nature of interest. Chief Justice Parker, who was member of tribunal , was dismissed from tribunal on ground of insubordination when he protested against torture of Rama’s servant contended that torture was against the English Common Law.
4. Fictitious Bids : Rama property was sold in public auction . Later it was found that Boone himself put fictitious bid in that auction. It proved that he has pecuniary interest in trial and sentence of Rama Kamti.
Hence, we can conclude that it is not Legal trial in sense of justice but Conspiracy to confiscate all property of Rama and vengeance act of defeats to company by Angre.
“We ,the people of India” is first phrase of Indian constitution.But since supreme court or some High court allow live streaming ,there is increasing trend of public to even question the remark made by supreme court or high court judges ,for instance,remark made by Justice Dy chandrachud that “Gender is not what your genitals are” became trend of day in social media platforms.
In any democracy ,People are considered sovereign and that what is concept of political sovereignty is all about. Even the notion of legal sovereignty or parliamentary sovereignty or supremacy is solely based on fact they have backing of public at large and they are entitled to called as “Representative of will of people” in model where we adopt Representative or indirect democracy.
Don’t you think ,is it right of public to be informed of judges credentials at least judges who are member of constitutional courts and their decision may decide constitutional question and affect the entire population ,such as judgement of decriminalizing adultery or if permit homosexual marriage in current sub judice matter .
So,What is present law on appointment of judges of SC .Article 124 of constitution of India states that “Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose “ Literal interpretation of this make it clear that SC judges are appointed by president and on consultation with HC/SC judges but consultation cant be said to be binding of president and neither it is fixed by whom president should consult.But Third Judges case 1993 reversed literal interpretation neither it is consultation nor he id free to consult any judges. By judgement is created institution called collegium where judge are fixed and consultation means concurrence with that collegium system is kind of replacement of system of appointment of judges of sc provided by constitution .Both executive and judiciary has own say on this matter. Many politician ,including present Law minister Kiren Rijiju and Late Arun Jaitley accused judiciary of violating constitutional mandate.This view is also supported by many judges,like Markandey Katju J. and ChalmeshwarJ (also given dissent view on NJAC verdict).on other hand ,judiciary fear executive interference in judicial domain and may amount to Violation of “Independence of Judiciary “ which SC considered as Basic structure .This argument also has backing on past memories -that of Indira Gandhi regime where she tried to do bench hunting for hiding his misdeeds.But is there is Third way that neither fully depend on Executive nor fully on Judiciary -Yes ,there is Parliament appointment of Judges and that too is more representative than executive appointment. Nowadays ,parliamentary proceeding are live streamed on youtube and any citizen can watch it. So isnt it more democratic idea than both close door appointment ,at least for SC judges whose judgement of constitutional importance has national repercussion .
Look at some models, Do you know Vedic model of judiciary -Vedas do mention of Sabha and samiti ,somekind of bicameral legislative body which appoint Rajan/king, in which Sabha is aligned with references of “ Kilvish Sparsta”(which eliminate crime/wrongs) as well as “Antilanghya (Whose boundary cant be crossed” ) which was considered by scholars as denoting discharging judicial function as well and may be highest judicial body of rastra as well.If it is so,one aspect is clear that parliament has control over appointment judges.
American model is of Parliamentary control over the Judicial appointment .Article II of US constitution states President of US has power to appoint SC Judges but with advise and consent of senate. It is noteworthy that appointment is preceded by senate hearing where he is questioned about his past judgement where parliamentarians try to assess his credentials about eligibility of supreme court. It in such sense Give public “Right to know judges ,at least of constitutional court”
In my opinion, parliamentary control over judges appointment that is more democratic and should be implemented ,by constitutional amendment,at least for supreme court judges .Though i know it can meet same as NJAC verdict which struck down constitutional amendment by SC ,but for ensuring democracy such risk can be taken!
In supriya chakraborty v Union of India (Same sex Marriage Case of whose hearing day to day you can watch on youtube), Adv Sanjjiv Kumar filed a intervention application for Reconstituting bench as Bench member individual opinion may vitiate impartiality of proceedings ,based on certain past credentials of judge-
Justice SK Kaul (while in Delhi HC) earlier dismissed petition(criminal justice society v uoi) advocating gender neutral law ,post Navtej singh Jauhar case (in which SC decriminalize consensual sex), stating in Para 2 of , “it was strong demand of various women group that the said Sections should remain gender specific” and para 5 “We are not inclined to interfere at this stage as the issues raised pertain to legislations to be made by the Parliament, for which adequate recommendations have already been made by the Law Commission. “-If justice sk kaul has taken specific official stand how can judge take another stance without being questioned for vitiating impartiality? Along with that ,if judge cite “opposition from some group” as reason for dismissing petition-is it not favoritism?
Justice DY chandrachud,current CJI, along with Justice RF Nariman dismissed petition seeking Right of menstruating woman inside Parsi temple ,post Sabrimala Judgement,which allow entry of Menstruating woman –it should be noteworthy that Justice chandrachud while giving Sabrimala judgement also view this practice of barring entry in sabrimala as untouchablity but barring entry of parsi woman is not untouchablity ?Petition also raises question of kesavanand bharti judgement that view “ basic structure of constitution” -are not judges discrimating on religious ground and violating basic structure mandate?Petitioner also state Keshvanand Bharti judgement shun practice of importing foreign doctrines and reading it in constitutional law and while DY chandrachud famous dictum of constitutional morality is nothing but american import that even stretched to extent that it expressed in form “we are Not bound by original interpretation of constitution”.Is it not violation of kesavanand bharti judgement?
It also raises question about “ classmate fraternity “ of 3 judges and “ DU fraternity “ of all which can be used as predictability of outcome
This petition raise certain important question :How far it is tolerable that Judge individual opinion,giving name of Interpretation, can be considered as “Law of Land,constitutional law or other statutory law “?Cant we question impartiality of proceeding on ground that Judges who has very stubborn leaning toward particular ideology ,eg -feminism ,Queer movement and show no reluctance in express it and sometime appear to unofficial advocate of it -should be kept out Benches that are setup to determine legal question on which his individual opinion may has influence on discharging judicial duty (Justice UU lalit withdraw from bench of Ram janam bhumi case as he has appeared in connected case from Govt of UP).Analyse darker side of it, we many time heard of “ nepotism/collegium/bar-bench elite lobby”..what is usually example of “bar bench lobby”even by Justice Katju, justice chalmeshwar, Arun Jaitley, Arun Shorie, is Advocate A put matter before Judge B and judge B pass favorable order and “ bar bench lobby” usually cited as example of “ Nepostism” but cant be in ideological term as well where Advocate A is ideologically akin to Judge B or many judges on matter like LGBT,Marriage etc and know that if matter goes to particular bench -outcome will be in my favor and what if Judge B is CJI who is master of roaster and constitute Bench and play vital role in appointment via collegium system -assurance is higher for Advocate A .Cant it be said as “misbehavior “ on which impeachment can be initiated -may be ideological misbehavior doesn’t fall in literal interpretation but as DY chandrachud said “we are not bound original interpretation of consti” and law consider constitution is organic document that evolve through passage of time-shouldn’t Misbehavior must include ideological misbehavior which has far reaching implication-where Judge passes series of judgement which directly amount to imposition of his individual opinion on entire population without parliamentary sanction -from recognize privacy and allow consensual sex and then giving right to sexual orientation and including it change over time to time according to psychological whim and fancies -and it repercussion is to be handled by parliament and executive.It also put parliament in ambiguous position where law which is not enacted by it has to tackled repercussion of it (from eg – If allow changing gender ,parliament will make law on issues arising from it or if making gender not concept of genital based ,parliament will deal with repercussion).It should be noted that Article 141 state The law declared by the Supreme Court shall be binding on all courts within the territory of India so, it is necessary to ensure that individual opinion shouldn’t influence the Constitution questions
Parliament can consider Amending constitution ,including in definition of “misbehavior” which is ground for impeachment of SC judge-ideological misbehavior ,either in preference of listing of case or constitution benches in case where judge is CJI or incorporating his individual views in judgement pertaining to determine constitutionality of legislative or executive action or while exercising power of 142 -and – make exception under 141 that any judgement passed by impeached judge should not be binding on Courts of india
I hope parliament bring some judicial reforms,no doubt with risk of being declare unconstitutional and void ab intio which left no open to govt but to adopt open defying attitude one day, as well as Constitutional amendment on matters on recent judgement of privacy ,decriminalizing adultery ,etc
Will the CJI chandrachud statement remain same-If constitution itself define Family as Marital Union of male and female and its offspring and male and female will be determined by Genitals/reproductive organs .It is noteworthy that UDHR 16(3): The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.Also ,some European constitution also contain provision regarding family .It would be better if Our constitution contain specific provision regarding family so that judge cant have only “personal liberty” which they can stretched to any length..Parliament should use 368 and define family.
Sigmund freud view Mind at three level-Id,ego,superego and Bhartiya Darshan also view view Satva,Rajas,Tamas as Guna of Jivatma/prakriti along with propounding notion of Indriyas/senses discipline-when we say personal liberty under article 21 for live in relationship ,for gender fluidity ,for committing suicide as well -we should question whose personal liberty it is -Id,ego,superego or satva ,rajas ,tamas ?Right to Education Act was enacted to ensure elementary education to children’s but doesnt include neither include the ethics nor psychology or even philosophy .Many time issue is raised in India regarding true history or including scriptures wisdom in education curriculum. But what is legal solution to it?
1. We should also include in Right to Education: Right to Know Indigenous Literature(IndiLit) as part of RTE-IndiLit shall include text on Philosophy,science,Law,History which include Darshan shastra,dharmshastra,Arthashastra,Ithihas Puran,Vedanga etc-when a person read darshans or 6 darshan or bhagwad gita he is exposed to different level of thinking -who am i ?am i this body or beyond that ?then rarely chances that he will participants of lobby that argue for gender fluidity or right to choose sexual orientation as sex doesn’t give answer of question that he strive to seek and he himself consider yama niyam or bhakti or dhyan as important aspect of life and itself strive for indriya sanyam/indriya nigrah
2. Striving for ” indriya Sanyam” should be Everyone Fundamental Duty (ancillary to Indilit)and state shall be bound under Article 21a for giving platform as part of elementary education ,Problem like Gender Fluidity /sexual orientation might solve
And if that happen,either the judges or politicians that emerge from that education are far less materialistic than today whose life is all about full fulling individual desire of money,sex,popularity and consider it as their sva-dharma
Think over it!!
The above comments are made while expressing views on DY chandrachud comment “extra-genital gender” in SC hearing with prayer for allowing homosexual relationship as marriage