Dharma Files | Why Constitution makers should have included ‘historical justice’ in Preamble

This post is a continuation of the previous critique of the Preamble to the Constitution of India. It was pointed out in that post, that the Preamble overlooks the possibility of conflict among the values celebrated in the Preamble, such as liberty, equality, and fraternity.

A third criticism of the Preamble is related to this criticism in the previous posting, but carries it further. One now needs to move beyond the point that the Preamble does not recognize the possibility of conflict among the various noble ideals it espouses, and Hindu ethical theory does so, to recognise that such conflict can arise within the same ideal, and not only just among ideals. Men and women, for instance, may have different conceptions of what gender equality means. The same could be true of what workers and their employers think about fraternity. Citizens within a country may similarly have different understandings of what should be meant by liberty. Thus one needs to draw attention now to a subtler problem—that the Preamble does not recognize the possibility of conflict within the same ideal.

The Preamble promises ‘liberty of…, faith, belief, and worship.’ Let us use the expression ‘religious freedom’ to refer to these promises. Religious freedom is thus offered to the followers of all religions, on the assumption that it will mean the same thing to all. This confidence may be justified, but only up to a point. It is justified in the sense that the followers of the various religions may take it to mean that their right to follow their religion on the part of all is equally guaranteed, whether it be the Hindu’s right to visit the temple, the Christian’s right to attend the Sunday service, the Muslim’s right to gather for the Friday prayer, and so on.

What the Preamble, however, fails to recognise is that the very concept of religious freedom may vary with the religion. For instance, the right to religious freedom for the Christian and the Muslim includes the right to convert others. Thus, for them, religious freedom means freedom to convert. For the Hindu, Buddhist, Jain, and Sikh, however, freedom of religion means freedom from conversion. They would like to follow their religion without the threat of being made an object of conversion hanging over their heads. For Christians and Muslims, however, asking them to convert is an article of faith.

How could the framers of the Constitution overlook such an obvious point? They overlooked it perhaps because they were too secular in their outlook to spot it. Religion is something only of peripheral interest to the secularist, who considers it an unfortunate aspect of life, destined to disappear. The secularist is too impatient with religion, to bother examining the possibility that the very concept of religion might not be the same among religions, and that this fact might affect their conception of religious freedom.

We have now had more than seventy years of experience with the Constitution, and the point still remains unrecognised. Perhaps the members of the Constituent Assembly were too engrossed with the project as a whole to delve into such minutiae, but what about those who have had to implement the Constitution in a multi-religious country, like India over the past seventy years?  Could the failure to introduce the study of religion as a subject in the Indian curricula—because it would be unsecular to do so—be responsible for this state of affairs?

A fourth and final criticism has to do with the provision for justice in the Preamble. The Preamble promises ‘social, economic and political’ justice. This covers various dimensions of human existence. A human being is a social animal, an economic animal, and a political animal and all these aspects of human life are covered. But a human being is also a historical creature. History determines the starting point of a person’s life. And there might be an injustice inherent in that — as, for instance, in being born an untouchable, or even a woman, as the feminist movement reminds us.

Why this resistance to including ‘historical justice’, along with social, economic, and political justice? It is easier to address the question of the effect this omission has for the Dharmic traditions than to determine the reason for this omission. The grievances the Dharmic traditions have are largely historical in nature and relate to how the Dharmic traditions of Hinduism, Buddhism, Jainism, and Sikhism, have suffered under Muslim, Christian, and secular rule.

By leaving out historical justice, as a form of justice which needs to be redressed, the historical experience of these traditions, especially Hinduism, is being ignored. The effect of this is apparent from the fact that, after the agitation regarding the Babri Masjid gained traction, a bill was introduced to prevent any similar claims being made in relation to other sites, known as the Places of Worship (Special Provisions) act 1991. This would not have been possible if ‘historical justice’ had been included in the Preamble.

The author, formerly of the IAS, is the Birks Professor of Comparative Religion at McGill University in Montreal Canada, where he has taught for over thirty years. He has also taught in Australia and the United States and at Nalanda University in India. He has published extensively in the fields of Indian religions and world religions. Views expressed are personal.

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Arvind Sharma