This article belongs to the debate » Casting Light on Kashmir
17 December 2022

Constitutional Patriotism for the Marginalized

The Case of the Indian Constitution and Kashmir

Constitutions depict social realities, tell stories, reflect on people and culture. They are the embodiment of a state reality, matured by a national history, admonishing and guiding politics and the broader public. The Indian Constitution tells a unique story: Of combined liberalism and pluralism, of a reality of marginalization in society and of constant search for identity. Recent developments in majority-Muslim Kashmir have made these narratives more visible than ever and point to a new lens of analysis.

In the German postwar period, words like Verfassungspatriotismus (Constitutional Patriotism) characterized a new project of identification with the Constitution. Inspired by Karl Jaspers, Dolf Sternberger’s and Jürgen Habermas’ concept of Constitutional Patriotism was intended to create a dynamic identity structure and a culture of memory alongside the nation, based on the “working” of fundamental ideals of the German “Constitution”. While the emotional corpus of the nation disappointed in the nearer history, the sober state in the form of the German Grundgesetz was to provide an identity alternative to nationalism as well as a remedy for the feeling of shame of many Germans after WWII. Constitutional Patriotism became the cautious, and not uncontroversial, identity rescue of a generation, even beyond Germany.

One might think that Constitutional Patriotism has since disappeared from the social and political stages as globalization has progressed, but in reality, the concept repeatedly experienced a renaissance or initial momentum when political projects of nationalism have encountered multicultural societies and, in fact, correspondingly diverse Constitutions. This has been particularly interesting to observe for some years in India and can for example be illustrated by the surprising use of the term by the Indian Supreme Court in a decision from 2016, which describes why it would be proper to stand up during the national anthem:

„National identity, National integrity, and constitutional patriotism […]“.

However, just as, according to Habermas, Constitutional Patriotism has always had a certain intended activism with and around the Constitution inherent in it, the social and antinationalist expression of it is more likely to be found on the side of the Indian opposition, as expressed in the words of Bhim Army chief Chandra Shekhar Azad in the context of the 2020 Jama Masjid Delhi protests against the new Citizenship Amendment Act (CAA):

“The Preamble is the moolbhav [core idea] of the Constitution. It speaks of equality for all, of secularism. […] It is important to read the Preamble so that everyone knows what it says. And if the prime minister has forgotten the Preamble, he needs to be reminded of it.”

Both quotes, in their opposition, tell the story of the Indian nation-state and a large part of society standing against each other, and of a postcolonial constitutional state that holds largely unrecognized identity potential in line with the supposedly purely Western concept of Constitutional Patriotism as not just a feeling, but as a possible tool against a social reality of discrimination and marginalization in the “largest democracy” of our world.

In India, the state-led process of marginalization that has taken place in contradiction to the Constitution’s principles, which are uniquely both liberal and minority identity-protecting, has grown enormously in recent years: With Article 370 of the Constitution abolished, Prime Minister Narendra Modi began the process of removing the special administrative status of Muslim-majority Kashmir in August 2019. In December of that year, a new law, overtly anti-Muslim, allowed expedited naturalization of Hindus, Christians, and Sikhs from India’s neighboring Islamic countries. This CAA, along with the new National Register of Citizens, which requires every Indian to prove citizenship, has entrenched religious discrimination at the heart of the Indian state, specifically targeting Muslims.

Significantly, the following nationwide protests made the Indian Constitution their icon. Constitutional Patriotism—even if unconscious—quickly developed to stand at the center as a source of hope and as an activist motivation in the debate, which makes this identity-idea increasingly interesting to be applied to diverse postcolonial states. The fact that Constitutional Patriotism can indeed have practical benefits, but at the same time also leaves room for exploitation by the other side, becomes particularly clear in the example of India’s dealings with the Muslim-majority region of Jammu and Kashmir.

The Constitutional Vision: A Symbiosis of Liberalism and Pluralism

 The potential of an Indian constitutional identity begins with its already historically created uniqueness. India was conceived as a pluralistic community, and most of the eminent intellectuals of the time ensured that the Indian Constitution, drafted between 1946 and 1950, mediated between liberalism and pluralism. They founded a parliamentary, federal democracy with universal rights, but also allowed for the protection of minorities through “affirmative action” (Article 15) for disadvantaged groups. To the colonizing West, the Indian Constitution was intended to express for the first time the reality of complex and multi-layered collective identities based on religion, ethnicity, language and social history, rather than essentialism.

The core of the Indian Constitution’s moral thinking lies in its repeated concern for vulnerable minorities: Group rights enshrined in Article 19(5) and special provisions for the benefit of women, children and especially the Scheduled Tribes and Castes (mostly socioeconomically disadvantaged groups legally identified in Article 342), such as Article 15(3) and (4), are just two examples of this unique approach. The Indian Constitution thus manages, at least on paper, the feat of combining a liberal and individualistic aspiration with a collective social reality, and accomplishes this through giving the state specific (and in the West unheard of) powers to secure minority and differentiated equality rights in various collective spaces.

Already here, a narrative could be interpreted from the Constitution, which speaks solely to marginalized groups, and seeks identification precisely from those people, even actively offering governmental regulation elements in the constitutional text. Thus, when a Constitution promotes a vision of public life that builds on individual freedoms but at the same time invites a multiplicity of collective affiliations, it becomes precisely a potential for minorities to adhere to this particular document, letting people not having to choose between loyalty to India as a broader state and their respective regional, ethnic or religious identities.

The CAA and the Destabilization of Muslim Citizenship

 While constitutional protections are seen as obstacles to the goal of nationalist groups like the BJP in transforming India into a Hindu Rashtra, the BJP has also actively used the universally appealing liberal values enshrined in the Indian Constitution as an opportunity to further its agenda of Hindu majoritarianism, commonly at the expense of the Muslim minority which is often framed in a demonized way.

Such demonization of Muslims becomes especially visible in the case of Jammu and Kashmir (J&K), when, for example, the J&K president of the BJP stated in 2020: “Just wait and watch. Abdullahs, Muftis, Azads, and others shall have to chant Jai Shri Ram (Victory to Lord Ram)”, while also referring to Muslims as terrorists. In September 2019, Bipin Rawat, chief of the Indian army, justified a violent clampdown that lasted for several months as an effort to curb terrorism.

Similarly, the fragile situation in J&K has been used as a reason for why the citizenship of Indian Muslims would—from a Hindu nationalist point of view—need to be destabilized, through restriction and ideally annihilation. Nothing exemplifies this better than the push for the CAA, which faced strong resistance protests throughout society, with a steady reference to the Indian Constitution as a point of identification for the minorities of the country. At their peak of intensity, in February 2020, the protests became particularly violent and resulted in the death of 53 people. Muslim activists, NGOs and political parties filed petitions against the CAA claiming that the act goes against India’s secular character as enshrined in its constitutional Preamble. The south Indian state of Kerala became the first to challenge the CAA through a lawsuit on similar grounds, stating that such an amendment is discriminatory towards Muslims and goes against both India’s constitutional principle of secularism and against the values of equality (Article 14) and freedom of religion (Articles 25-28). Such resistance against the BJP’s Hindu nationalist and majoritarian policies from different segments of society brings forth a central aspect of Constitutional Patriotism through which marginalized minorities like Muslims are—according to Jan-Werner Müller’s central work on this theory—equipped with a language of rights that can be used to challenge majority decisions, by appealing to a patriotic idea of remaining loyal to the fought for values of the Constitution. Consequently, one of the most practical usages of Constitutional Patriotism does not necessarily have to only lie in its theoretical foundation, but in the tool it becomes for direct political activism to counter Hindu nationalists’ attempts of destabilizing Muslim citizenship and status as a viable Indian minority.

Hindu Majoritarianism in the Case of J&K

The recent developments in relation to J&K provide a prime case for Hindu nationalists’ push for Hindutva-based majoritarianism at the expense of Muslim citizenship. One of the most potent aspects of the Kashmiri’s struggle in India has been their rather non-violent protest effort through civil disobedience, which has historical precedence in Mahatma Gandhi’s peaceful struggle against the British. Hindu nationalists, on the other hand, (in a manner somewhat similar to that of the British) feel threatened by such resistance and try to shut it down with brute force, for example, through the revocation of Article 370 which granted special administrative status to the J&K region. Thus, Constitutional Patriotism extends itself into the practical realm in the Indian case, as political activism through the argumentative structure of the Indian Constitution seems deeply enshrined in the historical struggle of India. As of August 5, 2019, the Parliament of India voted in favor of revoking the special status of J&K, effectively marking one of the major peaks in active expressions of BJP’s nationalistic agenda. The revocation was followed by cutting off all communication lines in the Kashmir Valley for five months.

J&K is one of two states in India in which Muslims represent a majority of the population. As shown, the Indian Constitution includes special provision dogmatics for minorities as an important protective measure and instrument of the minority against the “tyranny of the majority” as expressed by Martha Nussbaum. Thus, who is defined as a minority and majority matters a great deal, and is something Hindu nationalists have attempted to exploit with regard to J&K. In June of this year, the spiritual leader and BJP-ally Devkinandan Thakur filed a petition in front of the Supreme Court seeking the general recognition of minority status for Hindus living in states like J&K, on the basis that such a non-identification of minority status at state-level for Hindus contributed to the negligence of their basic rights guaranteed under Articles 29 (Protection of Interests of Minorities) and 30 (Right of Minorities to Establish and Administer Educational Institutions) of the Constitution. On August 8, the Supreme Court announced that Thakur had “no case”. India’s highest court expressed that Thakur’s complaint could only be considered by the court on a case-by-case basis, and not with a general declaration of Hindus as a minority as this lies outside of the court’s job. While Hindu nationalists have indeed attempted to use the Constitution for their own majoritarian agenda, and there remains a possibility of such petitions to be brought to the Supreme Court in the future, this recent decision by the Court also brings forth some of the strength of Constitutional Patriotism. As a conceptual idea and analytical lens when applied to the case of Kashmiri Muslims in India, it shows that the Constitution indeed stands as a strong foundation upon which they can demand their rights as a minority—both on a pure textual as well as practical basis.

As enigmatic as the Indian Constitution may sound in its original intentions, it is also susceptible to manipulation and abuse, as the examples just mentioned show. Thus, the narrative of the Constitution can then be used or inverted through simple parliamentary changes for the Hindu nationalist cause, resulting in Constitutional Patriotism to be perceived as a rather vague and useless fighting term of both minority and majority. Moreover, some colonial legal leftovers continue to directly weaken an activist sense of belonging to the Constitution, looking, for example, at the still existing Sedition Law, which Vallabhbhai Patel and Jawaharlal Nehru deliberately incorporated into the Constitution in order to defeat expected civil disobedience from the outset.

Constitutional Patriotism as Activism

Even if its ideals are in danger in India, a Constitution still remains constant and creates spaces of protest, remembrance and admonition. Plus, democracy is fluid and can challenge majorities at any time. A postcolonial theory of Constitutional Patriotism for the marginalized must start here, not as a permanent identity search, not as a political system in its own right, but as a source of argument and practice for political change.

Of course, this can only be achieved through educational efforts, in which the Constitution must be brought more into the focus of social debate. In India, there are even constitutional starting points for this, if one looks at Article 30 and the right to create and manage educational institutions by and for minorities.

And even if India’s constitutional situation is certainly unique, the Kashmiri case should have at least shown and given hope that Constitutional Patriotism can develop potential beyond the West. After all, to quote Nehru in the course of the 1947 Constituent Assembly, “As long as there are tears and suffering, so long our work will not be over”.