‘Har Ghar Tiranga’: The Heart, the State, and the Indian Constitution

On the occasion of the 75^th anniversary of Indian independence, August 15

In the wake of the “Har Ghar Tiranga” campaign, a campaign designed to encourage every Indian home (har ghar) to display the National Flag (tiranga, literally tri-colored), it is useful to think briefly about the evolution of the national flag, its place in the nationalist imagination during the anti-colonial struggle, and the particular way our relationship to the flag is a matter of the heart, the state, and the Indian constitution. Some people have thought that the orange in the flag represents the Hindu constituency, the green the Muslim community, and that all “others” are represented by the white in the flag.  Gandhi had said as much, in an article for Young India on 13 April 1921, except that at that time red took the place of orange, but he also added that the charkha or spinning wheel in the middle of the flag pointed both to the oppressed condition of every Indian and simultaneously to the possibility of rejuvenating every household.  The Constituent Assembly debates, which led to the adoption of the tricolored flag on 22 July 1947, suggest that some members were more inclined towards another interpretation, seeing the green as a symbol of nature and the fact that we are all children of ‘Mother Earth’, the orange as symbolizing renunciation and sacrifice, and white as symbolic of peace (shanti).  That may be so, but the tiranga cannot be unraveled without some consideration of how it emerges from the three-forked road of the heart, the state, and the constitution.

Just what, however, is a national flag and why do all nation-states have one?  The national anthem and the national flag are the bedrock of every nation-state; nearly all also have a national emblem, as does India.  India has a complicated history around the national anthem, “Jana Gana Mana”, and the country officially also has a national song, “Vande Mataram”; and, then, there is an unofficial anthem, “Saare Jahan Se Accha”, which has wide currency.  This makes the national flag especially and supremely important in India as an unambiguous marker of the nation-state. The honor and integrity of the nation are supposed to be captured by the flag, and the narrative of the nation-state everywhere offers ample testimony that the national flag is uniquely capable of enlisting the aid of citizens, giving rise to sentiments of nationalism, and evoking the supreme sacrifice of death.  In a multi-ethnic, multi-religious, and highly polyglot nation such as India, the national flag is there to remind every Indian that something unites them:  before their allegiance to a language, religion, caste group, or anything else, they are Indian. Thus, in every respect, the national flag commands, not merely our respect, but our allegiance to the nation.

The Ministry of Culture’s “Azadi ka Amrit Mahotsav” website, of which the “Har Ghar Tiranga” campaign is one component, adds something quite different to the discussion. It states that “our relationship with the flag has always been more formal and institutional than personal”, and the campaign seeks to evoke in every Indian a “personal connection to the Tiranga” and “also an embodiment of our commitment to nation-building.”  The idea, it says candidly, “is to invoke the feeling of patriotism.” To understand just what this means, we have to disentangle two elements:  first, the question of patriotism; and, secondly, the fact that the relationship of Indians to the national flag is sought to be altered from a formal, stiff, and institutional relationship to a more personal and engaged one. Let us first turn to the second point, before returning to complete the broader discussion on patriotism.

Unlike countries such as the United States and Canada, India for a long time did not in fact permit ordinary citizens to fly the flag from their residence or business. This right was preserved as the prerogative of the state.  “The Flag Code-India”, overhauled in 2002 and replaced by the “Flag Code of India”, and the Prevention of Insult to National Honour Act, 1971, set down the protocols to be observed in flying the national flag. In a now little-remembered but highly significant ruling on 21 September 1995, the Delhi High Court directed that the then “Flag Code-India” could not be interpreted so as to prevent an ordinary citizen from flying the National Flag from their business or residence. This eventually brought into existence the “Flag Code” of 2002, which permits unrestricted display of the tricolor consistent with the dignity and honor that is owed to the National Flag. However, aside from the question of the material to be used for making the National Flag, which has been the subject of considerable discussion in recent days, the Flag Code still imposed restrictions, such as being flown only “from sunrise to sunset “ (Para 2.2, sec. xi). The changes, moreover, were never public knowledge, and as a consequence it is safe to say that Indians have had a distant and formal, rather than personal and intimate, relationship to the National Flag. It is precisely this relationship that the “Har Ghar Tiranga” initiative has sought to change.

What is striking, and no longer seems to be a part of public or even institutional memory, is that in the two to three decades before independence, Indians did indeed have a personal relationship to the Congress flag or, as English officials with some derision described it, the Gandhi flag—the very flag that, after modifications, including the replacement of the charkha with Ashoka’s Lion Capital, would become the National Flag adopted by the Constituent Assembly.  Congressmen and women fought government officials with zeal for the right to hoist their flag.  They found that hoisting the flag invariably attracted the wrath, and often the vengeance, of British officials, and invariably ordered the flag to be brought down. On the rare occasion that a government official allowed the Congress flag to fly, he would receive an instant reprimand from the colonial government.  This happened in 1923 in Bhagalpur, where the official consented to have the Congress flag flown alongside the Union Jack, albeit at a lower height.  Not only the Government of India, but the British Cabinet issued a stern note saying “that in no circumstances should the Swaraj or Gandhi Flag be flown in conjunction with even below the Union Jack.” During the Salt Satyagraha, boys as young as eight years old were whipped for the offense of flying the flag or trying to hoist it.  The indomitable Kamaladevi Chattopadhyay, in her riveting memoirs, has described the tussle over the flag during the Salt Satyagraha, with the Congress Volunteers hoisting the flag time after time, and the police lowering it each time.  “Up with the Flag”, “Up with the Flag”—the echoes kept ringing in her ears.

The right to fly the National Flag, in other words, was won after an arduous struggle.  The flag evolved over time:  it was Bhikaji Cama, who edited the newspaper Bande Mataram and closely networked with Indian revolutionaries in Europe, who unfurled the first Indian national flag at the 2^nd Socialist International Congress at Stuttgart in 1907,  and Kamaladevi rightly points out that she “installed India as a political entity” by doing so.  The same flag had been hoisted for the first time in Calcutta in 1906.  By 1921, the charkha had been installed at its center at Gandhi’s instigation, and the flag was again modified in 1931.  As Gandhi had written, “a flag is a necessity for all nations.  Millions have died for it.  It is no doubt a kind of idolatry which it would be a sin to destroy.”  Seeing how British hearts pounded with pride at seeing the Union Jack fluttering in the wind, Gandhi asked whether it was not similarly necessary that all Indians “recognize a common flag to live and to die for”?  If the Congress flag accompanied every campaign, artists similarly positioned the flag prominently in their artwork.  In a 1945 color print celebrating Subhas Bose and the heroes of the Indian National Army who were put on trial on charges of treason, we see the Congress flag with the charkha, and the INA flag with the springing tiger, on either side of Subhas Bose (see fig. 1).  Martyrs fell along the way, but their struggle was not in vain:  in Sudhir Chowdhury’s print from 1947, the heads of the martyrs, among them Bhagat Singh and Khudiram Bose, lie at the feet of Bharat Mata, who hands the tiranga to Nehru on the eve of independence (see fig. 2).  In her various hands, she holds the other iterations of the national flag before it evolved into the tiranga.

Fig. 1, Sudhir Chowdhury, I.N.A. officers with Netaji, c. 1945.

If Indians fought for the national flag with zeal, they did so because they believed in what it stood for and they did so from their own volition against colonial oppression.  The affection for the flag came from within, as a mandate from the heart rather than from the state.  In any discussion of what the flag means today, it must be borne in mind that though the business of the state is to produce patriotic citizens, a patriotism that is manufactured by the state cannot endure and is as ephemeral as a market commodity.  It is no less pertinent that the Constitution of India has nothing to say on the national flag.  Though former Chief Justice Khare, heading a three-member bench of the Supreme Court, stated in 2004 that the citizen had a fundamental right to fly the flag as guaranteed by Article 19 (1)(a) of the Constitution, the article in question is about the freedom of speech and expression, and the right to fly the flag was interpreted as being subsumed by the larger right specified by Art. 19 (1)(a).

Fig. 2: Sudhir Chowdhury, “Worship of Martyrs”, c. 1947.

The Constitution has, of course, nothing to say explicitly on thousands of subjects, and Chief Justice Khare did what courts must do, namely interpret the Constitution.  That is well and good, but we must confront the fact that many who honor the flag do not necessarily honor the Constitution. The state may be no exception; indeed, it is far likely to honor the flag rather than the constitution.  A rogue can fly a flag as much as a saint; it takes almost nothing to show one’s patriotism.  If patriotism can be purchased on the cheap, for a 5-rupee (7. 5 cents) plastic flag put together in China, which the present regime in India has derided as the mortal enemy, it is practically worthless.  That larger right to freedom of speech and expression which subsumes the right to fly the flag is critically important, but it is also equally important to recognize that the Constitution, as the supreme law of the land, itself subsumes the National Flag.  Now that the citizens of India have won the right to hoist the National Flag without restriction, consistent with respect to the National Flag, it is perhaps time to think about the corresponding duty they owe to respect the freedom of speech and expression, and the obligation, which the present government has shown little if any interest in honoring, to protect the Fundamental Rights promised in the Constitution to every citizen.

First published under the same title in a slightly shorter form at abplive.in, here.

Gujarati translation by abplive.in available, here.

The Perils of Love and Dissent in a Lawless State: The Ordeal of Harsh Mander

Harsh Mander in his office at the Centre for Equity Studies, New Delhi. Photo Credit: K. Murali Kumar.  Source:  The Hindu Group.

Once upon a time, Harsh Mander was a member of the Indian Administrative Service (IAS).  His predecessors in the colonial-era Indian Civil Service were known as the ‘heaven-born’.  Then, in 2002, Gujarat was convulsed by hatred and orchestrated violence, and at least 1044 people—and more likely as many as 2000, according to the Concerned Citizens Tribunal as well as other independent investigative bodies—were killed, predominantly Muslims. More than 100,000, and perhaps twice as many, Muslims were displaced.  It is at this time that Mander resigned from the IAS, giving up what has long been one of the most coveted jobs in the country, and turned to a life of political and social activism. One might say that he had found his voice and his calling. Since those dark days in Gujarat nearly two decades ago, Mander has more than distinguished himself as a human rights activist, a tireless advocate of social justice, a friend sans pareil to the poor, the homeless, and the hungry, and as the very conscience of a nation that is now being undone by those who are utterly bereft of principles, compassion, and the ethical mores that make possible brotherhood and sisterhood.

*How Democracies Wither: The BJP’s Constitutional Coup d’état in Kashmir

“History, in one stroke,” declared the Indian Express on August 6^th in a large headline extending across the width of the newspaper.  That, we may say, was an objective rendering of the decision taken by the BJP-led Government of India to remove the “special” status occupied by Jammu & Kashmir over the last seven decades and, in its own estimation, truly “integrate” it into the Union of India.  Though the word “historic” has been utterly trivialized in contemporary discourse, who can doubt, whatever the shade of one’s political views, that August 5^th marks a “historic” or red-letter day in the history of the Republic?  But, on a less objective note, the lines from Hamlet may resonate strongly for some:  “Foul deeds will rise, / Though all the earth o’erwhelm them, to men’s eyes” (I.ii.256).

*Fidelity to the Constitution of India: An Illiterate Muslim Woman and Her Relentless Search for Justice

Do not be surprised if you never heard the name of Bilkis Bano. Much of the world is unlikely to have heard her name.  From a conventional standpoint, she has absolutely no claim on the world’s attention.  She is a Muslim woman of little education and from a working-class background.  She commands neither looks nor wealth.  It is all but inconceivable that she would ever have a “wardrobe failure”, if only because she has barely enough to wear.  If all this were not enough to make her into a non-entity in a world that is dazzled only by riches, the inanities of ‘celebrity culture’—ask the Kardashian sisters, and they could write a modern-day epic with their thousands of mindless exploits, still counting—or “achievements” as these are usually understood, Bilkis Bano is also “damaged goods”.

Bilkis Bano with her husband, Yakub Rasool, at a press conference in New Delhi, April 2019.

The year was 2002.  Muslims were being slaughtered in Gujarat.  Its Chief Minister at the time, Narendra Modi, later claimed before a special investigative team that he was unaware of the hundreds of killings that were taking place practically under his nose.  Thousands of people were injured, killed, maimed, wounded in spirit; few suffered as much as Bilkis Bano, a 21-year old who on March 3 was gang-raped in her village home near Ahmedabad while she was seven months pregnant.  Bano’s 3-year old was also killed before her very eyes.  Altogether 14 members of her family were murdered.  Bano was left alive, as the killers thought, to nurse her wounds—and, more importantly, to serve as a palpable reminder to members of her community of how they should mind their place in a predominantly Hindu society.

In January 2008, nearly six years after Bilkis Bano was abandoned by her rapists as among the living dead, a special court convicted 11 men of murder, rape, and criminal conspiracy and sentenced them to life imprisonment.  I then argued in an editorial piece, “Mother Courage”, for the Hindustan Times (4 February 2008) that Bilkis Bano be awarded the Bharat Ratna [literally, “Jewel of India”], which is the highest civilian honor available to an Indian citizen and had thus far only been conferred on fewer than 40 people since its inception in 1954.  “In the loud din being heard these days over the emergence of a new, young, and confident India, typified as much by India’s cricketing triumphs as by the launch of a dream car for the ‘common man’ and brash talk of India as a global power,” I wrote at that time, “Bilkis represents a genuine ray of hope that there is something to live for in the idea of Indian democracy.”

Bilkis Bano with her husband and daughter a year ago in New Delhi, shortly before a Supreme Court hearing. Credit: Shome Basu.

My argument would have seemed bizarre to those who are aware that the Bharat Ratna is supposed to be conferred on those who have rendered exceptionally meritorious public service to the nation or whose accomplishments do the nation proud.  Many of its recipients have doubtless been worthy of this supreme civilian honor, among them eminent practitioners of the arts such as Satyajit Ray, M. S. Subbulakshmi, Lata Mangeshkar, and Ustad Bismillah Khan. Close to half of the awardees of the Bharat Ratna, including six former Prime Ministers, held high political office.  It is understandable that the luminaries so honored should include Jawaharlal Nehru, who served as the country’s first Prime Minister for seventeen years but whose formidable place within the struggle for independence is equally indisputable.  One need not even speak of his large and rather rich corpus of writings and his mastery of English prose.  Nevertheless, it is worth asking why the notion of “public service of the highest order” has been so narrowly defined as to preponderantly favor those who, as holders of elected office, were perforce performing their duties—and sometimes, to be candid, abusing the privileges of their office.  The real question is not whether all recipients of the Bharat Ratna honored for “public service” have been worthy of the honor, but whether holders of office, who are getting recognition enough, should at all be rewarded.

So what might qualify Bilkis Bano, an illiterate woman, for the Bharat Ratna?  Where most others in her situation would have succumbed and fled to safety, Bano filed a First Information Report (FIR), something that people in her position are rarely able to do so, and thus compelled the police—and, later, the Central Bureau of Investigation (CBI)—to open an investigation against the suspects.  We must weigh her remarkable resolve against the fact that the middle class in Gujarat would, just months after the pogrom against the Muslims, vote Mr. Modi back into power, which he would certainly have interpreted as an endorsement of the chilling culture of authoritarianism and militant Hindu nationalism which he encouraged in his home state and which he has since then carried over into the rest of India.  Mr. Modi has spoken of the Gujarat “model of development”, but the state which gave the world Mohandas Gandhi has in the last two decades become India’s laboratory for seeding new modes of barbaric hatred.  Some portions of India, judging from the news in last few years, seem intent on emulating Gujarat’s model of hate.  In her quest for justice, Bano received not an iota of assistance from the state government; to the contrary, since her life was under constant threat, she had to move more than a dozen times, and her apprehensions that witnesses could be harmed and the evidence tampered with were doubtless well-grounded. Her lawyers successfully had the court case, which commenced in Ahmedabad, shifted to Mumbai.

The trial dragged on but Bano was not one to be intimidated.  Few would have thought her likely to have such resilience. I have already spoken of what transpired in 2008:  though her rapists and the killers who snatched members of her family from her were convicted, the court found the evidence inadequate to convict either the policemen who characteristically failed to come to her aid or the doctors who tampered with the medical evidence.  Yet Bano persisted:  finally, in July 2017, a court convicted seven policemen and doctors of criminal negligence in the performance of their duties.

Bilkis Bano is now, this week, once again in the news.  Her quest for justice, it appears, has finally come to an end.  The Supreme Court of India has directed the state government of Gujarat to pay her Rs 50 lakhs (nearly $72,000), provide her with a job, and furnish her accommodation. For every Bilkis Bano who has prevailed, there are tens of thousands of ordinary women and men in India whose sufferings have not even entered the history books.  While the ruling in the Supreme Court might justly be celebrated, dozens of other cases languish in the courts.  Nevertheless, for the moment we must be focused on how we might understand the singular achievement of Bilkis Bano.  Though Bilkis is not a lettered woman, she recognized that the communal outlook is so deeply entrenched in Gujarat that no institution of either state or civil society can be said to be free of its grip or reach.  She did not wilt under rigorous and aggressive cross-examination by the defence, unflinchingly identified all the accused in court, and could not be cowed into abandoning or contradicting her testimony.

Remarkable as all that is, there is still something more exceptional about Bilkis Bano.  The rich in India have been opting out of the state over the course of the last two decades, except of course in the matter of receiving subsidies in the form of tax breaks, easy access to credit lines, and so on.  They certainly have no use for the Constitution of India.  Bano’s courage, dedication to the truth, and faith in the judicial system offer a faint glimmer of hope that Indian democracy is not entirely moribund.  It appears that her husband and lawyers stood by her through the long dark years while she struggled for justice, but the greater marvel is that Bano sustained her faith in the Constitution of India when all the odds were stacked against her.   The Constitution is the only document that every Indian can stand by, and perhaps that may one of the many reasons why so few are willing to put their trust in it.  The educated in India should take some lessons from Bilkis Bano.

There is not the remotest possibility that Bilkis Bano will receive even the slightest recognition from the Gujarat Government or even the Government of India. It will be easier for a camel to pass through the eye of an needle than for her to be conferred the Bharat Ratna.  I would not be surprised if the Gujarat Government, which has abandoned the slightest semblance of decency or moral probity, found some way to dodge, dilute, or desecrate the orders of the Supreme Court.  But, whatever the outcome, it is more than a minor relief to know that at least one Indian citizen, and that too a person who is unlikely to appear on any one’s mental horizon, is prepared to defend the Constitution of India with her life.

 

 

 

*Decriminalizing Homosexuality in India

(in three or four parts)

Part I:  Free at Last:  A Supreme Court verdict for LGBT Identity

Thursday’s decision of the Indian Supreme Court to decriminalize homosexuality is justly being celebrated as a historic moment in the country’s modern history.  Section 377 of the Indian Penal Code, which dates back to 1860 and in its elements was drafted by a commission in the 1830s headed by none other than Thomas Macaulay, made voluntary “carnal intercourse against the order of nature with any man, woman or animal” an offence punishable “with imprisonment for life”.  The Delhi High Court in 2009 [Naz Foundation v. Government of NCT of Delhi] had given the LGBT community a lease on life in ruling that Section 377 could not be applied to consensual sex between homosexuals, but on appeal to the Supreme Court the high court was reversed in 2013.  In overturning its earlier decision, the Supreme Court in Thursday’s ruling admitted that it had made an egregious mistake and, quite unusually, tendered an apology to “members of the community for the delay in ensuring their rights.”  The Court noted that, in its earlier decision, it had been swayed by the fact that only “a miniscule fraction of the country’s population constitutes lesbians, gays, bisexuals or transgenders”, and had come to the false conclusion that the rights of such a minority could not be permitted to fashion the laws for an entire country.  However, the Supreme Court now holds that though a majority may be entitled to govern, it cannot abrogate the rights of a minority, whatever its numerical strength.  The Supreme Court has admitted that it had abrogated not only the right of privacy of LGBT people, but even the fundamental rights guaranteed to them under the Constitution.

A Rainbow Pride Walk in Kolkata. Copyright:  Debajyoti Chakraborty/NurPhoto via Getty Images.

LGBTQ community people, with a rainbow flag, celebrate the Supreme Court verdict which decriminalises consensual gay sex, in Bengaluru, Thursday, Sept 6, 2018. (PTI Photo)
Source: https://www.deccanherald.com/national/lgbtq-rights-activists-welcome-691377.html

 

The euphoria being experienced in the LGBT is understandable.  The bold headlines carried by the country’s leading newspapers on Friday tell the story in outline.  The Times of India opined that India had been “ushered into the 21^st Century” and they headlined the story thus:  “Independence Day-II.”  The Hindustan Times could, however, muster little more than “Rainbow Nation”:  noting that “Justice is Served”, they characterized the Court’s decision as a “Landmark Ruling” that had been given all the more weight in that all the five justices concurred.  The Indian Express was far bolder with its headline, “Love at First Sight”, above a photograph of two well-dressed petitioners kissing on the cheek.  The Hindi-language Navbharat Times was inventive, expressing the verdict in the formula “377=0”, explaining that the court had rendered Section 377 nought. One might continue in this vein: from all the available evidence, parties had broken out across the country’s metropolitan centers.  A friend sent me an article from the South China Morning Post:  the photographs accompanying the article show men and women holding tearful celebrations as the verdict was being read out and over the course of the day.

People belonging to the LGBT community celebrating after the Supreme Court’s decriminalization of consensual homosexual sex at an NGO in Mumbai, India, September 6, 2018. Photo:  Reuters.
Source:  Deccan Herald (newspaper)

 

A portion of the judgment of Chief Justice Deepak Mishra where he quotes from the philosopher John Rawls.

 

The 495-page judgment of the Court, rendered as four different if concurring opinions, is not likely to be read by more than a few lawyers and scholars, law students, and activists, and there will be time enough to ponder over the finer points of the Court’s reasoning.  Nevertheless, there are activists who are already cognizant of the fact that the road ahead is littered with shards of glass.  Conservative elements in all the religious communities have already pronounced their opposition to the judgment but there is no element of surprise here at all.  There are a large number of people who will continue to remain hostile to members of the LGBT community; but it is also quite likely that a large number of people, whose attitude is perhaps best described as indifference, will in time come to accept the Supreme Court’s opinion as the settled law of the land.  Even among many of those who are educated, and often of liberal dispensation, the feeling persists that in a country such as India there are far more pressing issues than the elimination of Section 377—not only the threat to Fundamental Rights enshrined in the Constitution under the present political dispensation, but the crushing poverty of much of India’s countryside, the grave problem of large unemployment, the pandemic of violence against women, the suicides of over 300,000 farmers, and so on.

What is certainly striking in the coverage of the Court’s decision thus far, and in the pictures that have been posted, is that the celebrations appear to have been held entirely in urban areas, and most of those in metropolises such as Delhi, Bangalore, and Mumbai.  No one has argued that Section 377 was not without an impact in the metropolises, but the educated middle classes have, in this matter as in most others, protections which would have been denied to those with fewer privileges in life.  Prosecutions under this section have been comparatively uncommon: according to figures maintained by the National Crime Records Bureau, in 2015 fewer than 1,500 arrests were made.  One cannot minimize the immense psychological hold that Section 377 had over large segments of the LGBT community, giving rise to fear and silence on their part and, conversely, emboldening not only a largely corrupt police but many who sought to blackmail LGBT people.  At the same time, we shall have to ask how, and in what respect, the abolition of the most egregious portions of Section 377 impacts rural India where half of the country still lives.  In raising this question, I am not at all adverting to the common liberal view that the countryside is more conservative and therefore less progressive.  If by conservative one means, for example, that the pace of social change in the countryside is slower, than that is doubtless true of India’s hundreds of thousands of villages; however, the same countryside has, mercifully, been much less prone to accept the communal narratives of the Indian past which are now destroying India, though the extremist Hindus who are these days accustomed to acting with impunity are doing everything to communalize the country’s rural populations.  What is most pertinent is that in rural India one cannot quite escape one’s identity:  a person may proclaim herself a Christian or a lesbian one day, but those identities do not become accepted merely because they have been affirmed.  Above all this is of course the consideration, common to every part of the country, that the law can outlaw certain forms of discrimination, as the Supreme Court has now wisely done in holding Section 377 (except with respect to the provisions about the unlawfulness of bestiality, or sex between a human and an animal) contrary to the Constitution, but it cannot make people have affection for those who are deemed ‘different’.

(to be continued)