When Bullets Are Aimed at the Constitution, Who’s the Patriot and Who’s the Traitor?

What we are seeing at anti-Citizenship (Amendment) Act protests across India is a form of constitutional patriotism.

“Desh ke gaddaron ko, goli maaron saalon ko.”
Anurag Thakur, Union minister of state for finance and corporate affairs

While the spectacle of a government minister exhorting his party’s supporters to shoot their fellow citizens no longer seems as shocking as it once did, we have not yet become inured to the spectacle of a young man firing a gun into a crowd of peaceful protestors.

We should treat this as a teachable moment: it tells us what the BJP and its fellow travellers think of dissent, but more importantly, like the chants of “Lock her up” at Trump rallies, and newspaper headlines designating judges and MPs “Enemies of the people” in the UK post-Brexit, it reveals the majoritarian nationalist’s disdain for the constitutional order.

In the minds of nationalists like Mr Thakur and his superiors Mr Modi and Mr Shah, constitutional protections are obstacles to their goal of transforming India from a constitutional republic into a Hindu rashtra. This is the ideological backdrop against which the Bharatiya Janata Party and its push for the Citizenship (Amendment) Act (CAA) and National Register of Citizens (NRC) must be understood. The CAA, which will be followed inevitably by a nationwide NRC, seeks to destabilise Muslim citizenship and is the first step towards formally making India a Hindu state.

We tend to use terms like nation, state and country interchangeably. To understand the disorder that currently plagues our politics we need to discriminate between them. The state is the physical and imagined organising infrastructure of a political community. It is the border, the various levels of government, the legal system and the police among other things. It is the infrastructure that allows, in Max Weber’s framing, the state to maintain a monopoly over violence within its territory.

The nation, on the other hand, is a community of people, usually defined as sharing a common language or religion, a shared history and culture, and often some or all of these together. The nation-state, then, reflects the idea that each nation has the right to self-determination and by implication, its own state. Hindutva’s project is to turn the state into an instrument of the Hindu nation.

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In an essay called ‘The Decline of the Nation-State and the End of the Rights of Man’, Hannah Arendt describes this project in European countries in the interwar period, “…the transformation of the state from an instrument of the law into an instrument of the nation had been completed; the nation had conquered the state, national interest had priority over law long before Hitler could pronounce, ‘right is what is good for the German people.’”

This is not a crude comparison; it is the crux of the Hindu nationalist project, the aspiration central to any majoritarian nationalism. At its simplest, it is the attempt to frame the desires of the majority as the interests of the country, without regard for the legal and constitutional order.

The traitors Mr Thakur refers to are the ordinary women and men who have thronged the streets across the country in their hundreds of thousands over the last few weeks. An assortment of symbols has gained currency with protestors. Faiz’s Hum Dekhenge, Rahat Indori’s Agar khilaaf hain hone do and Varun Grover’s Kagaz nahi dikhaenge are recited or sung routinely; Chandrashekhar Aazad, chief of the Bhim Army, did his historical namesake proud by mobilising massive numbers of people at Jama Masjid and making fools of the Delhi police; protests are vivid with images of figures from the freedom struggle and heave with chants of azadi; places like Jamia Millia Islamia, Shaheen Bagh and JNU have become symbols of national resistance.

When Aazad outwitted the police and evaded them to appear at Jama Masjid, he held up a copy of the Constitution. I watched it live on TV and through the exhilaration and fear (of what might happen if the police tried to enter the mosque), I saw that his copy had Ambedkar’s face on its cover. It struck me then that what we were seeing, what we have seen at protests across India where readings of the Preamble have become commonplace, is a form of constitutional patriotism.

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Constitutional patriotism, as the name suggests, is patriotism expressed as an attachment to the rights and values enshrined in a country’s constitution. Historically, it emerged out of the attempt to neuter nationalism and create a form of fellow feeling not susceptible to the kind of nationalist excess that defined the middle of the 20th century. It should surprise no one, then, that it emerged in post-war Germany.

The term (Verfassungspatriotismus) was coined by Dolf Sternberger in 1979, and later popularised by Jurgen Habermas. It has never enjoyed much traction as an academic category, with the main criticism being that only a “thin” attachment can be created to a set of abstract values. A second, related, critique points out that if the attachment is to universal values like liberty, equality, plurality and justice, values which have equal currency in countries all over the world, how can attachment to them generate an Indian sense of fellow feeling. How would it differentiate itself from a German, French or British sense of solidarity?

The anti-CAA/NRC protests point us towards a possible answer. People value the rights they have, but to build a resonant political movement around those rights, we need to remember that they weren’t given to us; they were fought for and won. Our constitutional rights and values may be universal, but the struggles through which they were won belong only to us. There is no German Ambedkar, nor is there a British Gandhi. People, places and songs become symbols for these values. There is nothing “thin” about our connection to the Indian Independence struggle; nothing “thin” about the emotional connection people feel towards Ambedkar, Gandhi, Nehru and Patel.

Once a political movement is framed in constitutional terms, with a universal guarantee of rights and freedoms, it is no longer rhetorically handicapped. It need not restrict itself to the abstract language of the Constitution. It is free to co-opt language that has always been the preserve of the majoritarian nationalist. So, perhaps as an homage to Rahat Indori, Varun Grover wrote, “Mitti ko kaise baantoge, sabka hi khoon toh shamil hai.” Blood and soil are two of the oldest and most evocative symbols of ethnic nationalism; here they are metaphors for harmony, for unity and pluralism. “How will you divide this earth, haven’t we all bled for it?”

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It is a mistake to think of constitutional patriotism in the abstract, to try to theoretically purge nationalism of its susceptibility to majoritarianism. Constitutional patriotism, like nationalism, is a form of political practice. Using the idea of a nation as a large, imagined family to wrest power from monarchs and to break up empires was an enormously successful political strategy. There is no way to know whether constitutional patriotism is a viable political project other than by doing it. There is no guarantee that it will not be twisted to serve ends its current proponents would find distasteful: it isn’t a magic bullet, nor a permanent solution. We need only to look at that other great constitutional republic – the US and its mad and precious Second Amendment – to see this form of patriotism twisted into a form of literalist dogmatism.

But there is hope to be had. We have had success with this kind of politics before; our republic was constituted by it. And if the poetry of a communist in exile, written in Urdu and made famous in the lands of the old enemy, can be an anthem of this movement then perhaps some of the pluralist spirit of the founders still moves us. Perhaps some will be enough.

Raghu Kesavan lives and works in London. He tweets at @raghukesavan1.