After independence in 1947 this is arguably the most opportune time for us to contemplate on a constitution and a state design that aligns best with the nation. Right from the notion of nation-state and union of states, to rights to ideals like equality to choice of democracy to secularism, the modern systems known were adopted in Indian constitution. There has not been an analysis or a debate of whether these align with Bhārata, there has only been an attempt to make these successful in Bhārata with an implicit assumption that Bhārata should scale up to these ideals of modern age. Whether it is on the basis of a theory of polity or morality or social design, the choices never went through enough scrutiny. Today we have both the experience as a nation and the record of post-independence state institutions to make such an evaluation.
To be able to have a constitution and a state that best aligns with the nation, it is necessary to look at the notions of constitution, state, nation, morality and ideals as Bhāratīya-s understood for ages, how they evolved, and which of those were behind our glorious past, which of those need what level of adoption. Great nations can’t be built by a welfare state that focuses on lower functions of human consciousness (including wealth distribution). Great nations are a result of higher functions of human nature, of the highest level of human fulfillment, living the loftiest ideals and realizing the highest human experiences. We are a great civilization and a great nation built by Rāma, Kṛshṇa, Ṛshi-s and Devata-s, and we need a smṛti and a rājya that espouse their ideals to rebuild ourselves from the colonial shadows into glory.
The primary focus of the present paper is to present the scope of smṛti and the nature of a dhārmic state. We attempt to make a contrast with the present constitution and nation-state, not with focus on a comparative analysis or critique of the present system. Most of the present day ideals and notions are assumed and taken for granted and this makes it necessary to present a contrast before the true nature of a dhārmic state and smriti can be understood, unbiased by such assumptions.
Such an exercise would begin with a comparison of the foundational texts of collective organization, the smṛti-s of traditional Bhārata with the Indian constitution. The bases for comparing and contrasting a Bhāratīya smṛti with Indian constitution do not merely happen to be ideals or policies. Comparison needs to be of the very bases of the texts and their scheme, the worldview and principles that form the basis for those ideals and policies, the collective organization and manifest results of implementing those ideals and policies in the nation.
This exercise involves multiple challenges. Primary challenge is that there is no clear epistemic basis for such evaluation. For instance, modern constitutions assume several ideals that are not refutable within the framework of constitution. The ideals themselves have to be refuted outside the framework of constitution, while the policies assuming those ideals need to be debated within the framework. In contrast a smṛti text spells out an ontological basis from which its ideals emerge and the source texts that form basis for the axiomatic content of the smṛti. In fact this feature is common to most Bhāratīya texts – there is always a meta content available based on which content could be modified or codified. For instance aṣṭādhyāyi is not a grammar text written in Sanskrit but in upadeśa, a meta language. Similarly smṛti is not directly a constitution or a book of law but includes meta text that enunciates guiding principles for framing such books. The constitution and smṛti are thus texts at different levels, one gospel-like and the other refutable.
In brief, the paper contrasts the salient features of present constitution with a traditional smṛti. Broadly these features are of two kinds –
- Document level features: These include meta content that contextualizes the core content of the document, helps audit, internal consistency and updates, manages the multiple layers of content in a non-conflicting way.
- Content level features: These include the universal principles, scheme of morality and ontological bases of the text; considerations such as permanent-temporal and micro-macro underlying the design of institutions; the nature of nation as the text sees it and the nature of state designed by the text.
We propose how a constitution would structure itself, if based on dharma and Bhāratīya principles of constitution and law making. This includes the nature of dharma, multiple layers of text in a smṛti, such as the eternal, temporal, region specific, multiple aspects of the content of the text. There is far little emphasis on political model and executive since they become corollaries and emerge as a result of a right understanding of rāshṭra and dharma śāstra. The primary focus is on how the meta content determines the nature of state and society. The orthogonality of geo-political (state/rājya) and geo-cultural (nation/rāshṭra), the principles underlying various institutions and the bases for their formation and evolution rather than the institutional structure itself, will remain the focus. The considerations in a constitution that explicitly and implicitly allude to the different aspects of the nation and society, their relative significance and insignificance in different layers of the text becomes a secondary focus. For instance, how the assumption of a diverse society results in constitutional provisions as compared to the assumption of a monolithic religious society.
We attempt to present the nature of a dhārmic state that bases itself on such a smṛti. Some of the principles of a dharmic state (such as prajāranjakatva &śikshā dakshata, yāthā rājā tathā prajā etc.), and their influence on policy and law making are identified. Instances from the manifest layers and policies are used more as examples to explicate the point rather than as an attempt to demonstrate the merit of a policy. Some of the problem spaces such as the trade-off between civil liberties and state authority, social order and identities, integration motifs in the institutions, the way they get formalized in a constitution are identified. It is also identified, for completeness, what does not form part of a smṛti and what forms part of a temporal executive.
After independence in 1947 there was an opportunity for us to create a constitution and design a state that aligns best with the nation. However, we have adopted a colonial state with little criticism of ideals and institutions, while amending the aspects that appeared coercive in the colonial state. Right from the notion of nation-state and union of states, to rights to ideals like equality to choice of democracy to secularism, mostly the modern systems known were adopted in Indian constitution. There has not been an analysis or a debate of whether these align with Bhārata, there has only been an attempt to make these successful in Bhārata with an implicit assumption that Bhārata should scale up to these ideals of modern age. Whether it is based on a theory of polity or morality or social design, the choices never went through enough scrutiny.
It is therefore necessary to evaluate the ideals of modern Indian state, their suitability and their bases, with Bhārata, her ideals, notions of nation, individual and collective morality forming the frame of reference. Only then could one arrive at the right set of ideals and institutions best suited for the abhyudaya of Bhārata.
Such a contrast could start by comparing the foundational texts of collective organization, the smṛti-s of traditional Bhārata with the Indian constitution. The bases for comparing and contrasting a Bhāratīya smṛti with Indian constitution do not merely happen to be the ideals or policies. Comparison needs to be of the very bases of the texts and their scheme, the worldview and principles that form the basis for those ideals and policies, the collective organization and manifest results of implementing those ideals and policies in the nation.
This exercise involves multiple challenges. Primary challenge is that there is no clear epistemic basis for such evaluation. For instance, modern constitutions assume several ideals that are not refutable within the framework of constitution. The ideals themselves have to be refuted outside the framework of constitution, while the policies assuming those ideals need to be debated within the framework. In contrast, a smṛti text does not base itself on assumed ideals but spells out an ontological basis from which its ideals emerge and the source texts that form basis for the axiomatic content of the smṛti. Smṛti is not directly a law book or constitution, but is multi-layered and has meta content that enunciates guiding principles for framing such books, along with sections of specific content that is modifiable based on the former.
To be able to examine the scope of a smṛti and the nature of a dhārmic state, the paper is divided into sections that;
- Draw a brief contrast of constitution from a traditional smṛti to indicate the structural and conceptual differences.
- The moral scheme underlying a smṛti.
- A structural and institutional view of Bhārata, the notions of state and nation.
- Briefly contrast traditional institutional structure from nation-state.
- Explore how a constitution would structure itself, if based on native principles of constitution and law making.
The constitution of a nation gives an idea of how a nation views herself, her identity and her cherished ideals. Constitution at least in the present sense, while broadly identifying the nation and indirectly referring to nationhood, defines a state that governs the nation, ideals of state and a framework of rights. While some of these are universal in nature, the state’s commitment towards nation and her identity, her cherished principles and ways of life, is almost assumed. Laws are derived from these ideals and rights, towards protecting/achieving those.
However, this structure itself is a relatively modern evolution. The traditional constitutions in India, the smṛti-s, are structured not to begin with defining a state but from universal-eternals, then explaining human nature, then the bases for defining a state, and the land where the law of land applies. The structural difference between the foundational documents is equally important to understand as the difference in the content, since such difference is also directly related to the macro aspects of how those documents see the world, man, nation, state.
Table 1 depicts a high level contrast between smṛti and constitution. Smṛti first engages in explaining the universals, then the specifics of human nature, and the bases for making laws as rooted in those. A scheme of morality is first spelt out even before law is made. Constitution in contrast, spells out the ideals for a state but does not spell out a moral scheme based on which the laws are made.
Broadly, it could be claimed that a smṛti is best designed for inherited societies whose main features are (a) a stream of knowledge traditions (b) an institutional structure that is adaptable and evolutionary. In contrast, a modern constitution is best designed for an organized society where state deals more directly with individuals.
Constitution defines a framework of rights and enlists the rights of individuals that are protected by the state. That rights are subject to state granting those, is implicit in this. In a smṛti there are no individual rights specified, one’s liberty is unbound until it is breaching a law or violating others’ natural liberties. This is vastly different from the notion of right, because rights are granted and protected by state whereas individual liberties are protected and determined by one’s own nature and conduct where the state’s role is passive. The seeds of individual action and human fulfillment through action – individual and collective are sown right in the dharma śāstra-s, as the cherished ideal of the Indian peoples for ages. This, thus, is a nation made by people – not as a euphemism but the way this nation defined herself. Fulfillment of being, through action, through fulfillment of desires and achievements, through inaction and through diverse experiences of life, fulfilling the purposes of life, becomes the basis for defining what state does to protect these. The primal human aspirations are identified, whose legitimate fulfillment (in a way it does not infringe similar fulfillment of other beings) is an ability that nature confers on individuals – through individual actions, through collectivities.
Table 1 Contrast between Traditional smṛti and Constitution
Constitution should reflect an understanding of the characteristic features of a nation and define state in a way that the interests of nation are best served. On the contrary, against the above backdrop, the post-independence Indian constitution tries to define how the nation should be. Instead of defining a state that aligns with and protects the nation, it imposes notions that revolt against the basic nature of this nation. While the table above and sections below keep drawing the contrast between the nation-state envisioned by post-colonial constitution and a dhārmic rājya-rāṣṭra envisioned by smṛti-s, the focus of this essay is not to establish that the post-colonial constitution does not align with the nation. It is a given and natural that it does not align. It is also natural that our constitution and state cause damage to the nation and her institutional structure.
We limit the scope of this essay to anecdotes rather than elaborate data, mainly to convey the thought than to demonstrate it. To clarify, data is important and data does get debated in public discourse today, and there is no shortage of details. For instance, the bad side-effects of discriminative caste policies and politicization of caste, the logical inconsistency in a secular state controlling religious institutions of Hindus, unequal treatment of various groups while setting the ideal of equality are not without mention in the last few decades. There is, however a shortage of debate on the institutional structure and the worldview and concepts underlying that structure.
The contrast between the post-colonial and traditional systems is drawn primarily to take focus back to how we can rediscover ourselves sans colonial thought rather than attempting to quantify the damage.
A scheme of morality is the primary assumption of a constitution, something that it does not define but makes use of. Indian constitution was derived from western constitutions, many of the acts continued from British times. They are mostly based on Victorian Christian morality. Recent judgments observed the need to change these to a more recent, post-modern moral assumption such as decriminalizing LGBT etc. Many laws are called outdated because the ideals underlying these laws are changing with times.
There are collective ideals and individual morals. Constitution assumes both along the lines of western Christian view of man and world. The impact of this can be seen only when there is a contrast drawn with Hindu moral scheme (dharma), how it works and its implications in individual and collective life and lawmaking.
A proper contrast between Dharma and western morality can come not merely by comparing the moral frameworks of East and West, but by comparing the consciousness frameworks from where the human conduct (ethical or otherwise) is understood and explained.
Nature can be understood through two of its primal aspects – consciousness quality (guṇa) and action (karma). Dharma or natural righteous order is determined by these two aspects. This is one of the foundational notions in Dhārmik systems, and is visible in the society, language, culture and view of life. Dharma as the goal of life is the fulfillment of dharma the natural order. Dharma or righteousness is not an imperative (like hypothetical or categorical imperative), but a purpose of life. Goals of life are four-fold, and fulfillment of being and attainment of complete happiness can happen through their attainment. Since dharma is the aligning principle of the nature of a being and its actions and thus its fulfillment, dharma is itself the first and foremost goal whose fulfillment leads to the fulfillment of the remaining three.
Fulfillment of purposes of life, attainment of happiness through the different faculties of consciousness (senses, mind, intellect, ego and the entire being) in a graded way is the basic theme in Sanātana Dharma. Attainment of happiness of the highest order (ānanda) is the end to which all human aspiration is, according to all the worldviews (darśanas). Dharma is natural righteous order which manifests in all beings, something existent and learnt from nature. It is the law which determines the experiences of beings and fruits of action. It is the basic law of cause and effect, on which the theory of karma is based. Dharma is thus the intrinsic nature of beings. And dhārmik acts like speaking the truth and being nonviolent, is the intrinsic nature of beings.
What becomes a “law” in dhārmik framework is something that is in the intrinsic nature of beings. Thus an “imperative” in Dharma traditions if one has to state, would be as simple as– “realize your true nature, be true to your nature”. This actually relates directly to actors, actions, situations and consciousness, and is not limited to stating moral facts. When there is a cosmic order that is pervasive and whose micro manifestation is the intrinsic nature, the order can hardly be subjective – it is universal by definition, while at the same time keeping in tune with the phenomenal diversity.
Nature and action are both rooted in consciousness. To understand dharma it is necessary to understand Indic consciousness studies. Consciousness study is a well-developed subject and influences most of the subjects, metaphysical as well as physical. Understanding consciousness qualities and consciousness layers/sheaths helps us understand the bases for concepts like Dharma too. In Hinduism the source of morality is consciousness itself, and manifests differently at different levels of consciousness. The dhārmik behaviour or morality is in the intrinsic nature of beings, and how dhārmik or adhārmik an action is, is determined not just based on a moral law but on the basis of the consciousness quality and the sheath to which the being belongs.
There are five sheaths of consciousness, which are grouped into three bodies of the being. The outer sheaths have to do with physiological needs, inner/deeper ones with psychic plane and still deeper ones with impersonal knowledge. Human evolution is defined in terms of increasing manifestation of the intrinsic nature and decreasing manifestation of outward nature. An easy way to understand this model is to map these sheaths to Maslow’s pyramid of hierarchical needs. Thus the outward nature of a being is driven more by needs (of the lower layers of Maslow pyramid or the outer sheaths of consciousness) and the intrinsic nature is driven more by urge for knowledge, aesthetics etc. (corresponding to upper layers of Maslow pyramid or inner sheaths of consciousness). So when we say the being’s intrinsic nature is to be truthful, it is because the object of consumption of intrinsic nature is truth-beauty (self-actualization and self-transcendence layers of Maslow pyramid) and not food-sense pleasure-ego gratification (physiological, survival, self-esteem layers of Maslow pyramid). So to speak the truth is the default intrinsic nature, which can be distorted by lower needs of man. We can apply the same logic to another moral fact – of nonviolence. While violence is an extrinsic natural fact and a basic survival method, and life sustains by consuming life, nonviolence still becomes a default in intrinsic nature.
The different aspects like morality, purposes of life, consciousness, happiness and excellence, epistemology and cosmic philosophy form part of a complex concept like Dharma which acts as the main guide of life in dhārmic worldviews. There is a common structure of knowledge and society in the east that reconciles and develops the several aspects of life and different forms of knowledge, and that is rooted in dharma.
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