Energy futures and the case for renewables and cleantech can be framed in terms of their contribution to mitigation of climate change, as well as cleanliness and absence of carbon emissions. By contrast, energy security is generally discussed in terms of access to fossil fuels. In this chapter we make a different case for renewables: we contrast the extraction of energy (fuels), which – in spite of technological change – takes place under diminishing returns, with the harvesting of nature's renewable energy, which takes place in a process utilizing manufactured devices, where manufacturing generates increasing returns and costs decline along steep learning curves. This gives a fresh perspective on both renewables and energy security. We argue that energy choices can be framed as choices in favour of increasing returns (based on manufacturing), vs. choices in favour of diminishing returns activities, which usually involve extraction of fossil fuels. Such a framing does not entail assumptions as to whether the entire energy system can be converted to renewables, but simply as choices made at the margin – whose effects will cumulate over time. Energy security through renewables manufacturing therefore promises to be a fruitful area of futures studies.

Introduction

Energy policy and the discussion of energy futures have moved to the centre-stage of political and policy debate – driven by concerns over global warming and the impact of the continued burning of fossil fuels. The case for renewables and cleantech is usually given in terms of contribution to mitigation of climate change, as well as cleanliness and absence of carbon emissions. Energy security too is widely discussed, and usually in the context of securing access to fossil fuels, either of the traditional kind (oil, gas, coal) or the new non-traditional fuels (coal seam gas, shale oil).

In this chapter we link the two and thereby make a quite different case for renewables, couched in terms of their contribution to energy security. Renewable energy systems embody technological change, manufacturing, learning curve effects and the capture of increasing returns. Because they are produced by manufacturing activities, which can be conducted virtually anywhere, they offer prospects of long-term energy security for the countries that adopt them. Renewables may be viewed as a developmental strategic choice – and the effects on climate change mitigation, energy security and environmental cleanliness are useful and desirable adjuncts.

To sum up and draw this book to a conclusion, the Communal Constitution was introduced as a pathological tendency in Indian constitutional practice that identified the Indian people along religious lines. Normatively, this presents a straightforward problem pointing to the task of defending, justifying, and pulling constitutional practice back to the Indian Constitution's much-celebrated promise of equal liberties. However, to make explicit the contours of the Communal Constitution, this book has consistently bracketed off and distanced its gaze from the search for normatively preferred or correct solutions. In the place of normative argument the previous chapters have emphasised communal aspects in constitutional design and practice that have belied and cohabited with the Constitution's much-celebrated liberal ambitions. Even so, as the Communal Constitution acquires salience against the background of the Constitution's liberal values, those aspirations also set the ground along which the discussion of the previous chapters is best appraised.

The Liberal Background

With the hindsight of the previous chapters, the Communal Constitution could be described as a frustration or even critique of liberal secular aspirations as it has operated in Indian constitutional practice. The hegemonic grasp of liberal secular ideas is under severe stress both in India and in all parts of the modern world. In everyday politics a surge in populist authoritarian and nationalist movements attempts to dismantle the open and fraternal institutional culture that makes equal liberties possible. In the realm of ideas, liberal secular values have always been subject to challenge. However, this has been especially so over the last few decades with a significant body of scholarship pointing to various challenges or impossibilities in engendering and fostering liberal secular politics. This body of work is too large and varied to meaningfully recount, but it is important to mention that its emphasis on a critical reconstruction of liberal secular norms as they have been shaped and passed on by state practice forms an important backdrop to this book's account of the Communal Constitution. Accordingly, exploring the imprint of religion on how the Indian people are identified, all previous chapters have attempted to make salient the challenges posed to the Indian Constitution's bid to demarcate its people as a liberal community of free and equal citizens.

Thus, as the previous chapters have shown, the equal liberty of citizens has not always been the preferred choice to delimit the identity of the Indian people.

Constitutions are statements of ambition. They are the pathways along which a political community envisions its hopes and aspirations. Over time, constitutions are also maps of failure and frustration. This book identifies one such constitutional failure, which it terms India's Communal Constitution. The Communal Constitution picks out a tendency in the Constitution to cast the identity of the Indian people along religious lines. Needless to say, this tendency gnaws at the heart of Indian constitutionalism, the liberal promise of equal liberties. Therefore, describing the grasp of the Communal Constitution, this book examines the manner it might be best understood alongside the Constitution's aspiration to forge a liberal and secular polity.

Outline of the Problem

To elaborate the communal orientation of the Indian Constitution and the drag it exerts on its liberal goals, a few distinctions and clarifications are useful to kick-start the discussion. In studies on communal tendencies in Indian constitutional politics, a standard point of departure has been the rise of Hindu nationalism over the last century, and especially in the period after the rise of the Ram Janmabhoomi–Babri Masjid dispute. These studies examine the phenomenon of Hindu nationalism in Indian public life and the extent to which it has undermined constitutional commitment to secular ideals. By extension, these studies are a comment on the inability of the broadly liberal and secular consensus embodied in the Constitution to hold its own against its adversaries.

In relation to the rise of religious nationalism, some scholars have suggested that the religious and group-oriented character of Indian society has not been well disposed to liberal secular norms. In turn, it could be argued that these dimensions of Indian society have not facilitated a robust defence of its liberal constitutional state. Whatever stance one takes in relation to these arguments, it is important to note that they seek to explain socio-cultural forces that exert an external influence on constitutional institutions and values. In other words, these arguments on the working of constitutional institutions foreground forces like Hindu nationalist mobilisation as influences that are analytically distinct and largely external to the liberal secular organisation of the Indian Constitution.

The sway of Hindu nationalist mobilisation has never been more pressing on India's liberal constitutional state as parties vowing allegiance to it hold the levers of state power in many parts of contemporary India.

As observed in the previous chapter, the reorganisation of minority rights in independent India was the result of a new constitutional imagination justified as the transformation of Indian society. Reorganising the colonial government of ‘minorities’, the project of social transformation unfolded a forked path to recognise and incorporate minorities and Scheduled Castes into the Constitution of independent India. Both these newly recognised constitutional groups were envisaged as axes of identity facilitating a project for the social transformation of the Indian people understood as a liberal and secular community of free and equal citizens. However, as argued in the last chapter, despite the best laid intentions of the Constitution-makers, constitutional design and practice operated to reinforce and entrench communally ordered religious identities that demarcated the Indian people into majorities and minorities.

This chapter will show that the design and defence of the rights of the Scheduled Castes also suffer a similar problem. That is, caste injustice is constitutionally framed and resolved as a Hindu problem. Besides flying in the face of the fact that caste injustice in India is not restricted to any one communal group, the ‘Hindu’ resolution of caste also nationalises and entrenches caste in explicitly communal terms. This communal resolution of the problem of the Scheduled Castes has had ripple effects on related constitutional debates as well, especially on the rights of social groups the Constitution terms the ‘Backward Classes’. Accordingly, elaborating the constitutional scheme pertaining to Scheduled Castes and the Backward Classes, this chapter spotlights the manner in which their rights are secured against the background of a communal and Hindu representation of the Indian people.

The Background

The Scheduled Castes, or the Depressed Classes as they were known in the colonial state, were drawn into Indian constitutional imagination as minorities. Their inclusion in colonial legislatures as minorities was intended to represent the voice of social groups suffering from systemic forms of discrimination on account of caste society, most notably through the practice of untouchability. These social groups first found representation in colonial legislatures following the Government of India Act of 1919. However, unlike other important minorities such as the Muslims and the Sikhs, Depressed Class representatives were not drawn into colonial legislatures through separate or reserved electorates but by way of state nomination.

This chapter extends the axiomatically and scripturally organised depiction of the Indian people developed in earlier chapters to the problem of representation and self-government. Doing so, the emphasis of enquiry shifts from religion and religious identity as objects of government to religious identity as it has organised and structured the contours of the Indian state. This shift in emphasis is framed by the third of the three constituent axes that structure this book – namely forms of political representation that originated in colonial India that continue to inflect contemporary constitutional government. Accordingly, this chapter on minority rights and the following chapter on caste identity detail the communal representation of the Indian people across colonial and contemporary constitutional practice.

To ascertain the continuing imprint of a communally imagined people on the organisation of minority rights, this chapter is divided into three sections. First, an outline of minority rights in the colonial state. Second, an examination of the recessed communal form through which minority rights were reworked and inserted into the Constitution of independent India. Third, the continuing imprint of this communal conceptualisation of the Indian people in contemporary constitutional practice.

The Pedagogical Foundations of Indian Constitutionalism

Minority rights were the very ground on which the British colonial state shaped representative politics for India in the late nineteenth and early twentieth centuries. The constitutional contours of minority rights unfolded over this period through a series of constitutional statutes, most notably the Indian Councils Act ,1909, the Government of India Act, 1919, and the Government of India Act, 1935. Each of these statutes drew large numbers of Indians into the British government and also set the path for the subsequent organisation of the Indian government. Further, when the Constitution of independent India was adopted, a significant part of the new institutional arrangement drew on the earlier Government of India Act of 1935. However, continuities in constituent imagination do not just narrate the endurance of institutional frames and practices, but the survival of forms through which a polity carves out and makes salient its people. It is this dimension of minority rights that must now be outlined.

To cut through much historical detail, the colonial template framing a constituent horizon for modern India was first organised as a project of ‘trust’ whose goal was the transfer of power to the Indian people.

This chapter begins the task of charting the communal identification of the Indian people in the constitutional practice of religious freedom. It does so by drawing on a genealogical account of toleration and the movement to reform religious practices in colonial India as they have determined the contours of religious freedom in the Indian Constitution. Doing so, this chapter also sets out the methodological approach through which this book makes salient the forms in which colonial state practice communally inflects contemporary constitutional design and practice.

Outlines of the Constitutional Scheme Regulating Religion

To make apparent the form in which the government of religion by the Indian Constitution communally inflects the identity of the Indian people, it is important to begin by outlining the contours along which the Constitution seeks to regulate religion and religious freedom in particular. The obvious place to begin this task would be the provisions on religious freedom which are laid out in a set of four constitutional provisions in the chapter on fundamental rights (Articles 25–28). Between them, these provisions protect the right to religious freedom for individuals and groups, provide for state action against religion in the public interest, and specifically mention instances where the state and religious power ought not to impose themselves on an unwilling public. These provisions would seem like those of any liberal constitution. Therefore, uncovering a communal dimension from these broadly liberally inclined provisions requires deeper scrutiny of their structure and practice.

Of the provisions spanning Articles 25–28, Articles 27 and 28 deal with very particular concerns bearing on the power of the state to impose religious taxes (Article 27) and the bar on religious instruction in educational institutions run on state funds (Article 28). Important as these constitutional guarantees might be, they have not determined the course of religious freedom in the Indian Constitution. On the other hand, Articles 25 and 26 have been key provisions that have determined the template that has come to organise state power as it has been exercised over religion.

Examining these provisions in greater detail, Article 25(1) is structured like a standard liberal freedom where the right to practise, profess and propagate religion is granted to all individuals.

This chapter pulls together an account of personal laws across colonial and contemporary India to illustrate the manner in which the identity of the Indian people is constitutionally cast in communal terms. Personal laws, as they developed in colonial India, have clearly been carried over into the legal scheme of contemporary India. However, personal laws were designed to be a receding part of the Constitution of independent India. Article 44 is a directive principle that obliged the Indian state to work towards a uniform civil code, presumably by doing away with personal laws. Even so, decades after the adoption of the Constitution, the inability to secure a uniform civil code has produced much discussion, either pronouncing failure of this normative objective1 or justifying the continuation of personal laws as consistent with the Indian constitutional order. Bracketing a full-blooded consideration of these normative points of view, this chapter draws on these alternative positions to disclose and make apparent contrasting forms of identifying the Indian people.

Of the various ways in which the Indian people are identified in discussions on personal law, this chapter demonstrates the overlapping salience of a communally inflected conception of the Indian people as foregrounded in Chapter 1. That is, extending the discussion on colonial toleration, this chapter demonstrates constitutional organisation and practice of personal law that actively draws on and entrenches the very same religiously organised and communal vision of the Indian people.

The Background: Peoples and Their Laws

The historical roots that bind personal laws to contemporary Indian law have been previously traced to colonial toleration. The commitment to tolerate constituted personal laws as objects of forbearance but through a peculiar legal reconstruction and reduction of local religious and cultural practices. This reduction of religious traditions to axiomatically applicable propositions identified as essential doctrines was outlined in Chapter 1. Additionally, a complement to this form of toleration was the manner in which personal laws were crafted as a self-conscious act of legal recovery that must now be briefly recounted.

Thus, drawing on the expertise of antiquarians, linguists, historians and Indologists, the toleration of personal laws was tied to its recovery and re-constitution by the East Indian Company after it took over the administration of Bengal following the Battle of Plassey in 1757.

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