Rohit De, The Indian Constitution: Moments, epics and everyday lives, International Journal of Constitutional Law, Volume 18, Issue 3, October 2020, Pages 1022–1030, https://doi.org/10.1093/icon/moaa077
Navbar Search Filter Mobile Enter search term Search Navbar Search Filter Enter search term SearchI submit that a Constituent Assembly not only frames a constitution, but also gives people a new framework of life.
Dakshayani Velayudhan, Dec. 9, 1946, in 1 Constituent Assembly of India Debates
January 26, 2020 marked the seventieth anniversary of the Indian Constitution. Official celebrations focused on memorializing the “fundamental duties” of the citizen in the constitution that range from “respecting public property and adjuring violence” to “respecting the national flag and national anthem.” In striking contrast, hundreds of thousands of Indian citizens gathered in the streets protesting the changes to the citizenship law by affirming constitutional values of equality, liberty, fraternity, and justice through public recitations of the preamble. 1 The current government-led crisis of the Indian constitutional system has been described as “death of the constitution by a thousand cuts” 2 and is being met with an exceptional resilience of constitutional patriotism from ordinary citizens. Perhaps for the first time since its promulgation, the Constitution is being reflected in popular culture and celebrated in film, song, and poetry. 3
Taking stock on the sixtieth anniversary of the Indian Constitution, political scientist Pratap Bhanu Mehta noted that constitutions, “not only allocate authority, define the limits of power or enunciate values, they also constitute our sense of history and shape a sense of self,” but despite the centrality of the Constitution to Indian social and political life, it remained “ill served by our historical imagination.” 4 In contrast, the last decade has witnessed an efflorescence of historically inflected writing, both scholarly and popular, on the Indian constitution. 5 Madhav Khosla, Ornit Shani, and myself recognize, in our respective work, that the promulgation of the Indian Constitution was a transformative moment for democracy in India, and is a resource for theorizing democracy more generally. As all three authors emphasize, this shared assumption marks a break from Indian scholarship, which saw the Constitution as a “superstructure” or as incidental to Indian politics; it is also a break from Western political theory which viewed the constitution as derivative and the Indian democratic experience at best as an anomaly. For Khosla, the Indian constitution is the “paradigmatic democratic experience in the 20th century, in much the same way in which Tocqueville’s America was for the 19th century.” 6 Ornit Shani notes that the Indian experience of universal adult franchise, irrespective of qualifications, predated not just the postcolonial world, but also the United States and France. I point out that the imbrication of constitution into daily life and the judicialization of politics have a considerably longer history in India than in most of the world. 7 Liberalism, democracy, industrialization, and social equality might have emerged sequentially in the west, but the Indian republic sought to achieve all goals simultaneously.
While differing in their emphasis on the process of change, the three books complement each other. Khosla excavates a shared constitutional vision at the moment of founding that makes visible the political apparatus of democratization, i.e. the codification and explication of rules as a pedagogical project, the emergence of a centralized overarching state, and focusing on the individual as the unit of representation. Shani argues that it was “practical rather than ideological steps,” through the bureaucratic task of implementing universal franchise, that “transformed the meaning of social existence in India” and laid the groundwork of electoral politics. 8 My work documents the use of constitutional remedies in courts and the emergence of constitutional rhetoric on the streets by ordinary people, arguing that the constitutional order was not a gift by enlightened politicians or benevolent judges but was produced and reproduced in everyday encounters by ordinary citizens. 9 Despite the text of the Indian Constitution reproducing several features of colonial legislation, and the institutions of the police, army, bureaucracy, and judiciary continuing with the same personnel and practices, all three authors rebut the idea that the Indian Constitution is an inevitable outgrowth of the colonial legal and bureaucratic frameworks. 10 Khosla distinguishes constitutional codification from colonial projects of codification, arguing that rights were marginal to the nationalist movement and colonial debates over representation were focused on group/communal identities. 11 Shani demonstrates how colonial bureaucrats, when tasked with expanding franchise even minimally, showed reluctance to enfranchise voters, shunned publicity, and found a range of administrative objections to expanding the voter’s list. In contrast, from 1948 onwards, in anticipation of changing legal authorities, the bureaucrats devised new precedents, overcame procedural hurdles, and actively publicized the process of turning citizens into voters. 12 I show how the judicial constitutional remedies in the new constitution gave Indian courts wide powers of judicial review and empowered citizens with the tactics and language to challenge a previously unimaginable range of governmental action both in the courts and on the streets. All three authors forcefully rebut the challenge to demographic non-representativeness (the unelected and largely upper caste Assembly members, the colonial bureaucracy, civil society groups, and litigants) by showing how the processes of constitution writing, electoral registration, and constitutional litigation opened up fields of action for the larger population by rewiring vocabularies, political imaginations, and expectations.
Along with these shared and complementary visions, these three books represent a heterogeneity of methods, archives and causality and offer different (and occasionally contradictory) answers to the nature of India’s constitutional experiment.
Between December 1946 and November 1949, over 300 members of the Indian Constituent Assembly met and deliberated over a constitutional draft in Delhi. For Khosla, this is a distinct moment of founding when “India’s political elite converged on a set of liberal constitutional values without the inheritance of any major liberal traditions.” 13 Khosla rejects not only arguments of colonial continuity, but also claims that these were products of a self-interested compromise over a transfer of power or that they were rooted in a long history of Indian liberal (and radical) thought. 14 While these claims can be contested, Khosla’s maneuver separates a future-oriented “constitutional moment” from everyday politics, allowing for a focus on the ideas themselves without reducing it to contingent maneuvering of interest groups. For instance, he shows how Nehru and Ambedkar, despite differing on their understanding of social and economic needs, came together in adopting a centralized state as the instrument of power for social and economic transformation and freedom, despite two decades of debates over provincial autonomy and village government. 15 One of the strengths of Khosla’s work is his deftness in placing the Indian debates on franchise, representation, and citizenship within the canon of political theory. Khosla’s narrative stops with the promulgation of the constitutional text by the Constituent Assembly, but he notes that the framework did not “exhaust its democratic character and carry the full weight of legitimation.” 16 The provision of universal adult suffrage and ease of constitutional amendment through constitutionally prescribed forms allowed for a democratic sovereignty in the future. Khosla suggests that the ease of amending the Indian Constitution through future parliaments was in recognition of the unelected nature of the Assembly and the absence of a process of ratification. 17 However, the first amendments to the Indian Constitution, circumscribing the rights to free speech and property and nullifying judicial verdicts, were made by the unelected Constituent Assembly in 1951. 18 According to Khosla, at the birth of the Indian republic, people were yet to transition from subjecthood to citizenship, but would do so through a democratic constitution. 19
In contrast, Ornit Shani argues that Indians became voters, and democratic subjects, before they became citizens. Shani focuses on the making of the Indian electorate through the preparation of the first draft electoral roll in anticipation of the Indian constitution. Moving away from the “ivory tower” of the Constituent Assembly, Shani shows how the “institution of electoral democracy,” which preceded the constitutional deliberations by politicians, was the product of a dialog between professional bureaucrats and ordinary people. She argues that it was the institutionalization of procedural equality in a deeply hierarchical society ahead of the constitution that made India’s democracy legible and legitimate to its people. 20 Shani’s archive is the little studied Secretariat of the Constituent Assembly, which was tasked with preparing an electoral roll for the new republic and bureaucratized the idea of equality for the purpose of voting.
As the deliberations began in the Constituent Assembly in 1946, both the territory of the future republic and the people who would constitute it remained undefined. The decision to partition British India into two states led to the greatest human displacement in history, resulting in the migration of 15 million people and millions of deaths. A patchwork of semi-autonomous princely states made up a third of the territory in South Asia, and their sovereigns continued to negotiate the status of their territories and subjects within the Indian union even after the promulgation of the Constitution. 21 The shifting populations and boundaries complicated the process of creating a list of voters and generated struggles for citizenship that were informed by the constitution being drafted and led to changes in the draft provisions. Shani reads the press notes issued by the Secretariat, the ensuing discussions in press, and the letters from the public as a “serialized epic of democracy” which allowed ordinary people to insert themselves as protagonists and “contribut[e] to the democratization of feelings and imagination.” 22 Similarly, administrative debates about funding and preparing a national electoral roll welded together 600 jurisdictions into a democratic federal structure and forged a common idea of Indianness. Most strikingly, Shani charts the transformation of a colonial bureaucratic imagination into one with an unprecedented “measure and tenacity of inclusion,” with state officials registering refugees in camps, homeless people, women in seclusion, and people living in remote areas. Through this new inclusive process they transform and democratize forms and procedures of democratic participation. The production of an electoral roll of 170 million people supported the notion that sovereignty resided in people with actual names and addresses (even though it might record that so-and-so slept under a tree), rather than being a faceless entity. Shani’s key intervention is to show that ordinary people did not react to the constitution-making process, but that constitution-making and everyday struggles were co-constitutive processes. For instance, she shows how the provisions on a centralized electoral commission and the principle of non-discrimination over place of birth emerged through struggles of internal migrants trying to get themselves into the electoral roll before the constitution was completed.
While Khosla’s narrative ends with the promulgation of the Constitution, and Shani’s runs parallel to the process of constitutional drafting, mine seeks to show how the Constitution after its promulgation “came so alive in popular imagination that ordinary people attributed meaning to its existence, took recourse through it and argued with it.” 23 What happens after the overarching centralized state with ambitions to restructure society and economy through codified rules, as Khosla describes, begins to intervene in everyday life? How do people who are not included in the electoral rolls or, more commonly, unable to protect their interests electorally, protect themselves? I argue that, almost as soon as it is promulgated, the Indian Constitution begins to operate as an organizational assumption for citizens and a background threat to the state through processes driven by some of its most marginal citizens. 24 I show this by looking at the use of the new constitutional remedies against attempts to transform the daily life of citizens, be it food practices, drinking habits, shopping, or sexual behavior. 25 While the book draws on judicial records, the central figure is not the judge but the litigant, who was able to insert themselves into an elite conversation and compel the state to respond. In contrast to the “serialized press notes” discussed by Shani, the site of encounter was not chosen by the state, and bureaucrats and politicians (including the constitution founders) are surprised and exasperated when being asked to abide by constitutional procedure. This point was acutely made when Durgabai Deshmukh, a liberal lawyer and constitutional drafter, faced with sex workers asserting their right to practice their profession, demanded that the constitution be amended to exclude them and that “notions of freedom undergo a change.” 26 It is clear that neither judges nor politicians exercise a monopoly on constitutional meaning, as ordinary Indians persist in their claims even after a judicial negation, or in anticipation of constitutional change. Like Shani, I draw inspiration from Robert Cover in recognizing that constitutions exist in a normative universe constructed by the “force of interpretive commitments, some small and private, others immense and public” and seek to bring the smaller actors to light. 27 Despite the centrality of the judicial archive, it was clear that judges did not control the final meaning of the constitution, as groups held onto constitutional interpretations and advanced claims counter to judicial visions.
In one of his final speeches to the Constituent Assembly, Dr Ambedkar worried that “democracy in India was only top dressing on a deeply undemocratic society.” 28 Not only was Ambedkar intimately familiar with the exclusions and violence of a caste society, he had also led two decades of negotiations with both the British and the Congress Party to create a more inclusive playing field but to little avail. How did the constitutional order provide a way for a more democratic society? Khosla gives the clearest answer to this question by suggesting the constitution centered on the individual in exclusion of other identities as the unit of representation, as demonstrated by dropping communal electorates based on religion. He suggests that even the constitutionally mandated special provisions made available to Dalit and tribal communities are framed on the “social and educational backwardness of a group,” which might have applied to certain castes at the time of independence, but were not innate to the group’s conditions. 29 His approach highlights the limitations of reading the Constitution as a document of shared consensus. The Constitution drafters, particularly women and Dalit members, were acutely aware of deep-seated inequalities in society and sought to harness state instruments to transform it. Central to this was an awareness that formal equality was not only insufficient but also dangerous, in that it could be used to hamper the state’s efforts to ameliorate social conditions. 30
The withdrawal of demands for communal representation and the disaggregation of caste and religious minorities are more a product of political machinations in the assembly than a commitment to liberalism. 31 There were only two Muslim members in the Assembly until June of 1947, when the Muslim League members took their seats. As several scholars have shown, the members of the League were outnumbered, had their loyalties and credibility attacked, and were outmaneuvered in committee meetings. 32 Aditya Nigam suggests that reading the constituent assembly debates as an event rather than a text makes visible how within the assembly the “liberal abstract notion of unmarked citizenship” was deployed in a desire for homogeneity rather than democracy and often silenced the articulation of a community-based grievance. 33
Shani’s work also focuses on the production of an unmarked procedurally equal citizenship, but her archive foregrounds the close relationship between community identity and the paradigmatic form of individual representation. The process of bureaucratic enumeration comes dazzlingly alive through the letters and public engagement that the constituent assembly are flooded with. While some are from individuals, a majority seem to come from a range of identity-based associations (a hybrid between traditional caste organizations and modern civil society groups) and, in expanding their liberal unmarked right to franchise, they make claims that are based on group identities. Take, for instance, the Assam Citizen’s Association Dhubri, which attempted to secure the voting rights of refugees, but lobbied to remove the constitutional restrictions preventing them from buying tribal land and pushed for state aid to support minority-run educational institutions. 34 The mobilization for individual representation was facilitated by community organizations. As Shani points out, some communities were unable to represent themselves, and tribal areas in Northeast and Central India, the Andamans, and the state of Jammu and Kashmir were not given the direct franchise. 35
Group identities entered my book in unexpected ways. As I tabulated challenges to particular laws, I noticed a clustering of petitions by individuals belonging to the same community, even in cases that were seemingly unconnected to ascriptive identities, such as commodity controls. It soon became apparent that in caste society, ascriptive identities and economic structures were closely linked, and the ability to litigate was greatest for those with access to informational networks or resources through community organizations. In many instances, what appeared to be claims for individual rights such as the right to drink, on closer examination seemed to be have been funded or organized by a community whose economic interests had been affected. As the archive made clear, not all communities in the 1950s had equal access to litigation, with landless laborers and Dalits, who made up a substantial portion of the population, being underrepresented. However, the acts of litigious citizens opened up pathways of rights for others less able to litigate and caused state officials to anticipate challenges and take constitutional norms as “organizational assumptions” to be followed or evaded. 36 Liberal theory treats liberty, property, and community as separate concepts, but in the Indian case they seem to be inextricably linked to constitutional design.
Despite these limitations and differences, all three authors agree that the Indian constitutional experiment was unprecedented for the time and in terms of its success. The two contemporaneous constituent assemblies in Pakistan and Israel were unable to agree upon a constitutional document, and neither has had the same degree of longevity or popular support. The longevity of the Indian Constituent Assembly is tied both to promise of the constitution and its framework of disciplining politics. For instance, attempts to challenge either the codification of rules or the overarching centralizing state were defended with a range of instruments within the constitution, from the provision of emergency to preventive detention laws. 37 While elections and electoral participation were celebrated, state elites were invested in using elections to discipline politics, curbing other forms of civic protest, and to thwart political engagement that had developed during the national movement. 38 Judicial victories were rare, narrow, and often reversed; moreover, the litigator was frequently castigated as a representative of a “private interest” against “national interest,” and the most effective strategies were where the litigant could, to paraphrase Hannah Arendt, frame their private interest as a general one. 39 As John Dunne notes, the globalization of representative democracy rooted in a bureaucratic statist structure erases more radical alternatives. 40
Given that the triad of features that our books identify and theorize faces increasing challenges in India, one direction for the emerging scholarship on the Indian Constitution is to explore the paths not taken. Kalyani Ramnath, for instance, suggests that the range of disparate opinions within the Constituent Assembly presents an opportunity to examine the different ways in which the constitutional text and polity could have been structured. 41 Khosla engages at some length with the Gandhian genealogy of thinking state power, but there remain other alternatives, including the federal proposals from the Dravidian parties and the princely states, Ambedkar’s radical economic plans including land nationalization, or the more robust imagination of fundamental rights in the Karachi Charter of 1932. Upendra Baxi describes constitutionalism in a threefold way: (i) as a corpus of texts signaling the original intention to fashion a new political formation that seeks to write society through law; (ii) as a set of ongoing interpretive practices within an authoritative community (be it bureaucrats, lawyers, or judges); and (iii) as a site for articulating insurgent orders of expectations from the state. 42 As we look towards the next decade of scholarship on the Indian Constitution, one hopes to see the recovery of more voices, imaginations, archives, and strategies covering the breadth of Baxi’s definitions of constitutionalism.