In 1947, Indians won their freedom from two centuries of colonial rule through one of the largest mass movements in history. The effect was felt across the British Empire, which was dependent on the army, labour, and capital that India provided. India’s independence proved to be one of the most significant events in the decades-long dismantling of European empires. Yet hardly anyone belonging to the Indian National Congress, or the scholars and scribes who wrote about the movement, used the word “revolution” to describe what they did or saw. The word that has come to stand in for epochal changes in the life of nations is conspicuous in its absence from the historical consciousness of Indians.
However, the members of the Constituent Assembly did speak of revolutions often. Revolutions are rarely far from anyone’s mind when constitutions are made. The term appeared several times in the deliberations of the Constitutional Convention in Philadelphia, which gave us the US Constitution. But there the reference was – in James Madison’s phrase – to the “late revolution”: an event of the past, that has now been definitively ended by the constitution. In Delhi, they were not talking about what happened in the past. Every time one of the assembly members spoke of revolution(s), the reference was to an uncertain and troubling future. The Indian constitution makers found themselves not at the end but on the “eve of revolutionary changes”.
The anti-colonial mass movement was the result of a contingent and fragile alliance between the urban elites and the largely peasant masses. The contingency was their shared unfreedom under colonial rule. The fragility was the outcome of the fact that the departure of the British would not change the unequal, hierarchical, and exploitative social conditions in which the vast majority of Indians lived. The militant energy of the masses had fuelled the ability of the Congress to credibly challenge the colonial state.
At the same time, popular political expressions were frequently directed against Indian elites who exploited their putative fellow travellers on the nationalist journey. As a result, the anticolonial struggle generated multiple visions of freedom which the Congress could hope to harness, but never fully control. Over the last decade of colonial rule, the Congress began to transform itself from a party of mass mobilisation to a party of government. The corridors of the statehouses, rather than the streets, became the staging ground for the last act of elite anticolonial politics. And from such corridors, the streets appeared treacherous.
The success of the mass mobilisation made a postcolonial government an inevitability, while that same mobilisation generated unease in the minds of the governors in waiting. So, the Congress accepted a transfer of power in an orderly fashion under the immaculate legality of the British parliament, inheriting the formidable apparatus of the colonial state in pristine condition – with its bureaucrats, police, and army. “Through a fortunate or unfortunate chance, it turned out that it was not through a bloody revolution that we have worked out our emancipation,” Congress president Pattabhi Sitaramayya said in the Constituent Assembly. There was no revolution in India. At least not yet. On that “not yet” hinged the entire project of postcolonial constitution-making.
In textbooks of constitutional theory, constitutions bring closure – the peaceful ever after following upheavals. They end revolutions. In India, there was no revolution to end. But there was one to be prevented. From where the constitution makers stood, this future “revolution” had two possible incarnations. It could take the shape of a violent uprising of the disaffected masses, fueled by inequality, exploitation, and unfulfilled aspirations for freedom, causing “insurrections and bloodshed”. Alternatively, it could be a thoroughgoing transformation of the socio-economic conditions, carefully planned and managed. Their challenge was authoring a revolution of the second kind, to avoid a revolution of the first kind authored in the streets.
The moment, Nehru told his colleagues in the Assembly, was “something which is dynamic, moving, changing and revolutionary”. “[I]f law and Parliament do not fit themselves into the changing picture they cannot control the situation completely.” Rather than extra-legal insurrections, revolution had to mean large-scale, yet orderly change: “[a] peaceful transference of society,” in the words of Purnima Banerji. “People seem to think of revolutions as a big war, or a big internal struggle, violent struggle,” Nehru said. “Rather, revolution is something which changes the structure of the society, the lives of the people, the way they live and the way they work. That is what is happening in India.” It had to be a revolution without a revolution. And the constitution had to be its institutional architecture. It had to legalise the revolution.
Purnima Banerji said in the assembly that the objective of the nascent regime was to have “political power in our hands with which we could fashion and remould and change the whole structure of society”. That was the goal. “To apply that test to this Constitution,” she concluded, “I feel that it does provide those minimum necessities with which we can change things.” Instead of formalising the end of a revolution, the Constitution had to facilitate and mediate necessary revolutionary changes in society. The response to this challenge was a reinterpretation of what constitutions can and should do.
In the book, I identify that reconfigured form as “transformational constitutionalism”. Transformational constitutionalism was a constitutional order whose orienting principle was planned social transformation. It sought to facilitate change, not constrain it. A process of change that was deliberate, controlled, and conflict-free. Transformational and yet constitutional. A full account of that undertaking therefore must depart from the idea of a constitution as an established normative template. The word “constitution” is derived from the Latin word constituere – which means to make, to create, collectively. It is a verb, not just a noun. This is the meaning of “constitution” that we need to recover – as a creative project.
BR Ambedkar’s concluding speech has become the most quoted part of the assembly debates. “Political democracy cannot last unless there lies at the base of it social democracy”, he warned. “On the 26th of January 1950, we are going to enter into a life of contradictions. In politics we will have equality and in social and economic life we will have inequality.”
The main argument of my book follows this warning: The Constitution had to orient itself around social transformation. Political equality would be meaningless without social equality. The constitution had to address the social condition not just because it must, but also because it should. As the full text of the speech makes it clear, this was not a “should” uttered with the confidence of a triumphant “father of the constitution”. It was uttered with a sense of foreboding, of doubt.
Ambedkar’s place in Indian politics made that doubt particularly resonant. He was a consistent critic of the Congress and a member of the most oppressed section of Indian society, who found himself in the position of the principal drafter of the constitution. A man without access to either political or social power, he put his faith in the extraordinary opening of the constitution-making moment: a fleeting but decisive moment of liberation from everyday forms of hierarchy, where well-drafted legal clauses could be used as weapons against long-entrenched inequities. In the “essentially undemocratic soil” of India with its vast imbalances of power, the law was the best hope of the revolutionaries. This faith in the project of legalizing the revolution was of the most poignant kind because Ambedkar was the voice of a group that had so little to be hopeful of from the law and so little to lose from a revolution. His was therefore the doubt of someone who sincerely wanted to hold on to both the ends of the legalizing revolution project – the legal and the revolutionary.
His doubt has proven to be mostly correct. 75 years hence, only the former remains. Having long abandoned the project of developmental transformation, we have learnt to see the constitution mostly as a set of legal norms. Lawyers and judges are its custodians, and its discussions are limited to courtrooms. Its biography is written as case laws. While outside the “essential undemocratic soil” of India remained more or less untitled.
In the last few years, we have witnessed the beginning of another kind of constitutional conversation – this one taking place in rallies and parliament, speeches and manifestos. This is constitution understood not as a set of abstract legal norms, but as a document shaped by and speaking to the political realities of the moment. A political rather than legal text. This nascent form of constitutional politics has the potential to revive the lofty promise of a transformational constitutional project. To do that, however, it cannot entirely be a defensive endeavour, understandable as it is in the present context. Just the invocation of the principles of the rule of law will not save us. As Ambedkar understood, for the constitution and democracy to survive, one had to address the deep inequities of the Indian social order. The transformation was not and is not a benevolent wish. It was, and remains, the necessary condition for a thriving constitutional democracy in India.
Excerpted with permission from Legalizing the Revolution: India and the Constitution of the Postcolony, Sandipto Dasgupta, Cambridge University Press.
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