The Constituent Assembly might have owed its legal existence to the colonial regime, but one of its first acts was to declare itself sovereign, and frame the Constitution on its own terms. In defending himself against the charge that he had simply copied the 1935 Act into the Constitution, Babasaheb Ambedkar, the principal draftsman of the Indian Constitution, insisted that it was only the “details of administration” that had been borrowed.
This was not an unfair argument. And while some measure of “responsible government” existed in British India, it was scarcely comparable with the full-blooded parliamentary democracy, founded on universal adult franchise and equality of citizenship, which the Constitution brought into existence. As Uday Mehta points out, for all the surface similarities with the colonial past, there was much in the Constitution that was a radical departure:
Here was a document which granted universal adult franchise in a country that was overwhelmingly illiterate; where, moreover, the conditionality of acquiring citizenship made no reference to race, caste, religion, or creed...which committed the state to being secular in a land that was by any reckoning deeply religious; which evacuated as a matter of law every form of prescribed social hierarchy under extant conditions marked by a dense plethora of entrenched hierarchies; that granted a raft of fundamental individual rights in the face of a virtually total absence of such rights... [and] most importantly, the Constitution created a federal democracy with all the juridical and political instruments of individual, federal, local, and provisional self-governance, where the nearest experience had been of imperial and princely authority.
These words lay the foundations for the argument of this book: that the Indian Constitution was a transformative constitution. But what did it seek to transform? To answer this question, I begin with Ruti Teitel’s important insight: “As a state undergoes political change, legacies of injustice have a bearing on what is deemed transformative.” I shall argue that there were two clear “legacies of injustice” that the Constitution sought to repudiate and transform.
First, the Constitution transformed the legal relationship between the individual and the State. It transformed the subjects of a colonial regime into citizens of a republic.
It replaced the colonial logic of governing and administering a population with the democratic logic of popular sovereignty, public participation, and limited government. Apart from the guarantee of universal adult franchise and the structures of parliamentary democracy, this transformation was expressed through the fundamental rights that embodied citizenship and made democracy possible: the freedom of speech, expression, association, and conscience; the right to life and personal liberty; and the right to equality before law. These fundamental rights, alien to the 1935 Government of India Act, represented “a tectonic shift in constitutional philosophy”.
So far, so familiar. This is the story of constitution-making the world over, most famously told through the American Revolution. Yet, that was not all. The Indian Constitution was transformative in a second sense. It sought a thoroughgoing “reconstruction of State and society itself”. In its horizontal – or comprehensive – transformative avatar, the Constitution recognised that the State had never been the only locus of concentrated power in Indian society. Unlike the modern West, which understood sovereignty in centralised and unitary terms, Indian society had always been characterised by “layered sovereignty”. Hierarchies were established and maintained by “self-regulating communities” taking multifarious forms (primarily, caste), and the State had “rather limited powers to interfere with [a] social segment’s internal organisation”.
Consequently, in India, freedom and equality were suffocated not merely by “a despotic government, but also by embodied traditional authority and...domestic or religious practices”. The freedom struggle that culminated in the framing of the Constitution was at one end a movement for liberation from political servitude, but it was equally “a struggle for self-determination against multi-layered oppressive structures” of the feudal order as well as the structures that constituted colonial domination. This story is reflected in the Constitution’s horizontal rights provisions (i.e., fundamental rights enforceable against groups, communities and private parties), a rarity in constitutions even today, let alone in 1950: Article 15(2), which bans discrimination in access to restaurants and roads, Article 17, which abolishes untouchability, and Article 23, which proscribes forced labour.
To defend this vision of the transformative Constitution, it is imperative to go beyond the sterile and deadlocked academic debates surrounding the bare text of the document, and (some of) the legal instruments that preceded it. The words of the Constitution, I suggest, come alive only in the context of a broader canon.
For example, we cannot understand the constitutional guarantee of equal protection of laws without taking into account the “enormously influential” Samya (Equality) (1879), Bankim Chandra Chattopadhyay’s nineteenth-century political treatise on equality. We cannot understand the Constitution’s repudiation of gender discrimination without listening to the voices of the women who used the language of equal rights to publicly intervene in the nineteenth-century debates surrounding the restitution of conjugal rights, the twentieth-century controversies over the Child Marriage Bill, and the equally public struggle of the suffrage movement. It is only when we read the speeches of Congress presidents Motilal Nehru and CR Das, savaging the colonial regime’s arbitrary executive authority, that the austere right to “life and personal liberty” will begin to speak to us. It is the writings of BR Ambedkar, from his Report to the Southborough Committee to Annihilation of Caste and the story of the Mahad Satyagraha, that will allow us to understand how the Constitution was committed to erasing social and economic hierarchies. And it is Gandhi’s uncompromising approach to civil rights and his defence of all speech – even “revolutionary speech” – that will enable us to understand the transformative potential in the simple words: “all citizens shall have the right to freedom of speech and expression”.
That is just the beginning. For more than a hundred years, in their struggle against alien colonial rule and against indigenous social and economic domination, Indians imagined, conceptualised, and articulated a vocabulary of rights, of equality and freedom, and of dignity, a vocabulary rooted in the lifeworld of India. We do that struggle a disservice if we erase it from our consideration when interpreting the charter of fundamental rights that, finally, constituted an independent India.
Excerpted with permission from The Transformative Constitution: A Radical Biography in Nine Acts, Gautam Bhatia, HarperCollins India.
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