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Updated: Nov 23, 2020

This talk was delivered as part of the 5th annual History for Peace conference, The Idea of the Indian Constitution in July 2019.

The idea of the constitution as a ‘founding moment’ has served certain purposes: it helps to foist a formal-juridical frame for the interpretation of the constitutional text without looking at the complex debate that informs the Constituent Assembly Debates (CAD) and precedes it. It also tends to sustain expressions such as post-nationalism and post-colonialism as denoting epochal moments of rupture from the past, with an additional caveat that post-colonial constitutionalism could not be a mimetic reproduction of transatlantic constitutionalism. Nationalism as a break from the past has also helped people to argue that the point of departure of India as a nation was also a Hobbesian moment of envisaging the state. This presentation subjects these positions to a critique by distinguishing between constitutionalism and nationalism on one hand, and mainstream/liberal constitutionalism and ‘subaltern’/democratic constitutionalism on the other. Its focus, however, remains on the latter, i.e. ‘subaltern’/democratic constitutionalism. Even within this focus, we will mainly consider those stances that represent concerns of Dalits and Adivasis. This interrogation is pursued by taking recourse to certain key representations and reports, that form the pre-texts of constitutional reasoning in India. It is important to mention that these representations and reports are interlocutory in nature and actively engage with competing stances on the issues in question. Ambedkar’s interventions at the Round Table Conferences (1930–32) and the Gopinath Bordoloi Committee report (1948) are my primary sources for this investigation.

Constitutionalism and nationalism are deeply contested terms: I use the term constitutionalism to denote a mode of organizing and directing public power, resting on norms and rules that enjoy broad popular consent.  These norms and rules govern the relation between public power and those who are subject to it, as well as among the subjects themselves. These norms and rules may lend themselves to crafting characteristic institutions and processes to subserve their purpose. By nationalism, I mean a bond of togetherness that imbues a people who seek their independent political existence, marking them off from others of the kind. How such a bond is forged is not a matter of our concern here.

For a number of reasons, India’s nationalist and democratic imagination assumed a pronounced constitutional mode. It is important to recall that this was not the case in many societies that set up their independent political regimes based on the claim of being separate nationalities. It was not bequeathed to India by the colonial regime, as sometimes argued,[i] but made its way through active opposition and contestation with the way colonial power sought to elicit popular consent. The open-ended nature of India’s national movement and its primarily non-violent character offered an opportunity for advancing contending and competing conceptions of public life. It also enabled significant mass participation in the movement. Such a setting became the enabling ground for shaping a constitutional way in India. In the process, India’s struggle against colonialism not merely sought national independence, but churning an inner life of its own, also resulted in incubating constitutional democracy. It was a distinctive mode of constitutional democracy which was irreducible to its counterparts elsewhere, although there have always been agonizing moments at the critical points recrafting its core elements.

While constitutionalism and nationalism are often enmeshed, in texts and pursuits, they have been competing and often conflicting persuasions. This was particularly the case in India: while distinct social groups were making a claim on public power and arguing that the legitimacy of public power in their eyes was dependent on responses to such a claim, nationalism highlighted the shared bonds and downplayed differences. Constitutionalism was concerned with rights and obligations of members of a political community, while nationalism laid stress on their unity. While nationalism saw constitutionalism as a break in its pursuit, the latter saw the former as riding roughshod on legitimate and differential claims on power. The constitutional moment expressed itself not in a contrarian way as nationalism did, but in an interlocutory way.

The genealogy of constitutionalism can be traced to the turn of the Indian nationalist imagination against the colonial ways of legitimizing itself. A critical phase of constitutionalism in India was set in motion when a group of Muslim leaders began to make the demand for separate representation while acknowledging the ground they shared in common with the rest of India.[ii] It was grappling to find its mass-foothold from the eve of the Montague-Chelmsford Reforms and its precedent developments such as the Lucknow Pact (1916). We find its decisive stamp in the India Act, 1935.

The Round Table Conferences, Ambedkar and Democratic Constitutionalism

The Round Table Conferences (RTC) (1930-32), with the intervening committee reports[iii], Awards[iv] and agreements[v] were a momentous prelude not merely to the India Act, 1935, but to the formation of a distinct constitutional discourse as far as India was concerned. The Nehru Report (1928), Muhammad Ali Jinnah’s ‘Fourteen Points’[vi], and the various demands that the different party forums including the Indian National Congress raised, were integral to this discourse. In comparison, an earlier attempt in this direction that led to the Montague-Chelmsford reforms of 1919 fades into insignificance. The constitutional discourse that led up to the 1935 Act embodied competing stances on the future of constitutionalism in India.[vii]  Debates at the RTC, which were neither wholly reflected in the India Act, 1935 nor seriously followed on till India stepped into the constitution-making process in late 1946, provide a backdrop to understand how it anticipated some of the most important insights of the future Indian constitution. It is important to point out that several delegates at the RTC, from Madan Mohan Malviya to Ambedkar, considered their inputs as marking the roadmap for a constitutional India. This discursive setting provided an extended platform to Ambedkar, to defend his vision of constitutionalism as the representative of the Untouchables, before other competing viewpoints. Many of the substantive positions on constitutionalism that Ambedkar defended later were either foisted on this platform or were elaborations of the same.[viii]

i) Swaraj as the Foundation of Constitutionalism

While the term ‘swaraj’ had acquired multiple connotations and was the battle-cry in Gandhi’s usage to rally India against colonial rule, Ambedkar employed it as a template both to critique colonial and mainstream constitutional designs on one hand, and to denote the nature of the public power that India as a whole, including the Untouchables sought. At the first RTC he argued, ‘It is only in a swaraj constitution that we stand any chance of getting the political power into our hands, without which we cannot bring salvation to our people’ (BAWS, Vol. 2, p. 505). In his view, the tinkering in the outlay of the colonial regime that the British wanted to effect could not serve the purpose. There were two reasons that acted as the roadblocks for even the most advanced colonial thinking in this direction: first, ‘the character, motives and interests’ of the regime and secondly, ‘the mortal fear of resistance’ that they would suspect from the dominant sections of their colonial subjects. The British invoked the virtue of ‘prudence’ as an alibi in justification of their interests and fear of social resistance.  This blighted rationale had also made the British quite oblivious of the responsibility of changing the conditions in which the untouchables lived. Under the colonial rule, he argued, the lot of the untouchables had worsened. The virtue of prudence truly called for something else in India—a government ‘in which men in power, knowing where obedience will end and resistance will begin, will not be afraid to amend the social and economic code of life which the dictates of justice and expediency so urgently call for’ (BAWS, Vol. 2, p. 505). The British had failed to buckle up such a disposition. The only way challenges of this kind could be met is by replacing the bureaucratic form of government in India, the colonial government, ‘by a government which will be a government of the people, by the people and for the people’. (BAWS, Vol. 2, p. 504). It cannot be merely ‘a change of masters’.  He felt that the time to weave a clever web of sophistry around ‘premises’ already chosen was over. The proposed constitution must be acceptable to the ‘majority of the people’, and ‘the consent of the people and not the accident of logic’ should be its touchstone(BAWS, Vol. 2, 509).Arguing for constitutional democracy for India, Ambedkar reiterated the case made before the Simon Commission two years earlier, for a government wholly resting on the will of the people elicited through periodic universal adult franchise (BAWS, Vol. 2, p. 338).

He also argued that the Indian National Congress too cannot be the vehicle to bring about this transformation: it was primarily a captive in the hands of caste Hindus. Caste Hindus had shown little inclination in transforming their social institutions and extending equal considerations to others qua human. The indigenous capital too had rallied behind it in support. With ‘transition of power’ the hands of those who wielded ‘tremendous economic, social and religious sway’ over the lives of the ‘Depressed Classes’ will be enormously reinforced. In his estimate, the fear of recrudescing of old dominance through new resources was widespread throughout India. Further, the Congress had solely focused on whether India was going to be part of the British empire or not, and had not seriously reflected on the institutional frame for India (BAWS, Vol. 2, p. 612). While the appeal of nationalism might be irresistible, it was important for everyone to know the terms of the associated life they wished to belong to. Swaraj for everyone should be the foundation for the same.[ix]

ii) The Untouchables as a Minority[x]

Earlier in his submission before the Southborough Committee, Ambedkar had argued that the notion of a political minority within the ambit of liberal thought is inappropriate in the context of India. There were different kinds of minorities. In his book, Pakistan or Partition of India, he would later spell out their taxonomy in greater detail: while there are minorities which are communities that seek autonomy to pursue a way of life they cherish without necessarily entertaining a distinct conception of ultimate good, there are others who are committed to an ultimate good, as he thought Muslims in India were (BAWS 8: 325-328). In his submission before the Southborough Committee he had also argued that a minority has to be seen in relation to the extent to which it is able to regulate ‘the terms of associated life’ (BAWS, 1, p.265)[xi] and mere numbers would not be the test to demarcate it. But at the RTC his focus remained on minorities who were socially and economically marginal, such as the Untouchables, who needed special considerations, without which they would not be able to pursue their aims in life. He felt that while ‘all minorities are in the same boat, they are not at all in the same class in the same boat; some are travelling in “A” class, some in “B” class and some in “C” and so on’ (BAWS, Vol. 2, p. 529).

What is it that distinguishes depressed classes as a minority from other minorities? Depressed classes are not entitled to ‘civil rights’ (BAWS, Vol. 2, p. 530), a deprivation that Ambedkar regarded ‘as effective as a law’.  They are barred from ‘any physical contact’ with the rest, a condition worse than that of the slaves. They are ‘subject to social persecution’ (BAWS, Vol. 2, p. 531) and constantly face fear of multiple forms of violence. Their very humanity is denied to them. The list is long, and Ambedkar returns to the theme enumerating layers and layers of modes of oppression that the Untouchables are subject to.[xii] Being a small minority, whatever representation they might secure may not be effective due to the ‘apathetic attitude of the orthodox classes’.

But there are also concerns common across minorities: in India, the Untouchables along with other minorities feared that the majority rule would be by orthodox Hindus, with ‘beliefs and prejudices contravening the dictates of justice, equality and good conscience’ and were likely to be discriminated against.  All minorities were susceptible to such discrimination.

At the RTC Ambedkar advanced a few suggestions to ensure a level-playing field for minorities, although their import might vary from minority to minority. There should be ‘representation in the legislature and executive as well as in public services for the minorities, both at the central and provincial levels’. Representation should be based on election rather than nomination. At the same time, there should be ‘certain limitation on the legislative power that will prevent majorities from abusing their legislative power[. . .]which would create discrimination between one citizen and another’. As far as the Untouchables were concerned, ‘untouchability’ should be declared as illegal for all public purposes and its practice in all forms should be forbidden. Given the unequal condition of minorities, the principle of weightage (should) be considered on grounds of weakness of numbers, low social standing, backward educational standing or weak economic strength. Further, while constitution might confer rights, they would be mere ‘paper rights’, ‘unless the constitution provides that that if anyone infringes my rights he is liable to certain penalties’ (BAWS, Vol. 2, p. 538).

At the RTC, Ambedkar’s principal focus was to ensure that the Untouchables were recognized as a distinctive element of India’s body-politic that called for constitutional guarantees. Later he argued that one of the central principles that Indian constitutionalism had avowed over the years, was that when a social element had been recognized as an autonomous entity publicly, it was granted a constitutional status. He used this argument in defence of Schedule V and Schedule VI of the Indian constitution.

(iii) Active Citizenship

It is important to point out that Ambedkar sought a common citizenship for the whole of India at the RTC, and argued that ‘there can be no real federation unless there is common citizenship’ (BAWS, Vol. 2, p. 611). But apart from arguing for a common citizenship, the idea of ‘energetic action’, and citizen agency imbued with this spirit, is quite central to Ambedkar’s thinking and he invoked it throughout his writings. It is the social structures in India and colonial regime that act as a damp squib in nurturing such agency. At the RTC he argued that the depressed classes have no friend, and have to fall back upon themselves. Nevertheless, they were prepared to confront their despicable situation if they were ‘installed, in adequate proportion, as the political sovereign of the country’ (BAWS Vol. 2, p. 506). Self-help was the best means to re