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The Making of the Indian Constitution: A focus on Process and Methods - Arun Thiruvengadam*


Updated: Jan 25, 2022

This talk was delivered as part of The Idea of the Indian Constitution chapter II conference, Pune on 8 February 2020.

Introduction and overview of talk

I want to start by thanking Ms Megha Malhotra, the Seagull Foundation, and all the other organisers for this wonderful event. I was very excited to know about History for Peace and this initiative in particular. I teach constitutional law, but at the University level; I have a lot of respect for those who teach it at the school level. Mr Sathish Jayarajan will be here later today and he has a wonderful paper, particularly for the history teachers in this room, on teaching constitutional law to eleventh and twelfth grade students and his attempt at creating what he calls ‘constitutional sensibility’. It is a short paper available on the History for Peace website–in which he talks about how you can make the Constitution relevant for school students. I found reading that to be very useful because my students are typically University students who would have done some degree of Civics and some basic work on the Constitution. I also teach law students who, as part of their LLB, have to do 3 courses on the Constitution, so the ground is laid out well. So, I very much appreciate the challenge that the teachers at the school level confront in trying to convey even basic information about the Constitution to students. I also see that there are students in the room. I missed Professor Apoorvanand’s talk, but I heard about what he said. Some of us followed his directive and went to Mominpura last night to be part of a gathering to protest the imposition of the Citizenship Amendment Act (CAA). It was very moving and also very appropriate for the moment we are in. I am also going to try and fit my talk into what Anuj Bhuwania spoke about yesterday, in relation to the Fundamental Duties, so that my talk can be a bridge between yesterday’s and today’s events.

The title of my talk today is ‘The Making of the Indian Constitution: Process and Methods.’ In his plenary delivered yesterday, Anuj Bhuwania spoke about the importance of procedure. His talk reinforced the importance of our common theme. In the first part, I’ll say a little more about why we should focus on process today, in the moment we are living in. The second part covers some broad historical facts and context of the Constituent Assembly, including the process they followed and the reasons why they went about things in the way that they did. This will be followed by a survey of some scholarly debates on the process followed in the Constituent Assembly—different scholars have different assessments of whether the procedure followed in the Assembly was a good one, and what were its shortcomings. This is something I focus on in my own research, as a student of constitutional law, and I thought you might benefit from having a sense of some of the broad trends in that field. In the concluding section of this talk, I come back to the question in the introduction: What can we learn for our times and how do we teach this to the current and future generations? Because of all the interest in constitution, what are the resources one might be able to use and how do we go about that?

I: The importance of process in our times

As Anuj mentioned yesterday, anybody who studies constitutional law is quite excited at this time, because talk of the constitution is being engaged in by a whole range of people—people on the streets, students, and by members of the political class which typically happens, but happens in a particular sort of way. I’m situated in a School of Policy and Governance and the students I teach are part of a Master’s programme in Policy and Governance. We have courses on governance, which look at how public policies are implemented in our country. As part of teaching that over the last couple of years, we’ve typically gone back across the last 25 years—I’m using 25 years a bit loosely, some of you might say one could go back further to look at how we conduct major policy-making exercises in this country. Some of you may be familiar with the tenure of the UPA I (2004–2009) government when we had a series of new welfare laws. You had the Right to Information Act (RTI) in 2005, the National Rural Employment Guarantee Act (‘NREGA’) Act, 2005, and the Right to Education Act, 2009. Each of these legislative initiatives resulted in massive national programmes. According to our last census (which is going to be updated next year), India is somewhere between 1.2–1.3 billion people. At the time of independence, we were somewhere between 300–400 million. In these 70 years, our population has grown threefold, at the least. In that sense, the scale of issues is enormous. Once you start coming into the Modi government, Modi 1 (2014–19) and Modi 2 (2019–present), the examples of massive policy changes that come to mind include Demonetization, GST, Article 370, CAA. These are examples even the school students here will remember. If you were in a city in India, you were queuing up outside ATMs; if you were in a small town or rural India, the scramble for cash was that much more desperate. That memory is going to stay with us for a while. Demonetisation was a major public policy initiative, where the government in one stroke decided to take back somewhere between 67 to 70 percent of our currency and said that those notes will no longer be valid currency. This policy was announced in secrecy and in one stroke, and then other agencies had to play catch up in whatever way possible. I have members of my family who work in public banks, and the kind of stress they went through in the next few months was staggering as people were trying to get cash, and all bank employees had to do triple shifts during that period to deal with that. The official justification was that of course this had to be done in secrecy, it couldn’t be planned earlier, not many people could know, because apparently, the objective was to stop black money transactions and that’s why secrecy was important. The official stance was, we couldn’t plan it in advance and get the money printed in time and available. That was the policy justification for that fairly drastic mechanism.

I could go on with examples of this ‘shock and awe’ approach to policy making evident during the Modi years. Take Article 370. On August 5, 2019, I recall that we had news by early morning that something big would be happening in Parliament. I was not teaching that day so I could switch on the TV and see what was happening. Right up till the Home Minister made his entry into the Rajya Sabha, we didn’t really have information about what was to unfold soon. If you watch the Rajya Sabha proceedings, even when Home Minister Amit Shah started tabling the bill, there was a whole atmosphere of secrecy. I would go further and say deceit, because in Parliament you are supposed to table a bill, so that people can go over the text and be informed about its contents before they debate its merits. But Article 370 was ‘repealed’and I say this deliberatelyin what amounts to a ‘fraud on the constitution’, because it was done under false pretenses, and under false premises. In Parliament several members got up and said ‘we can’t discuss this because we don’t know what we are discussing—you haven’t tabled the proper bills, we can’t have a debate on it because there’s no basis on which we can question the government or be able to debate’. And that’s Parliament’s job right? That you deliberate, consider what’s happening.

As I speak, we are in the middle of the National Register of Citizens (NRC) and the National Population Register (NPR) exercise which will be a monumental enterprise because all of us have to give our identification documents in order to constitute the NPR. That’s an immense task, historically unprecedented. Many of us have AADHAR cards now. Some people held out against AADHAR initially but were eventually coerced by the State to get AADHAR cards. So that future is not so distant. We remember all the procedures that had to be put in place to be able to do that.

These recent issues are all examples of governmental policies where there wasn’t much evidence of prior planning, or careful thought about the implications of what would happen so that things could be put in place accordingly. If you’re learning about how government functions, then these are not exactly very inspiring examples of how to plan for something, have back up plans, be clear about your policy explanations. Take the case of demonetization: the rationale for it has been constantly shifting. Apparently, it was required to regulate black money and take it out of the parallel economy, but the RBI’s published information shows that the black money didn’t go away. This means that the government’s official data disproves the original justification given. So in a Public Policy class, if you’re trying to explain to people how to do governance, there are very few positive examples from recent experience that you can cite. This is one of the challenges of trying to teach this subject. I am turning to history to address this particular challenge.

In this talk, I propose to talk about how the making of the Indian Constitutiona gigantic exercise in policy making for the future of the Indian politywas approached by those in charge of this exercise. My purpose is to draw a contrast with more recent experiences, and see if there is something that current policy makers can learn by looking at this historical event. Take the ongoing discussion about the amendment to the Citizenship Act in November 2019. This debate raises questions about what it means to be a citizen, what was the intention of the framers, how is that being changed, what could be problematic? There isn’t very much literature on these issues. Yesterday, Anuj mentioned academic works by Anupama Roy and Niraja Jayal on citizenship. Neither of them, I should point out, is a lawyer, but their legal analysis is excellent, and I think a lot of lawyers are learning about these areas from their work. There are social scientists who have been looking at these areas and writing about it, but the legal researchers are coming to the issue somewhat belatedly now. Of course, now there will be lots of work being commissioned on citizenship and the implications of these recent changes. In that sense, this is an interesting moment. There is some exciting work coming out now but this is an area crying out for further research. So whether you are History teachers in school or you are young students who are thinking about an issue that you should work on as we go forward, there are lots of interesting, fascinating questions waiting for you to find them. Let us now look at how the framing generation sought to approach the difficult questions that they had to confront.

II: The context of constitution-making in India

Let me begin with the surrounding context of constitution-making in India between 1947–50. I’ll go over this quickly because quite a bit of this is well documented. Although in a formal sense the constitution making process in India lasted for about three years, the history of thinking about constitutions within India is much older. That history goes back about a century before the actual drafting of the Constitution in the mid-1940s.

There were three principal actors when it came to the making of the Indian Constitution. The first is the colonial government which formally ruled India for nearly a century. This covers the period from 1858 (in the aftermath of the First War of Independence or the ‘Mutiny’ as the British refer to it) till 1947. That roughly 90 year period is when the colonial authorities started bringing constitutional documents to govern British India. The second actor is the nationalist, anti-colonial movement. There is an earlier history to the anti-colonial movement, but we can start in 1885 when the Indian National Congress (INC) was formally created. Very soon after its founding, the INC started thinking about a constitution for free India, and this process was spread across half a century. There is also a third dimension: many scholars have noted recently that apart from these two big actors, there were a range of actors who also spent time thinking about the nature and character of the Constitution that should govern independent India. I will briefly sketch these three actors and trends.

Focusing on our first actor, the British colonial regime, we see that they issued a series of laws. Initially they were called the Indian Councils Acts. They started experimenting and giving Indians a taste of governing themselves. The British were reluctant to do this, and they started slowly, and in phases. These laws start getting enacted quite rapidly from 1861 onwards. After the Indian Councils Acts, you have the Government of India Acts in the twentieth century, which were enacted in 1909, 1919 and 1935. These are all governing statutes.

Let me step back and ask a question: What is a constitution? If we go back to the classic sort of Greek idea, every society has an actual constitution, even if it doesn’t have something that is formally called a constitution. That’s the document or set of ideas that regulate that society. The Indian Councils Act and the Government of India Act were laying out the mechanism for governing British India. The Government of India Act of 1935 was the last formal law that governed India. After that, as we headed towards independence, there’s the India Independence Act, 1947. This led to India becoming a Dominion, before it became a Republic in 1950 after the adoption of its Constitution. These are all legal terms which have specific meanings, and it’s not important to get into the technical aspects. But as you do more research and understand more, you might want to see what the difference is between a colony, a dominion and a republic—what do these terms mean, why was there so much attention paid to their status.

Let us now turn to the second actor: the nationalist movement. There is a series of documents that the INC begins drafting with a view to elaborating upon the idea of a Constitution for a free and independent India. The earliest that we have evidence of is a complete document called the Constitution of India Bill of 1895. Some people refer to it as the Swaraj Bill. It is generally thought that its origin can be traced to present-day Maharashtra and it was probably Bal Gangadhar Tilak who was instrumental in creating it. This Bill contains an elaborate provision on freedom of speech. As we know, Tilak was already being prosecuted for the crime of ‘sedition’—he was eventually tried in three sedition trials, and his persecution by the colonial regime galvanized the still emerging nationalist movement. Many of the early figures who became well known nationalist leaders had realized the power of the printing press and weeklies and magazines in influencing public opinion in their favour. They were, to use today’s terminology, ‘influencers’ through the medium of print, the earlier form of social media. Many of them were practicing journalists and had brought out dailies of their own, and fully realized the importance of the freedom of speech.

Yesterday, in his plenary talk, Anuj Bhuwania mentioned how members of the current government, in seeking to promote Fundamental Duties, imply that we as Indians are more familiar with duties rather than rights. This is an absolutely ridiculous idea. The tallest leaders of the nationalist movement had, since more than a century ago, employed the idea of rights to argue against the oppression by the colonial regime. So, in the 1895 Constitution of India Bill, there is a very robust speech provision.

As the INC continued deliberating upon the idea of a Constitution across the next half-century, there were other bills, pacts and agreements which steadily developed constitutional ideas beyond rights to extend to other institutions and principles. However, rights were absolutely integral to that vision of the nationalist movement. In his plenary talk, Anuj noted that some judges of the Supreme Court, who came later in time to the task of constitutional adjudication said, ‘we don’t need rights, we need responsibilities’. Well, that may be a matter of opinion, but as a factual matter, statements like this are ignorant of the history of constitutionalism in this nation. They also undermine the great struggles for rights that were pursued by earlier generations.

Let’s move forward in time to 1925 and the Commonwealth of India Bill, which was a major advance over previous INC version of the constitution. Annie Besant was a major figure involved in that instrument. The historian Ram Guha has argued that one of the striking about the Indian anti-colonial movement is that many people from other nations were involved in it. Gandhi embraced people from around the world who fought for Indian nationalism. And he certainly never made any distinction of race or gender or region in welcoming people into the movement. Annie Besant is a remarkable example of a social activist who left England to take residence in India and become a leading light in the INC. She became part of the Theosophical Society, and pretty much lived in India for the rest of her life, completely committing herself to the cause of Indian freedom. She was one of the principal draftspersons of the 1925 bill.

The Motilal Nehru Report of 1928 is the next significant document. As you look at these documents you realize that the nationalists were getting more and more sophisticated in thinking about ‘what would it be to govern ourselves?’. There are questions of rights, issues of governance—should we have a parliamentary system or some other form of system. They get more and more elaborate in thinking about the question: ‘When Indians will rule themselves, how will they do that?’ The last such experiment I focus upon is the Sapru Committee Report. Tej Bahadur Sapru, a prominent Indian lawyer who was involved for several decades in the nationalist movement, was the chairperson of the Committee. I’ve also mentioned non-nationalist constitutions. There’s a scholar called Arvind Elangovan who a few years ago criticized the way this story is usually told: ‘[. . .T]here’s the British who are the bad people and then there’s the good people, the Indian National Congress, and there’s nobody else’. Elangovan argued that this is not the full or true story.

M.N. Roy, a radical thinker who founded both the Mexican Communist Party and the Communist Party of India, drafted his version of a constitution in 1946. The same year, S.N. Agarwal released a Gandhian version of the constitution. Two years later, the Socialist Party issued its version of a constitutional document. The dates are revealing: after the Quit India movement of 1942, it was becoming clear that colonialism was on a weak footing. A range of actors were thinking about how independent India should be governed.

Let me pause here to show you an image:

Arthur Berriedale Keith, Lecturer in Constitutional History, University of Edinburgh 1914-1944

This is a picture of Professor Arthur Berriedale Keith, who was of Scottish origin. If you are interested in studying the phase I have just told you about, you should consult his book: A Constitutional History of India 1600 to 1935. He eventually became a lecturer in constitutional history at the University of Edinburgh. In the book, his aim was to explain India’s constitutional history. What is interesting is he stops at 1935 which is when the Government of India Act of 1935 was enacted. He is trying to understand what was happening in India, constitutionally speaking, through these 300 odd years. This is what he says about the approach of the British: ‘It was the aim of the greatest among the early British administrative to train the people of India to govern and protect themselves rather than to establish the rule of British bureaucracy.’

Now in the nationalist narrative, this attitude is decried as being an apologist for Empire. But I think we should think about this statement a bit carefully. We should recall that the British Empire was not a single homogenous entity—it was composed of multiple different people who came to India with multiple motivations. We also had missionaries who came, and who genuinely wanted to help people. Over time, a remarkable range of people came to India, and not only to serve in government, but also to understand what was happening in India. Earlier, I gave you the example of Annie Besant. There were several others who joined the nationalist movement as well. I put this quote up there to say that I think it is worth reflecting upon its content in a more objective manner. Think about when liberalism came to Britain. In 1600 Britain was not governing itself. In a way, some people thought you have to educate people in the ways of constitutionalism both in England and everywhere else in the world. Liberalism as a phenomenon is of relatively recent origin. The challenges that we are facing in India over the last few years shows us that we cannot take any of the progress we had made towards liberal, constitutional ideas for granted. Perhaps we will continuously need to learn and reiterate these values to keep them alive in our midst.

So, we needn’t view this with suspicion. There was a way in which some well-intentioned British people thought ‘we’ll go to India, the people there are different from us, they seem to have a lot of religions, for instance.’ The British were also trying to understand what is Hinduism, what is Islam, and they set up their censuses to try and document which of us falls into what religion. If you study the census records, processes and documents, you realize that the idea of what we today think of as Hindu or Muslim is in part a creation of the census. Ismailis in Maharashtra particularly were for a long time not classified as Muslim because the Ismailis believe in Aga Khan, and when asked if they have a living god, they said ‘no, but we have somebody we think is a representative of God’. Now that’s not the typical response of a Muslim, and so the Ismailis were considered Hindu for a long time because they seemed to have one person who embodies some form of divinity. So, all these practical problems came when the British tried to understand the people they were charged with governing.

I’ve also used this quote for another reason, which is to tie it to what Anuj said yesterday—that the framers of the Indian constitution were also engaged in a pedagogical or teaching project. Indians have to learn the idea of freedom of governing ourselves in a responsible way that is consistent with our Constitution. This pedagogical project works in two ways—at one level, the British claimed they were trying to teach Indians how to govern. This we can dispute and say that they were not in a hurry to allow Indians to be self–governing; they did this in batches and phases. Also, if you go back to the chronology, the reason why they brought out subsequent laws is because the Indians were developing their own demands. And so, each subsequent Councils Act or the Government of India Act is sometimes a response to the nationalist movement’s demand for governance through a constitutional document. There is a link between the two trends. Perhaps the second part is not evident in Arthur Berriedale Keith’s view reflected in the quotation.

Now let’s come to 1947–1950. I feel it is important to understand the background context and atmosphere against which the Constitution was created. Every text has a certain context and you need to understand that context to be able to engage with the text. But very often, for instance if you search through the assembly debates, there are some references to Partition, but one could say not enough, given that Partition was such an overhanging presence while the Constitution was being made. And when you read carefully—between the lines—there’s a reference to the disquiet around them. The debates do not specifically talk about what is happening, but it’s a reference to that overall ambience. If we want to engage with the text of the Constituent Assembly debates, one needs to keep this in mind. Scholars like Hannah Lerner and Sujit Choudhry now talk about Constitution-making in divided societies. Ours was a very literal division. Partition also caused the break-up of the Indian subcontinent as nationhood came in the aftermath of independence. Divided societies have certain characteristics. In India, ethnic violence was very much part of the mix. Partition, as we know, caused almost fifteen million people to migrate on both borders, on West and East Pakistan as they became, there were populations moving around, evacuated in many cases. The number of deaths in Partition is a question historians are still grappling with. It ranges between 1 and 2 million which is again deeply significant if you think of the total human population of the world and of the Indian subcontinent at that time. Psychological blows. It’s not just physical stress and tension, it’s also what it is to be a new nation, a new nation where you are filled with joy and the potential of it. However, if you were living in north India, your family members are missing, you don’t know where they are. There are all kinds of deprivation caused because of the economic situation. Delhi had about 0.5 million refugees. Constituent Assembly members coming into the CA proceedings sometimes needed ‘refugee passes’ to get through Delhi because they wouldn’t be allowed access as there was such a lot of fear and uncertainty. The assassination of Gandhi in 1948. In Samvidhaan there’s a particular episode where just after the assassination, people give speeches in the Assembly, which demonstrate that they were all moved and shaken. Yet, they had to continue with the work of drafting the constitution. In 1948, they were still at an early stage of the working out what the constitution would contain. The entities represented in the Assembly had different affiliations and interests: those from the British Indian provinces as well as those from the Princely States. We know the convoluted story of the 562 Princely States. So even though there was Partition, there was also the work of consolidation, a massive enterprise. Junagarh, Kashmir and Hyderabad were still holding out. Their princely rulers wanted to exercise their own option, so the Indian State was trying to deal with that situation. In Hyderabad, there was great violence and mayhem.

Beyond these difficulties, the framers were conscious that they were coming out of 200 years of an exploitative colonial economy. At the time, the global economy was in shock. The recent end of the Second World War meant that all the great powers were grappling with the economic consequences of one of the most devastating events in world history. War was breaking out in Kashmir—the first war started as the various parties were trying to resolve the status of Kashmir. Finally, there were also the Communists who had openly declared that they were going to oppose the new Indian state. It was against this atmosphere, that this group of people came together and said: we are going to now think of drafting a constitution for the new India.

Some quick facts: we know that within the Assembly when it was first constituted there were three groups, the Indian National Congress, the Muslim League and the Princely States. There’s a complicated history of the Princely States. These 560 odd Princely States were located all across the map of British India at the time. The story has been told by V.P .Menon’s text which helps us understand what happened in broad strokes. But, it is still the account of someone involved in that process. So, a time for scholars and others to say how did we go about making this, is upon us now. When the process started in 1946, it occurred in undivided British India. The Muslim League was also part of that process when indirect elections were held to constitute the Assembly. But in the post-Partition era, there were 299 members (reduced after the departure of the Muslim League members), who between them represented most of the major groups in India. They contained several important personalities—some of them are celebrated, some are lesser known. Granville Austin’s 1966 account of the making of the Indian Constitution is still the dominant academic work in the field. Austin identifies twenty significant individuals. He terms four of these individuals the oligarchs: Jawaharlal Nehru, Vallabh Bhai Patel, Maulana Azad and Rajendra Prasad. And these are of course towering figures in the post-independence era as well. There’s BN Rau who was the constitutional adviser. The first book length biography of Rau was completed only last year–by the US based scholar, Arvind Elangovan. In Elangovan’s telling, Rau emerges as a fascinating figure. A member of the Indian Civil Service, he was involved in the drafting of the Government of India Act, 1935 as well as the Indian Constitution. He was, thus, a member of the making of both the last British Act to govern India as well as the first indigenous constitution crafted by Indians that became an actual governance instrument. He also was involved in the drafting of the constitution of Burma in 1948, which is one of the early postcolonial constitutions. He was a High Court judge for a while; served as Chief Minister of Kashmir, which gave him an intimate knowledge of the crisis there. He went on to represent India at the UN and died while he was a judge at the International Court of Justice. So a remarkable career and it’s astonishing we know so little about somebody who traversed so many areas and left behind so many tangible achievements.

The next person we turn to,Dr. Ambedkar, was the Chairperson of the Drafting Committee and now I think there is recognition of that work. But what was the actual work that he did? Again, we don’t have really close analysis of that work and how he performed his task of Chairperson of the Drafting Committee. There were lawyers—Alladi Krishnaswamy Iyer and Durgabai Deshmukh from Chennai. There were economists—including KT Shah. Jaipal Singh was the representative of the adivasis in the assembly—again an extraordinary figure. In Samvidhaan he is always shown wearing suits; like Dr. Ambedkar, he made it a point to do that, because he said that ‘My people have pride; please don’t patronize my people.' He was an Oxford blue, won an Olympic gold medal and also had a career in politics—which was, however, less spectacular given his radical ideas and his unwillingness to be just a token figure. Many people in the assembly also had later careers which we don’t know that much about.

Here are some pictures. Jaipal Singh Munda is in top left image. There’s Durgabai Deshmukh, another fascinating figure. She joined Gandhi’s quixotic movement to teach Hindi to the people of the state I hail from, Tamil Nadu. She wasn’t very successful, as we all know Tamil Nadu wanted to secede on the question of Hindi. Interestingly, when the question of language comes up in the Assembly, Durgabai Deshmukh opposes the imposition of Hindi—I don’t see a contradiction in that. You could be a votary of Hindi as many people in the Assembly were, but she said she was against the imposition of Hindi on people across the country. I think there’s a principled way you can understand Durgabai Deshmukh’s stance on this. This is B.N. Rau on the cover of the book by Arvind Elangovan I mentioned earlier. It’s called Norms and Politics: Sir Benegal Narsing Rau in the Making of the Indian Constitution, 1935–1950. We saw Keith’s book earlier which talks about the constitutional history of India from 1600 to 1935—in a way, Elangovan’s book takes the narrative from 1935 to 1950. Finally, there is Jerome D’souza, the Jesuit Priest from Madras, whose attendance in the Assembly was commemorated in the issuance of a stamp by the Indian Postal Service.

Most of what I have told you so far is out in the public domain. What is less known is how the Constituent Assembly went about its work, the actual details and processes. This is where BN Rau’s role is very important. Here is someone who had been a civil servant in colonial India, had been posted across the length of British India and understood the problems of trying to govern India. There’s a note by him on Points of Procedure, dated September 2, 1946. Rau drafted this note in anticipation of the commencement of the work of the Assembly in December 1946. That note is fascinating to read. What is striking about is how much attention he paid to the question of how this body would come together and work towards its goal of crafting a constitution for free India. He details issues such as how the Chairman should be chosen, how the Assembly should vote, should the session be open or in camera (behind closed doors), what are the languages that should be used, etc. He also examined closely precedents in USA, Canada and South Africa to ascertain how these nations had thought about crafting governing statutes, what they contained, and how they went about securing their completion.

The note reveals Rau’s essential pragmatism. He set down the need for recruiting people of the highest caliber, who were to be paid well, because conviction and passion alone cannot make people tick, and they need some material support. At the time when Gandhi was asking Indians to focus on the value of sacrifice, there were others such as Rau who realized that human behavior and motivation is complex, and not all good people could be sought with a singular appeal to moral values. A well-staffed secretariat paid out of central revenues was able to attract higher calibre officers—and Rau and his colleagues helped recruit some remarkable people in the Secretariat of the Constituent Assembly. In her recent book, How India became Democratic, the Israeli scholar Ornit Shani has done some fabulous archival work on the first Election Commission, which is the hero of her story. As we discuss the possibility of a National People Register, and the logistical challenges of trying to get authentic, verifiable data for 1.3 billion people, it makes sense to look back into our own history to analyse how the first electoral roll was prepared. Shani focuses on the challenges of preparing the first electoral roll for Indians, and holding the first general elections in 1951-52. Each Indian general election is the largest election in human history. We can safely predict this will be the case for the next 50 years, given the rate of our population growth.

The first general election in 1951-52 was also a massive exercise. And remember at that time we were still subjects of Empire, we had not yet become citizens of a free nation. When you think about the CAA and the NRC, many people are questioning how this will be done first in Assam and then in the rest of India. Given the obvious failures and problems that have been documented by sincere journalists and scholars, perhaps its time for us to look back for success stories. One such success story is narrated by Shani, at a time when resources were far more scarce, and the technological challenges were more formidable. We are apparently now a superpower and have lots of resources, but back when everybody accepted that India was fundamentally a poor country in the 50s, how did they go about such an exercise? That’s what Ornit Shani tells us. There’s a chapter in her book on the Constituent Assembly, and the CA secretariat was the one behind this enterprise. There were some remarkable people like Sukumar Sen who became the first Election Commissioner in independent India—who were part of the process. It was a small group of 8-10 people who thought about how to go about the entire exercise. This is also because Partition was happening and they were also progressive people. Unlike what we see now, these administrators said that anybody who is here has to be taken care of, so they would not be very particular about looking at the religion or grounds of persecution. Their approach was: ‘You are here, you have some papers, we will put you on the electoral roll.’ The first electoral process was prepared by bearing in mind this egalitarian, open-minded approach. The Secretariat became important not just for the making of the first constitution but also for the making of our first electoral roll which also led to our first general elections. This was the first time the rest of the world was looking at us, and the successful holding of this General Elections was the one of the first signs that got people thinking that maybe, just maybe, this vast subcontinental nation with all its problems, may just about survive. These remarkable individuals in the Constituent Assembly Secretariat and the Election Commission worked together to hold together a nation that was almost continuously at risk of breaking up, and put in place the infrastructure for holding a General Election that was reasonably free and fair. The credit for this can, as Shani demonstrates, be traced back to the Assembly.

Before we turn to the details of the process of constitution-making in India, I want to return to where I began. I started my talk with the example of demonetization because when you look back at the level of planning and thinking about it, it’s really perplexing. Without taking a political stance on the issue, I ask you to think about this: if you need to wipe away the legality of 67 percent of a country’s currency in one stroke, what should you do in advance to prepare for the event? Could something have been done in advance, so that the deaths of thousands of people who died because they couldn’t access money could have been avoided? Could something have been done to forestall the damage done to our informal economy which is cash dependent? We know the damage that has been done because of an ill devised, ill thought out policy move. This is not about the politics of the decision, this is about its mechanics and logistics, or rather, the absence of any thought to these vital issues.

At the founding of our Republic, they thought very carefully about the question of processes involved in the making of a Constitution. In some ways this is puzzling, because many people in the Assembly had been thinking about making a constitution for most of their adult lives. That’s the point of tracing it from 1895 to 1947. Still they said we need to do this carefully and rigorously. So how did they go about doing this?

The constitution-making process in the Assembly can be understood as comprising five stages. The first preparatory stage lasted from December 1946 till August 1947. This was in the aftermath of the decision in 1946 by Lord Mountbatten to partition India within a very short span of time. Because that was a tumultuous period, not much was happening within the Assembly. The most significant event in this phase was the passing of the Objectives Resolution in December 1946. Behind the scenes, though, a lot of preparatory work was being done, and the various Committees had started functioning.

The second stage is even shorter, and lasted from August to October 1947, when B.N. Rau, working at a frenetic pace, prepared a first draft of the full Constitution. Rau started working immediately upon independence and within three months, produced a pretty comprehensive draft. If you recall that he had earlier worked on drafting the Government of India Act, 1935, and was also simultaneously involved in the drafting of the Constitution of Burma, we are able to comprehend how he had the wherewithal to pull off such a feat. It’s something he had the experience for but it is still a stupendous effort. The draft that B.N. Rau created is available in full to scholars and students in the B. Shiva Rao volumes.

The third stage lasts from October 1947 to October 1948. This is where the Drafting Committee, under the leadership of B.R. Ambedkar, takes up the draft prepared by B.N. Rau and revises it. Near the conclusion of the debates, Ambedkar said in the Assembly that ‘it is wrong to call me the father of this Constitution because there were several people involved’, and he specifically mentioned B.N Rau’s work, saying that it was Rau’s draft which became the template upon which we all worked. Nevertheless, it is important to note that the Drafting Committee made substantial changes to Rau’s draft (Arvind Elangovan’s book focuses on several ideas of Rau that were discarded). Some of them may have been unworkable but they were fairly radical ideas in terms of thinking about how to make a constitution. The Drafting Committee finalized its draft across five months. In February 1948, this revised draft was released to the general public, inviting responses, suggestions and criticisms. This part of the Constitution’s history is not generally remarked upon, as it is viewed as an elite creation. However, there were radio broadcasts about the constitution, while most of the major newspapers carried details of the provisions of the draft constitution. Ramachandra Guha’s India after Gandhi and more recently, Rohit De’s A People’s Constitution, describe the thousands of responses from student groups, from associations of commerce, and even individual citizens that were sent to the Assembly.

Stage Four covers the period between November 1948 and October 1949. After Ambedkar introduced the draft Constitution on the floor of the Constituent Assembly, there followed an 11 month period when it was debated, clause by clause, on the floor of the Assembly till October 17, 1949. Thereafter, the Drafting Committee met again intensively over a fortnight, incorporating all the suggested amendments and revising the draft.

Stage Five was relatively short, extending from the time that Ambedkar presented the final draft of the Constitution to the Assembly in early November 1949. Amendments were considered by the Assembly between November 14 and 16 for one last time, before it was finally adopted by the Assembly on November 26, 1949. Exactly two months later, on January 26, 1950, this final text formally came into force as the Constitution of India.

Let me draw a final contrast to our contemporary situation, starting with the CAA issue. Recall how it was unleashed upon us. Was there a debate in Parliament, did the government ever seek responses from the citizens of this country on this or any of the other dramatic policies that have been thrust upon us in the recent past? Has our Prime Minister gone to any of the protests to talk to people and ask them what their problem is with the policy in question? The constant refrain is ‘this is misinformation’ and ‘you are being fed wrong news’. Contrast that with the approach of the framing generation. These were people who had a legitimacy borne out of years of having struggled and sacrificed. Note that several of them had spent many years of their lives in British jails. They didn’t need legitimacy from the people, yet they said we will not assume that we know best, we will ask people what is your view when we make a governing document, what should it contain. 70 years on, if we are having a debate about citizenship in this country, on who should be a citizen or not, isn’t the government obliged to check with us what we think about citizenship? How safe it is to rely on a 39 per cent mandate in a general election (this is the total vote share of the BJP in the 2019 General Election). Recall that in a General Election, we don’t vote on specific issues, we vote for candidates on a yes/no basis to give them a mandate. That’s the striking part when you look back at this process from the longer perspective of our own nation’s history.

III: Scholarly analysis of the process of constitution-making in India

This is the scholarly part of my talk, and on the slides, I’ve put down names of scholarly works that you can jot down and refer to later if your interest is piqued. Among scholars, there is considerable debate on how sound and legitimate the process adopted turned out to be. An early assessment was provided by the American political scientist, Granville Austin in his ’66 book, The Indian Constitution: Cornerstone of a Nation. Austin was an unabashed fan of the making of the Indian constitution. At one point, Austin asserts that the Indian constitution-making exercise was the boldest political experiment since the making of the American constitution in Philadelphia in 1789. Americans tend to be very possessive about the greatness of their own experience—perhaps not so much in the time of Donald Trump, but generally so. So that is really high praise coming from a proud American. Austin explains that the reason the Indian exercise was extraordinary was because the Indian framers worked through consensus, and through accommodation. In his final chapter, Austin inserts a short little section titled, ‘The Art of Selection and Modification’. There, he argued that the large body of eventually nearly 300 people made judicious use of all these ways of getting people together. His penultimate chapter is on language and how contentious language policy was, but he says even that was handled very tactfully. There were people with very different views on whether Hindi should be imposed or not, how it should be done. And he says that the way they handled that fractious debate was truly remarkable.

Austin’s views did not find universal acceptance. In the late 60s, the Indian constitutional scholar Upendra Baxi wrote a fairly scathing piece on Austin’s book where he came down heavily on Austin’s fawning assessment that the process within the Constituent Assembly was fantastic. Baxi disagreed and noted that there were many problems. He says—I am paraphrasing—in a subcontinent that has just been mutilated, how do you expect that consensus and accommodation could so easily be forged? He talks of the silences because of Partition. If you watch Samvidhaan now or read the debates, it is clear that it was a very communal atmosphere—the assembly debate on cow slaughter for instance is pretty hard to read even today, and one is struck by the viscerally communal language used. As we know, the Assembly was broadly representative of the many strands of Indian society, and also featured representatives of the Hindu Mahasabha which is the progenitor of the Jan Sangha, and of the Bharatiya Janata Party. There were representatives of the Mahasabha in the Assembly who were very vocal about what they wanted. In his talk yesterday, Anuj Bhuwania took us through Article 48 and its peculiar language which seems to invoke science to justify cow slaughter. That was the compromise that the framers achieved, to keep members of the Hindu Mahasabha satisfied and to get their approval of the final product. Professor Baxi was, therefore, more critical, and not as adulatory of the framers. Arvind Elangovan’s point has been to say that we should also focus on other accounts that laid out a vision for a Constitution for free India, and not rely only on the Congress’s account or the British account. How do we study other people’s imaginations? They don’t have to be scholars—what was contained in those letters that small farmers were writing to the Assembly saying this is the kind of constitution we want for our country, what did they think about? What did the teachers’ associations write to the Constituent Assembly about?

More recently, scholarship that is critical of the framers’ choices and methods has emerged. Sandipto Dasgupta’s 2017 book chapter in a book on the Constituent Assembly is titled ‘Conflict not Consensus’. He squarely takes on Austin’s description of consensus, saying no, there was a lot of conflict in the Assembly. Some of that conflict was just papered over or the brute majority of the Congress allowed those issues to be resolved for then, but they were not resolved for all time which is why they continue to simmer and that is why we see them later including into the present time as well. In the same book, the scholar Vatsal Naresh talks of cold and hot passions, which is an interesting analysis. Naresh conducts a quantitative statistical survey of the debates and he says the Assembly members quite remarkably were able to avoid what he calls hot passions. What he means by the ‘hot passions’ relate to the atmosphere around them, referencing what was happening in Delhi as the Constitution was being made. Naresh notes that because the Constitution made was over a very long process, there were time delays between different stages (as we have noted above). His argument is that as a member of the Assembly, even if I am passionate about something, I may say something in the heat of the moment, but the body doesn’t decide the issue just then, while I am so passionate about it. This allows for some ‘cooling off’ and for calmer sentiments and reason to prevail by the time the final decision is taken. He conceives of ‘hot passions’ as the passions of contempt, of suspicion for different communities. And one of the things Naresh addresses is the question of what happens when the Muslim League leaves, and several million Muslims stay behind in India. Now there’s a glorious narrative that Austin also subscribes to, that the Indian Constitution did wonderfully by all religious minorities. But the question that scholars like Rochana Bajpai have addressed is the fact that Muslims had to give up a lot of privileges and benefits that they enjoyed during the colonial period. Thanks to separate electorates, they had representation in legislatures. There was an informal arrangement by which they were always ministers from different religious communities at the provincial level. However, the framers decided that we will not have representational quotas for religious groups, so representation was just for the Depressed and Backward Classes. The framers decided that they would protect the minorities by giving them cultural and educational rights. If you read the Sachar Committee report which came out in 2006, it’s quite disturbing to read what it has to say about Muslim participation in national life. Muslims are under-represented in most central services and this happened much before the current government took office. The Sachar Committee noted that Muslims are also under-represented in the police, in the army. Historically, there was a case where they would still be represented in the Lok Sabha and the legislative assemblies because there were parties that would field Muslim candidates. Today Muslim representation in legislatives is at its lowest since independence. And of course, the current regime talks up a lot about ‘special privileges’ given to Muslims and other minorities. The reality is that the Congress party did away with several of these privileges even in the Assembly and an objective assessment of this period has to ask if the charge of ‘minority appeasement’ can stand when a comparison is made against the colonial period.

One has to ask oneself: the Framers decided that legislative representation for religious minorities was no longer necessary and that their interests would be served if they had access only to educational and cultural rights. If India is where it is now, we also have to ask whether the framers made the right choice, because the indices of the Sachar Committee report–and HDI data since then are showing us that that model didn’t really work. And that was before this regime came into office. So, it is time to ask if the narrative that presents the framers of our Constitution has having made wise, astute choices needs to be questioned even for issues for which they are usually given credit.

There are more such troubling examples. When the issue of citizenship was being considered in the Assembly, there was a lot of communal sentiment in the aftermath of Partition. Several people crossed borders between the states of India and Pakistan. Some of those who went to Pakistan later sought to return, but were treated very differently based on their religious identity. Muslims who sought to return were seen as infiltrators, as fifth columnists. There’s a very disturbing speech by Vallabh Bhai Patel who in the Assembly said that Muslims who returned and rejoined government service would be surveilled solely on account of their religion. So, to quite an extent, this idea that the CAA is for the first time injecting religion into issues of citizenship is not historically accurate.

The charge that the Congress was dominant in the Assembly is complicated by the fact that the Congress contained within itself a range of views. So, someone like Rajendra Prasad, the President of the Assembly, had views that would fit comfortably with some of the BJP’s current policies. He opposed the Hindu Code Bill in Parliament shortly after the Constitution commenced working, and was a member of the conservative faction of the Congress when it came to issues of Hindu identity, even as he was progressive on many other issues. If today, the BJP is claiming Patel as one of its own, there were others such as Puroshottam Das Tandon, Prasad and even Sarvapalli Radhakrishnan whose worldview on many issues, was not altogether different from what we today associate with the BJP.

I do not have time to address Madhav Khosla’s recent book, India’s Founding Moment, which was also referred to by Anuj Bhuwania in his talk yesterday. It provides the most recent scholarly analysis of the working of the Indian framers, and is a valuable resource for students and scholars alike.

I will conclude by reminding us of the meticulous recording of the work of the Constituent Assembly which allows us as students of the process to continue to read it carefully and draw insights decades later. The Secretariat had many people working on the transcripts of the speeches delivered by the framers in multiple languages, and the original debates are now preserved in 13 volumes. They should be read together with the documents curated by BN Rau’s brother, the scholar, B. Shiva Rao in 5 comprehensive volumes. The quality of the transcription and the care with which every technical detail has been recorded makes these volumes a timeless and priceless resource. In modern India, we have a massive team now involved in recording the output of India’s independent Parliament, but scholars who have used the transcript of Parliamentary records will tell you that the quality of the Constituent Assembly debates is far superior, despite the greater availability of technological aids and resources now. Thanks to the dedication and integrity of the people in the Constituent Assembly Secretariat, we have a valuable resource for students of public policy and governance.

What is gratifying is that beyond the original sources I have noted, there are today many other aids to studying and understanding issues from the Founding. One group which runs an excellent website on the Constituent Assembly is the Centre for Law, Policy and Research (CLPR) and you will hear from two of its members when they conduct a session for you later in this workshop.

I thank you for your patience, and I will be happy to field questions if you have any for me.

Question & Answer Session

I see that there are several questions. Shall we collect a few first, so that I can respond briefly and allow as many people as possible to have their say?

Question 1. Sir, I would like to ask: you referred to Arthur Berriedale Keith and his views, can you throw light on that? What is he trying to say about why the British came to India—to give training to the Indians? Or was there some other motive in their coming here?

Question 2. Good morning Sir. Our history chapters end on a note where we say the framing of the Indian constitution, where history ends, political science takes on in class 12. One debate I’d like you to throw light on is: when Somnath Lahiri says the Constituent Assembly members were basically, it was the dark hand of British imperialism. So do you agree with that? And another debate, NG Ranga’s debate when he says minorities should be on economic terms rather than religious or caste terms. I would like to know a little about that.

Question 3. Good morning. I want to know one thing. Like you said, decisions like Articles 370 and demonetization were very bold decisions. I’d like to know your personal opinion on the outcome of these decisions and if you really think they are disastrous for our country. Thank you.

Question 4. Good morning Sir, I am from DPS Patna. I object to a word used by you: oligarch. Because most of the time, oligarch is used with negative connotations and of course these were used during Greek democracy. You used the word for the four central figures who framed our constitution. In what sense did you call them oligarchs?

AT. Thanks for these stimulating questions. I’ll keep my responses brief to these four questions. Let me start with the last one first, and say that the term ‘oligarch’ is not mine, but one employed by Granville Austin. I think he uses it with some deliberation. The Indian Constitution has always had to deal with a charge of elitism. We talk about representation, but Jaipal Singh Munda is not your typical Adivasi because your typical Adivasi does not get to go to Oxford or compete in the Olympics or speak English fluently. That’s a charge that has always been there and Austin deals with that in a certain way. I think that in a way he is also acknowledging that while these leaders were elite, their legitimacy was enhanced by other means. As you note, these were four of the tallest leaders of the Congress, they’d all been with Gandhi throughout, and any one of them could have been chosen by Gandhi to lead India. It so happened that Gandhi seemed to favour Nehru over the others. It’s a remarkable group of people—and Austin refers to 20 of the framers as being the most significant within the Assembly. He doesn’t tell us much, but you raise an important point. What term would you prefer? An aristocracy? It is not clear that term would work better. Austin refers to these four as enjoying a special prominence. He also identifies separately BN Rau, who was never formally a member of the Assembly, and Dr Ambedkar. Dr Ambedkar for Austin is not a part of the ‘oligarchy’. In any case, Ambedkar saw himself as an outsider in the process.

Now onto the first question about Keith’s quotation. You seem to be referring to the work of nationalist historians (for e.g. Bipan Chandra et al, India’s Struggle for Independence) who tend to portray the British in almost entirely negative terms. Your question is: why did the British come to India, and you ask me to consider their motivations. I think the reasons are a bit more complex and not as simplistic as they are sometimes portrayed. To start with, they came around 1600, which is why Keith’s book uses that date as the beginning of his analysis. They came for commerce, initially, and over a long period of time, their motivations and roles changed. And the British came across many generations, and performed many different roles: colonial administrators; missionaries; idealistic reformers such as Annie Besant, CF Andrews and Meeraben who joined the anti-colonial nationalist movement, or like Verrier Elwin worked with marginalized groups such as the indigenous people in India. What I am trying to say to you is that historical processes are far more complex to admit of easy judgments.

I work on South Asia. Try and imagine how we are seen in South Asia by our immediate neighbours. Narendra Modi’s first term as PM began with an invitation to all the SAARC leaders to witness his swearing in. In 2014 May, all our neighbours thought this was a new moment for South Asia. Those of us who study South Asia thought, this could be a new dawn, this is a great symbolic moment. Today the moment is very different, in great measure because of the hamhanded way this regime has gone about decimating relationships across the region. If you talk to a Nepali, or a Sri Lankan or a Bangladeshi (I am deliberately keeping out Pakistan), their perception of us is very different, and is certainly much more negative now than it was at the potential moment of hope in 2014. You can be patriotic and say they won’t understand, we can debate about it but the perception of it may be different.

The point I was trying to make is that we’ve all been fed this simplistic narrative in our simplistic textbooks to say bad people came, started the East Indian Company and then all these bad things happened. Now many people across South Asia might think we are the bad people for them—so how do you understand history as a much more complex process of understanding actors and what their motivations were? There is a reason why Shashi Tharoor’s book about the horrible effects of British Empire sells well, he’s also relied on the work of serious historians.

Serious historians will also tell you that colonial rule was exploitative and problematic, but I will say two things: judgments are i) relative and ii) comparative. In terms of relative judgments, one should recall that while nationalist historians tend to classify policies such as the institution of separate electorates, and the provision of reservations to Depressed Classes as classic British attempts at ‘divide and rule’, I have tried to argue in my talk today that there may well be ground today to question whether those policies did alleviate the condition of religious and caste minorities during colonial rule that are looked at with some sense of nostalgia given the condition of religious and caste minorities today.

Onto the comparative point. If you look at what the Dutch did in Indonesia, another society I study for my research, the British in India may look comparatively better. Those of us who are subjects of colonized countries, we can play this very cruel game of ‘was my torturer better than your torturer?’. The British famously gave us the railways, the English language which allowed our BPO industry to flourish for a brief while. What did the Indonesians get? Comparatively speaking, not much. They didn’t get a legal system, the Dutch did not mass educate Indonesians in Dutch, and did not allow them access back to the metropole. So, comparatively speaking, the Indonesians had a very different colonial experience. You could also look at Africa and say ‘would we have been better off being colonized by the French?’ Then I would say, hold on. We can’t choose histories, but we can choose to study them somewhat dispassionately and away from a somewhat simplistic narrative of good guys and bad guys that obscures things. Even today I have said some harsh things about some of the leaders and you should take that in context—each of these individuals was quite remarkable but they had problems, they had their prejudices which were reflected in their work even though they tried to distance themselves. This is as true of them as it is true of us. We must also be alert to the fact that we have these prejudices. So that was my broader point: there might be something that the British thought of and there were certainly people within the British empire who bought into the civilizing mission that Kipling talked about, genuinely thinking that these were people who were kept away from it and that they need to be educated. You may still question their motives, you can say they were lying or maybe they were not lying, they were patronizing and that’s why it was wrong. You can take multiple positions on that. I’m just saying let’s take a closer look and see if we can see the justifications behind what they were saying. Keith seems to have believed that some colonial administrators genuinely believed that they were engaged in a pedagogic mission in relation to teaching modern forms of governance to Indians. I would not dismiss this out of handas perhaps the nationalist historians would doand would ask us to assess this more carefully.

The second question about the end of history and the beginning of political science: Ram Guha actually says this is the problem with the social sciences in India as well, that 1947 sort of becomes the dividing line between history and political science. He has stated that this is why he wrote India after Gandhi to document the post-independence history of India. I agree with Guha in this respect, and feel that we must all study what was happening in the post-colonial period, especially the first few decades more closely. This is all the more so in light of our current constitutional crisis. I am firmly of the view that our constitutional order was confronting challenges right through its existence, and we must study the entire experience closely to draw lessons, and not just the period since 2014.

Somnath Lahiri who was the only Communist in the Assembly—maybe there were other sympathizers who did not want to be identified as Communist. I guess the Communists then were the anti-nationals of today, and they would be self-identified as that. Anuj also spoke yesterday about the two concerns that have always dogged the Indian constitution: Is it indigenous enough and what does it do for social justice? Perhaps Lahiri’s frustration is on both counts. First, this is an imperial project and you hear this very often—Subhash Kashyap, a scholar who has written much on the Constitution and on India’s Parliamentary system, said that the Constitution of India is 75 percent the same as the Government of India Act 1935, which is why Rau’s work is even more interesting because turns out the same person was involved in both. In some ways, Rau ’s involvement in the 1935 act was as extensive as it was in the 1950 constitution. The argument is that there is a great deal of continuities between the two laws. You could say that well, even if you want to go with this quantitative analysis, you’ve got to think of what is new. What is new in our constitution are the chapter on citizenship, on fundamental rights, on the judiciary, as well as the birthing of the election commission and various other institutions that seek to safeguard our democracy. These were not there in the 1935 Act. The 1935 Act had a very different notion of federalism. The 1950 constitution brings in a very different understanding of federalism.

Today if you look at the country, it’s not just protests. Think of the various state legislatures which are trying to pass resolutions against the CAA. It’s not clear whether this would have met with the approval of the framers, but we are not bound by what the framers did. However wise they were, they lived in the 1940s, before the invention of the internet, of social media, and had sensibilities which will seem quite regressive today, such as on issues of LGBTQ rights. So we can pay respect to their choices, but we have to make choices for our time, based on our circumstances. So that federalism may not be appropriate for today’s time. And maybe there’s a way in which we need to think about ‘what if you’re a state legislature and you find a central policy, for instance GST, oppressive and against your mandate’. You are also elected leaders at the state level, this constitution gives you many responsibilities, so are you all beholden to whoever is in power in Delhi or can you in Mumbai and in Pune exercise democratic power as elected representatives of the people? So those are the questions I think come up in today’s context.

Our Constitution picks and chooses from many places. To be cosmopolitan and to be a patriot are not antithetical. I can be both, very proud of where I come from but also take the best from the rest of the world. Today we are being forced into one or the other. If you’re cosmopolitan you’re somehow anti-national. Yet many in the framing generation were multilingual—they could speak in their mother tongues and also in English, and sometimes also in Hindi. Some were scholars of Sanskrit, Urdu and Persian while also being trained in English and Western science. Our current lot of parliamentarians fare very poorly when it comes to even knowledge of our own culture compared to that generation of people, many of whom had been trained in their cultural traditions—much more so than we are because we’ve been subject to our post-independence educational system which doesn’t really allow us to enrich that in the way earlier generations did.

As to the question about NG Ranga’s view. I am afraid I am not aware of this, and I don’t know enough to respond properly. I will say that there is a long tradition of welfare which has historically argued that State power should be used to bestow privileges on those who are economically weak, regardless of other identity markers. In some ways, this is also the rationale behind the EWS quota that was brought in recently. I don’t think the idea itself is new. The idea was, and this goes to the social justice question, that the constitution should aspire for a society where social justice is provided to all irrespective of any other caste, creed. But I brought up the Sachar Committee for a reason. The Sachar committee, which is a committee headed by one of the most respected High Court Chief Justices of this country and also included seasoned academics and social scientists, affirmatively came to the conclusion that 55 years after independence, one particular community in our country is doing much worse than several other communities. So how are you secular and open minded to people while also acknowledging that some people in our society have it worse than others? It’s an old dilemma—the framers came upon it in a certain way. As I suggested to you, maybe the decision they reached on how to address it may not have stood the test of time very well, and in our time, we need to think about which of our communities are failing or who we are failing and what do we need to do for them. So that’s certainly a very live question to think about.

The question on 370 and demonetization: my own view is that both these decisions are pragmatically suspect, leaving aside the legal and constitutional questions for the moment. Whether something is unconstitutional is not for individual citizens to say. As a matter of law something becomes unconstitutional when the Supreme Court decides the questions and then decides it one way or the other. On Kashmir and Article 370, I have had time since August to educate myself more fully. The legal, constitutional and international law issues relating to Kashmir are enormously complex, and I am still trying to get a full grasp of them. The Supreme Court is supposed to rule on the legality of the actions of August 2019, and the issues involved should be carefully studied and debated. What is unquestionably problematic is the way the 8 million people of Kashmir are being treated since August 2019, where they have been kept under an extended lockdown, have been denied access to phone lines and the internet, and their political leaders have been detained under more draconian laws than are applicable in the rest of India. In my view, the legal issues surrounding Article 370 cannot now be understood in the abstract without considering how the legal changes in August 2019 were rammed through, raising doubts about the legality of the entire exercise. That is my view on Article 370.

But let me turn to the question of demonetization after remarking on the bizarre conduct of our Supreme Court–which was intended by the framers to be a custodian of the Constitution–during these last few years. What seems inexplicable, then, is the Court’s continued and inexplicable delay in hearing the important case relating to the legality of Article 370. This has become an altogether depressing but familiar pattern with the current Court, where it keeps issues in abeyance and refuses to rule upon them. This is the same pattern that was evident in dealing with the challenge to the legality of demonetization. The Supreme Court refused to hear the case, and made the policy a fait accompli. In the years since, several economists have published studies that show the impact of demonetization and there is an overwhelming consensus on the negative effects of the policy. Those who try and support the policy clutch at straws, and point to things that were not part of the official justification or motivation of the policy to justify it. The overwhelming view of demonetization among respected economists is that of an ill-conceived and ill-executed policy measure. I am inclined to go along with this consensus.

Question 5: 370 and 35 A go together, but 35A as such is not a part of our Indian Constitution, it is a part of the Constitution of Jammu and Kashmir. We are talking of process and method, I am not getting any information on the method and process that will give some correction to 35 A.

Question 6: You spoke about certain pros of the British rule in India, in particular the spread of English. Do you think Indians learning English would put them in a particularly beneficial position had the British not already colonized other parts of the world and popularized English and made it the norm?

Question 7. Thank you very much for the clarity of the presentation—it was articulate—and for the plural nature of your delivery because most of the times we look at comments on incidents and people as water tight compartments. However, as you said, one can be an excellent personality and have flaws and problems. The plural nature of your narrative was very good, thank you very much. It’s not a question, but a comment. Jaipal Singh was also I think married to one of the senior Constituent Assembly members, who was upper caste. There’s an episode in the third or the fifth episode of Shyam Benegal’s Samvidhaan where he storms out of the Parliament when somebody says ‘you are not a tribal actually’. Second, could you give some examples, one or two maybe, what were the radical inclusions in B.N Rau’s draft attempted which were later rejected by the Constituent Assembly?

Question 8. You talked about how the Constituent Assembly was representative, but my question is: Was it really representative considering the fact that the members weren’t actually elected by the millions of other Indians in the country?

AT. I’m very happy that we’ve also had students now voice their questions and opinions. I’ll be brief on 370 and 35 A. There is in fact a challenge to the constitutionality of 35 A which is pending before the Supreme Court. The case was actively heard in the two years preceding to 2019.

There’s a very good article by a young scholar called Zaid Deva, published in August 2020, in a journal that I am one of the editors of, called the Indian Law Review . Deva argues that the attempt to de-operationalise 370 is violative of the Constitution as it goes against the ‘basic structure doctrine’ which is the doctrine the court has evolved to test whether something is constitutional or not. He deals very carefully with how 35A came up, what is its history, etc. These are complicated things and I guess it’s one of the challenges if you as a teacher have to teach 35A: How do you go about it? I refer here to Principal Jayarajan’s paper on teaching constitution law where I think he notes that many of these questions are quite technical, and you have to do a lot of preparatory work before you launch into a discussion in class. So you have to think about what are the materials that students have access to earlier—if there’s a technical, legal interpretation, how do I find a scholarly account which helps explain that, before setting off a debate. The difficulty with debating is that if you don’t know the context and the background, then you’re just debating in a very superficial way because there’s usually a longer complex history. If it is a contested issue, you really have to unpeel it at several levels to get to it and for that you can’t just look at the text of the law. You need to understand the history of Kashmir, why the term sadar-e-riyasat is used, what is the Instrument of Accession and how is it to be interpreted, what did King Hari Singh say, when did he say it. It is actually a fascinating way to teach something because all these complexities come out with one issue and students understand that if they have to understand something this is what they have to do to get a grasp of it.

Moving onto the question about English language being the legacy of the British Empire. I didn’t set it out, this is the usual reason set out. When our previous PM Manmohan Singh got his doctorate from Oxford and Cambridge, in his speech there, he said—sparking off a firestorm—something like ‘on balance British colonialism was probably a good thing’ and in the list of things he set out, he mentioned the English language as well. But I would refer you to, if you want to look at a good indigenous debate, a fascinating exchange between Gandhi and Tagore on opposing English language which Gandhi did at a certain point in the 1920s as part of the nationalist movement. The letters have been put together by Sabhyasachi Bhattacharya in a fascinating little book titled The Mahatma and The Poet. I will say to you what Tagore eventually says to Gandhi, which is: 'You may dislike the English for what they have done to us, but there is no reason to dislike the English language. Having access to the poetry of the great English poets or the great English writers is an addition to world knowledge: why would you oppose that?' I’d ask you to go back to that debate, which is really fascinating in some ways. Gandhi’s position also has a lot of conviction behind it and he had his reasons for saying what he did, but the poet told him otherwise and my sympathy lies more with the poet. I should also point out Gandhi was also a journalist in English. It is remarkable that his collected writings comprise nearly a 100 volumes in English. He certainly was not taking the view that some contemporary Sadhus take: of speaking in a very garbled Hindustani and opposing English. It’s something for someone who already knows the language then to say that there’s a problem with its imposition. Durgabai is also another example. She was involved in the spread of Hindi in Tamil Nadu, but in the Assembly stood up and said you can’t impose Hindi on people who haven’t learnt it. That’s what I would say to you.

About Jaipal Singh. Thank you for noting the detail about him, which makes him even more intriguing. I hope that others will mine the fascinating personal and political backgrounds and histories of these complex historical characters, about whom we still know so little today. Which takes me to the question on B.N. Rau ,who is perhaps finally getting the measure of recognition that is due to this significant historical figure.

Your question was on the radical measures Rao introduced. One of the things that Elangovan talks about is Rau’s role in formulating the Directive Principles. The way Samvidhaan presents it is that he was a lawyer and he argued that they should not be made justiciable. He was one of the people along with Ambedkar and Alladi Krishnaswamy Iyer who also said ‘make directive principles judicially not enforceable’. One of the things to think about India today is how poorly we do in the Human Development Index. So, I certainly don’t think we are a super power if we haven’t sorted out roti kapda makaan issues for most of our populace. I don’t think we should be aspiring for a seat at the UN or buying jets for the PM for 8000 crores. I think that money should be better spent on providing access to human needs for the vast majority of our populace. I think that should be the priority. Rau had precisely that goal in mind. Until I had read Elangovan’s book, I also assumed, given his orientation, that Rau was a somewhat conservative but remarkably talented man. That also comes from several works which paint him that way.

When you read Elangovan’s biography, you realize that Rau really wanted to look at the issue of development and in a way the directive principles are also a way to get to that development which he felt was absolutely required. He said freedoms are good, we absolutely want that, but what we really need to target is the deprivation of the masses in India. To me that was a revelation. If you look at his background, he had served all over British India. He deeply felt that there has to be something you have to do about protection of minority rights and he had fairly novel ideas about how do you protect the rights of religious minorities which were eventually discarded. So I would recommend Elangovan’s book to you to find out about that aspect as well.

Coming to the last question, it is a very good question, which anyone dealing with the Constituent Assembly has to grapple with. The question goes to the legitimacy of the Assembly, given that it was not a body for which stand-alone elections were held. The Congress actually had a longstanding demand in that respect, and what happened was a reverse of that longstanding stance. They started thinking of the Constituent Assembly fairly early and had asserted that there will be an election based on the principle of universal adult suffrage to elect members of the Constituent Assembly. But when the Cabinet Mission recommended that an Assembly be formed in 1945-46, the Congress realised that there wasn’t sufficient time to go through the process of a newly constituted Constituent Assembly. There simply was not time prepare the electoral roll, and conduct an election based on the principle of universal adult suffrage. Given this, the Congress abandoned its insistence on having a CA be elected and accepted the proposal of the Cabinet Mission to go with a body that had been indirectly elected. As it turns out, Nehru was aware and worried about the legitimacy issue, and wanted the first General Elections in free India to be conducted soon after the adoption of the Constitution, so as to obtain retrospective legitimacy for the adoption of the Constitution. However, in this, he was opposed by Sukumar Sen, who insisted on doing the careful preparatory work for putting in place an electoral roll for the largest electorate in the world. Ornit Shani tells us that Nehru yielded to Sen’s firm but insistent demand that India’s first general elections be delayed till all necessary steps were in place. The elections were eventually conducted in 1951-52, and were a success. In the context of what I said about dominant leaders insisting on having their whims and fancies be converted into official policy in our time, this is a great example of a popular leader deferring to the views of an administrator, and will hopefully be emulated again in India.

I should note that there was also the option of having the Constitution ratified by the people of India as a whole, which was also not considered by the Indian framers. Having direct elections to constitute an Assembly and then having the final product ratified is, according to constitutional theory, a sure-fire way to cement the legitimacy of a constitutional text. Yet, history is littered with constitutions that went through such processes but did not survive for long. By contrast, India’s constitution has endured and is generally regarded a success. Some scholars have noted, by the way, that the huge mandate that Nehru secured in the first General Elections could be interpreted as a form of ratification of the Constitution which continuously provided the inspiration and content of many policies for Nehru’s government. Yet, I do not want to fully adopt this logic, for it gives too much importance to elections over and above other issues. As Ram Guha reminds us continuously, elections alone do not determine the health of a nation or a democracy. There are other measures to assess the health and success of a nation and its constitution. The work of the framers who met in the Indian Constituent Assembly has achieved great notice and appreciation from observers outside for the content, values, institutions and principles of the document they created: the Constitution of India. The people of India have repeatedly shown their commitment to those values at pivotal times in our nation’s history. And as I speak to you now, in February 2020, people around the nation are gathering together, reading out the Preamble to the Constitution in large groups, and are showing by their actions and numbers that the Constitution is something that they are willing to sacrifice and be arrested for. This substantive endorsement of the Constitution by millions of Indians surely means more than any formal mechanism to assess its value and significance.

It has been a pleasure interacting with you, and collectively discussing the importance and details of this document upon which rests so much of our collective future. Thank you very much for providing me this opportunity.

* Professor of Law, School of Policy and Governance, Azim Premji University, Bangalore. This is an edited and modified transcript of the talk originally delivered in February 2020. I thank Vibha Swaminathan for her excellent editorial assistance in finalizing the transcript of this talk.


Arun K. Thiruvengadam is a Professor of Law at the School of Policy and Governance, Azim Premji University, Bangalore. He holds degrees in law from the National Law School of India University, Bangalore and New York University School of Law. Between 1995-97, he worked in the Indian Supreme Court as a law clerk to Chief Justice A.M. Ahmadi. He has since worked as a litigator before the High Courts of Madras and Delhi and the Supreme Court. In his academic teaching and research career, he has focused on Indian and comparative public law, regulatory law and law and development. He holds current visiting teaching appointments at the University of Zurich (Switzerland), the Central European University (Hungary), and the City University School of Law (Hong Kong). He has previously taught at the Universities of Toronto (Canada), Trento (Italy), and the National University of Singapore.

He is the co-editor of Emergency Powers in Asia (Cambridge University Press, Cambridge: 2010), Comparative Constitutionalism in South Asia (Oxford University Press: Delhi, 2013) and the author of The Constitution of India: A contextual analysis (Hart/Bloomsbury UK: London/New Delhi, 2017). His most recent co-edited volume is Amartya Sen and the Law (Routledge USA, Dec 2019).

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