This talk was delivered as part of the 5th annual History for Peace conference, The Idea of the Indian Constitution in July 2019.
This is a particularly interesting time to talk about the Constitution. Before we go into why, it is important to start with an acknowledgement which is not made as often as it should be: that for large parts of our country and for large numbers of its people, the gap between the promises made by the Constitution and their lived experience is huge. You only have to look at all the places where the AFSPA has been a near-constant reality for a long time, and the significant areas of our country where what the Constitution promises is never converted into reality.
The difference we are experiencing now is: that gap is threatening to be extended to much larger parts of the country. Not far from here, in the state of Assam, we can see the chaos unfolding around the preparation of a National Register for Citizens along with the construction of a number of detention camps. NRC has been extended to the rest of the country. The gap between constitutional vision and practice is now in danger of overwhelming us all. So, what is to be done? One, to organize and communicate the values of the Constitution in a way that strikes a chord with every single citizen. And in this conference we have people who can teach us how to do that. But we must also attempt to understand anew what it is about the Constitution that makes it so integral to the vision of what we hoped this country would be, and what we think this country means.
Another, perhaps more important task, is to locate the Constitution and its values in the history of struggle for civil, political and social rights that predates it. It’s important for three reasons. One: if we understand the kinds of struggles that gave rise to the constitution, we can then use it in a way that is relevant to the struggles of today. If, say, we study the movements that took place in the first half of the twentieth century for equal access to public facilities led by Ambedkar (like the Mahad Satyagraha), the idea that social boycott is unacceptable in society and how that gave rise to Article 15 Clause 2, prohibiting discrimination in access to important public facilities like shops, hotels, etc.—we can then use that example to combat the kind of housing discrimination that Muslims face today.
So if we understand that there is a long history to this kind of discrimination, that people have stood up to in the past and struggled against, and that those struggles yielded a progressive constitution, it can help us to use the Constitution to face different yet similar contemporary struggles.
One critique that has always been present but has acquired peculiar force today:the Constitution is a foreign imposition on a citizenry that doesn’t really associate with those values; that it came from abroad and isn’t really Indian, in the true sense. Again, to understand the kinds of struggle that the Indians undertook in order to arrive at the Constitution can help us understand the many ways in which the Constitution is, in fact, rooted in the Indian experience.
What’s perhaps particularly important today is that such an understanding informs us that we are not alone in our struggle. For the moments that are dark and difficult, our history informs us that there have always been hard times. And during those hard times there have been similar struggles, with women and men coming together and articulating ideas of freedom, equality, democracy and struggling to make them real. This helps us position ourselves in a long tradition of struggle, and makes us realize that it is not just isolated individuals who are voicing certain concerns. We are part of a long history and we stand in continuation of that tradition. I think this is particularly important to assert at a time when a rhetoric has gained force that people who articulate certain concerns are somehow detached from the true Indian mentality.
It is because of all these reasons that it is important at this point to reaffirm and restate why the Constitution matters, and why it is a document that speaks to certain very important principles located in our history. And for that it is important to understand the ways in which the Constitution is a transformative document.
We usually think of the Constitution as a document that signifies a moment of rupture—it heralds the close of an old era, an old regime, and the inauguration of a new dispensation. Now, for some people, that’s all that the Constitution is—a transfer of power from one group of people who happen to be colonialists, British, undemocratic and foreign to a new group of people who happen to have been born in India that came into being at the moment of Independence. Nothing more. To substantiate this argument, a number of justifications is provided. One: the Constituent Assembly itself was a creation of the British Law, and its members were elected in accordance with the existing franchise regulations which were the product of British design. Two: as professor Rodrigues observed yesterday, as Ambedkar himself said in the Constituent Assembly, 75 percent of the Constitution was borrowed from the Government of India Act 1935. So, in what sense was the Constitution transformative or even original? And three, the most important and even valid critique: many of the constitutional provisions that were particularly contested during the freedom struggle, provisions about preventive detention, emergency powers, ordinances, in fact many of the issues that we are grappling with today, made their way into the Constitution without any change and despite vehement protestations in the Assembly that this effectively re-enacted the old British regime under a veneer of new legality.
So, then, the question is: If the very provisions that the nationalists struggled against continued into the new era with the mere promise that the new government would not misuse them because it was a government of the people, then to what extent is the Constitution truly transformative? I think that these are all strong criticisms, and while answering them it is important, as pointed out by Professor Rodrigues, to not reduce the text and vision of the Constitution to the nationalist movement led by the Indian National Congress.
As historians have pointed out repeatedly, the Indian National Congress, which was at the forefront of the nationalist movement, was in many ways a rather conservative organization. In many instances the Congress actively suppressed grassroots movements of organized labour, of farmers and so on in an attempt to retain a kind of hegemony over the freedom struggle and to give it a meaning that it could control.
So, if we equate the nationalist movement with the Constitution, then that road ends very shortly. I think a mistake we’ve often made and continue to make is to associate the Constitution with figures like Nehru, Patel, with the Congress, with the nationalist movement. I think the first important move is to detach the Constitution and the framing of it from that narrow vision.
That said: What do we mean when we say that the Constitution is transformative? In one sense, it was transformative because it transformed the relationship between citizen and state. The most important way in which it did so, and which we don’t recognize often enough, is that India was one of those rare countries which went from highly restrictive franchise to Universal Adult Franchise in one stroke. In his How India Became Democratic, Ornit Shani explains that this was a monumental achievement. If you read the Constituent Assembly debates, there are many members who said that it was too big a risk to give ‘illiterate Indians’ the right to vote. Who said that we needed to do it slowly, incrementally, that we couldn’t just open it up for everyone. The reply to that was: that we need to take a leap of faith. That the entire freedom struggle was based on the idea of democracy in its deepest and richest sense. So there is no other way but to encode that now and provide Universal Adult Franchise.
With that and with the Fundamental Rights chapter, the Constitution transformed the relationship between the individual and the state from a subject population to a citizenry that has a role in choosing the government and exercising certain basic rights. But that is again a story that is common to constitutions all over the world—all Constitutions to an extent attempt to alter the state and the individual’s relationship, there is nothing particularly radical or new about that.
But there was one other sense in which the Constitution went beyond. Unlike in the Western countries where the state was always seen as the locus of oppression and a fundamental threat to citizens’ rights—which is why the state dominates the imagination of Western constitutionalism for the longest time—in India we knew that it wasn’t only the state which was a threat and which had the power to stand as a barrier before individuals but that organized groups and communities and even society itself could be an engine of oppression. So groups such as caste, religion, family—these organized groups had the power to effectively deprive individuals of certain basic rights and dignity. Therefore any Constitution that attempts to rewrite the political and social structure has to take into account this reality and consider that fact that individuals have to be free not just from state oppression but from the oppression of communities as well.
That is why the Indian Constitution has certain very unique provisions. Article 15 Clause 2, for example, talks about non-discrimination in access to shops, hotels, wells, bathing ghats and so on. It came out of a reality in which caste was the basis for denying people access to basic facilities required for dignified existence. And the social and economic boycott was a weapon that was used to accomplish it was such that even without the state’s involvement the effect was no less serious. Article 17, that prohibits untouchability, came out of a very specific understanding of the way in which groups operate against other groups. Article 23, that prohibits Forced Labour, came out of a long struggle against begaar and associated forms of compulsion in the labour sphere.
So, in 1949, when the Indian Constitution came into force, it departed from the idea of the state being a dangerous leviathan from which we must protect the individual. It understood that there needed to be something more than that. That you need to restructure society itself and make it more egalitarian and democratic, and for that norms of freedom and equality have to percolate deeper and apply to relationships between individuals themselves, between the stronger individuals, groups and those who do not have so much power. That you need to basically democratize the private sphere.
So that’s the sense in which the Constitution was transformative and that’s why it continues to speak to so many of the issues facing us today. The manner in which this was accomplished was summed up by Ambedkar in his remarkable closing speech to the Assembly:
Political democracy cannot last unless there lies at the base of it a social democracy. What does social democracy mean? It means a way of life which recognizes liberty, equality and fraternity [the French trinity of values] as the principles of life. These principles—liberty, equality and fraternity—are not to be treated as separate items in a trinity. They form a union of trinity in the sense that to divorce one from the other is to defeat the very purpose of democracy. Liberty cannot be divorced from equality, equality cannot be divorced from liberty. Nor can liberty and equality be divorced from fraternity. Without equality, liberty would produce the supremacy of the few over the many. Equality without liberty would kill individual initiative. Without fraternity, liberty and equality could not become a natural course of things. It would require a constable to enforce them. [‘The Future of Parliamentary Democracy’, 25 November 1949]
What he’s saying here is that when you think of liberty, you think of the freedom the individual has against an oppressive state. We all understand that. When you think of equality, you think of the state’s responsibility not to discriminate against individuals on irrelevant bases like caste, gender, religion and so on. At the same time, fraternity is the bridge that links these two and ensures that these two values are not just confined to the actions of the state but that they also percolate deeper into the private sphere, into the relations of the family and caste and so on, where norms of hierarchy operate in their own different manner. So this trinity of values is what makes the Constitution transformative and is contained in the Articles I just mentioned.
I think that to truly articulate that idea, we need to go beyond the sterile debates around the framing of the Constitution and think about the broader canon. For example, in 1879, there was a text called Samya written by Bankim Chandra Chattopadhyay, that is not read any more. But it is a surprisingly radical text in which he actually argues for gender equality, caste equality and economic equality in ways that seem radical even today. For its time, that book was extremely influential. And if you look at the Constitution and its values, even though it’s not conscious and explicit, there is a clear intellectual trajectory that takes us from those initial arguments about getting over those ascriptive statuses and moves towards a vision of equality and what is finally found in the Constitution. We cannot think of the ideas of gender equality that are prevalent in the Constitution without taking into account the very public movement for suffrage and voting rights for women that was led by women and that articulated the idea of political equality in the public sphere. We cannot think of freedom without listening to the speeches of C.R. Das or Motilal Nehru who castigated the very idea of arbitrary executive powers and what it did to individual rights. And of course we cannot even begin to think of social justice, of the constitutional provisions of reservation and other such substantive justice provisions, without remembering the entire history of Dalit movements culminating in very public articulations of civil rights like the Mahad Satyagraha and so on.
So if we locate the Constitution in these broader struggles for these ideas of liberty, equality and fraternity, we can understand the many ways in which it is meant to speak to those kinds of injustices, those kinds of inequalities and understand the ways in which we can fashion it towards a transformative end. This way of reading and understanding the Constitution was summed up in a particularly beautiful way by the great civil rights advocate, K.G.Kannabiran, who in a book called Wages of Impunity, says that a Constitution framed after a liberation struggle or a struggle for independence is like poetry—it is emotion recollected in tranquillity. There should not be two social histories, one for political theorizing and another for legal theorizing. The people who met in the Constituent Assembly were not mere technicians who had gathered to prepare a handbook for running the government. They had participated in the struggles and, short of holding elections, every effort had been made to give the gathering a representative character.
Kannabiran argues that to understand the Constitution and its promise and vision, you need to look to the kinds of struggles that inspired it, struggles that were not limited to the dominant national movement and that often went beyond it. Far more radical in character, ultimately it is these struggles that, through Ambedkar and others, found their way into the Constitution, despite the dominance exerted by the nationalist movement and the Congress. So that is the way of reading the Constitution that speaks to its transformative vision.
I’ll end with an example of how this might work in practice. In the late 1970s, there was an actress in Andhra Pradesh called Sareetha. At the age of 17, she was married to a man called Venkata Subbhaiah though they never lived together. Five years passed and Sareetha became a popular actress, at which point Venkata suddenly woke up and realized that he was married to her and wanted to start living with her. And, of course, for obvious reasons she wasn’t that keen on it. So Venkata Subbhaiah moved the High Court, relying upon a provision in the Hindu Marriage Act, Section 9, called Restitution of Conjugal Rights which says that if either spouse has withdrawn himself or herself from the company of the other spouse without reasonable cause (reasonable cause being judged by the court), the court can pass a decree of restitution of conjugal rights, a decree saying that the spouse who’s been left is entitled to the company of the leaving spouse. This, of course, seems a very strange kind of provision and I’ll come to its history in a moment. So: Venkata Subbhaiah relies on this provision, and says that Sareetha has left him without reasonable cause. Fascinatingly, the Judge Justice Chawdhury who examines the case says that there is something fundamentally wrong with this provision, something opposed to basic constitutional values, and then strikes it down as unconstitutional for violating the fundamental right to equality and privacy. He argues that what a provision like this does is transfer the choice of certain very intimate and personal decisions from the individual to the state. The right to privacy includes the right to make fundamental decisions about one’s personal life without interference. And these decisions apply not just in the public sphere but also within social institutions like the marriage and family. And that is of course a radical position to take, especially in a place like a court room. So he strikes down this provision, and goes on to add that this provision operates to the detriment of women, because in our social structures marriage often requires women to uproot their lives and move their homes. So even though it is framed in neutral terms, its impact is discriminatory and therefore violates equality. This judgement comes out of nowhere—there was no expectation that this would happen. And it was overturned a year later by the Supreme Court. But the key question is: Where did this idea of fundamental right to privacy that exists not just against the state surveillance but also operates within the power structures of the family—where did that come from? What is the intellectual genealogy, lineage of that?
To understand that, we have to go back a hundred years to the 1880s where a similar case took place in Bombay. That case involved a woman called Rukhmabai who later became India’s first female practising doctor. Rukhmabai at the age of 11 was married to a man called Dadaji who was 19. They never lived together—she lived with her uncle who educated her and she went on to become quite well educated. Dadaji was pretty much what we would call a wastrel. At some point, he realized that, when Rukhmabai attained majority, she would be coming into a substantial inheritance, and so he suddenly wanted to live with her. So Dadaji filed a case for restitution of conjugal rights in the Bombay High Court, and everyone thought that it was an open-and-shut case because the law was clear, as were the facts. Fascinatingly, the single judge of the Bombay High Court, who was British, Justice Pinhey declined to grant Dadaji’s application and said that it was completely out of order, insupportable and made a passing reference to Rukhmabai’s consent and the lack of it in the present case. This judgement sent shock waves through Bombay and the larger country. There was an immediate backlash, and the accusation that this was an imposition by a foreign judge, that the British have conquered us politically, they’re superior in terms of arms so they are entitled to rule in the political domain but they can’t touch the inner life of the community, of the family, they have to leave that alone. Interference in those spheres is intolerable.
(This is an argument you hear throughout history. Consider the recent Sabrimala Controversy, where the argument was that the judges don’t understand the logic of the rule forbidding women from entering the temple between these ages . . .that they were imposing their own sensibilities and upon the believers of the true faith. The result: a two-judge bench of the Bombay High Court reversed the judgement and that little spark was lost.)
To return to Rukhmabai: she applied to Queen Victoria for a higher ruling, and then there was a settlement, and she got free, and studied hard and became a doctor, and it all ended happily apart from the judgement. That apart, one interesting thing that happened was that this case generated a backlash not only from a certain kind of conservative society that viewed it as interference, an imposition upon community life,and which articulated the community as a unit of concern, as a unit that had a right to claim its own internal autonomy. There was another kind of backlash that went the other way and argued for the rights of individuals and women specifically to liberty, equality and a kind of democracy within family structures.We don’t often hear or read about this because this entire discourse didn’t take place in the manner in which we often expect political theory to take place. So there wasn’t a book published on the lines of John Stuart Mill’s Subjection of Women or Mary Wollstonecraft’s Vindication of the Rights of Women. Because that’s the way we are taught to think of what political theory is. This emerged through memoirs, epistles, letters and other forms of communication that nonetheless made the point very clearly. So, for example, during the case, Rukhmabai wrote two letters to the Times of India anonymously—they were titled ‘Letters from a Hindu Woman’—in which she said that the kind of obstacles that marriage imposes upon a woman are of a degree and an order that are fundamentally different from the kinds of obstacles it imposes on men. This is an argument that is now very familiar—in the last 30 or 40 years, there’s been a tradition of theorizing on exactly this. But that was the 1880s, and that vocabulary of indirect discrimination, of patriarchal structures and so on was not as readily available as it is today. It had to be, in a sense, created out of the kind of experiences that were going on. Apart from Rukhmabai, you had a number of people, both men and women, who spoke about this and specifically used terms like ‘liberty of women in the family’, ‘equality within family structures’ and so on. In fact, the famous Jyoti Rao Phule wrote a piece which specifically talked about the authoritarian structure in the family. This is very interesting because we tend to think of authoritarianism as something that is state-imposed—an authoritarian state is one that stifles dissent and crushes pluralism, that deprives people of rights. And here we have that same concept applied to a very different context—to the private sphere.
That brings me back to my initial point: there was always an understanding, expressed in different ways, that we miss something of vital importance if we restrict our imagination in constitutional and legal terms of the ideas and norms of freedom, equality and democracy to merely the state. We have to find a vocabulary and a way of articulating the notion that the ideas of equality, freedom, democracy must apply with equivalent force to social structures like the family, community, caste, religion as so on. Of course, the people who articulated these views were in the minority, and mocked and ridiculed by the dominant conservative majority. So it’s not as if their movement immediately brought about a fundamental change in the way these issues were perceived. But that movement existed and it had influence. It is very interesting because one of the most famous and controversial lines in the Constituent Assembly came about when Ambedkar was responding to a number of queries about the constitutional structure. One set of queries came from the Gandhians who wanted India to be a number of decentralized village republics, where the village was the fundamental unit from which everything else flowed. Ambedkar sarcastically responds that the love of the educated Indian for the village is infinitely pathetic, and then he criticizes villages for being dens of inequity and so on, based on his own experiences of discrimination. Then Ambedkar says that he was very glad that the Constitution has adopted the individual as the basic unit of concern and not a broader idea like the community, the village, the caste and so on. What he was speaking to was the fact that the constitutional framers and the Constitution itself, given our specific history, did have the choice of making something like the family, village, caste or community a basic normative unit. Other constitutions have done precisely so, like the Irish Constitution which mentions the family as a unit of concern in its own right, not because the family helps the individual to have a sense of stability and community but because the family is, in its own constitutive sense, just like the individual—it is a rights bearer.
This could have been the route we took, but we chose not to. In the Indian Constitution, we do have minority rights—the Constitution does give rights to the minorities to establish educational institutions. But if you look at the history carefully, the idea behind that was not that groups have some sanctity just by virtue of being those groups, but that individuals need to be members of certain groups in order to live a full life. And that’s something that you see in the writings of communitarian philosophers throughout the world. The Constitution drew upon this dissident tradition that pushed back against this idea of the community being something sacred, the community being something the state could not touch because it had its own way of doing things. The Constitution made the individual the unit of importance, and that helps us to understand in a clearer light how the Sareetha judgement spoke to this long history, spoke to a transformative vision of the Constitution. Because, in that case, Justice Chowdhury rejected the idea that home or family was a space where constitutional norms couldn’t percolate. This was an idea that gained purchase in a lot of countries, the spatial idea of privacy where you have the home and the state stops at the threshold of the home because within that is privacy. This is something feminist scholars have criticised for years, because it completely leaves untouched what happens inside that space and the hierarchies of power within that space. Justice Chowdhury understood that,and drew upon this history to say that what matters is the extent to which individuals can exercise meaningful choices within what we think of as private spaces.And that’s something very important.
The same year, the same case comes to the Delhi High Court which went the other way. The Delhi High Court said that we cannot have cold constitutional law come into the warmth of the household—that would be like a bull in a china shop. So you have this idea of the house being a space of warmth, of shelter, and the law as something old, objective and detached which cannot come into the house. But we know that not every house is a space of warmth . . .
So we have one vision of walling off these private spaces from the constitutional norms of liberty, equality and so on, and another which goes the other way. My argument is that it is the latter which is truer and more faithful to the Constitution’s transformative character and to the history of struggle that preceded that Constitution. And our many efforts should be to resurrect that history, so that we can understand how the struggles of today are connected both to the Constitution and to a long history of struggle, of an articulation of these values, often at the insistence of people who we think are vulnerable and marginalized but who found and created a vocabulary for themselves, whose inheritors we are.
Question and Answer Session
Vanchi Nathan. I am an advocate from Tamil Nadu. Article 44 says the state shall endeavour to secure for the citizens a uniform civil code throughout the territory of India. Article 48 says the state shall prohibit the slaughter of cows. This is nothing but an idea of RSS. The imposition of Hindi is also constitutionally mandated. Article 25 (2) says that any reference to Hindu religion shall be construed as referring to persons professing Sikh, Jain and Buddhist religion, and the reference to Hindu Religious institutions shall be construed accordingly. What’s your take on how these Hindutva ideas were inserted into the Constitution? Under the Constitutional process, can I change my caste? SC said lower-caste people should not enter the sanctum sanctorum . . .
Bhatia. I think there are a number of points you have made and I’ll try and take them up separately. First, I completely agree that the Constitution has problems—it is a human document and any human document has problems. If you look at the constitution-making process, and if you look at the composition of the Constituent Assembly—in many ways, the progressive impulses of the Constitution were severely contained by the fact that many of the more radical proposals simply could not get a majority because the composition of the Assembly was conservative. The two articles you mention, 44 and 48, they’re actually in Part Four of the Constitution, the Directive Principles of State Policy which are unenforceable and that reflects a compromise between the Hindu Nationalists and the Secular Socialists. The idea was: ‘We need your support to pass the Constitution. So we’ll put your provisions in the part that is unenforceable, so you stay happy and let the Constitution pass.’ So I think you are completely right, the Constitution is a document forced out of a compromise between various factions and it reflects that compromise. That obviously means that there are many provisions that are antithetical to a transformative vision. The question then is: Taken as a whole, with all these flaws, is the Constitution something that can be rescued? Can we make of it something that is still worth preserving? You could have different answers for this, and if you think the answer is no then I completely accept that. That’s one thing.
I have views on the SC that are quite negative, so I completely agree with the criticism. But I also want to say the SC itself as an institution has always gone in different directions. You have this very interesting case that came 10 years before the Seshammal Case, the Dowoodi Bohra Case. The DowoodiBohras had this practice of excommunicating people. So if the Syedna of the Dowoodi Bohra excommunicates you, you can’t access the burial grounds, you can’t access the communal eating places and so on—it’s basically a civil death. The state of Bombay passed a law that prohibited excommunication. This was challenged as interfering with the right to practise religion. The Supreme Court upholds the challenge and strikes down the law. You have an amazing dissent in that case. The dissenting judge says: Look, the whole idea of the Constitution and these provisions ensure that these dominant groups of caste or community can’t just throw people out and make them into pariahs. So he upholds the law, and says that part of the Constitution’s purpose is to ensure that, within groups, there is equality. So within the same judgement you have, one the one hand, this conservative strand of thought that actually preserves the power of the stronger people within these groups at the expense of the more vulnerable; and on the other, you have a contrary view that says that the Constitution’s point was to do the opposite. Both these judgements root their articulations in the Constitution which, again, shows you that the choice is really up to us as to which of these visions are possible. Because the Constitution allows for both. So our job is to make our understanding the one which is accepted.
Regarding caste: it’s been uniformly bad. You have judgements which say that if a person from the Scheduled Caste moves from one state to another, then that person loses Scheduled Caste status and can no longer access the benefits which flow from that. You have judgements that say that if you convert to, let’s say, Christianity and reconvert, then you lose your caste status. From all these cases, it is clear that the judges don’t understand how these things work. And that too is unsurprising because the composition of the judiciary has been from a dominant caste to a large extent, so it’s hard to hope that there will be some deep understanding of these issues from experiential terms. I agree with a lot of what you are saying. There are problems but there is enough there to make the attempt to salvage it worthwhile.
Nathan. Does the Constitution permit one to change their caste?
Bhatia. It doesn’t say anything about that. See, in many respects, it wasn’t the Constitution that was supposed to answer many questions, it was the Parliament that was supposed to pass laws to deal with these issues. And of course it hasn’t. The Constitution doesn’t answer every issue—it remains silent on many.
Nathan. Is it possible to eradicate the caste system through the constitutional process?
Bhatia. The Constitution can enable it, it obviously can’t do it. The Constitution is just a document that sets out certain rights enjoyed by the people against the state and against communities. The Constitution cannot abolish caste, but it’s not a barrier to abolishing it either. It’s how we use the Constitution that can answer the question.
Shika Garg. You mentioned the case of Rukhmabai and how the people said the judgement was an imposition of foreign values. You also mentioned the case of Sareetha, and that the judgement went in her favour. What was the public opinion in that case?
Bhatia. There wasn’t any backlash as such, mainly because the judgement was overturned in a year. There were some articles written in EPW and Manushi and so on, but there wasn’t really a public upsurge to the best of my knowledge even though I don’t know the history of Andhra Pradesh that well. There wasn’t any national uproar as such.
Sadaf Khalid. I just want to clarify something. You said that Ambedkar, during one of the Constituent Assembly meetings, criticizes the educated Indian’s love for the village. I just want you to elaborate on why Ambedkar added so many points about the village and the rights of the people?
Bhatia. What I was highlighting was that Ambedkar was responding to some criticisms. The Constituent Assembly had a number of Gandhians who believed in Gandhi’s view that we shouldn’t have a Western style parliamentary democracy. Who wanted India to be a bottom-up society, where every village was a self-sustaining unit. They wanted a republic of villages. It was in response to this idea that Ambedkar made this remark. His basic point was: Look, you can’t efface the individual from this larger idea of the village—the individual and his dignity must be paramount. Ambedkar was drawing this idea from the fact that, in many of these places, individuals, especially Dalits, were being and still are being denied basic access to things. So is the context in which he said those things. The fact that the Constitution also decentralized government and the panchayat system came much later in the 1980s. That’s a different issue—it’s a question of governance, and it does not stem from the philosophy of the Constitution.
Abhishek Chakraborty. Don’t you think liberty and equality are in mutual conflict? The United States chose liberty over equality.
Bhatia. This is an issue on which books have been written. It’s a little difficult to answer this question in 2 minutes, but my short answer is: No. Because it entirely depends on the way you understand these concepts. If you think of freedom as effectively nothing more than the state not doing XYZ, then, yes, it is a problem. But if you think of freedom as something deeper, freedom as being able to do certain things, and not just interference, then that idea is completely compatible with and in fact depends on equality. So it really depends on how you understand freedom, and that requires a much longer discussion.
Audience member 1. Even Ambedkar said that political rights will not give enough to the marginalized, and emphasized economic right as a fundamental right during the Constituent Assembly debates. Why isn’t there a broader space for economic rights in our Constitution?
Bhatia. This is a question that has no definitive answer. If you look at the initial debates, Ambedkar prepared a draft bill of rights which would have enshrined socialism into the constitution. His draft had state control over national resources, means of production and so on. He talked about the fact that, so far, constitutional thinkers had only limited themselves to arguing that if you restrict the state’s power, then what remains is freedom. Ambedkarsaid that this was fundamentally wrong—that what it actually entails is the tyranny of the private employer, and that the Constitution should ensure that this tyranny does not happen. So he says all of that, but, somewhere in the middle, something changes. And in the final draft, all that is left out. Then you have the more left-wing members of the Assembly asking Ambedkar: You were so keen on socialism two years ago, what happened? Ambedkar says that it should be every generation’s choice to decide what economic system it wants. And, in any case, the Constitution is socialistic in its trends if not specifically so. What caused this change is hard to say. But what began as an attempt to draft a socialist Constitution ended in a Constitution that would enable socialism but that didn’t require it. But there’s no concrete answer to why that change happened.
Audience member 2. This is probably a late question but this whole balance of power that the Constitution foresaw and constructed into itself—how does it actually work? Was it a very idealistic notion? If the Legislative can, just by hustling numbers, amend laws that are so fundamental—the RTI Act, for example—then where does this balance of power stand? And what is the judiciary to do if the law is changed? Considering that this is such a mature and thought-through document, did the makers foresee this?
Bhatia. Well, Ambedkar had that famous line: we have made this constitution, and if it fails we have no one to blame but ourselves. If it fails, it will not be because the Constitution is flawed, but because men are vile. Ultimately, a Constitution can only say so much. There are certain norms which can preserve governance, but those norms have been subverted right from the beginning. We now talk about Karnataka and horse-trading and so on. In 1952, in Madras, you have a communist government which was elected to a large number of seats. But within a few months that government was broken by the Congress throughhorsetrading and defections and all that. So this has been the case right from the initial years of the Constitution, because there is a gap between the system the Constitution sets up and the people operating that system. You have the courts to make sure that gap doesn’t become too wide, but courts are also human and nobody who’s been seriously following the court will hold that view of it anymore. So that is the position.
Sambhaji Bhagat. Ambedkar said we made a temple but, before the Gods could reach it, the temple had been occupied by the demons. That’s all.
Bhatia. In an interview with Mulk Raj Anand, Ambedkar said: ‘I wanted to do a lot of things in the Assembly which I wasn’t allowed to. I was like a lamb in the Assembly. Now I will be like a tiger outside.’
Audience member 3. I want to add that Dr Ambedkar had asked Dalits to leave the villages because the employment opportunities they had there were dismal—they had to do all the dirty work. If they went to the cities, nobody would ask them about their caste and they would not have to remain confined within their traditional jobs. I just wanted to add this.
Saretha Samir. You were part of the Right to Privacy Judgement. And according to the case you just explained, you said that the state will stop at the threshold of the house. So how do you think things have changed from the 1970s? Is it possible for the state to enter the threshold of the house? What about the issue of marital rape which happens within the confines of the house—so what about the right to privacy issue there?
Bhatia. I should clarify that the Sarita case actually pushed back against this regressive idea of privacy stopping at the threshold of the house—it gave an alternative view, where privacy is about giving an individual the right to take intimate decisions for themselves without being coerced either by the state or family structures. So you have the state coming into the house and ensuring through the Constitution that doesn’t happen. I think the privacy judgement is very interesting because in the plurality opinion of Justice Chandrachud, he acknowledges the feminist critique of privacy in exactly the same way that you have just pointed out. And he says that the vision of privacy in the Constitution must take into account this critique. So I think the privacy judgement opened up the possibility of framing an idea of privacy that does not allow for these kinds of things to happen.
There is a challenge in the Delhi High Court to marital rape, the exception which relies upon the privacy judgement to argue that the understanding of privacy has changed and now includes the wife’s right to not be subjected to rape without it being statutorily accepted. We’ll see how that goes, but the privacy judgement actually provides a scope in a way that wasn’t there before.
Priya Krishnan. I just wanted to get an idea as to the circumstances under which the word secularism was inserted into the Constitution?
Bhatia. I think this was discussed yesterday.The word was introduced during the Emergency when Indira Gandhi amended the Preamble by force, so the word came in with the 42nd Amendment during the Emergency. The point was that three or four years before that,the Supreme Court, in the famous Kesavananda Bharati Case,had said that secularism is a part of the Constitution’s basic structure flowing from other provisions such as the freedom to worship, non-discrimination, equality and so on. So secularism as a word became a part of the Preamble in 1976, but secularism as a concept has been there from the beginning.
Audience member 4. You fought against the Aadhaar but it continues to be a mandatory formality that all of us have to follow. Despite the order by the Supreme Court, why are we still having to comply?
Bhatia. I think the Aadhaar Case was a textbook example of the fact that, when you have a powerful majority government that really wants to do something, the Supreme Court cannot stop it—it’s a fact we have to acknowledge, and the only way to stop that is through the political process. The Supreme Court can function well when you have a coalition government, it can function well when it is an issue that the ruling party has not made its core program. I think we have evidence over the last 8 years showing that the Supreme Court can pass any order it wants, but the government can simply not comply with it.
Gautam Bhatia is the author of Offend, Shock, or Disturb: Freedom of Speech under the Indian Constitution (OUP 2015) and, more recently, The Transformative Constitution (HarperCollins 2019). He was a practicing lawyer for four years in Delhi, and was part of the legal teams involved in the right to privacy judgment, the Aadhaar constitutional challenge, the challenge to Section 377 of the Indian Penal Code, and bail application for members of the Kabir Kala Manch, among others. His work has been cited by the Supreme Court on four occasions, and by the High Court of Kerala. He graduated from the National Law School of India University in 2011, and then read for the BCL and the MPhil at the University of Oxford (on a Rhodes Scholarship), and for an LLM at Yale Law School. Presently, he is reading for a D.Phil in Law at the University of Oxford