Image by 🇸🇮 Janko Ferlič



Updated: Nov 23, 2020

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

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.