Constitutional Democracy In India [1st ed.] 1351375318, 9781351375313, 1315147831, 9781315147833, 1351375296, 9781351375290

Table of contents :
Introduction1. Constitutional Democracy in India: an ideational battle2. The British initiatives in constitutionalizing India3. Designing of constitutional democracy in India: the Constituent Assembly's inputs4. Indian Democracy: liberalism in its reinvented form5. Changing texture of Indian polity, the 2014 national poll and its aftermath6. Judiciary and Constitutional Democracy in IndiaConclusion

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Constitutional Democracy in India

Constitutional democracy is both a structure of governance and a way of providing an ideological perspective on governance. The 1950 Constitution of India established constitutional democracy in India and the narrative of the rise and consolidation of constitutional democracy in India cannot be understood without comprehending the politico-ideological processes that consolidated simultaneously both colonialism and constitutional liberalism. This book examines the processes leading to constitutionalizing India and challenges the conventional idea that the Constitution of India is a borrowed doctrine. A careful study of the processes reveals that the 1950 Constitution was the culmination of an ideational battle that had begun with the consolidation of the British Enlightenment philosophy in the early days of British paramountcy in India. The book therefore argues that the constitutionalizing endeavour in India had a clear imprint of ideas which had its root in this philosophy. The study reveals a striking continuity of the same kind of ideological sentiments when the nationalists devised their own constitutionalizing design, visible in the 1928 Motilal Nehru Report and which reappeared in the 1945 Sapru Committee report. Deviating from the conventional study of constitutional evolution of a polity, which is generally legalistic, this book explores the processes since the beginning of colonial rule in India which led to the conceptualization of constitutional democracy in a milieu engaging with arguments formulated by James and JS Mill. A detailed analysis of the roots of constitutional and political liberalism in India, this book sheds light on the material surrounding India’s constitutional development. It will be of interest to scholars in the field of Indian political theory, South Asian politics and history. Bidyut Chakrabarty is Professor in Political Science at the University of Delhi, India. He is the author of numerous books on Indian politics and Gandhi. His most recent monograph is Localizing Governance in India, also published by Routledge (2017).

Routledge Studies in South Asian Politics

  5 Poverty and Governance in South Asia Syeda Parnini  6 US-Pakistan Relations Pakistan’s Strategic Choices in the 1990s Nasra Talat Farooq   7 Public Policy and Governance in Bangladesh Forty Years of Experience Nizam Ahmed   8 Separatist Violence in South Asia A Comparative Study Matthew J. Webb  9 Pakistan’s Democratic Transition Change and Persistence Edited by Ishtiaq Ahmad and Adnan Rafiq 10 Localizing Governance in India Bidyut Chakrabarty 11 Government and Politics in Sri Lanka Biopolitics and Security A.R. Sriskanda Rajah 12 Politics and Governance in Bangladesh Uncertain Landscapes Edited by Ipshita Basu, Joe Devine and Geoffrey Wood 13 Constitutional Democracy in India Bidyut Chakrabarty

Constitutional Democracy in India Bidyut Chakrabarty

First published 2018 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 711 Third Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2018 Bidyut Chakrabarty The right of Bidyut Chakrabarty to be identified as author of this work has been asserted by him in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data A catalog record for this book has been requested ISBN: 978-1-138-55188-6 (hbk) ISBN: 978-1-315-14783-3 (ebk) Typeset in Times New Roman by Apex CoVantage, LLC

Dedicated to the foot-soldiers of academia

Contents

List of tablesviii Prefaceix Introduction

1

1 Constitutional democracy in India: an ideational battle

24

2 The British initiatives in constitutionalizing India

50

3 Designing constitutional democracy in India: the Constituent Assembly’s inputs

75

4 Indian democracy: reconceptualizing liberalism in a nonWestern context

100

5 Changing texture of the Indian polity: the 2014 national poll

126

6 Judiciary and constitutional democracy in India

158

Conclusion

193

Bibliography204 Index211

Tables

2.1 The division of administrative subjects under the Government of India Act, 1919 4.1 The poll outcome of the UP assembly elections in 2007 and 2002 5.1 Distribution of popular votes, 2014 5.2 Expanse of the BJP, 2014 5.3 Electoral performance of the Congress in different regions, 2014 5.4 Electoral performance of BJP and other contenders 5.5 Vote share in 59 Muslim concentration constituencies 5.6 Vote share in 85 reserved constituencies

63 123 128 129 129 143 147 148

Preface

Why does one write books, or, for that matter, scribble texts in the form of books? There are many reasons, though prominent among them are two: first, an author is instinctively inspired to deal with a theme of his/her choice or preferences. Usually, an author is drawn to pen and paper (nowadays, to his/her laptop or desktop) to articulate, in black and white, those ideas which s/he deems appropriate. This is fairly a common explanation of why an author writes. There is a second, equally important, reason. Being dissatisfied with the level of scholarship or quality of writing, an author takes up a book-project to show, in his/her own way, what should have been done. The concern here is to put ideas in a meaningful conceptual format. A challenging task indeed, this is an effort which is both exploratory and explanatory. Here the author appears to have been driven by his/ her search for a persuasive mode of explanation in a way which is analytically defensible and conceptually innovative. I was drawn to the history of constitutionalism in India after having gone through a book, published by a globally reputed publisher which was full of junk and also ‘misinformation’. What caused severe mental consternation was the fact that the book was meant for the beginners who just had begun studying the Indian constitution at the undergraduate level. So, I plunged into action to write a book on the evolution, nature and texture of the 1950 Constitution of India. I was also careful not to repeat the conventional ways of the study of constitutions by following the legalistic approach because that does not help us understand the ‘politics’ of how a constitution unfolds in conjunction with the constantly transforming social, economic and political milieu. In other words, my objective was to substantiate the argument that since a constitution is a living organism it needs to regularly reinvent itself to remain viable and meaningful also to the generations who hardly had a role to play in its making. I wanted to project India’s constitution as a two-dimensional entity: on the one hand, it is about a set of rules and regulations, governed by processes which are not static but transitional as they unfold in continually changing social, economic and political circumstances. There are also, on the other hand, institutions which are constitution-driven though they undergo changes in response to the metamorphosis in the milieu in which they are rooted. What it therefore entails is the fact that a constitution is a legally justified, ideologically persuasive and conceptually

x  Preface meaningful document which helps build a supportive mindset by also creating a complementary environment. This is a study of constitutional democracy in India in which, besides the Constitution, institutions upholding the values, norms and principles of liberal constitutionalism have received adequate attention. The purpose here is to delve into the contextual peculiarities shaping India’s constitutional democracy in a distinctive way which defies its classical liberal conceptualization. The unfolding of constitutional democracy in India provides us with powerful theoretical inputs to suggest that there cannot be ‘one-size-fits-in-all’ formulae or universal conceptual models of human behaviour since the context in which it evolves is undergoing relentless changes. A purposive theoretical effort, it will equip us also to forcefully argue that the conceptual designs based exclusively on derivative discourses, however persuasive they are, do not seem to be theoretically enriching presumably because of the inherent (and also obvious) weaknesses. Implicit here are two ideas operating at two levels which are critical in conceptualizing constitutional democracy as an organic system: at one level, the context plays a determining role in shaping the behaviour of the institutions which are integrally connected with its manifestations; at another, rather substantial, level, being an ideological construct, constitutional democracy unfolds in a particular fashion which needs to be understood with reference to the milieu in which it is located. Drawn on this fundamental theoretical pre-disposition, the task is both challenging and also driven by the concern for re-conceptualizing constitutional democracy independent of what derivative theories insist. The argument that the book offers does not seem to be entirely ‘unique’, but is certainly innovative since it seeks to comprehend the phenomenon by asking (and also responding to) newer questions which were never asked in the conventional mode of thinking. Writing a book is a joint-endeavour in which the role of the author’s family and peers is as important as that of the author him/herself. The idea of this book was broached in a number of seminars, held on various campuses across the continents. I am thankful to the participants who, by raising pertinent questions, made me think in a refreshing manner on some of the issues that figured in my talks. My doctoral student who is now a full-fledged academic in the field of public administration, Dr Prakash Chand, deserves special appreciation for being always supportive in procuring relevant texts and textual materials. Located at Stanford, my long-distance friend, Dr Aishwary Kumar eased my stress by procuring relevant articles in peer-reviewed journals as soon as I had asked for them. I also cannot forget the support that I had received from Dr DV Singh, the Delhi University librarian who sustained my academic creativity by getting those books which helped me build the core argument of the book.Urna and Pablo, my children, had always made their contribution in their distinct manners by never allowing me to undergo mental stress by being creatively distractive. Formalized by wedlock, my lifelong companion, Sanchita, despite not being exactly fascinated at my sitting at home before the computer for days, in and out, for writing books, had also had her share since it was her ‘not-so-favourable attitude’ to my ‘literary babies’that made me a determined soul to prove that what I am engagedin is worthpursuing. My

Preface xi Calcutta-based sisters, Mini and Tinku and their daughters Debiparna and Sreeja were always there whenever I needed them. The preface shall remain incomplete without warmly acknowledging the contribution of Dorothea (Schaefter) and her equally competent assistant Lily (Brown) of Routledge in bringing the book to public attention. I am a veteran Routledge author and the credit for this distinction goes to Dorothea and her colleagues in Routledge. I specially thank Dorothea for being so cooperative as an editor who always lent support to my effort towards engaging with the wider academic world by being a published author. Being drawn from my other Routledge books, Constitutional Democracy in India is a continuity with my earlier endeavours in fathoming the complex unfolding of Indian polity since the arrival of the British in India and later their withdrawal following India’s political freedom in 1947. One of my important sources of inspiration is my students who came in touch with me at the University of Delhi and various other campuses around the globe where I have had the opportunity to teach. Their interventions always remain instructive for me, and, in fact, I would have lost many battles which I had to fight because of my being ‘truly’ professional and ‘curt’ in calling a spade a spade without their standing by me regardless of the efforts of my detractors to size them up for their stand for fairness and justice. The book is for them, and if they are happy, I have nothing to crib.

Introduction

Constitutional democracy is both a structure of governance and also provides an ideological perspective on governance. As a structure of governance, it is driven by both codified rules and widely respected conventions, as in Great Britain; by championing the critical importance of demos in governance, it also reinforces a specific kind of ideological perspective on which the public decision making ought to be based. The idea is crystal clear: at one level, constitutional democracy upholds the importance of rules and regulations which are usually articulated in black-and-white terms in a constitution; at another level, it also entails the role of the demos or people in the making of these rules and regulations which generally evolve out of deliberations among themselves. There are two significant assumptions that seem to have been implicit here: on the one hand, constitutional democracy is about a form of governance in which well-established rules and regulations are generally privileged over personal whims and priorities of those who remain at the helm of governance; in such a system of governance, the importance of the demos can thus never be undermined, on the other hand, given their critical role in its constitution and replacement, if needed. The narrative of the rise and consolidation of constitutional democracy in India cannot be understood without comprehending the politico-ideological processes that consolidated simultaneously both colonialism and also constitutional liberalism. It was long-drawn processes which had their roots in the efforts of the British liberals who, in their zeal to ‘civilize’ India, transported a system of governance which, they felt, was complementary to the growth and consolidation of liberal democracy. The transition was not, however, smooth since there were Orientalists who did not seem to have been persuaded by their liberal counterparts because social disruption which liberalism was likely to cause needed to be avoided to maintain the British hegemony. There was a third group, led by Edmund Burke, who felt that liberals would succeed in transforming governance in India provided they transmitted the values of Enlightenment to India not by completely eradicating the indigenous counterparts, but by gradually creating a mindset in their favour. It was not an easy task though it was felt that, with political authority at their disposal, the British rulers had fewer difficulties. The idea was simple: in order to fulfil their mission, the representatives of Crown were required to adopt steps to transform the colony in accordance with those

2  Introduction principles, values and norms which transformed Britain into a liberal society. This was one of the objectives of the colonial rulers who were subservient to the commercial interests, as illustrated by the actual functioning of the government that they led in India. British colonialism was distinctly textured, unlike other European colonization, since it also allowed, of course, within limits, dissenting voices challenging its claim of being a harbinger of change in the colonies. This was one of the factors, along with the obvious discontentment of the colonized against being subjugated, which contributed to the consolidation of oppositional nationalist movements since the beginning of the British rule in India. Nationalism, or, for that matter, attempts at organizing political assaults on the British government by mobilizing the colonized around certain acceptable issues had emerged as an ideology which drew on some of the fundamental liberal ideas that flourished in Europe, particularly Britain. The argument is simple: although this is not completely justified to argue that British liberalism was the sole source of inspiration for the Indian nationalists, as history shows, there is, of course, substance in the contention that it also had a significant role in consolidating the nationalist offence against the British. What it suggests is the need to take into account the prevalent social, economic and political context while seeking to decode the nature of the nationalist movement; otherwise, the interpretation will lead us nowhere but to defend a narrowly conceived argument. The evolution of constitutional democracy in India shows that it was an offshoot of the efforts that the British liberals and their compatriots in India undertook by building those institutions which supported their ideological preferences. There were, of course, opponents; but their voice never became dominant given the hegemonic influence of Western liberalism. It was possible for the British liberals to sway India’s leading intellectuals at the onset of British colonialism presumably because it was hailed as ‘progressive and enlightening’ in contrast with decadent (and, of course, feudal) Muslim rule. It is therefore not surprising that both Rammohan Roy and Bankim Chatterjee welcomed the British rule as it strove to take India out of a politico-ideological system which was not only archaic but also debilitating for humanity. The trend continued though the nationalists created their own brand of nationalism which was a complex blending of the derivative European ideas and what they internalized out of the indigenous sources of inspiration. It was, in other words, a mode of opposition to colonialism which was distinctively nuanced and context-driven. Hence it is argued that constitutional democracy in India, despite its foreign theoretical roots, is neither completely derivative nor indigenous, but a unique conceptual articulation simply because it had evolved in a specific context out of contestations and accommodation of conflicting ideas and processes in case they were relevant. What is important is to remember that despite the fact that constitutional democracy struck organic roots in India in the wake of colonialism, it gradually became a significant part of the nationalist discourse in which liberal ideas were privileged in support of the institutions which were known to have upheld constitutional democracy.

Introduction 3

II The 1950 Constitution of India established constitutional democracy in India. It did not happen all of a sudden; the Constituent Assembly members deliberated on each and every provision for months together before they finally accepted the Constitution. The objective was to develop a protocol for coexistence with a specific grammar and tags to annotate some of the critical ideas that figure in the text. This apart, the liberal inputs from colonialism also remained critical in the evolution and also consolidation constitutional democracy in India. Hence an argument which does not seem to be overstretched is made by saying that underneath the liberal rhetoric of the 1950 Constitution of India remained the formidable impact of the British liberal discourse, being supported by the structure of governance, constituted by the Raj and affirmed during the course of the nationalist movement.1 This is a fair argument since India’s colonial experience confirms that constitutional democracy in independent India was a unique experiment in the global history of democracy showing how a typical foreign conceptualization of liberalism had acquired new features which were not there in its original form. What it also entails is also the claim that a conceptual category gets transformed in response to the contextual inputs. This can be substantiated by reference to the historical processes shaping British colonialism in India, which hardly remained the same as days passed on, as the following discussion shows. From the point of view of the growth of liberalism, British colonialism can be divided into two phases: colonial and imperial. These two phases cannot be segregated into watertight compartments because there are elements of both in both these phases; they are distinguished in terms of some of the dominant features that characterize each of these phases. While making this distinction, an analyst argues that the phenomenon and discourse of colonialism was ‘articulated and operated in terms of conquest and domination of the colonized in the name of national interests of the colonizing nation’ and was institutionally grounded in the institutions of authority, backed, largely, by bureaucracy, police and military.2 While the colonial discourse was an expression of brute force, imperial discourse was articulated and operated in ‘supranational critical juridical terms of justice, equity and impartiality, with the Crown-in-Parliament, the House of Lords, and the Supreme Court of India providing the institutional agency’.3 The impeachment trial of Warren Hastings that had begun in 1788 was a watershed in so far the colonial policies towards India were concerned: the phase before 1788 was identified as the colonial phase of British colonialism and what followed the impeachment had ushered in an era known as the imperial phase. There was a specific historical context, as Mukherjee informs, which brought about radical changes in the British policy designs.4 The rise of America as an independent polity following the defeat of the British in the American War of Independence and the failure of the 1773 Regulating Act to contain a corrupt administration that flourished at the aegis of the East India Company – were important reasons for the imperial discourse to strike roots. While the former established that a colony could not be maintained

4  Introduction by force alone, the latter proved that a mere adoption of a law was not always adequate to ensure justice unless it was complemented by a supportive mindset, especially among the rulers. This was the context in which Edmund Burke articulated the imperial discourse while defending the impeachment motion against Warren Hastings in the House of Lords for being involved in corruption, bribery, high crime and misdemeanours which ran counter to the fundamental ethos of the philosophy of Enlightenment on which the British suzerainty was based. Under no circumstances, argued Burke, could these foundational values be sacrificed because he strongly believed that as long as you have the wisdom to keep the sovereign authority of this country as the sanctuary of liberty, the sacred temple consecrated to our common faith, wherever the chosen race and sons of England worship freedom, they will turn their faces towards you. The more they multiply, the more friends you will have; the more ardently they love liberty, the more perfect will be their obedience.5 The concern here was to evolve a mode of collectivity which was not hierarchally structured between the colonizers and colonized, but to develop a socio-political compact drawn from those fundamental ideas, clustered around the values, norms and principles of Enlightenment. Contrary to the colonial discourse, which privileged brute force over principles, the imperial discourse upheld a set of ideas which, despite being rooted in a historical context, had universal application and validity. Burke’s argument operated at two levels: at a rather simple level, the impeachment was justified since Warren Hastings deviated from the wellestablished liberal values which needed to be protected against attempts to the contrary. At another, far more complex level, the effort was directed to substantiate the claim that these values were universal in character and application. In the imperial discourse, instead of subordinating one collectivity to another, empire was meant to inculcate the ideas of justice, fair play and humanism in colonies which were socially ‘backward’ and politically ‘less advanced’. By making an argument that these ideas were universal, Burke set in motion processes whereby they were ‘deterritorialized’, which means that notwithstanding their origin in Britain, they remained valid to humanity as a whole, and hence they could never be bypassed so long as humanity existed. The impeachment trial and Burke’s defence upheld that the notion of justice that was instinctively connected with the Empire was ‘inalienable’, which further confirms, as Mukherjee succinctly presents, that ‘the empire became the site of a deterritorialized universal justice that would rise above the national interests of Britain and serve as an impartial arbiter between the English colonial state in India and the colonized Indian society’.6 The idea was soon to be reversed with the articulation of a new defence for the Empire by James Mill following the publication of The History of British India in 1858 where colonialism was defended for its civilizing mission in the colonies. Unlike Burke, who couched his arguments in the universal juridical terms, Mill gave salience to the colonial discourse by insisting on the hierarchy of civilizations, a

Introduction 5 conceptualization defending the civilizational superiority of the colonizers over the colonized. These contrasting arguments, drawing on contrasting ideological preferences, are useful in understanding the trajectory of constitutional democracy in India since the major policy designs that the British government undertook had their conceptual roots in how colonialism had unfolded in India. What is critical here is the point that the colonial design of governance that finally struck roots in India put the colonizers in constant interaction with the colonized which paid dividends to the former since it (a) created a space for dialogue with the oppositional nationalists and (b) also allowed the constitutional means as an acceptable device to resolve differences. In other words, the constitutional designs, besides providing a structure of governance, also acted favourably in creating an environment for constitutional democracy to grow and be stronger in India which, the classical liberals strongly felt, was not, at all, conducive for liberal governance due to wellentrenched social, economic and political schisms defying commonality.

III Constitutional democracy in India is a liberal legacy. It evolved in the wake of colonialism and grew stronger in independent India. What is striking to note is the fact that despite their strong opposition to the British rule, the Indian liberals, including Gandhi, always argued for constitutional democracy since they felt that it was perfectly suitable for governance of a diverse country like India. The oppositional politics generally revolved around the negative impact and consequences of the British rule which was explained in terms of its failure to organize governance on the basis of the fundamental ethos of the philosophy of Enlightenment. By implication, it was felt by the nationalists that had the British rulers followed them, much of India’s agony could have been meaningfully addressed. One of the prominent exponents of this argument was Dadabhai Naoroji, who in his Poverty and Un-British Rule in India (1901) related India’s poverty to the drain of wealth from the colonized country to the metropole and to the liquidation of its indigenous industries. In his perception, the British rule in India could hardly be deemed fair if it is associated a drain of wealth by the colonial state. This was, according to Naoroji, un-British since it was contrary to the basic liberal idea of contributing to the establishment of an egalitarian society based on liberty, equality and fraternity. Being illiberal in its ideological preferences, the colonial government in India was thus, he emphasized, ‘un-British’, which was a powerful metaphor to identify those politico-ideological features of colonial governance which stood in contradiction with liberalism. Naoroji was appalled with the way the British government functioned in India to fulfil the partisan interests of those holding authority by defying the fundamental principles of liberal governance on which it ought to have been based. This was an unjust government because, instead of being justice-driven, it allowed the self-aggrandizing desires of the rulers by clearly defying the principles for which Great Britain was known to the globe. In other words, if the fundamental principles on which the British rule ought to have drawn its ideological inspiration were deviated from illiberal ideas, it would transform into a decidedly

6  Introduction un-British rule which was unacceptable, and thus a strong challenge to its continuity was legitimate. What it boils down to is a powerful and persuasive argument indicting not only economic imperialism but also questioning the claim that the British Empire was justified to ensure fairness in governance of India misgoverned by its native rulers. It was therefore a stern challenge and, at the same time, an endorsement of the core values of the Enlightenment philosophy on which the British rule supposedly drew its sustenance. In the similar vein, Gandhi during his sojourn in South Africa defended his opposition to the racist government there with the same argument, namely the government was illiberal in its attitude to the Indians. He was also convinced that the British rule in India was a clear distortion of the Enlightenment philosophy. Evolved over centuries of struggle against vested interests and appreciative of social virtues, benevolence, compassion and tolerance, the Enlightenment philosophy inculcated and also helped consolidate those basic values that were not only enlightening, but also critical to human existence. Gandhi believed that British liberalism, as a product of the Enlightenment tradition, had laid the foundation of representative democracy, ensuring political equality of citizens and also protecting certain inalienable human rights, regardless of race or ethnicity. Based on the three pillars of liberal creed – rationality, individual liberty and human dignity – British liberalism contributed to a certain variety of moral universalism. Consistent with its normative commitments to the citizens of the British Empire, liberalism did not endorse discrimination since it was contrary to the Enlightenment tradition, both in spirit and substance. This ideology of sameness seemed to have been crystalized from values that were integral to the conceptualization of the Enlightenment philosophy. There was a clear ‘disconnect’ between British liberalism and the unjust and exploitative practices in India given the Queen’s 1858 Proclamation which guaranteed equal rights to the Indians and their European counterparts irrespective of their locations. The organic roots of sameness in British liberalism informed the Empire and one of its fundamental tenets was ‘fairplay and impartiality of justice’. Gandhi also sharpened his attack on the political authority in South Africa precisely because Indians, despite being citizens of the British Empire, were denied fairplay and impartiality of justice. So, the Mahatma articulated and also defended his argument challenging the unjust British rule on the basis of ‘difference’ and ‘universalism’ of British liberalism, more or less in the fashion in which Naoroji conceptualized his notion of ‘unjust’ British rule during the moderate phase of Indian nationalism. By being positively receptive to liberal values, the Indian nationalists, barring a few because of their contrasting ideological preferences, appear to have championed them presumably because they seem to have been internalized by the latter. Their primary concern was to organize governance in India in accordance with those values, norms and principles that constituted the core of British liberalism. Conceptually, the claim was not unfounded, as TB Macaulay, while defending the renewal of the Company’s Charter in 1833 in the Parliament, categorically stated that

Introduction 7 the public mind of India may expand under our system till it has outgrown that system; that by good government, we may educate our subjects into a capacity for better government, that, having become instructed in European knowledge, they may, in some future age, demand European institutions [and] . . . whenever it comes, it will be the proudest day in English history.7 This statement is illustrative of two interrelated concerns of the British policy designers at the heyday of colonialism: on the one hand, the idea that it was incumbent on the British rulers to instil liberal values given their critical role in creating a system of governance drawing on them. So, it was an endeavour to justify liberal values as being superior and also appropriate to lay the foundation of liberal governance. They also knew that without building complementary institutions, much of their zeal for developing their chosen system of governance was likely to be defeated. Hence they also insisted, on the other hand, on the creation and also strengthening of institutions for realizing their dreams. It is thus argued that the fulfilment of the British connection with India involved then primarily nothing less than complete transformation of India’s culture and society; its outcome would be the creation of an India politically independent but one that embodied an imperishable empire of [British] arts, morals, literature and laws.8 A new discourse was thus sought to be created in which the Empire was justified as a means to universalize those ideas of the Enlightenment which are pertinent to the realization of liberty, equality and fraternity in their true substance. It could have been a strategic design since the coercive military tactics boomerang in the American War of Independence. Still, one cannot so easily dismiss the efforts towards constitutionalizing India because they not only set the ball rolling for constitutional democracy in India, but also created an appropriate ideological template to support the system which had no roots in the pre-British India. What is thus most significant to remember is the fact that constitutional democracy, despite being alien to India, rooted in the politico-ideological and conceptual design that the British liberals devised for the colonized,which gained remarkably in view of the support extended by their Indian counterparts. An alien discourse became organic in circumstances in which it was upheld zealously by the Indian liberals since it introduced them to a set of ideas which, they felt, were desperately needed to liberate India from institutions that were sustained by simple antiquity alone. Their enthusiastic endorsement of liberal ideas and supportive institutions also reveal that the Indian liberals had never doubted that liberalism was an adequately equipped politico-ideological instrument to radically alter the prevalent system of caste-driven hierarchy that rewarded individuals on the basis of patronage and status. A different system of thought which was also revolutionary, liberalism thus not only gradually expanded its sphere of influences; it also became an immediate reference point for the founding fathers when they engaged themselves in the

8  Introduction making of the 1950 Constitution of India out of fierce debates and deliberations in the Constituent Assembly.

IV Notwithstanding the critical importance of Western liberal ideas in conceptualizing constitutional democracy in India, the model of governance that Mahatma Gandhi had articulated was also an important reference point for the founding fathers.9 Not only did his conceptual construct receive adequate attention, it was also incorporated in the 1950 Constitution though with a rider since Part IV of the Constitution (enumerating the Directive Principles of State Policy) was made nonjusticiable. Nonetheless, these principles gradually became significant in charting out a specific course for India’s constitutional democracy. Despite being constitutionally non-enforceable, these principles grew in importance as the campaign for making India an inclusive society by devising means for social engineering challenging the age-old system of patronage and status based on caste and other primordial considerations. So, Gandhi’s inputs for specific kinds of constitutional designs cannot be bypassed. Gandhi was uncomfortable with the modern state. With his scathing critique of Western colonialism that engendered a powerful state in the wake of its expansive design, the Mahatma justified his argument for localizing the state. As he argued, ‘the state represents violence in a concentrated and organized form [and since] it is a soulless machine, it can never be weaned from violence to which it owes its very existence’.10 Being opposed to a well-entrenched state that was claustrophobic in character, he hardly wavered while arguing for the dismantling of a hegemonic state; in its place, he was always in favour of panchayats, which epitomized his ideas for participatory governance. His insistence on villagecentric system of grassroots governance disturbed his colleagues in the nationalist movement, especially BR Ambedkar who, as will be shown below, never appreciated Gandhi’s preference since it reinforced the same system of atrocities against the socially peripheral Dalits. Nonetheless, the model that the Mahatma evolved on the basis of his own understanding of the phenomenon remains very critical in conceptualizing efforts that were undertaken during the nationalist phase of India’s growing-up as a polity. As a student of India’s civilizational trajectory, it was natural for him to draw upon the past masters’ contribution in comprehending the idea of localizing governance in the mould of participatory democracy. It was also surprising for him that the idea was not novel because there were thinkers who upheld the idea of self-sufficient villages in order to understand their role parts of a wider collectivity. Whether the description was eulogistic is a different question; but the fact remains that when he began working on his model of local governance, he had adequate inputs to work upon. As the available literature shows there are multiple descriptions highlighting, if not glorifying, India’s village life as ‘an ideal form of collectivity’ that needed to be emulated to translate participatory governance into practice. In fact, what was hinted in these tracts was the presence of ‘inner vitality’ which sustained these

Introduction 9 ‘village republics’ over generations. Although Gandhi referred to Henry Sumner Maine’s Oxford lectures in the early 1870s, which were later published with the title Village Communities in the East and West (1871), while elaborating his idea of rural governance, there were two interesting tracts which also appeared to have influenced Gandhi to a significant extent given the way the idea was conceptualized and also expanded. Charles Metcalfe’s exposition of village communities in India and the description that Karl Marx had left seem to have provided critical inputs that had resonances, if not explicit references, in the way the idea was drawn out by Maine and Gandhi. So, it is perfectly in order to dwell on how Metcalfe and Marx delved into the idea of perennially sustaining village republics with hardly any significant changes in their nature. Impressed by their continuity over generations despite radical political changes, Maine argued that Indian villages gave enough conceptual inputs to Charles Metcalfe, a British governor who translated them in the form of a model which remains a constant reference point even today for those seeking to explain India’s unique village system. By attributing the continuity of the villages as self-sufficient units, he characterized them as ‘little republics’. In his conceptual universe, the village thus remains a fundamental unit of analysis; Gandhi was not in favour of ‘resurrecting old village panchayats, but the fresh formation of independent village units of swaraj in the context of the present day world’.11 So, on the one hand, the village was, for him, a space for articulating his idea of alternative governance by reference to the erstwhile village republics; it also provided him with an opportunity to craft a design for swaraj in consonance with individual freedom and dignity. In his views, the argument emphasizing selfsufficient villages being integral to the Indian polity in the past reinforces, rather persuasively, a perception which was conducive to building a progressive future. The idea was unambiguously articulated in a 1931 speech on the future state of India; at Chatham House in London where he argued the point by stating that [p]rinces will come and princes will go, empires will come and empires will go, but this India living in her villages will remain as it is. Sir Henry Maine has left a monograph, The Village Communities of India [sic]in which you will find the author saying that all these villages were at one time and are to a certain extent now, self-contained little republics [that] have their own culture, mode of life, and method of protecting themselves, their own village schoolmaster, their own priest, carpenter, barber, in fact, everything that a village could want. . . . These villages are self-contained, and if you went there you would find that there is a kind of agreement under which they are built. From these villages has perhaps arisen what you call the iron rule of caste [that] has been a blight on India, but it has also acted as a sort of protecting shield for these masses.12 Gandhi’s purpose of defending what Maine said about little village republics was to identify the factors which supported their continuity despite social and political upheavals. Since they were self-contained, they had hardly depended on

10  Introduction other for their sustenance. Being self-contained, these village republics thus became an alternative model of governance which was uniquely textured. Besides highlighting the vitality of these village republics, Gandhi quoted Maine also to combat ‘the image of civilizational inferiority’13 that was constantly being propagated to demoralize Indians. According to him, by referring to the persistence, Maine had shown to India and the world that the village life of India today was what it was five thousand years ago, which did not imply that Indians were barbarians. On the contrary, the writer had made it clear that the Indian village life had so much vitality and character that it had persisted all these long years and weathered many a storm.14 As is clear now, Maine’s conceptualization and elaboration of the little village republic enabled Gandhi to persuasively defend his claim that the village could be an autonomous space to wage an ideological battle against ‘the imperial discourse on the apolitical and static nature of Indian society’.15 The aim was to posit Indian villages as an intuitively constructed counter-point against the obviously prejudiced imperial conceptualization of India as being unfit for self-governance. With its emphasis on the self-constituting village community, Henry Maine gave a powerful voice to this claim. In an imperial context, it is thus ‘no accident that Gandhi repeatedly turns to Maine’s Village Communities in the East and West to support his claim for socio-political vitality of the Indian village’.16 It has a clear ideological purpose. As an analyst argues, The valorization of the village [by] Gandhi . . . was neither a simple evaluative reversal of a well-worn orientalist trope not merely a nostalgic plea for a return to a precolonial and therefore authentic India [but to figure out] the village as the site of autonomy [representing] a critical reconstruction and radicalization of the [prevalent] imperial discourse’ undermining India’s civilizational vitality.17 So, the glorification of the village by Gandhi was clearly ideological. Being critical of the hegemonic state, a line of thinking that he had initiated in the Hind Swaraj (1909), he found in the Indian villages a space to articulate his model of village-centric governance. The village thus became, in other words, an alternative space also to build a genre of thought which had reverberated in the ideas of Henry Sumner Maine. What is basic to Gandhi’s argument in favour of the Indian village system was the idea of community and its articulation in a wider social context. Like Nyerere and Mao, he was persuaded to believe that unless people are communalized by being appreciative of commonality among them, it would be difficult, if not impossible, to evolve a successful community. As activist-theoretician, Gandhi had found a means in the idea of ashram or communal farm. Similar to what had prevailed in the Victorian England, Gandhi insisted on the creating village as a self-acting and egalitarian form of collective existence, organized on the basis

Introduction 11 of collective ownership. Drawing on his firm belief that being together was an easy and also most effective way to build community, he thus built Phoenix Farm (1904), followed by Tolstoy Farm (1906a) in South Africa and later Sabarmati Ashram (1916–33) primarily to experiment with his idea of communal living which would ultimately lead to what he defined as ‘cooperative commonwealth’. They had emerged primarily in response to the difficulties that Indians encountered in South Africa, as Gandhi’s own description revealed. While accounting for the miseries that Indians had confronted, the Mahatma felt that Indians suffered largely because they lacked unity. In order to instil the feeling of being united, he thus suggested that they should be together physically to combat these challenges. As he further elaborated, There was only one solution, namely that all the families should be kept at one place and should become members of a sort of cooperative commonwealth. Thus there would no scope for fraud, nor would there be injustice to any. Public funds would be largely saved and the families of Satyagrahis would be trained to live a new and simple life in harmony with one another. Indians belonging to various provinces and professing diverse faiths would have an opportunity of living together.18 In order to bind the socio-economically disparate people together, the Phoenix and Tolstoy Farms took every step to create a milieu of communal living as perhaps the only and also effective option to counter state atrocities; they thus represented communal living in the real sense of the term. Hence ‘accommodation was shared, and instead of each settler cultivating a separate plot of land, it was decided that the entire acreage would be cultivated jointly to ensure more efficient production of larger crops, and to enhance the cooperative spirit of the exercise’.19 For Gandhi, the experiment was an opportunity to inculcate values conducive to a simple and non-materialistic life which was, he felt, necessary to meaningfully articulate the notion of cooperative commonwealth. As Gandhi confirmed, Indians will have on the farm, a noble life in place of the unclean and monotonous ways of town life. Moreover, what they will learn on the farm will prove useful for a lifetime. Indeed we have in the past that the Indian community would be well rewarded if it were to take to agriculture and would save the anxieties incidental to business. We have a heavy price for not recognizing this best of occupations.20 Out of such cooperation, Gandhi saw the growth of ‘a sort of republic’ [which was] self-sufficient in the necessities of life and democratically-governed: a nonviolent community founded on harmony and cooperation between its members’.21 Ashrams were not merely an institutional structure for cooperative life, but also articulated a way of life to inculcate those values which were useful for communal living. Seeking to build and also permanently instil the value of commonality for common well-being, his main concern was to create an environment where

12  Introduction men and women, rich and poor and also people belonging to different castes and regions could come together to form an organic community. Gandhi’s fundamental aim was to bring people together and ashrams were a useful tool. Here the ashram was a microcosm of Indian village life because it was based on the urge to live together in a common space and with common objectives. The idea was not novel as the ashram as an emotion-driven conceptual space is integral to ancient India. While in the ancient era, it was said to have evolved naturally, in the context of South Africa and India where Indians were victims of racial and colonial exploitations respectively, the ashram provided them with a space for creating an alternative voice and also challenge what was considered to be unacceptable. The ashram was therefore a site of organization and also protests in adverse circumstances. The above analytical account highlights two interesting ideas which are useful in conceptualizing Gandhi’s fascination for localizing governance. At one level, it was an ideological agenda with significant theoretical implications; at another it was a powerful alternative which immediately struck a chord with those fighting against the odds. The underlying thread of his argument is clearly Kantian since in Gandhi’s conceptual universe the individual and collectivity are dialectically intertwined. By way of popularizing the ashram at the micro level and the village at the macro level, Gandhi thus evolved a model of governance which was relevant to a context where the village was not merely a geographical notion but epitomized a conceptually innovative and ideologically appropriate category to meaningfully understand the differently textured Indian socio-political reality.

V Constitutional democracy privileges a constitution of governance which also guarantees its supremacy. Implicit here is the point that being a system which is committed to liberty, equality and fraternity, constitutional democracy upholds a principle of governance in which the vox populi reigned sovereign. The concern here is to ascertain the authority of the demos in regard to what is deemed appropriate for their well-being. Two processes seem critical here: on the one hand, it involves democratization of governance which underlines that governance is neither a prerogative of an individual nor a group of individuals nor it is hereditarily determined, but is constituted democratically by making people its mainstay. In its articulation of governance, constitutional democracy draws on institutionalized behaviour and processes, on the other hand, to restrict, if not rule out, the possibility of infringement in domains which are critical to the consolidation of the vox populi. This is an ideal condition. On occasions, the democratically elected government needs to bend or ignore established rules to realize important ideological goals which are also linked with public well-being. In view of this, the idea of discretionary authority gains credibility even in a constitutional democracy. Is this a healthy practice or is this detrimental to the core values of constitutional democracy? There is no conclusive answer to this question because it is situation-dependent.

Introduction 13 An analytical scan of the conceptual evolution of discretionary authority and powers makes a very interesting reading of how constitutional dictum and practices evolve in historical contexts.22 During colonialism, it was endorsed as perhaps a means to inculcate the spirit of Enlightenment in opposition to the prevalent feudal values and practices; discretionary authority was hailed as supportive of the so-called progressive or enlightened society. The idea gradually lost its relevance as colonial authority revealed its ugly face following the nationalist challenge. It was thus not surprising that the voice in the Constituent Assembly for granting discretionary authority to governor was very feeble because it, as Ambedkar worded, ‘smells of the torturous colonial administration’.23 Those who endorsed the argument for discretionary powers did so as a contingent measure which makes sense in view of the tumultuous conditions that accompanied the withdrawal of the British rule from India in 1947. Articulating the nationalist zeal for democracy, the 1950 Constitution did not seem to favour unconditional discretionary authority; it could be utilized if the situation so demanded. With the regular judicial intervention, the idea of discretionary authority and powers appear to have been refined further, as the above discussion demonstrates. The most revealing statement here is that of the 1994 SR Bommai judgment of India’s Supreme Court which, by reassessing the idea and also the arguments for discretionary authority in the context of India’s constitutional democracy, left no ambiguity in this regard by underlining that since it is contrary to the fundamental ethos of democracy, it is neither legitimate nor constitutional. The claim that discretionary authority can also be a shield for democracy does not seem to have been borne out by India’s recent constitutional practices. Examples abound. In the name of protecting the Constitution and its concomitant values, the constitutional authorities, the president, or governors did not always, as evidence shows, display constitutional sagacity, as was expected of them. On many occasions, the judiciary intervened and the trespassing of constitutional authority was halted. A careful study of a series of judicial verdicts challenging ‘the injudicious’ application of discretionary powers by the constitutional heads however directs our attention to the vibrant nature of India’s democracy. Discretionary authority is not shackle-free; instead, it has to pass through the constitutional checks and balances which the judiciary reinforces in many judgments for sustaining India’s constitutional fabric. Fundamental here is the idea that neither the constitutional ‘bosses’ are immune from judicial scrutiny nor are their acts endorsed as legitimate by virtue of holding constitutional positions. The discussion on discretionary authority shall remain incomplete unless a caveat is placed before the end. Despite the fact that India’s judiciary and the prevalent political processes do not generally endorse discretionary powers and authority, there have hardly been attempts to frame guidelines for the exercise of discretion. In fact, the Supreme Court has consistently been resisting this endeavour24 though it did justify discretion as an acceptable practice which made a commentator accuse the Indian courts of being ‘inconsistent in their approach’.25 Although definite guidelines are absent, there are however unambiguous inputs in various judicial pronouncements which are adequate to evolve certain acceptable

14  Introduction directional denominations in this regard. First and foremost, the courts, especially the apex court, appeared to have privileged the political implications of indiscriminate utilization of discretionary authority and powers on the democratic health of the polity; the judgments left no ambivalence in suggesting that it is an unhealthy practice in so far as democracy is concerned. However one should not lose sight of the context in which constitutional authorities like the president or the governors seem compelled to resort to discretionary authority to save the system from being jeopardized. By retaining the authority of ascertaining justiciability or otherwise of discretionary acts, the court seems to have forewarned the constitutional authorities of the consequences in case they deviate from their constitutional obligations while discharging their constitutional roles. This is a two-way check: on the one hand, by insisting that discretion needs to be justified as unavoidable, the court provides a self-restraining device; by saying that the act of discretion is open to judicial review, it subjects, on the other hand, the very act to further questioning. Implicit here is the idea that (a) discretion needs to be understood with reference to the context and (b) it is thus not absolute in nature but relative to the circumstances. And, there is no other example than the complex unfolding of discretionary authority and powers in India which amplifies the contention persuasively by drawing on the contextual peculiarities on which they evolve. An outcome which is simultaneously a process, discretionary authority in a specific constitutional set-up is thus not just a constitutional but a political issue identifying both the strength and weaknesses of a democratic system: indiscriminate use of discretionary powers is symptomatic of weaknesses while the systemic resistance to it upholds its strength.

VI Parliamentary federalism that has emerged in India is a unique hybrid system of governance in which the apparently contradictory tendencies are sought to be managed. What has emerged in India during the course of more than half a century does not correspond with any of the classical models of government. Indian political structure is neither strictly unitary nor purely federal; it is a form in which the elements of both are traced and evident. Distinct from the classical types for obvious reasons, the Indian political system offers a unique model drawing upon both the British tradition of parliamentary sovereignty and the American federal legacy in which regions seem to be prior to the centre. This is an essentially a hybrid system of governance that has emerged due to a peculiar unfolding of socio-political processes in the aftermath of India’s rise as a nation state. Parliamentary federalism is therefore not merely a structural device for distribution of powers between different layers of government; it is also an articulation of a basic philosophy accommodating diverse regional interests in the name of a nation. The hybrid system combines two classical models: the British traditions, drawn upon parliamentary sovereignty and conventions, and American principles upholding the supremacy of a written constitution, the separation of powers and judicial review. The two models are contradictory since parliamentary sovereignty and

Introduction 15 constitutional supremacy are incompatible. India has distinct imprints in its constitution of both the British and American principles. In other words, following the adoption of the 1950 Constitution, India has evolved a completely different politico-constitutional arrangement with characteristics from both the British and American constitutional practices. The peculiarity lies in the fact that despite being parliamentary, the Indian political arrangement does not wholly correspond with the British system simply because it has adopted the federal principles as well; it can never be completely American since parliament in India continues to remain sovereign. As a hybrid political system, India has contributed to a uniquely textured politico-constitutional arrangement, described as ‘parliamentary-federalism’ that emerged in Canada in the past.26 Based on both parliamentary practices and federal principles, the political system in India is therefore a conceptual riddle underlining the hitherto unexplored dimensions of the socio-political history of nation states imbibing the British traditions and American principles. This was, in other words, a hybrid political system, influenced heavily by both the British tradition and American principles. In trying to understand the current complexities and future prospects of the Indian political system, the emphasis on the European and American precedents cannot be adequate since the contextual peculiarities in which Indian federalism evolves remain a significant determinant. Hence it is necessary to conceptualize the historical logic internal to this process because India’s constitutional democracy was also an offshoot of her peculiar historical circumstances and socio-economic and cultural distinctiveness due to equally peculiar processes leading to her independence following decolonization in 1947. The Constituent Assembly paid adequate attention to evolve an appropriate system of governance by addressing India’s immensely diverse socio-economic texture. Due to peculiar historical circumstances, the consensus that emerged in the Constituent Assembly was in favour of a union with a strong centre. As early as December 1946, GB Pant, one of the important members of the Assembly, thus declared that The Constituent Assembly is resolved to set up a suitable republic for independent India. The recognition of the unity of India forms the cornerstone of this scheme. . . . The sentiment of unity will not be impaired in any way. That is first fundamental condition, as without it no constitution can be formulated and none can last for a day.27 Arguments were accordingly marshalled for a parliamentary form of government and the colonial experience was a constant reference point. In devising the unionstate relations, the founding fathers were influenced by the principles underlying the constitutions of Canada and Australia, which had parliamentary federalism, and the United States, which had a presidential system. The 1935 Government of India Act seems to have influenced the Assembly to a large extent though the 1950 Constitution was substantially different in spirit and ideology. As it finally emerged, the Constitution has important ‘federal’ features but cannot be characterized as federal in its classical sense. What it envisages is a unique document,

16  Introduction which is, as Ambedkar articulated, ‘unitary in extra-ordinary circumstances such as war and other calamities and federal under normal circumstances’. Hence, India is described as ‘a union of states’ where the union is ‘indestructible’ but not the constituent states because their contour and identity can be ‘altered’ or even ‘obliterated’. There emerged a consensus and the Assembly rejected a motion seeking to characterize India as ‘a federation of states’. While challenging the motion, Ambedkar sought to expose the logical weaknesses and practical difficulties of imitating aclassical federation like the US by saying that Though India was to be a federation, the federation was not the result of an agreement by the States to join in a federation, and that the federation not being the result of an agreement, no State has the right to secede from it. The Federation is a Union because it is indestructible. Though the country and the people may be divided into different States for convenience of administration, the country is one integral whole, its people a single people living under a single imperium derived from a single source. The Americans had to wage a civil war to establish that the States have no right of secession and that their federation was indestructible. The Drafting Committee thought that it was better to make it clear at the outset rather than to leave it to speculation or to dispute.28 As was evident in the discussion in the Constituent Assembly, the framers referred mainly to two traditions: the British and the American. But in the background was always a third stream – understandably down-played by Ambedkar and other members – the ideas of Reginald Coupland and KC Wheare, who appeared to have provided the foundational basis of the constitutional experiments in the British Dominions. It is, after all, to the 1935 Government of India Act that it owed not only the federal structure and the legislative acts, but also the continuance of the unified legal and financial systems, and such distinctive features as group rights, machinery for resolution of inter-state water disputes, state governors and Article 356. There had, of course, been strong opposition to the ‘federal’ provisions of the 1935 Act that envisaged the future accession of the princes, including the right of secession that figured unambiguously in the 1942 Cripps Mission proposals. The 1946 Cabinet Mission also endorsed the plan for a central government with very limited powers and relatively strong provinces having a considerable degree of autonomy with all the residuary powers. Despite inputs supporting a weak centre, the 1950 Constitution provided a scheme of distribution of power that was heavily tilted in favour of a strong centre. The decision to go for a strong centre at the cost of regional autonomy was perhaps conditioned by pragmatic considerations of maintaining national integrity that received a severe jolt with the 1947 partition. Hence the word ‘federal’ was deliberately omitted in the final draft of the Constitution. By accepting the ‘federal’ form, the framers gave ‘recognition’ to the multi-dimensional socio-political and geographical Indian reality. The debates in the Constituent Assembly show that the founding fathers took ample care in creating a constitutional arrangement which is ‘federal’ in a very

Introduction 17 specific sense. The system that emerged in India was hardly comparable with any of the prevalent federations. What was critical in their vision was perhaps the fact that federalism is not merely a structural arrangement for distribution and sharing of power between the federal partners, it is also a culture sustaining its very spirit. Its emergence and later consolidation in India is slightly paradoxical since it is the product of two conflicting cultures: one representing the national leaders’ ‘normative’ concern for India’s multicultural personality, shaped by its unique history and geography and the other underlining their concern for unity, security and administrative efficiency. While the former led to the articulation of federalism, as laid down in the 1950 Constitution,the latter resulted in the retention of the very state machinery, which consolidated the colonial rule in India. The net result was the articulation of a semi-hegemonic federal structure that drew largely upon the 1935 Government of India Act. Nonetheless, the federal system that supported unwarranted centralization of power appeared to be the most suitable alternative for nation building in India. No discussion on India’s federalism is complete without being engaged with the 1994 SR Bommai judgment of the Supreme Court of India. Opposing the Presidential proclamation, under Article 356 of the Constitution of India, for dismissal of state governments in Meghalaya, Nagaland, Madhya Pradesh, Rajasthan, Himachal Pradesh and Karnataka, the former Karnataka chief minister, SR Bommai, challenged the validity of the decision in the Supreme Court of India since it was contrary to the federal spirit of the Constitution of India. Being aware of the peculiarities of India’s federalism that evolved in a parliamentary form of governance in India, the apex court underlines that the organic federalism designed by the Founding Fathers is to suit the parliamentary form of Government and to suit the Indian conditions with the objective of promoting mutuality and common purpose rendering social, economic and political justice, equality of status and opportunity; dignity of person to all its citizens transcending regional, religious, sectional or linguistic barriers as complementary units in working the Constitution without confrontation.29 Supportive of hybridization of government, the court justified federalism as an appropriate mechanism to realize the constitutional goals that the Preamble emphasizes. The Constitution was adequately equipped to protect the federal compact and the founding fathers, as the bench argued, took ample care to create a balanced structure of governance for the fulfilment of the politico-ideological aims that they so assiduously nurtured during their confrontation with the alien rule. Nonetheless there are provisions in the Constitution that privileged the union over the states,which is clearly an impediment towards establishing federalism in its true spirit and form. That India’s federalism is peculiar was, according to the apex court, contingent on the historical circumstances in which it evolved. Being an example of pragmatic federalism, Indian federal structure cannot be conceptualized in the form of classical federalism of the American type. One has to take into account the

18  Introduction historical antecedents and also the immediate socio-political instability following the 1947 partition of the country to meaningfully comprehend the so-called deviant features of India’s federalism. The bench thus stated that ‘federalism in the Indian Constitution is not a matter of administrative convenience, but one of principled outcome of our own historical process and a recognition of the ground realities’.30 The 1994 SR Bommai judgment will go down the history as a landmark event in history of constitutionalism in India for three important reasons;first, by reiterating that the exercise of emergency powers is permissible once the other constitutionally available options are exhausted. This has serious implications: on the one hand, it has now been made amply clear that the president does not have absolute power but enjoys, on the other, conditional power which can be exercised if the situation so warrants. Secondly, the verdict emphasizes the limitations within which Article 356 needs to work. As per the apex court, the presidential power is to be exercised sparingly since it is the last resort in cases where it is manifest that there is a complete breakdown of the constitutional machinery in the concerned state. Thirdly, by suggesting that the presidential proclamation is subject to judicial review, the court created a space for itself which is inviolable; in this case it concerned a basic structure of the Constitution of India. Under no circumstances can federal principles be bypassed or ignored because they are integral to India as a federal compact, the court held. Hence the 1994 SR Bommai judgment was a path-breaking decision in the consolidation of constitutional democracy in India.

VII The primary objective of the book is two-fold: (a) to understand how constitutional democracy evolved in India and in what context it emerged as perhaps the best option for the founding fathers when they got together in the Constituent Assembly to frame the 1950 Constitution of India; and (b) to conceptualize the phenomenon of constitutional democracy in India not in juridical terms but as a process that unfolded in a specific historical context in which the role of the colonizers were as critical as the colonized. By keeping these objectives in view, the book thus makes an argument suggesting that India’s constitutional democracy cannot be understood, let alone conceptualized, in either an exclusively derivative theoretical form or in a form claiming it to be purely indigenous since it drew on both derivative and indigenous sources of inspiration. The argument does not seem to be entirely unique though it will help us grasp the processes that finally culminated in a very distinctive form of constitutional democracy in India which hardly corresponds with any of its counterparts elsewhere in the globe. The basic point that the book proposes to make is how the politico-ideological form of constitutional governance emerges and gets consolidated in circumstances which, according to the classical liberals, never appeared to be conducive, if not, adverse to its growth and increasing importance. Implicit here are two important points of a fundamental nature: India’s constitutional democracy confirms, on the one hand, that there can hardly be a universal model or conceptualization to persuasively

Introduction 19 explain the distinctive characteristics of the organically designed politico-ideological form of governance; the steady growth of constitutional democracy in India also reinforces, on the other hand, the contention that it needs to be reinvented regularly since the context in which it is located is seldom static. In other words, for a meaningful understanding of constitutional democracy in India, it is incumbent on the analysts to be receptive to the constantly transforming socio-economic and political circumstances; otherwise, the efforts towards conceptualizing the phenomenon as organic to the prevalent milieu shall be entirely mis-directed, if not futile. Comprising six substantial chapters, the book delves into the processes leading to the evolution and consolidation of constitutional democracy in India. Chapter 1 focuses on the ideational battle that began with the arrival of the British rule in India. It shows that the insistence of the British liberals on constitutionalizing India was also a politically engineered device to consolidate the Empire; the strategy which was preferred following the British defeat in the American War of Independence paid off in India, as the history demonstrates. The ideas that the British liberals transmitted for constitutionalizing governance in India appeared to have been readily acceptable by their Indian counterparts, which created a legitimate space for them; their efforts yielded positive results because of the government support and also the support that the indigenous intellectuals extended to them for the rise of India as a constitutional democracy in the British mould. The chapter thus emphasizes that a persuasive understanding of the genealogy of constitutional democracy in India involves an in-depth study of the ideational battle that unfolded with the British initiatives for constitutionalizing governance in India. The grand ideas of the philosophy of Enlightenment became effective in creating a positive mindset since they were endorsed by complementary constitutional designs of governance. This is the core concern of chapter 2, which shows how these constitutional designs that were adopted by the British rulers evolved as organic to India’s governance in the wake of colonialism. There are reform schemes, beginning with the adoption of the 1861 Council Act, which introduced several legal steps to consolidate the empire by gradually opening up administration to the Indians. Not only did these parliamentary acts create those institutions for constitutional democracy, they also helped develop a mindset in its favour. The chapter also shows that constitutional democracy was a strategy-driven design of governance to bring under control the nationalist resentments against the British authority in India. By focusing on the institutions and their functioning, the chapter underlines the point that they fulfilled colonizers’ two goals: on the one hand, these institutions allowed the colonized to take part in governance, besides, creating a definite space, on the other hand, for constitutional democracy to grow in the colony. Chapter 3 is about the role that the Constituent Assembly played in consolidating constitutional democracy in India following decolonization in 1947. Apart from dwelling on the nature of the Assembly, the chapter delves into its structural distinctiveness and unique functional characteristics, which are illustrative of the point that it was neither imitative nor exactly indigenous in its texture and role. On the basis of a threadbare discussion of the debates in the Assembly, the chapter also substantiates the claim that

20  Introduction the format of constitutional democracy that the founding fathers finally adopted was the outcome of fierce contestations over their specific ideological preferences. Like any other organic political arrangements, constitutional democracy in India never remained static. With an in-depth analysis of the nature and texture of constitutional democracy in independent India, chapter 4 deals with how it evolved in different phases of her recent political history. The chapter makes the argument that India’s constitutional democracy, despite its roots in British colonialism, gradually developed itself as a unique system with organic roots to the prevalent socioeconomic and political milieu. Defying its classical conceptual exposition, constitutional democracy flourished in India in circumstances which were never propitious to its growth, let alone consolidation; and, yet, it became organically connected with India’s journey as a liberal polity, which is the concern of penultimate chapter of the book. Since elections are an important ingredient of constitutional democracy, this chapter deals with the 2014 national poll to argue the point that constitutional democracy was not merely a window dressing, but one, the root of which has gone deeper than one could possibly imagine. There is another point which is also being argued in this chapter, namely that constitutional democracy is an empowering design of political authority which shapes the vox populi in accordance with what the electorates, who are sovereign, deem appropriate for their goal fulfilment at a particular juncture of India’s political history. To argue that India’s constitutional democracy is too peculiar to be conceptually formed in a straitjacketed theoretical mould, the chapter also draws on the 2016 state assembly elections which reinforce the contention that the Indian voters’ electoral choice can never be predictable since it is articulated in rapidly transforming social, economic and political circumstances. The final chapter is about the critical role that the Indian judiciary plays in consolidating constitutional democracy in India. There are many landmark judicial pronouncements which not only provided newer justifications but also upheld constitutional democracy as perhaps the most appropriate system of governance for a strikingly diverse socio-economic reality like India. As a custodian of the Constitution, the judiciary fulfils a role that neither the executive nor the legislature can perform. This is therefore not surprising that, being the bulwark of India’s constitutional democracy, the judiciary is always hailed as an institution which needs to be protected to sustain democratic governance in India. Besides defending the argument that the judiciary is integral to constitutional democracy, the chapter provides useful inputs to help conceptualize the changing texture of the Indian polity in conjunction with the India’s transforming socio-economic and political milieu in which it has evolved. So, the chapter is not just an account of how the judiciary performs its constitutionally assigned role, it is also directed to show how it has contributed to the consolidation of constitutional democracy in India even in circumstances which were not exactly in its favour.

VIII Deviating from the conventional study of the constitutional evolution of a polity, which is generally legalistic, Constitutional Democracy in India is an attempt

Introduction 21 to understand the processes since the beginning of colonial rule in India which led to the conceptualization and also consolidation of constitutional democracy in a milieu which the classical liberals like the father-son duo James and JS Mill thought was simply not conducive. This appears to be a paradox of history because values of the Enlightenment philosophy which travelled to India in the wake of colonial rule evolved a space for those who were favourably inclined to Western liberalism in opposition to the prevalent socio-political ideas as they were archaic and backward-looking. By delving into those phases of constitutional democracy, the book also highlights that it was an outcome of an evolution out of the dialectical interconnection between the forces of colonialism and their nationalist counterparts. In other words, the concern is to understand the complexities of the processes in which contradictory ideological pulls and pressures did not seem to be uncommon. Fundamental here is an argument that the constitution and the institutional set-up that it proposes and finally builds up do not seem to be governed exclusively by ideational preferences, but grow organically once they are accepted by the demos as conducive to the fulfilment of a specific politico-ideological mission. As history has shown, constitutional democracy, a strategic colonial design, provided the British rulers with an instrument to effectively contain the nationalist agitation. In the process, the nationalists were also drawn to the system in such a way that they also articulated their protests in the same language as their bête noire, the British rulers. This was an interesting outcome which conceptually highlights that the nationalists, while opposing the colonizers, absorbed, if not internalized, the core liberal values which the British liberals transmitted as part of their so-called civilizing mission. Constitutional democracy, as it has flourished in India, is therefore not merely an institutiondriven structure of governance, it is also about an idea that the Indian nationalists utilized, to their advantages, while attacking the colonial rulers since they, by being deviated from the values of the Enlightenment, indulged in what they most cleverly defined as ‘un-British’ rule in India. In independent India, the most important bond that brings the disparate people together in the form of a community, however loosely knit, is constitutional democracy that evolves organically with her consolidation as a polity. The challenging task is therefore to unravel the processes leading to the rising importance of constitutional democracy in creating a national compact in India in circumstances which are not exactly propitious in the classical conceptualization of liberal constitutionalism. This is where Constitutional Democracy in India chips in for conceptualizing and also re-conceptualizing the phenomenon with reference to India’s rapidly changing social, economic and political milieu.

Notes 1 Thomas R. Metcalf, Ideologies of the Raj, Cambridge University Press, Cambridge, 1998, pp. 215–34. 2 Mithi Mukherjee, ‘Justice, war and the imperium: Indian and Britain in Edmund Burke’s prosecutorial speeches in the impeachment trial of Warren Hastings’, Law and History Review, Vol. 23, No. 3, Fall 2005, p. 595.

22  Introduction 3 Mithi Mukherjee, ‘Justice, war and the imperium: Indian and Britain in Edmund Burke’s prosecutorial speeches in the impeachment trial of Warren Hastings’, Law and History Review, Vol. 23, No. 3, Fall 2005, p. 595. 4 Mithi Mukherjee, ‘Justice, war and the imperium: Indian and Britain in Edmund Burke’s prosecutorial speeches in the impeachment trial of Warren Hastings’, Law and History Review, Vol. 23, No. 3, Fall 2005, p. 602. 5 https://archive.org/details/speechesofrighth02burk, the Works of the Right Honourable Edmund Burke, Vol VIII, Speeches on the Impeachment of Warren Hastings and Letter, George Bell & Sons, London, 1877, p. 217, accessed on June 18, 2017. 6 Mithi Mukherjee, ‘Justice, war and the imperium: Indian and Britain in Edmund Burke’s prosecutorial speeches in the impeachment trial of Warren Hastings’, Law and History Review, Vol. 23, No. 3, Fall 2005, p. 627. 7 TB Macaulay’s state is quoted by Thomas Metcalfe in his Ideologies of the Raj, Cambridge University Press, Cambridge, 1998, p. 34. 8 Thomas Metcalfe, Ideologies of the Raj, Cambridge University Press, Cambridge, 1998, p. 34. 9 The theme is elaborated in chapter 2 of my Localizing Governance in India, Routledge, Oxford and New York, 2017, pp. 69–104. 10 M.K. Gandhi, ‘The sarvodaya state’, The Modern Review, 1935, p. 412 – reproduced in MK Gandhi, India of my dreams, Navajivan Publishing House, Ahmedabad, 2006 (reprint), p. 80. 11 HM Vyas’s introduction to M.K. Gandhi, Village Swaraj, Navajivan Publishing House, Ahmedabad, 1962, p. xiv. 12 M.K. Gandhi’s speech at Chatham House meeting, October 20, 1931, The Collected Works of Mahatma Gandhi, Vol. 54, pp. 56–7 – cited in Karuna Mantena, ‘On Gandhi’s critique of the state: Sources, contexts, conjunctures’, Modern Intellectual History, Vol. 9, No. 3, 2012, p. 540. 13 Karuna Mantena, ‘On Gandhi’s critique of the state: Sources, contexts, conjunctures’, Modern Intellectual History, Vol. 9, No. 3, 2012, p. 542. 14 M.K. Gandhi’s speech at YMCA, Calcutta, August 25, 1925, The Collected Works of Mahatma Gandhi, Vol. 32, p. 332 – cited in Karuna Mantena, ‘On Gandhi’s critique of the state: Sources, contexts, conjunctures’, Modern Intellectual History, Vol. 9, No. 3, 2012, p. 542. 15 Karuna Mantena, ‘On Gandhi’s critique of the state: Sources, contexts, conjunctures’, Modern Intellectual History, Vol. 9, No. 3, 2012, p. 537. 16 Karuna Mantena, ‘On Gandhi’s critique of the state: Sources, contexts, conjunctures’, Modern Intellectual History, Vol. 9, No. 3, 2012, p. 537. 17 Karuna Mantena, ‘On Gandhi’s critique of the state: Sources, contexts, conjunctures’, Modern Intellectual History, Vol. 9, No. 3, 2012, p. 537. 18 M.K. Gandhi, Satyagraha in South Africa, Navajivan Publishing House, Ahmedabad, 2006 (reprint), pp. 213–4. 19 Mark Thomson, Gandhi and his Ashram, Popular Prakashan, Mumbai, 1993, p. 76. 20 M.K. Gandhi, ‘Kallenbach’s gift’, Young India, June 11, 1910, The Collected Works of Gandhi, Vol. 11, p. 66, www.gandhiserve.org/cwmg/VOL011.PDF, accessed on April 26, 2016. 21 Mark Thomson, Gandhi and His Ashram, Popular Prakashan, Mumbai, 1993, p. 234. 22 I have elaborated this argument in my ‘Reconceptualizing gubernatorial ‘discretionary’ authority: An Indian perspective’, Indian Journal of Public Administration, October, 2017, Sage. 23 B.R. Ambedkar, Constituent Assembly Debates, Book No. 3, June 1, 1949, p. 500. 24 Raeesa Vakil, ‘Jurisdiction’, in Sujit Choudhury, Madhav Khosla and Pratap Bhanu Mehta (eds.), The Oxford Handbook of the Indian Constitution, Oxford University Press, New Delhi, 2016, pp. 372–3.

Introduction 23 25 Nick Robinson and others, ‘Interpreting the Constitution: Supreme Court Constitution Benches since independence’, Economic and Political Weekly, February 26, 2011, pp. 27–31. 26 Douglas V. Varney, ‘From executive to legislative federalism?The transformation of the political system in Canada and India’, The Review of Politics, University of Notre Dame, Spring, 1989, pp. 241–63. 27 G.B. Pant’s convocation Address at Allahabad University on December 21, 1946. See Selected Works of Govind Ballabh Pant, Vol. 11, Oxford University Press, New Delhi, 1998, p. 425. 28 B.R. Ambedkar defence of the constitution in the Constituent Assembly on November 4, 1948, Constituent Assembly Debates, Book No. 2, p. 43. 29 The Supreme Court judgment in the S.R. Bommai versus Union of India, 1994, judgment delivered on March 11, 1994, para 174, https://indiankanoon.org/doc/60799/, accessed on October 21, 2016. 30 The Supreme Court judgment in the S.R. Bommai versus Union of India, 1994, judgment delivered on March 11, 1994, para 276, https://indiankanoon.org/doc/60799/, accessed on October 21, 2016.

1 Constitutional Democracy in India An ideational battle

The 1950 Constitution of India is an outcome of an ideational battle that began long before it was formally framed by the members of the Constituent Assembly in little less than three years between 1946 and 1949. Tracing its intellectual genealogy to the philosophy of Enlightenment, the chapter shows that the Constitution heavily drew upon the liberal values of constitutionalism which flourished in India in the wake of colonial rule. Being sensitive to the Gandhian preference for village swaraj, the founding fathers also addressed the concern of the Gandhians in the Assembly by incorporating a new chapter in the Constitution. The constitution-making in India is thus a theatre of contestation in which ideas with completely different socio-economic roots competed with each other for a common ideological aim of making a constitution for independent India which was acceptable to all. Two contrasting perspectives seem to have governed the processes of constitutionalizing India: on the one hand, emphasizing the role of the state as the primary agent for liberal reform, the liberal constitutionalists defended a constitution supportive of the rule of law irrespective of class, caste and clan; there was, on the other hand, another well-argued perspective in which the idea of a village republic prevailed over other considerations as most appropriate for India’s socio-economic growth. A perusal of the debates in the Constituent Assembly that came into being in 1946 reveals that the debates hovered around liberalism and the Gandhian idea of swaraj or self-rule emphasizing the Kantian emphasis on individual freedom in a collective existence. The fact that the Gandhian insistence on the village-based constitutional democracy did not receive adequate support from the members of Assembly allowed the liberals to shape the Constitution in accordance with their ideological predilections. Nonetheless, by articulating an alternative ideational package, the Gandhians paved the way for differently textured constitutional principles of governance which gradually became decisive in independent India with the increasing importance of democratic decentralization in governance. The aim of this exercise is to understand the 1950 Constitution of India as an outcome of an ideational battle that began long before it was formally framed by the Constituent Assembly which was setup in 1946 as a result of negotiations between the nationalist leaders and the members of the Cabinet Mission.1 In a little less than three years between 1946 and 1949, the Assembly discussed each

Constitutional democracy in India 25 provision which was to be incorporated in the future constitution for India. It was a difficult period when the joy of freedom was marred by national trauma of partition and also the assassination of Mahatma Gandhi. The Indian Constitution was born, thus argues Paul Brass, ‘more in fear and trepidation than in hope and inspiration’.2 There is hardly a strong argument to dispute this proposition presumably because of the context in which the Constituent Assembly began and concluded its proceedings. Nonetheless, the founding fathers hardly deviated from their commitment to liberal governance which was articulated persuasively in the 1950 Constitution. Being dedicated to the cause, the framers thus upheld ‘the art of the possible and never allowed [the context] to blind them to their aspired goal’.3 By seeking to trace the intellectual roots of the processes of constitutionalizing India to an ideational battle spanning over a century, the chapter deviates from the conventional understanding of the making of India’s constitution by arguing that it was merely a legatee of the endeavour of accommodation of differences over contrasting perspectives, but was also reflective of concerns for change. Contrary to the widely circulated contention that the Indian Constitution is largely a borrowed doctrine, the chapter thus reinforces the argument that it is also an ideational project in which competing ideas jostled during its preparation.

Driving ideological forces Three major ideological forces seem to have been critical in the making of the Constitution: colonialism, nationalism and democracy. The colonial, nationalist and democratic articulation of ‘the political’ remains therefore crucial in comprehending the processes that influenced the Assembly. Two points need to be kept in mind: First, although colonialism and nationalism are surely antagonistic, there is no doubt that the former provoked circumstances in which nationalism emerged as a powerful ideology to articulate the voices of the colonized. Secondly, colonialism also led to a slow process of democratization by gradually involving people favourably disposed towards alien administration. The colonial state had permitted some measures of representation to carefully selected Indian interests. But it had also ensured that ‘the state had always operated at a level removed from the society which it governed’. Appropriating ‘the executive privilege’ for itself, the colonial state appeared to ‘stand outside the realm of and therefore free to arbiter over social conflict and political competition [and its relationship with the subject] continued to be conducted in the language of supplication and concession, grants and demands, charters and petition, grievances and repression’.4 The British were admittedly influenced by their own ‘theories of liberalism and self-government’. Through a mixture of motives that ranged from ‘self-interests and ideological commitments’, the colonial government introduced principles of representation, appropriate for its rule, into the colonial legislature.5 The British imperial attitudes in India thus seem to be ‘highly ambiguous’, resulting from their efforts to negotiate their liberal regard for self-rule as the best form of government and their vested interests in being imperial masters.6

26  Constitutional democracy in India

Critical ideational inputs The 1950 Constitution of India is drawn on the fundamental liberal values which flourished during the long colonial rule. Liberal ideas were articulated both by the British liberals7 and their Indian counterparts.8 While the former were paternalistic in their attitude, the latter held liberalism as perhaps the only empowering ideological design of governance which was appropriate for India. In contemporary scholarship, three important types of liberalism have been identified: colonial liberalism, nationalist liberalism and radical liberalism.9 Drawing on their paternalistic concern for the colonized, the colonial liberals contributed to the consolidation of a system of governance which would prepare Indians to appreciate rule-driven administration. Although they differed in their assessment of the situation in India, they agreed that colonialism was beneficial to the rise of India as a well-governed polity in due course. While they strongly felt that representative democracy was certain to flourish in Australia and America given their identical civilizational identity, India was simply incapable of self-government, argued one of most influential liberal thinkers, JS Mill, because of the lack of social homogeneity.10 Nonetheless, liberal ideas of limited government and the rule of law, equality before law and education as a means of social empowerment were gradually introduced in India the wake of the colonial rule. A careful study of the British rule in its initial phase suggests liberalism created a space for the growing involvement of the Indians in administration. Two substantial events changed the course of colonialism: (a) the founding of the universities of Calcutta, Madras and Bombay helped develop an articulate opinion of the educated Indians on the British rule. It captured the growing discontent among the Indians who always remained, for obvious reasons, peripheral in administration. (b) The inauguration of the Indian National Congress in 1885 created a new platform to ventilate the grievances of the ruled. This also became a forum for the Indians to articulate demands for better rule, the outcome of which was the 1892 Indian Councils Act. As the Act underlines, its aim was to widen and expand the functions of the Government of India, and to give further opportunities to the non-official and native elements in Indian society to take part in the work of the Government, and in that way, to lend official recognition to that remarkable development both of political interest and political capacity that had been visible among the higher classes of Indian society since the Government of India was taken over by the Crown in 1858.11 The Act provided for the enhanced membership of the Councils. It was mandatory for the government to consult the representative bodies and institutions, approved by the government, before selecting nominees for the Councils. Besides legislative powers, the Councils were also empowered to pull the Executive on financial matters though it had no power to either revise or reject decisions on this matter. However, the growing weight of the Councils is indicative of a sea change in colonial rule. As Morley, the Secretary of State, articulated,

Constitutional democracy in India 27 There are two rival schools of thought, one of which believes that better government of India depends on efficiency, and that efficiency is, in fact, the end of British rule in India. The other school, while not neglecting efficiency, looks also to what is called political concessions.12 This declaration laid one of the foundational principles of the British administration in India. As a first step, a Royal Commission was appointed in 1907 to look into the administration that seemed to have lost its viability in the context of growing discontent among the ruled. The aim of the Commission was to provide an administration which was adapted to the changed social, economic and political realities of India. While recommending the corrective measures, the Commission was guided by the following factors:(i) the difficulties of ruling the vast sub-continent from a single headquarter and the inevitable failure in the statesmanship and efficiency in administration; (ii) the difficulties of applying uniform schemes of development for the provinces, which are socio-culturally diverse; (iii) to instil a sense of responsibility among those engaged in provincial and local administration and (iv) to strengthen the colonial rule by educating people in the values of strong administration. On the basis of the recommendation of the Commission, a bill was introduced in 1908 which became the 1909 Morley-Minto Reforms. As a political scheme seeking to strengthen colonial rule in India, the 1909 Act introduced profound changes with long-term effects in representation of communities in Councils. This is the beginning of a trend that gradually unfolded, as will be shown below, by dwelling on the legislative steps that gave impetus to the steady growth and consolidation of representative institutions in India.

Nationalists and radical liberals Liberalism reached the Indian shore through the colonial liberals who however had strong reservations about its application in India. Nonetheless, they inspired the early nationalists who were politically baptized through those texts which articulated the liberal approach to politics and governance. Liberalism gained hegemony in part because of ‘the Anglicization of public life’.13 The political ideas of JS Mill, Herbert Spencer and August Comte, among others spread to the English-educated classes through English and later vernacular newspapers, books and pamphlets. The influence was so well-entrenched that even the Indian National Congress had no qualms in openly appreciating the British rule because it purportedly drew on the fundamental ethos of liberalism. In its eleventh annual session, Indian National Congress thus declared that to England, we look for inspiration and guidance [because] English history has taught us those principles of freedom which we cherish. . . . We have benefitted by the education that we receive and by the material civilization which annihilates time and distance, and brings us together to feel a common interest in our own elevation under a vivifying influence of a literature and a

28  Constitutional democracy in India history, the like of which the world has not known in the past for its triumphs in the emancipation of mankind.14 However the delegates were highly disappointed since colonialism in India had already manifested in its most brutal form. Hence they made an appeal to the rulers ‘to gradually change the character of her rule in India, to liberalize it . . . so that in the fullness of time, India may find itself in the great confederacy of free states, English in their origin, English in their character [and] English in their institutions’.15 So the main concern was to imbibe the spirit of liberalism in governance. Their main ideal was their representation in the legislature. The demand was continuously made by the Congress since it would allow the Indians to voice their concerns in legislative forums. While justifying the demand, Dadabhai Naoroji, a prominent moderate liberal, strongly argued for expansion of representation to include Indians in the legislature. As he stated, What makes us proud to be British subjects, what attaches us to this foreign rule with deeper loyalty than even our own past Native rule, is the fact that Britain is the parent of free and representative government, and, that we, as her subjects and children, are entitled to inherit the great blessing of freedom and representation’. . . . Britain would never be a slave and could not, in her very nature and instinct, make a slave. Her greatest glory is freedom and representation, and as her subjects, we shall have these blessed gifts.16 What Naoroji had initiated was reinforced by his successors, like Pherozeshah Mehta (1845–1915), Surendranath Banerjea (1848–1925) and GK Gokhale (1866–1915) who also insisted that institutions of representation were seen as the sine qua non of human freedom. They were also persuaded to believe that it was possible for them to express their views freely in public forums since colonial rulers drew on liberalism. ‘It is under the civilizing rule of the Queen and the people of England’, thus argued Naoroji, ‘that we regularly meet, unhindered by none and are freely allowed to speak our minds without the least fear and least hesitation’.17 In a similar vein, he further admired British rule by saying that we understand the benefits [that] the English rule has conferred upon us; that we thoroughly appreciate the education that has been given to us, the new light which has been poured upon us, turning us from darkness into light and teaching us the new lesson that kings are made for the people and not people for their kings; and this new lesson we have learned amidst the darkness of Asiatic despotism only by the light of free English civilization.18 A careful reading of the early nationalists’ intervention reveals that they upheld liberalism to the hilt since they were convinced of its utility as an empowering ideology for the colonized. Hence they insisted on constitutionalism, gradual reforms and an appeal to the English traditions which helped build the liberal ethos as integral to governance in Britain. The arguments that the early nationalists

Constitutional democracy in India 29 made in favour of liberalism had two complementary components: on the one hand, what it entails was their concern for political transformation following the fundamental principles of liberalism; their critique of the British rule in India was, on the other hand, drawn on the fact that it had failed, to a significant extent, ‘to live up to its own mission as the bearer of liberal and modern institutions and values in India’.19 They were appalled, in other words, because ‘Britain was failing to complete the appointed role, as evidenced by its selfish economic and political policies in India, and by its distrust of the very class that it had brought forth’.20 What was basic to their arguments was the effort to articulate liberalism in spirit and content and they felt discontented since the British rule in India was not adequately liberal. Notwithstanding the debilitating effect of colonialism in India, the early liberals seem to have found the British rule most conducive for the growth of a liberal society in India. In their perception, representative institutions and free press were always identified as critical to the material and moral progress of a country which was plagued by archaic customs and primordial social values. As Surendranath Banerjea noted, The three great boons which we have received from the British Government are High Education, the gift of a free press and local Self-Government. . . . But High Education is the most prized, the most deeply cherished of them all. It is High Education which has made local Self-Government the success that it is admitted to be. It is again High Education which has elevated the tone of the Indian press.21 In the creation of a liberal India, the institutional changes were as much critical as the change of the prevalent mindset that had undergone a massive transformation with the introduction of English education, the early nationalists claimed. By recognizing the immense utility of English education, the Deccan Sabha thus exhorted that ‘the greatest gift [of the British rule] has been to bring within our reach the blessing and benefit of English education which has helped us to avail of and assimilate the civilizing elements which accompany and distinguish [the rule by the British parliament].22 This was an unqualified appreciation of how the English education contributed to the consolidation of liberal ideas in society. It was strongly felt that efforts towards building a liberal society were likely to fail unless it was complemented by a conducive mindset which was possible only by accepting English education. Being critical of political liberals and social Tories, MG Ranade, another vocal liberal, thus stated that You cannot be liberal by halves. You cannot be liberal in politics and conservative in religion. The heart and head must go together. You cannot cultivate your intellect, enrich your mind, enlarge the sphere of your political rights and privileges, and, at the same time, keep your hearts closed and cramped. It is an idle dream to expect men to remain enchained and enshackled (sic) in their own superstition and social evils, while they are struggling hard to win

30  Constitutional democracy in India rights and privileges from their rulers. Before long these vain dreamers will find [a foothold] their dreams lost.23 On another occasion, Ranade emphasized the importance of a strong state, guided by the rule of law in combatting the well-entrenched social evils. In other words, he was in favour of a strong state which was necessary to establish a liberal social form as well. The argument was forcefully made when he stated that The history of the suppression of infanticide and Sati shows that these institutions which had grown as excrescences upon the healthy system of ancient Hindu society, were checked and can only be checked by the strong arm of Laws, and once they are denounced as crimes they disappeared from the face of the country.24 Justifying state intervention as legitimate, he further argued that The diseased corruptions of the body cannot and should not be dealt with in the same way as its normal and healthy developments. The sharp surgical operation and not the homoeopathic infinitesimally small pill is the proper remedy of the first class of disorder and the analogy holds good in the diseases of the body politic as well as the material body in dealing with the parasitical growth of social degeneration.25 Two important ideas stand out: First, the early liberals were persuaded to believe that unless there were adequate institutional back-ups, the Westminster form of liberal democracy would remain elusive. Their insistence on having those institutions was thus a natural choice. Secondly, they were also aware of the fact that without a supportive value system, not only would the liberal institutions fail to strike organic roots in India, but they would also become merely cosmetic. While the moderate liberals pursued a policy of reconciliation within the British rule, their extremist counterparts championed violence, if necessary, to harm the ruler. Their idea of swaraj approximated to self-government of the liberal variety though the extremists felt that ‘as long as the source of power is situated in Whitehall there cannot be even a beginning of the democratic processes’.26 What was basic in their politico-ideological campaign was the demand for freedom, which would facilitate the formation of a political system of their choice. Hence it was suggested that the new system involved the abdication of the right of England to determine the policy of the Indian government, the relinquishment of the right of the present foreign despotism to enact whatever law they please, the abandonment of their right to tax the people according to their own will and to spend the revenues of the country in any way they like.27

Constitutional democracy in India 31 Their aim was to form a government according to what the people of India thought, which was evident in what Lala Lajpat Rai mentioned by saying that ‘in order to be free we must form, guide and control the national will in such a way as to make it irresistible’.28 What was unique in the extremist perception was their belief that sovereignty rested with the people. Unlike the moderates, Aurobindo, one of the most vocal extremists, made his preference very clear by stating that ‘only by becoming responsible to the people and drawn from the people can the government be turned into a protector instead of an oppressor’.29 Appreciative of liberal democracy since it drew its sustenance from the people, he reinforced his argument by saying that The only effective way of putting an end to executive tyranny is to make the people and not irresponsible Government the controller and paymaster of both executive and judiciary. The only possible method of stopping the drain is to establish a popular government which may be relied on to foster and protect Indian commerce and industry conducted by Indian capital and employing Indian labour. This is the object which the new politics, the politics of the twentieth century, places before the people of India in their resistance to the present system of Government, not tinkerings and palliatives, but the substitution for the autocratic bureaucracy, which at present misgoverns us, of a free constitutional and democratic system of government and the entire removal of foreign control in order to make way for perfect national liberty.30 Despite their strong criticism of the colonial rule which ruined India, the extremist thinkers expressed their keenness in adopting a liberal democratic system of governance for two reasons: First, liberal democracy was perhaps one of those forms of government which derived its strength from people; the fact that it nurtured popular sovereignty attracted the extremists regardless of the fact that it had evolved in Britain. Secondly, the idea appears to have swayed the extremist thinkers presumably because of their personal experience of the system of governance that existed in England during their stay as students or otherwise; they thus believed that liberal democracy was not only a libertarian ideology, but also appropriate for meaningfully translating popular sovereignty in spirit and content. There are therefore reasons to believe that the early liberals helped create some of the conditions for the rise and consolidation of India’s political democracy. Supportive of the democratic institutions that articulated liberalism in practice, they also contributed to devlop a space in which debates over the feasibility of a system of governance that owed its sustenance from liberalism could occur. What is however paradoxical was the fact that their concern for class interests, including property rights, clouded their vision for social democracy. As a result, they, despite being critical of inequality during colonial rule, failed to provide a conceptually persuasive analytical framework for combatting well-entrenched poverty, which also had social roots. This confirms the argument that liberalism in India was contextually constructed, which means that the classical British liberal ideas

32  Constitutional democracy in India were ‘deconstructed and reassembled to reflect Indian conditions and structures of thought’.31 While the early liberals were keen to build the institutional fabric of the nation since it was, in their perception, unavoidable to realize the fundamental liberal ethos the radical liberals, especially Jyotirao Phule (1827–90) and BR Ambedkar (1891–1956), strongly argued for rearranging of the prevalent social systems to avoid birth-driven discrimination. Influenced by Thomas Paine’s Rights of Man, Phule was persuaded to believe that since ‘the creator has bestowed upon all men and women equal religious and political liberties . . . [they] should therefore have equality before law and equality of opportunity for entry into the civil service or municipal administration’.32 Anticipating some of the ideas that BR Ambedkar was to articulate in the future, he attributed social discrimination to Brahman domination in Hindu society. Being critical of MG Ranade for his appreciation of ‘Hindu tradition’, he maintained that this was a ploy to retain a discriminatory social arrangement in which sudras (untouchables) would always remain subservient to the upper caste, particularly Brahmans. His appreciation of the British rule was governed by his firm belief that it was meant by ‘the Creator to rescue the sudras from slavery [and hence he urged upon them] to exploit the golden opportunity given by the British rule to get themselves emancipated from Brahman domination’.33 What Phule suggested was further developed by BR Ambedkar, who, while challenging the existent heritage-dependent hierarchical social order in India, also welcomed the British rule for being liberal in its approach to governance. He was a vocal supporter of positive constitutional and political discrimination in favour of the untouchables. BR Ambedkar created and also expanded normative spaces involving not just equality, liberty and rights but also self-respect and dignity for the historically disadvantaged segments of the population. There is a caveat here because Ambedkar’s notion of constitutional liberalism can be said to have redefined its basic thrust by insisting on the group autonomy and dignity (and not merely individual autonomy and dignity) against coercion, whatever the source – the state, society or any other institution. It was an effort that was translated into reality in the 1950 Constitution of independent India, which created a template for liberty, equality and fraternity regardless of class, clan and ethnicity. By interrogating the foundational values of Hinduism that tended to justify social inequality, Ambedkar, also known as Babasaheb, gave a voice to the critique that subjected the sociologically justified caste divisions to a thorough scrutiny. In his conceptual framework, the human agency remained central, which also reflected a Deweyan emphasis on the role of human beings in the making and unmaking of the world that we lived in. It was thus perfectly compatible with his overall ideological position when he declared, Do not depend . . . for the abolition of caste slavery upon God or Superman. Your salvation lies in political power and not in making pilgrimages and the observance of fasts. Devotion to scriptures would not free you from bondage, want and poverty.34

Constitutional democracy in India 33 Central to his argument was a belief in human efforts in re-conceptualizing social mores and values which were contrary to liberal interpretations of human civilization. While defending liberalism, Ambedkar also introduced a unique moral and political framework in public reasoning which owed much to the European variety of Enlightenment paradigm combining social virtues (such as benevolence, compassion and tolerance) with scepticism and reason of the French Englightenment and the American variety of republican values. The idea of every person having the right to life, liberty, free speech and pursuit of happiness – and the duty of the state to ensure that they were not violated remained critical in Ambedkar’s understanding of liberalism, which had clear contextual roots. Being ‘an eclectic thinker’35 who was also sensitive to the social brutalities that he suffered due to his birth as a Mahad, he supported ‘vigorous state action to empower the untouchables and lower castes’,36 which however ran counter to the fundamental ethos of classical liberalism. Nonetheless, there are imprints of English liberal idealists like TH Green (1836–82) and LT Hobhouse (1864–1929), who insisted on community, individual welfare rights and an activist state. Although he drew on multiple philosophical traditions within liberalism, he devised his own model of state-driven social transformation in which his own experiences of humiliation because of the accident of birth remained critical. Hence it is fair to argue that Indian liberals, including the radical liberals, reinvented what they derived from their understanding of British liberalism in the Indian context. The shift from constitutional liberalism of the early nationalist era to ‘the quasisocialistic communitarianism of 1900 and after’37 is illustrative here. It is therefore not odd to find that by championing the idea of secular freedom and equality, Gandhi set in motion an ideological search that was not exactly derivative of classical British liberalism. It was an idea that was creatively interpreted in the context of the struggle that he led in South Africa and later in India against the denial of the basic rights of freedom and equality because of the deviant nature of a so-called liberal state. The Mahatma posed a clear challenge to the typical Western articulation of the basic values of liberalism that justified racial stereotypes by drawing on the Christian ideas of the value of individual, early bourgeois idea about the transition from a state of nature to civil society, and the ideas of progress that informed industrial capitalism, among others. By evolving his critique of liberalism on the obvious logical fallacy of the way the exponents of exploitation viewed liberalism, Gandhi powerfully challenged the regimes (in South Africa and India) that simply failed to be liberal because they clearly deviated from the classical liberal creed. A thorough analytical scan of the multiple traditions of liberalism that figured prominently in the writings and also deeds of the nationalists in India reveals that liberalism remained a critical ideological force. Beginning with the moderate liberals in the early part of India’s nationalist movement to Gandhi, Ambedkar and their partners, liberalism did not seem to have lost its appeal despite being conceptualized differently in different phases of India’s struggle for freedom. There is no denying the fact that liberalism appealed to the Indian nationalists in

34  Constitutional democracy in India the context of the Anglicization of the public life, which was reinforced possibly because it became an empowering ideology in their battle against colonialism. It was further strengthened by the constitutional designs that evolved in the wake of the British rule in India, as will be shown below, which, by creating a template of governance, seem to have governed, to a significant extent, the nationalists’ preference. The end result was that despite having drawn on contrary ideological perspectives, the nationalists and their bête noire upheld liberal constitutional values while seeking to pursue their respective political aims.

Major designs towards constitutionalizing India The Constitution of India had both colonial and nationalist imprints. By devising mechanisms of sharing power with their Indian counterparts, the colonial rulers set in motion processes of constitutionalizing India which drew their inspiration from the fundamental ethos of British Enlightenment. There were concerted efforts by the alien state, in other words, to conceptualize constitutional governance within the theoretical framework of liberalism. The inevitable outcome was the growing support for the Westminster model of democracy as perhaps a panacea for all troubles that the colonized had to face. Despite occasional challenges to liberal democracy by those who did not seem persuaded, parliamentary democracy had prevailed over other ideological options since the Indian National Congress and its allies were convinced of its effectiveness as a form of governance for India. How was it possible? At one level, the increasing acceptance of liberal democracy was an offshoot of the British initiatives to involve Indians in administration, which was primarily a colonial strategy to weaken the efforts against colonialism. This was further strengthened, at another level, by those nationalist leaders, from the moderates to Gandhi and Jawaharlal Nehru, who, unlike the former, demanded complete independence, and who, by being ideologically baptized in liberalism during their years of growing up, appeared to have found its merit, which was strong enough to sway them for what they stood for.

Major nationalist initiatives One of the first serious nationalist initiatives was made in the 1927 Madras Congress that sought to evolve constitutional governance in India. Known as the Swaraj Constitution, it was also an outcome of a series of discussions involving several political parties, including the Muslim League. Realizing that without consensus among the major communities, no effort towards making a constitution was likely to succeed, an attempt was made to frame a resolution in such a way as to create confidence among them, especially the Muslims. The resolution that the Congress had adopted was thus explicit in stating that Having regard to the general desire of all political parties in the country to unite together in settling a Swaraj Constitution, and having considered the various drafts submitted to it and the various suggestions received in reply

Constitutional democracy in India 35 to the Working Committee’s circular, [the Madras Congress] authorizes the Working Committee . . . to draft a Swaraj Constitution for India on the basis of a Declaration of Rights, and to place the same for consideration and approval before a special convention . . . consisting of the All India Congress Committee and the leaders and representatives of the other organization . . . and elected members of the central and provincial legislatures.38 On paper, it was a grand design though it did not succeed because of the failure of the Congress to counter the apprehension of the Muslims that they were likely to be marginalized in the proposed constitutional arrangement although the Committee assured that no community would be allowed to dominate over another. Asserting that the aim was not to ‘give domination to one over another but to prevent the harassment and exploitation of any individual or group by another [the Committee insisted] on the fullest guarantee of religious liberty . . . [and] cultural autonomy’.39 In order to establish group rights in its most substantial form and content, the Committee argued for ‘joint or mixed electorates’ and discarded separate electorates completely ‘as a condition precedent to any rational system of representation’.40 Characterizing separate electorates as ‘bad and harmful for the growth of a national spirit’,41 the Committee also marshalled arguments to suggest that separate electorates ended up creating a permanent fissure between the minority and majority community. Hence it was argued that ‘under Separate Electorates, the chances are that the minority will always, have to face a hostile majority, which can always, by sheer force of numbers, override the wishes of the minority’.42 The aim of the Nehru Committee was to counter the League’s insistence on special constitutional protection to the Muslims by guaranteeing separate electorates, which was never appreciated given its obvious divisive character. Nonetheless, special care was taken to protect cultural autonomy of the minorities, which the Committee felt was needed to sustain India’s socio-economic diversity. So the conceding of group rights was not a concessional measure but a politically contrived design for the sake of sustaining the national spirit. The 1928 constitutional draft prepared by the Motilal Nehru Committee was finally rejected due to lack of consensus. Nonetheless, it was one of the first serious endeavours that the Indian nationalists had undertaken to constitutionalize India following the fundamental principles of liberalism which unfolded in the wake of the British rule. In order to realize these principles in public life, the Committee admitted having imitated the British system of governance, which was evident in its submission that recommendations were not ‘original’. The Committee was said to have been content ‘to follow models which have been tried and tested in other parts of the world and which even the framers of the Montague-Chelmsford constitution professed to follow’.43 The Committee however maintained that the proposed constitution was not exactly derivative of the available constitutions since in drawing up the Constitution, it ‘deliberately declined to be overcome by one type or the other’. Aware of India’s peculiar socio-economic circumstances, the members strove to provide ‘for the development of fullest possible provincial life compatibly with national interests’.44 Another bone of contention was the

36  Constitutional democracy in India minority rights which figured prominently in the Nehru Report which introduced group rights in the shape of cultural and religious rights of minorities partly to allay the fears of the religious minorities that they would be swamped in a Hindudominated India, partly to stave off the demand for separate electorates, and partly to devise a principle that helped the Congress to regulate inter-group relations.45 Similarly, the Committee recommended adult suffrage despite strong criticism even by the Congress. Two points of criticism were made: First, it was argued that without being adequately educated, the voters would fail to exercise franchise ‘intelligently’. Secondly, in view of the vastness of the country and the lack of transport, it would be difficult, if not impossible, for the voters to go to the booth to exercise their rights, which would make the system redundant. As a counter to these arguments, the Committee retorted that ‘the repeated exercise of the right to vote is in itself a powerful educative factor’.46 And, it was further argued that ‘the average Indian voter understands his business and [that he] can form an opinion that affects him directly’.47 What was unique about the Nehru Report was an attempt to conceptualize group rights in a liberal way since it also endorsed individual rights by insisting on adult suffrage. This was a revolutionary step which also confirms the nationalists’ concern for creating a constitutional arrangement on the basis of their understanding of liberal constitutionalism. Dissensions surfaced as soon as the Nehru recommendations were made public. Even Jinnah, who appreciated Motilal’s effort in drafting a constitution for united India, rejected the recommendations, demanding that the residual powers should rest with the provinces rather than the centre to scuttle the rise of a unitary and authoritarian Hindu-dominated state. Other Muslim groups joined hands and in January 1929, an All Parties Muslim conference met in Delhi and agreed to abandon the Nehru Report that hardly addressed the Muslim concern. While Muslims dissociated from the Report as it was far from their expectations, there were dissidents even within the Congress. Led by Jawaharlal Nehru and Subhas Chandra Bose, a powerful faction within the Congress formed the ‘Independence India League’ that demanded complete independence rather than dominion status as suggested by the Nehru Committee. While elucidating the difference between dominion status and independence, Nehru stated that dominion status ‘envisages the same old structure, with many bonds visible and invisible tying us to the British economic system: [complete freedom] gives, or ought to give us, freedom to erect a new structure to suit our circumstances’.48 Critical of those defending dominion status, Nehru further argued ‘for them the problem is one of changing colour of administration, or at most having a new administration . . . [and] not a new state. . . . They can only conceive of a future in which, they or people like them will play the principal role and take the place of the English high officials’.49 The 1928 Calcutta Congress thus saw an open split between those who defended dominion status and those who advocated complete independence. It was more or less a foregone conclusion that in view of the growing importance of the radical section within the Congress, it had no alternative but to insist on complete independence. With the acceptance of the complete independence resolution in the 1929 Lahore Congress, it was decided to boycott the legislature and the Congress

Constitutional democracy in India 37 members were asked to resign. Furthermore, the All India Congress Committee was authorized to launch civil disobedience, including non-payment of taxes wherever it deemed appropriate. Gandhi rose as the undisputed leader and was made the sole authority to decide the time and manner of the launching of the civil disobedience movement. Like the 1928 Motilal Nehru constitutional draft, the 1945 Sapru Committee also prepared a constitutional design following the fundamental ethos of liberalism. Here too, the institutional arrangements that Indians had inherited as colonial subjects were accepted as integral to the making of a liberal constitution for India. Admitting that it was the British initiatives that led to the consolidation of liberal democracy in India, the Committee had begun its recommendations by quoting Montague’s famous declaration in the House of Commons on 20 August 1917 which corroborated the idea by declaring that the policy of His Majesty’s Government, with which the Government of India are in complete accord, is that of the increasing association of Indians in every branch of the administration and the gradual development of selfgoverning institutions with a view to a progressive realization of responsible government in India as an integral part of the British Empire.50 This was not a favour that the British government extended, but was the outcome of the challenges that the ruling authority was apprehending in view of the growing discontent. It was a powerful strategy to seek to quell the circumstances that were quite volatile as the nationalists were being regrouped under charismatic Gandhi. The idea was also appreciated by hardcore colonialists like Curzon, who found the suggestion most appropriate since, as he argued, With the modern ideal of nationalism and self-determination making in the circumstances of the times so strong an appeal, the peoples of countries such as India attached much more importance to being governed, even though not so well-governed, by themselves, than they did to being even superbly governed by another race.51 By referring to the early British initiatives, the Sapru Committee justified that the idea of self-government was nothing new; instead, it was perhaps a natural outcome of the British endeavour towards constitutionalizing India in a liberal democratic form. On the basis of this understanding, the Committee built its defence for a constitutional structure that drew on the fundamental ethos of liberalism. Here too, the members appear to have been persuaded by their erstwhile colleagues who prepared the 1928 Nehru Report, which despite having accepted dominion status within the Empire also defended self-government. Being favourably disposed towards the Westminster form of liberal democracy, they thus insisted that ‘the future of India lies in adopting a democratic constitution and taking all the risks which a change from the present system of government to a state of real democracy must involve’.52 Similar to its 1928 counterpart, the Committee

38  Constitutional democracy in India strongly argued for adult franchise with a proviso that under the existing circumstances ‘it may be excusable to give communities divided on religious lines the right to a fair and adequate share of opportunities for service in the legislature and of executive power’.53 Hence, by following more or less the same logic as the erstwhile 1928 committee, the Sapru Committee opposed separate electorates and argued that ‘it should be replaced by joint electorate with reservation of seats’.54 Opposition to separate electorates had a clear political tone since those in favour of partition spearheaded a vociferous campaign by arguing that the separate electorate was a shield against the infringement of minority rights. In an unequivocal way, the Committee condemned the efforts by saying that ‘we are convinced that the campaign for separate electorate was an attempt to cause a schism between the majority and minorities which [was detrimental] to the growth of India as a nation’.55 For the Committee members, there was a hidden agenda which the campaigners for separate electorates endeavoured to pursue; in what some claimed was a mere electoral arrangement was also a campaign for the partition of the country, which they unambiguously articulated by saying that The partition of India would be an outrage justified neither by history nor by political expediency. It is incompatible with the greatness, safety and economic development of the country and will lead either to constant internecine war or perpetual foreign domination. It multiplies and complicates the problem of minorities without solving it and threatens to plunge India back into the dark and dismal days of the 18th century’. . . . The division of India into two or more separate independent sovereign states is unjustified and will endanger the peace and orderly progress of the whole country without compensating advantage to any community.56 Their firm opposition to India’s partition notwithstanding, in their zeal to evolve a mindset for constitutional democracy, the Sapru Committee left no stone unturned to create circumstances in which liberal democratic values were to prosper. It was very clear when the Committee exhorted that if we are going to have a democratic constitution, we feel strongly that we should provide certain standards of conduct, citizenship and fairplay to all the members of the community when we know that we are making a deliberate and conscious attempt to emerge from a state of society, in which inequality was the rule, to a state of society in which we hope equality will be normal standard.57 Based on their concern for liberal democracy to strike roots in India, the aim of the Committee was to evolve a constitution, free from prejudices and discrimination on the basis of those ideas which its members seem to have internalized by virtue of being nurtured in the liberal tradition of the British Empire. Hence it was not odd when they declared that

Constitutional democracy in India 39 fundamental rights will not only be a standing warning to the vested interests or to the privileged classes but also a standing invitation to the governments, administrators and guardians of the law that the period of privileges and inequality is over that that what the constitution demands and expects is perfect equality between one section of the community and another in the matter of political and civic rights, equality of liberties and security in the enjoyment of the freedom of religion, worship and the pursuit of ordinary vocations of life.58 What is basic is the exhortation for obedience to the fundamental principles of liberal democracy, which do not allow discrimination on the basis of one’s primordial affiliations. Although BR Ambedkar refused to join the Scheduled Caste Committee when he was requested given the alleged political bias of the members for the Congress, the Sapru Committee was sensitive to its obligations to the Scheduled Castes who had been discriminated against due to the prevalent archaic social norms. Realizing that ‘the religious and social disabilities to which they have been subjected have been innumerable and that the treatment these castes have received in the past cannot be defended according to modern social ideas’,59 the Committee recommended Special Fundamental Rights in the Constitution which are: (a) No public authority shall, in carrying out the functions and duties entrusted to it under any law, recognize any custom or usage imposing a disability on any person on the ground that he belongs to a Scheduled Castes or a menial class. (b) No civil, criminal or revenue court shall, in adjudicating any matter or executing any order, recognize any custom or usage imposing any civil disability on any person on the ground of his caste or status.60 At one level, these provisions for Special Fundamental Rights were context-driven with the consolidation of Dalits as a politically vibrant group under Ambedkar’s dynamic leadership; the nationalist leadership could not afford to ignore their claim especially when it was more or less a foregone conclusion that partition which was justified by Jinnah’s two-nation theory was unavoidable; at another level, it is perfectly conceivable that members of the Sapru Committee genuinely felt that only through constitutional guarantee of their rights the prevalent prejudiced mindset could effectively be combatted. Along with its appreciation for liberal constitutional values which they considered to be appropriate for a healthy India, the Sapru Committee took ample care in devising principles for constituting a constitution-making body. The aim was to create an assembly comprising those who were elected to the provincial legislatures since they were chosen by the voters. It is true that the representatives were elected when the franchise was restricted; nonetheless, they were authorized to speak for the people since they held a popular verdict though in a restricted sense. The princely Indian states were also invited to contribute to the Constitution and

40  Constitutional democracy in India accordingly they were asked to select representatives in the same proportion to their population as in the case of British Indian states and with the same powers as their British Indian counterparts. In so far as the composition of the constitutionmaking body was concerned, the Committee followed a fair principle of representation: the representatives from the princely states were also readily accepted just like their colleagues from the British Indian states. Willing to concede special privileges to religious and social communities, the Committee was not persuaded by the League’s criticism that given the Congress hegemony, it was undemocratic by being submissive to the majoritarian Hindu views. Hence it was emphatic in its declaration that for the Constitution to become an instrument of visible socio-economic and political changes, the Committee emphasized at the outset that This body is to frame a Constitution for a Single State [and] . . . by its very nature it cannot debate, and reach a decision on, any preliminary issue as to whether a Single Constitution is to be framed for a united India or whether a number of Constitutions are to be framed for the different Indian States of a divided India.61 Upholding the 1942 Cripps proposal for the setting up only of one constitutionmaking body charged with the function of framing a constitution for the country, the Committee thus overruled the League’s demand for a separate constitution for the proposed independent state for the Muslims. Justifying its argument for a single constitution-making body, it further argued for the system of a joint electorate for its constitution by sternly critiquing the system of separate electorates which, in their perception, was ‘politically divisive’ and‘constitutionally futile’ simply because it drew on separatism or the urge for ‘a maintaining a separate identity at the cost of national unity’.62 Critical of separate electorates for being ‘divisive’, the Committee, in order to make the constitution-making body democratic, also devised the principle of parity of representation between Hindus and Muslims. When the Committee was severely criticized for being soft to the minorities, Sapru, the chairperson, came out in its defence by drawing upon the fundamental principles of liberal democracy in which the majority was responsible for allaying the minority fears. Hence he urged upon the Hindus that in dealing with the minorities [their] attitude should be one not merely of justice but of generosity. It is important that every endeavour in reason should be made to give minorities the feeling that they have nothing to fear at the hands of the majority. The concessions to minorities that we have recommended are inspired by the desire to induce such a feeling. When minorities come to feel in this way, they will adopt a thoroughly progressive attitude and the present spirit of distrust and suspicion will yield to a spirit of mutual respect and cooperation.63 Critical to the Sapru Committee’s constitutional design was the concern for the minorities, which was based on its zeal to develop a truly democratic state in

Constitutional democracy in India 41 the aftermath of decolonization. The idea that the principle of representation should be sociologically designed was upheld by the Committee, which, in fact, set in motion a process which loomed large in the 1946–49 Constituent Assembly debates over minority rights. The argument that GB Pant made on the floor of the Assembly exactly within a gap of two years in 1947 in favour of minority rights was hardly dissimilar, as he argued that The question of minorities everywhere looms large in constitutional discussions. Many a constitution has foundered on this rock. A satisfactory solution of questions pertaining to minorities will ensure the health, vitality and strength of the free state of India that will come into existence as a result of our discussions here. The question of minorities cannot possibly be overrated. It has been used so far for creating strife, distrust and cleavage between the different sections of the Indian Nation. Imperialism thrives on such strife. It is interested in fomenting such tendencies. So far, the minorities have been incited and have been influenced in a manner that has hampered the growth of cohesion and unity. But now, it is necessary that a new chapter should start and we should all realize our responsibility. Unless the minorities are fully satisfied, we cannot make any progress: we cannot even maintain peace in an undisturbed manner.64 There are two important aspects to which GB Pant had referred while defending special protection for the minorities. On the one hand, he justified minorities being treated differently on the basis of fundamental liberal concern for equality; in a liberal democratic society, discrimination is simply illiberal. While Sapru was reticent about the consequences of minority alienation despite being aware of the growing Muslim consolidation for a separate state, Pant drew our attention, on the other hand, to its adverse consequences on the rise of India as a healthy nation. A perusal of two constitutional drafts prepared by the 1928 Motilal Nehru Committee and the Sapru Committee in 1945 reveals that in the making of the 1950 Constitution for independent India, these inputs were as critical as those of the 1946–49 Constituent Assembly. Although the former endorsed dominion status for India, its role in constitutionalizing India in a liberal democratic mould cannot be disputed. With its support for adult suffrage, the Nehru Committee introduced a fundamental liberal principle of the individual being a focal point in governance. Similarly, the concern for minorities addressed the importance of groups in a liberal polity, which can be ignored only at its peril. Influenced, to a significant extent, by the 1942 Cripps mission, the Sapru Committee also strongly argued for meaningful constitutional steps to allay the fear of the minorities of being subsumed by the majority. Despite having endorsed Special Fundamental Rights for the minorities, the Committee was however critical of separate electorates since it was likely to impede the growth of mutually healthy interactions among the communities, whereby they seem to have championed the liberal principle of ‘living together separately’. This is a unique conceptualization resonating Kant’s effort towards theorizing the role of the individual in conjunction with the collectivity and vice versa. In a nutshell, what was basic to these two earlier

42  Constitutional democracy in India efforts was a clear preference for constitution-driven institutional arrangements for India based on what the members of these committees had conceptualized as liberal values, which were partly derivative and partly an outcome of their urge to negotiate with contextual peculiarities in a liberal fashion. Although these committees operated in contrasting historical contexts, their objective did not appear to be very different since they, in their quest for an appropriate constitutional arrangement, which was tuned to their loyalty to liberalism, had also shown that they were capable of creating a national self out of the kaleidoscopic texture of India as a nation of nations. Their effort was directed to create a shared space in which both majority and minority communities did not exactly coalesce but remained sociologically connected by virtue of occupying a common space. In view of irreconcilable differences, if not incompatibility, constructing a shared space is a difficult task. In the absence of constitutionally endorsed institutional protections, minorities are likely to be swamped by the majority. These issues were conclusively addressed by India’s Constituent Assembly, which finally came out with the 1950 Constitution for the country. Although the processes towards making the Constitution were complete in 1950, they had their roots in multiple efforts, both by the nationalists and their bête noire, the colonial rulers, ofthe past. Here is the significance of a thorough analysis of the 1928 Nehru Report and 1945 Sapru Report, which not only foresaw some of the difficulties of creating a shared space in excessively diverse India but also endeavoured to address them within a liberal analytical framework.

The Constituent Assembly and the making of the Constitution The making of free India’s constitution by the Constituent Assembly over a period of little less than three years is reflective of the efforts that the founding fathers undertook to translate into reality the nationalist and democratic aspirations of an independent polity following decolonization. While the Constitution is a continuity at least in structural and procedural terms, it was also a clear break with the past since the 1950 Constitution drew on an ideology that sought to establish a liberal democratic polity following the withdrawal of colonialism. There can be no greater evidence of the commitment to constitutionalism and rule of law on the part of the founding fathers than the Constitution that they framed despite serious difficulties due to partition. The commitment to liberal democratic values, as the Constituent Assembly proceedings suggest, remained paramount in the making of the Constitution. Set up as a result of negotiations between the nationalist leaders and the members of the Cabinet Mission over the possible constitutional arrangement in the post-war India, the Constituent Assembly was not, it is argued, convened ‘by any national provisional government but by the British government [to bring together] the delegates of the major political parties’.65 The task of the Constituent Assembly was to draft a constitution for India. The Objective Resolution that Jawaharlal Nehru moved was, according to BR Ambedkar, ‘an expression of the pent-up emotions of the millions of this country’.66 While defending

Constitutional democracy in India 43 the Objective Resolution, Nehru argued strongly for democracy and socialism: he strongly defended ‘democracy’ as the most appropriate system of government that ‘fit in with the temper of our people and be accountable to them’.67 Similarly, socialism, he firmly believed, would bring about economic democracy to India. For him, political independence was futile unless it was supported by democratic governance and socialistic vision. Hence he was critical of the princely states that were reluctant to relinquish monarchy for democracy. As a true democrat who had no doubt that socialism was the ultimate solution for India’s stark poverty, Nehru set the tenor of the discussion in the Assembly by providing a philosophical lay-out for free India’s constitution. Nonetheless, the political context in which the Constitution was being deliberated was full of uncertainty because of (a) Hindu-Muslim rivalry and (b) reluctance of most of the princely states to join independent India. While the former led to the dismemberment of India following the British withdrawal in 1947, the latter necessitated threat or application of coercion, on occasions, to geographically unify India by bypassing the claim of the existing rulers of the princely states to remain independent. By staying away from the Assembly, the Muslim members clearly stated their preference for Pakistan, which gained momentum especially after the adoption of the 1940 Lahore resolution. The 1946 Calcutta and later Noakhali riots confirmed the Congress’s apprehension that it was possibly strategically correct to accept partition to avoid further bloodbath. What was clear when the Constituent Assembly met for drafting the Constitution was that Pakistan was inevitable and a strong state was required to fulfil its socio-economic goals. Two important points emerge out of the preceding discussions: First, the making of the Indian constitution was a difficult exercise not only because of the historical context but also due to the peculiar social texture of the Indian reality that had to be translated in the constitution. The collective mind in the Assembly was defensive as a consequence of rising tide of violence taking innocent lives immediately after partition. Secondly, the founding fathers seem to have been obsessed with their ‘own notion of integrated national life’. The aim of the constitution was to provide ‘an appropriate ordering framework’ for India. As Rajendra Prasad equivocally declared on the floor of the Assembly, ‘Personally I do not attach any importance to the label which may be attached to it – whether you call it a Federal Constitution or a Unitary Constitution or by any other name. It makes no difference so long as the Constitution serves our purpose’.68 On the whole, a unitary mind produced ‘an essentially unitary constitution doused with a sprinkling of permissive power for a highly supervised level of constituent units’.69 This was not the goal of the nationalists and, of course, their leader, Mahatma Gandhi, who always stood for the decentralized village republic. Besides confirming that constitutionalism in India was not entirely derivative, this assumption directs our attention to the argument that the Indian constitution was ‘cosmopolitan’ in character not only ‘in its fidelity to the universal principles of liberty, equality and fraternity’ but also due to fact that its text and principles, its values and its jurisprudence were drawn from ‘the major cross-currents of global constitutional law’.70

44  Constitutional democracy in India

Concluding observations It is argued here that the 1950 Constitution of India was the culmination of a process in which contrasting ideas converged to evolve an acceptable set of principles for a socio-culturally and economically diverse population. The account is historical too because the ideas that became pre-eminent in the Constituent Assembly had their roots in the tumultuous days of India’s freedom struggle in which various waves of thought were also discernible. By arguing that the Constitution of India was the outcome of a complex ideational battle in different phases of India’s struggle for freedom, the chapter challenges the conventional notion that it is merely a mindless, if not haphazard, borrowing of constitutional provisions and practices prevalent elsewhere. The argument supporting the contention that the Indian constitution is a borrowed doctrine seems vacuous given the fact that it is also a break with the past. One of the most significant breaks was to constitutionally recognize the principle of representative government in its unalloyed form through universal adult suffrage, an ambition that the nationalists had been nurturing since the adoption of the 1928 Motilal Nehru Report. Besides the emergent need to tackle contingent circumstances following the partition, which created a strong demand for the continuity of the available colonial administrative machinery, the founding fathers also felt the need of a strong administration to translate into reality their ambitious plan of radical socio-economic transformation. It has thus been persuasively argued that ‘while continuity was sought in the service of the break in this way, the claim of break itself was called upon to justify certain continuities’.71 A careful study of the arguments that were marshalled in favour of incorporating mechanisms and institutions from the colonial era confirms the point. For instance, Balkrishna Sharma (a member from Uttar Pradesh) while responding to the criticism that the Constitution was ‘un-Indian in spirit and [was] more or less a copy of the Government of India Act’ defended the design as justified by saying that Here, after all, we are framing a Constitution and the modern tendencies, the modern difficulties, the modern problems that are facing us are there and we have to provide for them all in our Constitution, and if we have learned on the Government of India Act for that matter, then I do not think that we have at all committed any sin.72 Notwithstanding disagreements on certain issues, including those related to Gandhi’s village swaraj, the Constituent Assembly members converged on the point that India needed a constitution to establish a democratic polity which the nationalists aspired to during their struggle against colonialism. This was ‘an occasion of the greatest historical significance’, argued Raj Bahadur of Rajasthan, who further characterized the effort as ‘a wonder’. As he stated, ‘The wonder is not that we have not been able to produce a better Constitution. The wonder is that we have been able to achieve and arrive at a degree of agreement that is incorporated in the Constitution’.73 What is evident now is that the Constitution evolved out of

Constitutional democracy in India 45 intensive deliberations among the members which reflected both agreement and differences. Gandhians were, for instance, unhappy since not only was Gandhi’s idea of village swaraj discarded, ‘the omission of a reference to the Father of the Nation – Respected Bapu [Gandhi]’ also disappointed them.74 Nonetheless, the disagreements never became a source of discontent to the extent of falling apart. Hence it is conceptually innovative to understand the Constituent Assembly debates as reflective of a unique tension ‘between certain aspirations [of creating a democratic constitutional system] and certain necessities [arising from the challenge of creating a viable constitutional order under the given circumstances]’, which had its resonance in what finally became the Constitution of India.75 And, the 1950 Constitution was the outcome of the founding fathers’ serious endeavour of evolving an acceptable constitutional design for governance which was perhaps rooted in what is conceptually described as ‘the Hobbesian concern’ for creating a stable political order out of chaos in ‘a united political frame’.76

Notes 1 Constituted at the initiative of Clement Atlee, the British premier, the Cabinet Missioncomprising three cabinet ministers, Pethick-Lawrence, Stafford Cripps and AV Alexander, came to India in March 1946 to (a) devise a mechanism to frame a constitution for India, (b) layout a plan, acceptable to all, for an interim government along with (c) an Executive Council. 2 Paul Brass, ‘The strong state and the fear of disorder’, in Francine Frankel, Zoya Hasan and Balveer Arora (eds.), Transforming India: Social and Political Dynamics of Democracy, Oxford University Press, New Delhi, 2000, p. 60. 3 Granville Austin, The Indian Constitution: Cornerstone of a Nation, Oxford University Press, 1999, p. 21. 4 Rajnarayan Chandravarkar, ‘Customs of governance: Colonialism and democracy in the twentieth century India’, Modern Asian Studies, Vol. 41, No. 3, 2007, p. 448. 5 Dipesh Chakrabarty, ‘In the name of politics: Democracy and the power of the multitude in India’, in Dipesh Chakrabarty, Rochona Majumdar and Andrew Sartori (eds.), From the Colonial to the Post-Colonial: India and Pakistan in Transition, Oxford University Press, New Delhi, 2007, p. 36. 6 D.A. Low, Britain and Indian Nationalism: The Imprint of Ambiguity,1929–1942, Cambridge University Press, Cambridge, 1997. 7 Relevant texts on this theme are: Eric Stokes, The English Utilitarians and India, Oxford University Press, Oxford, 1959; Javeed Majeed, Ungoverned Imaginings: James Mill’s The History of British India and Orientalism, Oxford University Press, Oxford, 1992; Thomas R. Metcalf, Ideologies of the Raj, Cambridge University Press, Cambridge, 1994; Uday Singh Mehta, Liberalism and Empire: A Study in the Nineteenth Century British Liberal Thought, Chicago University Press, Chicago, 1999; Ranajit Guha, A Rule of Property for Bengal: An Essay on the Idea of Permanent Settlement, Orient Longman, New Delhi, 1981; Karuna Mantena, Alibis of Empire: Henry Maine and the Ends of Liberal Imperialism, Permanent Black, New Delhi, 2010. 8 Christopher A. Bayly, Recovering Liberties: Indian Thought in the Age of Liberalism and Empire, Cambridge University Press, Cambridge, 2012; Rajendra Vora, ‘Two strands of Indian liberalism: The ideas of Ranade and Phule’, in Thomas Pantham and Kenneth L. Deutsch (eds.), Political Thought in Modern India, Sage, New Delhi, 1986; V.Rajendra Mehta and Thomas Pantham (eds.), Political Ideas in Modern India: Thematic Explorations, Sage, New Delhi, 2006; Sabyasachi Bhattacharya (ed.),

46  Constitutional democracy in India Development of Modern Indian Thought and the Social Sciences, Oxford University Press, New Delhi, 2007. 9 Rochana Bajpai, ‘Liberalism in India: A sketch’, in Marc Stears (ed.), Liberalism and Ideology: Essays in Honour of Michael Freeden, Oxford University Press, New York, 2012, pp. 53–76. 10 John Stuart Mill, ‘Considerations on representative government’, in John Stuart Mill (ed.), On Liberty and Other Essays, Oxford University Press, Oxford, 1998 (reprint), pp. 257–268. 11 The text of theAct is, www.sdstate.edu/projectsouthasia/loader.cfm?csModule=security/ getfile&PageID=861833, accessed on May 25, 2016. 12 The statement of John Morley is quoted from David Allen Hamer, John Morley: Liberal Intellectual in Politics, Oxford University Press, Oxford, 1968, p. 111. 13 C.A. Bayly, Recovering Liberties: Indian Thought in the Age of Liberalism and Empire, Cambridge University Press, Cambridge, 2012, p. 346. 14 file:///C:/Users/Sony/Downloads/GIPE-014672.pdf, accessed on August  19, 2016: Report of the Eleventh Indian National Congress, held in Poona in 1895, p. 3. 15 file:///C:/Users/Sony/Downloads/GIPE-014672.pdf, accessed on August  19, 2016: Report of the Eleventh Indian National Congress, held in Poona in 1895, p. 13. 16 https://ia802608.us.archive.org/30/items/essaysspeechesa00paregoog/essaysspeechesa00paregoog.pdf, accessed on August 19, 2016: Chunilal Lallubhai Parekh (ed.), Essays, Speeches, Addresses and Writings of the Honourable Dadabhai Naoroji, Caxton Printing Works, Bombay, 1887, p. 321. 17 https://ia802608.us.archive.org/30/items/essaysspeechesa00paregoog/essaysspeechesa00paregoog.pdf, accessed on August 19, 2016: Chunilal Lallubhai Parekh (ed.), Essays, Speeches, Addresses and Writings of the Honourable Dadabhai Naoroji, Caxton Printing Works, Bombay, 1887, p. 332. 18 https://ia802608.us.archive.org/30/items/essaysspeechesa00paregoog/essaysspeechesa00paregoog.pdf, accessed on August 19, 2016: Chunilal Lallubhai Parekh (ed.), Essays, Speeches, Addresses and Writings of the Honourable Dadabhai Naoroji, Caxton Printing Works, Bombay, 1887, p. 333. 19 Sanjay Seth, ‘Rewriting histories of nationalism: The politics of “Moderate nationalism” in India, 1870–1905’, American Historical Review, Vol. 104, No. 1, February 1999, p. 104. 20 Sanjay Seth, ‘Rewriting histories of nationalism: The politics of “Moderate nationalism” in India, 1870–1905’, American Historical Review, Vol. 104, No. 1, February 1999, p. 104. 21 Surendranath Banerjea’s presidential address, 1902, Indian National Congress in A.M. Zaidi (ed.), Congress Presidential Addresses, Indian Institute of Applied Political Research, New Delhi, Vol. 2, p. 118. 22 Address of the Deccan Sabha, p. 9 – cited in Sanjay Seth, ‘Rewriting histories of nationalism: The politics of “Moderate nationalism” in India, 1870–1905’, American Historical Review, Vol. 104, No. 1, February 1999, p. 113. 23 file:///C:/Users/Sony/Downloads/Miscellaneous-Writings-Of-M-G-Ranade.pdf, accessed on August 20, 2016: Address by M.G. Ranade in The Second Social Conference, Allahabad, 1888 in The Miscellaneous Writings of Late Hon’ble Mr. Justice MG Ranade, Sahitya Academy, New Delhi, 1992, p. 88. 24 file:///C:/Users/Sony/Downloads/Miscellaneous-Writings-Of-M-G-Ranade.pdf, accessed on August 20, 2016: Address by M.G. Ranade in The Second Social Conference, Allahabad, 1888 in The Miscellaneous Writings of late Hon’ble Mr. Justice MG Ranade, Sahitya Academy, New Delhi, 1992, p. 81 25 file:///C:/Users/Sony/Downloads/Miscellaneous-Writings-Of-M-G-Ranade.pdf, accessed on August 20, 2016: Address by M.G. Ranade in The Second Social Conference, Allahabad, 1888 in The Miscellaneous Writings of Late Hon’ble by Mr. Justice MG Ranade, Sahitya Academy, New Delhi, 1992, pp. 81–2.

Constitutional democracy in India 47 26 Lala Lajpat Rai, Ideals of Non-Cooperation, Ganesh and Company, Madras, 1921, p. 50. 27 Bipin Chandra Pal, Swadeshi and Samaj: The Rise of New Patriotism, Yugayatri Prakashak Limited, Calcutta, 1954, p. 55b. 28 Lala Lajpat Rai, Ideals of Non-Cooperation, Ganesh and Company, Madras, 1921, p. 98. 29 https://books.google.co.in/books?id=LL9JAAAAMAAJ&printsec=frontcover#v=one page&q&f=false, accessed on August 20, 2016, Aurobindo Ghose, The Doctrine of Passive Resistance, Arya Publishing House, Calcutta, 1948, p. 11. 30 https://books.google.co.in/books?id=LL9JAAAAMAAJ&printsec=frontcover#v=one page&q&f=false, accessed on August 20, 2016, Aurobindo Ghose, The Doctrine of Passive Resistance, Arya Publishing House, Calcutta, pp. 15–6. 31 C.A. Bayly, Recovering Liberties: Indian Thought in the Age of Liberalism and Empire, Cambridge University Press, Cambridge, 2012, p. 346. 32 Rajendra Vora, ‘Two strands of Indian liberalism: The ideas of Ranade and Phule’, in Thomas Pantham and Kenneth Deutsch (eds.), Political Thought in Modern India, Sage, New Delhi, 1986, p. 107. 33 Rajendra Vora, ‘Two strands of Indian liberalism: The ideas of Ranade and Phule’, in Thomas Pantham and Kenneth Deutsch (eds.), Political Thought in Modern India, Sage, New Delhi, 1986, p. 108. 34 Address of BR Ambedkar to a felicitation function, Bombay, March 4, 1933 – reproduced in Narendra Jadhav (ed.), Ambedkar Speaks, Konark Publisher Pvt. Limited, New Delhi, Vol. 1, p. 422. 35 C.A. Bayly, Recovering Liberties: Indian Thought in the Age of Liberalism and Empire, Cambridge University Press, Cambridge, 2012, p. 305. 36 C.A. Bayly, Recovering Liberties: Indian Thought in the Age of Liberalism and Empire, Cambridge University Press, Cambridge, 2012, p. 310. 37 I borrow this expression from C.A. Bayly who developed the idea in his Recovering Liberties: Indian Thought in the Age of Liberalism and Empire, Cambridge University Press, Cambridge, 2012, p. 346. 38 The resolution is quoted in quoted in The Nehru Report: The Anti-Separatist Manifesto, 1928, Machiko & Panjathan, New Delhi, 1928, Vol. I, p. 25. 39 The Nehru Report: The Anti-Separatist Manifesto, 1928, Machiko & Panjathan, New Delhi, 1928, Vol. I, p. 35. 40 The Nehru Report: The Anti-Separatist Manifesto, 1928, Machiko & Panjathan, New Delhi, 1928, Vol. I, p. 36. 41 The Nehru Report: The Anti-Separatist Manifesto, 1928, Machiko & Panjathan, New Delhi, 1928, Vol. I, p. 36. 42 The Nehru Report: The Anti-Separatist Manifesto, 1928, Machiko & Panjathan, New Delhi, 1928, Vol. I, p. 36. 43 The Nehru Report: The Anti-Separatist Manifesto, 1928, Machiko & Panjathan, New Delhi, 1928, Vol. II, p. 62. 44 The Nehru Report: The Anti-Separatist Manifesto, 1928, Machiko & Panjathan, New Delhi, 1928, Vol. II, p. 65. 45 Neera Chandhoke pursues this argument in her ‘the political consequences of ethic mapping’, Crisis State Development Research Centre (discussion paper no. 14), LSE, December, 2005 (mimeograph), pp. 12–14. 46 The Nehru Report: The Anti-Separatist Manifesto, 1928, Machiko & Panjathan, New Delhi, 1928, Vol. II, p. 67. 47 The Nehru Report: The Anti-Separatist Manifesto, 1928, Machiko & Panjathan, New Delhi, 1928, Vol. II, p. 67. 48 Jawaharlal Nehru, An Autobiography: With Musings on Recent Events in India, John Lane the Bodley Head, London, 1941, p. 418. 49 Jawaharlal Nehru, An Autobiography: With Musings on Recent Events in India, John Lane the Bodley Head, London, 1941, p. 417.

48  Constitutional democracy in India 50 Constitutional Proposal of the Sapru Committee, 1945, Padma Publications, Bombay, 1945, p. 10. 51 Curzon’s statement of August 20, 1917 in the House of Commons in response to Montague’s declaration is cited in Constitutional Proposal of the Sapru Committee, 1945, Padma Publications, Bombay, 1945, p. 11. 52 Constitutional Proposal of the Sapru Committee, 1945, Padma Publications, Bombay, 1945, p. 325. 53 Constitutional Proposal of the Sapru Committee, 1945, Padma Publications, Bombay, 1945, p. 326. 54 Constitutional Proposal of the Sapru Committee, 1945, Padma Publications, Bombay, 1945, p. 326. 55 Constitutional Proposal of the Sapru Committee, 1945, Padma Publications, Bombay, 1945, p. 141. 56 Constitutional Proposal of the Sapru Committee, 1945, Padma Publications, Bombay, 1945, pp. 161–2. 57 Constitutional Proposal of the Sapru Committee, 1945, Padma Publications, Bombay, 1945, p. 258. 58 Constitutional Proposal of the Sapru Committee, 1945, Padma Publications, Bombay, 1945, p. 258. 59 Constitutional Proposal of the Sapru Committee, 1945, Padma Publications, Bombay, 1945, p. 216. 60 Constitutional Proposal of the Sapru Committee, 1945, Padma Publications, Bombay, 1945, p. 219. 61 Constitutional Proposal of the Sapru Committee, 1945, Padma Publications, Bombay, 1945, p. 296. 62 Constitutional Proposal of the Sapru Committee, 1945, Padma Publications, Bombay, 1945, p. 298. 63 Constitutional Proposal of the Sapru Committee, 1945, Padma Publications, Bombay, 1945, p. 326. 64 G.B. Pant’s address in the Constituent Assembly, January 24, 1947, Constituent Assembly Debates (CAD hereafter), Book No. 1, p. 331. 65 Shibanikinkar Chaube, Constituent Assembly of India: Springboard of Revolution, Manohar, New Delhi, 2000, p. 49. 66 CAD,B.R. Ambedkar, December 17, 1946, Book No. 1, p. 102. 67 CAD,Jawaharlal Nehru, December 13, 1946, Book No 1, p. 62. 68 CAD, Rajendra Prasad, November 26, 1949, Book No 5, p. 987. 69 Mohit Bhattacharya, ‘The mind of the founding fathers’, in Nirmal Mukarji and Balveer Arora (eds.), Federalism in India: Origins and Development, Vikas Publishing House, New Delhi, 1992, p. 103. 70 Sujit Choudhury, Madhav Khosla and Pratap Bhanu Mehta, ‘Locating Indian Constitutionalism’, in Sujit Choudhury, Madhav Khosla and Pratap Bhanu Mehta (eds.), The Oxford Handbook of the Indian Constitution, Oxford University Press, New Delhi, 2016, pp. 4–5. 71 Sandipta Dasgupta, ‘ “A language which is foreign to us”: Continuities and anxieties in the making of the Indian Constitution’, Comparative Studies of South Asia, Africa and Middle East, Vol. 34, No. 2, 2014, p. 240. 72 Balkrishna Sharma’s intervention in the Constituent Assembly, November 25, 1949, CAD, Book No. 5, Lok Sabha Secretariat, New Delhi, 2003, p. 968. 73 Raj Bahadur’s intervention in the Constituent Assembly, November 25, 1949, CAD, Book No. 5, Lok Sabha Secretariat, New Delhi, 2003, p. 969. 74 Kamaleshwari Prasad Yadav’s intervention in the Constituent Assembly, November 25, 1949, CAD, Book No. 5, Lok Sabha Secretariat, New Delhi, 2003, p. 971.

Constitutional democracy in India 49 75 Sandipta Dasgupta, ‘ “A language which is foreign to us”: Continuities and anxieties in the making of the Indian Constitution’, Comparative Studies of South Asia, Africa and Middle East, Vol. 34, No. 2, 2014, p. 229. 76 Uday S. Mehta, ‘Indian Constitutionalism: Crisis, unity and history’, in Sujit Choudhury, Madhav Khosla and Pratap Bhanu Mehta (eds.), The Oxford Handbook of the Indian Constitution, Oxford University Press, New Delhi, 2016, pp. 51–4.

2 The British initiatives in constitutionalizing India

Three major ideological forces seem to have been critical in the making of the Constitution: colonialism, nationalism and democracy. The colonial, nationalist and democratic articulation of ‘the political’ remains therefore crucial in comprehending the processes that influenced the Assembly. Two points need to be kept in mind: First, although colonialism and nationalism are surely antagonistic, there is no doubt that the former provoked circumstances in which nationalism emerged as a powerful ideology to articulate the voices of the colonized. Secondly, colonialism also led to a slow process of democratization by gradually involving people favourably disposed towards alien administration. The colonial state had permitted some measures of representation to carefully selected Indian interests. But it had also ensured that ‘the state had always operated at a level removed from the society which it governed’. Appropriating ‘the executive privilege’ for itself, the colonial state appeared to ‘stand outside the realm of [public reckoning] and therefore free to arbiter over, social conflict and political competition [and its relationship with the subject] continued to be conducted in the language of supplication and concession, grants and demands, charters and petition, grievances and repression’.1 The British were admittedly influenced by their own ‘theories of liberalism and self-government’. Through a mixture of motives that ranged from ‘self-interests and ideological commitments’, the colonial government introduced principles of representation, appropriate for its rule, into the colonial legislature.2 The British imperial attitudes in India thus seem to be ‘highly ambiguous’ resulting from their efforts to negotiate their liberal regard for self-rule as the best form of government and their vested interests in being imperial masters.3 The root of such an ambiguous nature of colonialism in India needs to be located in the distinct unfolding of the British rule in India: on the one hand, it was naturally exploitative and had left no means to establish its complete hegemony while being in governance. So, India, just like any other colony, had undergone a phase of torture, injustice and pain. There was, on the other hand, another aspect of British colonialism, namely the desire on the part of the rulers to expand liberal values, being backed by supportive institutions, which complemented the efforts of the Indian liberals to consolidate a regime appreciative of the principles of the philosophy of Enlightenment. As shown in Chapter 1, liberal ideas, which travelled to India in the wake of colonialism, helped build a mindset in India that influenced

The British initiatives 51 and also shaped the Indian nationalist movement to a significant extent. The aim of this chapter is to demonstrate how complementary political institutions were built to support the system of liberal governance, which was also an effective strategy to accommodate the dissenting Indian voices in governance. This was a deliberate colonial design which corresponded with the British rulers’ concern to develop and also strengthen the idea of self-government by creating simultaneously supportive institutions. With an analytical account of how these institutions evolved and also functioned, the chapter also substantiates the argument that independent of these institutions, the endeavours towards constitutionalizing India would have taken a different path. In simple terms, the chapter argues that in the evolution of constitutional democracy in India, the British initiatives which led to the establishment of political institutions supportive of liberal values during colonialism remained critical in the efforts that the nationalists undertook in constitutionalizing India.

Major initiatives by the colonial government Colonialism expanded its control in India in two distinct ways: First, by tactfully following the divisive divide-et-impera strategy that created and sustained the schism between the two major communities of Hindus and Muslims. The British strategy worked favourably because of the socio-economic differences that separated these two communities. In course of time, the divide and rule formula not only consolidated the British rule in India, but also created conditions for the politically under-privileged sections to rise as meaningful partners in governance. So, it cut both ways: on the one hand, the chasm between communities, based on genuine socio-economic differences as well, made the task of governance easier for the ruler; this also, on the other hand, led to a process whereby the peripheral communities became a powerful political voice in the nationalist struggle for independence. Secondly, drawing on the classical liberal-democratic tradition, the British ruler introduced several legal steps to consolidate the Empire by gradually opening up administration to the Indians. Along with the application of force, the British government also adopted various reform schemes to inject constitutional values that shaped the nationalist campaign to a significant extent. It will therefore not be incorrect to suggest that the British rule survived in India with the least coercion because of the role of the Indian collaborators in defending the Empire. Except in the context of the 1942 open rebellion, the collaborative network of support had never shown signs of disintegration. The adoption of various reforms by the British government created conditions in which Indians felt attached to the imperial rule that finally collapsed due to its internal contradictions and also the growing nationalist consolidation opposed to foreign rule. Focusing on the landmark constitutional designs during the British rule, this chapter is an analytical account of the British politico-legal strategies to consolidate the Raj. These designs, undoubtedly concessions to the ruled, were also devices to weaken the nationalist agitation as and when it became a serious threat to the government. In other words, while the British liberal tradition may have contributed to the

52  The British initiatives constitutional reforms, one cannot deny the growing strength of the nationalist campaign, Gandhian or otherwise, that forced the British to introduce measures to defuse crisis. An uncritical look at the selective, but major, landmark constitutional initiatives during the colonial rule may lead one to conclude that these were initiated by the British for the Indians. Hence the spirit of nationalism is underrated. If one goes beyond the surface, what is evident is that the inclusion of Indians in administration was but an outcome of the British effort to defuse popular discontent. Hence the argument that every constitutional drive was initiated by the Raj does not seem to be persuasive. History reveals that there were situations which forced the British authority to adopt measures to control agitation. For instance, the Congress campaign in the 1880s contributed a lot to the introduction of the 1893 reforms. Behind the 1909 Morley-Minto Reforms lay the Swadeshi Movement and revolutionary terrorism. Similarly, the 1919 Montague-Chelmsford Reforms were attempts at resolving crises that began with the Home Rule League and climaxed with the 1919 Rowlatt Satyagraha and the Non-Cooperation Movement of 1910–21. To a large extent, the Gandhian Civil Disobedience Movement (1930–32) accounted for the introduction of constitutional measures seeking to involve Indian politicians in public administration. Furthermore, the interpretation of these constitutional designs remains partial unless linked with the broader socio-economic and political processes in which they were conceptualized. An attempt to analyze the structure and dynamics of constitutional politics without reference to the broader social matrix and economic nexus is futile because the politico-constitutional structure reflects economic and social networks, religio-cultural beliefs and even the nationalist ideology which impinged on the organized world of administrative and constitutional structure. So an urgent and unavoidable task for an analyst is not to completely ignore the broader socio-economic context but to ascertain its relative importance in shaping a particular constitutional initiative. For instance, the 1932 Communal Award was believed to have been initiated by the British to expand political activity among the Muslims in Bengal and Punjab. But, as studies have shown, it was also a concession the British was forced to grant in order make the maintenance of the Empire easier.4 The sharing of power with the native elites was thus prompted by considerations other than merely British initiatives.

The landmark constitutional designs before the 1858 Queen’s Proclamation With the victory of the East India Company in 1757, a new era in India’s political history had begun; it was an era of British colonialism that lasted for almost two hundred years. What is fascinating is the unfolding of the British rule in India which also laid out a solid foundation of what later became as constitutional democracy for India. Behind these imperial designs remained two objectives: First, by gradually expanding the base of colonial administration, the British rulers pursued a politico-ideological design of being accommodative of the dominant

The British initiatives 53 (and also pliable) sections of the nationalists which paid them off till the complete independence resolution was adopted in 1929. Even during the heyday of the Gandhi-led anti-British nationalist campaign, there were many leading Indians who appreciated the British rule for being ‘truly’ liberal. Of them, it was BR Ambedkar who always preferred colonial paramountcy to the rule by the Congress, which actually meant the rule by the upper caste Hindus. The second objective which is critical for our purpose relates to the British concern for building constitutional governance which, the rulers felt, was linked with their so-called civilizing mission in India. Although the design unfolded in phases, there is doubt that it was a goal-driven initiative which culminated in the formation of responsible governments by the democratically elected representatives. So, the idea that germinated with the acceptance of the 1861 Council Act remained dominant not only during the British rule in India but even in its aftermath.

The unfolding of the colonial design of governance The nature of the British administration also varied: under the East India Company, the Crown was not directly involved in administration; it was peripherally linked as the supreme authority controlling the Company that functioned under the overall administrative jurisdiction of the British queen. Empowered by the Crown, two institutions were entrusted with the operation of the Company in India: the Court of Proprietors and the Court of Directors. These two Courts were largely independent and decided the course of action for the Company in India. The Queen’s charter authorized the Courts to fulfil its goal in India without almost any restriction. The Company functioned in a ruthless manner, guided solely by its commercial interests. Although there were attempts by the Company rulers to bring about reforms in administration, these remained largely academic in nature. Complaints against the ‘misrule’ of the Company poured in and as a result, the House of Commons appointed a Committee of Secrecy to look into the authenticity of the complaints. The findings of the Committee went seriously against the Company. The result was the adoption of the Regulating Act of 1773, the first formal articulation of the British supremacy over a part of India that abolished the Dual Government of the Company.

The Regulating Act, 1773 This Act was the first measure of the British Parliament that directly intervened in the affairs of the Company. Although the power of the Company’s directors remained unaltered, the regulation that the Company was required to keep the Treasury Bench informed reduced its independence drastically. The Governor of Bengal, Warren Hastings, was now designated as the Governor General who would be assisted by a Council of four members recommended by the Crown. According to the Act, the supreme authority rested not with the Governor General, but with the Council, guided by the principle of majority while taking a decision vis-à-vis India. While in India, the Council remained supreme, but it had to

54  The British initiatives function under the supervision, direction and control of the Court of Directors in London. The Act was a major milestone in India’s public administration for four specific reasons: First, by restraining the Company, the Act simply endorsed the importance of values in administration. As the Company was involved in public administration in India, it hardly could avoid its obligations to the ruled. The intervention by the Crown clearly suggests that the British government was not at ease with the way, the Company was managing its affairs in India. There were many Indians who also expressed their resentment since the administration became a vehicle for fulfilling partisan interests. As GK Gokhale stated, The true well-being of the people is systematically subordinated to militarism and the service interests of the European mercantile classes. . . . Even the efficiency of administration, as has been attained in the past by the existing system, is bound to suffer more and more, owing to the antagonism of the governed to that system.5 In such a tense situation, the promulgation of the Regulating Act of 1773 was a concessional design upholding an ideological concern of the rulers in England for the governed in India. There is no denying the fact that colonial interests remained paramount though the Act contributed to a social and political ambience that led to the adoption of ameliorating legal enactments in the course of time. Secondly, rejecting the individual-based administration, as epitomized by the Governor, the Act also made the Council accountable to the Crown. This was a significant break with the past because public administration was not merely governance, but governance with a purpose. So, apart from laying the structure of administration, the 1773 Act sought to change the ideological basis of Company rule that was now guided by the well-established principles of administration, evolved in the long tradition of Westminster democracy under the Crown. Thirdly, the Act marked the beginning of centralization. The Governor-General-in-Council became the supreme ruler in India and the Governors of three presidencies of Bengal, Madras and Bombay were reduced to subordinate governments. Within the overall control of the Governor-General, the Act however demarcated administrative domains of the Governors of the presidencies that were critical to the evolution of public administration in India. By involving the Council in administration, the Act also inaugurated a new trend in the Company’s rule that no longer remained, at least theoretically, as arbitrary as before. The Governor-General was required to consult the Council and was also made accountable to the British Parliament. Finally, the most outstanding feature of the Act was the establishment of a Supreme Court in Calcutta. This Court was founded under the Letters of Patent with Elijah Impey as the Chief Justice and three other judges. Primarily a court of record, it also had civil, criminal, ecclesiastical, admiralty, equity and supervisory jurisdiction over the whole presidency and any person in the employment of the Company even outside the presidency.

The British initiatives 55 As evident, the Act was most critical to public administration in India because (a) it laid down the skeleton of the governmental system of modern India, and (b) all subsequent enactments can be said to have either enlarged or amplified the basic text of the 1773 Act. Despite its limited appeal in today’s context, the Act was certainly radical in its approach and content. By holding the Company responsible to the Parliament, the Act sought to shape Company’s administration in accordance with principles of ‘formal’ democracy. Although the Act recommended unitary command by suggesting the supremacy of the Governor-General-in-Council, it was also a device for ‘limited’ decentralization because the Governors of the presidencies remained independent, at least administratively, within their respective domains. The Regulating Act of 1773 was not sufficiently equipped to address the administrative distortions in India under the Company rule. The parliamentary committee under Edmund Burke exposed the arbitrary functioning of the Governor-General and Chief Justice and recommended their recall. But it was not possible because the Board of proprietors refused to respect the recommendation. This led to a constitutional crisis because it also demonstrated the lack, if not absence, of parliamentary control of the Company rule in India. In response, the Pitt’s India Act of 1784 was enacted. According to this Act, the Court of Directors was allowed ‘free hands’ to manage the commercial affairs of the Company in India, while in the political sphere the authority was vested in a new body, known as the Board of Control, comprising six Commissioners. Appointed by the King, the Board had in it the Chancellor of the Exchequer, a Secretary of State and four Privy Councilors. The Board retained full powers of ‘superintendence, direction and control’ of all operations of the civil and military governments of the British territorial possessions in the East Indies. The Court of proprietors lost its hegemony in Company’s affairs except in the election of Directors, who were given the authority to make appointments of all posts in India though the Crown was authorized to recall any person in the employment of the Company. In the evolution of public administration in India, the Pitt’s Act was an important benchmark for two reasons: First, the Act established the supremacy of the British Crown in territories controlled by the Company. Administration was now an elaborate arrangement involving those appointed by the King and accountable to the Parliament. Through various structural mechanisms, the British government sought to create a system of governance in India which was qualitatively different from any of the preceding administrations. Secondly, this Act introduced a new policy in relation to the Indian princes by laying down that the Company should follow a policy of ‘non-interference’ in their affairs. In other words, the Company was restricted to those areas which were already under its control. The non-intervention policy was short-lived and by the end of the eighteenth century, especially with the arrival of Wellesley as Governor-General, the British Empire in India was transformed into the British Empire of India. Wellesley accomplished his task both by military stringency and strategic ‘subsidiary alliances’ with the Indian princes. What was remarkable about Wellesley, apart from his role

56  The British initiatives as an empire-builder, was his concern for an efficient administration because he believed that without skilled administrators the Empire could not survive. With this intent, he founded a college at Fort William for the training of the Company’s civil servants. From here, one can trace the genesis of Indian Civil Service that was to be founded soon. The Regulating Act of 1773 and the Pitt’s India Act of 1784 were two pieces of legislation to evolve institutions to impose restrains on the East India Company’s authority in India and make it accountable to the Crown. While the former created the institution of the Supreme Court for administering justice, the latter led to the constitution of a Board of Control in London to supervise the Company’s activities in India. As designs of governance, they were fine though there were severe constraints which crippled their authority to a significant extent. For instance, the Supreme Court was unable to apply the British common law since it was asked to be equally sensitive to the native law just to protect the sentiments of the local collaborators who extended, in exchange, their unconditional support to the rulers. It created a piquant situation which forced the Parliament to appoint a select committee with Edmund Burke as its chairman to devise a mechanism to avoid conflicts between the Company and Parliament. The Pitt’s Act of 1784 was the outcome and the Board of Control for the Company, which was to be accountable to the Parliament, was established. In practice, however, both these Acts had achieved nothing substantial: the issue was addressed but the result was almost zero because the alleged tacit support of the government allowed the Company to continue in India with its diktat, which was not surprising in view of the circumstances.6

The Charter Act, 1833 Of all the acts enacted by the British Parliament to govern the East India Company in India, the Charter Act of 1833 is perhaps the most watershed legislative intervention in India’s public administration. Why was such an Act necessary? The administration, both in India and Britain, confronted new circumstances following the rapid expansion of the British Empire in India. The administrative machinery was not adequate in holding the Empire together. In Britain, parliamentary reforms led to a new form of governance largely due to the influence of Enlightenment philosophy with its emphasis on enlightened liberalism. There was a clamour for free trade with India, unrestricted immigration of Europeans into India, reform of laws and improvement of education in India. Two ardent liberals who set forth the changes in the British attitude during this period were T. B. Macaulay and James Mill; the former, also a parliamentarian, was the Secretary to the Board of Control and the latter was the Examiner of India correspondence at India House. As the Company lost its commercial monopoly in India following the acceptance of the Charter Act, all restrictions to European immigration into India were removed. Besides, the Act introduced new devices of administrative control

The British initiatives 57 in India which are as follows: First, the Governor-General, now designated as Governor-General of India was vested with supreme authority in so far as civil, military and revenue administration were concerned. In the centralized administration, the Governors of other provinces were subordinates to the GovernorGeneral, who became the pivot of the British administration in India. Secondly, all decisions of the Governor-General and Governors overriding the decisions of their respective Executive Councils were to be supported by recorded statement of reasons. This was a rider in the stipulation to restrain those holding supreme authority. Thirdly, all legislative powers were vested in the Governor-Generalin-Council and the provincial governments lost their legislative powers. Laws approved by the Governor-General-in-Council came to be designated as acts and the endorsement of the Supreme Court for their validity was withdrawn. These acts were applicable to all Courts. Fourthly, a Law Member who was to be an English Barrister was to be appointed to the Governor-General-in-Council in an advisory capacity. This appointment was certainly a significant step in the constitution of the Imperial Legislative Council. T. B. Macaulay, the first Law Member, was also entrusted with the task of codifying laws for India in his capacity as the President of the Indian Law Commission that came into being at the behest of the Governor-General. Finally, the Charter Act was also a powerful statement against discrimination in employment under the Company due to religion, place of birth, descent, colour or any of these. Although this principle was theoretically endorsed, the practice was otherwise for reasons connected with colonialism. Public administration in India gradually became complex with the expansion of the British Empire. While the 1773 Regulation Act ushered in an era of centralized administration of the Company, the 1833 Charter Act marked the culmination of that process by establishing the authority of the Crown over the administration in India. The Governor-General became supreme along with Council. As evident, the Indian administration was largely Weberian in spirit and content: it was hierarchical and centralized involving various layers of administration within the overall structure of British rule. Its purpose was defined by colonialism,which remained a determining influence, for obvious reasons, until India’s independence in 1947.

The Act for the Good Government of India, 1858 Perhaps the most distinctive Act that radically altered the nature of public administration in India was the Act of 1858, which brought the East India Company’s century-old rule to an end. In order to strengthen the colonial rule in the aftermath of the 1857 abortive revolt of the Indian army, which is also characterized as the first war of independence, this Act stipulated devices to improve the administrative machinery by which the Indian government was to be superintended and controlled by the Crown in England. The Proclamation was not just a royal deed justifying the Crown’s authority, but also articulated the concern which was also derivative of the so-called civilizing mission of the British rulers; it was also a confirmation of what the British liberals strove to achieve by governing India in

58  The British initiatives a particular fashion. By taking over the India’s administration, the Queen thus proclaimed that We shall respect the rights, dignity and honour of native princes as our own; and we desire that they, as well as our subjects, should enjoy that prosperity and that social advancement which can only be secured by internal peace and good government. We desire no extension of our present territorial possessions; and while we permit no aggression upon our dominations or our rights to be attempted with impunity, we shall sanction no encroachment of those of others. We hold ourselves bound to the native of our Indian territories by the same obligation of duty which bound us to all our other subjects, and those obligations, by the blessing of Almighty God, we shall faithfully and conscientiously fill. We disclaim alike the right and the desire to impose our conviction (religious) on any of our subjects. We declare it to be our royal will and pleasure that none be in anywhere favoured, none molested or disquieted by reason of their religious faith or observances, but that all shall alike enjoy the equal and impartial protection of the law; and we do strictly charge and enjoin all those who may be in authority under us that they abstain from all interference with the religious belief or worship of any of our subjects on pain of our highest displeasure. In consonance with the foundational values of the philosophy of Enlightenment, the Proclamation stressed the needs for the rulers to become impartial while governing India. This was unequivocally stated in the Proclamation, which thus emphasized that And it is our further will that, so far as may be, our subjects, of whatever race or creed, be freely and impartially admitted to office in our service, the duties of which they may be qualified by their education, ability and integrity duly to discharge. We know and respect the feelings of attachment with which the native of India regard their lands inherited by them from their ancestors and we desire to protect them in all rights connected therewith, subject to equitable demands of the State; and we will that generally, in framing and administering the law, due regard be paid to the ancient rights and customs of India. When, by the blessing of Providence, internal tranquillity shall be restored, it is our earnest desire to stimulate the peaceful industry of India, to promote works of public utility and improvement, and to administer the Government for the benefit of all our subjects resident therein. In their prosperity will be our strength, in their contentment our security, and in their gratitude our best reward.7 The Proclamation provides significant inputs to the Act of 1858. By abolishing the Court of Directors and the Board of Control, the Act transferred the government,

The British initiatives 59 territories and revenues from the Company to the Crown with the appointment of Lord Canning as the first Viceroy and Governor-General of India. India was to be governed by the English Sovereign that, by implication, suggests the importance of the British Parliament in governance in India. As the pivot of colonial administration, the Secretary of State for India discharged all powers vested earlier in the Board of Control and Court of Directors. As a member of the cabinet, the Secretary of State drew his salary from the revenues generated from India. He was authorized to place the annual statement of accounts of all government revenue and expenditure in India and to submit a report of all moral and material progress in India. To assist him in the discharge of his constitutional and administrative responsibilities, he was provided with a Parliamentary and a Permanent UnderSecretary. A council, designated as the India Council, was constituted to help him perform his duties most efficiently. The Council was mainly an advisory aid and its role was thus limited though on various occasions it acted in a decisive manner to influence the decisions of the Governor-General through other constitutional bodies. The Act of 1858 was not qualitatively different from the earlier acts in the sense that it made no spectacular changes in the colonial administration except that it vested the entire revenue of the country in the Governor-General-in-Council. The provincial governments became totally subsidiary to the Council. Another paramount act which introduced non-official members into the administration was the 1861 Indian Councils Act. The function of the Council was limited to legislation and had no authority to control the executive though it empowered the provincial governments to legislate on provincial matters. The Executive Council was expanded to include the Advocate General of the provinces, in addition to four non-official members who were invariably Indians. The Indian Councils Act is a remarkable piece of legislation for two important reasons: First, it was a certainly an important step towards decentralization of power and in that sense it was a break with the past. For the first time, steps were taken to provide an alternative to centralized British administration. Secondly, it also introduced Indians into the administration by recommending the inclusion of non-official members. It was a deliberate political design to accommodate the elite Indians in public administration that had an enormous impact especially in the aftermath of the 1857 uprising. Although those who were nominated were either Indian princes or big landowners, it was undoubtedly a significant beginning towards involving Indians in public administration. In the early part of the Crown administration, two processes seem to have worked. On the one hand, attempts were made to strengthen the Governor-­ General-in-Council and there were steps, on the other hand, towards devolution, especially of financial power. In this connection, the 1870 Mayo resolution is most remarkable which stated, Local interest, supervision and care are necessary to success in the management of funds devoted to education, sanitation, medical charity and local public works. The operation of the resolution in its full meaning and integrity

60  The British initiatives will afford opportunities for the development of local self-government, for strengthening municipal institutions and for association of the natives and Europeans to a greater extent than before in the administration of affairs.8 Several acts were enacted to constitute municipalities in Bombay, Calcutta and Madras. The most eventful development in this regards was undoubtedly the 1882 Ripon Resolution that defended the introduction of the local self-government by underlining that it was introduced ‘not primarily with a view to improvement in administration. It is chiefly desirable as an element of political and popular education’. In pursuance of this goal, the 1885 Bengal Local SelfGovernment Act was adopted that led to the formation of district local boards in Bengal. The trajectory of the British rule in its initial phase suggests the phased decentralization of administration and also the growing involvement of the Indians in administration. Two substantial events changed the course of colonialism: (a) the founding of the universities of Calcutta, Madras and Bombay helped develop an articulate opinion of the educated Indians on the British rule. It captured the growing discontent among the Indians who always remained, for obvious reasons, peripheral in administration. (b) The inauguration of the Indian National Congress in 1885 created a new platform to ventilate the grievances of the ruled. This also became a forum for the Indians to articulate demands for better rule. This was the context in which the 1892 Indian Councils Act was promulgated. As the Act underlines, its aim was to widen and expand the functions of the Government of India, and to give further opportunities to the non-official and native elements in Indiana society to take part in the work of the Government, and in that way, to lend official recognition to that remarkable development both of political interest and political capacity that had been visible among the higher classes of Indian society since the Government of India was taken over by the Crown in 1858.9 The Act provided for the enhanced membership of the Councils. It was mandatory for the government to consult the representative bodies and institutions, approved by the government, before selecting nominees for the Councils. Besides legislative powers, the Councils were also empowered to pull the Executive on financial matters though it had no power to either revise or reject decisions on this matter. However, the growing weightage of the Councils is indicative of a sea change in colonial rule. As Morley, the Secretary of State, articulated, There are two rival schools of thought, one of which believes that better government of Indian depends on efficiency, and that efficiency is, in fact, the end of British rule in India. The other school, while not neglecting efficiency, looks also to what is called political concessions.10

The British initiatives 61 This declaration laid the foundational principles of the British administration in India. As a first step, a Royal Commission was appointed in 1907 to look into the administration that seemed to have lost its viability in the context of growing discontent among the ruled. The aim of the Commission was to provide an administration which was adapted to the changed social, economic and political realities of India. While recommending the corrective measures, the Commission was guided by the following factors:(i) the difficulties of ruling the vast sub-continent from a single headquarter and the inevitable failure of in the statesmanship and efficiency in administration; (ii) the difficulties of applying uniform schemes of development for the provinces, which are socio-culturally diverse; (iii) to instil a sense of responsibility among those engaged in provincial and local administration; and (iv) to strengthen the colonial rule by educating people in the values of strong administration. On the basis of the recommendation of the Commission, a bill was introduced in 1908 which became the 1909 Morley-Minto Reforms. As a political scheme seeking to strengthen colonial rule in India, the 1909 Act introduced a profound change with long-term effects in representation of communities in Councils. Once the Muslim League was founded in 1906 there were demands for a ‘separate electorate’ for the Muslims. In his plea to the GovernorGeneral, the Muslim League chief Aga Khan defended a separate electorate for the Muslims on the basis of their ‘numerical strength’, ‘political importance’ and ‘contribution’ which they made ‘to the defence of the Empire’. Endorsing the argument, Minto assured Aga Khan that the Muslims ‘may rest assured that their political rights will be safeguarded’. So, the 1909 Act is remarkable in the history of representation in India. Muslims were recognized as a separate community and their electoral rights were also guaranteed accordingly. The British policy of ‘divide and rule’ was thus formally articulated. Public administration continued to remain partisan, for obvious reasons. Meanwhile, the nationalist movement gained momentum and the political atmosphere in India changed. The 1909 Morley-Minto Reforms failed to address the genuine grievances of the ruled. Notwithstanding its demerits, the 1909 reform scheme was a break with the past in the sense that it ushered in an era of constitutional governance in India by making representative institutions integral to the British administration. By creating a forum for dialogues between the Indians and the administration, it also consolidated the foundation of democratic politics (though in a very restricted sense) in India; it also gave recognition to the elective principle as the basis of the composition of the legislative council for the first time, which was an advancement of the idea of collaborative governance in which the Indians remained as critical as ­ orley-Minto their British counterparts. An analytical scan of the features of the M Reforms reveals that they were an attempt to graft the principle of constitutionalism upon the existing autocracy of British rule; they were also the outcome of the old conception which made the Government of India a benevolent despotism which might, as it saw fit for purposes of enlightenment, consult the wishes of the subjects.11

62  The British initiatives The trend that had begun with the acceptance of the 1909 Reforms continued. Various other acts were enacted to sustain the system of governance that was articulated in the 1909 Reform scheme. With the outbreak of the First World War, a change in the attitude of the British government was visible which was largely ‘strategic’ to solicit the support of the Indians in its war effort. The result was the adoption of the 1919 Montague-Chelmsford Reform scheme, which was guided by the committed goal of the government ‘to increase association of the Indians in every branch of the administration and the gradual development of self-governing institutions in India’. On the surface, the Reform scheme appears to be novel and drew on the commitment to make public administration India-friendly, as the three major principles that formed the core of the scheme suggest: a) There should be, as far as possible, complete popular control in local bodies and the largest possible independence for them of outside control. b) The provinces are the domain in which the earlier steps towards the progressive realization of responsible government should be taken. Some measures of responsibility should given at once, and the aim of the British government is to provide complete responsibility to the Indians in their governance to the extent possible under the present circumstances. c) The Government of India must remain wholly responsible to the Parliament and saving such responsibility, its authority in essential matters must remain indisputable pending experience of the effect of changes now to be introduced in the provinces. Meanwhile, the Indian legislative council should be enlarged and made more representative and its influence in the processes of policy making needs to be enhanced. There is no denying that the 1919 Act was a politically appropriate strategy in a context where the nationalist movement was growing in importance especially after the arrival of Gandhi on the scene. Although the administration was guided by the colonial spirit, by involving the loyalist Indians in governance the British rulers provided a new design of public administration in India. In the new dispensation, structural changes in administration were made. The most remarkable step was the adoption of dyarchy. The dyarchy was an administrative device that demarcated functions between those which were to be given to popular control and those which were to continue to remain with the British rulers: the former were called ‘transferred subjects’ and the latter ‘reserved subjects’. The Governor-General-in-Council was in charge of the reserved subjects while Governors, acting with the ministers in the provinces, remained supreme in so far as the transferred subjects were concerned. On the surface, the nature of governance appeared to have undergone radical changes since the enlargement of the electorate created Indian majorities in various councils. But the appearance was misleading since critical roles were retained by the British. The distribution of power under the Government of India Act, 1919, which led to the creation of dyarchy, is illustrative here:

The British initiatives 63 Table 2.1  The division of administrative subjects under the Government of India Act, 1919 1a: Devolution of subjects of government Provincial Central Military, foreign affairs, tariffs and customs, Local self-government, medical administration and public health, railway, post and telegraphs, income education, public works and irrigation, tax, currency, coinage and public debt, land revenue administration, famine commerce and shipping, civil and criminal relief, agriculture, forests, exercise, law, audit of provincial expenditure administration of justice, industrial matters, police and jails, minor ports 1b:Provincial division of subjects of government Reserved Water supplies, land revenue administration, famine relief, land acquisition, justice, law reports, stamps, mineral resources, posts, water ways, police, newspaper control, European vagrancy, coroners, prisons, money borrowing

Transferred Local self-government, medical administration, public health, sanitation, vital statistics, pilgrimages, education, public works, agriculture, veterinary services, fisheries, cooperative societies, forests, exercise, registration, industry, stores, weights, libraries, elections

Source: Indian Statutory Commission, Volume 4, Memoranda 9 cited in Stephen Legg, ‘Dyarchy: democracy, autocracy and the scalar sovereignly of interwar India’, Comparative Studies of South Asia, Africa and Middle East, Vol. 36, No. 1, 2016, p. 45

As the above table shows, the dyarchy was a form of governance by which constitutionally bestowing authority on the British rulers (and not the elected representatives) in regard to the reserved subjects made them holders of defacto authority. Since the Viceroy had the veto power, the transfer of authority to the elected representatives was futile. Devolution was thus ‘intended to tie in a large element of society to the status quo’.12 The design was seen to have been politically contrived because ‘giving power to the local communities meant that energies that could have applied against the imperial power were dissipated into communal harmony’.13 An outcome of the grand imperial strategy of divide et impera, it worked for ruler’s benefit though, as the available literature shows, constitutional articulation of British imperial preferences in India always presented a problem for legislators and British colonial officials in India. For drafting and making ‘a democratic constitutional design’ what was imperative, for obvious reasons, was to ensure that ‘Britain’s imperial position would not be undermined or worse, eliminated’.14 Nonetheless, the British authority agreed to go ahead with the reforms presumably because of their self-proclaimed civilizing mission in India that also entailed an endeavour towards evolving a socio-political environment for constitutional democracy to strike roots. The constitutional reforms were thus an outcome of concerns for defending Britain as a champion of liberalism and also its tutelary role in developing a conducive milieu.

64  The British initiatives Despite being unique, the dyarchy was thus doomed to fail simply because of its ideological roots in colonialism. Even the Alexander Muddieman–led committee which was constituted to examine the functioning of dyarchy concluded that it crumbled because of its inherent weaknesses and dissensions due to the following factors: (i) The demarcation of authorities between reserved and transferred was meaningless since the defacto power always rested with the former;(ii) As a result, there was hardly effective dialogue between the provincial ministers and the Governors or the Governor-General;(iii) The Indian ministers were further handicapped since Indian civil service officers hardly cooperated with them; and (iv) the excessive control by the finance department of the Government of India over the transferred subjects. As evident, administration was constantly being restructured seemingly to placate the Indians’ interests in governance. Although the actual power rested with the British authority, dyarchy was a critical step towards administrative devolution that radically altered the complexion of the British power in India that largely revolved around Governor-General-in-Council. Dyarchy empowered the Governors, who exercised independence in regard to transferred subjects in the provinces. Furthermore, the involvement of the Indian ministers had introduced changes, though cosmetic in character, in public administration. Apart from gaining experience in administration, the Indian ministers acquired first-hand knowledge of how the administration functioned in most partisan manner. This helped them articulate a nationalist agenda which was now readily acceptable to the people at large since it was experience-based. So, dyarchy was very critical to conceptualizing the changing nature of public administration in British India at least in the first two decades of the twentieth century.

The 1935 Government of India Act Colonialism and centralization of power seem to go hand in hand though public administration in British India underwent changes at least in its content. A change is visible if one follows the evolution of public administration since the adoption of the 1772 Regulating Act. Perhaps the most (and last) significant constitutional measure in India during the British rule is the 1935 Government of India Act that drew on the inputs from the Indian Statutory Commission, the All Parties Conference, the Round Table Conferences and the Joint Parliamentary Committee of the British Parliament. Seeking to establish a federal form of government in which the constituent provinces had autonomous legislative and executive powers, the Act paved the way for a parliamentary form of government in which the executive was made accountable within certain bounds to the legislature. This had radically altered public administration in India, including the civil services in the country. Although the well-espoused federation never came into being, the Act was nonetheless a powerful comment against the integrated administrative system of the colonial variety. A perusal of the Act draws our attention to the following features: a) Provincial autonomy was recognized by giving the provinces a separate legal identity and liberating them from central control except for certain specific purposes.

The British initiatives 65 b) A federation of India was established demarcating domains between the provincial governments and the federal central government. c) Dyarchy, discontinued in the provinces, was introduced at the centre. Subjects of foreign affairs and defence were ‘reserved’ to the control of the GovernorGeneral; the other central subjects were transferred to ministers’subjects’ ‘safeguards’ in the provinces. d) The federal principle was recognized in the formation of the lower house of the central legislature though the defacto ruler remained the Governor-General. e) Separate electorate was retained following the distribution of seats among the minority communities, as devised by the 1932 Communal or MacDonald Award. The Act redefined ‘public’ in public administration. Introduction of provincial autonomy enabled the Indian ministers to be directly involved in administration though they had to function under the overall restriction of colonialism. Hence it was characterized as ‘a gigantic constitutional façade without anything substantial within it’.15 The Act was also a sign of the determination of the British government to warp the Indian question towards electoral politics. By involving Indians in administration, the Act had brought more players in the arena of public administration. There is no doubt that the Act introduced the Indian politicians to the world of parliamentary politics and as a result of the new arrangement stipulated by the Act, politics now percolated down to the localities, which largely remained peripheral so far. The available evidence also suggests that the Act was the price the British paid for the continuity of the Empire. What thus appears to be a calculated generous gesture was very much a politically expedient step. In fact, the surrender of power, though at the regional levels, caused consternation among the votaries of the British power in India, who saw an eclipse of British authority in this endeavour. The 1935 Government of India Act was certainly a powerful constitutional intervention that the colonial rulers seriously made to accommodate the nationalist zeal within, of course, the colonial administrative form. This is also illustrative of efforts at legitimizing the growing democratic aspirations of the ruled in India through a constitutional device. Interestingly, the 1935 Act remained the strongest influence during the making the 1950 Constitution for free India. Some 250 clauses of the present Constitution were, in fact, lifted from the Government of India Act. Although the political system of independent India draws its sustenance from universal adult franchise and political sovereignty, rules are undoubtedly derived from its colonial past. The most striking provisions that the Constitution of India derived from its 1935 counterpart are ‘the Emergency provisions’ that enable the president to suspend the democratically elected governments and fundamental rights of the citizens.

Reviewing the argument An uncritical look at these selective, but major, landmark constitutional initiatives during the colonial rule may lead one to conclude that these were initiated

66  The British initiatives by the British for the Indians. Hence the spirit of nationalism is underrated. If one goes beyond the surface, what is evident is that public administration underwent changes largely because of the British effort to defuse popular discontent. Hence the argument that every constitutional drive was initiated by the Raj is totally unfounded. History reveals that there were situations which forced the British authority to adopt measures to control agitation. For instance, the Congress campaign in the 1880s contributed a lot to the introduction of the 1893 reforms. Behind the 1909 Morley-Minto Reforms lay the Swadeshi Movement and revolutionary terrorism. Similarly, the 1919 Mont-Ford Reforms were attempts at resolving crises that began with the Home Rule League and climaxed with the 1919 Rowlatt Satyagraha and the Non-Cooperation Movement of 1910–21. To a large extent, the Gandhian Civil Disobedience Movement (1930–32) accounted for the introduction of constitutional measures seeking to involve Indian politicians in public administration. Furthermore, the interpretation of these constitutional designs remains partial unless linked with the broader socio-economic and political processes in which they were conceptualized. An attempt to analyze the structure and dynamics of constitutional politics without reference to the broader social matrix and economic nexus is futile because the politico-constitutional structure reflects economic and social networks, religio-cultural beliefs and even the nationalist ideology which impinged on the organized world of administrative and constitutional structure. So an urgent and unavoidable task for an analyst is not to completely ignore the broader socio-economic context but to ascertain its relative importance in shaping a particular constitutional initiative. For instance, the 1932 Communal Award was believed to have been initiated by the British to expand political activity among the Muslims in Bengal and Punjab. But, as studies have shown, it was also a concession the British were forced to grant in order to make the maintenance of the Empire easier. The sharing of power with the native elites was thus prompted by considerations other than merely British initiatives.

The 3 June Plan and India Independence Act, 1947 At the end of the Second World War (1939–45), the British politicians realized that the colonial rule in India could no longer be sustained. The Indian nationalists were deadly against its continuation. International opinion was also in favour of decolonization. The perspective in which the Indian question was so far articulated had thus radically changed. True to its pledge, the newly elected Labour government also responded to the situation in a very different way. Illustrative of their commitment is the announcement on 20 February 1947 where Atlee, the British premier, declared that ‘His Majesty’s Government wishes to make it clear that it is their definite intention to take necessary steps to effect the transference of power to responsible Indian hands by a date not later than June, 1948’.16 Accordingly, Mountbatten, the last Viceroy, was vested with all powers to devise an appropriate scheme to settle the Indian question. It was a difficult task. Nonetheless, the Viceroy convinced both the Muslim League and the Congress leadership

The British initiatives 67 to agree to the partition of Bengal and Punjab and also assured to complete the process by August 1947 instead of June 1948, as decided earlier. It was against this background that the 3 June Plan was prepared, which involved ‘at every stage a process of open diplomacy with leaders’.17 The Atlee government was determined to transfer power as the 3 June Plan was unambiguous in stating that ‘it has been the desire of His Majesty’s Government that power should be transferred in accordance with the wishes of the Indian people themselves’.18 It was also made clear that the responsibility of framing the constitution for independent India and Pakistan should rest with the people of the respective countries. As the government declaration further stated that His Majesty’s Government wishes to make it clear that they have no intention of attempting to frame any ultimate constitution for India [or Pakistan]; this is a matter to be decided by the people themselves. Nor is there anything in this plan to preclude negotiations between communities for a united India.19 The plan made provision for the constitution of two Boundary Commissions – one for the Punjab and the other for Bengal and if necessary for Assam. In case, the award not being implemented before the transfer of power to the government of Pakistan in August 1947, the plan provided for ‘the notional partition’ of the provinces of Bengal and the Punjab purely on the basis of demographic composition of the provinces. It further stressed that the Commission ‘shall under no circumstances be conditioned by the provisional boundaries and instead look into the matter afresh’.20 The 3 June Plan appeared to have guided the entire process of what finally culminated in the division of Bengal and Punjab. According to this plan, the provincial legislative assemblies of Bengal and Punjab would ‘meet in two parts, one representing the Muslim-majority districts and the other the rest of the Province’ to decide ‘whether or not the Province should be partitioned’.21 Unlike Punjab where the legislative assembly met amidst demonstrations and communal disorders, the voting in Bengal passed off in a comparatively peaceful atmosphere. First there was a joint meeting of the members from both the Muslim- and Hindumajority districts, presided over by the Speaker of the House, Nurul Amin, in which a majority of 126 members endorsed the demand for a new and separate Pakistan constituent assembly while ninety members voted for participating in the existing constituent assembly that was elected in 1946. At the second stage, members representing Muslim- and Hindu-majority districts met separately. In a meeting chaired by the Maharaja of Burdwan, members from the Hindu-majority districts decided in favour of partition by 58 to 21 votes, while members from the Muslim-majority districts, sitting separately, opposed partition by 106 to 35 votes. However when the results of the members from the Hindu-majority districts were made known to them, they decided by 107 to 34 votes that districts with a clear Muslim-majority should join the proposed Pakistan constituent assembly. The Indian Independence Act of 1947 that formally transferred power to the people of India was introduced in the House of Commons on 4 July and received

68  The British initiatives the royal assent on 18 July. Drawn on the spirit of the 3 June Plan, the Act also recognized the independent existence of Pakistan along with India. Since partition was accepted by both the Congress and Muslim League, it was rather easier for the British government to set out the terms and conditions for the transfer of power. Pakistan was created by bifurcating three Muslim-dominated British Indian provinces – two in the east, Bengal and Assam, and one in the west, Punjab. Sind, Baluchistan and North West Frontier Province were also to be included in the new state of Pakistan. As soon as the Independence Act was approved, the British government transferred its responsibility of governing the country to the new dominions. Similarly, the suzerainty of the British parliament over the princely Indian states lapsed and with it, all the treaties and agreements between the British government and Indian rulers. This provision provoked criticism from the Congress and Nehru in his note of 3 July 1947 argued that ‘the complete wiping out of all treaties and agreements in force at the date of passing of the Act will create administrative chaos of the gravest kind’.22 Hence he was in favour of endorsing the Cabinet Mission suggestion that ‘pending the new agreements, existing arrangements in all matters of common concern should continue’.23 The Muslim League hailed the Act just like the Hindu Mahasabha: while the League was happy because Pakistan was carved out, Hindu Mahasabha welcomed partition of Bengal, in particular, as it would give the Hindus an opportunity to govern themselves, which was not possible given the demographic preponderance of the Muslims in the erstwhile undivided province. The Act set in motion processes that finally led to the transfer of power on 15 August 1947. The Constituent Assembly had already begun its deliberations. The two Boundary Commissions were appointed under the chairmanship of Cyril Radcliffe, who submitted his recommendations within less than a month after his first meeting on the subject on 16 July 1947. Drawing on probably the best available legal minds, the Radcliffe Award turned out to be an excellent technical document which, due to the utter negligence of the reality in Bengal and Punjab, remained a bone of contention to those adversely affected by ‘this whimsical design’ even in the aftermath of freedom. Nonetheless, the 1947 Act remained an important statement on India’s freedom from colonialism for two interrelated reasons: first, India’s struggle for freedom led to a paradox of history because freedom was won with a heavy price in the form of partition of the country; secondly, this was an Act that despite being a formal declaration of the British withdrawal from India seemed to have translated into reality the British apprehension that imperial control of India was no longer tenable. For the nationalists in India and Pakistan, the 1947 Indian Independence Act was not merely recognition of what they fought for, but also one of the foundational, perhaps most significant, pillars of freedom. The constitutional arrangement that the Act stipulated was respected by all despite being critical of some of the provisions. This itself is indicative of the extent to which British colonialism succeeded in warping Indian minds in the typical liberal tradition of the Westminster type. There were hardly scathing criticisms of the provisions of the Act; neither the Congress nor the Muslim League challenged the Act except seeking

The British initiatives 69 clarifications or offering technical suggestions for implementing some of schemes that Act found appropriate for smooth transfer of power. The outcome of the Act was the inauguration of two new nations. India became free on 15 August 1947. A new era dawned and Jawaharlal Nehru captured that moment in his famous ‘tryst with destiny’ speech by saying that At the stroke of the midnight hour, when the world sleeps, India will awake to life and freedom. A moment comes, which comes but rarely in history, when we step out from the old to the new, when an age ends, and when the soul of a nation, long suspended, finds utterance. It is fitting that at this solemn moment we take the pledge of dedication to the service of India and her people and to the still larger cause of humanity.24 While Nehru was optimistic, his colleagues were not so given the multiple sources of discontent that the newly emerged nation was likely to confront. Apprehending that political freedom, by itself, made no sense unless it was articulated to bring about radical changes in governance which were possible once the sources of social, economic and political discontent were completely eradicated. Hence Rajendra Prasad, the president of the Constituent Assembly, exhorted that India needs today nothing more than a set of honest men who will have the interest of the country before them. There is a fissiparous tendency arising out of various elements in our life. We have communal differences, caste differences, language differences, provincial differences and so forth. It requires men of vision, men who will not sacrifice the interests of the country at large for the sake of smaller groups and areas and who will rise over the prejudices which are born of these differences.25 The scene does not appear to be as gloomy as it was made out to be, as he immediately pointed out that the ‘successful working of democratic constitution requires in those who have to work the willingness to respect the view point of others, capacity for compromise and accommodation’.26 He was also persuaded to believe that it was not difficult to achieve since ‘we have been able to draw this Constitution without taking recourse to voting and division in Lobbies’.27 Nonetheless, the social diversity of India was ‘a real, if awkward, fact [which] simultaneously provoked pride in India’s civilizational fecundity and plurality, and a fear in its centrifugal potential’.28 India’s partition in 1947 was a testimony to a situation where communal schism was resolved only with the vivisection of the country. One cannot therefore ignore the context in which specific efforts towards constitutionalizing India were made. In other words, what was initiated by the colonial rule in the name of constitutional governance and also those parallel attempts that the nationalists made towards that goal need to be understood with reference to the contemporary democratic politics. Constitutionalism is conceptualized as organically linked with the prevalent socio-economic context. There is a point of view however suggesting that it was a design for ‘political exclusion of

70  The British initiatives the masses’29 which both the colonial rulers and their opponents endorsed while articulating their responses for constitutionalizing India. Despite having contrasting political objectives, the colonizers and the colonized were hardly different in their approach to the masses given their ‘shared political language of exclusion [which] was intrinsic to constitutional reforms’30 that were undertaken so zealously during colonialism and its immediate aftermath. As their ideological goal was identical, the nationalists were persuaded to accept that ‘in order to achieve any measure of self-government, they had to adopt a language of representation, one that fundamentally agreed with the colonial government that large masses had yet to be tutored in the art of self-government’.31 It is true, and the argument draws heavily on this, that there existed two worlds: organized and unorganized; in the former, the appeal of constitutionalism was significant while the latter remained peripheral due to complex socio-economic reasons explaining their exclusion. However, the situation had undergone a sea-change with the arrival of Gandhi, who tried to bridge the gulf between the organized and the unorganized worlds for a nationalist goal. There were other ideological forces representing the interests of the peasants, workers and other marginalized sections of society, which also became prominent in struggles which were also directed against sociallyentrenched vested interests. The point here relates to the argument emphasizing the dialectical interconnection between democratic politics and constitutionalism. Hence India’s constitutional history is not one of absolute consensus but one that represented a series of conflicts around myriad social, economic and political issues. An analytical scan of what led India to become a constitutional democracy in the aftermath of decolonization reveals that the nationalists favoured the Westminster form of liberal democracy which they justified as an appropriate mode of governance because (a) it was meant to realize what they had imbibed by virtue of being part of the Empire that drew on the philosophy of Enlightenment and (b) it also had a natural appeal to them since they were nurtured in that tradition. Furthermore, it also demonstrates at another level that the nationalists hardly spoke in one language, and their ideological priorities were chosen accordingly though the Gandhian mode of anti-British protest campaign remained the dominant one. As far as the structure of governance was concerned, the nationalists and their bête noire undertook to seek to conceptualize it in a liberal theoretical mould. For instance, with the increasing importance of Muslims as an independent political entity, it was unavoidable for both the British government and Congressional nationalists not to take into account their special politico-ideological needs while devising the 1935 constitutional design for India; in a similar vein, the 1945 Sapru Committee paid significant attention to the communal question though within the nationalist framework to allay the fear of the minorities of being marginalized in what they characterized as Hindu-dominated India.

Concluding observations The evolution of colonialism in India will continue to remain an interesting area of research for a variety of reasons. Prominent among them is certainly the

The British initiatives 71 process in which colonialism sustained its grip in India by creating a strong collaborative network and also by successfully pursuing a divide-and-rule strategy to scuttle efforts at unifying socio-economically separated communities. The strength of British colonialism lies in the fact that unlike their European counterparts, the British rulers expanded and also maintained their presence not merely by coercion, but also by creating circumstances in which they emerged as the best possible option for the Indians, who remained highly divided due to various socio-economic and political reasons. The constitutional landmarks were a clear testimony to those imperial efforts that defused opposition rather easily on most occasions. What was distinct about British colonialism was its success in welding a significant section of population to the system of governance that the British introduced. It was possible due perhaps to its triumph in ideologically moulding people towards liberal political values and ethos. Barring the militant nationalists, most of the nationalists were content with the method of three Ps (petition, prayer and protest) until the rise of Gandhi, who radically transformed the complexion of anti-British confrontation. The scene was not the same with the ascendancy of the extremist nationalists who pledged to fight for India’s independence even by deploying coercive means. They were gradually exterminated by following a due process of law which was however managed by the British authority so efficiently that an image of the Empire being true to its commitment to the subjects was built and consolidated. It was therefore not surprising that the nationalists took to legal means to save their colleagues from gaol, which also confirms that these constitutionally recognized institutions of governance gained credibility among them despite being staunch opponents of the British rule. Here too, the argument that the nationalists upheld liberal values which, they felt, were protected by these complementary political institutions is reinforced. Fundamental here is the point that the legal stipulations and the institutions that they brought about led to the consolidation of British imperialism by most effectively managing (and also defusing) the nationalist counter-attacks before they became threatening to the Empire. In the process, these institutions also evolved as integrally connected with the evolution of India as a constitutional democracy which was rooted in the British endeavour towards constitutionalizing India, an effort which also received adequate support from the nationalists notwithstanding being opposed to the alien rule. In view of the uncanny similarities between the colonial institutions and those in independent India, one can safely argue that decolonization was hardly a break with the past. As a result, at least structurally, the institutions that helped the British to expand and consolidate its hegemony were allowed to survive. And, as a corollary to this argument, one can further advance the point that the weltanschauung (world view) that flourished in post-colonial India was based on ‘the mixed legacies of colonial rule’ that upheld the rule of law, bureaucracy, citizenship, parasitic landlords, modern political institutions and ‘two-track tradition of protest and participation’.32 What accounts for the relative stability of colonialism in India was certainly its ability to adapt to the changed socio-political circumstances, and also gradual but steady ‘internalization’ of domination by the

72  The British initiatives subjects of colonial rule, which provoked an analyst to characterize colonialism as ‘an intimate enemy’33 because the dominated saw the virtues of being dominated as being for their own betterment. Colonialism was thus not seen as an absolute evil but complementary to India’s rise as an independent nation in the future. The statement may not be politically correct. Nonetheless, it can safely be argued that colonialism provided critical impetus to various processes that finally resulted in serious political mobilization against imperialism in India. Whether nationalism or democratization, they had their roots in the long history of colonialism and in this sense colonialism remained a significant force behind the rise of India as an independent nation in 1947. As argued above, it will not be unfair to suggest that these landmark constitutional experiments contributed to the evolution of constitutional democracy in India, which does not seem to be overstretched, at one level; being primarily instruments of the Empire, these constitutional designs were, at another level, also meant to expand and consolidate its authority. By championing the distinctive rights of the minorities, especially the Muslims, the British authority utilized a powerful constitutional argument to cause a fissure between the two major communities, Hindus and Muslims, in India. The implication was disastrous as the recognition of Muslims as a separate socio-economic and political entity which required special constitutional protection culminated in the 1947 partition of the country. Hence it is argued that these constitutional designs had a role in permanently dividing major communities in India on the basis of religion and other socio-economic denominations. Both the Hindus and Muslims redefined their identities through a process of contestation of vision, contestation of beliefs and contestation of history. The period between 1909 and 1947, when major constitutional experiments were undertaken, sharply shows the mutation in the formation of Hindus and Muslims as communities opposed to each other in the political arena. What was distinctive about this period was the growth of the communities as political units always in a permanent adversarial relationship with the members of the ‘other’ community. This was further consolidated following the introduction of the communal electorate in the 1937 provincial elections. With the acceptance of the principle of majority, Muslims automatically became the most powerful community in Bengal and Punjab by their sheer demographic strength. In other words, religious identity as a demographic category became probably the single most crucial criterion in determining the distribution of governmental power in these Muslim-majority provinces. The 1935 Government of India Act reiterated the divide-and-rule strategy by formally recognizing that Muslims needed to be treated separately as a distinct but neglected minority in India. This was a decisive constitutional intervention because not only did it establish the principle of majority as sacrosanct in democracy, it also made the Muslims self-conscious of their critical importance in governance in India. It is now possible to argue that the 1935 Act definitely shifted the centre of political activity in Bengal to the east of the province. Not by virtue of any inherent superiority of the Muslims but simply because in a democratically elected legislature, as a contemporary report underlines, ‘the weight of numbers tells and the teeming millions of East Bengal – 60%

The British initiatives 73 of their being Muslims outweighed in point of numbers the more educated Hindus of the South, West and extreme north of the province’.34 The migration of power to the countryside took place in the context of a major realignment in the social bases of political power which was manifested in the decline of the urban-based Indian National Congress in East Bengal and the consequent consolidation of the Krishak Praja Party that caught the imagination of the majority community, the Muslims, in no time.35 Adequate attention to this aspect of India’s political history thus substantiates the claim that despite being supportive of constitutional democracy in India, these constitutional designs, true to their historical role of being imperial instruments, also had a share in consolidating divisive politics in India, which finally resulted in India’s partition.

Notes 1 Rajnarayan Chandravarkar, ‘Customs of governance: Colonialism and democracy in the twentieth century India’, Modern Asian Studies, Vol. 41, No. 3, 2007, p. 448. 2 Dipesh Chakrabarty, ‘In the name of politics: Democracy and the power of the multitude in India’, in Dipesh Chakrabarty, Rochona Majumdar and Andrew Sartori (eds.), From the Colonial to the Post-Colonial: India and Pakistan in Transition, Oxford University Press, New Delhi, 2007, p. 36. 3 D.A. Low, Britain and Indian Nationalism: The Imprint of Ambiguity,1929–1942, Cambridge University Press, Cambridge, 1997. 4 I have shown this in my ‘The communal award of 1932 and its implications in Bengal’, Modern Asian Studies, Cambridge, 23, 2, 1989. 5 D.G. Karve and D.V. Ambekar, Speeches and Writings of Gopal Krishna Gokhale, Vol. 2, Asia Publishing House, London, 1966, p. 129. 6 This argument is well-elaborated in the available literature which includes, among others, (a) C.H. Philips, The East India Company, 1784–1834, Manchester University Press, Manchester, 1961, (b) Lucy S. Sutherland, The East India Company in Eighteenth Century Politics, Clarendon Press, Oxford, 1962, (c) Ramkrishna Mukherjee, The Rise and Fall of the East India Company, Monthly Review Press, New York, 1974, (d) Jeremy Bernstein, Dawning of the Raj: The Life and Trials of Warren Hastings, Ivan R. Dee, Chicago, 2000. 7 www.csas.ed.ac.uk/mutiny/confpapers/Queen%27sProclamation.pdf, The Proclamation of the Queen in the Council to the Princes, Chiefs and People of India, November 1, 1858, accessed on June 17, 2017. 8 India Office Records, London, Report on the Administration of Bengal, 1871–72, Government Press, Calcutta, 1872, p. 11. 9 The text of theAct is, www.sdstate.edu/projectsouthasia/loader.cfm?csModule=security/ getfile&PageID=861833, accessed on May 25, 2016. 10 The statement of John Morley is quoted from D.A. Hamer, John Morley: Liberal Intellectual in Politics, Oxford University Press, Oxford, 1968, p. 111. 11 M.V. Pylee, Constitutional Government in India, Asia Publishing House, London, 1960, p. 73. 12 Walter Reid, Keeping the Jewel in the Crown: The British Betrayal of India, Penguin, New Delhi, 2016, p. 31. 13 Walter Reid, Keeping the Jewel in the Crown: The British Betrayal of India, Penguin, New Delhi, 2016, p. 31. 14 Arvind Elangovan, ‘Constitutionalism, political exclusion and implications for Indian constitutional history: The case of Montgue Chelmsford reforms (1919)’, South Asian History and Culture, 2016, p. 6.

74  The British initiatives 15 Indian Franchise Committee, Report of the Indian Franchise Committee, 1932 (Calcutta: Government of India Central Publication Branch, 1932), p. 4. 16 Prime Minister, Atlee’s statement in the House of Commons – reproduced in V.P. Menon, The Transfer of Power in India, Orient Longman, Madras, 1993, Appendix IX, p. 507. 17 Mountbatten’s statement – quoted in H.V. Hodson, The Great Divide: Britain-IndiaPakistan,Hutchinson, London, 1969, p. 204. 18 Statement made by the His Majesty’s Government on June 3, 1947 – reproduced in VP Menon, The Transfer of Power in India, Orient Longman, Madras, 1993, Appendix X, p. 510. 19 Statement made by the His Majesty’s Government on June 3, 1947 – reproduced in V.P. Menon, The Transfer of Power in India, Orient Longman, Madras, 1993, Appendix X, p. 510. 20 The Statesman, Calcutta, June 8, 1947. 21 Statement made by the His Majesty’s Government on June 3, 1947 – reproduced in V.P. Menon, The Transfer of Power in India, Orient Longman, Madras, 1993, Appendix X, p. 511. 22 A note July 3, 1947 by Jawaharlal Nehru – reproduced in V.P. Menon, The Transfer of Power in India, Orient Longman, Madras, 1963 (reprint), Appendix XII, p. 4. 23 A note July 3, 1947 by Jawaharlal Nehru – reproduced in V.P. Menon, The Transfer of Power in India, Orient Longman, Madras, 1963 (reprint), Appendix XII, p. 4. 24 Jawaharlal Nehru’s ‘Tryst with destiny’ speech, delivered at the dawn of independence in India on August 15, 1947 – quoted from B. Shiva Rao (ed.), The Framing of India’s Constitution: Select Documents, Vol. I, Universal Law Publishing Co, New Delhi, 2004 (reprint), pp. 558–9. 25 Rajendra Prasad’s address in the Constituent Assembly on November 26, 1949, Constituent Assembly Debates, Book No. 5, p. 993. 26 Rajendra Prasad’s address in the Constituent Assembly on November 26, 1949, Constituent Assembly Debates, Book No. 5, p. 993. 27 Rajendra Prasad’s address in the Constituent Assembly on November 26, 1949, Constituent Assembly Debates, Vol. XI, Lok Sabha Secretariat, New Delhi, 2003, p. 993. 28 Uday S Mehta, ‘Indian constitutionalism: Crisis, unity and history’, in Sujit Choudhury, Madhav Khosla and Pratap Bhanu Mehta (eds.), The Oxford Handbook of the Indian Constitution, Oxford University Press, New Delhi, 2016, p. 53. 29 Arvind Elangovan, ‘Constitutionalism, political exclusion and implications or Indian constitutional history: The case of Montague-Chelmsford reforms (1919), South Asian History and Culture, 2016, p. 14. 30 Arvind Elangovan, ‘Constitutionalism, political exclusion and implications or Indian constitutional history: The case of Montague-Chelmsford reforms (1919), South Asian History and Culture, 2016, p. 14. 31 Arvind Elangovan, ‘Constitutionalism, political exclusion and implications or Indian constitutional history: The case of Montague-Chelmsford reforms (1919), South Asian History and Culture, 2016, p. 14. 32 Subrata Mitra, ‘Constitutional design, democratic vote counting and India’s fortuitous multiculturalism’, Working Paper, November 2004, South Asia Institute, Heidelberg University, pp. 29–34. 33 Ashis Nandy, The Intimate Enemy: loss and Recovery of Self Under Colonialism, Oxford University Press, New Delhi, 1989 (reprint). 34 India Office Records, London, Tyson Papers, Eur E 341/41, John Tyson’s note, July 5, 1947. 35 I have dealt with this aspect of political mobilization in Bengal in my Partition of Bengal and Assam: The Contour of Freedom, Routledge, London and New York, 2004.

3 Designing constitutional democracy in India The Constituent Assembly’s inputs

Seeking to layout the background for the Constituent Assembly that drafted free India’s constitution, it is conceptually pertinent to focus on two specific constitutional steps that the British government undertook just on the eve of the 1947 transfer of power. While the 3 June Plan set out the agenda for the transfer of power, the 1947 Indian Independence Act translated that into reality. Framing a constitution for independent India was not an easy task. Beginning with the 1942 Cripps Mission, the idea of involving Indians in drafting their constitution was being debated. Although the 1946 Cabinet Mission enthusiastically supported the formation of a constituent assembly to prepare the constitution for a free India, its members were convinced that ‘a solution involving the partition of the Punjab and Bengal would be contrary to the wishes and interests of a very large proportion of the inhabitants of these Provinces’.1 Nonetheless, the sub-continent was partitioned and two independent nations – India and Pakistan – were born in 1947. The Constituent Assembly for India met, for the first time, on 9 December 1946 and in less than three years, the Constitution of India was produced and ready for adoption on 26 November 1949. Besides elaborating the processes that led to the making of the constitution, the chapter draws on the socio-economic and political circumstances of the era and also the philosophical predilections of the founding fathers to delve into the riddle as to why India’s constitution incorporated some of the draconian provisions of the 1935 Government of India Act despite nationalists being opposed to it when it was introduced. The format of this chapter is this both exploratory and descriptive: descriptive because it provides a detailed account of how the constitutional provisions were articulated and later adopted out of intense debates in the Assembly; exploratory since it also seeks to find out why a particular provision was enacted, ignoring the dissenting voices. The primary aim here is to understand how the 1950 Constitution evolved out of an ideational battle in which the founding fathers participated to pursue their preferred line of thinking. Out of an analytical scan of the debates, the chapter also makes an argument that the 1950 Constitution was as much an outcome of a concern for the establishment of a constitution-governed democratic regime in India as the fulfilment of a common desire for creating a space for liberal constitutionalism to strike roots and flourish. There is no doubt that it was BR Ambedkar and his colleagues in the

76  Designing constitutional democracy Congress Parliamentary Party who steered the debate in a fashion in which whatever they decided in advance was carried forward with majority support.

The Constituent Assembly and the making of the Constitution The making of free India’s constitution by the Constituent Assembly over a period of little less than three years is reflective of the efforts that the founding fathers undertook to translate into reality the nationalist and democratic aspirations of an independent polity following decolonization. Furthermore, while the Constitution was a continuity at least in structural and procedural terms, it was also a clear break with the past since the 1950 Constitution drew on an ideology that sought to establish a liberal democratic polity following the withdrawal of colonialism. There can be no greater evidence of the commitment to constitutionalism and rule of law on the part of the founding fathers than the Constitution that they framed despite serious difficulties due to partition. The commitment to liberal democratic values, as the Constituent Assembly proceedings suggest, remained paramount in the making of the Constitution. Set up as a result of negotiations between the nationalist leaders and the members of the Cabinet Mission over the possible constitutional arrangement in the post-war India, the Constituent Assembly was not, it is argued, convened ‘by any national provisional government but by the British government [to bring together] the delegates of the major political parties’.2 The task of the Constituent Assembly was to draft a constitution for India. The objective resolution that Jawaharlal Nehru moved was, according to BR Ambedkar, ‘an expression of the pent-up emotions of the millions of this country’.3 While defending the objective resolution, Nehru argued strongly for democracy and socialism: he strongly defended ‘democracy’ as the most appropriate system of government that ‘fit in with the temper of our people and be accountable to them’.4 Similarly, socialism, he firmly believed, would bring about economic democracy to India. For him, political independence was futile unless it was supported by democratic governance and socialistic vision. Hence he was critical of the princely states that were reluctant to relinquish monarchy for democracy. As a true democrat who had no doubt that socialism was the ultimate solution for India’s stark poverty, Nehru set the tenor of the discussion in the Assembly by providing a philosophical lay-out for free India’s constitution. Nonetheless, the political context in which the Constitution was being deliberated was full of uncertainty because of (a) Hindu-Muslim rivalry and (b) the reluctance of most of the princely states to join independent India. While the former led to the dismemberment of India following the British withdrawal in 1947, the latter necessitated threat or application of coercion, on occasions, to geographically unify India by bypassing the claim of the existing rulers of the princely states. By staying away from the Assembly, the Muslim members clearly stated their preference for Pakistan that gained momentum especially after the adoption of the 1940 Lahore resolution. The 1946 Calcutta and later Noakhali riots confirmed the Congress’s apprehension that it was possibly strategically

Designing constitutional democracy 77 correct to accept partition to avoid further bloodbath. What was clear when the Constituent Assembly met for drafting the Constitution was that Pakistan was inevitable and a strong state was required to fulfil its socio-economic goals.

The outcome Despite being appreciative of India’s pluralistic social texture, there was a near unanimity among the Assembly members for a strong state.5 Even those who were critical of the Emergency provisions also defended a centralized state to contain tendencies threatening the integrity of the country. Emergency provisions in the Constitution were justified because ‘disorder’ or ‘misgovernance’ endangers India’s existence as ‘a territorial state’. Such concerns could only have reflected, argues Paul Brass, ‘another kind of continuity’ between the new governing elite and the former British rulers, namely ‘an attitude of distrust’ of the ordinary politicians of the country and ‘a lack of faith’ in the ability of the newly franchised population to check ‘the misdeeds’ of their elected rulers.6 Nonetheless, the fear of ‘disorder’ was probably the most critical factor in favour of the arguments for a centralized state despite its clear incompatibility with the cherished ideal of the nationalist leaders for a federal state. BR Ambedkar’s contradictory stances on federalism, for instance, thus may appear whimsical independent of the circumstances. In 1939, Ambedkar was clearly in favour of a federal form of government for its political viability in socio-culturally diverse India.7 By 1946, he provided a radically different view by saying that ‘I like a strong united Centre, much stronger than the Centre we had created under the Government of India Act of 1935’.8 While presenting the final report of the Union Powers Committee, Jawaharlal Nehru also argued in favour of a strong state by stating that We are unanimously of the view that it would be injurious to the interest of the country to provide for a weak central authority which would be incapable of ensuring peace, of coordinating vital matters of common concern and of speaking effectively for the whole country in the international sphere.9 As evident, federalism did not appear to be an appropriate structural form of governance in light of the perceived threats to the existence of the young Indian nation. Hence the constitution-makers recommended for a strong centre because the constitutional design of a country is meant to serve ‘the normative-functional requirements of governance’. The constitution was to reflect ‘an ideology of governance’ regardless of whether they articulated the highly cherished ideals of the freedom struggle that a majority of the Assembly members nurtured while participating in the freedom struggle. GL Mehta believed that ‘we have to build up the system on the conditions of our country [and] not on any abstract theories’.10 In the same tune, Alladi Krishnaswamy Ayyar argued that ‘our constitutional design is relative to the peculiar conditions obtaining here, according to the peculiar exigencies of our country [and] not according to a prior or theoretical considerations’.11 In the making of the constitution for governance, they were guided more

78  Designing constitutional democracy by their views on statecraft, which would surely have been different without the traumatic experience of partition and communal bloodbath preceding the inauguration of the Constitution in 1950. Hence one can safely suggest that ‘hard-headed pragmatism and not abstract governmental theories’ was what guided ‘the architects of our Constitution’.12 Yet, it was not the entire Assembly that wrote the document. It was clearly the hard work ‘of the government wing of the Congress, and not the mass party’ and the brunt of the task fell upon ‘the Canning Lane Group [because] they lived while attending Assembly sessions on Canning Lane’.13 There is another dimension to the functioning of the Assembly which is also instructive. According to Granville Austin, India’s constitutional structure is perhaps ‘a good example’ of decision-making by consensus and accommodation, which he defends by examining the debates on various provisions of the constitution.14 Scholars however differ because given the Congress’s hegemony in the Assembly, views held by the non-Congress members were usually bulldozed. SK Chaube argued that at least on two major issues – political minorities and language – both these principles were conveniently sacrificed. As regards the political minority, there was no consensus and the solution to the language was, as Austin himself admits ‘a halfhearted compromise’.15 By dubbing the Assembly ‘a packed house’, the shrunk Muslim League expressed the feeling of being alienated from the house. Even Ambedkar underlined the reduced importance of the Assembly since on a number of occasions, as he admitted, ‘they had to go to another place to obtain a decision and come to the Assembly’.16 Decision by consensus may not be an apt description of the processes of deliberation. But, as the proceedings show, there was near unanimity on most occasions and divisions of opinion among the Congress Party members who constituted a majority were sorted out politically. As Ambedkar admits, ‘[t]he possibility of chaos was reduced to nil by the existence of the Congress Party inside the Assembly which brought into its proceedings a sense of order and discipline. . . . The Party is therefore entitled to all the credit for the smooth sailing of the Draft Constitution in the Assembly’.17 As Shiva Rao informs, on a number of controversial issues, efforts were made to eliminate or at least to minimize differences through informal meetings of the Congress Party’s representatives in the Constituent Assembly.18 If the informal discussion failed to resolve the differences, ‘the Assembly leadership . . . exercised its authority formally by the Party Whip’.19 As evident, in the Constituent Assembly no attempt was made to force decision, the accent being on unanimity presumably because ‘the leaders were alive to the fact that the constitution adopted on the principle of majority vote would not last long’.20 It was not therefore surprising that Rajendra Prasad, the president of the Constituent Assembly preferred to postpone debate and allowed them to work out agreed solutions rather than take a vote that might, as he apprehended, result ‘in something not wanted by anybody’.21 This was a common method that the Assembly adopted to avoid head-on collision among colleagues. This however does not suggest that the decisions that were arrived at represented consensus among the members. In fact, a majority of the provisions that finally figured in the Constitution were

Designing constitutional democracy 79 adopted by the support of the majority, which also means that the minority was left out by democratic means. Ram Chandra Gupta of United Provinces expressed the sentiments in a succinct manner by stating that The Constitution as it stands today, is the result of heated discussion and long debates over thousands of amendments, moved by Honourable Members of the House. . . . It is true that unanimity could not be achieved on every matter, and . . . you cannot expect that all members will have the same degree of satisfaction on all matters incorporated in the Constitution [which] . . . explains the mixed reaction accorded to the Constitution by the various speakers.22 Gupta’s is the most revealing statement on the functioning of the Assembly in the sense that it has drawn our attention to ‘the give-and-take’ syndrome, which, as he endorsed, was the dynamics in which the members seem to have discharged their role in the making of the Constitution. This is a contrary point of view from the one that supports the argument that the 1950 Constitution was an outcome of compromise and accommodation of even multiple viewpoints. Nonetheless, the fact remains that it was a gigantic exercise in which founding fathers were involved to draft an acceptable constitution for a diverse socio-political compact like in India. It was not an easy task, as the above discussion illustrates; but by their sincere endeavours, they succeeded in finally producing a document on the basis of their ideological priorities at the dawn of India’s political independence when the situation did not seem be very favourable due to the communal blood bath following partition. Two important points emerge out of the preceding discussions: First, the making of the Indian constitution was a difficult exercise not only because of the historical context but also due to the peculiar social texture of the Indian reality that had to be translated in the constitution. The collective mind in the Assembly was defensive as a consequence of rising tide of violence taking innocent lives immediately after partition. Secondly, the founding fathers seem to have been obsessed with their ‘own notion of integrated national life’. The aim of the constitution was to provide ‘an appropriate ordering framework’ for India. As Rajendra Prasad equivocally declared on the floor of the Assembly, ‘Personally I do not attach any importance to the label which may be attached to it – whether you call it a Federal Constitution or a Unitary Constitution or by any other name. It makes no difference so long as the Constitution serves our purpose’.23 On the whole, a unitary mind produced ‘an essentially unitary constitution doused with a sprinkling of permissive power for a highly supervised level of constituent units’.24 This was not the goal of the nationalists and, of course, their leader, Mahatma Gandhi, who always stood for a decentralized village republic. Besides confirming that constitutionalism in India was not entirely derivative, this assumption directs our attention to the argument that the Indian constitution was ‘cosmopolitan’ in character not only ‘in its fidelity to the universal principles of liberty, equality and fraternity’ but also due to fact that its text and principles, its values and its jurisprudence were drawn from ‘the major cross-currents of global constitutional law’.25

80  Designing constitutional democracy

Directional ideas26 Jawaharlal Nehru, by placing the Objectives Resolution on 13 December 1946, set out the ideological goals that they nurtured during the long-drawn battle for freedom from British rule. In simple terms, the Resolution contains a list of tasks that are complementary to nation-building. In other words, this was a task for the future of the nation and needed to be accomplished with great care. The persuasive speech not only inspired the members, but also clarified to them the nature of the responsibility that they were asked to shoulder. The first major step that the Assembly undertook was the adoption of the Objectives Resolution which ‘seeks to show how [the founding fathers] shall lead India to gain the objectives laid down in it [and] . . . also to give a live message to India and to the world at large to show [what they] have resolved to accomplish by framing a Constitution of their choice’.27 The Resolution has eight interrelated parts, each focusing on critical aspects of collective existence which the Constitution was meant to protect. Primarily, the Objectives Resolution contains a list of exalted socio-economic goals that the framers so assiduously aspired to fulfil during the battle against colonialism and its aftermath. Tuned to ‘the nation’s dream and aspiration’, the Resolution28 runs as follows: 1) This Constituent Assembly declares its firm and solemn resolve to proclaim India as an independent Sovereign Republic and to draw up her future Constitution; 2) Wherein the territories that now comprise British India, the territories that now form the Indian States, and such other parts of India as are outside British India and the States as well as such other territories as are willing to be constituted into the Independent Sovereign India, shall be a Union of them all; and 3) Wherein the said territories, whether with their present boundaries or with such others as may be determined by the Constituent Assembly and thereafter according to the Law of the Constitution, shall possess and retain the status of autonomous Units, together with residuary powers, and exercise all powers and functions as we vested in or assigned to the Union, or as are inherent or implied in the Union or resulting therefrom; and 4) Wherein all power and authority of the Sovereign Independent India, its constituent parts and organs of government, are derived from the people; and 5) Wherein shall be guaranteed and secured to all the people of India justice, social, economic and political; equality of status, of opportunity, and before the law; freedom to thought, expression, belief, faith, worship, vocation, association and action, subject to law and public morality; and 6) Wherein adequate safeguards shall be provided to the minorities, backward and tribal areas, and depressed and other backward classes; and 7) Wherein shall be maintained the integrity of the territory of the Republic and is sovereign rights on land, sea and air according to justice and the law of civilized nations; and 8) This ancient land attains its rightful and honoured place in the world and makes its full and willing contribution to the promotion of world peace and the welfare of mankind.

Designing constitutional democracy 81 Being the foundation of the discussion leading to the making of the Constitution, the Objectives Resolution has three major components: The first part of the Resolution relates to the aim of the exercise that the founding fathers were to undertake soon to draft a constitution for independent India. It is clearly articulated in the first point of the Resolution. The goal of the exercise was to, in other words, develop a solid foundation for India to grow as a sovereign republic. It is also interesting to note here that despite having agreed to be in the Commonwealth, the framers were influenced by the idea of republicanism, which means that the head of the state was to elected. With their endorsement of republicanism, the founding fathers left no doubt that, unlike Australia or Canada, India would become a republic. Secondly, there is a categorical statement in item number 4 that people hold sovereign power and all the institutions of governance derive their existence as part of India’s constitutional democracy from the demos. Perfectly in tune with their commitment to democracy, the planners of the Constitution affirmed their faith in people being the sole repository of substantial authority. Only then a true democracy was likely to emerge which was not a mere copy of the available forms of democratic forms of government, but an improvement, claimed Nehru, who further argued that ‘in any event whatever system of Government we may establish here must fit in with the temper of our people and be acceptable to them’.29 It was further endorsed by Alladi Krishnaswami Ayyar, who reaffirmed the sentiment by saying that ‘the constitution of sovereign independent India is the concrete expression of the will of the people of India as a whole conceived of as an organic entity . . . and the authority of the rulers can rest ultimately on will of the people concerned’.30 Fundamental here is the idea that in a true democracy, the source of authority remains the demos and that can never be wished away. The third aspect of the resolution is about certain critical attributes of the democratic polity which are distinctive and place a democratic form of governance in a different class altogether. The Constitution was to secure justice to all regardless of one’s social and economic location and political predilections. In order to realize democracy in its undiluted form, the constitutional recognition of these values is of utmost importance. It was also hinted that mere codification of rules directed to fulfil the constitutional aims might not be an effective means unless they were endorsed by a supportive mindset. The apprehension was justified and GB Pant replied by saying that the elaborate constitutional provisions would, in the long run, create an environment for a conducive mindset to grow. The final component deals with the mechanism for protecting the minority rights, for the strength of a constitution is contingent on this aspect; if the constitution fails to safeguard the interests of the minorities, goes the argument, the claim that India is a democratic country will become a false one. As GB Pant of United Provinces expressed, The question of minorities everywhere looms large in constitutional discussions. Many a constitution has foundered on this rock. A satisfactory solution of questions pertaining to minorities will ensure the health, vitality and strength of the free State of India that will come into existence as a result of our discussion here. . . . So far, the minorities have been incited and have been influenced in a manner which has hampered the growth of cohesion and

82  Designing constitutional democracy unity. But now it is necessary that a new chapter should start and we should all realize our responsibility. Unless the minorities are fully satisfied, we cannot make any progress; we cannot even maintain peace in an undisturbed manner.31 The concern for the minorities seems to have assumed tremendous significance following (a) the endorsement of the Pakistan plan on the basis of the two-nation theory whereby Hindus and Muslims were projected as separate nations, and (b) the withdrawal of the Muslim League from the Constituent Assembly since the Muslims felt that it was meant to frame a constitution for ‘Hindu India’. On the whole, the Objectives Resolution is about an ideational concern which the founding fathers had shared with one another before they embarked on the gigantic task of preparing an acceptable constitution for India. There were serious difficulties: on the one hand, the unity of India as an independent polity was at stake given the existence of so many princely states which needed to be integrated with the mainland to make it a one unit; the feelings of the minorities were also to be assuaged, on the other hand, to make them feel being part of the country, not under compulsion, but by being drawn to the ethos of Indian fraternity. The main concern of the founding fathers was to guarantee ‘full freedom to its various sections to have themselves whatever administration they liked and we need to give them full freedom in their social and religious affairs’.32 What is distinctive here is the fact that despite the agony of partition, the planners for India’s constitution did not seem to nurture any ill feelings towards the minorities; instead, they took to themselves the responsibility of making them feel comfortable in independent India since they, according to them, were as much a part of India as anybody else. The most revealing statement was made on 20 January 1947 by S Radhakrishnan of United Provinces, who seems to have laid out a solid conceptual foundation in this regard by proclaiming that We are not here asking anything for a particular community or a privileged class.We are here working for the establishment of Swaraj for all the Indian people. It will be our endeavour to abolish every vestige of despotism, every heirloom of inorganic tradition. We are here to bring about real satisfaction of the fundamental needs of the common man of this country, irrespective of race, religion and community. It is therefore essential that our bugle call, our trumpet-sound, must be clear, must give the people a sense of exhilaration, must give the suspicious and abstaining a sense of reassurance that we are here pledged to achieve full independence of India where no individual will suffer from undeserved want, where no group will be thwarted in the development of its cultural life.33 The Constitution was not just about the rule of law; it was also a tool for building an inclusive society in the real sense of the term. Keeping in view the obvious constraints due to India’s socio-economic and political uncertainties following the 1947 Great Divide on the basis of unbridgeable communal schism, Radhakrishnan devoted his attention to address the individual wants as well as

Designing constitutional democracy 83 cultural alienation of a collectivity which, he felt, would provoke further cracks in India’s socio-economic fabric. In a nutshell, the Objectives Resolution seems to have charted a specific course of action drawn on certain ideological preferences that the founding fathers articulated during their campaign against colonialism. For them, it was a great challenge since the Constitution was to serve a future nation. Furthermore, that their goal was clearly futuristic also gave them an advantage of not being governed by immediate compulsions; it means that since the Assembly members were placed in circumstances where they had no axe to grind, they had an obvious advantage which allowed them to be absolutely insulated from the petty or partisan aims. BR Ambedkar thus emphasized that ‘the Constituent Assembly in making a constitution has no partisan motive. Beyond securing a good and workable constitution it has no axe to grind. In considering the articles of the constitution, it has no eye on getting through a particular measure’.34 The impartiality that the Constituent Assembly had shown was simply impossible for the future parliaments since they had to address the partisan interests of those who chose them as their representative. As Ambedkar clarified, The future parliament, if it met as a Constituent Assembly, its members will be acting as partisans seeking to carry amendments to the Constitution to facilitate the passing of party measures which they have failed to get through parliament by reason of some article of the Constitution which has acted as an obstacle in their way. . . . That is the difference between the Constituent Assembly and the future parliament. That is the reason why the Constituent Assembly though elected on limited franchise can be trusted to pass the Constitution by simple majority and why the parliament though elected on adult suffrage cannot be trusted with same power to amend it.35 The argument has substance. The founding fathers were entrusted with the task of evolving a constitutional design for future India. Given their obvious suffering during colonialism, it was quite natural for them to create a system which was to work for the country as a whole. In other words, in their efforts to build a system of governance for independent India, they acted like statesmen who were charged with a historical responsibility of modelling India as a democratic polity. The Objectives Resolution and Nehru’s elaborate exposition of what India, as an independent nation, should aspire to leave enough ideological inputs for the members in the Assembly to build their arguments in their favour. Since the Assembly had ‘no axe to grind’, as Ambedkar mentioned, it was possible for the members to rise above partisan interests while being engaged in evolving appropriate constitutional provisions for a stable political order in future India.

The blueprint36 While Nehru laid down the ideological foundation of the Constitution, BR Ambedkar created a blueprint by identifying the areas of concerns that needed attention. In a detailed speech on 4 November 1948, he elaborated both the form

84  Designing constitutional democracy of government and the form of the constitution that India was going to have after the conclusion of the deliberations in the Constituent Assembly. At the outset, he explained that the Constitution was framed by taking into account the inputs from various committees that were appointed to look into the specific areas of socio-economic concerns. The Draft Constitution consisted of 315 articles and three schedules which made Ambedkar to comment that ‘the Constitution of no country could be found to be so bulky as the Draft Constitution’.37 It is true that the 1950 Constitution of India is perhaps the most exhaustive constitution which was framed by taking into consideration the best constitutional practices that were followed in other constitutional democracies from aroundthe globe. Ambedkar speech focuses on two important aspects of the Constitution: (a) the form of the government and (b) the form of the Constitution. As regards the first, namely the form of the government, Babasaheb categorically suggested that the Indian constitution favoured a government, the head of which happens to be the president. Unlike the American presidential form of government, the Indian system approximates to that of the British system which means that the head of the government is a titular head like the British monarch. There is however a difference: the Indian president was to be elected unlike the British head of the government, who holds the post hereditarily. The president is, according to Ambedkar, the head of the State and not of the Executive. He represents the Nation but does not rule the Nation. He is the symbol of the nation. His place in the administration is that of a ceremonial device on a seal by which the nation’s decision are made known.38 So, constitutionally, the president is the head of the government, which means that government functions are carried out in his name though he/she does not have substantial power because he/she is bound by his/her ministers; the duly elected government cannot be dismissed so long as it commands a majority in parliament. The second important part of the speech is about the form of the Constitution. In a very candid way, Ambedkar elaborated the features of the Constitution. First, it is a federal constitution with dual sets of government, one at the union level and another at the state level. According to him, the proposed constitution is a federal constitution in as much as it establishes what may be called a Dual Polity [consisting of] the Union at the Centre and the States at the periphery each endowed with sovereign powers to be exercised in the field assigned to them respectively by the Constitution.39 This is a dual polity with a single citizenship which entails that ‘every Indian has the same rights of citizenship, no matter in what State he resides’.40 In a stark contrast with the American system of constitutional governance, the Indian version can be both unitary as well as federal according to the requirements of time and circumstances. In normal times, it is framed to work as a federal system.

Designing constitutional democracy 85 But in times of war, it is so designed as to make it work as though it was a unitary system. Once the President issues a Proclamation of [Emergency] which he is authorised to do under the Constitution, the whole scene can become transformed and the State becomes a unitary state. . . . Such a power of converting a unitary State no federation possesses. This is one point of difference between the Federation proposed in the Draft Constitution, and also other Federations we know of.41 According to Ambedkar, the Draft Constitution justified the conversion of a federal state into a unitary one since it was needed to address the untoward circumstances; otherwise, it was absolutely federal, which means that ‘(1) any invasion by the federal government in the field assigned to the States and vice versa is a breach of the Constitution, and (2) such breach is a justiciable matter to be determined by the judiciary only’.42 That India was to be a genuine federation was reinforced by the means and methods whereby India would have a federation and at the same time uniformity in all the basic matters essential to maintaining the unity of the country. The means adopted by the Draft Constitution are three: ‘(a) a single judiciary, (b) uniformity in fundamental laws, civil and criminal, and (c) a common All-India Civil Service to man important posts’.43 Structurally, the proposed constitution has thus both elements of being a federal and unitary constitution at the same time. This is a unique feature that was justified by reference to the context in which it was being framed and also the politico-ideological preferences (which were tilted in favour of the Westminster form of constitutional democracy) of the founding fathers. What is most important in any stable constitutional democracy is, as Ambedkar felt, the spirit of constitutional morality, which is articulated as reverence to those critical ideological values which are fundamental to a constitution. Without constitutional morality in place, no constitution succeeds in fulfilling its ideological mission. Furthermore, there should be a compatibility between the form of administration and form of the constitution. According to him, ‘form of administration must be appropriate to and in the same sense as the form of the Constitution’;44 otherwise, it is perfectly possible, warned Ambedkar, ‘to pervert the Constitution, without changing its form by merely changing the form of the administration and make it inconsistent and opposed to the spirit of the Constitution’.45 This was a clear possibility in the absence of constitutional morality which was not instinctively formed but ‘has to be cultivated’,46 as Ambedkar strongly felt – a difficult task indeed because ‘democracy in India is a top-dressing on an Indian soil which is essentially undemocratic’.47 What is emphasized here is the fact that without evolving a democratic mindset appreciative of constitutional morality, no system of constitutional democracy can succeed. One of the indices of constitutional democracy is, according to Ambedkar, the safeguards for minorities. Appreciating the members of the Constituent Assembly for having devised a set of safeguards for them, he further noted that the majority needed to be trained to accept the minorities as integral to a multicultural India. Unless the minorities are taken into confidence, the aspirational dream of

86  Designing constitutional democracy the founding fathers of making India a true constitutional democracy will become futile, felt Ambedkar. On the basis of the analysis of the events in Europe, he thus warned that since ‘minorities are an explosive force which, if it erupts, can blow up the whole fabric of the State’.48 What was thus required, as Ambedkar had elaborated, was to evolve a mindset being appreciative of the minorities as a significant part of India’s existence as a democratic polity. Drawing upon his conceptualization of social endosmosis (which means intermixing between majority and minority regardless of social origin, economic strength and political preferences), he insisted that it was for the communal majority to realize its duty not to discriminate against minorities. Whether the minorities will continue or will vanish must depend upon this habit of the majority. The moment the majority loses the habit of discriminating against the minority, the minorities can have no ground to exist. They will vanish.49 Ambedkar’s concern for the minority needs to be contextualized. Following the acceptance of the partition of India into two independent dominions, it was imperative for the founding fathers to be sensitive to the minority issue. It was clear that the Pakistan campaign gained momentum not because it was engineered by the Muslim League leadership but because it also received spontaneous support from Muslims who seem to have been alienated from the majority Hindus, especially in Bengal and Punjab. In order not to escalate the communal strife, it was judicious on the part of the majority, felt Ambedkar, to address the concerns of the minority which would complement the nationalist effort towards building a stable constitutional democracy in India. With Ambedkar setting the tone of the discussion, there were other members in the Assembly who also came out with their own assessment of the Draft Constitution. For Ayyangar, the Constitution was ‘an absolutely democratic Constitution [because] it vests sovereignty in the people and enables them to continue to exercise that sovereignty in full’.50 With the abolition of untouchability, the Constitution endorsed the principle of social justice, and hence ‘there is no discrimination between one individual and another due to their birth’.51 In response to the accusation that the proposed Constitution was ‘a mere copy of the 1935 Government of India Act’, Ayyangar refuted the charge by saying that it was framed to control ‘a subject nation’ whereas the Draft Constitution was meant to realize the democratic aspiration of a free nation. The Gandhians were unhappy with the constitution because it was not based on what the Mahatma stood for. While reviewing the Constitution, K Hanumanthaiya of Mysore, argued that ‘we wanted the music of Veena or Sitar, but here we have the music of an English band. That was because our constitution makers were educated that way’.52 Being critical of the Constitution,which was not based on Gandhian principles, he further noted, The constitutional structure ought to be broad-based . . . [and] should be built from the bottom and should taper right up to the top. What has been done

Designing constitutional democracy 87 is just reverse. The pyramid has been reversed [which led to a situation in which] . . . the initiative from the Provinces and State and from the people has been taken away and all power has been concentrated in the Centre. This is exactly the kind of Constitution Mahatma Gandhi did not want and did not envisage.53 The constitution is, in Hanumanthaiya’s opinion, neither federal nor democratic; it is centralized and appreciative of unitary tendencies which, he apprehended, would harm the country in the long run. The top-down form of administration that the Constitution favoured was not at all appropriate for India given the diversity that was embedded. In its place, what was required was decentralized administration in which people from the grassroots, from all walks of life, participate, which Gandhi always insisted for realizing democracy in governance. A perusal of the debates in the Constituent Assembly confirms that it was Ambedkar who had prevailed over his colleagues in so far as the nature of the proposed Constitution of India was concerned. Not only did he play a critical role in its making, he also steered the discussion in the Assembly by setting its tone in accordance with his firm belief in the fundamental principles of liberal democracy of the Western variety. The Assembly debates also underline that it was divided between the Gandhians and their bête noire following the viewpoints that Ambedkar, Nehru and their colleagues endorsed. It is also true that the Gandhians failed to persuade the Assembly to accept their specific suggestions based on Gandhi’s insistence on making the village as the basic unit of governance. Nonetheless, the fact that Part IV of the Constitution of India contains some of the Gandhian ideas, especially those regarding the panchayati raj governance at the grassroots, also reveals that their effort was not entirely futile; the constitutionalization of the Gandhian mode of rural governance in 1992 following the adoption, particularly of the Seventy-Third Amendment Act, is a further testimony to the fact that what the Gandhians had initiated in the Constituent Assembly was not wasted, but had set in motion the processes for democratic decentralization as perhaps an appropriate model of governance at the grassroots.

The concern Notwithstanding his success in framing a constitution for independent India, BR Ambedkar continued to harbour uncertainty about its future. According to him, it was a perfect constitution which needed an atmosphere in which the values supportive of constitutional liberalism flourished; only then would a democratic constitution drawing on the fundamental ethos of liberalism survive. Besides the Hindu social orthodoxy, India’s stark economic inequality was an impediment, he underlined, towards fulfilling the politico-ideological goals that the Constitution aspired to attain. According him, India’s political independence was not enough to realize the constitutional goals that the founding fathers held so dear to them. While the Constitution ensures political equality, it was hardly adequate to guarantee equity to all regardless of one’s social and economic location. For Babasaheb,

88  Designing constitutional democracy this incongruity between political and economic equality was a source of major contradiction which needed to be immediately addressed to avoid further trouble. As he argued, ‘we must remove this contradiction at the earlier possible moment or else those who suffer from inequality will blow up the structure of political democracy which this Assembly has so labouriously built-up’.54 Hence there was a major concern that he articulated in an unambiguous way while commenting on the future of the Constitution and also constitutional governance. This was nothing new because what he expressed was based on his argument suggesting that ‘the doctrine of equality was repugnant to Hindu social order’.55 In order to defend ‘the principle of graded inequality’, the Hindu social order, argued Ambedkar, refuses to recognize that men no matter how profoundly they differ as individuals in capacity and character, are equally entitled as human beings to consideration and respect and that the well-being of a society is likely to be increased if it so plans its organization that, whether their powers are great or small, all its members may be equally enabled to make the best of such powers as they possess. It will not allow equality of circumstances, institutions and manner of life. It is against equalitarian temper.56 This was not merely a scathing critique of the Hindu social order but also an assessment of the situation in which the liberal constitutional values were likely to be sacrificed. As long as the prevalent Hindu social order was allowed to survive, India could neither have an egalitarian society nor a true representative government, which was one of the objectives that the framers wanted to fulfil while being engaged in drafting the 1950 Constitution. Ambedkar was candid in his opinion by stating, The Hindu social order does not recognize the necessity of a representative government composed of the representatives chosen by the people. . . . It denies [the thesis] that law can be made only by the representatives [because] . . . there is no space in Hindu social order for the law by which people are to be governed is already made and is to be found in the Vedas. . . . [Hence] . . . political liberty which is liberty to frame laws and to make and unmake Government is futility for which there is no place in the Hindu social order.57 So, for Ambedkar, the existent social context did not seem to be favourably disposed towards his ideas of democratically elected representative governments in India where the Hindu social order appeared dominant. This was a serious deterrent to his effort towards realizing his dream for evolving a constitutional regime in India. The apprehension that Babasaheb had did not seem to have been unfounded because, as he himself elaborated, The Hindu social order is a rigid order. No matter what changes take place in the relative position of an individual his social status as a member of the class he is born in relation to another person belonging to another class shall

Designing constitutional democracy 89 in no way be affected. The first shall never become the last [and] the last shall never become the first.58 In spite of his doubts regarding the success of constitutional democracy in India, he endeavoured hard to create a solid foundation for a liberal constitution for India, which suggests his optimism in transforming an orthodox social order heavily tilted against the Dalits. In other words, as a born optimist who had great faith in human endeavour, just like his academic mentor John Dewey at Columbia, Babasaheb implored his colleagues in the Assembly to remain alert to the circumstances in which the exalted constitutional values were likely to be seriously threatened. What the framers had achieved was commendable, and now the primary task was to consolidate these values to secure its future. In order to support his contention, Ambedkar made certain concrete suggestions to protect the 1950 Constitution from possible threats to its continuity, which are very useful to understand what he felt. There were two possible sources of threat that needed to be taken care of: first constitutional democracy was vacuous unless political democracy accompanied economic democracy. According to Ambedkar, ‘we must make out political democracy a social democracy as well [and] . . . political democracy cannot last unless there lies at the base of it social democracy’.59 What did he mean by social democracy? Here Babasaheb drew on his earlier writings while conceptualizing social democracy which entailed a way of life which recognizes liberty equality and fraternity as the principles of life [which] . . . cannot be treated as separate items in a trinity [because they] form a trinity in the sense that to divorce one from the other is to defeat the very purpose of democracy.60 Drawing on his critique of the Hindu social order, which never recognized fraternity, Ambedkar identified an important source of weaknesses of the proposed constitutional democracy. Unless efforts were made to purge the Hindu social order of these deficiencies, the ideas supportive of a liberal social order were likely to be defeated. The second important factor impeding social cohesion was the lack of fraternity, which, in Ambedkar’s formulation, means ‘a sense of common brotherhood of all Indians [making them] one people’.61 Here his conceptualization of fraternity corresponds to that of the conventional European thinking, namely, for nation to grow, a sense of common brotherhood is necessary. This was impossible in India, as Ambedkar strongly argued by saying that ‘in believing India as a nation, we are cherishing a great delusion [because] . . . how can people divided into several thousands of castes be a nation?’62 So, caste was an obvious deterrent towards making India a nation. Here his comments are most perceptive. As caste consolidates division, it is also responsible for sustaining a division in the social order which will thus never allow India to be a nation in the foreseeable future. In an unambiguous way, he thus characterized castes as ‘anti-national . . . because, in the first place, they bring about separation in social life, [and, secondly] . . . they generate jealousy and antipathy between caste and caste’.63 Without fraternity,

90  Designing constitutional democracy the idea of nation remained elusive, which also corroborates Ambedkar’s overall critique of the Hindu social order, which could never be unified so long as the system of caste was not discarded. In these circumstances, the concern for building a polity which was sensitive to equality and liberty was no more than just an attempt to be deceptive, Ambedkar emphasized. As is argued, Babasaheb’s critique of the Hindu social order had wider ramifications in the sense that it has also allowed us to be aware of the obvious consequences in the absence of efforts towards addressing the issues which were likely to cause social dissension. In view of the consolidation of libertarian ideologies in India and elsewhere, it was possible for those who remained marginalized to challenge the prevalent social order. The days were not far away when those who remained deprived would demand their share, and once they were denied, they would not feel hesitant to snatch power which a few had monopolized so far. The fact that political power in India had been ‘the monopoly of a few will’, Ambedkar apprehended, ‘make many not only beasts of burden but also beasts of prey’.64 The consequences were likely to be disastrous, as he felt, because this monopoly has not merely deprived them of their chance of betterment, it has sapped them of what may be called the significance of life. These downtrodden classes are tired of being governed. They are impatient to govern. This urge for self-realization in the down-trodden classes must not be allowed to devolve into a class struggle or class war. It would lead to a division in society [which] would indeed be a day of disaster.65 A liberal Ambedkar who drew on Dewey’s distinct understanding of Western liberalism refers to a situation in which the possibility of a class war cannot be ruled out. There are two aspects of his argument: first, as a system, constitutional democracy was not adequate to protect individual rights in a society which was ridden with caste divisions. However, it had a future, provided concerted attempts were made to instil a sense of brotherhood among the castes (fraternity). The second aspect seems to have highlighted his sympathy for the Marxist conceptualization of revolution when the deprived came together in unison against injustice and exploitation. Here Ambedkar expands his argument beyond his concern for Dalits who are socially down-trodden and also economically marginalized. The Dalits along with other socio-economically peripheral sections of society had thus reasons to fight for their rights ‘to govern themselves’, which was legitimate because it was drawn on their concern for themselves in adverse circumstances. This was not a far-fetched idea because, as Ambedkar underlined, ‘times are fast changing and people including our own are being moved by new ideologies . . . [inducing them] to prefer Government for the people to Government by the people’.66 Implicit here are two important cautionary notes: first, it a was warning for those holding on to the fort without being sensitive to the changing socio-economic realities; it was justified by drawing attention to the possibility of political mobilization by the affected people around an ideology. His apprehension did not seem to be unfounded in light of the increasing influence of the communists especially among

Designing constitutional democracy 91 the peasants and workers, which also confirms that the dominant section among the nationalists did not seem to have paid adequate attention to this aspect. The second cautionary note has wider conceptual and also practical import because he questioned one of the fundamental theoretical contentions for democracy by suggesting that government by the people did not necessarily mean government for the people. This is also a major concern for those seeking to theorize the processes whereby democratically elected democratic government is reduced to a government by few and for few. Although we may not have a conclusive answer to this aspect of democracy from Ambedkar, his arguments have left with us enough theoretical inputs to conceptualize the apparent distortion in constitutional democracy, which is not always perfect.67 So, the obvious question is how to purge the system of deficiencies responsible for distortions? Ambedkar provided conclusive responses. In a constitutional democracy, the demos remained, he argued, the final arbiter and hence they possessed the right to rebel against the system that appeared to have been alienated from them. As regards the methods of opposition, Babasaheb was very clear in his opinion; opposed to Gandhian Satyagraha or noncooperation and also ‘bloody methods of revolution’, he was in favour of constitutional methods for achieving social and economic objectives. In case the constitutional methods (which primarily entailed the moderate methods of prayer, petition and peaceful protest) did not yield results, one was allowed to resort to other ‘unconstitutional’ methods. This was evident when Ambedkar elaborated his views by saying, When there was no way left for constitutional methods for achieving economic and social objectives, there was a great deal of justification for unconstitutional methods. But where constitutional methods are open, there can be no justification for these unconstitutional methods [because] .  .  . these methods are nothing but the Grammar of Anarchy and the sooner they are abandoned, the better for us.68 Here Ambedkar pitched his arguments at two levels: at one level, he was categorical that the demos needed methods to oppose the political rulers if they deviated from what they were expected to do for public well-being. This is simple to follow because in a constitutional democracy, the people, the real masters of those holding political authority, remain sovereign, which they can assert if there is distortion in governance. At another level where Babasaheb seems to have drawn on his opposition to Gandhi, he, by characterizing the Gandhian method of civil disobedience as ‘the Grammar of Anarchy’, made his preferences very unambiguous; being unconstitutional, the Gandhian methods of opposition, if allowed to continue, were likely to harm India’s constitutional democracy. Hence they had no place in the days to come, Ambedkar emphatically declared. Here he seems to have killed two birds with one stone: on the one hand, by undermining the Gandhian methods, he appears to have sharpened his attack on Gandhi, who, he felt, clung to unconstitutional methods to battle against colonialism. It was accepted then; but now, it had no place in a constitutional regime that was to be established

92  Designing constitutional democracy following the adoption of the Constitution. There is, on the other hand, a serious conceptual point that was implicit in Ambedkar’s opposition to the so-called unconstitutional Gandhian methods. Opposed to the great man theory which JS Mill argued as contrary to classical liberalism, Ambedkar also insisted that under no circumstances was there a justification to lay one’s liberty at the feet of a great man, or to trust him with powers to enable him to subvert the institutions of governance. One should take adequate protection against this tendency, more so in India, since Indians tended to give up their liberty in response to the false promises of ‘Ram Rajya or heavenly existence’. This, the Indians usually justified by being unconditionally devoted (or under the spell of bhakti, in Indian parlance) to the leader which, if allowed to flourish, would not only weaken the foundation of constitutional democracy but also strike down the mindset in its support. Hence, Ambedkar forcefully argued, This caution is far more necessary in the case of India than in the case of any other country. For, in India, Bhakti or what may be called the path of devotion or hero-worship, plays a part in its politics unequalled in the magnitude by the part it plays in the politics of any other country in the world. Bhakti in religion may be a road to the salvation of the soul; but, in politics, Bhakti or hero-worship is a sure road to degradation and to eventual dictatorship.69 The argument is couched in the language in which JS Mill articulated his views against the great man theory, which was conceptually detested in liberal discourse. One of the reasons can be located in the liberal concern for stable political institutions, which are there to function in accordance with impartial rules and regulations. The other possible reason is linked with the liberal warning that a great man, by personalizing authority for quick results on schemes that he deems appropriate for public well-being, tends to bypass institutions, which, in the long run, will undermine, if not destroy, the foundation of constitutional democracy. In other words, since Bhakti was a deterrent to the articulation and also consolidation of constitutional morality, it had, for obvious reasons, no place in Ambedkar’s conceptual universe. Ambedkar’s concern for constitutional morality was shared by Rajendra Prasad, the Chairman of the Constituent Assembly. The successful working of constitutional democracy needed a supportive mindset; otherwise, however welldrafted the constitutional provisions were, it was not going to work as per the wish of the founding fathers. The mindset did not emerge automatically; it needed to be inculcated by those who seemed persuaded by the values on which India’s constitutional democracy was being founded. While defending his point in favour of creating a solid support base for the Constitution and the system that it propounded, Rajendra Prasad, in an eloquent way, thus argued, Constitution like a machine is a lifeless thing. It acquires life because of the men who control it operate it, and India needs today nothing more than a set of honest men who will have the interest of the country before them. . . . It

Designing constitutional democracy 93 requires men of strong character, men of vision, men who will not sacrifice the interest of the country at large for the sake of smaller groups and areas and who will rise over the prejudices which are born of differences around caste, class and regions.70 Fundamental here is the point that the success of constitutional democracy is dependent on the people who will run the system in accordance with those core values of liberty, equality and fraternity which form its kernel; otherwise, it will just be a structure of governance which is far from being liberal. Hence Prasad further insisted that India’s future as a liberal polity could be secured if it developed strong political institutions with concern for people’s democratic existence, which he argued by saying that ‘successful working of democratic institutions requires in those who have to work them willingness to respect the viewpoints of others, capacity for compromise and accommodation’.71 A true nationalist liberal, Prasad echoed the concern that Ambedkar expressed while being engaged in defending the Constitution in a social context in which the Hindu social order seemed to have been dominant. There was hardly any difference between them except perhaps in regard to their attitude to Gandhi and his methods of governance. Being appreciative of the role of the Mahatma, who always upheld compromise and accommodation of contrasting views, Prasad preferred to take everybody on board by applying what he learnt from Gandhi. Ambedkar too endorsed Prasad’s method though not from a Gandhian point of view, but from a liberal point of view that upholds the capacity to draw on others by being sensitive to others’ needs and requirements.

Concluding observations After almost three years of intense deliberations, the founding fathers produced the 1950 Constitution of India, which is primarily a liberal constitution: it is liberal since individuals remain the basic unit of governance though group rights are also constitutionally recognized. The idea was justified in view of India’s diverse socio-cultural texture as a polity. Similarly, in order to articulate their concerns for India being made an inclusive society, the framers endorsed reservation in public jobs for the historically marginalized sections of society, demarcated as Scheduled Castes and Scheduled Tribes. In the same way, their zeal for constitutional provisions for secularism was governed by their keenness in organizing the polity around the fundamental values of secularism, as it evolved in the Western context. It was, in other words, the Nehruvian Dharma-Nirpekshta (state neutrality to religion) which was readily accepted by the Constituent Assembly members since they found the principle appropriate in multireligious India. Despite the presence of some of the vocal Gandhians, the Assembly did not seem to have been persuaded by Gandhi’s concern for village swaraj as a foundational structure for governance in future India. The idea was not entirely rejected but had its place in a segment of the Constitution which was not justiciable. This was possibly the best solution at that point of time when the euphoria for Nehruvian liberal socialism was at its zenith.

94  Designing constitutional democracy Similar to the ideational inputs which came to the founding fathers naturally, they also had access to many constitutional designs that had evolved out of the British and also nationalist efforts towards constitutionalizing India. In other words, they had several blueprints before them when they were engaged in devising one for independent India. Although the ideological concerns were different, for obvious reasons, the constitutional designs, prepared by the nationalists and their British counterparts, were amazingly similar structurally. The reason is not difficult to seek: the source of inspiration was the same, namely, the Westminster form of governance. The British initiatives that had begun unfolding with the promulgation of the 1861 Council Act seem to have blossomed fully following the adoption of the 1935 Government of India Act. That India needed to be constitutionalized was the idea that the nationalists upheld by way of developing constitutional designs since the crafting of the 1928 Motilal Nehru Constitution, followed by the one which the Sapru Committee evolved in 1945, and finally BN Rau’s Constitutional Proposals of 1946. Except the Rau proposals, which defended a confederal system of government for independent India, both the Motilal Nehru Committee and the Sapru Committee preferred the democratically elected parliamentary form of government in line with the Westminster system of governance. These blueprints were not only the basic reference points for the members of the Assembly, they seem to have shaped their thinking, to a great extent, as the deliberations over the nature of the proposed constitution illustrate. The chapter has also shown that the floor of the Assembly was a battlefield for the members who argued strongly in favour of what they deemed appropriate for future India. As is commonly known, the Gandhians were opposed to Ambedkar’s insistence on making individuals the basic unit of governance, which ran counter to their preferred Gandhian model drawn on village swaraj. The debate remained inconclusive and a compromise was made by including the Gandhian village swaraj in Part IV of the Constitution, which was not judicially enforceable. Besides these two dominant groups in the Assembly, there were also members who were favourably disposed towards socialistic/communistic inclinations. One of the powerful voices in this regard was that of Brajeshwar Prasad of Bihar who castigated the endeavour of his colleagues in the Assembly as class-driven and prejudicial to the common people. As he argued, There is no element of idealism in this Constitution. It is a Constitution foreign to the culture and genius of this land. It is a lawyers’ Constitution. It is a Constitution meant to stabilise the interests – both of economic and political – of the bourgeoisie and the capitalist classes. . . . Without the liquidation of private property as the means of production, there is no bright future for India.72 Drawing on his faith on the system of governance that had evolved in the erstwhile Soviet Union following the 1917 October Revolution, Prasad was in favour of abolishing private property altogether. It was slightly an overstretched demand

Designing constitutional democracy 95 given the nationalists’ support for the New Democratic Model of governance in which the role of the propertied sections was as critical as that of the property-less segments. Being vehemently opposed to the liberal disposition of the majority of the Assembly members, Prasad further strongly argued, The hungry and starving millions of this country will never tolerate a government which chose to follow a discriminatory mode of governance which the Anglo-American powers preferred. If I were to choose between Washington and Moscow, I would choose Moscow and not Washington and New York [because] . . . I love equality more than liberty.73 The argument is crystal clear. At one level, Prasad was aspiring to establish equality, which was possible, he insisted, by adopting the Leninist system of statecentric governance even at the cost of liberty that Western liberalism so valued. At another, far more conceptual level, his argument represents an effort towards exploring an alternative mode of political mobilization which was already experimented with the creation of ‘the Soviets’ (the human collective existence) in the aftermath of the 1917 socialist revolution in the former Soviet Union. It is true that Prasad was a lone fighter for a particular point of view which however failed to persuade his colleagues in the Assembly. Nonetheless, it confirms the claim that the 1950 Constitution was the outcome of a fiercely fought ideational battle in which multiple, if not contradictory, ideological points of view were articulated and received adequate attention during the debates. There is one final point. As is evident, the fierce debate that unfolded in the Assembly illustrate that the members defended their respective points of view on the basis of their ideational concerns for constitutional democracy in the liberal mould. These ideas that became pre-eminent in the Constituent Assembly had their roots in the tumultuous days of India’s freedom struggle in which various waves of thought were also discernible. By arguing that the Constitution of India was the outcome of a complex ideational battle in different phases of India’s struggle for freedom, the chapter challenges the conventional notion that it is merely a mindless, if not haphazard, borrowing of constitutional provisions and practices prevalent elsewhere. The argument supporting the contention that the Indian constitution is a borrowed doctrine seems vacuous given the fact that it is also a break with the past. One of the most significant breaks was to constitutionally recognize the principle of representative government in its unalloyed form through universal adult suffrage, an ambition that the nationalists had been nurturing since the adoption of the 1928 Motilal Nehru Report. Besides the emergent need of tackling contingent circumstances following the partition, which created a strong demand for the continuity of the available colonial administrative machinery, the founding fathers also felt the need of a strong administration to translate into reality their ambitious plan of transformation. It has thus been persuasively argued that ‘[w]hile continuity was sought in the service of the break in this way, the claim of break itself was called upon to justify certain continuities’.74 A careful study

96  Designing constitutional democracy of the arguments that were marshalled in favour of incorporating mechanisms and institutions from the colonial era confirms the point. For instance, Balkrishna Sharma (a member from Uttar Pradesh), while responding to the criticism that the Constitution was ‘un-Indian in spirit and [was] more or less a copy of the Government of India Act’ defended the design as justified by saying, Here, after all, we are framing a Constitution and the modern tendencies, the modern difficulties, the modern problems that are facing us are there and we have to provide for them all in our Constitution, and if we have learned on the Government of India Act for that matter, then I do not think that we have at all committed any sin.75 Notwithstanding disagreements on certain issues, including those related to Gandhi’s village swaraj, the Constituent Assembly members converged on the point that India needed a constitution to establish a democratic polity which the nationalists aspired to during their struggle against colonialism. This was ‘an occasion of the greatest historical significance’, argued Raj Bahadur of Rajasthan, who further characterized the effort as ‘a wonder’. As he stated, ‘The wonder is not that we have not been able to produce a better Constitution. The wonder is that we have been able to achieve and arrive at a degree of agreement that is incorporated in the Constitution’.76 What is evident now is that the Constitution evolved out of intensive deliberations among the members which reflected both agreement and differences. Gandhians were, for instance, unhappy since not only was Gandhi’s idea of village swaraj discarded, ‘the omission of a reference to the Father of the Nation – Respected Bapu [Gandhi]’ also disappointed them.77 Nonetheless, the disagreements never became a source of discontent to the extent of falling apart. Hence it is conceptually innovative to understand the Constituent Assembly debates as reflective of a unique tension ‘between certain aspirations (of creating a democratic constitutional system) and certain necessities (arising from the challenge of creating a viable constitutional order under the given circumstances)’ which had its resonance in what finally became the Constitution of India.78

Notes 1 M.V. Pylee, Constitutional Government in India, Asia Publishing House, London, 1963 (reprint), p. 127. 2 Shibanikinkar Chaube, Constituent Assembly of India: Springboard of Revolution, Manohar, New Delhi, 2000, p. 49. 3 Constitutional Assembly Debates (CAD hereafter), Vol. I, p. 104. 4 CAD, Vol. I, p. 62. 5 Mohit Bhattacharya, ‘The mind of the founding fathers’, in Nirmal Mukarji and Balveer Arora (eds.), Federalism in India: Origins and Development, Vikas Publishing House, New Delhi, 1992. 6 Paul Brass, ‘India, Myron Weiner and the Political Science of Development’, Economic and Political Weekly, July 20, 2002, p. 2132.

Designing constitutional democracy 97 7 B.R. Ambedkar, Federation Versus Freedom, Gokhale Institute of Politics and Economics, Poona, 1939. 8 CAD,Vol. 1, 1946, p. 102. 9 CAD, Report of the Union Powers Committee, August 20, 1947, Vol. V, p. 58. 10 CAD, Vol. V, p. 79. 11 CAD, Vol. XI, p. 839. 12 Mohit Bhattacharya, ‘The mind of the founding fathers’, in Nirmal Mukarji and Balveer Arora (eds.), Federalism in India: Origins and Development, Vikas Publishing House, New Delhi, 1992, p. 89. 13 Granville Austin, The Indian Constitution: Cornerstone of a Nation, Oxford University Press, New Delhi, 1999, pp. 17, 317. 14 Granville Austin, The Indian Constitution: Cornerstone of a Nation, Oxford University Press, New Delhi, 1999, pp. 311–21. 15 Granville Austin, The Indian Constitution: Cornerstone of a Nation, Oxford University Press, New Delhi, 1999, chapter 12 (language and the constitution: The half-hearted compromise). pp. 264–307. 16 Hindustan Times, November 27, 1949. 17 CAD, Vol. Vol. p. 974. 18 Shiva Rao, The Framing of India’s Constitution, Vol. V, Universal Law Publishing, New Delhi, 2004, p. 835. 19 Granville Austin, The Indian Constitution: Cornerstone of a Nation, Oxford University Press, New Delhi, 1999, chapter 12 (language and the constitution: The half-hearted compromise), p. 315. 20 Rajni Kothari, Politics in India, Orient Longman, New Delhi, 2005 (reprint), p. 107. 21 Rajendra Prasad’s press statement, Hindustan Times, December 29, 1949. 22 Ram Chandra Gupta (United Provinces), November 24, 1949, CAD, Book No. 5, p. 920. 23 Rajendra Prasad’s statement, CAD, Book No 5, p. 987. 24 Mohit Bhattacharya, ‘The mind of the founding fathers’, in Nirmal Mukarji and Balveer Arora (eds.), Federalism in India: Origins and Development, Vikas Publishing House, New Delhi, 1992, p. 103. 25 Sujit Choudhury, Madhav Khosla and Pratap Bhanu Mehta, ‘Locating Indian constitutionalism’, in Sujit Choudhury, Madhav Khosla and Pratap Bhanu Mehta (eds.), The Oxford Handbook of the Indian Constitution, Oxford University Press, New Delhi, 2016, pp. 4–5. 26 Some of the components of the arguments here are drawn on my Indian Constitution: Text, Context and Interpretation, Sage, New Delhi, 2017. 27 Jawaharlal Nehru, Constituent Assembly Debates, December 13, 1946, Book No. 1, pp. 58–9. 28 Jawaharlal Nehru, Constituent Assembly Debates, December 13, 1946, Book No. 1, p. 59. 29 Jawaharlal Nehru, Constituent Assembly Debates, December 13, 1946, Book No. 1, p. 62. 30 Alladi Krishnaswami Ayyar (Madras), Constituent Assembly Debates, December 19, 1946, Book No. 1, p. 142. 31 G.B. Pant (United Provinces), Constituent Assembly Debates, January 24, 1947, Book No. 1, p. 331. 32 P.D. Tandon (United Provinces), Constituent Assembly Debates, December 13, 1946, Book No. 1, pp. 66–7. 33 S. Radhakrishnan (United Provinces), Constituent Assembly Debates, January 20, 1947, Book No. 1, pp. 269–70. 34 B.R. Ambedkar, Constituent Assembly Debates, November 4, 1948, Book No. 2, p. 43.

98  Designing constitutional democracy 35 B.R. Ambedkar, Constituent Assembly Debates, November 4, 1948, Book No. 2, pp. 43–4. 36 Drawn on my Indian Constitution: Text, Context and Interpretation, Sage, New Delhi, 2017. 37 B.R. Ambedkar, Constituent Assembly Debates, November 4, 1948, Book No. 2, p. 31. 38 B.R. Ambedkar, Constituent Assembly Debates, November 4, 1948, Book No. 2, p. 32. 39 B.R. Ambedkar, Constituent Assembly Debates, November 4, 1948, Book No. 2, p. 33. 40 B.R. Ambedkar, Constituent Assembly Debates, November 4, 1948, Book No. 2, p. 34. 41 B.R. Ambedkar, Constituent Assembly Debates, November 4, 1948, Book No. 2, pp. 34–5. 42 B.R. Ambedkar, Constituent Assembly Debates, November 4, 1948, Book No. 2, p. 35. 43 B.R. Ambedkar, Constituent Assembly Debates, November 4, 1948, Book No. 2, p. 37. 44 B.R. Ambedkar, Constituent Assembly Debates, November 4, 1948, Book No. 2, p. 38. 45 B.R. Ambedkar, Constituent Assembly Debates, November 4, 1948, Book No. 2, p. 38. 46 B.R. Ambedkar, Constituent Assembly Debates, November 4, 1948, Book No. 2, p. 38. 47 B.R. Ambedkar, Constituent Assembly Debates, November 4, 1948, Book No. 2, p. 38. 48 B.R. Ambedkar, Constituent Assembly Debates, November 4, 1948, Book No. 2, p. 39. 49 B.R. Ambedkar, Constituent Assembly Debates, November 4, 1948, Book No. 2, p. 39. 50 M. Ananthasayanam Ayyangar (Madras), Constituent Assembly Debates, November 18, 1949, Book No. 5, p. 662. 51 M. Ananthasayanam Ayyangar (Madras), Constituent Assembly Debates, November 18, 1949, Book No. 5, p. 662. 52 K. Hanumanthaiya (Mysore), Constituent Assembly Debates, November 17, 1949, Book No. 5, p. 616. 53 K. Hanumanthaiya (Mysore), Constituent Assembly Debates, November 17, 1949, Book No. 5, pp. 616–7. 54 B.R. Ambedkar, CAD, November 25, 1949, Book No. 5, p. 979. 55 B.R. Ambedkar, ‘The Hindu social order: Its essential principles’, in Dr. Babasaheb Ambedkar: Writings and Speeches, Vol. 3, p. 106. 56 B.R. Ambedkar, ‘The Hindu social order: Its essential principles’, in Dr. Babasaheb Ambedkar: Writings and Speeches, Vol. 3, p. 106. 57 B.R. Ambedkar, ‘The Hindu social order: Its essential principles’, in Dr. Babasaheb Ambedkar: Writings and Speeches, Vol. 3, p. 115. 58 B.R. Ambedkar, ‘The Hindu social order: Its essential principles’, in Dr. Babasaheb Ambedkar: Writings and Speeches, Vol. 3, p. 115. 59 B.R. Ambedkar, CAD, November 25, 1949, Book No. 5, p. 979. 60 B.R. Ambedkar, CAD, November 25, 1949, Book No. 5, p. 979. 61 B.R. Ambedkar, CAD, November 25, 1949, Book No. 5, p. 979. 62 B.R. Ambedkar, CAD, November 25, 1949, Book No. 5, p. 980. 63 B.R. Ambedkar, CAD, November 25, 1949, Book No. 5, p. 980. 64 B.R. Ambedkar, CAD, November 25, 1949, Book No. 5, p. 980. 65 B.R. Ambedkar, CAD, November 25, 1949, Book No. 5, p. 980. 66 B.R. Ambedkar, CAD, November 25, 1949, Book No. 5, p. 980. 67 I have dealt with this aspect of Ambedkar’s thought in my ‘B.R. Ambedkar and the history of constitutionalizing India’, Contemporary South Asia,Vol. 24, No. 2, 2016. 68 B.R. Ambedkar, CAD, November 25, 1949, Book No. 5, p. 978. 69 B.R. Ambedkar, CAD, November 25, 1949, Book No. 5, p. 979. 70 Rajendra Prasad, CAD, November 26, 1949, Book No. 5, p. 993. 71 Rajendra Prasad, CAD, November 26, 1949, Book No. 5, p. 993. 72 Brajeshwar Prasad (Bihar), CAD, November 24, 1949, Book No. 5, p. 875. 73 Brajeshwar Prasad (Bihar), CAD, November 24, 1949, Book No. 5, p. 876. 74 Sandipta Dasgupta, “A language which is foreign to us”: Continuities and anxieties in the making of the Indian Constitution’, Comparative Studies of South Asia, Africa and Middle East, Vol. 34, No. 2, 2014, p. 240.

Designing constitutional democracy 99 75 Balkrishna Sharma’s intervention in the Constituent Assembly, CAD, November 25, 1949, Book No. 5, Lok Sabha Secretariat, New Delhi, 2003, p. 968. 76 Raj Bahadur’s intervention in the Constituent Assembly, CAD, November 25, 1949, Book No. 5, Lok Sabha Secretariat, New Delhi, 2003, p. 969. 77 Kamaleshwari Prasad Yadav’s intervention in the Constituent Assembly, CAD, November 25, 1949, Book No. 5, Lok Sabha Secretariat, New Delhi, 2003, p. 971. 78 Sandipta Dasgupta, “A language which is foreign to us”: Continuities and anxieties in the making of the Indian Constitution’, Comparative Studies of South Asia, Africa and Middle East, Vol. 34, No. 2, 2014, p. 229.

4 Indian democracy Reconceptualizing liberalism in a non-Western context1

Democracy is not merely a guarantee of adult franchise; it also creates conditions for participation in the political process. Has India been successful in this regard? It is difficult to arrive at a conclusive answer because of the apparent paradox one confronts while conceptualizing Indian democracy: on the one hand, popular zeal which reaches the level of hysteria at times during the elections almost evaporates once the politicians take over political authority and thus hardly functions as the custodian of both the democratic process and its value system. What is probably more alarming, on the other hand, is the gradual erosion of the institutions which are critical for democracy in its classical liberal sense. The perversion of the electoral system that fails to neutralize the forces challenging its very existence highlights a major lacuna in the political arrangement forced on India, drawing on feudal instincts and primordial loyalties. So, democracy, a Western concept, has failed to evolve in India, in its true form. Or, democracy in India is passing through a transition that seems possible given its short history and will triumph eventually. Or, since the form of democracy is linked largely to the socio-economic compulsions of the day, India is likely to redefine its nature and contour since her socio-economic environment is entirely dissimilar to that of the west. Nonetheless, India is perhaps the only example showing that it is possible to maintain, sustain and strengthen a functioning democracy in a very poor county despite enormous diversity in terms of language, religion, culture and ethnicity. It is most striking because according to the classical liberal discourse democracy cannot strike roots in multi-ethnic societies. Democracy in India is thus ‘a phenomenon’ that, argues a commentator, ‘by most accounts, should not have existed, flourished or, indeed long endured’.2 The growing consolidation of democratic processes can be attributed to the emergence of complementary social and political institutions, nurtured and sustained by an alert people despite the rising tide of communalism and other divisive tendencies. The chapter is devoted to understand the evolving nature of democracy in India that hardly corresponds to any copybook description. One can thus safely argue that India is a creative democracy for not only it is being constantly reinvented, but also redesigned to capture the new experiments in a non-Western socio-political context.

Indian democracy 101

Democracy and its articulation The Indian democratic experiment is innovative not only in terms of articulation, but also in substance. Political institutions that hold the spirit of democracy are constantly restructured in view of the constantly changing socio-economic milieu, giving it distinctive localized characteristics within the larger universal paradigm of liberal democracy. Democracy is translated in the expansion of political participation though parliamentary elections were, in the past, centred on a simple message that could appeal to a broad section of the electorate irrespective of caste, class and creed and became, in effect, ‘a single issue referenda’.3 Describing this phenomenon as ‘plebiscitary politics’, Rudolphs have attributed its rise to the de-institutionalization of the Congress.4 The Congress victory is attributed to its strategic resort to populist or plebiscitary politics in terms of electoral and mobilizational strategies. The Lok Sabha elections, held so far since 1971, have been decided not by the plethora of promises made in election pledges, but by a single slogan which appeared decisive at a particular point of time because of peculiar historical circumstances,5 as evident in parliamentary elections: in 1971, it was ‘garibi hatao’ (remove poverty); in 1977 Emergency hatao (remove politicians responsible for 1975–77 Emergency); in 1980, Janata hatao (replace the Janata Party government for its chronic instability); in 1984 Desh bachao (save the country) that acquired a new majoritarian connotation following the assassination of Indira Gandhi in 1984; in 1989, the campaign – corruption hatao (remove the Congress for its involvement in the Bofors scandal) tilted the verdict against the Congress, which had two-thirds majority in the lower house of Indian parliament in the 1984 election. One obvious outcome of the plebiscitary strategies deployed by the Congress to sustain its political hegemony has been a long-term tendency towards regionalization of ‘oppositional’ politics. The regional dimensions of oppositional politics were seen in the growing consolidation of ethnic movements for autonomy and the formation of new parties with an absolute regional agenda. And, also, the Congress was divided into splinter groups in the regions for its inability to accommodate the new interests that gained salience at the local level in a particular historical juncture. As a consequence, although politics at the ‘national’ level continue to be dominated by select political parties that are pan-Indian in electoral and organizational terms, the party system is now highly fractured since there is hardly a dominant pattern in the regions that constitute India. The nature of the party system in the Indian provinces is increasingly being governed by the peculiar regional socio-economic characteristics that influence not only the electoral strategy of the parties but also their mobilizational techniques.6 What is however alarming in India’s successful experience of democracy is the rising tide of violence particularly during and after elections, which is probably an offshoot of criminalization of politics – a phenomenon undermining democratic practices and consolidating muscle power in politics. Violence in the form of communal riots is an age-old phenomenon which shaped India’s destiny during

102  Indian democracy the 1947 transfer of power. Gandhi’s assassination is a fall-out of the process unleashed with the acceptance of the Great Divide. The 1952 national election went off smoothly because of the mass euphoria following the attainment of independence. Voters exercised their franchise enthusiastically. There was a new awakening among the urban and rural women; there was a new consciousness of equality among the backward and the poor who asserted their newly acquired right in large numbers.7 The situation is different now. The perversion of the electoral system is reaching abysmal depths. All political parties want to capture power or secure a place in the legislature by any means, fair or foul. This results in the increasing reduction of the electoral process to mere mockery. Election on occasions thus becomes a slur on democracy. The process, known as ‘criminalization of politics’, began in northern India from the 1950s onwards. This was perhaps the outcome of contradictions between the newly emerging middle caste peasantry and the prevalent feudal forces trying desperately to grab post-independence benefits and maintain the status quo. The upper castes which monopolized power, wealth and status continued to maintain their hegemony by resorting to these acts. The upper castes seized the new opportunities in politics as well where their musclemen proved to be of great help. Not only did they resort to physical violence to force the voters to stamp the ballots in favour of their patrons, they captured polling booths as well to ensure an adequate number of votes for the individual or the party of their choice. The benefit of keeping the musclemen led the politicians to offer protection to those who, in the eyes of law, were criminals. With the participation of the musclemen who so far remained peripherally linked to politics, in parliamentary and state assembly elections, the phenomenon of criminalization of politics has become more vivid that ever. The upper castes held their hegemony in rural India till the rise of the so-called ‘backward castes’ which experienced economic prosperity after the ‘green revolution’ and the resultant social benefits. And the government policy of reducing land revenue contributed to further prosperity. The process ensuring their economic well-being brought closer the prospect of political dominance among the middle castes who found in Ram Manohar Lohia their ideologue. By arguing for ‘preferential treatment’, Lohia made the middle castes aware of their importance in Indian politics. In fact, the argument defending preferential treatment for the middle castes on the ground of social justice triggered off the 1978–79 struggles on the issue of reservation for the backward castes during the Janata rule. Reservation to the socially backward segments of society is given to ensure social justice. The constitution makers guaranteed special protection in public employment to the Scheduled Castes and Scheduled Tribes. In 1990, reservation was extended to the Other Backward Classes who constitute approximately more than half of India’s demography. Not only did these movements challenge the predominance of the upper castes in the white-collar world, they brought about the radical changes in the traditional power hierarchy as well. The contradiction between the upper castes and the rest saw a new turn; then the economically prosperous castes, so far neglected politically, gave up the old practice of imitating the

Indian democracy 103 upper caste culture (the process of sanskritization) and prepared for direct political confrontation for their share in politics. The well-articualted reistance by the traditional upper castes who controlled access to government and the economic minority that initiated the process . . . ‘seems to have undermined the very basis of India’s democratic system.’8 In the context of increasing violence, the so-called popular verdict, obtained through election, may appear deceptive. What is more shocking is the lack of interest in the entire electoral process because it hardly changes the political landscape of the country in any substantial way. This raises serious doubt about the basis of India’s democracy, which according to some, approximates to ‘a functioning anarchy’. With the rising tide of violence, the anarchical component seems to have assumed frightening magnitude and as a result, political rivalry is sorted out not by debate but by naked physical force. The process, thus begun, has contributed over the years to ‘the debasement of our legislatures . . . and the prospect of the gun and intimidation replacing the ballot box in a distressing number of constituencies’.9

Electoral dynamics: a pattern evolved Of the all the national elections held so far, the 1991 Lok Sabha poll is a watershed for a variety of reasons: First, it was perhaps the most protracted election, punctuated by the assassination of Rajiv Gandhi. Although this dastardly killing of a Congress leader was most unfortunate, it gave the Congress party extra political mileage especially in the light of its decline at least in the Hindi heartland. Secondly, despite the absence of an electoral pact among the opposition parties, two major issues of Mandal and Mandir placed them at an advantage over the Congress. Thirdly, the 1991 election was also unique in the sense that it was held when Indian policy makers more or less reconciled to the structural adjustment programme of the neo-liberal variety. The election manifestos, released by the national political parties on the eve of 1991 election, contain promises which are peripheral to the major issue for campaign. The obvious issues on view for some time are the Mandal, which for a sizeable section of population means the caste card; Mandir, perceived as a fundamentalist twist to a faith and instigating Hindu-Muslim rivalry to the extent of setting one community against another; and stability, which for many of the electorates is merely a euphemism for unbridled power.10 Despite reference to various other pledges, the political parties in the fray hammer on one particular issue which appears effective in gaining votes in the context of divisive tendencies drawing on social cleavages. The Janata Dal accords priority to the implementation of the Mandal Report, striving to cash in on the caste card; the Bharatiya Janata Party (BJP), by intelligently organizing the Rath Yatra, has mobilized Hindu support across the country for the construction of a Ram Temple under the stewardship of its able leader, L.K. Advani. The Congress tried to cash on its promise to provide a stable government and therefore all-round economic development. The party also pledged to tone up the administration with a view to attaining the stipulated

104  Indian democracy goal. The stability card seems to have had an appeal to a broad cross-section of the electorate in light of the collapse of two successive non-Congress(I) governments which assumed power following the failure of the Rajiv Gandhi–led Congress(I) to obtain an absolute majority in the 1989 Lok Sabha elections. The rise of plebiscitary politics led to the decline of the party system. In order to obtain votes, individual leadership appeal became far more important than the party, which appeared insignificant in elections. Between 1947 and the death of Jawaharlal Nehru in 1964, however, the Congress party remained a crucial political institution sustaining India’s democracy. Nehru, who described the Congress party as the central fact of India, guarded the party which won freedom against tendencies undermining its democratic structure. So strong and widespread was its organization throughout India that the Congress party appeared to be the only viable alternative to run the state. Commentators like WH Morris-Jones and Rajni Kothari,11 impressed by the continuity of the party as a ruler despite serious challenges, attributed the durability of the ‘one party dominance’ or ‘the Congress system’, respectively, to its historic role in the freedom struggle and its ability to mediate between different conflicting interest which were dominant on the contemporary political scene. The party held India’s democracy in safe custody because, as James Manor explains, it was ‘a huge, hierarchically structured party, broadly rooted throughout the country side, [that] apparently provided the mechanism whereby a plurality of elites, sub elites and groups could both voice their claims and attempt to realize them’.12 At the same time, the Congress could adequately mediate and settle these multiple and often conflicting claims. Moreover, the party also mirrored grievances of other groups too. It reveals thus that ‘the principle of consensus’ helped the Congress system work so smoothly for the first two decades after independence. Soon after Nehru’s demise in 1964, the Congress system started breaking down – a process that became evident especially from 1969 onwards when Nehru’s successor, Indira Gandhi, faced with increasing opposition strength, ‘rejected the principle of consensus in favour of the majoritarian principle’.13 The legitimacy of the party and its structure was supplanted by an altogether more unstable and inherently ephemeral legitimacy of individuals. Since she carried the masses with her, she ignored the party, which lost momentum considerably with the passage of time. Centralization which was once appreciated as ‘an instrument of purposive interventions by a cohesive and disciplined elite soon turns out’ suicidal to the prevalent ‘party system and the federal structure and of wider affiliations that were built through them’.14 Moreover, the breakdown of the Congress system led to the rise of various other structures, both political and non-political, which became formidable in the era of mass politics. Despite Nehru’s limitation as a statesman, the Congress party under his tutelage both absorbed new demands and strove to provide avenues for their fulfillment. With the collapse of the party as an institution and ‘the unwillingness of the system to create new institutional modes of the masses’,15 the chasm that was created between the party and the people became unbridgeable. The result was ‘the politicization of the masses outside the defined and confined structure laid out by the Congress’.16

Indian democracy 105 The deinstitutionalization of the Congress party contributed immensely to the erosion of the party’s federal structure: not only did the process lead to massive concentration of power in the central leadership, it also deprived the party of ‘seasoned’ national and state party officials. What was worse was a calculated drive on the part of the coterie, glued to the leadership, of ‘substituting loyalists and favourites at the state and constituency levels for party officials and candidates with local knowledge and support’.17 The growing consolidation of personal politics under Indira Gandhi’s stewardship also ‘obviated the need for an organization capable of articulating with society, serving and leading the political community and fighting elections’.18 She could afford to ignore the party as an instrument for creating a constituency of her own because she succeeded in establishing ‘a direct and unmediated link with the people who had transported enormous faith in her charisma and her image as a deliverer and secular messiah’.19 Indira Gandhi’s ascendance was partly due to the adoption of a number of radical programmes and partly due to her ability to sway the Indian masses by her populist rhetoric. What it implies is that despite her shortcoming as a premier she presided over India’s destiny confidently for so many years probably because she gained legitimacy20 for her rule. In the process, instead of restructuring the party and inducing the people ‘in its framework and composition’, she depended heavily on ‘the sinews of the state’. Notwithstanding populist rhetoric, she was interested neither in restructuring the state nor its policy apparatus but was‘for actually redistributing power, wealth and opportunities’. As a result, she ended-up creating ‘a top heavy and an increasingly insensitive structure of the state, so that all that remained was herself’.21 Not only was the party identified with her, the state, as it were, lost its independent existence, for the slogan ‘Indira is India, India is Indira’ stated much of what was true of Indira Gandhi’s regime. What probably enabled Indira Gandhi to continue as an otherwise effective ruler was the opposition disunity and successful suppression of the grassrootslevel political movements in a context where the country was distressingly divided due to its peculiar socio-cultural environment and exogenous influences, alleged to have instigated and nurtured divisive tendencies within it. By her direct contact with the people, Indira Gandhi became, as it were, a representative of the people irrespective of caste, class and creed. Her image as the reconciler of conflicting interests earned her a strong support base which was consolidated gradually independent of the party. Her emergence by the early 1970s as an invincible political leader lies not so much in the failure of the parties opposed to her, but in her appropriation of opposition politics based on the economic demands of various exploited classes. By adopting policies for the alleviation of landless agricultural labourers and working class and various other poverty-eradication programmes especially for the backwards, scheduled castes and tribes, she expressed her sincerity to attain the well-publicized socialist goal.22 In the context of plebiscitary democracy, the appeal in terms of the alleviation of the poor seemed most effective because it meant survival to a majority of the population. Whatever the structure of the appeal as a policy decision, the well-devised slogan – ‘Garibi Hatao’ –which

106  Indian democracy paid off for Indira Gandhi electorally in 1971, drew heavily on the so-called appropriation of opposition politics.

Rajiv Gandhi’s entry into politics: old pattern survived Indira Gandhi’s tragic end catapulted her son, Rajiv Gandhi, a reluctant entrant to politics, into centre-stage of Indian politics. Still a plebiscitary democracy, the slogan ‘Desh Bachhao’, which gained currency in view of the consolidation of fissiparous tendencies, swayed the Indian electorates and the Rajiv Gandhi–led Congress (I) obtained two-thirds majority in Lok Sabha with 49% of votes to its credit – a rare achievement for the Congress party because neither Jawaharlal Nehru nor Indira Gandhi had even garnered as much support as Rajiv Gandhi did. With his pronounced modernization zeal Rajiv Gandhi was hailed as someone who would revitalize the democratic system ‘by attacking corruption and patronage, reinstitutionalizing the Congress, halting the erosion of other institutions and promoting healthy two party competition between the Congress (I) and the opposition parties at the centre’.23 Despite India’s remarkable technological advancement during his tenure as the premier, Rajiv Gandhi failed miserably in bringing about changes in the political arena that continued to appreciate old values, idioms and styles, so common in a transitional society, like India. What it probably draws out is the fact that without developing an appropriate political culture, mere adoption of political institutions which are integral to democracy in the advanced Western capitalist societies hardly changes the contours of any political system. Rajiv’s managerial approach to politics and remote control style of functioning kept him away from reality, which instead of being adapted to ‘the computer age’ polarized the communities more on primordial considerations like caste and religion than on class antagonism. The rise of a powerful coterie comprising those dissociated from the ground reality of India around the prime minister, who increasingly depended on them for advice, ruled out the possibility of a different kind of politics altogether. Since the Congress party drew heavily on the Nehru-Indira Gandhi lineage due to its structural weakness, there was not a single effective threat to the continuity of Rajiv Gandhi as a leader. Factionalism, which appeared serious on occasions, thus never assumed alarming proportions. The ninth general election, held in 1989, conforms to the plebiscitary democracy model. The incumbent prime minister, Rajiv Gandhi, went to the polls with the electoral pledge ‘power to the people’ through the panchayati raj against a united opposition, a conglomeration of parties with conflicting ideologies which cashed in on the slogan ‘corruption [remove corruption] hatao’ in the context of Bofors scandal in which the top Congress (I) leadership was allegedly involved. Neither of the slogans was effective enough to garner majority support for either of the contending parties. Though the Congress (I), routed almost completely in the Hindi heartland which was compensated by its gain in south India, emerged as the single largest party in parliament, it did not stake its claim to form the government as it failed to get a clear verdict. This provided the National Front with an opportunity to rule India with numerical support from the BJP, which

Indian democracy 107 readily agreed despite its serious ideological differences with the Front constituents because it was politically expedient for the party. For the BJP, the decision to back the National Front government on the floor of parliament was a strategic one, for the Rath Yatra and its aftermath reveal the extent to which the party utilized the interim period as preparatory for the final assault on the forces challenging Hindu consolidation.

Plebiscitary democracy: political outcome The discussion carried so far brings out three points which require to be dealt with more carefully to understand the emerging contour of India’s democracy. First, despite severe challenges from within and the consolidation and triumph of forces opposed to democracy in the neighboring states, India’s experience with democratic forms of politics and government is rather successful. Although the British democratic tradition contributed immensely to India’s democracy, equally significant is the role of the Congress party, which sustained the democratic spirit at least institutionally since its inception. Not only did the Congress stalwarts absorb the democratic values, they played a role in legitimizing democratic rule as a whole. The general concern is not so much for the substance of political authority, for the mechanisms entailing elections, representation and mandates obtained through adult suffrage derive their sustenance from the 1950 Constitution which provides for a specific structure of political life ‘by allowing and encouraging (within limits) popular participation in the political system within a framework of rules, rights, structures and processes which must be broadly respected by both ruler and ruled’.24 Here probably lies the strength of India’s democracy, which has developed a different mode of legitimacy to consolidate itself in the context of challenges from within and outside its boundaries. Despite the pronounced socialist tilt of both Nehru and Indira Gandhi, the fact that the party never identified itself with the left shows the extent to which the centrist ideology prevailed over other considerations. Similarly, the argument that the right-wing elements found in the party an effective instrument to champion their goals also reveals the careful handling of party’s centrist image. In the Indian context, centrism, according to Achin Vanaik, therefore means: Only those formation(s) which can appeal to a broad cross section of classes and castes could hope to come to power nationally. This has implied not the absence of ideology but a capacity for ideological flexibility, a general programme which seeks to be consensual and to avoid too close an identification with left or right.25 Secondly, in the context of a rapidly changing political scenario, the logic of explaining the continuity of the Congress party as a centrist force in terms of its ability to carry the masses by offering a general consensual programme may appear unacceptable because no longer is the contention valid that the Congress vote-bank comprising the upper caste and the core minorities (Dalits, tribals and Muslims)

108  Indian democracy remains intact. There has been continuous efforts to wean the core voters away from the Congress: the VP Singh–led Janata Dal has succeeded in creating a constituency among the backwards by offering to implement the controversial Mandal scheme; the BJP has consolidated its support among the upper castes through its well-designed campaign for the construction of a temple at the controversial site in Ayodhya – a demand which is likely to instigate rabid Hindu fundamentalism. The Congress party in order to occupy the centrist space in Indian politics incorporated new demands which were floated in the wake of Mandalism and Rath Yatra by adopting pledges in the election manifesto championing soft Hinduism, soft Mandalism and the Kapoori Thakur formula.26The process indicating the adaptation of the parties to the changing socio-political environment does not show a serious departure from an overall centrist perspective; instead, it has drawn our attention to the fact that ‘the centre of gravity of Indian centrism has shifted from what it was and even now has not got fixed’27 primarily because the realignment of forces at the ground level has not yet been completed. And, therefore, the argument substantiating ‘the decline of centrism’ does not seem plausible because what has happened in the process ‘is not the decline of centrism so much as its search for redefinition’.27 Finally, within the frame of plebiscitary democracy, individual leadership has become more important than both the party structure and the ideology it professes. This is largely true of the Congress party, which in different incarnations presided over India’s destiny, with two brief interludes since the 1947 transfer of power. With Gandhi throwing his weight behind Nehru, the leadership issue was decided amicably in the latter’s favour. As long as he was on the political scene, Nehru appeared formidable probably because of his ability to carry the masses with him. His rise as the only able and effective Congress leader was relatively easy due to the demise of his equally competent and charismatic colleague, Vallabhbhai Patel. The Congress victory in elections both at the national and provincial level under the Nehru’s stewardship made the party dependent on a single individual for his remarkable votecatching ability. The party therefore looked redundant in the absence of a charismatic leader – this is the beginning of a process which assumed massive proportions with the passage of time. Although Nehru did not groom his daughter Indira Gandhi consciously as his successor, the mantle of Congress leadership fell on her owing to Lal Bahadu Shastri’s untimely death. The Congress syndicate comprising senior Congressmen, like Atulya Shosh, K. Kamraj and S. Nijalingappa, accepted her as she would, they thought, serve their interests better than other contenders. Through a direct communication with the people, Indira Gandhi reduced the Congress party to a mere name. Her emergence as a charismatic leader who swayed the masses and brought victory to her party helped her rise as an unassailable leader. It was essentially a verdict of the people on her performance as a leader amidst crisis. The 1971 electoral victory made Indira Gandhi’s position invincible.28 This election was also the beginning of plebiscitary politics that ‘opened direct relation between Indira Gandhi’s personalized leadership and individual voters rather than of an issue-oriented politics that mobilized classes and interests in support of Congress programmes and candidates’.29 Indira Gandhi became Congress’ most vital resource, the key to political power and personal advancement;

Indian democracy 109 the party and the person became one. As a result, not only was the party reduced to ‘an individual fiefdom’, an attempt was also made to retain its leadership within the family by grooming her son, Sanjay Gandhi, as her probable successor. The young Gandhi was projected as the future prime minister by the party which depended largely on Indira Gandhi for its survival. Within a brief period, Sanjay Gandhi appeared acceptable to the Congressmen irrespective of factions showing probably the extent to which Nehru-Gandhi lineage prevailed over other considerations in so far as the leadership was concerned. A sizeable section of contemporary politicians, both inside and outside the Congress (I) owed their rise in politics to Sanjay Gandhi. Since Indira Gandhi’s capacity to sway the masses in her favour was enviable; there was not a single protest against her deliberate attempt of establishing a dynastic rule by projecting her youngest son. Her defeat in 1977 was more due to the excesses of emergency than personalization of politics. Her victory in 1980 corroborates the plebiscitary democracy model. The slogan for stability acted favourably in view of the chaos experienced during the 1977–79 Janata rule. The accidental death of Sanjay Gandhi, anointed as Indira Gandhi’s successor in 1980 created a break in the line of succession which appeared temporary following the induction of Rajiv Gandhi into national politics; so, the Nehru-Gandhi lineage continued. The unanimous choice of Rajiv Gandhi as Indira Gandhi’s successor following her tragic end in 1984 seems to have been drawn on the consideration that ‘if the Congress remains the central fact of India, [the Nehru family] has become the central fact within it’.30 Indira Gandhi’s brutal killing and the rising tide of divisive tendencies made ‘Desh Bachhao’ [save the country] the most effective vote-catching slogan in the 1984 election. Rajiv was projected as a natural heir to the victory with an unprecedented 49% popular vote to his credit, ensuring the importance of the individual leadership rather than the party in obtaining votes. The sudden and tragic death of Rajiv Gandhi created an obvious vacuum in the Congress leadership. There were attempts to make his widow, Sonia Gandhi, the Congress president, which she declined. The move was probably prompted by one of two reasons or perhaps a combination of both: it may have been a strategic move to avoid internal power struggle that was inevitable given the internecine feud within the party, and secondly, it might have been a well-calculated endeavor to exploit a brutal killing for electoral gain on the promise that the slain leader’s sorrowing wife would be an asset in the election campaign. Resolutions adopted by various provincial Congress committees supporting the suggestion seem to explain the deplorable state of affairs within the party which gave the impression that without the stewardship of Nehru-Gandhi family it looked completely disarrayed. The apparent bankruptcy of the party is probably obvious because with organizational elections long overdue, it had become an organization of subservient camp followers. As a result, it became a fact of political life that the only people ‘who shone at court were either those who had no home base to draw strength from, or flunkeys who were able to assist the leader in a secretarial capacity’.31 Although the Congress cobbled together a majority by forming a coalition, it remained a minority coalition. A Congress-led minority government assumed

110  Indian democracy power under the leadership of Narashima Rao, who was tipped by the Soniasupported Congress High Command simply because he lacked a political base and hence would never become a threat to the party authority. Despite being the prime minister of a Congress-led minority government, the Rao regime will be remembered in history for its failure to prevent the destruction of the Babri masjid (mosque) in 1992 by the Hindu right wing. Perhaps to regain the Hindu vote bank for the Congress, Rao seemed to have gone slow even after he had clear indications of vandalism that was to follow on 6 December 1992.32

The changing political parties in the 1990s Indian politics is now far more complex than before. Both the Mandal formula and the Mandir agenda seem to be most critical in re-conceptualizing Indian politics. Political parties holding ‘the life wire’ of representative liberal democracy can hardly be indifferent to the new ideological issues that figure prominently in contemporary India. The change seemed to have begun with the breakdown of ‘the federal and coalitional pillars of the Congress Party’33 that contributed to the growth of other parties with regional roots. The process became very prominent especially in the 1990s when the electoral trend was towards fractured mandate, as the results of succeeding national polls show. It is thus perfectly possible to conceive of circumstances where a particular social group/or class is represented by various political parties. Hence the argument drawing on ‘a stable social base’ for a party or a group of parties may not always be tenable. And also conversely, it is perfectly logical to challenge the notion of ‘traditional vote banks’ where several parties are vying for the same vote bank championing more or less similar issues despite ‘the ideological differences’ among themselves. What is striking is the fact that not all of the parties jostling for social constituencies succeed uniformly and this is where lies the explanation as to why a party ‘shines’ and others do not under specific circumstances. Coalition is perhaps the best possible theoretical construct to articulate ‘this moment’ in Indian politics when political processes do not appear to be ‘uni-directional’ at all. This is a moment that not only captures the trends towards redefining Indian politics but also identifies its determinants in the changed domestic and global social and economic milieu. Indian politics are both coalitional and regionalized. As the successive poll results show, gone are the days of a single-party rule. The thirteenth Lok Sabha is illustrative of the stupendous achievement of the National Democratic Alliance (NDA) in sustaining a spirit of consensus among as many as twenty-four heterogeneous parties which were united only in their basic opposition to the Congress. The process that began in the 1967 state assembly elections seems to have struck roots in the Indian soil in view of the success of the NDA government in completing a full term of five years in power despite occasional hiccups. The fourteenth Lok Sabha poll in 2006 confirms the trend with the formation of another coalition government, led by the United Progressive Alliance (UPA). As is evident, the growing importance of coalition in government formation suggests the failure of the parties to cobble together a majority on their own and

Indian democracy 111 hence coalition is the only available option; it also shows a tenacity of ‘community identities, in the form of caste and religion, as groups struggle to construct majorities that rule at the Centre’. That these identities suddenly became significant in the political alignment of the late twentieth century also underlines that they are products of modern politics and not ‘residues of the past’.34 Indian parties thus represent, argues Paul Brass, ‘a unique blending of Western and modern forms of bureaucratic organization and participatory politics with indigenous practices and institutions’.35 Thus it is not surprising, as the Rudolphs have shown, that a caste group which is relatively homogeneous and cohesive, but politically not wellrepresented, tends ‘to form a partisan attachment to a particular party [or even] to form and operate a political party of its own’.36 This is one side of the story. The other side relates to the emergence of various outfits (that later may become independent parties) as the caste group becomes differentiated by class interests, and by differences in education, income, occupation and cultural characteristics. The trajectory of Indian politics confirms the trend. In the first election in independent India in 1952, for example, the all-pervasive Congress Party was opposed at the pan-Indian level by four ethnic parties, namely, the Ram Rajya Parishad, the Hindu Mahasabha and Bharatiya Jana Sangh – jostling for support of the Hindu ‘majority’, and the All India Scheduled Caste Federation, seeking to draw on the support of those constitutionally recognized as Scheduled Castes. In view of their failure to garner adequate electoral support, three of these four parties disappeared. The Bharatiya Jana Sangh failed to emerge as an alternative to the Congress presumably because it was confined to north India and never succeeded in acquiring an all-India image.37 The decline of the Congress party created space for the rise of the ethnic parties. Seeking to seemingly capture the support of the Hindu ‘majority’ against the Muslims, the Bharatiya Janata Party was formed in 1984 by those who formed the core of the Bharatiya Jana Sangh. Later, the Bahujan Samaj Party and Janata Dal, among others, came into being to consolidate the backward castes and Muslims against the upper caste Hindus. In course of time, however, most of these parties diluted their support base by being politically moderate and accommodative of the other groups that so far remained anathema for valid ideological reasons. The most striking example happens to be the BJP, which put all the contentious pro-Hindu and anti-Muslim agenda under the carpet for political expediency. The scene is not different in the states where the ethnic parties have grown in importance over decades. As Kanchan Chandra has shown,38 first the Dravida Munnetra Kazagham (DMK) and later its offshoot, All India Anna Dravida Munnetra Kazagham (AIADMK), drew on ethnic solidarity to capture power in opposition to other contending parties. In Punjab, at the initial stage of its career, the Akali Dal survived and drew its electoral strength from Sikh ethnic identity. Similarly, the Shiv Sena in Maharastra captured power in 1995 on Hindu cards by adopting a very strong anti-Muslim rhetoric, though it has underplayed its antiMuslim stance to a large extent now presumably because of the realization that it would alienate even the moderate Hindus from the party. There is another dimension which is peculiar to Maharashtra, namely two dominant castes of Maharatta

112  Indian democracy and Kunvi constitute a critical mass in elections. Hence the contending parties always vie for their support. The party that succeeds in drawing these ethnic blocs in its favour stands out in an election. As the succeeding elections show, the Maharatta-Kunvi combination always remains critical to any party seeking to form a government. What is therefore paramount for the parties is not the ideology, but the articulation of the ideology in such a form as to draw maximum support from these ethnic groups that gets translated in votes.

Ethnification of party: the consolidation of Bahujan Samaj Party39 As is evident, appeal to caste-based ethnic identity continues to remain critical in electoral politics in India. Even the Congress Party that carried the legacy of the nationalist struggle does not seem to be different. In most of the states, except perhaps the Left-Front-ruled Tripura, West Bengal and Kerala, every major party seeks to gain by appealing to the electorate on the basis of ascriptive categories. However the politics of caste varies with context. In the 1960s, as the Rudolphs have shown, the continuity of the upper castes in positions of power was possible because of a quid pro quo arrangement between them and the numerically strong lower castes: upper castes needed the numerical strength that lower castes’ support supplied and lower castes gained access to the resources and opportunities that support for upper caste leadership could yield. Although with the introduction of secret ballot in elections, the capacity of the upper caste to mobilize lower castes significantly declined, the former nonetheless held the key to political power presumably because there was hardly a threat from the latter.40 The situation was however dramatically changed in the 1990s with the growing consolidation of parties representing the numerically strong lower castes. As the evolution of the Bahujan Samaj Party in Uttar Pradesh shows, the rise of Mayawati is largely attributed to her ability to couch her appeal to the voters in clear ethnic terms. The 2007 assembly election in the state of Uttar Pradesh is a watershed in India’s recent electoral history for two reasons: First, the prediction that the election would result in a hung assembly did not come to pass – that the electorate voted against the incumbent government and accepted the Mayawati-led Bahujan Samaj Party (BSP) was perhaps a glaring example of how discerning Indian voters can be, flummoxing political analysts and pollsters alike. Secondly, it is clear that the Congress Party no longer remains a catch-all party capable of sustaining the rainbow coalition, drawn on the conceptual category of ‘traditional vote banks’. It makes no sense to suggest that the middle castes and Muslims are favourably inclined towards Congress. Furthermore, their support for reservation for the Other Backward Classes (OBC) has surely rattled the upper caste voters who are already disillusioned with the Bharitya Janata Party (BJP) in the Utter Pradesh. Likewise, the Muslim vote bank of the Congress is now highly fractured and the Dalits are hardly with the Congress since they have found a messiah in Mayawati. The near decimation of the Congress party in the 2007 assembly election is indicative of new electoral equations in the state.41

Indian democracy 113 It was clear from voter sentiment on the eve of the election that the BSP had a clear edge over other contending political parties in what is regularly referred to as India’s ‘most happening state’of Uttar Pradesh. The BSP was a forerunner for two important reasons: First, the mission, ‘brahmon jodo’(integrate Brahmans or the upper castes), was a master stroke which yielded dramatic results. In order to translate the mission into reality, the first major step Mayawati undertook was the induction of the former advocate-general, Mr Satish Chandra Mishra, a Brahman, within the party. By organizing Brahman mahasammelans (massive congregation) at regular intervals, Mishra helped the BSP to make significant inroads among the Brahmans. While addressing these mahasammelans, Mayawati repeatedly assured the Brahmans that the BSP is against Manuwadi or the Brahminical discourse for lower castes, and not against Brahmans. Similar mahasammelans were organized regularly to win back the other forward castes. These mahasammelans were largely well-attended though doubts were expressed whether this would tilt the outcome in favour of the BSP as forward castes do not seem to be so easily amenable to change given the historical roots of caste barriers and also because of the resentment of the upper castes due to BSP’s well-defined anti-Manuwadi platform. Nonetheless, the BSP’s victory in most of the constituencies is largely due to its success in forging an alliance with castes and communities brought together by constructing a common history of exclusion. The second supportive factor happened to be concerted attempts by the party workers to build an organizational network, widely spread across the state, the parallel of which can be found in West Bengal where the Left Front, supported by a well-entrenched organization, has achieved a political stranglehold of sorts. Unlike other political parties in the fray, the BSP began its election drill almost two years ago by selecting candidates for most of the constituencies and interacting with voters on the ground. Divided into twenty-five sectors (with ten polling booths in one sector), each constituency was closely monitored by the High Command. In tandem, each polling booth, hosting roughly with 1000 voters, was made the responsibility of a nine-member committee comprising of at least one woman to motivate and mobilize female voters. As the arrangement suggests, Behanji (sister), as Mayawati is popularly known in the state, left no stone unturned in her effort. On the surface, the BSP’s organizational effort seems to have paid dividends since a large chunk of forward castes supported the BSP. It is difficult to surmise whether this was positive support for the party, or whether it represented the best available option given the failure of BJP to deliver. What is clear however is a growing separation of the forward castes from the BJP. Their voice was more or less uniform in expressing disappointment with the BJP that conveniently put, as a school teacher in Allahabad pointed out, ‘the Ram mandir mudda (the agenda) under the carpet’.42 They were also upset with the incumbent state government, led by Mulayam Singh, who was accused of unnecessarily ‘pampering’ the Muslims. In explaining the poll verdict, two broad arguments have been put forward: first, the triumph of the BSP is largely attributed to Mayawati’s social engineering project – an euphemism suggestive of an alliance between the Dalits and Brahmans

114  Indian democracy and to a lesser extent, the Banias (merchants). In other words, Mayawati’s success can be attributed to ‘a rainbow coalition’, reminiscent of the Congress system that survived till 1967 in India, in spite of her inability to win the support of both the Muslims and Other Backward Classes to the extent the BSP supremo had expected. The second argument revolves around the popular inclination for a single-party majority government since coalition governments failed to govern irrespective of caste, class or religion. Whether the poll verdict corresponds with an anti-coalition trend is difficult to say. But there is no doubt that an anti-incumbency factor played a critical role in BSP’s favour. Given the genuine grievances of the common Utter Pradesh voter, with a per capita income less than half the all-India average, the discontent was but natural. Statistics reveal that one in four Brahmans in India lives in Utter Pradesh (UP). Correspondingly, the state has the largest Dalit population (23%) in India. Since the breakdown of the Congress-led social coalition in the first two decades after independence, the BSP political platform represents the first renewed attempt at unifying socially ‘antagonistic’ groups in the political arena. The BSP’s new political mantra, which was critical of the Mandal reservation scheme for the Other Backward Classes and drawn on Ambedkar-inspired principles, undoubtedly favoured the political aspirations of the party. This ideological package drew Dalits and forward castes together irrespective of their clearly different, if not antagonistic, location in the traditional social hierarchy of caste. The electoral appeal of inter-meshing the pro-Dalitideology of Ambedkar with the anti-Mandal stance of the BSP cemented a bond between castes, which invariably became a deciding factor in the election. Mayawati’s success was also largely due to a peculiar caste chemistry that fermented the coalition between Brahmans and Dalits. By getting the traditional upper castes and the Dalits together, the BSP leader has done a lot more than just returning to the social pyramid that sustained the erstwhile Congress system. While in the Congress system, the upper castes remained the driving force, in Mayawati’s social contract, Dalits are the drivers of change. In this sense, the BSP victory is symptomatic of a paradigm shift in Indian politics. Mayawati has succeeded in building a social coalition that inverts the pyramid of caste/class hierarchy by building a rainbow alliance of social groups, now dominated by that greatest underclass of all, namely Dalits. Nonetheless, the BSP is hardly the party of its traditional ideological mould since its leader seems to have redefined its character by underlining the role of Sarvjan (Dalit-Brahman combination) in staging a comeback. The triumph of the BSP cannot therefore be explained in terms of our conventional understanding of caste as a determining factor in Indian politics. The party did ‘use caste but only as a metaphor to build innovative grassroots alliances, which demonstrated that the concerns of other communities mattered as much as those of dalits’.43 Whether this formula will work elsewhere in India is debatable – it worked in Utter Pradesh precisely because the Dalits were already a consolidated political force and the combination with the forward castes put the BSP in an unassailable position which none of the political parties managed to muster.

Indian democracy 115 The BSP victory is not merely a change of guard in UP – it is also indicative of a new social coalition that is likely to be stronger in the days to come. By providing a unique formula bringing both the upper castes and so-called untouchables together, the BSP created a formidable social compact which, while heterogeneous by caste, is politically united. Neither the BJP nor Congress has succeeded in creating constituencies beyond its so-called traditional base. The new government in India’s largest state (which sends the maximum number of parliamentarians to the national legislature) is also an articulation of a process highlighting a clear shift in the centre of gravity in Indian politics: power has been shifting lower and lower down the caste order. This is perhaps the process of a silent revolution that has taken place, which neither the pollsters nor the strategists of the major political parties envisaged. The BSP’s political ascendancy is equated with India’s ‘silent revolution’. While explaining the phenomenon, Jaffrelot argues that the success is achieved not by resorting to a Marxist class struggle, but by ‘returning to Ambedkar’s project of uniting ascriptive groups which were victims of discrimination rather than only those who suffered from economic hardship’.44 This has resulted in deepseated changes in India’s political panorama. With the fragmentation of the social base, the appeal to a larger constituency seems to have lost its political appeal. The Indian state is fractured around caste, regional and religious considerations. Despite the political fluidity, a pattern seems to have evolved out of this kaleidoscope of political competition. Defending the argument for ‘silent revolution’, it is also being characterized as complementary to ‘maturing’ of Indian democracy in the light of ‘the high level of politicization’ of the marginalized sections of the Indian masses.45 There is however an exactly opposite point of view. Kanchan Chandra, for instance, provides a cynical interpretation by defining India as ‘a patronage democracy’. According to her, the growing participation of the masses in electoral politics represents ‘less a normative commitment or a spirit of celebration and more the intensification of a struggle over scarce resources provided by the state’ where the stakes are high and the poll outcome makes an immediate difference to the lives of elites and non-elites alike.46 In a patronage democracy, elections therefore become ‘covert auctions in which basic services which should, in principle, be available to every citizen, are sold to the biggest bidder’.47 In the first-past-the-poll-system of electoral democracy, majority matters and hence ethnic head counts acquire political salience. This is a double-edged device: on the one hand, numerically viable ethnic groups can never be politically excluded; it will also, on the other hand, lead to manipulation of the definition of ethnic categories given its clear positive gains.48 There is a related point here. Undoubtedly, the BSP and other parties representing marginalized groups radically altered India’s political texture by involving those groups that hardly mattered in political decision-making in the past. Here is a paradox because the parties seeking to democratize Indian political space seem to be most undemocratic internally for two reasons: first, the organization, highly individual-centric, remains closeted to the centralized leadership and as a result, it is not receptive to the democratic urges at the grassroots; secondly, as a

116  Indian democracy result, the choice of candidates during elections is always made by the leaders at the upper echelons of the party hierarchy. Elected representatives thus become the mouthpiece of the leadership, largely ignoring their critical role in representative democracy. Hence there seems to be a disjuncture between the needs and aspirations of the people and ‘high politics’ articulated in the legislature.

Hindutva as an electoral agenda in the 1990s There is no doubt that Hindutva, as an ideology, created a support base for the BJP by appreciating that the cultural heritage of the country should not be ignored or dismissed simply because it does not measure up to modern criteria.49 India has a rich cultural heritage that needs to be critically evaluated and suitably mobilized because ‘no country can build-up its self-confidence and self-respect by living on imported ideas alone’.50 Instead of being xenophobic, Hindutva also defends cultural ethos by seemingly integrating the best in our past with what it needs to learn from others. Three strategies on which Hindutva draws are those centred on ‘places, areas and routes of synergy’. As Deshpande argues, these strategies remain most effective in charging Hindus emotionally since they draw on ‘the sacred sites, loyalties (to religion, defined in a particular way), processions and pilgrimages’.51 Nonetheless, its success is limited presumably because of Hindutva’s homogenizing design. In fact, what is most negative in the entire conceptualization is the tendency to homogenize the Indian civilization and the texture of Indian identity. Hindutva does not seem to be designed to create a social coalition of diverse groups, but rather an aspiration to homogenize and construct a unity by submerging diversity. Indian civilization has drawn on various sources, including Hinduism. It is an outcome of long-drawn interactions among civilizational values, making it not a homogeneous whole, but a loose federation of different systems of thought and practices. Hence any attempt to homogenize it therefore necessarily distorts and does grave injustice to it because Hindutva cannot , argues Bhikhu Parekh, unite all Indians because of its antipathy to minorities. It cannot even unite all Hindus because it stresses only one version of Hindu history and culture. Indeed it creates a deep division among them by classifying some as “good” or “true” and the rest as “pseudo” or “confused” Hindus.52 Hindutva can therefore never strike a chord with the people at large presumably because of the sociological constraint, connected with the inherently pluralist character of Hinduism. Conceptually, Hindus cannot be nationalist, if the latter is understood as an ideological device seeking to ‘homogenize’ a set of people on the basis of well-defined criteria. This is perhaps ‘the gravest impediment to at least the more extreme items on its agenda’.53 Yet, it would be wrong to conclude that the Hindu nationalist influence is on the wane because it is located in much broader space than represented by the BJP. Because they overlap and blend with other key discourses on Indian society, culture and identity, ‘these

Indian democracy 117 are ideas which are manifested in a wide range of political actions and articulations’. Hence the political impact of Hindutva needs to be measured, argues John Zavos, ‘in terms of its continuing activism [in large parts of India involving the marginalized sections of society] where politics is manifested not in terms of formal state institutions, but as a contest for power in a network of localized institutions and practices’.54 Simultaneously with the expansion of influence of Hindu nationalism, there is also the ascendancy of caste groups and caste-based parties especially in the ‘Hindi heartland’ which have gained enormous electoral clout in recent years. In fact, the process is so powerful that it has been characterized as ‘a silent revolution’ whereby power is being transferred from the upper caste elites to various subaltern groups.55 How did the BJP gradually expand its base? Apart from avoiding the contentious issues – like the abrogation of Article 370, imposition of the uniform civil code – the importance of the national agenda cannot be ignored in projecting the BJP in a different garb. To a large extent, the presence of its political allies has aided this process and the BJP has gained a foothold in new territories. The growing expansion of the BJP was, as an analyst comments, ‘intertwined with a distinct three-tiered growth in its social appeal’.56 The first-tier growth involves the growing success of the BJP in extending its sphere of influence beyond its traditional support base of upper caste Hindus. In the Hindi heartland, apart from its core support base – the upper castes, the only other community that was mobilized in this region was ‘the scheduled tribe’. The second tier consisted in the Other Backward Classes (OBC); that was another significant community which voted for the BJP presumably because of its poll alliance with those regional parties with strong organizational presence in those states. Here the alliance with these parties allowed the BJP to strike roots among the OBC, which so far remained peripheral in its agenda. The first victim of ‘this confluence of lower caste mobilization and regional assertion [had been] the dominance of the Congress at the state-level’.57 The most important segment of the BJP’s growing social base related to the Scheduled Castes and Muslims, which was the third tier of its support base. Identified as the secondary states where the BJP hardly existed, by forging alliance with Telegu Desam, AIADMK, Trinamul Congress and Biju Janata Dal it also got a foothold in the erstwhile Andhra Pradesh, Tamil Nadu, West Bengal and Orissa respectively in the 1999 national poll. With the support of the allies, the BJP, which was a non-entity in these provinces, was visible. The poll agreement in 1999 with these political parties acted favourably for the BJP that ‘prospered by association and without [these parties] would most probably have been marginalized’.58 This is symptomatic of what an analyst characterizes as ‘a dual framework’ of analysis. On the one hand, the framework of backward caste politics gains remarkable salience, while the BJP and its frontal organizations (like the Viswa Hindu Parishad, Bajrang Dal and, above all, the RSS) seek to draw political capital out of its old Hindutva line.59 There is, however, on the other hand, another framework based on opposition to the major political parties, namely the Congress and BJP. Within this framework of reference, the coming together of the parties draws upon antiCongress and anti-BJP sentiments.60 In this process of coalition, regional parties

118  Indian democracy seem to be playing a crucial role in initiating ‘a democratic upsurge involving women, tribals, dalits, lower castes and rural voters’.61 As is evident, the BJP gained in 1999 to a greater extent than any political party following the decline of the Congress party as a dominant pan-Indian force. With its victory in the 1999 national poll, it was possible for the BJP to emerge as a panIndian alternative to the Congress, which seemed to have lost its organizational resilience due to a lack of strong national leadership and internecine factional feud, especially at the state level, over leadership. The BJP also had its own problems which were never insurmountable presumably because of the cadre-based organization and a flexible ideological approach to the issues that were likely to cement a solid support base for the party. It is thus argued that the BJP, especially in the context of the 1999 national poll, was a class by itself that sought to establish its claim as a party capable of governance by adopting a relatively elastic ideology. Hence, as an analyst comments, the strident of rhetoric of Hindu nationalism seems to have died [and] instead of mandir, masjid and mandal, election campaign revolved around bijlee (electricity), sadak (road) and pani (water), which [was] indicative of a dramatic change in the Indian political mindset in fifty years.62 The pre-and post-poll alliance with regional parties, notwithstanding ideological incompatibility, was largely the outcome of a reinvented BJP, which was then single-mindedly committed to remain in power at the centre. So what appears to have been an ideological dilution seems to have been BJP’s strategic calculation to renegotiate with the rapidly changing India’s socio-political and economic realities in a qualitatively different fashion. Rather than endorsing the ideological orthodoxy in which the party articulated its worldview in the past, the BJP seems to have upheld a pragmatic approach appreciating the constantly changing national profile. It was not surprising therefore that BJP, which suffered one of its most humiliating electoral reversal at the hands of the Congress in the 1984 election, emerged as a principal contender of the centrist position in Indian politics by the 1990s. In other words, with its wider organizational capacities for mass mobilization, the BJP sustained its ‘moderate’ image presumably because of its redefined ideological appearance within the constraints of coalition government. Not only did the effort pay electoral dividends to the party and its coalition partners, it also made the BJP the only national alternative to the Congress at the centre by redesigning its political agenda. Two factors seem to be critical in the rise of the BJP as the coalition’s leading partner: the numerical strength of the regional parties in terms of the number of parliamentarians in their fold and the failure of the national parties to muster a majority in parliament on their own; and also the willingness of these parties to form an alliance with the BJP that agreed to put the contentious issues under the carpet for coalition maintenance. What was therefore critical in the coalition was not ideological but programmatic compatibility. So the BJP, which was reportedly responsible for the demolition of the controversial Babri Masjid in Ayodhya in 1992, had succeeded in building a competitive bloc

Indian democracy 119 by adopting an agenda which was not clearly ‘partisan’ but politically meaningful in a multicultural milieu. If that is so, is it empirically correct to characterize the BJP in a stereotypical mould. The answer is perhaps no, although arguments were marshalled to support of the claim that there was always a space for ‘the hidden agenda’ that seemed to have sustained the core despite its apparent dilution on the surface for obvious political mileage, which does not appear to be tenable in view of the lack of evidence. Hence the explanation for the steady rise of the BJP has to be couched in terms of politically meaningful ‘anti-Congressism’, a euphemism that Rammanohar Lohia popularized in the 1967 Assembly elections when the Congress was completely routed in the Hindi heartland and West Bengal.63

Concluding observations Democracy survives in India in its reinvented form that is meaningful in a nonWestern context. Its sustenance presents us with a paradox that lies in the persistence of abysmal poverty along with serious democratic commitments on the part of the poor. There is hardly a well-developed civil society which is critical to democracy and yet democracy is flourishing.64 By their ritual and seasonal involvement in the democratic process, Indian voters perform the assigned duties in elections. The formation of minority governments with support from other parties without ideological conformity, a prominent trend till the 2014 national poll, was illustrative of a new trend in India’s constitutional democracy which set in motion the era of coalition government. On a sub-continent like India which is diverse on various counts, the fact that a single party or a single leader or a single issue will sway the county as a whole does not seem to be practical. Political diversity matching India’s multi-religious, multi-linguistic and multi-racial character epitomizes political maturity as well. That it was to be reversed was evident in the 2014 national poll when the BJP, despite being a part of the NDA, had won a majority on its own. Nonetheless, the coalition era was indicative of significant changes in India’s political arithmetic at two levels: at one level, the compulsion of the pan-Indian political parties to form an alliance for capturing power challenged the hegemony of a single party in the constituent states, and thus contributed to the rise of strong political forces highlighting socio-economic and political issues relevant to the respective areas; at another, far more significant, level, it brought the state level political forces to the centre-stage of all-India politics and in the absence of a clear verdict for the government, the ruling party had no alternative but to take them into confidence for mere survival. That India’s democracy is passing through a transition is evident from the breakdown of the vote banks, so important in the understanding of ‘the Congress system’. In the changed circumstances when there is no fixed social base of political parties, it is perfectly possible to conceive of circumstances in which a particular social group/or class is represented by various political parties. Hence the argument drawn on ‘a stable social base’, for a party or a group of parties may not always be tenable. And also conversely, it is perfectly logical to challenge the notion of ‘traditional vote banks’ when several parties are vying for the same

120  Indian democracy vote bank championing more or less similar issues despite ‘the ideological differences’ among themselves. What is striking is the fact that not all of the parties jostling for social constituencies succeed uniformly and this is wherein lies the explanation as to why a particular party ‘shines’ and others do not under specific circumstances. What is germane in this process is perhaps a new conception of democracy, as Rajni Kothari underlines. The gradual erosion of ‘traditional vote banks’ is certainly symptomatic of ‘sustained attack on sources of internal decay and degeneration, [all of which] is reminiscent of the freedom struggle in which liberation and swaraj were sought not just from an external power but also from the enemy within’.65 There are two aspects that need attention here: on the one hand, vote banks no longer remain as stable as in the past and hence the issues that persuaded the voters earlier may not be effective now to the extent they were earlier; the shifting of voters’ choice is also, on the other hand, indicative of their quest for an alternative since the party to which they owed their allegiance so far does not seem to be adequately equipped to pursue their self-interests. What is thus important to remember is the fact that, being vibrant, constitutional democracy in India is being constantly redefined in view of the changing socio-economic and political texture in which it is located – indeed a spectacular achievement which is unparalleled in known political history. And yet, as Amit Bhaduri laments, it remains ‘a grossly flawed achievement’.66 The failure has been the persistence of mass poverty and destitution even six decades after independence. BR Ambedkar, one of the main architects of the Indian constitution perhaps foresaw this when he noted that an incongruity between political equality and social and economic inequalities would effectively exclude significant sections of the populations from the democratic processes. He thus expressed his feelings before the Constituent Assembly by stating, On the 26thof January, we are going to enter a life of contradictions. In politics we will have equality and in social and economic life we will have inequality. In politics we will be recognizing the principle of one man one vote value. In our social and economic life, we shall, by reason of our social and economic structure, continue to deny the principle of one man one value. How long shall we continue to live this life of contradictions? How shall we continue to deny equality in our social and economic life? If we continue to deny it for long, we do so only by putting our political democracy in peril. We must remove this contradiction at the earlier possible moment or else those who suffer inequality will blow up the structure of political democracy which this assembly has so laboriously built up.67 Yet, the political process or the processes which make democracy function creates a distinct space for various kinds of struggles to seek to correct the imbalance in available economic opportunities. Democracy is a struggle, argues Sunil Khilnani, ‘whose protagonists are at once products of ancient habits and of modern ambitions, who have found in democracy a form of action that promises them control over their own destinies’.68 The democratic process is thus

Indian democracy 121 ‘the space that becomes available – contracting or expanding – for the range of resistance people capable of’.69 So, the functioning of democracy has not resolved the problems of economic imbalances and yet it has given rise to a new kind of ‘democratic progress’ constrained, of course, by the existent restricting socio-economic circumstances redefining primordial values in typical modern idioms. Electoral participation is certainly a powerful mode that is always being complemented by people’s democratic involvement in processes, which may not be directly linked with the poll, but which may have consequences for its outcome.70 The Indian model therefore adds new dimensions to theories of democracy. Despite being an aggregative model, the Indian version also has elements of deliberative democracy simply because even after expressing their preferences through voting, Indian voters participate in everyday struggles against an encroaching state.

Notes 1 This chapter is drawn on chapter 3 of my Indian politics and society since independence: events, processes and ideology, Routledge, London and Oxford, 2008.  2 Pratap Bhanu Mehta, The Burden of Democracy, Penguin, New Delhi, 2003, p. 2. According to Mehta, ‘No body of European social thinking on the prospects of democracy would have counseled such a course; there was no instance from the past that could be the basis for confidence that this experiment would work. No political formation that could provide an instructive example of how to make in such seemingly unpropitious circumstances: Unbound poverty, illiteracy, the absence of a middle class, immense and deeply entrenched social cleavages’. pp. 1–2. 3 Achin Vanaik, The Painful Transition: Bourgeois Democracy in India, Verso, London, 1990, p. 93. 4 Lloyd Rudolph and Hoeber Rudolph, In Pursuit of Laxmi: The Political Economy of the Indian State, Orient Longman, New Delhi, 1987, Chapter IV. 5 Achin Vanaik, The Painful Transition: Bourgeois Democracy in India, Verso, London, 1990, pp. 93–7. 6 John Mcguire and peter Reeves, ‘What are the politics of economic liberalization in India ? The case of West Bengal’, Asian Studies Review, Vol. 1, No. 3, April 1996, pp. 30–7. 7 D.K. Guha recollects his experience as a chief electoral officer till the 1952 election in his ‘ballot vs. bullet’, The Statesman, May 13, 1991. 8 This discussion will be pursued later in the section on Mandal Commission and after. I owe a great deal to Nawal Kishore Yadav, who in his piece on ‘criminalization of politics’ puts forward this point sharply. See Nawal Kishore Yadav, ‘Elections test bullet and brawn in north India’, in The Times ofIndia,Lucknow, November 5, 1989. 9 S. Nihar Singh, ‘Will the country now take stock of its failings?’ The Telegraph, May 24, 1991. 10 For details, see Vijay Dutt’s, ‘Will the past haunt?’ The Hindustan Times, New Delhi, March 17, 1991. 11 Rajni Kothari, ‘The congress system in India’, Asian Survey,March 1964, p. 1170 and also, ‘Integration and exclusion in Indian politics’, Economic and Political Weekly (EPW hereafter), Vol. XXIII, No. 43, 1988, p. 2224; W. H. Morris-Jones, ‘Stability and change in Indian Politics’, in Saul Rose (ed.), Politics in Southern Asia,Palgrave Macmillan, London, 1963, pp. 9–32. 12 James Manor, ‘Party decay and political crisis in India’, The Washington Quarterly, Summer 1981, p. 26.

122  Indian democracy 13 Rakhahari Chatterjee, ‘Democracy and opposition in India’, Economic and Political Weekly, Vol. 23, No. 17, p. 847. 14 Rajni Kothari, State Against Democracy: In Search of Human Governance, Ajanta, New Delhi, 1988, p. 30. 15 Rajni Kothari, ‘Integration and exclusion’, Economic and Political Weekly, Vol. 23, No. 43, p. 2225. 16 Rajni Kothari, ‘Integration and exclusion’, Economic and Political Weekly, Vol. 23, No. 43, p. 2225. 17 Lloyd Rudolph and Hoeber Rudolph, In Pursuit of Laxmi: The Political Economy of Indian State, Orient Longman, New Delhi, 1987, p. 99. 18 Lloyd and Hoeber Rudolph, In Pursuit of Lakshmi: The Political Economy of the Indian State, Orient Longman, New Delhi, 1987, p. 134. 19 Rajni Kothari, ‘Integration and exclusion’, Economic and Political Weekly, Vol. 23, No. 43, p. 2226. 20 ‘Legitimacy can only have meaning in a historical content – it cannot be considered in an historical asocial fashion. Broader structural factors (class relations) and social processes (levels of class struggle) shape the meaning of legitimacy. . . . While legitimacy is derivative of larger societal processes, it plays an important role in reinforcing outcomes’. See, James Petras, ‘Class politics, state power and legitimacy’, Economic and Political Weekly,Vol. XXIV, No. 34, 1989, p. 1957. 21 Rajni Kothari, ‘Integration and exclusion’, Economic and Political Weekly, Vol. 23, No. 43, p. 2226. 22 Partha Chatterjee explains this as illustrative of the politics of ‘appropriation’ and ‘opposition’. For details see his ‘the follies of appropriation and opposition’, Frontier, Calcutta, No. 8–10, October 11–25, 1986, pp. 30–6. 23 Achin Vanaik, The Painful Transition: Bourgeois Democracy in India, p. 99. 24 Achin Vanaik, The Painful Transition: Bourgeois Democracy in India, p. 103. 25 Achin Vanaik, ‘Flexibility of Indian centrism’, The Sunday Observer, New Delhi, April 28, 1991. 26 Achin Vanaik, ‘Flexibility of Indian centrism’, The Sunday Observer, New Delhi, April 28, 1991. 27 Achin Vanaik, ‘Flexibility of Indian centrism’, The Sunday Observer, New Delhi, April 28, 1991. 28 for details see: Paul Brass, The Politics of India Since Independence,Orient Longman, NewDelhi, 1990; Lloyd Rudolph and Hoeber Rudolph, In Pursuit of Laxmi: The Political Economy of the Indian State,op. cit. 29 Lloyd Rudolph and Hoeber Rudolph, In Pursuit of Lakshmi: The Political Economy of the Indian State, Orient Longmand, New Delhi, 1987, p. 137. 30 M.J. Akbar, ‘Wolves at the dynasty’s door’, The Telegraph, June 2, 1991. 31 Khushwant Singh described the people surrounding the Congress (I) leader in a more pejorative way: ‘Whatever political importance they got in the past was a chamchas[parasites] hanging round our recently assassinated former Prime Minister and his family’; see, Khushwant Singh’s column in the ‘The Telegraph’,Calcutta, June 3, 1991. 32 Memoirs of Madhav Godbole, who was the Home Secretary in the union government when the ‘controversial’ structure was brought down. 33 W.H. Morris Jones, The Government and Politics of India, BI Publications, New Delhi, 1974, pp. 215–17. 34 Sunil Khilnani pursues this argument in his The Idea of India, Hamish Hamilton, London, 1997, pp. 56–61. 35 Paul R. Brass, The Politics of India Since Independence, Cambridge University Press, Cambridge, 1990, p. 64. 36 Lloyd Rudolph and Hoeber Rudolph, The Modernity of Tradition: Political Development in India, The University of Chicago Press, Chicago, 1967, p. 27.

Indian democracy 123 37 For details on the rise and failure of the Bharatiya Jana Sangh, see Bruce D. Graham, Hindu Nationalism and Indian Politics: The Origins and Development of the Bharatiya Jana Sangh, Cambridge University Press, Cambridge, 1990; Craig Baxter, The Jana Sangh: A Biography of an Indian Political party, Oxford University Press, New Delhi, 1971. 38 Kanchan Chandra, Why Ethnic Parties Succeed: Patronage, Ethnic Headcounts in India, Cambridge University Press, Cambridge, 2004. 39 I borrow this expression – ethnification of party – from Kanchan Chandra. See her, ‘Post-Congress politics in Uttar Pradesh: The ethnification of the party system and its consequences’, in Paul Wallace and Ramshray Roy (eds.), Indian Politics and the 1998 Election: Regionalism, Hindutva and State Politics, Sage, New Delhi, 1999, pp. 55–104. 40 For details of caste politics in the 1960s, see Lloyd Rudolph and Hoeber Rudolph, The Modernity of Tradition: Political Development in India, The University of Chicago Press, Chicago, 1967, pp. 79–82. 41 Table 4.1: The poll outcome of the UP assembly elections in 2007 and 2002 Party

Seats in 2007 election

Seats in 2002 election

BSP Samajwadi Party BJP Congress Independent and Others Total

206 (30.46) 97 (25.45) 50 (16.93) 22 (8.56) 27 (18.60) 402

98 (23.06) 143 (25.37) 88 (20.08) 25 (8.96) 49 (22.53) 403

Source The Hindu, May 13, 2007. 42 Author’s personal interview in Allahabad, April 18, 2007. 43 Dipankar gupta and Yogesh Kumar, ‘When the caste calculus fails: Analyzing BSP’s victory in UP’, Economic and Political Weekly, August 18, 2007, pp. 3388–96. 44 Chrishtophe Jaffrelot, Dr. Ambedkar and Untouchability, Hurst & Co, London, 2000, p. 157. 45 Yogendra Yadav, ‘Reconfiguration in Indian politics’, Economic and Political Weekly, Vol. 31, No. 2 & 3, January 13 & 20, 1996, pp. 95–104. 46 Kanchan Chandra, Why Ethnic Parties Succeed: Patronage and Ethnic Head Counts in India, Cambridge University Press, Cambridge, 2004, p. 142. 47 Kanchan Chandra, Why Ethnic Parties Succeed: Patronage and Ethnic Head Counts in India, Cambridge University Press, Cambridge, 2004, p. 292. 48 According to Kanchan Chandra, the growing ethnification of political parties in India is inevitable. As she elaborates, ‘ethnic parties are most likely to succeed in patronage-democracies when they have competitive rules for intra-party advancement of the ethnic group they seen to mobilize is larger than the threshold if winning or leverage imposed by the electoral system. The adoption of centralized rule for intra-party advancement and/or a negative difference between the size of the target ethnic constituency and the threshold of winning or influence, increase the likelihood of failure’. Kanchan Chandra, Why Ethnic Parties Succeed: Patronage and Ethnic Head Counts in India, Cambridge University Press, Cambridge, 2004, p. 15. 49 The mandir slogan paid massive electoral dividends to the BJP. In the aftermath of the controversial Rath Yatra in 1990, the BJP, for instance, almost doubled its popular vote from 11% in 1989 to 21% in 1991, winning 119 Lok Sabha seats. That was perhaps the upper limit of what a typical Hindutva slogan could achieve in terms of seats in parliament. Its increased tally of 182 seats in 1999 national poll was linked to a large extent with the failure of other parties to emerge as effective alternatives to the BJP.

124  Indian democracy 50 Bhikhu Parekh, ‘Limits of the Indian political imagination’, in V. Rajendra Mehta and Thomas Pantham (eds.), Political Ideas in Modern India, Sage, New Delhi, 2006, p. 452. 51 Satish Deshpande, Contemporary India, Penguin, New Delhi, 2004, pp. 84–97. 52 Bhikhu Parekh, ‘Limits of the Indian political imagination’, in V. Rajendra Mehta and Thomas Pantham (eds.), Political Ideas in Modern India, Sage, New Delhi, 2006, p. 452. 53 Sumit Ganguly, ‘The crisis of Indian secularism’, Journal of Democracy, Vol. 14, No. 4, October 2003, p. 23. 54 John Zavos, ‘The shapes of Hindu nationalism’, in Katherine Adney and Lawrence Saez (eds.), Coalition Politics and Hindu Nationalism, Routledge, London, 2005, p. 53. 55 Christophe Jaffrelot characterizes this process as ‘a silent revolution’ in his India’s Silent Revolution: The Rise of the Low Castes in North Indian Politics, Permanent Black, New Delhi, 2005. 56 Oliver Heath, ‘Anatomy of BJP’s rise to power: Social, regional and political expansion in 1990s’, Economic and Political Weekly, Vol. 34, No. 34 &35, August 21, 1999, pp. 2516–17. 57 Thomas Blom Hansen and Christophe Jaffrelot (eds.), The BJP and the Compulsions of Politics in India, Oxford University Press, New Delhi, 1998, p. 10. This confluence, argue Hansen and Jaffrelot, resulted in the eclipse of the Congress in Tamil Nadu in the 1960s, Andhra Pradesh and Karnataka in the 1980s and most of north India especially from the late 1980s onwards. The interesting feature of especially northern and western India is, they further state, ‘that the protracted demise of the Congress here has been executed interchangeably by the Janata Party, Samarwadi Party and other parties appealing to the upward-mobile OBCs and peasant communities’. 58 Oliver Heath, ‘Anatomy of BJP’s rise to power: Social, regional and political expansion in 1990s’, Economic and Political Weekly, Vol. 34, No. 34 &35, August 21, 1999, p. 2517. 59 Suhas Palshikar, ‘The regional parties and democracy: Romantic rendezvous or localized legitimation?’ in Ajay K. Mehra et al (eds.), Political Parties and Party Systems, Sage, New Delhi, 2003, p. 329. 60 While pondering over ‘the politics of coalition’ in the context of the 2004 Lok Sabha poll, representative from the Congress, CPI (M) and Rashtriya Janata Dal were unanimous on the ‘inevitability’ of coalition government at the centre. But there were sharp differences on whether it was an outcome of political expediency, simply a question of political accommodation or one that should only be determined by a common minimum programme. For the BJP spokesperson, coalition politics ‘has ceased to be a question of preferences, it has become inevitable’ while Lalu Prasad Yadav, the Rashtriya Janata leader attributed the success of a coalition to a common minimum programme of ‘ousting the BJP and its frontal organizations and save the country from disaster’. Concurring that coalition politics has emerged as ‘a viable option’, the CPI (M) chief minister of West Bengal referred to the Left Front experiment in West Bengal as an example of a coalition demonstrating that coming together of parties is possible ‘without stooping to political opportunism. Critical of the fragile basis the NDA that drew on inherent contradictions of Hindutva, and by underscoring the necessity of ‘political morality’, he further argued that ‘without ideological coalition no coalition can survive’, The Hindu, March 2, 2004. 61 Yogendra Yadav, ‘Reconfiguration in Indian politics: State assembly elections, 1993– 1995’, Economic and Political Weekly, Vol. 31, No. 2 & 3, January 13–20, 1996, pp. 96–100. 62 Gurcharan Das, ‘The hope of a new politics’, The Times of India, February 22, 2004. 63 Paranjoy Guha Thakurta and Shankar Raghuraman, A Time of Coalitions: Divided We Stand, Sage, New Delhi, 2004, pp. 310–12.

Indian democracy 125 64 Indian experience is a creative response to democratic theory. Its paradox is a paradox only, argues Javeed Alam, ‘in relation to received theory’. Javeed Alam, Who Wants Democracy? Orient Longman, New Delhi, 2004, p. 131. 65 Rajni Kothari, Rethinking Democracy, Orient Longman, New Delhi, 2005, p. 123. Critical of the age-old government-centric conceptualization, Kothari thus defines democracy as an ideology that encompasses ‘the many facets and diversities of a complex social reality, without falling prey to the homogenizing and oppressive thrust of the modern state, economy and technology’. 66 Amit Bhaduri, Development With Dignity: A Case for Full Employment, National Book Trust, New Delhi, 2006, p. 3. 67 B.R. Ambedkar, CAD, November 25, 1949, Book No. 5, p. 978. 68 Sunil Khilnani, The Idea of India, Hamish Hamilton, London, 1997, p. 13. 69 Javeed Alam, Who Wants Democracy? Orient Longman, New Delhi, 2004, p. 25. 70 The literature on deliberative democracy is rich and includes: John Dryzek, Deliberative Democracy and Beyond: Liberals, Critics and Contestations, Oxford University Press, Oxford, 2000; John Dryzek, ‘Legitimacy and economy in deliberative democracy’, Political Theory, Vol. 29, No. 5, 2001, pp. 651–69; Jurgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, MIT Press, Cambridge, MA, 1996; Ian Shapiro, Democratic Justice, Yale University Press, New Haven and London, 1999; Marion Iris Young, Inclusion and Democracy, Oxford University Press, Oxford, 2000.

5 Changing texture of the Indian polity The 2014 national poll1

The 2014 election campaign stands out because of two reasons: on the one hand, the poll campaign was drawn heavily, if not exclusively, on one individual, the prime minister designate, Narendra Modi, who appeared to have cemented an intimate bond with the voters across the country; the poll verdict was, on the other hand, equally startling since after almost a decadeand a half, it was possible for the BJP to secure an absolute majority in parliament. The BJP fought the election, it is true, as a leading constituent of the National Democratic Alliance (NDA), which largely became a label given the failure of other partners to win Lok Sabha seats as per their expectations. In the light of the nature of the poll campaign and also the outcome, the 2014 national election in India seems to have set a precedent; it was not an accident of history, but an offshoot of processes that were intimately linked with, among others, the failure of the government, led by the United Progressive Alliance (UPA) to defuse crises in governance, if not misgovernance. The nine-phase-long 2014 parliamentary poll – from 7 April to 12 May – was the second longest in India’s democratic history after the 1951–52 first Lok Sabha poll that continued for five months. This was an extraordinary election otherwise. With a vote share of 31% – or nearly every third vote cast in the country, the BJP obtained an absolute majority by winning 282 of 543 seats in the lower house of Indian parliament. The Congress share has dwindled from 24% in 2009 to 19.3% in the 2014 Lok Sabha poll. Except the right wing, BJP, none of the contending parties had succeeded in retaining its earlier tally. The loss of the Congress was most revealing: in the 2009 Lok Sabha poll, it had won 206 seats, which were reduced to only forty-fourin the sixteenth national election; the share of its popular votes had also declined. For the BJP, not only did the 2014 poll outcome register a massive increase of its tally in the lower house of Indian parliament, the share of votes had also grownfrom 18.8% in 2009 to almost 32% of popular votes. The sixteenth Lok Sabha poll, held in 2014, put the BJP onto the centre-stage of Indian politics. The NDA won a sweeping victory with 336 seats in the parliament. Its leading constituent, the BJP, won 31% of all votes and 282 (51.9%) of all seats, while the NDA’s combined vote share was 38.5%. It was for the first time since the 1984 general election that a party secured enough parliamentary seats to form a government without the support of other parties.The Congress-led UPA won fiftyeightseats, of which the Congress had forty-four(8.1%) Lok Sabha seats with a share of 19.3% of total votes. It was the Congress party’s worst defeat in a general

Changing texture of the Indian polity 127 election since India was introduced to Westminster-type parliamentary democracy; it was also the first time that the BJP and its electoral/governmental partners had an opportunity to obtain an absolute majority in parliament. By focusing on the NDA poll victory, this chapter reiterates the argument that an effective election campaign, led by Narendra Modi along with the BJP’s frontal organizations and also the Sangh Parivar, resulted in an unprecedented victory that the BJP had not witnessed since its arrival on the political scene in 1980. The aim of this chapter is to comprehend the changing texture of Indian polity by reference to the rise and consolidation of the BJP following its victory in the 2014 national election. This was not an ordinary election because it was held at the backdrop of a massive campaign against the erstwhile UPA government for being heavily tainted as most corrupt of the governments that had ruled India so far. The BJP was also charged by its opponents for its complicity with Hindu fundamentalist forces which were likely to, it was highlighted in the opponents’ campaign, divide the country along religious axes. So, it was an electoral battle in which charges and counter-charges seem to have gained excessive importance and the ideological issues appear to have lost their salience. What is striking is to notice the temporary drubbing of the BJP in the 2016 state assembly elections and its resurgence in 2017 when, in Uttar Pradesh, it completely decimated the opponents by winning more than threefourths of the Assembly seats. Hence the chapter makes the argument that it is difficult to comment on the fate of contending political parties in a fixed conceptual form presumably because of the rapidly transforming socio-economic and political context in which electorates make their preferences while casting their votes.

The 2014 national poll Held in 2014, the sixteenth parliamentary poll in India is a watershed in her recent political history for at least three significant reasons: First, breaking the trend of the last few decades in which no party was able to muster a majority in parliament, the Bharatiya Janata Party (BJP) with 282 of a total of 543 seats in the lower house shall no longer be dependent on the whims of its partners for survival. With the BJP winning a majority on its own, a remarkable shift is visible in the texture of India’s parliamentary politics. The wave for the star campaigner, the erstwhile Chief Minister of Gujarat, Narendra Modi, who caught the imagination of the large section of the voters, gave the BJP-led National Democratic Alliance (NDA) an unprecedented victory with 336 seats in the Lok Sabha. Not only did the principal partner of the NDA, the BJP, increase its tally in the sixteenth Lok Sabha poll, it also significantly enhanced its vote share from what it had in the 2009 parliamentary poll. Secondly, the voter turnout was also unprecedented: in comparison with an all-time record 64% turnout in 1984 election which took place in the aftermath of the assassination of Indira Gandhi, the 2014 election witnessed an increase of more than 2% in the total number of voters who exercised their franchise. This is indicative of voters’ confidence in democracy as a powerful mechanism for change even in adverse political circumstances. The BJP’s landslide victory was also illustrative of a mass desire for effective governance in the light of the failure of the erstwhile Congress-led coalition government to

128  Changing texture of the Indian polity meaningfully address the policy paralysis and a series of financial scandals which not only exposed its weaknesses against vested interests, but also gave credibility to the allegation of government complicity with those involved in corruption. Finally, the 2014 national poll outcome is significant from the point of view of the left parties which lost even those seats that they had won in 2009. The ignominious drubbing of the left is attributed to the disenchantment of local voters with the left in West Bengal and Kerala, the left-citadels in India. What is most striking is the fact that the rise of the right-wing BJP is proportionally linked with the decline of the left in India’s parliamentary history.2 Except the BJP, all other contending parties stood almost decimated in the 2014 Lok Sabha poll. It was undoubtedly a Modi-centric election in which the BJP successfully persuaded voters to vote in its favour. The role of the BJP’s subsidiary organizations, and above all, the Sangh Parivar, cannot be underestimated; in fact, besides Modi’s charismatic appeal to the voters, the organizational backing that Modi had in the election came from them, especially in areas where the Sangh Parivar is known to have a firm organization. It was evident in the poll outcome which is as follows: Table 5.1  Distribution of popular votes, 2014 Seat share of different parties in the election

Vote share of different parties in the election

BJP (51.9%) INC (8.1%) BSP (0%) AITUC (6.2) SP (0.9%) AIADMK (6.8%) CPI (M) (1.7%) BJD (3.6%) Shiv Sena (3.3%) TDP (2.9%) TRS (1.9%) Others (12.7%)

BJP (31.0%) INC (19.3%) BSP (4.1%) AITUC (3.8%) SP (3.4%) AIADMK (3.3%) CPI (M) (3.3%) BJD (1.7%) Shiv Sena (1.9%) TDP (1.9%) TRS (1.8%) Others (24.5)

BJP: Bharatiya Janata Party; INC: Indian National Congress; BSP: Bahujan Samaj Party; AITUC: All India Trinamul Congress; SP: Samajwadi Party;AIADMK: All India Anna Dravida Munnetra Kazhagam; CPI (M): Communist Party of India (Marxist); BJD: Biju Janata Dal; TDP: Telegu Desham Party;TRS: Telangana Rashtriya Samati. Source:Prepared from the election data, available from the website of the Election Commission of India (eci.nic.in), accessed on 17 June 2015

The 2014 election has made the BJP a truly national party with significant presence in almost all parts of the country. The victory is also attributed to BJP’s success in building a broad social coalition of upper castes with other segments of Indian society. This was a unique achievement for the party which was, so far, identified only with the business communities, located primarily in cities and towns. The sixteenth poll extended not only its geographic expanse, but also created and consolidated a social base cutting across various socio-economic strata. As the following tables show:

Changing texture of the Indian polity 129 Table 5.2  Expanse of the BJP, 2014 BJP’s performance in the Hindi heartland

Consolidation of social forces in the Hindi heartland for the BJP

Hindi-speaking area: 190 seats (43.7%) Rest of India: 92 seats (22.3%) Note: Figures in the parentheses show the vote share in percentages.

Upper caste: 65% (31%) OBC: 48% (24%) SC: 34% (16%) ST: 55% (24%) Muslims: 11% (7%) Note: Figures in the parentheses indicate BJP’s vote share in percentages at the all-India level.

Source: Adapted from the tables in Pradeep Chhibber and Rahul Verma, ‘The BJP’s 2014 Modi wave: an ideological consolidation of the right’, Economic and Political Weekly, 27 September 2014, p. 55

The above figures confirm that the political party that gained most electorally in the sixteenth election happened to be the BJP, which seemed to have swayed the voters in its favour by projecting itself as a better alternative than the incumbent Congress-led UPA government that ruled India for a decade since 2004. One cannot discount the popularity of Narendra Modi, the BJP’s prime minister designate, cutting across the social and political cleavages. What was BJP’s electoral gain was Congress’ loss. While the BJP had consolidated its social base, the Congress party had failed to even retain what it had in the past. The Congress defeat thus meant that voters cutting across social strata turned away from the party and thus weakened its base across all social sections. Despite having introduced several pro-people welfare schemes that potentially benefitted a large segment of India’s populace, the Congress lost its social base largely because of ‘the administrative failures of the Congress-led UPA in the years preceding the 2014 election [to contain] corruption and inefficiency’,3 which almost automatically created a constituency for the BJP-led NDA. The Congress was defeated conclusively: its decline was all-pervasive; the inability of the Congress to sustain its support base even in areas which were its strongholds in the immediate past also reveals the bankruptcy of the organization that never appeared to be adequately equipped to stop the Modi juggernaut in the 2014 election, as the following table shows: Table 5.3  Electoral performance of the Congress in different regions, 2014 Regions

Parliamentary seats

Share of votes (in percentages)

East North-East North Central West South Total

06 (117) 08 (25) 06 (151) 03 (40 02 (78) 19 (132) 44 (543)

12.3 29.8 17.2 35.9 23.7 18.6 19.3

Note: Figures in parentheses indicate the total number of parliamentary seats in the region. Source: Adapted from the table in Suhas Palshikar, ‘The defeat of the Congress’, Economic and Political Weekly, 27 September 2014, p. 58

130  Changing texture of the Indian polity The 2014 national election is a clear break with the past. Besides the misgovernance of the erstwhile UPA government in its second term, the BJP-led NDA seems to have swayed the voters in its favour on the basis of electoral pledge of inclusive governance. The BJP strategy of projecting Modi as its prime ministerial candidate several months before the election provided the party a clear edge over its principal rival, which appeared to be directionless and busy putting a brave face despite visible cracks in the organization. While the Congress was on the defensive, the BJP’s projection of leadership as ‘decisive, effective and experienced’ put the party on a stronger platform. It has thus been persuasively argued, When what was ranged against the BJP was seen to be hopelessly wanting in competence and capacity, the party appeared to score points not exclusively for what it and its leadership represented, but for what it was pitted against. The BJP victory had [thus] much to do with a well-planned leadership-driven campaign.4 The campaignworked miracles in the national poll when its bête noire, the Congress, was busy putting the house in order. The election campaign was undoubtedly leader-centric and the poll outcome confirms that the strategy was most effective. The prime minister designate, Modi, turned the 2014 Lok Sabha poll into a referendum on himself. He thus emerged as the focal point of electoral campaign across the country. The election thus became, in other words, something of ‘a plebiscite on the leader rather than a choice of candidates in constituencies or a new set of political elite’.5 As a result, the issues, both national and local, did not seem to figure when the voters made up their minds. It was a rare thing to have happened since the 1971 fifth Lok Sabha poll when the election was fought on the popularity of Indira Gandhi. The 2014 Lok Sabha poll was thus not a battle for ideological issues but for an appropriate leadership that voters were asked to choose on the basis of their appeal to them. Like the American presidential election, the sixteenth national poll in India can thus be said to have set in motion processes for a personality-based election. In 2014, the strategy favoured the BJP-led NDA by infusing new life into the cadres who appeared to have lost the zeal to work for the right-wing conglomeration presumably because of the infighting that remained unaddressed; what made the strategy far more effective was also the Congress party’s failure to project a strong leader to counter Modi; the inexperienced Rahul Gandhi was no match for him despite having had the acceptability to the party and also supporters by being born into the Gandhi family. On the whole, as the poll outcome suggests, the 2014 election was primarily a leadership-driven exercise in which the voters appear to have decided not on the basis of the election pledges of the contending parties, but on the appeal of the leaders that the BJP and Congress had projected. Like other non-BJP parties, the poor performance of the parliamentary left is also illustrative of the gradual weakening of the organization that has consistently backed the left cause. The 2014 poll outcome also confirms that the left leadership did not seem to bother to address these weaknesses seriously even in the aftermath

Changing texture of the Indian polity 131 of the 2009 Lok Sabha poll when the left was trounced as well. Whether the 2014 poll debacle will wake them up cannot be answered now. It is clear however that the Indian voters cannot be taken for a ride and it has again been established beyond doubt that mere ideological inclination of the voters shall not always get translated into votes unless there is an organizational back-up. So, the parliamentary left has become rendered virtually irrelevant in the election to the sixteenth Lok Sabha, winning only nine seats in comparison with its tally of twenty-four in the last Lok Sabha. The total vote share of the constituents of the parliamentary left (CPI (M), CPI, RSP, Forward Bloc) was drastically reduced from 7% in the 2009 parliamentary poll to a mere 4.5% in the 2014 election. The leading partner of the left, CPI (M) suffered most: its national vote share declined from 5.3% in 2009 to 3.2% in the 2014 poll.6 The immediate outcome of the poor showing of the left resulted in CPI (M) losing its status as a national party, which left only the Congress and ruling BJP as national parties. The parliamentary left faced perhaps the most ignominious defeat ever in its journey as an alternative ideological discourse in democratic India. Despite not being participants in the democratic elections, voters in the so-called Red Corridor were reported to have explored the None of the Above (NOTA) option as an effective means to ventilate their grievances. This perhaps shows their willingness to engage with the Indian state that has opened a small window for further dialogues. The convincing BJP victory in the 2014 election was followed by its equally impressive electoral performance in Maharashtra and Haryana state assembly elections, held in 2014. In Jammu and Kashmir, the BJP had won in twenty-five assembly constituencies (out of a total of eighty-seven seats in the state assembly) with a share of 23% of total popular votes. This was an impressive show of strength as well though it did not succeed in any of the constituencies in the valley of Kashmir. The success was however soon marred because in the Delhi assembly election that followed the assembly elections in Maharashtra, Haryana and Jammu and Kashmir, the nationally successful BJP cut a very sorry figure. Hence, no analysis of the 2014 Modi campaign will be complete without looking at the drubbing of his party in the assembly election of the National Capital Territory of Delhi in February 2015. The electoral loss was humiliating with BJP managing to win a mere three out of the seventy assembly seats. In terms of vote share BJP could barely retain its share of 33% (a marginal loss of 0.9%) that it won in the state poll in December 2013 that was before the Modi wave hit the country. In contrast, during the national election the BJP won a majority in sixty assembly constituencies of Delhi, winning 46.5% of votes polled. In the 2015 assemblyelection it was a loss of 14.3% votes in just nine months. So conclusive had been the BJP loss that many concluded that it was the end of the Modi magic in election campaigns. What many winked at is that no two elections are similar. Kejriwal and his fledgling political outfit Aam Admi Party (AAP) had a strong support base in the national capital Delhi. In December 2013 the AAP vote share was 29.5%, which increased by 3.5% in the Lok Sabha poll of 2014 despite the Modi wave. AAP had been emerging as an alternative to the two established national political parties,

132  Changing texture of the Indian polity BJP and Congress. In the assembly election of 2015 AAP could win almost the entire anti-BJP vote share – leaving a mere 9.4% to Congress. Modi at an election rally said, ‘This election will decide how world perceives India. Delhi is the country’s identity and every event that happens in Delhi impacts our image worldwide’.7 No wonder that after the result the NewYork Times wrote, ‘Fresh from the diplomatic high of a successful summit meeting with President Obama, Prime Minister Narendra Modi has been brought down to earth by domestic politics’.8 Delhi’s Centre for the Study of Developing Societies (CSDS) in its analysis however concluded that the AAP sweep was not exactly an expression of disenchantment with Prime Minister Modi or his government. As per the CSDS post-poll data for the Delhi elections, two-thirds of the respondents said that they were satisfied with Narendra Modi as prime minister. Only 30% of the voters said they were dissatisfied with Modi’s efforts in office. Even among the poorest voters, there was high level of support for the prime minister. Some 63% of the overall respondents said that they were satisfied with the performance of the central government.9 Yet nearly 39% who voted for BJP in the Lok Sabha election of 2014 shifted to AAP in the assembly election of 2015. Clearly politically matured residents of Delhi had been looking for a strong propeople leader with a clean image to manage Delhi. The factors that made them to vote for Modi in the Lok Sabha poll worked in favour of Kejriwal in 2015. People knew well enough that the BJP did not have any strong leader to espouse the cause of Delhi residents and only Kejriwal could stand up to meet their aspirations. It was a mandate in favour of Kejriwal with nobody coming remotely close to challenge him. Modi as prime minister could not have competed with Kejriwal. Clearly the BJP agenda of 2014 laid the groundwork for Kejriwal’s stunning election win. While people used the same logic and voted in favour of AAP, Kejriwal, too, learnt from his misadventure of 2014 and reorganized his campaign, learning from the Modi campaign. Kejriwal knew that media would mock him for his abrupt resignation in 2014 as Delhi chief minister and also for cutting a sorry figure in challenging the Modi campaign in the LokSabha election. His campaign therefore concentrated on addressing people in their localities through nukkad sabhas (street corner meetings). What is more, he started when BJP was euphoric from its Lok Sabha victory, Congress was still sulking and media wereusing AAP as a joke. Kejriwal started in September. First he began by introspecting what went wrong. He realized that people in Delhi who expected him to be different did not like his ambition of quickly attempting a national position, betraying their faith in him. It was time for Kejriwal to pick up the pieces. He realized that people still had hope in the alternative politics he propounded. At the same time they had hope in Modi. This is when BJP national leaders were busy planning their electioneering in the larger states like Maharashtra, Haryana, Jharkhand and Jammu and Kashmir. The local leadership in Delhi were relaxed and busy infighting. They were hoping that the Modi magic would see them through. For Kejriwal it was a battle for survival. If he had failed, it would have been the end of Kejriwal as a politician. The stakes were too high for him, like they were for Modi in the general election of 2014.

Changing texture of the Indian polity 133 Kejriwal reached out to the voters direct to prove that he was concerned for the day-to-day problems of Delhi’s citizens, which contributed to his growing popularity among the voters. He gained rich dividends since this was an area which remained neglected by the state during the erstwhile Congress regime. While seeking to conceptually articulate the state’s negligence of the so-called small but pressing socio-economic and civic problems, sociologist Daniel Bell once suggested, argued Pratap Bhanu Mehta, ‘that the challenge of the modern state was that it was too big for the small problems in life and too small for the big problems in life’.10 It has to articulate an idiom that addresses ordinary problems or ordinary people: petty corruption, electricity, water. The AAP hammered home these themes in a homely way’. What is more, Kejriwal did what most politicians do not do. He admitted his mistakes – the mistake of resigning just after 49 days as chief minister of Delhi in 2014. His candid admission of guilt and promise never to repeat it blunted all criticisms on that count. The second important decision of Kejriwal was never to criticize Modi, knowing well that many of his potential supporters still admired Prime Minister Modi. In contrast politician Modi made the mistake of criticizing Kejriwal for leaving Delhi abruptly and also for his ‘dharna’(sit-in demonstration) in front of the central government office in Delhi when he was in power. What Modi winked at was the fact that people had already accepted Kejriwal’s apology. Election campaign is not merely unfurling cold statistics nor is it creating grand events and winning over people. If the Modi campaign drew people out, it was because he touched the heart of ordinary Indians. When in power he could not have whipped up that passion since Modi is the establishment now. Columnist Swapan Dasgupta assessed it rightly, ‘To my mind, the most significant change that has happened in the past 10 months has been the transformation of the Modi image from that of a crusader against a decrepit and venal establishment to the leading light of a new but aloof establishment’.11 When AAP volunteers were busy doing what BJP did before the Lok Sabha election of 2014, the BJP Delhi unit was acting the way its predecessor Congress had been acting. They were complacent, thinking that afew Modi rallies would prove decisive in their favour. There was no effort by the party to reach out to people, find out their issues and bring the same before the central government to resolve the same. Of the seven members of Lok Sabha,one Dr Harshavardhan became health minister only to lose his portfolio in the first reshuffle of the union cabinet. The remaining six members were never seen working in their respective constituencies. BJP thus conceded its position to AAP even before the assembly election was announced. The point missed by BJP was that in Delhi the party was the ruling one since Delhi was under the president’s rule. In addition BJP had been managing the civic bodies for last few terms. The performance of these bodies is full of corruption and harassment to people. It was therefore easy for AAP to resume its role as the populist crusader. Closer to the election Modi committed a critical mistake. He wore a pinstriped suit with his name monogrammed all over. In one suit he surrendered his carefully cultivated ‘tea boy’(chaiwala) image. In

134  Changing texture of the Indian polity contrast Kejriwal carried on with his muffler wrapped on his head, a style reminiscient of the poorer sections of the society. Kejriwal’s volunteers spread to every corner of Delhi. It created intense publicity but not of so high decibel like that of the BJP. AAP booked time slots on radio, a cheaper option against BJP’s full-page advertisements. In Delhi half of the 13 million voters belong to the poorer sections of the society. AAP had its foothold in the capital with their support in 2013. Majority of them were willing to move back when Kejriwal and his team came back to them for support after the LokSabha election debacle. AAP’s down-to-earth approach in the campaign won over many from the middle class who saw arrogance in the BJP’s high-cost election campaign. In addition, a large section of central government officers were unhappy with the new Modi dispensation. The party initiated timely attendance, change of work culture and elimination of delay in file movements. This not only affected their cozy life style but also in more cases than not dried up their extra source of money from the speed money collected. The voting pattern revealed that in constituencies where the government quarters are located, the BJP vote share came down sharply compared to the same in the 2014 Lok Sabha election. BJP’s loss was AAP’s gain. If the success of the Modi campaign of 2014 was its ability to occupy the mindspace of the people, Kejriwal’s success in Delhi,too, lay in the same narrative. The loss of Modi’s BJP in Delhi is thus a failure of the party to stick to its narrative and communication of the same. In contrast Kejriwal successfully adapted it with a stunning victory. The message is clear. In Indian elections, be it for Lok Sabha or state assemblies, a leader must touch the sentiment of theirvoters, tell them a narrative on how to attain a better future. Examples can be multiplied to substantiate the point that for the Indian voters, a democratic election is a powerful mechanism to articulate their voice that the contenders for political power can afford to ignore only at their peril. The 2014 poll outcome has unambiguously established the point. Empowered by the constitutional guarantee to the citizens, the Indian voters chose the candidates in accordance with their priorities, which cannot be fathomed so easily. Challenging the conventional wisdom on democracy, as articulated by SM Lipset in his Political man: the social bases of politics or JS Mill in his Considerations on Representative Government, the Indian voters have proved beyond doubt that neither Lipset’s notion of nation’s financial health12 nor Mill’s concern for social homogeneity13 is enough to consolidate democracy. So, in the ultimate analysis, the 2014 poll may have sealed the fate of some of the contending parties, including the parliamentary left; nonetheless, it has confirmed once again that democracy in India is organic in character and spirit and in that sense, the 2014 epoch-making election celebrated Indian democracy in no uncertain terms.

Defying the pattern: the 2016 state assembly elections in India India’s political landscape is changing. With the thumping victory of the rightwing Bharatiya Janata Party–led National Democratic Alliance in the 2014 Lok

Changing texture of the Indian polity 135 Sabha poll, the claim that the opposition lost its steam gained ground; it received further support following the win of the same conglomeration in the state assembly elections in Maharashtra, Haryana and Jharkhand; it also got a share of power in Jammu and Kashmir by forging a post-poll alliance with the state-based People’s Democratic Party. The runaway success story was decisively challenged in the 2015 Delhi state assembly election when the Aam Aadmi Party trounced the Bharatiya Janata Party (BJP) completely, and later in the year, in the Bihar assembly election when a grand coalition comprising Janata Dal (United) and Rashtriya Janata Dal and Congress had won. Keeping this in view, the 2016 assembly election results do not seem to be surprising since they confirm the trend that the BJP appears to have failed to ideologically inspire the Indian masses despite being supported by a cadre-based organization, the Rashtriya Sawayamsevak Sangh (RSS). Except in Assam, the BJP lost miserably in West Bengal, Kerala and Tamil Nadu. The poll outcome confirms one argument that Indian electorates defy being formed into a neat theoretical conceptualization. There can hardly be a universal formulation. Each election, whether national or regional, has its own dynamics and needs to be grasped accordingly. Before embarking on an analytical scan of the poll results, we need to be sensitive to the point that none of the winning parties in an Indian election has ever represented the majority of voters, which is impossible in the first-past-the-post system of voting in a multiparty system. Even the BJP in the last national poll secured only 30% of popular votes though it had obtained more than 50% of parliamentary seats (282 out of a total of 545 seats). This is true of the recent assembly elections: none of the victorious parties in the states won more than 40% of votes and yet gained a comfortable majority in Bihar, Kerala and Tamil Nadu and two-thirds of assembly seats in West Bengal, which can be persuasively explained by a contextual analysis of the poll results. First, the 2015 Bihar state assembly election can be said to have firmly established the point that the failure of the BJP to understand the regional dynamics contributed to its electoral drubbing. Being overconfident of Modi’s charisma as a vote-catcher, the BJP high command ignored the local leadership, which adversely affected the organizational preparedness of the party taking on the political outfits, JD (U) and RJD, which had strong regional roots. The distinction that the Mahagatbandhan (Grand Alliance) campaigners made between a Bihari and a Bahari (outsider) helped the Alliance to play the subnationalist card that was strategically characterized as an insult to the Biharis when Modi accused Nitish Kumar of having the wrong DNA. To put across the message, the incumbent chief minister asked the voters at the end of his address to the election rallies whether they wanted a Bihari or a Bahari chief minister. The response was always in favour of a Bihari chief minister. It is this subnationalist emotion that helped the Grand Alliance to knit a bond among the Biharis in favour of the Grand Alliance of caste and religious groups despite being placed differently in the social hierarchy. Secondly, the 2016 West Bengal state assembly election defies the pattern that had emerged in Bihar following the consolidation of the Grand Alliance in the sense that the grand alliance of the Congress with its arch-enemy CPI (M) and the constituents of the Left Front failed to sway the voters in its favour. Despite

136  Changing texture of the Indian polity having raised the issues of corruption, nepotism and breakdown of law and order in the state, the Congress-left combination was hardly adequate to match the mass appeal that the incumbent Chief Minister Mamata Banerjee had built during her reign. The social base that the ruling party, Trinamul Congress, had evolved was largely the result of the pro-people policies that the government had followed. For instance, the rural voter seemed satisfied, by and large, with the development of infrastructure: roads and bridges were built; more people had access to potable water, electricity and basic health care. Some of them paid off in the election. Not only did the Trinamul Congress increase its tally of seats from 184 (in 2011 assembly election) to 211 in 2016, it had also augmented its share of popular votes from 38.9% to 44.1% in contrast with the drubbing of left parties, especially CPI (M) from 30.8% in the last state assembly election to a mere 19.7%, which is also indicative of the breakdown of their social base in West Bengal. The poll outcome can be explained in the following ways: First, the Trinamul leader, Banerjee, understood well that benefits both in kinds and cash to the underprivileged would give her votes. She thus expanded her support base with several welfare schemes for the youth and students.The Kanyashree (daughter empowerment) scheme offering a monthly scholarship of Rs. 750 ($12 approximately) to girl students from financially weak families and the Sabai Sathi (we are friends) scheme for distribution of bicycles for students regardless of income consolidated her popularity in rural West Bengal. Furthermore, her decision to grant a dole of Rs. 1,500 ($24 approximately) to 100,000 unemployed youth in the state under the Yuvashree (for the youth) scheme to take care of their essential expenses created a support base for her among the youth, particularly in rural areas. Secondly, to provide food security to the poor, she devised the Khadya Sathi (offering food) scheme, which entailed distribution of rice and wheat at Rs. 2 per kilogram to almost 70 million people, located mainly in the poor districts and also the malnourished tea garden workers and their families, cyclone-affected people and those in Singur where people lost land during the erstwhile Left Front regime with its mindless industrialization. Thirdly, like her counterpart in Bihar, Nitish Kumar, Banerjee also played victim card to the hilt, accusing the BJP-led union government of creating ‘an Emergency-type situation’ in West Bengal following the stringent control that the Election Commission exercised to hold a free and fair election.14 Her charge that the union government was hell-bent on dislodging her created a support base among voters who appeared to have been persuaded by her claim. Fourthly, in the wake of corruption charges against her colleagues in the government, she couched her appeal in terms of her impeccable track record as a ruler, which worked in her favour. Her appeal that ‘I am the candidate in all seats and please vote for me’ did work wonders presumably because of her image of being incorruptible. Finally, the grand alliance which was forged to avoid vote-split was thrown away as nothing but a convenient partnership merely for capturing power. The alliance was dismissed by the voters because (a) it was a marriage of convenience and (b) the voters expressed their displeasure with the left parties which destroyed the democratic voice by forcible subsumption of social opinion to the party opinion of a select few through ‘the institutionalization of terror’.

Changing texture of the Indian polity 137 Thirdly, in Assam, defying all predictions, the BJP surged to power by winning a majority of assembly seats along with its pre-election coalition partners. Here the Modimagic did not seem to be critical; besides preferring a slogan, Jati, Mati and Bheti (nation, land and house), highlighting the distinct needs of the Assamese, what gave the BJP and its coalition partners a significant edge over their opposition was not the divisive Hindutva agenda but a crafty electoral strategy of choosing the right partners from within the region. By featuring state-level BJP leaders Sarbananda Sonowal and Himanta Biswa Sarma prominently in the campaign, instead of relying on Prime Minister Modi parachuting into the state, ‘it also stayed away, for most of the part, from explicit appeals to religious polarization’,15 a strategy that proved disastrous in the 2015 Bihar election. The BJP victory was also the result of its success in creating a front of regional forces against the incumbent ruling party, the Congress and its partners. By bringing together regional forces like the Asom Gana Parishad, Bodoland People’s Front, Rabha Jatiya Aikya Manch and Tiwa Jatiya Aikya Manch, which always fought for Assam’s distinct identity, the BJP thus created a formidable front. This was a master stroke of ‘a unique social engineering’16 because while Asom Gana Parishad consolidated the Hindu votes by bringing them within the fold of the alliance, with the Rabha and Tiwa organizations, the BJP gave a tribal-friendly face which helped create and strengthen a support base in its favour.17 Most of the issues raised by the BJP, like land rights or citizenship, cut across religious boundaries, which also helped build a solid support base for the party. It was evident in the dramatic increase of popular votes for the BJP: in 2011, it had a mere 11.5% of popular votes while in 2016 it registered 29.5% of total votes. The presence of All India United Democratic Front, which represented the Muslims, hardly made any dent among the Muslims who, instead of being polarized, supported the alliance candidates. The voting pattern confirms that the poll victory for the alliance was built on ‘a specific kind of social engineering’ which prevented the right-wing BJP from resorting to Hindutva presumably to consolidate the coalition that never allowed issues other than Assam’s socio-economic development to figure in the campaign. Fourthly, conforming to the pattern, the Left Democratic Front replaced the United Democratic Front after being in power for five years. Denying the incumbent government of another term, the Kerala voters provided CPI (M) and its partners with an opportunity to guide the state towards fulfilling some of the election pledges that they made during the campaign. It was a verdict for ‘social reengineering’ since the winning conglomeration built a social base by addressing the issue of corruption that seemed to have affected all segments of society to varying degrees; the worse-affected were, of course, the underprivileged sections who voted in accordance with their assessment of the performance of the incumbent United Democratic Front government instead of sticking to particular caste/ communal interests and equations.18 In view of the several graft cases in which many ministers as well as the personal staff of the former chief minister’s office were directly or indirectly involved, it was easier for the Left Democratic Front to garner support by pledging to give a corruption-free government if elected to

138  Changing texture of the Indian polity power. The categorical verdict favouring the left can be said to have been the result ‘mainly of the extreme credibility deficit [the incumbent] government confronted towards the end of its term’.19 As the poll results reveal, corruption charges against the ruling party seem to have created a solid support base for the opposition though the (CPI) M suffered loss of popular vote share by almost 2% in 2016.20 Furthermore, what explains the success of the left parties was also the strong organizational backing which was absent in the 2011 assembly election largely due to internecine factional feuding in CPI (M) between the former chief minister, VS Achuthanandan, and Pinarayi Vijayan over the leadership. Finally, a study of the Tamil Nadu poll outcome reveals that surprisingly, corruption was no longer a dividend-paying poll issue in Tamil Nadu. The contesting parties avoided even referring to corruption during the campaign despite the fact that there were charges against both the ruling party All India Anna Dravida Munnetra Kazagham (AIADMK) and its bête noire, Dravida Munnetra Kazagham (DMK), which were in vogue in the public domain. One of the reasons for the return of AIADMK to power is the distribution of freebies by the incumbent government. It is true that the populist measures that the AIADMK supremo, J Jayalalithaa, undertook in the form of free rations of staple grains and an expanded public distribution system along with subsidies for two-wheelers and laptops paid off. The support that the ruling party had amassed was thus a trade-off of votes for money and material goods.21 Despite having won a majority in the assembly, the AIADMK’s vote share increased only 2% in comparison with what it had in 2011 while the DMK enhanced its share of popular votes by almost 9%, which also shows that its popularity did not seem to have waned to the extent it was apprehended. Nonetheless, the Jayalalithaa-led AIADMK won 134 of a total of 234 assembly seats. Besides freebies, which certainly gathered the vote for J Jayalalithaa, the image of the DMK as being a rudderless party since the DMK patriarch was noncommittal about the leadership created a negative vibe among the voters for the DMK candidates. So, the favourable poll outcome for the AIADMK was partly due to its image of being pro-people, which was sustained by the distribution of freebies and partly due to the negative popularity of the DMK.

Assessing the trends On the basis of a very brief analytical account of the poll results, one can identify the following trends:First, given the distinct nature of elections in India, it is simply impossible to conceive of a universal conceptual framework of analysis. Explanation varies from one location to another and also year-wise. As a result, issues that figure prominently in one election may simply become irrelevant in another. So what is required is a context-driven analytical design which, by being context-specific, will enable us to provide a persuasive explanatory yardstick. As shown above, the contestants regardless their party affiliations drew support by raising region-specific issues; the BJP, despite being a pan-Indian party, was not an exception. In none of the states where elections were held in 2016, the BJP hardly tried to gather support by resorting to its pet Hindutva agenda.

Changing texture of the Indian polity 139 The BJP candidates pledged to provide good governance, which was a casualty in West Bengal because of a corrupt and goon-infested government, in Kerala due to the involvement of members of the incumbent government in scams, in Tamil Nadu since Jayalalithaa’s passion for personalizing authority at the cost of the people and in Assam because of the infiltration of Bangladeshi migrants disrupting the demographic balance in Assam and affecting the distinct Assamese cultural identity. Secondly, along with the importance of local issues, the 2016 election also emphasized the criticality of local leadership. One of the reasons for BJP’s ignominious defeat in Bihar was the marginalization of local leadership. Despite having addressed so many election rallies, Prime Minister Modi was unable to redress the grievances of the Bihari voters who felt cheated by the BJP that sought to impose a Bahari (outsider) as Bihar’s chief minister. This was the mistake that the BJP had committed in the Delhi election too. In the 2016 assembly election, it was conclusively addressed and the campaign was led by the local leadership while the national leaders, including the prime minister always addressed the voters in each state at the behest of the local party organizations. Furthermore, in order not to repeat the error of judgment that the BJP made in Delhi by imposing an outsider, Kiran Bedi, as the chief minster designate, in Assam where it had a prospect of winning the election, it chose a son of the soil, Sarbananda Sonowal, as its prospective head of the state government. This was a master stroke which not only defused the uncertainty in the voters’ mind but also strengthened the organization by bringing local leaders together for a common cause. By virtue of being formally associated with the AGP, the BJP’s ally, in the past, it was also easier for Sonowal to consolidate the bond with his old colleagues – another master strategy that the BJP deployed which also paid off in a significant way. Thirdly, notwithstanding the failure of both the pan-Indian parties, the BJP and Congress, to make inroads in the 2016 assembly elections, the fact remains that, by fielding candidates in almost all the constituencies, or supported their allies, they made their presence felt in these states. Barring West Bengal where the BJP’s vote share dwindled, it had increased its share of popular votes in Kerala, Tamil Nadu and, of course, Assam. What is most impressive is the rise of BJP supporters to almost 3 million (15.03% of total votes) in Kerala which is a significant jump from the 2011 tally of only 6.03% of total votes. By registering victory in one legislative constituency, Nemom in Thiruvananthapuram, the BJP also exposed the myth that Kerala had no space for right-wing politics. The impressive BJP performance is attributed to the role that the RSS volunteers had played in mitigating the daily difficulties that those at the lowest rung of society encountered. Here too, it was not the conventional saffronizing zeal which gave the BJP votes, but local issues, especially those relating to basic needs of the people for survival, built its support base, which yielded results in the election. A contrasting picture will illustrate the point better. While the BJP started its journey in Kerala by winning legislative assembly seats, the communist parties CPI and CPI (M) created history in the 2016 election in Tamil Nadu by being unable to win a single seat, which is a break with the past when they had their representatives in the assembly.

140  Changing texture of the Indian polity This will be the first time ever in the long history of electoral democracy that neither CPI nor CPI (M) will be in the state assembly. It is true that the left parties managed to retain legislative seats by riding piggyback on either the DMK or AIADMK though they maintained their grassroots connections, which explains their victory. The failure of CPI and CPI (M) to win a single seat is attributed to (a) the breakdown of the alliance that the CPI had with the DMK and CPI (M) with AIADMK in the past, and (b) the inability of the left forces to remain connected with grassroots by being relevant in the prevalent circumstances. Fourthly, the 2016 assembly election confirms the importance of ‘matriarch’ in garnering votes. For instance, the return to power by AIADMK was largely due to the popularity of Jayalalithaa as Amma (caring mother) to the ordinary voters, which they substantiate by referring to the freebies that she distributed and also proposed to distribute once elected to power. This is also true of Banerjee who steered her party to victory primarily by her charisma and fulfilment of her election pledges during her tenure as chief minister. For Bengal and Tamil Nadu, it was a personalitybased election and the two incumbent chief ministers reaped the benefit. Kerala and Assam however presented a contrasting picture by emphasizing the role of organization in political mobilization. It is true that personalities like Pinarayi Vijayan and VS Achuthanandan in Kerala and Himant Biswa Sarma and Sarbananda Sonowal in Assam had had a role in building a support base for their respective parties, which was consolidated by an organization comprising committed party workers. This is not an unusual point, but is being made to show the unique character of the 2016 assembly election that can never be captured in derivative wisdom. Finally, in the context of a high-octane election campaign, it was the Indian voters who had the final laugh. It is being proved again and again that there is hardly a theoretical form to conclusively conceptualize voting behaviour in India. Most mature in their preferences, the voters have shown that they cannot be taken for a ride although they get their chance generally once in five years. The usual charges that Indian voters do not seem to be politically alert appears to be over-stretched in light of the pattern of voting that voters have evinced in independent India. The fact that democratic elections create an environment in which voters express their preferences without fear and hurdles, in the presence of an alert and vigilant Election Commission of India, is a further proof to those who doubt the depth of Indian democracy. Defying the conventional wisdom, democracy in India has evolved as a politico-ideological mechanism with a clearly Indian flavour. The supremacy of the participants can never be ignored; it is they who shape the path which democracy follows. The 2016 assembly verdict thus corroborates that democracy in India is not merely a structural edifice, but also comprises certain fundamental socio-economic and political values to meaningfully articulate the participatory character of governance in which citizens are not merely passive recipients, but instigators of change.

The 2017 state assembly election in Uttar Pradesh Being one of the largest states in India, Uttar Pradesh (UP) has historically been a significant entity in the Indian polity. Not only is the state demographically

Changing texture of the Indian polity 141 preponderant, it also stands out because the state has eighty parliamentary seats. It has thus been a trend (being illustrated by electoral data since the first national election in 1952) that the political party that wins in UP rules the country. It is thus not strange to find that a majority of India’s prime ministers were elected to the Lok Sabha from this state. By focusing on the 2017 state assembly election which put the Bharatiya Janata Party (BJP) in power in the province, this segment of the chapter argues that electoral choice in India needs to be understood in a historical perspective because it is not an instantaneous outcome but an offshoot of complex socio-economic and political processes. The thumping BJP victory symbolizes, on the one hand, anti-incumbency sentiments, and also supports, on the other, an alternative politico-ideological mode of governance drawn on ideas which so far remained peripheral in India’s socio-political practices. The 2017 election also proved that identity politics which was in vogue in the past no longer remained as appealing as some of the contenders misconstrued. This was an electoral battle which also reconfirmed that the BJP’s success in the 2014 national poll was not an aberration, but was based on voters’ support for the party which was preferred in opposition to the rest of the contenders. On the basis of a thorough study of the 2017 election, this segment offers two interrelated arguments: (a) by challenging the contention that electoral choice is usually context-driven, it underlines the fact that the contextual choice is also historically-determined, and (b) because the choice is history-driven, it another point suggesting that the effort towards historicizing electoral choice is theoretically empowering since it allows us to capture voting behaviour in a wider time-span. The aim here is to substantiate the argument that constitutional democracy has deep roots in India by reference to the confidence that voters had in elections as the most reliable instrument of major political transformation in the state. As the election results show, the incumbent government, led by the Samajwadi Party, was trounced by the BJP; despite having formed a coalition with the Indian National Congress to defeat the BJP, the antiincumbency wave did not seem to have lost steam, as the poll outcome confirms. The landslide electoral victory of Bharatiya Janata Party (BJP) in Uttar Pradesh, accompanied by an impressive win in Uttarakhand in the 2017 assembly elections is just the repetition of the 2014 Lok Sabha election results. The astounding BJP win in the 2014 Lok Sabha poll is generally attributed to the Muzaffarnagar riots of 2013, which led to a clear polarization of votes along communal axis. The argument may have substance though is not entirely persuasive since (a) the Samajwadi Party (SP) was never considered a match to the BJP at the national level and (b) the scam-tainted Congress lost its credibility. So, the poll verdict was a far more complex outcome of an equally complex socio-economic and political churnings at the grassroots. While the anti-incumbency sentiments rallied the voters in Punjab against the Akali-BJP alliance, the UP voters seem to have cast their votes for the BJP candidates out of their choice for a strong and stable government with a clear developmental agenda. The 2017 UP assembly verdict is thus a watershed in Indian politics in two complementary ways: on the one hand, it represents a positive vote for the ruling coalition at the centre for being decisive in governance, an attitude which was lacking in the incumbent government in UP

142  Changing texture of the Indian polity since it was handicapped by its failure to be firm in pursuing what it promised in the 2012 assembly poll; it was thus a betrayal, on the other hand, which allowed the anti-incumbency feelings to decisively influence the voters’ preferences. The aim here is to comprehend the poll outcome of the UP election, which is not only a comment on BJP’s governance design but also provides critical inputs for understanding India’s future political scenario. In other words, the UP election results need to be understood in a wider perspective because they will have significant impact on national politics in the days to come.

Historical antecedents By virtue of being the largest state in terms of its demographic strength, it has a maximum number of parliamentarians which, by itself, is a source of hegemonic strength even after the bifurcation of the state following the creation of Uttarkhand in 2000. In his firsts peech as a parliamentarian in 1952, the Bharatiya Jana Sangh leader, Shyama Prasad Mookherjee, thus stated that the future fate of Indian politics rested with what the UP-wallas (parliamentarians from UP) would find appropriate for them, which they would justify in the name of nation.22 What Mookherjee said had substance since out of a total of eighty-four Lok Sabha seats, the Indian National Congress had won eighty seats in 1952, which clearly gave the ruling party a definite advantage in policy decisions. The assumption on which Mookherjee built his argument continues to remain relevant. With eighty Lok Sabha seats and 403 Vidhan Sabha seats, that polls in UP are bound to hog the limelight is beyond question. By winning seventy-three out of eighty seats in the 2014 Lok Sabha poll, the BJP-Apna Dal Alliance established its claim over others.

The 2017 Assembly election There were reasons for the BJP to feel happy since most of the exit polls had shown it to be a forerunner in the election; there was unanimity among the pollsters as they came to the conclusion that the BJP’s opponents did not seem to have succeeded in rallying the electorates in their favour. Those who supported the contention that BJP was likely to form the next government in UP differed from one another in terms of the number of seats it was likely to garner. There was not an inkling of the so-called electoral tsunami that had actually happened since the number of Assembly seats that the BJP had captured was astronomical. Hence the task of undertaking a post-mortem examination of the poll results is both easier and difficult at the same time: easier because the results are indicative of a clear choice for the BJP in opposition to the incumbent SP and the fence-sitter BSP; it was an easy choice because neither SP (and also its alliance partner, Congress) nor BSP were acceptable presumably because of their failure to instil confidence among the electorates; difficult since considerations of caste and ethnic identity remain decisive to the voters while choosing candidates for the state assembly. A perusal of the outcomes of the past polls shows that SP had won primarily because it had built a solid vote bank of Yadavs who constituted

Changing texture of the Indian polity 143 more than two-thirds of the state’s demography. Similarly, the BSP won because of effective social engineering leading to a formidable alliance between Bahujan and Sarvjan. The same pattern was evident: both the regional parties strove to consolidate a vote along identity axes to ensure their electoral victory in the 2017 Assembly poll; what was new was the alliance that that SP forged with Congress purportedly in order to win the Muslim support for the alliance. So, specific kinds of social alliances were stitched by these UP-based political parties which held power for winning the mandate. The BJP’s opponents, the SP-Congress Alliance and Bahujan Samaj Party (BSP), were confident of a victory; the SP was extremely hopeful of returning to power because it professed to have punctured the BJP’s claim by highlighting its so-called communal character; to the non-Hindus, it was identified as a party which was hell-bent to create a HinduPakistan; to the non–upper caste sections, it was projected as a group that hardly had any concern for them. For the BSP, the victory was more or less secure because (a) of the support of the largest Dalit community, the Jatavs and (b) the expectation that ‘the silent’ voters would extend their support since they were ‘disgusted’ with the SP government and (c) the hope that the Muslims would also stand by the BSP candidates to contain ‘the communal BJP’. So, the BJP began its campaign in rather unfavourable circumstances while these regional outfits, by virtue of being there in UP, started their campaign with an advantage, and by drawing attention to the alleged role of the BJP in seeking to communally divide the state, they strengthened their claim, which appeared to have takers, at least, at the beginning of the campaign.

The poll outcome In comparison with its share of seats in the Assembly and also share of total votes in the 2012 poll, it was an impressive performance for the BJP in the recently held Vidhan Sabha poll. It was ‘a saffron surge’ in the state, cutting across different regions, which also neutralizes the claim that the BJP’s popularity was confined to specific regions or specific segments of the population; instead, the party became a party for all, which establishes the contention that the BJP is truly becoming an all-inclusive party with its influence spreadout everywhere. Table 5.4  Electoral performance of BJP and other contenders Year

2017

2012

BJP+ SP BSP INC RLD Others

325 (41.4%) 47 (21.1%) 19 (22.2%) 07 (6.2%) 01 (1.8%) 04 (6.6%)

47 (15%) 224 (29.1%) 80 (25.9%) 28 (11.7%) 09 (2.3) 15 (7.0%)

Note: Figures in the parentheses denote the share of votes of the parties in the fray. Source: Adapted from figures available from the Election Commission.

144  Changing texture of the Indian polity The above table shows that the BJP had registered an impressive win across the state although in comparison with its vote share (of 43.6%) in the 2014 Lok Sabha poll, there is a decline of little more than 2% of votes, which however did not impact its tally of Assembly seats. Along with the electoral drubbing of its opponents, SP, BSP and the Congress, the 2017 poll outcome is a near repeat of its sweep in the 2014 Lok Sabha election. Despite the formation of a grand coalition between the SP and Congress, the BJP succeeded in not only retaining its vote share but h also won in many Assembly segments where it led in 2014. There were subtle differences. In 2014 BJP won most of the Lok Sabha seats in western UP by large margins; this time, its margins were lesser, but it also secured a higher share of votes even in areas which are Congress strongholds, like Amethi and Rae Bareli. The drubbing of SPCongress Alliance and BSP is complete: not only have their Assembly seats been drastically reduced, the proportion of votes that they had in the earlier polls has considerably declined, as the above table demonstrates. Besides the general trend showing BJP’s ascendency and the drubbing of its opponents, three features stand out: (a) The Congress no longer has a stable support base that it had in the past; except in the Rohilkhand region which had the highest proportion of Muslim votes as compared to others, it has less than 10% of the total votes. In the Avadh region, which returned Congress candidates earlier, not only did its candidates forfeit deposit, its vote share was just a meagre 1.2%. (b) The SP has an average vote share of little above 22% throughout the state, except in the Budelkhand region, also known as its bastion, where its vote share dwindled to a mere 18%, which also resulted in the decline of the number of seats from twenty-four in 2012 to just two in the 2017 election. (c) The loss of the BSP is most striking because its share of seats in the Assembly is reduced from eighty to just nineteen though its share of votes did not seem to have reduced so drastically except in Bundelkhand, which was always a BSP stronghold; here too, its share of seats came down to two from the fifteen that it had won in 2012 election, and its vote share drubbed to a mere 18%, which is striking in comparison with the proportion of votes that it had secured in other parts of the state.

Analyzing the outcome A post-poll analysis is always easier to pursue, and there is generally agreement among the analysts on the factors contributing to such an outcome. The 2017 BJP victory is attributed to a combination of the charisma of the prime minister, Narendra Modi, and the BJP’s president Amit Shah’s micromanagement of the election campaign. The combination had worked a miracle and the prime minister ‘scored over all others as the best dream merchant’.23 The win also registers voters’ support for the policies that the Modi-led union government had adopted since it took over power in 2014. But it is also a matter of common knowledge that elections are also decided on the basis of negative voting against a party. For instance, one of the factors that caused the Congress defeat in 2014 was its negative popularity due to its inability to contain corruption in the government that it had led along with its coalition partners. Similarly, a large chunk of UP voters voted for the BJP with the objective of defeating the incumbent Samajwadi government, which had acquired the ill fame of being in complicity with criminals, hooligans and also

Changing texture of the Indian polity 145 history sheeters. The alliance with the Congress did not help Akhilesh change its image because it was equally tainted for its support of the corrupt politicians who happened to be ministers in the government. To the voters, it was ‘a marriage of convenience’ executed for partisan gains, an assessment which accounted for a large-scale erosion of votes particularly for the Samajwadi Party. Instead of treading the conventional path for explaining the poll outcome, I propose to understand the 2017 results with reference to the lack of preparedness or otherwise of the main contenders, the SP, the BSP and the BJP, since they were main players and the Congress participated in the election merely as an appendage of the SP.

The Samajwadi Party In the 2012 UP election, the SP won a comfortable majority by trouncing the BSP, which failed to retain seats even in areas which were traditionally its strongholds. Broadly speaking, the SP’s victory appears to have been resulted from two causes: an anti-BSP consolidation where voters who were marginally favourable to the Congress and BJP shifted their allegiance to the SP to enable a change in the government, and secondly, the SP’s success in projecting a young Akhilesh Yadav (characterized as young Yadav in this essay) as the future leader who, it was believed, was capable of giving a new developmental direction to the province, which needed a jolt to shake off its traditional image of being a socioeconomically backward, if not retrogressive state, of India. With a massive victory, the young Yadav was anointed as the chief minister of the state, which was a smooth sailing presumably because he happened to be the eldest son of the SP maverick, Mulayam Singh Yadav (also identified as senior Yadav in this essay). For all practical purposes, it was the senior Yadav who remained an important source of authority which the chief minister had hardly undermined. With support of the party which Mulayam Singh Yadav had controlled, the growing importance of those who flourished around the senior Yadav created conditions in which the authority of the head of the government was further eclipsed. The idea gained ground that UP was being run by two-and-a-half chief ministers: Akhilesh being the half and Mulayam Singh Yadav and his brother Shivlal Yadav being the two full chief ministers. Tensions simmered which finally led to sordid happenings involving the Yadav family. The feud came out in the open following the decision of the chief minister to sack some of his ministers, including the brother of the maverick senior Yadav and his two loyal supporters. Following this the chief minister who was heading the state unit of the party was also dethroned by party chief Mulayam Singh Yadav. Besides revealing the schism between the chief minister and those belonging to the opposite camp, the sacking and counter-sacking decisions indicate that nothing was going well within the party due to the family squabbles. The father-son tussle is attributed to the chief minister’s popularity as an effective administrator despite odds. With his modern outlook, the chief minister had reportedly won hearts in the party and beyond, and was no longer dependent on his father for his political future. So, the latest tussle is nothing but reflective of what Akhilesh Yadav deemed appropriate for creating a base independent of his father and those who wanted to guide the party in accordance with

146  Changing texture of the Indian polity the traditional vote-catching yardstick of identity politics. Given their loyalty to completely different kinds of ideological perspectives, it is plausible to conceive of a situation of no return, which is what gripped the state as the preparation for the campaign had begun. The possible outcome of this family feud was anything but positive for the incumbent ruling party especially when the image of the government had gone downhill to a significant extent largely because of its failure to contain the breakdown of law and order in the state. It is true that Yadav junior strove hard to give a make-over to the state which appeared to have created a base for him especially among the youth. In fact, this is what allowed the chief minister to assert his authority in spite of the opposition of his father, the undisputed boss of the party. Although the election was far away then, those incidents seem to have influenced the voters to a significant extent, as our survey suggests. What was highlighted in our informal chat with the voters, especially in eastern UP, was the negative consequences of bitter fighting among the members of the first family in the state. The family feud that appears to have to been a source of confusion to the supporters had come at a time when the incumbent chief minister of UP was trying to get his act together. The blame was squarely put on the chief minister and other family members because they were unable to defuse the crisis before it became disastrous for the party. It is also felt by a large group of respondents that the top SP leader, Mulayam Singh Yadav, seems to have lost control over the organization and those important functionaries who held the different factions together. Instead, he allowed the party, they argued, to be a laughing stock with the leadership washing dirty linen in public. The support base of the SP thus now stood scattered and confused, which was manifested in the 2017 poll outcome.24 Drawing attention to these happenings, there was also a view that the SP was just like the Indian National Congress, being run by the whims of a dynasty comprising individuals who claim authority largely due to an accident of birth in a particular family which held power and authority because of India’s peculiar socio-economic circumstances.

The Bahujan Samaj Party In its desire for a wider reach, the BSP supremo Mayawati favoured the Sarvajan strategy (bringing everybody together regardless of caste, religion and region) in a 2007 Assembly poll which entailed a coalition of the upper castes with the Dalits, Adivasis and socially backward communities. This was one of the most effective strategies which ensured the BSP’s tremendous success in the 2007 election. A unique strategy of social engineering, Mayawati perfected it by drawing upon her colleagues from the upper and forward castes. Not only did it work in the election, the apparent favouritism extended to the upper castes seem to have alienated a large section of Dalit cadres and also supporters. There was a feeling among some of the Dalit leaders that the supremo’s proximity with Satish Mishra, who was second in command in the party, created a schism in the BSP’s traditional support base. This is certainly one of the important reasons as to why Mayawati appears to have downplayed the idea of Sarvajan and focused more on the Bahujan in her 2017 election campaign. In her public speeches, she made her stance

Changing texture of the Indian polity 147 very clear by arguing strongly for the consolidation of the Dalits, Adivasis and the extremely or Maha Backward classes. In an address in Lucknow on 9 July 2016 on the founder Kanshi Ram’s death anniversary, she began by saying that the BSP was for Dalit-Bahujan and there was hardly a reference to Sarvajan, which she earlier talked about most often probably to win over the upper caste voters as well. As is well known, the BSP was created as a platform for protecting the interests of the Bahujan Samaj, comprising a coalition of the underprivileged and oppressed minorities, Dalits, Adivasis, backwards and religious minorities. There was no space for the upper castes, the BSP always held. That it was a limiting strategy was realized soon and in the context of the 2007 Assembly election, the party accordingly shifted its focus to the Sarvajan Samaj or the entire society regardless of caste barriers. Now, the BSP appeared to have taken a 360-degree turn by simply doing away with the Sarvajan strategy and returned to its traditional support base, namely the Dalit-Bahujan. In order to consolidate its traditional supporters, the BSP, it is argued, ‘has returned to its old strategy of appealing to its core base of Dalit voters, along with other Bahujan group, particularly, Muslims in this election, on a constituency-by-constituency basis’.25 Why this shift in focus? The reasons are not difficult to seek. As a study reveals, the BSP’s return to its roots is driven by ‘pragmatic considerations’.26 In view of violent incidents targeting Dalits and other underprivileged groups in the state and elsewhere, it would have been strategically suicidal to seek to build a support base involving the Sarvajan since the upper castes were reportedly involved in these incident. So, the earlier strategy, if pursued now, was likely to be a liability which Mayawati lost no time in understanding and the Lucknow speech was an occasion when she unambiguously expressed her faith in the Dalit-Bahujan conglomeration while combatting the upper caste atrocities. Despite having evolved a strategy which the BSP supremo thought was appropriate to garner votes, the 2017 poll outcome confirms that it did not work out in its favour. The party failed to convince either the Dalits or the Muslims that it was capable of protecting their interests despite the rising tide of the Hindutva brand of politics. A probe into the proportion of votes that the BSP gained from among the Dalits and Muslims substantiates the claim. The fact that the BSP fielded 100 Muslim candidates in its total tally of 400 was clearly a calculated design which however did not give the dividends that the party expected. Not only have the contenders other than the BJP lost the seats, their vote shared also dwindled considerably, as the following table shows: Table 5.5  Vote share in 59 Muslim concentration constituencies

BJP SP BSP Congress

2017

2014*

2012

39 29 18 07

43 27 16 09

22 26 22 12

* Data from the 2014 national poll Note: Figuresare in percentages. Source: Computed from the figures available from the Election Commission of India: UP Election, 2017

148  Changing texture of the Indian polity The table shows a clear decline of Muslim votes for both the SP and BSP despite attempts by both these parties to woo them in their favour. It is true that SP (29%) and BSP (18%) secured 47% of Muslim votes in the state where more than a quarter of the voters are Muslims, which is an improvement of what it had in the 2014 Lok Sabha poll. The difference this time was that the BJP mopped up most of the other Muslim votes (39%), which enabled the party to win thirty-nine seats, followed by the SP with seventeen seats while the BSP had none. The trend was identical in case of Dalit votes, which always remained critical because of their sheer demographic strength of 21% of the total population. The BSP claim of being unassailable among the Dalits was also turned false in the 2017 election. Being a Jatav herself, Mayawati was confident about their votes for the BSP; there was however a much hyped battle between the BJP and BSP to win especially the non-Jatav Dalits. Here too, the BJP seems to have established its popularity in comparison with other contenders, as the following table shows: Table 5.6  Vote share in 85 reserved constituencies:

BJP SP BSP Congress

2017

2014*

2012

40 19 24 07

41 21 23 07

14 32 27 11

* Data from 2014 national poll Note: Figures are in percentages. Source: Computed from the figures available from the Election Commission of India: UP Election, 2017

The narrative is the same: the BSP was outflanked by the BJP, which gained in almost all the reserved constituencies. The poll results also establish the contention that the BSP no longer remains a dominant Dalit voice since the BJP surged ahead by making it creditable to communities cutting across caste, religion and region. In the first-past-the-post system of voting, a party wins despite having had the majority support. In terms of its share of votes, the BSP may not have reasons to get alarmed; but its failure to persuade voters other than non-Jatav Dalits and communities other than Dalits in the state is certainly a source of concern for the party ideologues. It is now clear that mere identity-based politics does not seem to be effective in creating a solid base across communities; the party needs to go beyond the appeal couched in communal terms. What ensured the BSP victory in the past election was what its workers defined as ‘the plus factor’, which means that besides the Dalits (especially the Jatavs) it counted on votes of backward castes, Muslims and also upper castes. With the abjuring of the Sarvjan formula, the upper castes did not seem to find the BSP an alternative attractive while the Muslims failed to match the loss as a result of the withdrawal of the upper castes.

The Bharatiya Janata Party Inspired by the stupendous success in the 2014 Lok Sabha poll when seventy-two of its fielded candidates won, the BJP was a serious contender in the assembly

Changing texture of the Indian polity 149 poll in UP. That the BJP’s national leadership was getting ready for the poll was evident with the message that it had conveyed to its frontal organizations, like the Rashtriya Swayamsevak Sangh, Vishwa Hindu Parishad and Bajrang Dal, to prepare the ground as early as 2015.27 It is true that they did work then in an election mode presumably because dates were not announced yet. Nonetheless, the members of these organizations had already been asked by the state leadership to put the house in order so that they could work in unison for the BJP; the scene was still fluid though it was evident that there were indications that they had already started revitalizing their mass contact programmes over the issue of Hindutva in particular. It was thus not surprising that the BJP chief, Amit Shah, in his address before the Sankalp (pledge) rally in Etawah on 27 October 2016, referred to the Kalyan Singh government in the state as a model. As is wellknown, the 1992 episode in which the Babri masjid was brought down by the kar sevaks had happened when Kalyan Singh was UP’s chief minister, though Shah appreciated the regime since the government resigned on moral grounds in the aftermath of the demolition of the controversial structure. Hailing the BJP’s leaders as deshbhaktas (patriots), Shah also drew on the appalling law and order situation because of the complicity of the hooligans with the SP government. Moreover, he also emphasized the 29 September (2016) surgical strike across the Line-of-Control to highlight the nationalist aspiration of the present government by saying that ‘it was the first time since independence that the army went across the border and terminated terrorists’, a feat which not only put the army on a high pedestal but also contributed to India’s reputation globally as a country with adequate military strength to pursue what she deems appropriate.28The Sankalp rally address gave a glimpse of the issues that were likely to gain momentum in the days to come. There are two issues that were explicitly raised: by drawing attention to the Kalyan Singh regime, Shah endeavoured to capture the Hindutva spirit which was, as he felt, needed to create an environment for Hindu voters to get united against the feared others; in the same way, by referring to the surgical strike in the Pakistan-occupied Kashmir, the aim was also to evolve nationalist sentiments which would also help the BJP to garner votes for having shown its physical might against the most dreaded neighbour. It is also striking to note that the BJP-led union government was almost silent about the Mandir issue though the Vishwa Hindu Parishad and Bajranj Dal kept raising the issue whenever they got a chance. In order to take the steam out the campaign, the assurance of a Ramayan museum in Faizabad (the area where the proposed Ram temple is supposed to be constructed) by the government was given which did not seem to make any headway; instead, one of the top Bajrang Dal leaders, Vinay Katiyar, condemned the effort as offering a lollipop in place of what they have been demanding after the 1992 event. The difference of opinion was not allowed to cause dissension in the rank as the national leadership immediately intervened to put a lid on this. Similarly, with the joining of a former BSP secretary, Swami Prasad Maurya, the BJP appears to have hit a jackpot since he, in view of his firm grip over the largest backward caste combination of Maurya and Kushwaha besides the Shakya and Saini communities, was expected to increase BJP’s appeal among the

150  Changing texture of the Indian polity non-Yadav castes of the state. On the surface, it was a master stroke though Maurya’s inclusion caused dissension within the state leadership and the ranks. Like the Ramayan museum which created a schism between the Bajrang Dal and BJP, the acceptance of Maurya by the BJP also led to a factional battle within the state unit since the state president, Keshab Prasad Maurya was against the idea of letting the BSP leader join the BJP. According to him, the fact that Swami Prasad Maurya was with the BSP, which fought tooth and nail against the BJP so far, was certain to cause dissension among the BJP’s grassroots supporters, besides the other state leaders who remained with the party when it had to bear the brunt of Mayawati’s whimsical administrative decisions against the party cadres.29 This was an initial reaction; as the election campaign gained momentum, they agreed, of course, with instruction from the party leadership, to work together for a bigger cause. This was undoubtedly a master stroke to articulate BJP’s social inclusiveness strategy. Not only did it make an Other Backward Classes [OBC], Keshav Prasad Maurya, the state president, by welcoming SP Maurya it also proved that OBCs were as integral to BJP as any other caste group. By fielding 135 OBC candidates, including 15 Jats, in the election, the BJP leadership reinforced its commitment to them. This strategy has given even better dividends now in comparison with what it had secured in 1991 when Kalyan Singh, an OBC, was projected as the chief ministerial candidate: out of 425 seats, the party had won 225 seats. While the inclusion of powerful OBC leaders was strategically significant, by not declaring the candidate for the post chief minister, the BJP leadership seems to have outsmarted the opponents. The SP and the BSP had known faces, and the BJP’s decision not to project anybody for the top job helped the party to sustain its support base intact because the identity of the projected chief ministerial candidate, be it Thakur, Brahman, OBC or Dalit would have caused heart-burn to those social groups who were denied. So, this was a masterstroke because (a) it allowed the organization to work as a collectivity working in tandem with one another, and (b) it also gave a free hand to the BJP high command to choose a person for the top job in accordance with its priority. There was an all-out effort to bring in people from different segments when the party was engaged in the preparation of the election manifesto. An innovative design, the Akanskha Peti or Expectation Box was meant to receive the list of expectations that the people expected the government to fulfil. This was a grand success in two ways: on the one hand, it created a zeal among the people because it gave them a feeling of being a participant in the making of the manifesto of a national party; it also allowed them, on the other hand, to ventilate their grievances against the incumbent government for its failure to address their concerns. As reports go, there were approximately 4 million people who responded to such a request and issues like the farm loan waiver, anti-Romeo Squads, banning of illegal slaughter houses, which were raised found their way into the election manifesto. Similarly, the demonetization of currency notes of Rs. 1,000 and Rs. 500 just a few months away from the UP election created an image of Narendra Modi as being a crusader against corruption despite its immediate adverse repercussions on the day-to-day existence of the common man and woman. For the majority, it

Changing texture of the Indian polity 151 was a moral project to clean up the national economy and a crusade against the tax evaders to help the poor; this was a war unleashed against the rich and venal elite with enormous quantity of unaccounted money. The mainstream media did not support demonetization and opposition succeeded in mobilizing public opinion especially when people died while in long queues for withdrawing their own money. This was an important issue that SP-Congress combined and also the BSP always hammered on while justifying their charge against the BJP as being a party of the rich and without concern for the poor. For Modi and the BJP, demonetization was a device to completely weed out corruption; it was a tough measure which was likely to cause difficulty to the people for the time being; but a momentary sacrifice would do good to the country in the long run. By couching the appeal for sacrifice in moral terms, the BJP think-tank created a set of arguments drawn on the age-old Indian belief that ‘the path of goodness lies through sacrifice’. Gandhi was an epitome of such a precept; he had shown how sacrifice could be a source of great strength and the fulfilment of the goal. Demonetization seems to have brought back the idea of personal sacrifice for the larger national good, which appears to have lost its salience in ‘the mad rush for entitlements’. The temporary discomfort did not seem to have bothered the people because they were persuaded to believe that it was meant to bring ‘achhe din’ (good days) for them. It is Modi’s credibility quotient that has seen the poor ready to bear the hardship of ‘notebandi’ (demonetization). The scheme that was projected to be anti-people became a device for moral cleansing which, instead of eroding BJP’s support base, mobilized people in its favour with their firm belief that by suffering temporarily they became a part of a process leading to India’s inclusive development. In a similar vein, Modi’s reference to kabristan (burial ground) and shamshan (crematorium) and Amit Shah’s acronym for opposition as KASAB, the terrorist who was hanged in 2012 for his involvement in the 2008 Bombay attack, to denote Congress, SP and BSP was a magic stroke in the sense it articulated a condemnation of the appeasement of Muslims by the erstwhile government, which was pursued primarily to sustain a vote bank. This was a policy with a clear partisan aim which helped the BJP cement a bond among those in the majority community who felt left out as a result. It is true that such communalized claims almost completely alienated the Muslims, as the results show,30 though they appeared to have created a solid Hindu vote bank in its favour. At one level, by insisting on equal treatment for all regardless of religion, the BJP leadership appears to have built a solid social compact of the Hindus; at another level, the exclusion of the Muslims, who constitute about 18% of the state’s demography, will be a source of concern for governance and in such a situation, the slogan‘sabka sath sabka vikas’ (growth for all) will not only be reduced to fulfilling the supremacist goal, but also create a language of licence to shame a community just because it is different in religious denomination.

The welfare schemes For a persuasive explanation of BJP’s thumping victory, one needs to go beyond the magical Modi effect and the political stratagem of Amit Shah although the

152  Changing texture of the Indian polity organizational preparedness was too strong for the opposition to throw a spanner to stop the BJP’s unstoppable march as a true pan-Indian party. This is one part of the story, but mere booth-level management, the one skill that Shah had mastered which was complemented by the RSS grassroots workers, will not meaningfully unravel the factors that accounted for this unprecedented victory. The groundswell of support for the BJP needs to be understood with reference to a series of pro-poor schemes, launched by the NDA government, which translated Modi’s claim of being pro-poor into reality. The impressive victory can thus be said to have been a huge endorsement of its development agenda and total rejection of ‘obscurantist’ politics. The following schemes to ameliorate the conditions of the poor, regardless of religion, helped the BJP create and also consolidate a solid base for the party, which needs to be taken into account while explaining the results. Prime Minister Ujjwala Yojana In May 2016, Prime Minister Narendra Modi launched an ambitious social welfare scheme, Pradhan Mantri Ujjwala Yojana (PMUY), with the aim of providing 5 crore LPG (liquefied petroleum gas) connections to women below the poverty line across the country. However, the place BJP chose to launch the scheme was Ballia, a district in eastern part of Uttar Pradesh. It seemed to be a strategic decision and Modi’s master stroke to reach out to women in a state that was less than a year away from the Assembly elections. The scheme was aimed at replacing the unclean cooking fuels mostly used in the rural India with the clean and more efficient LPG gas. By launching this scheme the prime minister was able to develop a connection with women at large and express concern about their health. PM Modi set aside Rs. 8,000 crore for this scheme. The BJP claims that as per the target, now at least 8,000 households in every Assembly segment will get an LPG connection under PMUY very soon. These beneficiaries will be from poor, backward caste and Dalit sections of society. The launching of the scheme benefitted the BJP in the election in UP. Prime Minister Narendra Modi launched another flagship housing scheme, ‘Pradhan Mantri Gramin Awas Yojna’, in November 2016. The scheme was designed entirely for the rural masses. But, what is more interesting is that once again Prime Minister Modi chose Uttar Pradesh to launch the scheme. The affordable housing scheme was launched in Agra. The ambitious scheme aimed to provide affordable houses to 4 crore people living below the poverty line by the year 2022. Prime Minister Narendra Modi used his flagship programmes to get electoral support in Assembly elections. Launching a scathing attack on Uttar Pradesh’s chief minister, Akhilesh Yadav, the prime minister said the state government was not willing to help the central government with a list of people who could benefit from the affordable housing scheme. Some 1.5 crore people in UP don’t have houses. ‘Our government wanted the list of homeless people from the UP government but didn’t get the list’, the prime minister had said while addressing a rally in Uttar Pradesh. Under the new rural housing scheme, the central government will provide financial assistance of Rs. 120,000/- for constructing the home. An

Changing texture of the Indian polity 153 additional assistance of Rs.12,000 will also be provided to construct toilets in households. The Modi government aims to replace all temporary (kachha) houses from Indian villages by 2017. Jan Dhan accounts Soon after taking over as India’s prime minister, Narendra Modi launched India’s biggest ever financial inclusion drive. His first flagship programme in this regard, called Pradhan Mantri Jan Dhan Yojana, was the country’s national mission for financial inclusion to ensure access by the poor to financial services, namely savings accounts, remittance, credit, insurance and pensions in an affordable manner. The prime minister’s move was to provide access to formal banking services to more than 15% of the ‘unbanked’ population in the country. It helped Prime Minister Modi re-establish his image as the leader of poor masses. Jan Dhan Yojna was not just about banking but also about several other benefits that Prime Minister Modi offered with the accounts. Under the scheme, if a person holds an account for more than six months s/he is allowed an overdraft of up to Rs.5,000. According to The Economic Times report in 2016, over 19 lakh account holders availed an overdraft amounting to 2,560 million Rupees. Jan Dhan account holders are also able to claim accidental insurance coverage of Rs.1 lakh. The scheme also provides life coverage of Rs. 30,000 payable on the death of the beneficiary. This was another way of reaching out to people who were never taken into India’s formal banking system. Prime Minister Modi tapped over 15% of the country’s population with just one economic policy. So far, over 27.84 crore accounts have been opened under Jan Dhan Yojna. Deen Dayal Upadhyaya Gram Jyoti Yojana Electricity was a big issue in the UP election. Launched in 2015, the Deendayal Gram Jyoti Yojana is to ensure round the clock electricity supply to farmers and rural households. During his Independence Day speech in 2015, the prime minister announced that all of the country’s villages would be electrified in 1,000 days and that by December 2018, all Indian citizens would have access to electricity. The programme led to the electrification of 12,022 Indian villages. While addressing a rally in Varanasi during the election campaign, the prime minister raised this issue by asking the participants whether Varanasi gets 24-hour electricity (Yeh batayein ki Kashi mein 24 ghanten bijli milti hain ke nahin). The increasing public support for the NDA government since it took over in 2014 is largely due to the above welfare schemes which were directed towards ameliorating the conditions of the poor regardless of class, caste, religion or region. Besides the skilful micromanagement of electoral booths even in remote UP villages, the support that the BJP had received from the voters was also a response of beneficiaries who so far remained peripheral in India’s growth trajectory. By sharing the benefit of globalization in palpable terms, what the Modi-led NDA government has thus offered is a simple, aspirational mobile society where

154  Changing texture of the Indian polity those at the bottom of the pyramid feel a sense of being empowered and thus instead of being recipients become instigators of change.

Concluding observations The BJP’s landslide victory is not simply an event but one that has created new vocabularies of politics, a new narrative that appears to have caught the national moral political imagination or devised a new zeitgeist in Indian politics. The fact that the BJP had a consistent share of roughly 40% of total votes across UP’s various regions is perhaps indicative of its success in creating ‘sincere’ and not ‘strategic’ voters,31 and, also the spread of its support base cutting across social segments and regions supports the contention that it has clearly broken out of its ‘Brahman-Bania’ and urban-centric party image. While the BJP has, by reinventing its approach, reaped the benefit, the opposition seems to have lost its viability by failing to address the newer developmental concerns of the people. The decline of the regional parties and the steady drubbing of the Congress in UP is indicative of their failure to gauge the changing popular mood, which is no longer inspired by identity considerations but by the implementation of the developmental promises that are made to them by the political masters. The BJP and its mascot Modi seem to have established an image of being true to their promises. Even his hardcore critic, PC Chidambaram of the Congress, admitted this by saying, ‘The man at the moment is Narendra Modi [who] has convincingly demonstrated that his appeal is pan-Indian’.32 He represented the idea of India that the majority wanted. In his endeavour, the RSS functionaries contributed by building a solid boothlevel network during the election with its creative model of social engineering, leading to the consolidation of inclusive social groups among the Hindus and also by couching an appeal (in a very subtle way) in Hindutva terms. As a result, the BJP stands out not only as a party that instils ‘a sense of destiny’ among the rank and file but also an outfit conveying the message ‘the party is doing desh seva [service to the motherland] while others have been doing politics’.33 This is a new brand of aggressive politics representing newer concerns which cannot be understood in the available politico-ideological vocabulary. In the past, especially during the Nehruvian era, the Congress remained invincible because of its success in building ‘an umbrella social-political coalition’; this appears to have exhausted its potential. With the BJP’s convincing victory, there has emerged a powerful ideological force built around a creative mix of hope, Hindutva and the personal magnetism of Narendra Modi. In the light of the BJP’s success in winning three-fourths of the Assembly seats, democracy, if not marginalized, is certainly a casualty. This is an obvious conclusion given the large-scale, if not complete, undermining of the opposition in the state. By winning 325 seats in the newly constituted state assembly of 403 seats, the BJP is far ahead of the combined trio of SP, BSP and Congress. Given the failure of the opposition parties to even win the required number of seats to gain the status of ‘an opposition’ in the Assembly, members of the ruling party are expected to discharge the role of a responsible opposition, reminiscent of the days

Changing texture of the Indian polity 155 of the Congress system (1952–67) when the Congress party, being an umbrella organization of multiple social, economic and political interests, was institutionally well-equipped to successfully negotiate contradictory demands to reach a consensus.34 Will democracy thus be a casualty? The copy book answer is yes simply because of the absence of a sizeable opposition checking governmental excesses. In other words, in such a scenario where opposition is almost insignificant in terms of its numerical strength, the government can easily get away with whatever decision it adopts. This is not only undesirable but also undemocratic because the absence of opposition will almost seal the articulation of an alternative voice and the Assembly will just be a space for endorsement of whatever decisions the ruling party takes. It will also be a serious threat to the democratic processes where opposition is not merely a group of people holding views contrary to the government but also represents a politically vibrant section of society that is first to be exposed to the government decisions on the floor of the House. There is no denying that the combined opposition of SP, BSP and Congress will surely raise its voice though it is likely to be feeble given the massive numerical strength of the ruling BJP. Moreover, since ‘the majority principle’ governs the legislative practices in a liberal democracy like India, the opposition can, at best, register its protest by recording ‘a note of dissent’. The role of the parties opposed to the government will thus considerably be marginalized if not muzzled. The impressive poll victory for the BJP may not thus be indicative of a healthy sign for democracy because it has, at the same time, created a space for the rise and also consolidation of tendencies towards stifling democratic voices, which also means the gradual shrinking of space for democratic discourses. Nonetheless, the 2017 UP Assembly election outcome adds to the argument that the 2014 BJP victory was not an aberration: the narrative around which the opposition built its appeal seems to have become redundant. The BJP created a new narrative which is believed to have struck an emotional chord with the aspirational youth, hurt Hindus and ideologically disillusioned sections disenchanted with the so-called centrist politics. While the BJP’s opponents remained trapped in the old political models which have become irrelevant in the changed socioeconomic and political priorities, the BJP created new political designs, new political idioms, backed by concrete programmes, which explain its ascendancy in comparison with its bête noire. Modi is an innovation because not only is he ‘an outsider’, he is also the one who is talking in a completely different vocabulary to challenge the apple cart drawing on a system which is discriminatory, prejudiced and thus anti-people. It would thus be conceptually restraining if we attribute the UP sweep to communal polarization through the invocation of kabristan (burial ground) versus shamshan ghat (crematorium) paradigm. Neither Modi nor the BJP ever underplayed their Hindu identity. What is unique about Modi is his ability to articulate and also forcefully champion a uniquely textured, but substantially different ideological discourse to capture the imagination of a rapidly changing polity. In the field of management studies, this is known as ‘disruptive innovation’ which is basically ‘a network of ideas and designs’ seeking to create its space in the market by disrupting the prevalent ones.35 Hence mere political

156  Changing texture of the Indian polity calculation around caste, clan and ethnic axes may not be enough to effectively challenge Modi and the BJP in the days to come. Furthermore, Modi’s claim that the government constituted by bahu mat (majority verdict) is meant to govern by taking everybody on board (sarv mat) is also a master stroke to reinforce his argument for inclusive governance. In such a situation, without being perceptive and innovative in creating new vote-catching designs, the opposition will hardly be a match for the BJP that has found in Modi an aggressive leader who is now connected with the Indian masses across the length and breadth of the country just like one of his earlier predecessors, Indira Gandhi. Whether this will empower the ruling party to take tough legislative and executive feats or whether this will consolidate an authoritarian regime around the party as happened during the 1975–77 Emergency is difficult to predict. What is certain, however, as history confirms, is that if the democratic agility of the Indian masses is not adequately respected and if sabka sath sabka vikas is reduced to a mere slogan, the euphoria that accompanied the BJP’s landslide victory may, in no time, disappear.

Notes 1 The argument and also the text are drawn from chapter 11 of my Winning the Mandate: The Indian Experience, Sage, New Delhi, 2016 that I wrote in collaboration with Mr. Sugata Hazra. 2 I argued this point Winning the Mandate: The Indian Experience, Sage, New Delhi, 2016 that I wrote in collaboration with Mr. Sugata Hazra. 3 Pradeep Chhibber and Rahul Verma, ‘The BJP’s 2014 Modi wave: An ideological consolidation of the right’, Economic and Political Weekly, September 27, 2014, p. 50. 4 Sandeep Shastri Reetika Syal, ‘Leadership in context: Impact of leadership in the 2014 election’, Economic and Political Weekly, September 27, 2014, p. 81. 5 Suhas Palshikar and K.C. Suri, ‘India’s 2014 Lok Sabha Election: Critical shifts in the long term and caution in the short term’, Economic and Political Weekly, September 27, 2014, p. 39. 6 The total vote share of CPI is 1.4% while RSP obtained 0.3% and Forward Bloc got 0.2% only. The Indian Express, May 17, 2014. 7 Economic Times, New Delhi, February 11, 2015 quoted from a Modi rally on February 1, 2015. 8 The NewYork Times: ‘A Defeat for Prime Minister Modi’, editorial February 10, 2015. 9 Indian Express: Decision 2015 – Hoe Delhi Voted February 12, 2015. 10 Pratap Bhanu Mehta, ‘A victory of possibilities’, Indian Express, February 11, 2015. 11 Swapan Dasgupta, ‘Modi must retain his anti-establishment image for BJP to recover’, Hindustan Times, February 12, 2015. 12 According the SM Lipset, ‘The more well-to-do a nation, the greater the chances that it will sustain democracy’. SM Lipset, ‘Some social requisites of democracy: Economic development and political legitimacy’, American Political Science Review, Vol. 53, No. 1, 1959, p. 102. 13 According to JS Mill, ‘Free institutions are next to impossible in a country made up of different nationalities. . . . It is in general a necessary condition that the boundaries of government should coincide in the main with those of nationalities’. JS Mill, Considerations on Representative Government, Oxford University Press, New York, 2008 (reprint), p. 223. 14 Ranabir Samaddar, ‘West Bengal elections: The verdict of politics’, Economic and Political Weekly, July 11, 2016, pp. 23–5.

Changing texture of the Indian polity 157 15 Nilanjan Sarkar and Ashish Ranjan, ‘A vote for development, change’, The Hindu, May 18, 2016. 16 Joydeep Biswas, ‘A victory built on social engineering’, The Hindu, June 3, 2016. 17 Udayon Mishra, ‘Victory for identity politics: Not Hindutva in Assam’, Economic and Political Weekly, May 28, 2016, pp. 20–3. 18 K.M. Seethi, ‘Left Front victory in Kerala: A verdict for social re-engineering’, Economic and Political Weekly, May 28, 2016, pp. 29–31. 19 R. Krishnakumar, ‘Left gets it right’, Frontline, June 10, 2016, p. 45. 20 In 2011 assembly election, CPI (M) secured 45 assembly seats with 28.1% of the popular vote and in 2016, it had only 26.5% though it enhanced the number of assembly seats from 45 to 58 seats. Frontline, June 10, 2016, p. 45. 21 V. Krishna Ananth, ‘Democratic process not yet lost in Tamil Nadu’, Economic and Political Weekly, May 28, 2016, pp. 26–8. 22 The Times of India, New Delhi, June 23, 1952. 23 Dipankar Gupta, ‘Lesson of 2017: Decisive leadership wins election’, The Times of India, New Delhi, March 12, 2017. 24 This has been established in Adnan Farooqui and E. Sridharan, ‘Uttar Pradesh Elections, 2017: Failure of pre-electoral coalition’, Economic and Political Weekly, April 15, 2017, pp. 16–20. 25 Kanchan Chandra, ‘Back to the BSP roots’, The Hindu, New Delhi, October 18, 2016. 26 Kanchan Chandra, ‘Back to the BSP roots’, The Hindu, New Delhi, October 18, 2016. 27 In an informal chat with the RSS activists in Delhi, it was conveyed that they were getting ready to go down to villages in UP to popularize the governmental programmes for ameliorating the conditions of the poor. 28 This description is culled out from The Hindu, New Delhi, October 28, 2016. 29 Indian Express, New Delhi, August 8, 2016. 30 Seventeen of SP’s forty-seven Members of Legislative Assembly (MLA), two of Congress’s seven MLAs and five of BSP’s nineteen MLAs are Muslims. Of the opponents, the BSP had fielded 105 candidates while the BJP had fielded none in the 2017 election. 31 In political science parlance, a sincere voter is one who casts votes consistently for a party with the belief that its ideological priorities correspond with him/her; a strategic voter is one who does not want to waste his/her vote on candidates who have no chance of winning, so he/she votes for the preferred candidates among the candidates in the fray. 32 P. Chidambaram, ‘Across the aisle: The people have voted; now, we hope’, The Indian Express, New Delhi, March 12, 2017. 33 Suhas Palshikar, ‘Party with a difference’, Economic and Political Weekly, April 15, 2017, p. 11. 34 Rajni Kothari conceptualized and elaborated the Congress system in his ‘The Congress system in India’, Asian Survey, Vol. 4, No. 12, 1964, pp. 1161–71. 35 I owe this idea to Arati Jerath who, by drawing upon the innovative contribution of a Harvard scholar, Clayton Christensen, has evolved this in her ‘Modi wave defines election’, The Times of India, New Delhi, March 13, 2017.

6 Judiciary and constitutional democracy in India

In consolidating constitutional democracy in India, the role of the judiciary is far more critical than those of the executive and legislature. Acting as a custodian of constitutional democracy, the Indian judiciary stands out while discharging its role. It is true that the judiciary intervenes once there is a complaint of violation of constitutional values and principles, which is generally valid, though in India’s changed socio-political milieu, by taking suo moto (on one’s own discretion) cognizance of critical social, economic and political issues, the court has created a domain in which it can craft its role independently. By utilizing its newly acquired authority, the Indian judiciary appears to have become a proactive instrument for upholding justice and fair play. The idea has however pitfalls notwithstanding its obvious universal appeal because it is likely to create an extra-constitutional authority in governance if the judges do not remain committed to the democratic norms. This may create a confrontational situation in which the executive and judiciary face each other in a belligerent mood. So, despite the fact that judicial activism is complementary to constitutional democracy in India, it is also necessary to keep in mind that it may turn out to be an Achilles heel if it is resorted to irresponsibly. Fundamental here is to underline the importance of the judiciary in upholding constitutional democracy in spirit and substance. Drawing on the classical Montesquieuan notion of separation of powers, the chapter argues that the functional independence of Indian judiciary is not, at all, absolute, but conditional, if not circumscribed by well-defined constitutional provisions, besides the political context in which they are interpreted, and also redefined to keep pace with socio-economic transformations. This is a straightforward conceptualization of the relationship between the judiciary and the constitution, on the one hand, and the judiciary and the executive, on the other. Basic here is the idea that the judiciary steps in where the executive withdraws, which means that the former is authorized, in strict constitutional terms, to undertake, metaphorically speaking, ‘a post-mortem’ investigation since its role is restricted to ascertain the justiciability of an executive decision or decisions by any other agencies which are seemingly repugnant to the established constitutional rules, regulations and, of course, values. There should be a caveat here because the court’s role, despite being constitutionally designed, is also contingent on the political context, as examples from independent

Judiciary and constitutional democracy 159 India’s recent political history shows. If the executive was strong and political class united, the judiciary was restrained, to a significant extent. There were occasions when even the Indian Supreme Court’s pronouncements were reportedly politically driven, confirming perhaps the old (and also clichéd) idiom that ‘neutrality is political too’. Many instances can be cited to substantiate the argument. The 1975–77 Emergency in India stands out, as the judiciary lost its independence to a considerable extent, which led people to believe that it was there just to endorse the executive feats, undermining its role in verifying whether they were constitutionally valid or not. While the Emergency was an aberration though constitutionally justified, the role of the judiciary, which regained its constitutional authority soon after the Emergency, is phenomenal in strengthening India’s constitutional democracy both by acting truly as a custodian of the Constitution and also by being attentive to its constitutional responsibility. The judiciary is just not merely a tool or an instrument, but a constitutional agency, committed to harness India’s constitutional democracy that the founding fathers sought to build with the framing of the 1950 Constitution. It is, in other words, a conceptual means which allowed the nationalists to articulate their distinctive thoughts regarding constitutional democracy, which was neither exclusively borrowed nor exactly homegrown but a creative blending of both derivative and indigenous sources. The aim of this chapter is to focus on the role of the judiciary in sustaining and also consolidating constitutional democracy in India. This is a vast topic which cannot be handled in a single monograph, least in a chapter. There are many areas that need attention to persuasively argue the point. In view of the paucity of space, the chapter thus concentrates on selective judicial verdicts of India’s Supreme Court, which are not only supportive of constitutional democracy in India but also consolidated its foundation. Despite being selective in choosing judicial pronouncements, the aim here is to make and also substantiate the argument relating to the increasing importance of constitutional democracy in decolonized India. This is a story of a journey that began with the formation of the Constituent Assembly and is still continuing. And, here is the crux of the story: India’s constitutional democracy is constantly unfolding and the role of the judiciary is no less insignificant in conceptualizing the journey. In order to build and also defend the argument, the chapter focuses on three important areas of judicial concerns which are protective of the sanctity of the Constitution. They are: (a) the concerns for the maintenance of those constitutional values or institutions, also defined as ‘basic features’ of the Constitution, (b) the concerns for social justice which are articulated in some of the path-breaking judgments of India’s apex court, especially following the adoption of the reservation scheme propounded by the Mandal Commission in the early 1990s and (c) the concerns for secular ethos and principles which are integral to India’s diverse socio-cultural texture.

Historical antecedents The framers of the Constitution took ample care in putting in place an appropriate judicial structure to protect constitutional democracy in India. Being ‘the

160  Judiciary and constitutional democracy watchdog of democracy’, the Supreme Court of India ‘is the eye and the guardian of the citizens’ rights’, argued M Ananthasayanam Ayyangar (of Madras).1 In his intervention, HV Kamath argued forcefully for an independent judiciary which, he strongly felt, was essential for the constitution to strike roots in India. As he stated, The paramount need for an independent judiciary arises from the fact, first, that we are here building a federal Union Constitution where an independent judicial authority is necessary to arbitrate or to settle disputes that might arise between the Centre and the Units; and, secondly, in my humble judgment, it is essential that the citizen should, in a democratic state, be in a position to refer complaints against the State to an impartial authority.2 As per Kamath, the judiciary was (a) to settle disputes between the Union and the constituent units and (b) to protect the citizens when their fundamental rights were infringed by the state. The idea was endorsed by the Assembly because it was a key to the strengthening of constitutional democracy in India. Hence, besides being an adjudicating constitutional tool, the apex court was also made responsible for defending citizens’ fundamental rights. This was clearly articulated by Alladi Krishnaswami Ayyar (of Madras) when he said that ‘the future evolution of the Indian Constitution will thus depend to a large extent upon the work of the Supreme Court and direction given to it by the Court’.3 Directional in tone, Ayyar’s statement is also a testimony to his concern for the future of India’s constitutional democracy. As he felt, the Court had a constitutional obligation to retain constitutional democracy and the steps were to be taken accordingly. Being pragmatic, he was also aware that the Court needed to be sensitive to the changing socio-economic milieu to remain meaningful in the changed environment. In a very perceptive manner, he thus argued that From time to time, in the interpretation of the Constitution, the Supreme Court will be confronted with apparently contradictory forces at work in the society for the time being. While its functions may be one of interpreting the Constitution . . . it cannot in the discharge of its duties afforded to ignore the social, economic and political tendencies of the times which furnish the necessary background. It has to keep poise between the seemingly contradictory forces. In the process of the interpretation of the Constitution, on certain occasions, it may appear to strengthen the Union at the expense of the Units and at another it may appear to champion the cause of provincial autonomy and regionalism. On one occasion it may appear to favour individual liberty as against social or state control and at another time it may appear to favour social or state control. It is great tribunal which has to draw the line between individual liberty and social control.4 An analytical scan of the above statement suggests that Ayyar was alert to the fact that the apex court had to reorient its functioning in accordance with India’s changing socio-economic and political circumstances. According to him, adaptation did

Judiciary and constitutional democracy 161 not mean abdication of the fundamental principles of constitutional democracy; but a fine balance of its myriad responsibilities would ensure its success as a watchdog. The Court was to negotiate within limits the opportunities available in a particular political context since it was impossible to remain entirely aloof from what was happening around. The Court’s responses were likely to be conditional though within the broad parameters of constitutional democracy that appeared to have stuck roots in India. For instance, if the political regime is strong, the Court seems to have acquiesced with the executive on many occasions, as illustrations from the 1975–77 Emergency era confirm. There were, however, stiff challenges to Emergency, which also underlines the depth of democratic concern that seems to have remained integral to India’s existence since independence. A commentator thus argues that ‘if the political actor was strong [single-party majority], prepared to take on the court and had a policy agenda, the Supreme Court was more constrained by the political milieu’.5 The examples can be drawn from the regime that Indira Gandhi led, especially in the 1970s when the apex court lost its autonomy of action to a significant extent, while during the coalition era (post-1988 governments) the scene was otherwise and the Supreme Court became far more assertive than it had been earlier.

Conceptualizing the highest judiciary An analytical scan of the debates on the judiciary in the Assembly indicates that the founding fathers were keen to have an independent judiciary as one of the pillars of constitutional democracy in India. It was also evident that they were largely agreeable to have a system of judiciary akin to that of the US since they held the view that because of the presence of a powerful judiciary democracy survived and also flourished there. In an eloquent way, Pandit Thakur Das Bhargava (East Punjab) mentioned that Every constitution provides for three basic requirements, viz., firstly an independent judiciary, secondly a legislature and thirdly an executive. It would be a mistake for one to ask as to which of the three is of greater or lesser importance, because all the three, though independent in their respective spheres, are component parts of the body politic of the State.6 The idea is not novel; but by reiterating the classical conceptualization of separation of powers, Bhargava confirmed that the proposed constitution was drafted by internalizing the spirit of Western liberalism. Nonetheless, they always insisted on an independent judiciary because they felt that ‘a constitution wherein a fully independent judiciary is not provided for, can never guarantee individual liberty to the people’.7 Although they wanted a strong judiciary, they however tempered its authority in such a way as not to dwindle the importance of the executive and legislature. As TT Krishnamachari of Madras maintained, The independence of Judiciary should be maintained and . . . the Judiciary should not feel that they are subject to favours that the Executive might grant

162  Judiciary and constitutional democracy to them from time to time and which would naturally influence their decision in any matter they have to take where the interests of the Executive of the time happens to be concerned.8 This was a primary concern, shared by his colleagues who also strongly felt, like him, that an independent judiciary was a key to the success of democracy. This is one side of the story; there was another side as well which needs to be kept in mind before drawing a final conclusion in this regard. It was Krishnamachari who drew the attention to this aspect by unambiguously mentioning that It is not the intention of this House or of the framers of the Constitution that they want to create specially favoured bodies which in themselves becomes an Imperium in Imperio, completely independent of the Executive or Legislature and operating as a sort of superior body to the general body politic.9 To avoid possible conflicts which were obvious in view of the lack of constitutional direction, the founding fathers evolved a specific mechanism. The goal was to streamline the functioning of the government within the broad parameters of constitutional democracy. Hence it was suggested that ‘it is better for [the judiciary] to more or less fall in line with the regulations that obtain in matters of recruitment to the public services, salaries, conditions of promotion and salaries paid to their staff’.10 This suggestion seems to have been endorsed with caution however. A group of members, led by Alladi Krishnaswami Ayyar of Madras, suggested that ‘unless the judiciary has sufficient control over its own establishment its independence may become illusory [because] . . . if the establishment looks for preferment or for promotion to other quarters, it is likely to sap the independence of the judiciary’.11 It was a powerful argument which however was countered by referring to the fact that if the judiciary was allowed to be an imperium in imperio, India’s constitutional democracy would no longer be one that the founding fathers so assiduously worked for. The concern was addressed by ‘giving sufficient control to the Government of the country which is responsible to the House of People in the matter of finance’.12 By establishing the primacy of the directly elected House of People, the founding fathers privileged the demos over the executive and judiciary, which means that in a democracy the electorates will have the final say. Here too, they endorsed one of the fundamental principles of liberal democracy, namely, the importance of the elected representatives in governance, and the judiciary, by being appointed, was required to be sensitive to the rules and regulations framed by them for realizing the goals of India’s constitutional democracy. Despite adequate precautionary notes, the founding fathers felt the need for demarcating an independent jurisdiction for the Supreme Court in all judicial decisions, made by High Courts and other lower courts. Even in criminal cases, the intervention by the Supreme Court was allowed to avoid ‘miscarriage of justice’. As Alladi Krishnaswami Ayyar elaborated, ‘there is nothing to prevent the Supreme Court from interfering even in a criminal case where there is

Judiciary and constitutional democracy 163 a miscarriage of justice, where a court has misdirected itself or where there is a serious error of law’.13 Being perceptive in their opinion, the framers also felt that while discharging its responsibility, the Supreme Court would ‘develop its own jurisprudence according to its own light, suited to the conditions of the country, there is nothing preventing the Supreme Court from developing its own jurisprudence in such a way that it could do complete justice in every kind of cause or matter’.14 The argument is crystal clear: the founding fathers built the highest judiciary in accordance with what they learnt from their experience of Western system of liberal governance in which the judiciary is valued as a watchdog of constitutional democracy; in other words, it is a custodian of constitutional pledges for the demos that can never be compromised under any circumstances. For constitutional democracy to survive and flourish, the judiciary needs to be independent and, at the same time, cannot avoid being sensitive to the contemporary socioeconomic and political issues which require attention, and also by taking suomoto cognizance of events and issues, it serves a useful purpose. There are two critical points that merit attention here: First, by adhering to liberalism of the Western mould, the founding fathers evolved their ideas of constitutional democracy in which the role of the judiciary was most significant. They were perhaps excessively influenced by the track record of the US Supreme Court, which always upheld the rule of law even to the extent of annoying the executive. This was a lesson that BR Ambedkar kept harping on while defending his arguments in support of a powerful judiciary. The second point is about a dilemma that they confronted in their insistence on an absolutely independent judiciary in view of their endorsement of a duly elected democratic government. The judiciary, if it is exclusively independent, could be a bottleneck for various democratic projects that the future state was to undertake. How to establish a meaningful system of constitutional democracy was the primary concern. It was persuasively done by clearly demarcating the domains of the three organs of the state, in which the judiciary needed to be respectful of the rules and regulations, designed and also devised by the legislature and executed by the executive, since they were drawing on the views of the members of parliament who were directly elected by the people. There was hardly a dilemma given the supremacy of the people in a democracy. So the effort was directed to create a judicial system with the Supreme Court at the apex for realizing constitutional democracy in its true spirit and substance. Mediated by popular will, the proposed system of constitutional democracy was to evolve in independent India in accordance with what the founding fathers deemed appropriate. The Supreme Court remained supreme within, of course, the boundaries set out by the constitution. As Ambedkar argued, ‘we do not want to create an Imperium Imperio, and, at the same time, we want to give the Judiciary ample independence so that it can act without fear or favour to the Executives’.15 On the whole, the arguments that the founding fathers offered led to the creation of a system of judiciary which, along with the legislature and executive, was complementary to the constitutional democracy in India that they wanted to establish. It was relatively easier for them to accept the system presumably because

164  Judiciary and constitutional democracy of their ideological endorsement of Western liberalism. As argued in the earlier chapters, liberalism triumphed in India in contrast to other competing ideologies presumably because of specific historical circumstances in which it gained credibility. Notwithstanding the differences of opinion between the Gandhians in the Assembly and those who acquiesced Ambedkar’s liberal concerns, the structure of governance that the framers privileged was not substantially different from the one that accompanied the rise and consolidation of constitutional democracy in the Western liberal context.

The Apex Court in its contemporary manifestation The judiciary is thus part and parcel of constitutional democracy. Given growing democratization of politics in contemporary India, the courts, including the Supreme Court, have acquired new roles in tune with the fulfilment of the framers’ ideological mission. Being primarily ‘an adjudicative bureaucracy’, a final arbiter of the doings of other courts in the hierarchy and also responsible for providing ‘a juristic’ meaning of the Constitution, the Supreme Court however expanded its domain to a significant extent by being ‘pragmatic’ and ‘proactive’: pragmatic because it deals with those socio-economic issues which need attention since they contribute to the political goal of making India ‘inclusive’ by challenging the sources of horizontal and vertical divisions in society; proactive because the Supreme Court is empowered to take suomoto cognizance of issues that are a deterrent to the establishment of a social compact free from division around the caste, class and ethnic axes.16 Fundamental here is the idea that the Supreme Court, along with other subsidiary courts, holds the key to constitutional democracy in India since it is constitutionally authorized to find out whether the acts of the executive and legislature are justiciable or not. The Constitution is certainly an important source of its authority; it has however expanded its domain in contemporary India largely due to the processes of intense democratization which bring the peripheral sections to the centre-stage of Indian politics. The role of the Supreme Court in the changed socio-economic and political milieu is most succinctly described by JS Verma, India’s former Chief Justice,insaying, India has a unified judiciary with the Supreme Court at the apex. It is the custodian of individual rights and freedoms, with power of judicial review of legislation to determine its validity. It is the final arbiter of the meaning of the Constitution and the laws. The Indian Parliament’s power of legislation is subject to judicial review, unlike that of the British Parliament. Even the power to amend the Constitution is subject to judicial review on the limited ground of the indestructible basic structure.17 This is an explicit description of India’s apex court and how it functions to uphold the values integral to India’s constitutional democracy. One of the important sources of judicial authority are the writs which can be issued to fulfil its role as

Judiciary and constitutional democracy 165 the custodian of individual rights guaranteed by the constitution. According to Article 32 (2), The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quowarranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this part.18 That the Supreme Court derives its authority from the Constitution does not seem to be unusual since in a constitutional democracy it is the constitution that is the supreme source of authority. In a democracy, the role of the demos cannot be ignored because they are the sovereign. With the increasing importance of the people in democratic governance, the court has intervened in areas which traditionally remained the exclusive domain of the executive. This is possible with the articulation of unique legal instruments which allow citizens to approach India’s highest court in case of issues with tremendous socio-economic significance. The growing importance of public interest litigation (PIL) is illustrative of citizens’ democratic zeal, which will be dealt with in the following paragraphs.

Public interest litigation With the growth of the welfarist perspective of state, accompanied by increasing number of civil society organizations and individuals, the new technique of seeking to redress grievances through judicial intervention has gained ground in the country. Called public interest litigation (PIL), it has emerged as the means of standing for the cause of others because the petitions can be filed by a third party on behalf of the aggrieved or deprived people who are not in a position to seek the intervention of judiciary to set right the wrongs done to them. While accepting such petitions, the courts usually forgo the observance of the prescribed judicial procedures, mainly the notion of locus standi of the party, and even a postcard addressed to the Supreme Court can be taken cognizance of. Quite often, the PILs are filed to get judicial prodding for the executive or the legislature to take certain steps which they have failed to take that has caused harm or deprivation to the people. Termed also as social action litigation,19 the PIL is characterized by relaxation of the rule of locus standi, flexibility in normal judicial procedure, innovative and proactive interpretation of legal and fundamental rights of the people and remedial flexibility marked by ongoing judicial participation and supervision.20 Originating in early eighties as a means of ensuring participative public justice, the idea of PIL secured the backing and recognition of the Supreme Court in the case of SP Gupta versus Union of India, where the court allowed the petition despite the petitioner not being an aggrieved party on the ground that it seeks to redress the grievances of those people who are not in position to come to the Court to seek justice. At the same time, the Court also noted that the PIL can also be filed in cases where the interests of the mass of people are at stake, without

166  Judiciary and constitutional democracy any discrimination. Since then, PIL is brought before the Court not for the purpose of enforcing the right of one individual against another as happens in the case of ordinary litigation but is intended to promote and vindicate public interest, which demands that violations of constitutional and legal rights of a large number of people who are poor, ignorant or in a socially or economically disadvantaged position should not go unnoticed or un-redressed.21 Thus, the numerous PILs filed by the legendary lawyer MC Mehta and institutions like the Centre for Science and Environment (CSE) have thoroughly transformed the way people used to live in Delhi’s fast-deteriorating environment and the depletion of its natural resources. The idea of PIL has been criticized by some people on counts like interfering in the domains of the executive and the legislature, setting back the pace of development and burdening the courts with superfluous matters so much that their core and conventional functions are likely to suffer. However, it needs to be pointed out in this regard that such criticisms appear to be more about the nature of diagnosing the ills rather than curing them. Unfortunately, the PIL syndrome erupted in the country owing to the failure of the executive and the legislature to deliver the goods to the people. Ironically, while some people charge the courts with hampering the progress of developmental projects, others accuse the courts of blindly clearing the completion of the mega developmental projects like the Narmada Valley Project. Finally, the existence of the courts becomes meaningful only when they act as institutions to redress the grievances of the people, as the grave issues of constitutional and theoretical nature become absurd for them. The quantum of the PILs can be reduced only by improving the functioning of the executive and legislature in the country, rather than making laws to restrict or outlaw them.

Judicial activism Being a natural corollary of the wave of PILs filed frequently by the public-spirited people, the idea of judicial activism refers to the practical manifestation of the outcome of the adjudication on the PILs. To put it differently, the courts in India have been ordained a defined functional domain, called jurisdiction, to supplement other organs of the government in the smooth working of the democratic polity in the country. But when, owing to certain obvious reasons, the courts step out of their conventional jurisdiction or domain to seemingly act, if not interfere, in the domains of the other organs of the government, it is construed to be an activist role of the judiciary, known as judicial activism. Judicial activism, thus, though remaining within constitutional limits, militates against the spirit of cordial and coordinated functioning of various organs of government without any intrusion of one into the domain of others. Judicial activism has also led to a number of innovations being made by the courts to equip themselves to meet the unconventional challenges placed before them through the PILs. In fact, without a well-structured investigative machinery at their disposal, the courts had to enter into new forays like appointing commissioners to investigate, forming committees to deliberate remedies, nominating

Judiciary and constitutional democracy 167 amicus curiae to assist the court and directing the national scientific institutions to report on scientific matters. Based on these, the courts proceeded to pass wideranging orders and directions which are to be obeyed as if they were decrees of the Court. In the process, the judiciary has intervened in matters perceived to be within the domain of the executive, including policy decisions. Courts have, for example, passed orders regarding the criteria for nursery admissions, facilities to be provided by hospitals, and conditions of roads and other municipal facilities. However, while recognizing the tremendous efforts made by the judiciary in acting in public interest and without in any way detracting from the results achieved, there are a few concerns also to be addressed.22 The core concern in this regard is whether the judicial orders are allowed to replace what should normally be conducted by the administrative authorities. Indeed, that one wing of the state may step in to rectify the deficiencies of another is fraught with serious jurisprudential problems. Similarly, there appears to be a real danger that the activism of the courts may aggravate the in-activism of the administrative authorities. For instance, by leaving the inconvenient decisions to be taken by the courts, the executive branch of the government seems to be running away from shouldering its responsibilities. Moreover, extensive use of judicial powers in the administrative domain may well in the long run blunt the judicial powers themselves, which would probably be the saddest day for the health of the democratic and constitutional polity of the country.

Judicial pronouncements In view of the Indian judiciary being proactive in reinforcing the constitutional values, principles and directions thorough various judgments, the argument that it is a key to India’s constitutional democracy does not seem to be over-stretched. Furthermore, besides fulfilling its adjudicating role, it has also been proactive in reinterpreting the constitutional provisions in light of newer socio-economic demands, which also suggests that it has gone beyond its mandatory authority of simply ascertaining the justiciability of executive and legislative decrees in terms of procedure established by law. Given the space constraint, it will be difficult to focus on all the areas that appear to be critical in comprehending the role of the judiciary in consolidating the foundation of India’s constitutional democracy. Hence, I shall be selective in my choice of areas which are supportive of my conceptual contention. In order to substantiate the argument that the judiciary is a key player in constitutionalizing India’s democracy, the following discussion concentrates on the issues of social justice and religion since these are not only sources of fierce contestation among social and religious groups but also help us understand the changing nature of the polity in a far more persuasive manner. Apart from these two critical issues, the discussion also focuses on what is characterized as ‘the basic structure debate’, for it enables us to comprehend how Indian judiciary worked to retain the constitutional sanctity of the rule of law in opposition to an assertive executive in alliance with a pliable legislature. An innovative constitutional design, the basic structure of the Constitution is a judiciary-driven

168  Judiciary and constitutional democracy design of fundamental features that can never be diluted under any circumstances. By accepting that the basic structure of the Constitution is context-specific, the Indian judiciary creates a definite space for expanding its domain in the future in accordance with what is required to be done at a particular juncture of history.

Social justice Reservation through affirmative action draws on the desire for social justice, which is justified in situations where ‘exclusion takes the form of discrimination against identifiable groups defined by race, caste, religion, gender or ethnicity’. In such circumstances, it is difficult to enforce ‘a law of equal opportunities’ which creates conditions for affirmative action. In other words, given the fact that discrimination is historically entrenched, it is perfectly appropriate to uphold positive discrimination ‘in favour of the underprivileged or excluded . . . as a corrective to compensate for embedded discrimination’. In real terms, an affirmative action entails a set of policies and practices that are used to create equal opportunity and maximum diversity. These target primarily workplaces and educational institutions while using race, caste, gender or ethnicity as factors that must be taken into account when employment or admissions decisions are made. The object is to redress perceived disadvantages attributable to overt institutional or involuntary discrimination.23 Fundamental here is the idea that historically defended discriminatory practices seem to have contributed to a situation where discriminatory legislation appears to have become compatible with social concerns. Tuned to the concern for instituting a society of equals, or for the sake of social justice, the argument appears to have been drawn from a wider ideological dispensation for democratic governance. The phenomenon of reservation or compensatory discrimination received adequate attention from both Gandhi and BR Ambedkar. For Gandhi, social discrimination was necessarily ‘a social evil’ which could be easily mitigated through ‘moral re-education of the upper castes’,while for Ambedkar it was embedded in the structured violence and coercion that could be effectively addressed by stern political action, including legally endorsed compensatory discrimination.24 Ambedkar’s perception enables us to conceptualize ‘various challenges to homogeneous national identity posed by struggles around various markers of identity (caste, gender, region and so forth) which have contributed to a differentiated entry into the domain of citizenship’.25 By strongly arguing for ‘differentiated citizenship’ as perhaps the most effective means to establish equality and fraternity in the liberal sense, Ambedkar thus argued for a political scheme whereby ‘[u] niversalist ideas of rights had to give way for positive discrimination in favour of the oppressed’.26 He was the first of the Indian thinkers to have advocated groupdifferentiated rights by seeking to institute ‘special cultural rights for religious

Judiciary and constitutional democracy 169 minorities, legislative quotas or the downtrodden castes and tribe, and preferential treatment in education and government employment for backward groups’.27 The Indian nationalists seem to have found an acceptable solution to the problem of group rights within the constitutional boundaries by acceding to the preferential treatment of the historically marginalized Scheduled Castes and Scheduled Tribes. The 1990s however saw a fierce campaign for reservation for the ‘Other Backward Classes’ (OBCs), who constituted roughly more than half of India’s demography yet hold only 5% of public jobs. The demand for reservation in proportion to their demographic strength gained momentum. With the acceptance of the Mandal recommendation in 1990 by the National Front government, a new era in this history of reservation seems to have begun which is characterized as ‘a decisive turning point in state policy in group preference in India, as job quotas by the Indian Constitution of 1950 for the Scheduled Caste and Scheduled Tribes were extended at the national level to a large new group, the OBCs’.28 It was a break with the past since the recommendations justified the OBCs’ claim for preferential treatment as most appropriate to address the age-old system of exclusion. The announcement of the scheme triggered fierce opposition from among those who were adversely affected though it evaporated soon presumably because of the strength of argument supportive of job reservation for the OBCs. Despite having disrupted the prevalent social equations among the caste groups, the Mandal recommendations stand out as a step for social inclusion of a large excluded group, and hence, they can be said to have contributed to the strengthening of constitutional democracy in India. This was a scheme which created a definite space for the excluded groups to become active partners in India’s democratic experiments. Not only did the recommendations firmly establish an argument for preferential treatment for the OBCs, they also provided significant inputs in re-conceptualizing India’s constitutional democracy, as the following discussion illustrates.

The Mandal recommendations Just like the demolition of the Babri mosque that radically altered the texture of Indian politics, the introduction of reservation in public employment for the Other Backward Classes (OBCs) brought about dramatic changes in conceptualizing the political in the Indian context. In what is euphorically described as ‘deepening of democracy’, the Mandal recommendations remained the most critical input. Recommending a ‘quota’ for the OBCs, the report is broadly a scheme for ‘affirmative action’ for socially under-privileged sections of society. By deciding to implement the Mandal Commission Report, submitted to the government of India in 1980, the VP Singh government championed, as it were, the cause of 52% of the population belonging to the OBCs. Although the recommendations were accepted by the government in 1990, there was a series of attempts to accord reservation to what was defined as OBCs. To fulfill a constitutional obligation, as Article 340 suggests, the government of India appointed the First Backward Classes Commission, popularly known as Kaka Kalekar Commission after its chairman

170  Judiciary and constitutional democracy in 1953. The Commission submitted its report in 1955, listing about 32% of the population as backward on the basis of caste identity. The Commission also identified 2,399 castes as backward. However, Kalekar rejected the report when he placed the report for presidential assent, saying that it would have been preferable to determine backwardness on ‘principles’ rather than ‘caste’. The reservations seemed to have lost their momentum except that nearly all the states constituted their Backward Commission and legalized reservation in public services and educational institutions under state control. The Second Backward Classes Commission, known as the Mandal Commission, appointed in 1978, revived interests in formulating a national policy for OBCs.29 The Commission suggested that OBCs who form 52% of country’s population require special concession to correct the social imbalance. But the Supreme Court ruled that ‘reservations cannot exceed 50 percent of the jobs’.30 So the Commission reluctantly agreed to accept 27% jobs for the OBCs though they constitute more than half of India’s population. There was also a rider because the Commission also categorically stated that ‘candidates belonging to OBCs recruited on the basis of merit in an open competition should not be adjusted against their reservation quota of 27 percent’. By implication, what it means is the fact that if the Commission’s recommendations are respected, half the posts in the public sector and universities will be filled by people who could not get in on merit, provided they belong to ‘the right castes’. As evident, the Mandal formula rests on two premises: (a) the OBCs comprise a very large segment of India’s population and (b) their representation (only 5%) in the public sector is abysmally poor. Hence the recommendations ensuring 27% reservations in central jobs and education for the OBCs appear revolutionary. In contrast with the Kalekar Commission, the Mandal Commission Report ‘changed the original philosophy of reservations by clearly identifying the potential of cultural identity as a key strategy for enhancing political influences and thereby seeking subsidies and favours for the entire caste/group’.31 Reservations were born out of a concern to remedy injustices which deprived certain sections of an equal opportunity to raise themselves in the socio-economic hierarchy. In order to create ‘an inclusive Indian identity’, the post-independent Indian leadership favoured ‘policies of discrimination’ as instruments through which ‘to offset the advantage, enjoyed by some, and to equalize opportunities at the starting line’.32 Seeking to rectify the social imbalance due to the age-old economic deprivations, the Mandal formula seeks to give 27% reservation to a total of 3,743 OBCs in government jobs. What it therefore means is the promotion of the backward castes, who will also be entitled to a much bigger slice of ‘an already meager employment cake’.33 The violent student riots, led primarily by the privileged upper castes, that swept the entire north India after the announcement seems explicable in view of the perceptible threat to the upper caste hegemony in the white-collar world. South India was hardly affected probably because of the long tradition of non-Brahman movement there.34 The violence over the extension of the controversial scheme shows the extent to which the idea of reservation has itself become repulsive to the assertive section of the upper castes. In the

Judiciary and constitutional democracy 171 immediate aftermath of independence, reservation was mandatory for the Scheduled Castes and Scheduled Tribes as it was directed ‘towards advancing social and economic equality’.35 In 1977–78, Bihar Chief Minister Karpoori Thakur introduced 26% reservation for the OBCs. The formula,36 which took into account the economic backwardness as a criterion for reservation, provoked a violent outburst in which 118 people were reported to have been killed. The Madhya Pradesh government raised reservation from 28% to 32% in 1985, which sparked off violent riots and arson. So widespread and alarming was the trouble that the government was forced to revoke its decision. Gujarat shared the same fate in 1985 when the Madhavsinh Solanki government fell following the introduction of reservation in promotions of posts in medical colleges. These illustrations draw out the fact that north India has not had ‘a consensus evident in the South’.37 This probably explains why in north India ‘the acceptance of the Mandal Commission Report has resulted in condemnation verging on hysteria’.38 Whatever the advantages the Mandal formula may have, reservation for the backward castes and for the religious minorities is directed towards maintaining a balance of power in the caste-divided India’s social structure. As a scheme striving to strike a balance between the privileged upper castes and the hitherto neglected OBCs, the Mandal recommendations deserve appreciation. In reality, however, the better-off sections of the OBCs would reap the benefit at the cost of the more deserving sections within these castes. To substantiate the argument, let us draw our attention to the caste dynamics in north India. Till the 1950s, domination was enjoyed in the rural areas by the AJGAR (Ahir, Jats, Gujars and Rajputs) group.39 They gained remarkably in material terms after the Green Revolution40 and all of them moved well and truly into the modern sector. The intermediate castes, like Kurmis, Koeris, Lodhas and others, also benefited but not uniformly, and therefore there is considerable social and economic heterogeneity in each of these castes. Hence, the Mandal definition of ‘backwardness’ does not appear plausible in view of its obvious limitation of having ignored social and economic heterogeneity among OBCs. As a result, the benefits meant for the backwards of the OBCs are likely to be monopolized by the better-off and influential of these castes. In other words, ‘the rhetoric of reservation is addressed to the mass of underprivileged, but their rewards are reserved for the affluent upper castes of the OBCs’.41MN Srinivas thus argues that ‘when a certain caste has political clout it should be excluded from the backward class list; otherwise, the richer members of the higher groups among the backward classes . . . will hog the benefits which should have gone to the genuinely deserving backward classes’.42 The political imperatives behind reservations are thus apparent. What prompted the ruling elite to accept the Mandal recommendations is probably a well-calculated design aiming at mobilizing the support of the OBC elite. LR Naik, the only Dalit member of the Mandal Commission refused to sign as he felt that the recommendations would placate the interests of the powerful landowning castes within the OBCs as against those who remained at the periphery within this social segment.43 Despite clear economic gains for the OBCs, there is no doubt that what governed

172  Judiciary and constitutional democracy the VP Singh–led National Front government’s decision to implement the recommendations were political calculations that surely hinge on the following: (a) populist vote-catching device as the OBC constitutes the majority of the Indian population; (b) a move to upstage the Haryana leader Devi Lal, who was threatening theVP Singh–led coalition with rural-urban polarization; (c) to shift the focus from the Ram Janmabhumi issue, which singularly created a solid vote bank for the BJP especially after the October (1990) Rath Yatra; (d) the realization that it was one issue on which none of the allies of the National Forest would be able to openly oppose the government, if presented with a fait accompli. By virtue of its unique status in the OBC society, its wealth, its relatively high educational level and its hegemony in a majority of caste councils, the OBC upper crust is viewed as the most significant power brokers in the Hindi heartland. So, the Mandal formula, designed to ensure social justice, is virtually a scheme for creating and sustaining a secure vote bank for the National Front government. And, since number counts in franchise today, parties irrespective of ideology strive hard to win the support of caste groups for electoral gains by promises whipping-up caste sentiments. So, if caste has acquired a new lease of life in independent India, this is almost entirely because of the increasing use made of it in politics. The decision to implement the Mandal Commission Report is just another effort to effectively draw on caste sentiments for victory in elections. The Commission is thus described as ‘a caste commission’which is seen ‘as a passport to power’.44 Whatever the future of the reservation plan, the Mandal formula has polarized the contemporary political forces more sharply than before. So, a mere acceptance of modern secular political idioms does not ensure their sustenance in a society which draws on feudal sentiments and primordial loyalties. It is not therefore strange that elections are conducted on caste calculations, the candidates are nominated on caste ratio, and as a consequence, patronage is likely to be distributed on a caste basis and public policies are also to be tilted in favour of the caste support base. Despite sharp criticism and violent student fury directed against the Mandal Commission Report, the formula deserves serious attention as it strives to correct the stark injustice of centuries inflicted on the downtrodden in the name of the discriminatory varna system. Due to peculiar socio-economic transformation in India, which has a long colonial past, the benefits meant for the genuinely backwards are likely to go to the relatively better-off sections within the OBC. So, the Commission’s aim of ensuring greater equality for the OBCs as such is sure to be defeated under the present circumstances. The NF decision on reservation therefore appears ‘mainly a tactful response of a desperate regime to the struggle for empowerment by the oppressed sections of [Indian] society’.45 Unless it becomes a part of a comprehensive plan for development, the Mandal formula, despite BP Mandal’s sincerity and devotion to the OBC cause, hardly makes sense in a situation in which the reservation plain is being utilized primarily for electoral gains.

Judiciary and constitutional democracy 173 Yet, none of the political parties can be critical of the reservation scheme perhaps due to ‘adverse political implications and also the political costs of opposing it’.46

Mandal II: reservation for social justice or appropriation by the creamy layer? Reservation in educational institutions is referred to as Mandal II. In August 2005, the Supreme Court abolished all caste-based reservations in unaided private colleges. On 21 December 2005, the Lok Sabha passed the Ninety-Third Constitutional Amendment Act, 2005, rolling back the Supreme Court judgment by introducing a new clause into Article 15 to allow for reservations for Scheduled Castes and Scheduled Tribes as well as Other Backward Classes in private unaided educational institutions other than minority institutions. In 2006, the UPA government agreed to introduce 27% reservations for OBCs in central government-funded higher education institutions like Indian Institutes of Management, Indian Institutesof Technology, All India Institute of Medical Sciences and Central Universities. In other words, the proposed design is meant to introduce the 27% ‘quota’ to all institutions of higher learning. This blanket guarantee for reservations stands in contradiction to the 1992 Supreme Court judgment in the case of Indira Sawhney versus Union of India delivered on 16 November 1992 which upheld 27% reservations subject to the exclusion of socially advanced persons/sections (‘creamy layer’) from amongst the OBCs. The Court also directed the government to evolve criteria for identification of this creamy layer. In response to the Court directives, the government appointed a committee which suggested that the rules of exclusion apply to children of persons holding different constitutional positions, Class I officers and defence personnel who hold the rank of colonel and above. Children of persons with annual income greater than Rs. 100,000 were also to be excluded. The limit was later revised to Rs. 250,000 in 2004. The recommendations were accepted and circulated among all ministries/departments of Union and state governments in September 1993, allowing reservations to come into force.47 Viewed in a long-term perspective, Mandal II is a logical corollary of Mandal I. It takes forward ‘the process of transfer of social and political power to majority communities’.48 In the context of Mandal II, VP Singh thus characterized Mandal as ‘a macro-process that has acquired its own dynamics. [Hence] no matter which party forms a government, it has to take the process further’.49 It would not be an exaggeration if one thus argues that the centre of gravity in Indian politics is now defined by ‘quota politics’.50 Whatever the implications, reservation through quota translates ‘protective discrimination’ into reality. In contrast with ‘affirmative action’ that is practiced in the US, it is the combination of quotas and lower eligibility criteria that defines protective discrimination in India.

The Mandal II arguments The state can adopt discriminatory measures51 to favour one group of people against another in a multicultural society. In order to neutralize inequality, the

174  Judiciary and constitutional democracy state must provide resources to the underprivileged ‘on non-market principles – free education, assured income, nutritious food and health’.52 The idea of ‘recognition’ is thus clearly political because it is justified keeping in mind a ­specific type of power relationship. Can ‘reservation’ be thus an appropriate scheme to accord ‘recognition’ to the disadvantaged due to historical reasons? Perhaps yes. A politically ‘liberal’ society however does not endorse social discrimination because citizenship, conceptually speaking, is ‘universal’. Hence ‘ascribed’ identities are completely disregarded when defining citizens. One may perhaps theoretically defend this position. But, given the peculiar evolution of societies in various socio-economic and political contexts, this position may not appear tenable simply because ‘identical’ rights for all are inadequate for protecting cultural minorities. What we therefore require are ‘special’ rights for minorities who are identified as ‘disadvantaged’ groups. The argument that justifies discriminatory laws draws on the idea that since citizens are ‘differentiated’ and thus ‘unequal’, for obvious reasons, different communities should have different rights as citizens. Based on this logic, theorists of multiculturalism articulate the notion of ‘differentiated citizenship’. There are two significant implications of this conceptualization: (a) in contrast with universal citizenship of the liberal variety, differentiated citizenship clearly argues for discrimination in favour of cultural minorities as ‘justified’; and (b) by taking into account ‘cultural distinctiveness’ as a denominator, those championing differentiated citizenship challenge ideologically charged attempts at ‘homogenizing’ communities with clear sociocultural differences. There is a historical dimension too. Different communities undergo different social churning processes. Hence some are ‘privileged’ and some are ‘marginalized’. A society that rejects ‘differentiated citizenship’ and appreciates universal citizenship seeks to insist that the latter give up their identity and submerge with the majority. This is how a society flourishes. From the multicultural point of view, this position smacks of ‘cultural imperialism’ because the prism through which a society is uniformly viewed insists on treating un-equals equally. This is clearly a case of cultural imperialism because norms and values of the privileged majority acquire salience given their well-entrenched nature and therefore any opposition to them provokes consternation among those who tend to belittle the importance of historical processes in dividing mankind. There are thus strong arguments in favour of reservation in a multicultural country like India. But difficulty arises the moment groups or communities that deserve reservation are identified on the basis of ascribed identity, namely caste. Besides the 1931 census of India, caste was never a criterion in classifying Indian population. So if caste is a defining category, the 1931 index remains critical. This is hardly persuasive because the 1931 census was guided by imperial priorities and may not have reflected India’s actual demographic profile. Furthermore, since the criterion of ‘backwardness’ is historically conditioned, it is doubtful whether it remains valid even in the twenty-first century. Similarly, reservation in higher education seems to be an empty slogan in light of the fact that seats for Scheduled Castes (SC)and Scheduled Tribes (ST) remain

Judiciary and constitutional democracy 175 vacant for lack of applicants. Even after more than half a century of reservation for these communities, the number of beneficiaries is abysmally low. The reasons are not difficult to seek. As evident in the latest educational statistics, released by the Union Ministry of Human Resources Development, while 73% of the SC students quit school before taking the class X final examination, the figures for the ST students (79%) are worse. Interestingly, the drop-out rates are not so high among the children within the class I-IV. Only 37% of the SC students discontinue while 59% of the ST students fall under this category. If contrasted with the prevalent high Gross Enrolment Ratio, which is 83% for the SCs and 86% for the STs, the drop-rates are attributed to the unfavourable socio-economic circumstances in which they are forced to take up odd jobs for mere survival. Since the majority of the SC and ST population draw on agriculture for livelihood, these children are roped in for farming once they reach 10–12 years. Given this reality, reservation in higher education makes no sense so long as drop-out rates in schools are alarmingly high. In order to translate the scheme into practice, what is thus required is to pursue ‘the literacy mission’ seriously especially among the downtrodden by creating conditions in which the benefits of going to school outweigh the forced alternative of working in the field for mere survival. Otherwise, the benefits of reservation continue to be ‘uneven’ among those who can avail them. The well-placed group of the backward section would be better-off with such reservation. It would help only the creamy layer to grab the advantages. Thus the social justice agenda will always remain a distant goal. It is difficult to suggest a convincing scheme to get out of the imbroglio relating to the reservation issue. In order arrive at a solution one may begin by taking into account most seriously the creamy layer judgment of the Supreme Court. It is time to review whether it is appropriate to extend reservation to the creamy layer generation after generation. It makes no sense if the children of the Indian Administrative Service (IAS) officers, for instance, enjoy reservation simply because of their ascribed social status, even though they, despite their caste identity, are socio-economically better placed than their upper caste counterparts. As the argument goes, ‘to allow the undeserving to benefit from reservation is to deny protection to those who deserve to be protected’.53 So, is the cause of social justice served well if reservation is confined to first-generation learners or further? Differentiated citizenship is a powerful device to achieve social justice. But it causes serious social distortion unless it is conceptualized in the affirmative action mould rather than extending a blanket license to those differentiated merely by virtue of birth.

Assessment Despite having stirred the sensibilities of both the socially advantaged and disadvantaged sections of society, the Mandal initiative is a powerful input that has brought about radical changes in the Indian polity and society. The grammar of entitlement has become an integral part of the language of politics in contemporary India. This transformation is suggestive of ‘a silent revolution’ because

176  Judiciary and constitutional democracy ‘power is being transferred, on the whole peacefully, from the upper caste elites to various subaltern groups [and] the relative calm . . . is primarily due to the fact that the whole process is incremental’.54 There can be a debate on how to execute the decision, but all political parties are unanimous in accepting the logic and reality of the Ninety-Third Amendment Act (2005) confirming reservation in all institutions of higher learning. The appointment of the Oversight Committee in 2006 to suggest steps to expand the OBC quota without adversely affecting the equilibrium in admission to institutions of higher learning is a strategy to defuse social tension in the country.55 Yet, the 2006 controversy had also shown ‘how entrenched social prejudices remain and how deep runs the hostility to change in areas where it matters the most’.56 Nonetheless, the Mandal debate marks an important shift in the public justification of reservations. After Mandal, caste as a basis of collective struggle for gaining equality in positions and social status became ‘a term of respectable usage’ among the marginalized. It is now being seen as ‘an empowering device to enhance one’s meager entitlements in society’.57 The shift thus involved a reinterpretation of the nationalist goal of a more equal and just society by empowering the disadvantaged and recognizing the socially denigrated groups in addition to reducing socio-economic disparities. The conceptual mechanism articulating the redefinition involved, argues Rochana Bajpai, ‘a relocation of equality in proximity to democracy on the one hand, and by distancing (but not its dissociation) from national unity, on the other’.58 However one characterizes the Mandal debate, the reservation policy has nonetheless become ‘the fixed point of Indian political life’ because different groups have different reasons to support it. It is a soft option for the political elites who, ‘reluctant to carry out deep-rooted changes in society would rather opt to enlarge the constituency for reservations in a shrinking state sector and in a declining educational system, than transform ownership of resources in the country’.59 In other words, by securing the numerically mandated quotas for the OBCs, the Mandal II is a way of avoiding doing the things that really create access to opportunities. Bhikhu Parekh thus laments, Social justice has come to be defined almost exclusively in terms of reservations, and the massive programme of redistribution needed to tackle the deep roots of historically accumulated disadvantages has been marginalized. Rather than fight for such a programme, the scheduled caste, scheduled tribe, and OBC representatives in powerful positions use their constituents as a vote bank to promote their own careers.60 By deciding to implement the Mandal II reservation scheme, the primary aim of the Congress is, suggests a commentator, ‘to lure back the traditional voter [and] reservation has [thus] damned all to do with balancing society; it has everything to do with winning elections’.61 The left political parties extend support to the reservation scheme because in the absence of the implementation of radical ‘redistribution programme’, it is best ‘to stick to constitutionally guaranteed and politically accepted policy of reservation’. Due to peculiar socio-economic circumstances,

Judiciary and constitutional democracy 177 the reservation policy not only enjoys ‘a broad-based support’ it has also become what Bhikhu Parkeh characterizes as ‘a touchstone of social conscience and an integral part of Indian politics’62 though ‘the churning of Indian politics and society that followed Mandal has [largely] petered into an endlessly involuted conflict of one sub-caste with another [and] most anti-caste movements turn out to be . . . merely anti-upper caste movements [happily excluding] those below them’.63

Religion and secularism The Constitution laid out a framework for secularism and the Supreme Court of India refined its texture in a number of remarkable pronouncements which remain critical to our understanding of the idea that founding fathers so assiduously nurtured while devising the rule of law for the country. There are two important judgments which merit attention since they seem to have shaped our approach to secularism. First, the 1994 verdict which is also known as the Ramjanmabhumi judgment, in M Ismail Faruqui and others versus the Union of India and others summarized the concept of secularism by underlining that It is clear from the constitutional scheme that it guarantees equality in the matter of religion to all individuals and groups irrespective of their faith emphasizing that there is no religion of the State itself. The Preamble of the Constitution read in particular with Article 25 to 28 emphasizes this aspect and indicates that it is in this manner the concept of secularism embodied in the constitutional scheme as a creed adopted by the Indian people has to be understood while examining the constitutional validity of any legislation on the touchstone of the Constitution. The concept of secularism is one facet of the right to equality woven as the central golden thread in the fabric depicting the pattern of the scheme in our Constitution’.64 Reiterating the idea that was discussed threadbare in the Constituent Assembly, the Supreme Court’s division bench made it clear that the state could not afford to be partisan in view of the constitutional values enshrined in the Preamble to the Constitution and also Articles 25 to 28. By recognizing the declaration in the Preamble as ‘touchstone of the Constitution’, the apex court left no ambiguity in its understanding of the theme of secularism. This was a follow-up of an earlier judgment of India’s Supreme Court which in its 1975 pronouncement in Ziauddin Burhanuddin Bukhari versus Brijmohan Ramdass Mehta and others defended secularism as integral to India’s constitutional fabric by mentioning that Our Constitution-makers certainly intended to set-up a Secular Democratic Republic the binding spirit of which is summed up by the objectives set forth in the preamble to the Constitution. No democratic political and social order, in which the conditions of freedom and their progressive expansion for all make some regulation of all activities imperative, could endure without an agreement on the basic essentials which could unite and hold citizens together

178  Judiciary and constitutional democracy despite all the differences of religion, race, caste, community, culture, creed and language. Our political history made it particularly necessary that these differences, which can generate powerful emotions depriving people of their powers of rational thought and action should be permitted to be exploited lest the imperative conditions for the preservation of democratic freedom are disturbed.65 A perusal of the principal points that the apex court made in these two judgments confirms that there were hardly differences of opinion despite the lapse of almost two decades between these two verdicts. As the Constitution remains the only reference point, the arguments that the Supreme Court made appear to have coalesced to endorse that constitutional values could never be compromised under any circumstances. Basic to their arguments was the concern of maintaining India’s multicultural fabric that had evolved historically as intimately connected with her rise as a distinct polity. While these judgments contributed to the conceptualization of secularism, the 1995 Supreme Court pronouncement, also known as the Hindutva judgment, drew our attention to the changing complexion of India’s secularism in the changed socio-political environment in the twenty-first century, especially in the aftermath of the 1992 demolition of the controversial Babri masjid. The Court intervened when it was asked to review whether the term Hindutva was contrary to the spirit of secularism as it evolved in India. Based on its understanding of Hinduism as an inclusive religion, the Court ‘conflated Hindutva with Hinduism’ by insisting that Hindutva was a way of life and could not be equated with narrow fundamentalist Hindu religious bigotry.66 In its detailed response, the Court further argued, Thus, it cannot be doubted, particularly in view of the Constitution Bench decisions of this Court that the words “Hinduism” or “Hindutva” are not necessarily to be understood and construed narrowly, confined only to the strict Hindu religious practices, unrelated to the culture and ethos of the people of India, depicting the way of life of the Indian people.67 This is a clear justification of the fact that as an expression Hindutva is hardly ideological, but an innocent expression of a specific way of life that Hindus seem to have imbibed and also fine-tuned over the years. No fair understanding of the term in a specific historical perspective would allow us to misconceive the notion unless there were an ulterior motive. This was made explicit by the Court by saying further that Considering the terms “Hinduism” or “Hindutva” per se as depicting hostility, enmity or intolerance towards other religious faith or professing communalism proceeds from (sic) an improper appreciation and perception of the true meaning of these expressions emerging from the detailed discussion in earlier authorities of this Court.68

Judiciary and constitutional democracy 179 Upholding the view that Hindutva was hardly divisive, the Court justified its stance by reference to its earlier judgments which, despite being products of completely different socio-economic and political circumstances, endorsed the view that the apex court had taken in 1995. With its support to the idea of Hindutva as being entirely free from being an instrument of communalism, which was clear from its opinion that ‘misuse of these expressions to promote communalism cannot alter the true meaning of these terms’, the bench concluded that it is indeed unfortunate, if in spite of the liberal and tolerant features of Hinduism recognized in judicial decisions, these terms are misused by anyone . . . to gain unfair political advantage. Fundamentalism of any colour or kind must be curbed with a heavy hand to preserve and promote the secular creed of the nation. Any misuse of these terms must, therefore, be dealt with strictly.69 The 1995 verdict is a watershed in our thinking on how to conceptualize secularism at a particular point of India’s recent political history when the idea of Hindutva seems to have gained political ascendancy, especially in the aftermath of the 1992 Babri masjid demolition which also created a base for the Bharatiya Janata Party. In three distinctive ways, the Hindutva judgment is most instructive: First, it provides a new perspective for conceptualizing secularism which is usually understood in a derivative, but primarily, Western format. Secondly, by explaining that Hindutva is a way of life, the bench appears to have endorsed the Gandhian conceptualization of secularism as sarvdharma sadbhava. Here, Hindutva, synonymous with Hinduism represents a specific way of life, having beennurtured over millennia in India. The idea is just an innocent construct of how life is seen by those subscribing to a particular religious denomination. Thirdly, under no circumstances can Hindutva be said to hold, argued the bench, a definite ideological motive to accrue narrow political benefit, which means that only in a specific context it is likely to be distorted. This is ‘an aberration’ that cannot be taken as ‘usual’, the Court endorses. So, the mere use of the term would, in no circumstances, warrant being charged with communal intention, the bench further underlined. Although there is not an iota of confusion in the Hindutva judgment, it provoked criticism from various quarters for being ‘heavily one-sided’ by ignoring the obvious politico-ideological background in which Hindutva was conceptualized and also its contribution to communal divide in contemporary India. According to the contrarians, the judgment is based on two assumptions which are proved to be false at least in light of the articulation of the political. The first assumptions that tolerance is linked with ancient Hindu scriptures and hence Hindus are civilizationally tolerant may not, at all, be consistent with the recent political developments in India. By implication Hindus are, as the second assumption underlines, instinctively appreciative of difference within the cultural resources that Indian civilization has already created. Drawing on the cultural logic reflective of the Savarkarian pitribhumi-punyabhumi formula, these two assumptions feed the

180  Judiciary and constitutional democracy Hindu sectarian claim of accommodating diversity for a pan-Indian identity. These assumptions also contribute to the view that ‘secularism as tolerance is steadfast with Hindu interests, which subsumes other faiths within its philosophy’.70 This leaves no space for ‘plural values’ as it engenders one set of values over others. In the 2002 judgment on the textbook issue, the Supreme Court seems to have favoured ‘a majoritarian view’ by glossing over the pluralistic Indian ethos. The argument in essence was that there is hardly a difference among various religious faiths: what differ are practices. So, secularism is clearly practice-linked. So far, the Court was insistent on ‘tolerance’, while in this judgment it appeared to have endorsed the spirit of assimilation which stands in contradiction with the basic notion of Indian pluralism. There is an implicit aim of ‘creating oneness’ rather than allowing ‘a definite space for social and political diversity’. In other words, differences need to be respected with a view to creating space for inter-religious dialogues. This judgment, by seeking to assimilate differences into one seems to have endorsed the Hindutva judgment by apparently subsuming the majoritarian spirit in its articulation. As the above discussion shows, the 1995 Hindutva judgment seems to have contributed to a new wave of thinking leading to a re-conceptualization of the idea of secularism in light of the emerging socio-economic context in which the conventional approach to secularism does not appear to be so relevant. What is far more important here is however the critical role of the judiciary in redefining the idea of secularism, which does not seem to make sense if it is conceptualized as derivative of the Western politico-intellectual sources. One thus cannot have a persuasive discussion on the theme unless one is drawn to the court decisions. Since courts take into account the prevalent politico-ideological views, their views are usually welcome since they help articulate the sense or mood of the demos in regard to some of important social, economic and political issues. This has emerged as a pattern, as is often exemplified. The latest in these series of endeavours of the apex court is the Supreme Court pronouncement in October 2016 in regard to a petition challenging the 1995 Hindutva judgment. In response to the petitioners’ demand for disallowing political parties to resort to religious slogans for political mobilization, the apex court held that ‘it is difficult to accept as a proposition that a political party should have nothing to do with religion and those who have something to do with it must cease to be a political party’.71 By dismissing the basic contention of the petitioners, the seven-judge constitutional bench, headed by the Chief Justice of India now defines what secularism means in India’s changed socio-cultural environment by stating that Secularism does not mean aloofness to religion by giving equal treatment to every religion. Religion and caste are vital aspects of our public life. Can it be possible to completely separate religion and caste from politics?72 In substance, the 2016 Supreme Court judgment is a follow-up of what the apex court held in the 1995 Hindutva judgment for it also endorses the fact that religion is a part and parcel of India’s socio-cultural life that can never be dispensed

Judiciary and constitutional democracy 181 with while defining secularism as an ideological dispensation for the country. The fact that one is religious does not prevent one from being secular provided one separates one’s public concerns from private ones. The fundamental point that has been emphasized here is that in both these judgments the Supreme Court seem to have been guided by the Gandhian conceptualization of secularism which is articulated in his belief of sarvdharma sadbhava, which also reinforces the argument that tolerance for all religions contributes to social harmony.

Conceptualizing the basic structure The basic structure doctrine evolves in India in the course of a series of judicial verdicts, especially since the 1967 Golaknath case. In the history of constitutional laws in India, the idea of basic structure was mooted in the 1964 Sajjan Singh versus State of Rajasthan. While endorsing the right to property, P Gajendragadkar raised a question by saying ‘whether the basic features of the Constitution under which we live and to which we owe allegiance are to endure for all time – or at least for the foreseeable future – or whether the yard no more enduring than the implemental and subordinate provisions of the Constitution’.73 In his note of dissent, JR Mudholkar, another member of the bench, also referred to the concept by stating that ‘it is a matter of consideration whether making a change in a basic structure of the Constitution can be regarded as an amendment or would it be, in effect, rewriting a part of the Constitution; and, if the latter, would it be within the purview of Article 368?’74 This is the beginning of the unfolding of the conceptual-legal journey of the basic structure doctrine which passes through a series of judicial pronouncements. The purpose here is not to provide a detailed account of the verdicts, but to highlight the points that India’s apex court made while laying out the foundation of the doctrine and its essential features by reference to the major court judgments in this regard. One of the first significant judicial steps in this regard was the 1967 Golaknath case in which the Supreme Court contributed to the articulation of the doctrine. The primary question that the Supreme Court raised was whether ‘in the exercise of the power of amendment the fundamental structure of the Constitution may be changed or even destroyed or whether the power is restricted to making modification within the framework of the original instrument for tis better effectuation’. The answer is equally unambiguous: characterizing the fundamental rights as ‘transcendental and immutable or inviolable’, the majority of the judges in the bench held the view that (1) the Constitution is intended to be permanent and therefore it cannot be amended in a way which would injure, maim or destroy its indestructible character; (2) the word “amendment” implies such an addition or change within the lines of the original instrument as will effect an improvement or better carry out the purpose for which it was framed and it cannot be so construed as to enable the parliament to destroy the permanent character of the Constitution; (3) the amending power cannot be used to abolish the compact

182  Judiciary and constitutional democracy of the Union or destroy the democratic character of the Constitution teeing individual and minority rights; and (4) the fundamental rights are a part of the basic structure of the Constitution and, therefore, the said power can be exercised only to preserve rather than destroy the essence of these rights.75 In clear terms, the Court held that fundamental rights being a part of the basic structure of the Constitution cannot be abrogated. So, the parliament does not have unrestricted authority to amend any of the rights enshrined in Part III of the Constitution. There was a dissenting note too; Justice Wanchoo of the bench felt that the Court’s insistence on the basic structure could be an impediment to social progress, as the members of the Constituent Assembly had apprehended. He was thus categorical in asserting that no limitation should be implied on the amending power of the parliament under Article 368 and basic structure would lead to the position that any amendment made to any article of the Constitution would be subject to the challenge before the Courts on the ground that it amounts to the amendment of the basic structure.76 Nonetheless, the decision that basic structure cannot be challenged was carried forward as the majority of the bench endorsed the argument. It was now settled that fundamental rights were a part of the essential features of the Constitution that needed to be protected and upheld unconditionally. A revolutionary judgment, it, for the first time in India’s recent political history, established that the parliament was subservient to the Constitution which remained supreme and its authority to amend the Constitution was also absolute. The parliament took the verdict as an infringement in its constitutional rights for being the voice of the people, and hence it adopted legislation to re-establish its absolute authority in law-making. The result was the enactment of the Twenty-Fourth, Twenty-Fifth and Twenty-Ninth Amendment Acts in 1971. While the Twenty-Fourth Amendment Act was meant to abrogate the Golaknath ruling of the Court to restore parliament’s unconditional authority in amending the Constitution, the Twenty-Fifth and Twenty-Ninth Amendment Acts evolved separate legal tools for safeguarding compulsory acquisition statutes from being struck down for violating fundamental rights. These amendments were put to test for the first time in the 1973 Kesavananda Bharati case in which the Supreme Court, with its full bench of thirteen jurists, probed into the constitutional validity of the Kerala Land Reforms Act, 1963, as amended by Kerala Land Reforms (Amendment) Acts, 1969 and 1971. The decision challenging the Twenty-Fourth Amendment Act was clinched by a majority of seven judges against six; the Court ruled that the Article 368 does not enable the parliament to alter the basic structure of the Constitution; there were three different expressions, basic structure, basic elements and basic features, which figured in the judgments. Although the jurists did not conclusively define what constituted basic structure, they left enough inputs to identify those essential characteristics which, according to them, constituted ‘the basic structure’. That the

Judiciary and constitutional democracy 183 apex court avoided defining the basic features categorically was presumably due to the fact that it was not exactly needed and it was also not possible to enumerate them since they were context-driven. The Court also held that because ‘a particular concept of law cannot be rigidly defined, it does not cease to be a concept of law; principles of natural justice and negligence also cannot be rigidly defined still they are effective concept of law’.77 In order to further strengthen the argument, the court advanced the point by saying that The ultimate purpose of the Constitution is the conservation of utility and integrity of the nation and also the dignity of the individual. This can be assured only by promoting fraternity. Any principle of law which, if taken away from the Constitution, would result into a loss of fraternity and unity and integrity of the nation and dignity of the individual would be considered to be an essential feature of the Basic Structure.78 The amending power of the parliament was thus conditional and subject to judicial scrutiny to probe whether it had affected the basic structure. While exercising its constituent power under Article 368, the parliament cannot, the Court held, ‘damage, emasculate, destroy, abrogate, change’ the basic structure or the fundamental framework of the Constitution. The argument was persuasively justified by Justice SM Sikri of the bench, who supported the basic structure doctrine by saying that Our Constitution is not a mere political document. It is essentially a social document. It is based on a social philosophy and every social philosophy like every religion has two main features, namely basic and circumstantial: the former remains constant but the practices associated with it may change. Likewise, a Constitution like ours contains certain features which are so essential that they cannot be changed or destroyed.79 This was a powerful argument in defence of the basic structure doctrine. Being essentially a product of consensus, the 1950 Constitution of India was also an offshoot of a bargain by which the diverse groups constituting the Indian polity came together to form the Union. So, it became a social compact which emerged out of processes in which differences were resolved through dialogues and deliberations without fear or coercion. The founding fathers devoted a great deal of energy to consolidating the social compact by way of reconciliation, accommodation and agreements among the socio-economically diverse groups. And, the basic features evolved out of such intensive dialogues among groups holding contrasting points of view. The idea was captured in its true spirit by Justice Khanna, who held that Amendment of the Constitution necessarily contemplates that the Constitution has not to be abrogated but only changes have to be made in it. The word “amendment” postulates that the old Constitution survives without loss of its identity despite the change and continues even though it has been subjected to alterations. As a result of the amendment, the old Constitution cannot be

184  Judiciary and constitutional democracy destroyed and done away with; it is retained though in the amended form. . . . Although it is permissible under the power of amendment to effect changes, however important, and to adapt the system to the requirements of the changing conditions, it is not permissible to touch the foundation or to alter the basic institutional pattern. The words “amendment of the Constitution” with all their wide sweep and amplitude cannot have the effect of destroying the basic structure or framework of the Constitution.80 There was unanimity among the seven of thirteen judges of the bench who engaged in the Kesavananda Bharati case. The minority view, articulated by a group of six jurists led by Justice AN Ray held that all parts of the Constitution were essential and distinction between essential and non-essential did not seem to be constitutional; they also endorsed the Twenty-Fourth Amendment Act and agreed to the view that the parliament was empowered to amend any part of the Constitution. The majority verdict in Kesavananda Bharati case upheld the view that there were features which constituted the core of the Constitution and could never be abrogated though there was hardly a compact list of basic features; each of the seven judges gave their own lists of essential features which, of course, are fundamental to the Constitution. By identifying the fundamental politico-ideological values and also institutions for constitutional democracy, the court prepared an exhaustive list. In the 1975 Indira Gandhi versus Raj Narain case, the court devised a principle to characterize basic structure. Justice KK Mathew argued that whether a particular feature forms part of the basic structure needed to be determined on the basis of the specific provisions of the Constitution. According to him,‘to be a basic structure it must be a terrestrial concept having its habitat within the four corners of the Constitution’. What constitutes basic structure is not like a twinkling star up above the Constitution. For instance, the Preamble enumerates great concepts embodying the ideological aspirations of the people, but these concepts are particularised and their essential features delineated in the various provisions of the Constitution. It is these specific provisions in the body of the Constitution which determine the type of democracy which the founders of that instrument established; the quality and nature of justice, political, social and economic which aimed to realise the content of liberty of thought and expression which they entrenched in that document and the scope of equality of status and of opportunity which they enshrined in it. These specific provisions enacted in the Constitution alone can determine the basic structure of the Constitution. These specific provisions, either separately or in combination, determine the content of the great concepts set out in the Preamble. It is impossible to spin out of any concrete concept of basic structure out of the gossamer concept set out in the Preamble. The specific provisions of the Constitution are the stuff which the basic structure has to be woven.81

Judiciary and constitutional democracy 185 These are very useful inputs for conceptualizing basic structure. There are two important aspects that appear to be critical in capturing the core of the doctrine. On the one hand, instead of pinpointing specific characteristics, the Court in this instance preferred to identify basic features in terms of the values that inform them – which means that in the conceptualization of basic structure, the supportive constitutional values and principles remain significant. The Court also preferred, on the other hand, to be indecisive possibly because what constitutes fundamental is also context-dependent – which denotes that the list cannot be conclusive presumably because it is needs to be revised in accordance with the prevalent socio-economic priorities. Following the Kesavananda Bharati judgment, the Congress government, led by Indira Gandhi enacted the Forty-Second Amendment Act in 1976 to dilute the basic structure doctrine. The court intervened again and reaffirmed the basic structure in the 1980 Minerva Mills versus Union of India. Striking down the authority of the parliament to repeal any of the features identified as part of the basic structure, the Court ruled that ‘parliament cannot, under Article 368, expand its amending power so as to acquire for itself the right to repeal or abrogate the Constitution or to destroy its basic and essential features’.82 Reiterating that the parliament has conditional authority of amendment, the apex court further argues, It has no inherent power of amendment of the Constitution and being an authority created by the Constitution, it cannot have such inherent power but the power of amendment is conferred upon it by the Constitution and it is a limited power which is conferred. Parliament cannot in exercise of this power amend the Constitution as to alter its basic structure or to change its identity. Now, if, by constitutional amendment, Parliament was granted unlimited power of amendment, it would cease to be an authority under the Constitution, but would become supreme over it because it would have power to alter the entire Constitution, including its basic structure an even to put an end to it by totally changing its identity. Therefore, the limited amending power of parliament is itself an essential feature of the Constitution, a part of its basic structure for if the limited power of amendment was enlarged into an unlimited power, the entire character of the Constitution would be changed.83 The Minerva Mills case reaffirms the limited authority of parliament in so far as amendment is concerned. The court defended the argument by saying that this was likely to change the fundamental identity of the Constitution. As Justice YV Chandrachud of the Supreme Court bench argued, in a rather poetic language, that the theme song of . . . Kesavananda Bharati is: amend as you may even the solemn document which the founding fathers have committed to your care, for you know best the needs of your generation. But, the Constitution is a precious heritage; therefore, you cannot destroy its identity.84

186  Judiciary and constitutional democracy What is emphasized here is the sanctity of the Constitution that can never be compromised, which means that Indian system of governance is neither exactly the Westminster form of democracy nor its US counterpart, but a creative blending of the two. The limited nature of the amendment power is now an established constitutional principle. And, the parliament has to respect the basic structure while seeking to enact an amendment to the Constitution. Hence it is argued that ‘since the power to amend the Constitution is not unlimited, if changes brought about by amendments destroy the identity of the Constitution, such amendments would be void’.85 In order to pursue the argument, Justice YK Sabharwal Singh, who wrote the judgment for the IR Coelho (dead) versus State of Tamil Nadu (2007) thus adumbrated that The existence of the power of parliament to amend the Constitution at will, with requisite voting strength, so as to make any kind of laws affecting rights, enshrined in Part III including power of judicial review under Article 32 is incompatible with the basic structure doctrine. Therefore such an exercise, if challenged, has to be tested on the touchstone of basic structure as reflected in Article 21 read with Article 14 and Article 19, Article 15 and the principles thereunder.86 Here too, the parliament is told again that it does not have the absolute power of amending the Constitution at will; it has to be respectful to the essential features of the Constitution which the Supreme Court has upheld in a series of its pronouncements. The doctrine of basic structure has now become ‘an axiom [which] is premised on the basis that invasion [by parliament] in areas, recognized as the basic structure, is not, at all, permissible [because] it is constitutionally ultra vires’.87 The Court prevailed over the parliament and the validity of the basic structure doctrine was ascertained beyond doubt. Whether it undermines representative democracy is an issue that cannot be settled so easily though there is no doubt that by privileging its role as a reliable custodian of constitutional values and principles the Court tilted the balance in its favour. Whatever may have been the consequences of the Court prevailing over the elected representatives, the fact remains that it was possible for the apex judiciary to overturn a series of executive decisions presumably because of the public trust-deficit in the political authority, which cannot be brought back so quickly.

Concluding observations In three distinctive ways, the Indian judiciary, especially the Supreme Court of India, has contributed to the consolidation of constitutional democracy in India. First, by discharging its role as ‘an adjudicative bureaucracy’, the apex court has created a space for itself in governance. With its concern for constitutional supremacy, the Supreme Court thus plays a critical role by putting the efforts towards undermining the constitutional values in check. Secondly, being custodian of the

Judiciary and constitutional democracy 187 Constitution, the apex court provides the common man with confidence that his/ her democratic rights as a citizen shall always be protected. Here the Court is hailed not because of its pre-emptive role, but also because of its constitutionally guaranteed authority to act on behalf of the demos once they are harmed by executive deeds. Thirdly, in the changed environment, with the growing democratization of political processes in India, the proactive role of the highest court (through PIL) adds another feather to its cap. It is true that excessive judicial activism may not always be welcome in a democracy, for it makes the judiciary a parallel authority without accountability to the demos, unlike the democratically elected executive. Nonetheless, it also creates a space for the judiciary to intervene in circumstances when citizens seem to have lost faith in the non-legal means of grievance redress. Furthermore, the fact that the judiciary has a constitutional obligation to address public grievances if it is approached through PIL is also complementary to its role in upholding the constitutional sanctity of the Constitution, besides, of course, ‘the inherent power’ clause which justifies its intervention in case of constitutional irregularities committed by the institutions of governance. An independent judiciary is a sine qua non in a democratic polity, drawing its sustenance from the rule of law. In other words, the Constitution remains a reference point for the judiciary to function as a watchdog of democracy. As is argued above, the Constituent Assembly members took ample care to ascertain independence of the judiciary although they were aware that independence in its absolute sense was illusive because it could hardly be immune from the contextual compulsions. What they meant by independence was that the judiciary was free from executive or legislative control; otherwise, they would be constrained to objectively test the constitutional validity of the decisions taken by the executive or legislature. This is the crux of the argument in favour of judicial independence, which was most eloquently articulated by an eminent jurist, Krishna Iyer J, in his pronouncement in the Union of India versus Sankalchand Himmatlal Sheth case of 1977. According to him, In a dynamic democracy, with goals of transformation set by the Constitution, the Judge, committed to uphold the founding faith and fighting creeds of the nation set forth, has to act heedless of executive hubris, socio-economic pressure, and die-hard obscurantism. This occupational heroism, professionally essential, demands the inviolable independence woven around the judiciary by our Constitution.88 Independence of the judiciary is guaranteed once the judges avoid being influenced. This is easier said than done because judges are also the product of specific socio-economic and political circumstances. Neither constitutional guarantee nor statutory provisions can ever be an effective means because ‘the best guarantee of judicial independence is the character of the person holding the office’ and hence judicial independence is argued to be ‘directly proportional to the value attached by the citizens of the country and the judges to that signal virtue’.89 Virtues do not fall from heaven; instead, they are nurtured in our worldly existence which

188  Judiciary and constitutional democracy confirms the importance of context in their conceptualization. In the ultimate analysis, judicial independence is thus context-specific and hence it cannot be universally formatted since situations vary from one context to another. There is one significant point that needs to be addressed to understand why the judiciary does not seem to be as effective as is expected under all circumstances. As history has shown, despite its constitutional authority, the Indian judiciary seems to have abdicated its freedom of action in the context of the 1975–77 Emergency, which confirms that in the presence of a strong and united political authority it does not seem to be as assertive as the Constitution wants it to be. The executive got a free hand and India’s Supreme Court became a subservient organ of the government, which dictated its functioning. The consequences were disastrous for constitutional democracy in India. What is however striking is the resurgence of forces supportive of constitutional values even during the consolidation of authoritarianism in the wake of the Emergency. This also confirms the deep-rootedness of constitutional democracy in India, which did not seem to lose its salience even in adverse circumstances. Not only did the judges protest when some of their colleagues in the apex court endorsed what was considered to be undemocratic pieces of legislation, they, by resigning as judges in the Supreme Court, also articulated a powerful voice which drew its sustenance from processes drawn from constitutional democracy. This was not a lone challenge against the executive effort towards undermining basic constitutional values; it was complemented by spontaneous mass protests all over the country which forced the executive to go back to the people for a fresh mandate through election. The Emergency was withdrawn and the political party that was responsible for the Emergency lost the election. The story is familiar and there is no need for repeating the familiar storyline. What is significant here is the supportive role that the judiciary played in upholding the fundamental values of constitutional democracy even at the cost of antagonizing the executive. The concern that the judges showed confirms the claim that constitutional democracy is not just a mere structure of organizing state power but also a value that appears to have created a mindset in its favour. There is also a wider context to this which we should not lose sight of, namely the critical importance of the vox populi in governance as per the 1950 Constitution of India. And, the Indian judiciary, by being sensitive to its constitutional obligation as a custodian of the Constitution, reinforces its role in the maintenance and also consolidation of constitutional democracy in India.

Notes 1 M. Ananthasayanam Ayyangar (of Madras), CAD, May 24, 1949, Book No. 3, p. 253. 2 H.V. Kamath of Central Provinces and Berar, CAD, May 23, 1949, Book No. 3, p. 222. 3 Alladi Krishnaswami Ayyar (Madras), CAD, May 23, 1949, Book No. 3, p. 223. 4 Alladi Krishnaswami Ayyar (Madras), CAD, May 23, 1949, Book No. 3, pp. 223–4. 5 Shylashri Shankar, Scaling Justice: India’s Supreme Court, Anti-Terror Laws and Social Rights, Oxford University Press, New Delhi, 2009, p. 184. 6 Pandit Thakur Das Bhargava (East Punjab), CAD, May 27, 1949, Book No. 3, p. 393. 7 Pandit Thakur Das Bhargava (East Punjab), CAD, May 27, 1949, Book No. 3, p. 393.

Judiciary and constitutional democracy 189 T.T. Krishnamachari (Madras), CAD, May 27, 1949, Book No 3, p. 389. T.T. Krishnamachari (Madras), CAD, May 27, 1949, Book No. 3, p. 389. T.T. Krishnamachari (Madras), CAD, May 27, 1949, Book No. 3, p. 389. Alladi Krishnaswami Ayyar (Madras), CAD, May 27, 1949, Book No. 3, p. 391. Alladi Krishnaswami Ayyar (Madras), CAD, May 27, 1949, Book No. 3, p. 391. Alladi Krishnaswami Ayyar (Madras), CAD, May 27, 1949, Book No. 3, p. 639. Alladi Krishnaswami Ayyar (Madras), CAD, May 27, 1949, Book No. 3, p. 639. B.R. Ambedkar, CAD, May 27, 1949, Book No. 3, p. 391. The argument is drawn on Upendra Baxi, ‘Law, Politics and Constitutional Hegemony: The Supreme Court, jurisprudence and demosprudence’, in Sujit Choudhury, Madhav Khosla and Pratap Bhanu Mehta (eds.), The Oxford Handbook of the Indian Constitution, Oxford University Press, New Delhi, 2016, pp. 96–101. 17 J.S. Verma’s lecture of 2007 – cited in Shylashri Shankar, Scaling Justice: India’s Supreme Court, Anti-Terror Laws, and Social Rights, Oxford University Press, New Delhi, 2009, p. 42. 18 Article 32 (2) of the Constitution of India. 19 Prakash Chand, Environmental Protection and People’s Rights: A Study of the Judicial Decisions Relocating Polluting Industries in Delhi, Unpublished Ph.D. dissertation, University of Delhi, 2005, p. 76. 20 Chandra Pal, Environmental Protection and Development: Environmental Law, Policy and Role of Judiciary, Mittal Publications, New Delhi, 1999, p. 226. 21 S.P. Sathe, Judicial Activism in India, Oxford University Press, New Delhi, 2001, p. 204. 22 Dipankar Gupta, ‘Hanging in the balance’, Hindustan Times, June 15, 2007. 23 Deepak Nayyar, ‘Discrimination and justice: Beyond affirmative action’, Economic and Political Weekly, October 15, 2011, p. 55. 24 Mark Galanter, Competing Equalities: Law and the Backward Classes in India, Oxford University Press, New Delhi, 1974. 25 Anupama Rao, ‘Arguing against inclusion’, Economic and Political Weekly, February 22, 1997, pp. 428. 26 C.A. Bayly, Recovering Liberties: Indian Thought in the Age of Liberalism and Empire, Cambridge University Press, Cambridge, 2012, p. 305. 27 Rochana Bajpai, ‘Liberalism in India: A sketch’, in Ben Jackson and Mark Stears (eds.), Liberalism as Ideology: Essays in Honour of Michael Freeden, Oxford University Press, New York, p. 75. 28 Rochana Bajpai, ‘Rhetoric as argument: Social justice and affirmative action in India, 1990’, Modern Asian Studies, Vol. 44, No. 4, 2010, pp. 676–7. 29 One of the reasons which prevented the successive union governments from formally adopting the reservation scheme for the OBCs was connected with the 1985 Gujarat riot that demonstrated the impossibility of ignoring the opposition and resentments of the upper and middle castes, who remain powerful and numerous, in implementing an expanded reservations policy. Paul R. Brass, The Politics of India Since Independence, Cambridge University Press, Cambridge, 1990, pp. 215–22. 30 For a descriptive account of the nature and recommendation of the Mandal Commission, see Dharma Kumar, ‘The affirmative action debate in India’, Asian Survey, Vol. 32, No. 3, March 1992, pp. 290–302. 31 Nitya Rao, ‘Social justice and empowerment of the weaker sections and gender rights’, in Katharine Adeney and Lawrence Saez (eds.), Coalition Politics and Hindu Nationalism, Routledge, London, 2005, p. 119. 32 Niraja Jayal Gopal, Representing India: Ethnic Divers and the Governance of Public Institution, Palgrave Macmillan, London, 2006, p. 191. 33 Sunanda K. Dutta Ray, ‘Darkness at noon: Implications of student riots’, The Statesman, Calcutta, September 30, 1990.

8 9 10 11 12 13 14 15 16

190  Judiciary and constitutional democracy 34 Rosalind O’Hanlon, Caste, Conflict and Ideology: Mahatma Jotirao Phule and Low Caste Protest in Nineteenth Century Western India, Cambridge University Press, Cambridge, 1985. 35 Andre Beteille, ‘Caste and politics: Subversion of public institutions’, The Times of India, Lucknow, September 12, 1990. 36 Karpoori Thakur formula is as follows: Statutory reservation to the Scheduled Caste and Scheduled Tribe: Notification Nos.: 755, 756, 757 of November 10, 1979, Government of Bihar: 12% reservation for the extremely backward class, 8% reservation for the backward, 3% reservation for the women of all castes, 3% reservation for the extremely backward upper castes. 37 V.N. Srinivas, ‘The Mandal formula: Backwardness – caste vs. individuals’, The Times of India, Lucknow, September 18, 1990. 38 Mihir Desai, ‘The need for reservation: A reply to Shourie and others’, Lokayan Bulletin, New Delhi, Vol. 8, No. 4, July–October 1990, p. 54. 39 Chandan Mitra, ‘Moulded in caste: Electoral patterns in north India since Nehru’, in Bidyut Chakrabarty (ed.), Whither India’s Democracy, KP Bagchi & Co, Calcutta. 40 Francine R. Frankel, India’s Political Economy, 1947–77:The Gradual Revolution, Princeton University Press, Princeton, 1978; Pranab Bardhan, The Political Economy of Development in India, Oxford University Press, Oxford, 1984; Atul Kohli, The State and Poverty in India: Decline of a Social Order, Vols. I and II,Oxford University Press, New Delhi, 1990. 41 Ashok Guha, ‘Reservation in myth and reality’, Economic and Political Weekly, December 15, 1990, p. 2716. 42 M.N. Srinivas, ‘End of an egalitarian dream’, The Sunday Observer, New Delhi, August 12, 1990. 43 Chandra Bhan Prasad, ‘Mandal’s true inheritors: Reservations should go to MBCs (most backward castes), not OBCs (Other Backward Classes)’, The Times of India, April 12, 2006. Prasad defends his argument with reference to the LR Naik’s note of dissent on the main recommendations of the Mandal Commission. According to Naik, as Prasad argues, OBCs were made of two large social blocks – landowning OBCs who he described as intermediate backward classes and artisan OBCs who he described as depressed backward classes. Intermediate backward classes or upper OBCs (Yadavs, Kurmis, Jats among others) who have now turned into landowning castes are relatively powerful while the depressed backward classes or most backward classes (MBCs) remain economically marginalized. Naik thus suggested preferential treatment for the MBCs within the OBCs in order to safeguard interests of the MBCs; otherwise, the upper OBCs would monopolize Mandal jobs. 44 C.P. Bhambri, ‘The politics of caste alliance: Alignments on a caste basis have sharpened and legitimized the rich-poor divide’, The Telegraph, May 23, 1991. 45 Manoranjan Mohanty, ‘The relevance of reservation’, Lokayan Bulletin, New Delhi, Vol. 8, No. 4/5, July–October 1990, p. 143; Upendra Baxi, ‘Justice: Journey of the backward classes’, in ibid, pp. 117–126. 46 Ramchandra Guha, India After Gandhi: The History of the World’s Largest Democracy, Picador, London, 2007, p. 611. 47 Drawn on The Times of India, April 10, 2006. 48 Yogendra Yadav and Satish Deshpande, ‘Wrong route, right direction: Reservation policy needs to be fine-tuned’, The Times of India, May 31, 2006. 49 VP Singh’s press interview, The Hindu, June 14, 2006. 50 Christophe Jaffrelot, India’s Silent Revolution: The Rise of the Low Castes in North Indian Politics, Permanent Black, New Delhi, 2006, p. 493. 51 Bhagwan Das, ‘Moments in a history of reservations’, Economic and Political Weekly, Vol. 35, No. 43 & 44, October 28, 2000, pp. 3891–3834. Especially in view of the Supreme Court judgment in the Indira Sawhney case, the government is under pressure

Judiciary and constitutional democracy 191 ‘to enact a law so that the judiciary may not decide against the and disadvantaged sections of society’. 52 Neera Chandhoke, ‘Three myths about reservations’, Economic and Political Weekly, Vol. XLI, No. 3, June 10, 2006, p. 2289. 53 Zoya Hasan, ‘Countering social discrimination’, The Hindu, June 2, 2006. 54 Christophe Jaffrelot, India’s Silent Revolution: The Rise of the Low Castes in North Indian Politics, Permanent Black, New Delhi, 2003, p. 494. 55 While identifying the aims of the Oversight Committee, M. Veerappa Moily, the chairman, underlines that ‘the idea is to have expansion, inclusion and excellence. And, to utilize this opportunity to build a knowledge society. We are trying to build an inclusive society; the idea is not to exclude anybody but include everybody. M. Veerappa Moily’s press interview, The Hindu, June 18, 2006. 56 Harish Khare, ‘Lessons from the new intolerance’, The Hindu, April 12, 2006. 57 Javeed Alam pursues this argument at a greater length in his Who Wants Democracy? Orient Longmand, New Delhi, 2006, pp. 9–11. 58 Rochana Bajpai, ‘Redefining equality: Social justice in the Mandal debate, 1990’, in V. Rajendra Mehta and Thomas Pantham (eds.), Political Ideas in Modern India, Sage, New Delhi, 2006, p. 335. 59 Neera Chandhoke, ‘Three myths about reservations’, Economic and Political Weekly, Vol. XLI, No. 23, June 10, 2006, p. 2290. 60 Bhikhu Parekh, ‘Limits of the Indian political imagination’, in V. Rajendra Mehta and Thomas Pantham (eds.), Political Ideas in Modern India, Sage, New Delhi, 2006, p. 443 61 Vir Sanghvi, ‘The debate over reservation’, Hindustan Times, April 30, 2006. 62 Bhikhu Parekh, ‘Limits of the Indian political imagination’, in V. RajendraMehta and Thomas Pantham (eds.), Political Ideas in Modern India, Sage, New Delhi, 2006, p. 442. Bhikhu Parekh elaborates the argument further by saying that ‘the middle classes support it because of residual sense of historical guilt and because it spares them the likely disorder and the heavier taxation entailed by redistributive programme. The reservation policy helps the better off among the scheduled castes, the scheduled tribes and the OBCs, who have an obvious interest in defending it. And as for the rest of the members of these communities, they support it because of its trickle-down effect, because it is the only thing they think they are ever likely to get, and because it reassures them that they matter to the otherwise indifferent Indian state. Although resented in some circles, the reservations policy therefore continues to enjoy a broad-based support’. 63 Pratap Bhanu Mehta, The Burden of Democracy, Penguin, 2003, p. 163. 64 The gist of the Ramjanmabhumi judgment was quoted in the 1995 Hindutva judgment, p. 12, http://JUDIS.NIC.IN, accessed on November 8, 2016. 65 The gist of the 1975 Supreme Court judgment was quoted in the 1995 Hindutva judgment, p. 14, http://JUDIS.NIC.IN, accessed on November 8, 2016. 66 Ronojoy Sen makes this point in his ‘Defining religion: The Indian Supreme Court and Hinduism, Heidelberg Paper in South Asian and Comparative Politics’, Working Paper No. 29, November 2006, p. 22. 67 http://JUDIS/NIC.IN, Dr. Ramesh Yashwant Prabhoo versus Shri Prabhakar Kahsinath Kunte and Others, 1995, p. 27, accessed on November 8, 2016. 68 http://JUDIS/NIC.IN, Dr. Ramesh Yashwant Prabhoo versus Shri Prabhakar Kahsinath Kunte and Others, 1995, p. 27, accessed on November 8, 2016. 69 http://JUDIS/NIC.IN, Dr. Ramesh Yashwant Prabhoo versus Shri Prabhakar Kahsinath Kunte and Others, 1995, p. 27, accessed on November 8, 2016. 70 Sanghamitra Padhy, ‘Secularism and justice: A review of Indian Supreme Court judgments’, Economic and Political Weekly, November 2004. 71 This is drawn on the report of The Times of India, New Delhi, October 28, 2016.

192  Judiciary and constitutional democracy 72 This is drawn on the report of The Times of India, New Delhi, October 28, 2016. 73 https://indiankanoon.org/doc/1308308/, Sajjan Singh versus the state of Rajasthan, 1964, accessed on December 18, 2016. 74 https://indiankanoon.org/doc/1308308/, Sajjan Singh versus the state of Rajasthan, 1964, accessed on December 18, 2016. 75 https://Indiakanoon.org/doc/129358/, IC Golaknath versus the State of Punjab, 1967, accessed on December 18, 2016. 76 https://Indiakanoon.org/doc/129358/, IC Golaknath versus the State of Punjab, 1967, accessed on December 18, 2016. 77 https://Indiakanoon.org/doc/25786, Kesavananda Bharati versus the state of Kerala, 1973, accessed on December 18, 2016. 78 https://Indiakanoon.org/doc/25786, Kesavananda Bharati versus the state of Kerala, 1973, accessed on December 18, 2016. 79 https://Indiakanoon.org/doc/25786, Kesavananda Bharati versus the state of Kerala, 1973, accessed on December 18, 2016. 80 https://Indiakanoon.org/doc/25786, Kesavananda Bharati versus the state of Kerala, 1973, accessed on December 18, 2016. 81 https://indiankanoon.org/doc/1569395/, Indira Gandhi versus Raj Narain, 1975, accessed on December 18, 2016. 82 https://Indiakanoon.org/doc/1939993, Minerva Mills Limited and others versus the Union of India, 1980, accessed on December 18, 2016. 83 https://Indiakanoon.org/doc/1939993, Minerva Mills Limited and others versus the Union of India, 1980, accessed on December 18, 2016. 84 https://Indiakanoon.org/doc/1939993, Minerva Mills Limited and others versus the Union of India, 1980, accessed on December 18, 2016. 85 https://indiankanoon.org/doc/322504/, IR Coelho (dead) versus the State of Tamil Nadu (2007), accessed on December 18, 2016. 86 https://indiankanoon.org/doc/322504/, IR Coelho (dead) versus the State of Tamil Nadu (2007), accessed on December 18, 2016. 87 https://indiankanoon.org/doc/322504/, IR Coelho (dead) versus the State of Tamil Nadu (2007), accessed on December 18, 2016. 88 Cited in B.N. Srikrishna, ‘Judicial independence’, in Sujit Choudhury, Madhav Khosla and Pratap Bhanu Mehta (eds.), The Oxford Handbook of the Indian Constitution, Oxford University Press, New Delhi, 2016, p. 349. 89 B.N. Srikrishna, ‘Judicial independence’, in Sujit Choudhury, Madhav Khosla and Pratap Bhanu Mehta (eds.), The Oxford Handbook of the Indian Constitution, Oxford University Press, New Delhi, 2016, p. 366.

Conclusion

The rise and consolidation of constitutional democracy in India is symptomatic of, on the one hand, ‘a hegemonic discourse’ in an accommodative design and hence, on the other hand, ‘a flexible conceptualizing mould’. Implicit here is the explanation as to why it has flourished in India despite the cautionary notes by major liberal thinkers that it had no future in a socio-culturally diverse society like India. Contrary to their perception, not only has constitutional democracy flourished in India, it has become integral to India’s identity in the comity of nations. Besides being the largest constitutional democracy in the world, India provides an ideal laboratory for experimentation with ideas which do not seem to have found favour from among the classical liberals. So, India’s constitutional democracy is a theoretically innovative and conceptually challenging design that allows us to comprehend its character in a non-Western context. Constitutional democracy in India is a journey that began with the introduction of a modicum of liberal democratic governance in the wake of colonial rule. Despite being severely exploitative, the British paramountcy unfolded a system of governance which drew on, at least conceptually, the philosophy of Enlightenment. Initially, it was the British intellectuals associated with the India office who transmitted the fundamental values of Western liberalism that became the staple for their Indian counterparts, who seem to have enthusiastically upheld them while charting out ‘a nationalist’ course of action against political subjugation. There were however contrasting ideational values that also influenced Indian nationalism though the dominant ideological course happened to be Western liberalism. Hence it was not surprising, as shown in chapter 1, that the Indian liberals did not, at the outset, insist on complete independence; they preferred dominion status which Australia and Canada enjoyed for India under the British suzerainty. The scene however had undergone a sea-change as days passed on. By formally demanding complete independence in 1929, the nationalists set in motion a different kind of struggle against the British, which was also accompanied by their urge for constitutionalizing India in accordance with the fundamental ethos of Western liberalism. The idea that the constitution remained supreme in governance seems to have been upheld by the nationalists during the combat against the alien ruler. Two important arguments gained salience which also acted critically in shaping the processes leading to the making of the 1950 Constitution by the members

194  Conclusion of the Constituent Assembly in a little less than three years during the period between 1946 and 1949: First, for a diverse society like India, there had to be an acceptable constitution; otherwise, there was a threat to her continuity as a compact nation state. Implicit here was the belief (that evolved because of the peculiar historical context of British colonialism) that liberalism required constitutional governance to strike organic roots in India, which was not exactly fit to be liberal, as the classical liberals had warned. A concomitant of the first argument, the second argument, drawing on the nationalists’ urge for democracy, was articulated to further justify constitutional democracy as perhaps the most appropriate form of governance in India. Here, the historical experiences of the nationalists of being governed by seemingly a liberal state during the long colonial rule seem to have shaped their preferences. For them, colonialism was certainly despicable; but the system of governance that had roots in the values of Enlightenment philosophy was hardly a source of irritation. As history has shown, there appeared to have emerged a unanimity among the nationalists which was evident in their efforts towards conceptualizing constitutional governance for India in a liberal mode. It does not therefore seem odd when one finds uncanny similarities between the 1928 Motilal Nehru Constitution or 1945 Sapru Constitution and the British constitutional designs, particularly since the adoption of the 1909 Morley-Minto constitutional scheme. It is true, in other words, that the nationalists added nationalist flavour to what they proposed as alternative constitutional proposals; nonetheless, the basic ideological thrust happens to be Western liberalism and the structure that they proposed was hardly different from the ones that had already evolved in India at the aegis of British colonialism. The preceding discussions suggest that constitutional democracy in India seems to have gained momentum during the nationalist struggle due to the facts that (a) the alternatives that were available then did not appear to have caught the nationalist imagination for variety of complex reasons and (b) it was conceived of as perhaps the best system to successfully combat the social evils and also to ensure India’s rise as a liberal polity. Furthermore, one also should not forget that those who politically challenged the dominant liberal discourse seem to have tempered their opposition presumably because of their concern for political freedom, which was always privileged by the participants of the nationalist campaign irrespective of ideological affiliations except the Communists and BR Ambedkar.Communists did not support the nationalist attack on the British during the 1942 Open Rebellion since it was, for them, a people’s war against Nazism and Great Britain, a participant in the battle against the Nazis deserved to be supported; for Ambedkar, the nationalist campaign for political freedom from the British rule was directed to the establishment of the upper caste hegemony and hence was antithetical to his life-long struggle for social equity regardless of one’s caste identity which an individual acquired because of accident of birth. Nonetheless, the story of the unfolding of constitutional democracy in India confirms how a fiercely fought ideational battle for liberalism since the arrival of the British in the late eighteenth century shaped socio-economic and political processes which ultimately crystallized into a dominant discourse in pre-and post-independent India. There were,

Conclusion 195 of course, multiple models in which the nationalist ideas were articulated; for instance, the Gandhian insistence on village swaraj as the basic unit of governance was vehemently opposed by BR Ambedkar, who preferred not to submerge individual identity in the collectivity, a typical liberal predisposition. Nonetheless, there always remained an ideological compatibility between them because they drew on the fundamental liberal precepts of neutrality, toleration, religious freedom and the separation of politics and religion in devising their models of constitutional democracy. Is the constitutional democracy that the founding fathers adopted after almost three years of deliberations in the Constituent Assembly imitative in character? The answer is partly yes and partly no: yes, because a mere surface reading of the politico-constitutional structure of governance that flourished in independent India confirms that it was borrowed system; an in-depth analysis of the processes leading to the conceptualization and also founding of constitutional democracy however reveals otherwise since it was neither exactly derivative of the Western sources nor purely indigenous, but a creative blending of the two. It is true that, by being drawn to Western liberalism, the Indian nationalists found an ideological alternative which, to them, was empowering in contrast with what they confronted in India. Their distaste for archaic feudal values led Rammohun Roy and Bankim Chandra Chatterjee, for instance, to imbibe those ideas drawn from the philosophy of Enlightenment, which gradually contributed to the articulation of a powerful voice against the British rule. Of course, there were indigenous sources of inspiration to the nationalists which also need to be taken into account to persuasively explain the rise and consolidation of constitutional democracy in India as an organic system. The process was thus not at all monochromatic but multidimensional in character since it was as much an imitative endeavour as it was creative.

II Constitutional democracy creates a legitimate space for contending politicoideological forces jostling to prove their relevance whenever there is political competition in the form of elections which are held regularly. Elections are an important aspect of constitutional democracy which not only establish the importance of the vox populi in choosing rulers by exercising their choice at regular intervals but also provide a constitution-driven mechanism for change, if necessary, in governance. The electoral battle is fought by the contenders on the basis of their distinctive politico-ideological appeals to the demos. As India’s political history has shown, the electorates do not seem to be mute observers, but become proactive participants when it is required. The 2014 national poll is illustrative here: the BJP, which remained at the margins for being ‘right wing’, trounced the opposition, again also proving that democracy in India is not just a windowdressing, but organic to the demos. This is one side of the story; the other side narrates the drubbing of the left political parties which were nearly non-invincible in West Bengal and Kerala, which remained the left citadels in the recent past. The ignominious defeat of the left is attributed to the disenchantment of local

196  Conclusion voters with the left in these two Indian provinces where the parliamentary communists ruled for an extended period of time. In West Bengal, the left seems to have become irrelevant as it has succeeded in winning only two of a total of fortytwo Lok Sabha seats in comparison with its tally of sixteen seats in the last Lok Sabha; by winning eight of a total of twenty seats in Kerala, the parliamentary left has not only enhanced its share of the Lok Sabha seats from four in 2009, but also sustained its vote share in midst of a national wave for the BJP. As is evident, except in Tripura where the parliamentary left retained their earlier tally of two Lok Sabha seats, their counterparts in West Bengal and Kerala have failed to sustain their base. This is not a temporary set-back because what was visible in the 2014 Lok Sabha poll seemed to have begun earlier: the decline was manifested in 2009 Lok Sabha poll and 2011 state assembly election in West Bengal and the 2009 Lok Sabha poll and 2013 state assembly election in Kerala. The left, which was considered invincible in the past because of the backing of a cadre-based organization, collapsed like a house of cards as soon as there had emerged organized opposition in these constituent states of India. It was possible for the parliamentary communists in Tripura, which suffered less due to internecine factional feuds unlike their counterparts elsewhere, to maintain its hegemony over other contenders in the 2014 national poll largely because of a leadership which is organically linked with the grassroots despite being in power for more than a decade. Like their parliamentary counterparts, the left-wing extremists seem to have lost their grip over the people in those areas which were, so far, considered their strongholds. Despite their call for a boycott of the parliamentary poll in Chhattisgarh, Maharashtra and Jharkhand, voters zealously participated in the poll, as evidence shows. The reports from Bastar (in Chhattisgarh), Gadchiroli (in Maharashtra), Palamu (in Jharkhand) and Malkangiri (in Orissa) confirm that the boycott call did not appear to have deterred the voters from exercising their democratic rights: in some villages, the voter turnout was as high as 60%. This also shows that India’s democracy, despite being criticized as a mere window-dressing in the hierarchical social context, is definitely an empowering instrument for the masses notwithstanding their frustration with the prevalent socio-economic and political circumstances. The parliamentary left has become rendered virtually irrelevant in the election to the sixteenth Lok Sabha, winning only nine seats in comparison with its tally of twenty-four in the last Lok Sabha. The total vote share of the constituents of the parliamentary left (CPI (M), CPI, RSP, Forward Bloc) has been drastically reduced from 7% in the 2009 parliamentary poll to a mere 4.5% in the 2014 election. The leading partner of the left, CPI (M), suffered most: its national vote share declined from 5.3% in 2009 to 3.2% in the 2014 poll.1 The immediate outcome of the poor showing of the left resulted in CPI (M) losing its status as a national party, which left only the Congress and the ruling BJP as national parties.2 The left stands decimated and CPI (M), its mainstream face, recorded its worst electoral performance since its formation in 1964. In West Bengal, the state it ruled for more than three decades, it failed to increase its tally in 2014 beyond

Conclusion 197 two seats – the same number of seats that its counterpart in Tripura had won. The gradual decline of the parliamentary left, as it has happened elsewhere around the globe, confirms that ‘the spectre of its political irrelevance is staring at in India as well’.3 The poor result is the outcome of a combination of factors, including the failure of the leadership to address the genuine socio-economic grievances of the people at the grassroots; there are indications that its so-called committed cadres have not only been disenchanted with the leadership, they are also reported to have worked for the All India Trinamul Congress (AITC) candidates, exposing perhaps the failure of the party leadership to build a solid cadre-driven organization in the state. The left is thus not only faced with an existential crisis, but is pitted against a new political rival in the state, namely the BJP, that has the potential to occupy the main opposition space because as against the CPI (M)’s vote share of 22.3%, the BJP has 17% of the total popular votes. The scene in Kerala is not very different: like its Bengal counterpart, it is worse-hit by the indifference of the cadres, who do not seem to be as enthusiastic as in the past. The impact was visible: despite having won five Lok Sabha seats, the 2014 national poll also is also a break with the past because the well-established political trend of alternating between the CPI (M)-led Left Democratic Front and the Congress-centric United Democratic Front was broken this time. The Congress-led front has walked away with lion’s share of seats, which is explained by reference to ‘the minority consolidation in favour of the Congress in the face of the Modi factor’.4 In view of the open and tacit internecine factional feuds among the leaders in Kerala and West Bengal, the party failed to address the rising resentments among the workers. Due to the constant tussle between the two top leaders of the CPI (M), Pinarayi Vijayan and VS Achuthanandan, in Kerala the organization could never put up a strong showing against the opposition. Similarly, the continuity of the Stalinistic leadership cost the party heavily in West Bengal. The leadership is ‘captured by a Kolkata-centric clique’ which is incapable of understanding ‘the pulse of the people at the grassroots’.5 So, the rivalry at the top and the disconnect between the cadres and the central leadership was responsible for the declining importance of the parliamentary left in those states of India which remained the left bastion not so long ago. The parliamentary left seems to have lost its momentum. One of the major factors is certainly the appreciation of the Stalinistic version of Marxism even in the light of unforeseeable socio-economic changes in the domestic and global contexts. In view of the democratic upsurges across classes, it is now conceivable that the iron-fist rule that Napoleon exerted in George Orwell’s Animal Farm shall no longer be effective. The erstwhile supporters not only got frustrated with the indifferent leadership, but were also terribly annoyed with ‘the strong-arm tactic of the left’6 which was indiscriminately utilized to quell the opposition voices within the party. The left leadership seems to have failed to read the writing on the wall in a correct perspective out of its arrogance or perhaps ignorance which was visible in its failure to sustain its support base even in areas which historically remained their strongholds. So, the parliamentary left is the victim of the high-handedness of the leadership that hardly endeavoured to undertake any exercise beyond what was

198  Conclusion considered appropriate in the conventional understanding of Marxism. Locked into the textbook understanding of Marxism, the present leaders belong ‘to the genre of the past [and are] unable to understand the new language of politics and justice’.7 This is a serious symptom that needs to be addressed conclusively to stop the avalanche before it ruins the fulcrum of the parliamentary left in India. The near decimation of the parliamentary left also shows how mature the Indian voters are: not only have they exercised their franchise judiciously for a conclusive verdict, they have also endorsed their complete faith in democracy, which is not merely a structure of governance but also a mechanism of change. Even the left-wing extremists seem to have recognized the importance of participation in democratic elections. As reports from the Maoism-affected districts in Maharashtra, Chhattisgarh and Andhra Pradesh show, the Maoists are reported to have asked the villagers not to support any candidate by pressing the NOTA (none of the above) button in the electronic voting machine. Given the wide use of NOTA in these districts, there are reasons to believe that the Maoists might have prompted the voters to go for this option. As per the figures, given by the Election Commission of India, 24,488 voters exercised NOTA in Gadchiroli, the highest figure among forty-eight Lok Sabha constituencies in Maharashtra; Bastar in Chhattisgarh saw NOTA being used by 38,772 voters. In the Adilabad district of Andhra Pradesh, the number stood at 17,084. In proportional terms, the number of NOTA may not be very significant; but given the fact that the large chunk of NOTA data comes from those polling booths in those villages which belong to the so-called liberated Maoist zones where the Indian state is clearly peripheral, this is illustrative of an endeavor to utilize conventional democratic means to articulate a voice. For the villagers, NOTA is an empowering device to register their protests against those candidates ‘who had not done justice to them or even visited their hamlets ever’.8 It is true that the number of NOTA votes had hardly had any impact on the outcome of the poll in the first-past-the-post system of polling; nonetheless, this was also indicative of a voice of frustration that was expressed through a well-established mechanism of liberal democracy which the Maoists loathe and are determined to destroy.

III Examples can be multiplied to substantiate the point that constitutional democracy is organic to India as a polity. Challenging the conventional wisdom on democracy, as articulated by SM Lipset in his Political man: the social bases of politics or JS Mill in his Considerations on Representative Government, the Indian chapter of constitutional democracy has proved beyond doubt that neither Lipset’s notion of a nation’s financial health9 nor Mill’s concern for social homogeneity10 is enough to consolidate democracy. So, in the ultimate analysis, the distinctive Indian experience confirms that there cannot be a well-defined path which constitutional democracy follows regardless of the socio-economic and political context in which it evolves. The classical conceptualization of constitutional democracy, rooted exclusively in the Western milieu, thus seems to be inadequate

Conclusion 199 in comprehending its nature and texture in completely different circumstances. This also adds to the argument that the efforts towards evolving the so-called universal conceptual/theoretical models do not seem to lead us anywhere except championing a drive to emphasize myopic ethnocentric prejudices while seeking to grasp processes drawn from the lived experiences of the people at a historical time and context. As an idea, constitutional democracy entails a system in which the demos, guided by well-defined constitutional rules and regulations, reigns supreme. In the Afro-Asian context, there is no denying that the idea in its favour was transported from the West and it gradually developed organic roots in areas which did not seem to be exactly in its favour. It was an interesting evolution, no doubt, which culminated in the creation of a supportive mindset in the colonies. As illustration from the Indian experience shows, the colonial drive towards creating an ideological foundation yielded positive results presumably because the indigenous intellectual or opinion makers were not only attracted to but also internalized the values, norms and principles of Enlightenment since they would equip the colonized to battle against the archaic social norms; the battle was also against those political forces for being supportive of the age-old system. In the process, there emerged a powerful voice defending the ‘progressive’ values largely because it was strongly felt that they were a harbinger for India’s new dawn. There is a point however when scholars refer to India’s ancient past when constitutional democracy flourished in India; commonly cited examples are Buddhist councils which in the third century BC in Patna (then called Patliputra) codified rules and regulations for public discourse. There was an example of the Japanese Buddhist prince Shotoku of the seventh century AD, who produced the so-called constitution of seventeen articles, almost 600 years before the articulation of Magna Carta in 1215.11 So, there is a persuasive argument in the statement that constitutional democracy had its ancient roots as well. Nonetheless, one can hold on to the conceptual point that in the articulation of constitutional democracy that flourished in the post-Westphalia era of history and also in the context of the rising importance of the nation state and representative democracy, the classical liberals’ interventions seem to have captured the ideological inspirations in the changed socioeconomic environment. Despite the risk of repeating, it can be stated now that the constitutional democracy that finally emerged in India both during colonialism and its aftermath evolved in a distinct way which was conceptually different from its classical exposition. Reasons are not difficult to seek: notwithstanding its Western roots, constitutional democracy in India followed a completely different trajectory showing how it was privileged over other systems of governance presumably because of the appeal that it had among those who mattered among the nationalists.

III Constitutional democracy in India was preferred by the colonizers since it constituted an integral part of their so-called ‘civilizing mission’ in India. As argued

200  Conclusion in chapter 1, one of the objectives of the British rulers, at least at the dawn of colonialism in India, was to purge India of superstition and those age-old retrogressive systems of public discourse. It was articulated most revealingly by one of the prominent Evangelicals, William Wilberforce, who argued that for Indians to become socially progressive, they needed to give up ‘the dark and bloody superstitions’ for realizing those progressive values which were pertinent to the creation of ‘a new and enlightened world’.12 The ideas that accompanied the civilization mission received approbation by the leading Indias, including Rammohan Roy and Bankim Chatterjee since they provided them with a language to challenge the well-entrenched archaic socio-economic and political values. However, the mission had its pitfalls, which became apparent as soon as it became a part of the public domain. The rulers were caught in a serious dilemma because there were groups in Britain and India which were completely swayed by the mission and there were also powerful voices which ran counter to the appreciation. The typical colonialists James Mill and his son JS Mill were convinced that in order to pursue the civilizing mission of the Empire, the British rulers needed to be stern and tough; otherwise, the mission had very little prospect in India, which means that for acculturation to be effective, the rulers were justified in being coercive if necessary. The counter-point was articulated by Edmund Burke, for instance, who, being fascinated by India’s jurisprudence, both in the ancient and also medieval periods, wanted the decision-makers to be respectful to the Indians given their rich traditions which were even older than that of those seeking to civilize the ‘natives’. These examples show that the claim also had its detractors; nonetheless, it was one of those persuasive ideological claims that made colonialism seem legitimate. The civilizing mission was a racist conceptualization of ascertaining a hierarchy of status between the colonizers and the colonized; it was an effort promoting the idea of difference between them on the basis of the so-called cultural superiority of the former in contrast with the latter. It was also a legitimizing device since the natives now had an opportunity to learn those ideas which helped develop ‘a progressive’ West and also to create a system of governance to realize them in India. The consequences of the mission were both positive and negative at the same time: at one level, colonialism received nourishment from this mission since it was directed at spreading the progressive values of the philosophy of Enlightenment, and hence the colonizing design was perfect; at another level, the ideas of progress, social enlightenment and political empowerment that the mission championed also created a legitimate space for articulating voices of resentment among the ruled against the rulers’ attempts at muzzling them. Hence it has been persuasively argued that ‘the dangers with the civilizing mission became apparent when educated Indians saw themselves as equals and demanded emancipation thereby challenging the basis of colonial rule and its foundation of self-legitimation’.13 This was a significant input for the indigenous critiques of colonialism to strike roots. It was therefore not surprising when Dadabhai Naoroji, in his book, Poverty and Un-British Rule in India, deployed a powerful critique of British colonialism in India as being ‘un-British’ since it deviated from the core values of

Conclusion 201 Enlightenment philosophy. Gandhi too followed Naoroji’s footsteps while sharpening his counter-attack on colonial governance by drawing upon the accusations that the British rulers were not true to their liberal ideological dispensations. It was also possible for BR Ambedkar to effectively pursue his arguments for social justice despite the fierce opposition of the dominant sections among the nationalists given the championing of liberal values by the British rulers which gradually caught the imaginations of those questioning caste-driven hierarchy of status and privileges.

III As shown in the book, constitutional democracy in the British liberal mould swayed the founding fathers. Hence, the discussion that followed in the Assembly hovered around the core ideas of the Enlightenment philosophy which appeared to have decisively influenced their thinking. It was thus not surprising that the trinity of the French Revolution, liberty, equality and fraternity, remained a significant reference point for the framers while they justified their specific ideological preferences. Apart from drawing on these fundamental features of constitutional democracy, the founders upheld their commitment to liberalism by creating an atmosphere in the Assembly in which contrasting viewpoints were also allowed to be tabled. The Constituent Assembly thus really became a forum of deliberations where the members spoke freely and fearlessly. A cursory look at the processes that influenced constitutionalism in India reveals that there are three critical areas – liberal constitutionalism, social justice and group rights and representation – in which a serous ideational battle took place involving those who were responsible for charting out a specific course for India’s constitutionalism to follow. While by accepting liberal constitutionalism, the framers of the Constitution strove to institutionally protect individual liberty, their desire to uphold social justice and group rights and representation emphasizes their concern for fraternity. This was a challenging task which they sought to accomplish by privileging procedural due processes. As they strongly believed once the rule of law was established in its true form and substance, which the 1950 Constitution was expected to do, there would emerge a constitutional environment in which individuals individually and also as part of a fraternity would truly become sovereign.14 What is unique about the efforts that the framers had undertaken in perhaps the most tumultuous phase of India’s rise as an independent polity was their capacity, and also ability, to build a constitution which was simultaneously rigid in terms of the core values and flexible so as to accommodate newer ideas and conceptual formulations. It did not thus appear odd when reservation for the Other Backward Classes was constitutionalized following the acceptance of the Mandal Commission Report in 1990 since it was justified as pertinent to the protection of group rights. Although the redistribution of benefits by a deliberate constitutional intervention may not be adequate to bring about substantial equality, it was, nonetheless, a definite step towards correcting the historical wrongs. And hence it was hailed as one of the most significant measures

202  Conclusion that the policy designers had adopted in independent India for the establishment of a truly democratic state. There is however a contrasting perspective which the Indian judiciary has upheld by suggesting that reservation, however justified in a specific historical context, stands in contradiction with the effort towards building an inclusive society. Because the legislative decrees implemented by the executive clearly segregate one section of society from another, they cannot be instruments for substantive equality. So, the reservation policies, despite being politically correct, remain a source of irritation since they create and consolidate an artificial division seemingly to create a level playing field for all. Nonetheless, what is most significant is to note that one of the most immediate consequences of the 1990 constitutional design for segregating benefits was the recognition of those belonging to the Other Backward Classes as significant actors in the political landscape, which was hitherto missing. So, the reservation is not just a scheme of redistribution of public jobs and benefits, but also a well-crafted design to contribute to the rise of self-aggrandizing individuals regardless of the accident of birth. Here perhaps lies the most significant achievement of India’s constitutional democracy, which, along with the establishment of a structure of governance, has also created concomitant processes in which the former is being regularly reinvented. It is thus a structure that stands out since it is both accommodative and also rigid when the core values of India’s constitutional democracy are threatened.

Notes 1 The total vote share of CPI is 1.4% while RSP obtained 0.3% and Forward Bloc got 0.2% only. The Indian Express, May 17, 2014. 2 As per the criteria set by the Election Commission of India, a party is eligible to be declared as a national party provided (a) it secures at least 6% of total votes, polled in four states and wins four seats in the Lok Sabha or (b) it wins at least 2% of total seats of 543 from no less than three provinces of federal India. 3 Akshya Mukul, ‘Red star fades out, CPM faces total eclipse’, The Times of India, New Delhi, May 17, 2014. 4 The Hindu, New Delhi, May 17, 2014. 5 Quoting a member of the central committee of CPI (M), The Times of India (New Delhi) of May 19, 2014 thus reports. 6 Puja Bhattacharjee, ‘Playing left out or right back’, Governance Now, Vol. 5, No. 8, 2014, p. 15. 7 Shiv Viswanathan, ‘An election to remember’, The Hindu, New Delhi, May 17, 2014. 8 Soumitra S. Bose, ‘Did Naxals push voters to press NOTA’, The Times of India, New Delhi, May 19, 2014. 9 According to SM Lipset, ‘The more well-to-do a nation, the greater the chances that it will sustain democracy’. S.M. Lipset, ‘Some social requisites of democracy: Economic development and political legitimacy’, American Political Science Review, Vol. 53, No. 1, 1959, p. 102. 10 According to JS Mill, ‘Free institutions are next to impossible in a country made up of different nationalities. . . . It is in general a necessary condition that the boundaries of government should coincide in the main with those of nationalities’. J.S. Mill, Considerations on Representative Government, Oxford University Press, New York, 2008 (reprint), p. 223.

Conclusion 203 11 Drawn from the discussion that Amartya Sen pursues in his Collective Choice and Social Welfare, Penguin, London, 2017 (revised edition), pp. 398–9. 12 Eric Stokes dealt with this point in detail in his The English Utilitarians and India, Cambridge University Press, Cambridge, 1959, pp. 32–36. 13 Sudipa Topdar, ‘Duties of a “Good citizen”: Colonial secondary school textbook policies in late nineteenth-century India’, South Asian History and Culture, 2015, p. 3. 14 Viktor J. Vanberg argues this point in his ‘liberal constitutionalism, constitutional liberalism and democracy’, Constitutional Political Economy, Vol. 22, No. 1, March 2011, p. 1.

Bibliography

Constitutional Democracy in India is a concept-led empirical text. The available literature on constitutionalism in India can be divided into two segments: on the one hand, there are texts which are legalistic in the sense that they approach the theme from the point of view of constitutional laws with almost no reference to the processes responsible for their peculiar manifestation. These are interesting tracts since they provide rule or precedent-driven interpretation of constitutional provisions and regulations. D. Basu’s widely read popular text on the Indian Constitution belongs to this category. The other segment refers to, on the other hand, those academic tracts seeking to understand the evolution of constitutionalism in India in a historical perspective. By taking into account the inputs/impulses from within the socio-economic and political milieu in which a constitution is located and evolves, these texts seek to understand the phenomenon in a wider context since it is the context that remains critical in shaping how a constitution constitutionalizes governance and public life. There is hardly a book among the available titles that fits into this category. MV Pylee’s Constitutional Government in India (Asia Publishing House, London, 1960) and Granville Austin’s The Indian Constitution: Cornerstone of a Nation (Oxford University Press, Delhi, 1966) seem to be a close approximation to this genre of thinking, and these books can be said to have initiated a new trend in the study of constitutionalism in India which is radically different from the overpowering legalistic tracts. Constitutional Democracy in India draws inspiration from these books and the text that unfolds in the book is an endeavour to conceptualize its gradual evolution and consolidation with reference to India’s peculiar context in which it is rooted. As is argued in the text, the genealogy of India’s constitutional democracy can be traced back to the British rule in India. It was a gradual evolution. For an analytically persuasive study of the phenomenon, one thus cannot ignore the British initiatives, legal, institutional and politico-ideological, which set the ball rolling in this regard. Hence, Constitutional Democracy in India focuses on the 1861 Council Act, the 1858 Queen’s Proclamation, the 1909 Morley-Minto Reform Scheme, the 1919 Dyarchy system of governance, 1935 Government of India Act and the 3 June Declaration and the 1947 Independence Act, among others. There were nationalist endeavours as well: the 1928 Motilal Nehru Report and the 1945 Sapru Committee proposals created a nationalist design which the Constituent Assembly

Bibliography 205 members drew on while drafting the 1950 Constitution of India. The five-volume set of the Constituent Assembly Debates, published by the Lok Sabha Secretariat, is a goldmine for the researchers seeking to unravel the dynamics of constitutional governance in India; they also help us understand how liberal constitutionalism was privileged by the framers of the Constitution presumably because they were ideologically nurtured in an environment in which values, norms and principles of Enlightenment philosophy remained dominant. The following bibliography cannot be exhaustive since the field is so vast and widely researched; it is thus directional for those interested in pursuing the enquiry further. Besides including the recently published books, it also contains some of the classical texts on the theme which, if ignored, will be a source of weakness in our endeavour towards conceptualizing constitutional democracy in India. The published texts apart, I have also consulted two PhD dissertations which are useful scholarly tracts to comprehend the peculiar evolution of India’s constitutional democracy with reference to the historical context in which it has evolved. As is mentioned above, this bibliography is merely directional and the academic tracts are accordingly included for further studies in this regard.

The nationalist proposals The Constitutional Proposals of the Sapru Committee, 1945, reproduced in B. Shiva Rao (ed.), The Framing of India’s Constitution, Vol. 1, Universal Law Publishing House, New Delhi, 1967. The Motilal Nehru Committee Report, 1928, reproduced in B. Shiva Rao (ed.), The Framing of India’s Constitution, Vol. 1, Universal Law Publishing House, New Delhi, 1967.

Books and published articles Adeney, Katharine and Lawrence Saez, Coalition Politics and Hindu Nationalism, Routledge, Oxford and New York, 2005. Bajpai, Rochana, ‘Constituent assembly debates and minority rights’, Economic and Political Weekly, 21–22, 27 May, 2000. Bajpai, Rochana,Debating Difference: Group Rights and Liberal Democracy in India, Oxford University Press, New Delhi, 2011. Basrur, Rajesh M. (ed.), Challenges to Democracy in India, Oxford University Press, New Delhi, 2009. Basu, D.D., Introduction to the Constitution of India, LexisNexis, Gurgaon, 2015. (reprint) Berlin, Isaiah, Four Essays on Liberty, Oxford University Press, New York, 1969. Bernstein, James, Dawning of the Raj: The Life and Trials of Warren Hastings, Ivan R. Dee, Chicago, 2000. Bhagwati, Jagdish and Arvind Panagariya, India’s Tryst With Destiny: Debunking Myths That Undermine Progress and Addressing New Challenges, Collins Business, Noida, 2012. Bhargava, Rajeev (ed.), Politics and Ethics of the Indian Constitution, Oxford University Press, New Delhi, 2008. Bhatia, Gautam, Offend, Shock or Disturb: Free Speech Under the Indian Constitution, Oxford University Press, New Delhi, 2016.

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Unpublished PhD dissertations Dasgupta, Sandipto, Localizing the Revolution, Unpublished Ph.D dissertation, Columbia University, 2014. Elangovan, Arvind, A Constitutional Imagination of India: Sir Benegal Narsing Rau Amidst the Retreat of Liberal Idealism (1919–1950), Unpublished Ph.D dissertation, University of Chicago, 2012.

Index

Aam Admi Party (AAP) 131 – 4 Achuthanandan, VS 138 Act for the Good Government of India of 1858 57 – 64 administrative control 56 – 7 Akali Dal 111 Akanskha Peti (Expectation Box) 150 All India Anna Dravida Munnetra Kazagham (AIADMK) 111, 117 All-India Civil Service 85 All India Scheduled Caste Federation 111 All India United Democratic Front 137 Ambedkar, BR 32, 42, 75 – 6, 83 – 5, 87, 92, 120, 168; concern for minorities 86; on constitutional democracy 89; constitutional morality, concern for 85 – 6, 92; critique of Hindu social order 88 – 90; Draft Constitution 85; features of the Constitution 84; framework for Constitution of independent India 32 – 3; indices of constitutional democracy 85 – 6; minorities, concern for 85 – 6; notion of constitutional liberalism 32; stance on federalism 77; state-driven social transformation, model of 33 American system of constitutional governance 84 – 5 Amin, Nurul 67 Anglicization of public life 34 anti-Congressism 119 Article 368 181 – 3 Article 370 117 Asom Gana Parishad 137 Aurobindo 31 Austin, Granville 78 Ayyangar 86 Ayyar, Alladi Krishnaswamy 78, 81 Babri masjid destruction 110, 118 – 19 Bahujan Samaj Party (BSP) 112 – 16, 143, 146 – 8

Bajrang Dal 117, 149 – 50 Banerjea, Surendranath 28 – 9 Banerjee, Mamata 136 Bhaduri, Amit 120 Bharatiya Jana Sangh 111 Bharatiya Janata Party (BJP) 103, 107 – 8, 111, 118, 135, 137, 155; electoral performance in state assembly elections 131; Modi-centric election 128, 130; performance in Uttarakhand in 2017 assembly elections 141; performance in Uttar Pradesh (UP) state assembly, 2017 140 – 2; popularity of 143 – 5, 148 – 51; projection of leadership 128, 130; victory in 2014 national election 126, 128 – 9; welfare schemes 152 – 4; see also Modi, Narendra Bihar state assembly election, 2015 135 Biju Janata Dal 117 BJP-Apna Dal Alliance 142 Board of Control 55 – 6, 58 Bodoland People’s Front 137 Bose, Subhas Chandra 36 Boundary Commissions 67 Brahman mahasammelans 113 Brass, Paul 25, 77, 111 British Enlightenment 33 – 4 British imperial attitudes in India 50 British initiatives in constitutionalizing India: Act for the Good Government of India of 1858 57 – 64; Charter Act of 1833 56 – 7; Council Act of 1861 53; divide-et-impera strategy 50, 63; dyarchy 63 – 4; establishment of a Supreme Court 54, 56; Government of India Act of 1935 64 – 5; institutions entrusted 53; 3 June Plan 66 – 70; measures to control agitation 52; Montague-Chelmsford Reforms 51; Morley-Minto Reforms 51; objectives of imperial designs 52 – 3;

212 Index opening of administration to Indians 51 – 2; Pitt’s India Act of 1784 55 – 6; Queen’s Proclamation, 1858 52 – 3, 58; Regulating Act of 1773 53 – 6; theories of liberalism and self-government 50 – 1 Burke, Edmund 56 Cabinet Mission 68 Calcutta Congress 36 Centre for the Study of Developing Societies (CSDS) 132 Chandrachud, Justice YV 185 Charter Act of 1833 56 – 7 Chaube, SK 78 Chidambaram, PC 154 civilizing mission 57 coalition politics 110 – 11 colonialism 50 – 2, 57, 60, 64 – 5, 68, 70, 76, 80, 83, 91, 96 Comte, August 27 Congress party 104, 109 – 10, 126; breakdown of 104; as a centrist force 107; deinstitutionalization of 105; under Indira Gandhi 104 – 5, 108 – 9; under Rajiv Gandhi 106 – 7; see also Gandhi, Indira; Nehru, Jawaharlal Constituent Assembly 24 – 5, 78, 84 – 5, 87, 95; role in constitution-making in India 42 – 3, 76 – 9 constitutional democracy 89, 92; evolution of 72 constitutional design: application of Gandhian principles 86 – 7; concern for minorities 86 – 7; constitutional morality, concern for 92 – 3; Draft Constitution 84 – 6; dual polity 84; equality concerns 87 – 8; for governance 77 – 8; Nehru’s intervention 83 – 7; Objectives Resolution 80 – 3; political context, consideration of 76, 79 constitutionalism 61, 69 – 70, 75 – 6, 79, 87 constitutional morality 85 constitution-making in India 24 – 5; Constituent Assembly and 42 – 3, 76 – 9; Cripps proposal 40; equality of opportunity 32; foundational values of Hinduism 32; fundamental ethos of liberalism 27 – 8, 32 – 3, 37, 39; fundamental rights 32 – 3; idea of a village republic 24; ideological forces 25; League’s demand 35 – 6, 40; major designs 34; nationalist initiatives 34 – 42; nationalists and

liberalists approach 27 – 34; Nehru Committee recommendations 35 – 6, 41; political context 43; principle of representation 41; Royal Commission recommendations 27; Sapru Committee recommendations 37 – 41; Special Fundamental Rights 39, 41; state, role of 24, 30 Constitution of India, 1950 24; liberal values 24, 26 Council Act of 1861 94 Court of Directors 53, 58 Court of Proprietors 53 CPI (M) 131, 135 – 8 cultural imperialism 174 Curzon, Lord 37 Dalits 113 – 14 Deccan Sabha 29 Deen Dayal Upadhyaya Gram Jyoti Yojana 153 – 4 democracy 50 demonetization 150 – 1 Dewey, John 89 – 90 Dharma-Nirpekshta 93 divide and rule policy 61, 72 Draft Constitution 84 Dravida Munnetra Kazagham (DMK) 111 dual polity 84 dyarchy 63; functioning of 64 East India Company: restrains on 56 election manifestos 103 electoral participation 100 – 2, 107, 115, 121 Emergency period of 1975 – 77 159, 161, 188 English education 29 enlightened liberalism 56 Enlightenment philosophy 56 ethnic identity and electoral politics 112 – 16 factionalism 106 Gandhi, Indira 10 – 105, 108, 156 Gandhi, Mahatma 25, 33, 43, 168; led anti-British nationalist campaign 53; methods of opposition 91 – 2; mode of rural governance 86; swaraj concept 24, 30, 44 – 5 Gandhi, Rajiv 103, 109 Gandhi, Sanjay 109

Index  213 Gandhi, Sonia 109 Gokhale, GK 28, 54 Golaknath case 181 Government of India Act, 1919 62; division of administrative subjects under 63 Government of India Act of 1935 64 – 5, 72, 75, 77, 86, 94 Green, TH 33 Gupta, Ram Chandra 79 Hanumanthaiya, K. 86 – 7 Harshavardhan, Dr 133 Hastings, Warren 53 Hindu Mahasabha 111 Hindu social order 88 – 90 Hindutva as an electoral agenda 116 – 19 Hindutva judgment 178 – 80 Hobhouse, LT 33 Home Rule League 52 Indian centrism 108 Indian Councils Act of 1892 58, 60 Indian democracy: coalition politics 110 – 11; contribution of British democratic tradition 107; ethnic identity and electoral politics 112 – 16; Hindutva as an electoral agenda 116 – 19; plebiscitary democracy 107 – 10; political parties of 1990s 110 – 12; rise of plebiscitary politics 103 – 7; in terms of articulation 101 – 3 Indian Independence Act of 1947 67 – 9 Indian National Congress 27 – 8, 34 Indira Gandhi versus Raj Narain 184 IR Coelho (dead) versus State of Tamil Nadu 186 Janata Dal 103, 108 Jinnah, MA 36 judicial activism 166 – 7 judicial pronouncements 167 – 8 judiciary 158 – 9; basic structure doctrine 181 – 6; belief of sarvdharma sadbhava 179, 181; conceptualization of separation of powers 161 – 4; historical antecedents 159 – 61; independent 158, 160 – 3, 187; judicial activism 166 – 7; judicial pronouncements 167 – 8; principles of natural justice and negligence 183; public interest litigation (PIL)/social action litigation 165 – 6; religion and secularism, approach to

177 – 81; social justice 168 – 9; Supreme Court 164 – 5 June Plan 66 – 70, 75; in division of Bengal and Punjab 67 kabristan (burial ground) vs shamshan ghat (crematorium) paradigm 151, 155 Kaka Kalekar Commission 169 – 70 Kamraj, K. 108 Kanyashree (daughter empowerment) scheme 136 Katiyar, Vinay 149 Kejriwal, Aravind 131 – 4 Kerala Land Reforms Act, 1963 182 Kerala Land Reforms (Amendment) Acts, 1969 and 1971 182 Kesavananda Bharati judgment 184 – 5 Khadya Sathi (offering food) scheme 136 Khan, Aga 61 Khanna, Justice 183 Kothari, Rajni 104, 120 Kumar, Nitish 136 Lahore Congress 36 – 7 Lahore resolution, 1940 43, 76 liberal democracy 31, 39 liberalism 24, 27 – 34 Lipset, SM 134 Lohia, Rammanohar 119 Macaulay, Lord 56 Mahagatbandhan (Grand Alliance) 135 Maharatta-Kunvi combination 112 Mandal Commission 169 – 73 Mandal debate on reservation 168 – 77 Mandalism 108 Manor, James 104 Maurya, Keshav Prasad 150 Maurya, Swami Prasad 149 Mayawati 112 – 14 Mayo resolution of 1870 59 – 60 Mehta, GL 78 Mehta, Pherozeshah 28 Mehta, Pratap Bhanu 133 Mill, JS 27, 56, 92, 134 Minerva Mills versus Union of India 185 Mishra, Satish Chandra 113 M Ismail Faruqui and others versus the Union of India and others 177 Modi, Narendra 126, 128 – 30, 132, 135, 153 – 4, 156; campaign of 2014 134; welfare schemes 152 – 4; see also Bharatiya Janata Party (BJP)

214 Index Montague-Chelmsford Reforms, 1919 62 Mookherjee, Shyama Prasad 142 Morley-Minto Reforms, 1909 27, 61 – 2 Morris-Jones, WH 104 Motilal Nehru Committee 94 Motilal Nehru Report, 1928 95 Mountbatten, Lord 66 Mudholkar, JR 181 Muslim League 34, 61, 66, 68

Pradhan Mantri Ujjwala Yojana (PMUY) 152 – 3 Prasad, Rajendra 43, 69, 78 – 9, 92, 94 – 5 public administration 62; colonial-led 54 – 5; Pitt’s India Act of 1784 55 – 6; ‘public’ in 65; Regulating Act of 1773 53 – 6 public interest litigation (PIL)/social action litigation 165 – 6

Naoroji, Dadabhai 28 National Democratic Alliance (NDA) 110, 126, 134 national election, 2014 126 – 34; BJP performance 128 – 9; Congress performance 129; CPI (M) performance 131; distribution of popular votes 128; election campaign 128, 130, 133 – 4 nationalism 50 – 2, 66, 72 nature of elections in India 138 – 40 Nehru, Jawaharlal 34, 36, 42 – 3, 104; ideological foundation of the Constitution 83 – 4; Objectives Resolution 80 – 3 Nehru, Motilal 35 – 7 Nehruvian liberal socialism 93 Nijalingappa, S. 108 Ninety-Third Amendment Act of 2005 173, 176 Noakhali riots 43, 76 Non-Cooperation Movement 52 None of the Above (NOTA) 131 nukkad sabhas 132

Queen’s Proclamation, 1858 52 – 3, 58

Objectives Resolution 42 – 3, 80 – 3; concern for minorities 82; major components 81 Other Backward Classes (OBC) 112, 114, 117, 169 – 72 Pant, GB 41, 81 Parekh, Bhikhu 116, 176 Patel, Vallabhbhai 108 Phule, Jyotirao 32 Pitt’s India Act of 1784 55 – 6 plebiscitary democracy 107 – 10 plebiscitary politics 104 – 5 political concessions 60 poverty-eradication programmes 105 Pradhan Mantri Gramin Awas Yojna (PMGAY) 152 Pradhan Mantri Jan Dhan Yojana (PMJDY) 153

Rabha Jatiya Aikya Manch 137 Radhakrishnan, S 82 Rai, Lala Lajpat 31 Ram Rajya Parishad 111 Ranade, MG 29 – 30, 32 Rao, Narashima 110 Rao, Shiva 78 Rashtriya Swayamsevak Sangh (RSS) 117, 135, 149, 154 Ray, Justice AN 184 Regulating Act of 1773 53 – 6, 63 reserved subjects 62 revolt of 1857 59 Rights of Man (Thomas Paine) 32 Ripon Resolution of 1882 59 Rowlatt Satyagraha 52 Royal Commission 27, 61 Sajjan Singh versus State of Rajasthan 181 Samajwadi Party 145 – 6 Sangh Parivar 128 Sapru Committee 94 Sarma, Himanta Biswa 137 Sarvjan (Dalit-Brahman combination) 114 Shah, Amit 144, 149 Sharma, Balkrishna 44, 96 Shastri, Lal Bahadu 108 Shiv Sena 111 Shosh, Atulya 108 silent revolution 115 Singh, Justice YK Sabharwal 186 Singh, Kalyan 149 – 50 Singh, VP 108 socialism 76 social justice 168 – 9 social reengineering 137 Sonowal, Sarbananda 137 Spencer, Herbert 27 SP Gupta versus Union of India 164

Index  215 state assembly elections, 2016 134 – 8; Assam 137; Bihar 135; Kerala 137 – 8; Tamil Nadu 138; West Bengal 135 – 6 Supreme Court 54, 56, 164 – 5; Mandal debate on reservation 168 – 77 suzerainty of British parliament 68 Swadeshi Movement 52 swaraj concept 24, 30, 44 – 5, 94 Swaraj Constitution 34 Telegu Desam 117 Thakur, Karpoori 171 Tiwa Jatiya Aikya Manch 137 transferred subjects 62 Trinamul Congress 117, 136 ultra vires 186 United Democratic Front 137

United Progressive Alliance (UPA) 126, 130 Uttar Pradesh (UP) state assembly, 2017 140 – 2; communal polarization 151, 155 Vijayan, Pinarayi 138 Viswa Hindu Parishad (VHP) 117, 149 Westminster form of constitutional democracy 34, 85 Yadav, Akhilesh 152 Zavos, John 117 Ziauddin Burhanuddin Bukhari versus Brijmohan Ramdass Mehta and others 177